Artificial Intelligence and Administrative Discretion in Disciplinary Procedures: Between technological efficiency and legal limits

Abstract

We are living through a new Industrial Revolution, a new era in administrative proceduralization. We are witnessing a digital transition in which administrative procedures are handled automatically, changing the traditional paradigm of legal-administrative relations. These relations can no longer be considered as involving only two parties, as there is now a “third” actor that alters the entire decision-making dynamic of the Administration: Artificial Intelligence. There are administrative procedures conducted entirely by algorithms, with the final decision issued through an electronic administrative act. Given that disciplinary proceedings may lead to the issuance of a punitive administrative act, often restricting rights, freedoms, and guarantees, and that the legislator has established reinforced defense safeguards for such cases, it is essential to analyze the potential for automation in this context and the possible replacement of the instructing entity with an algorithm. Within the scope of disciplinary power in public employment, there are moments of administrative discretion, making it equally important to consider the use of artificial intelligence in this area. Thus, the application of AI in the various forms of discretionary power is explored, analyzing its limits and implications. To this end, traces of discretion are examined in the different phases of the disciplinary procedure, assessing the automation potential and the feasibility of an automated administrative act resulting from the exercise of discretionary power.