Judicial Control over Administrative Discretion in Decision-Making, Actions (Inaction) by Executive Authorities, Other Bodies with Administrative and Public Powers, and Their Officials

This article examines the nature, forms, and methods of exercising administrative discretion by administrative authorities in the performance of their law-enforcement functions, as well as the criteria used by courts to assess the legality and reasonableness of such discretion in administrative proceedings. The Author notes that scholars of administrative law have proposed various approaches to understanding
administrative discretion, its limits, and the criteria of judicial review—all of which require adjustment in light of emerging judicial practice, including the clarifications provided in paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 28 June 2022 No. 21 “On Certain Issues of Application by Courts of Chapter 22 of the Code of Administrative Procedure of the Russian Federation and Chapter 24 of the Arbitration Procedure Code of the Russian Federation. ”The Author emphasises that judicial practice on these issues remains inconsistent and that the clarifications in the Resolution require further refinement. To develop such refinements, the article proposes an authorial definition of administrative law-enforcement discretion, outlines its essential features and required conditions, and describes potential forms and limits of its exercise. The Author concludes that administrative law-enforcement discretion manifests itself either (1) in an administrative body’s choice among alternatives permitted by law when adopting a decision or performing an act (or omission), or (2) in independently determining a decision or act (or omission) on the basis of general principles, aims, and objectives of the applicable legislation. Given the distinct nature of these two forms, these criteria for judicial assessment of legality and reasonableness must be differentiated. The Author proposes a set of criteria that, in his view, ought to be incorporated into paragraph 18 of the above-mentioned Plenum Resolution.