Discretionary Nature of Administrative Act as a Circumstance Precluding Judicial Review of its Legality

Abstract

The subject of the research in this article is the legislative norms defining the boundaries of judicial review of the legality of the exercise by authorities and officials of the public administration of discretionary powers, first of all, clause 3 of part 1 of article 128 of the Administrative Procedure Code of the Russian Federation (hereinafter referred to as CAS RF). According to this provision of the law, the judge refuses to accept an administrative claim if “from an administrative claim for challenging a regulatory legal act, an act containing explanations of legislation and having normative properties, a decision or action (inaction)” of the public administration does not follow that this act, decision or act (inaction) violates or otherwise affects the rights, freedoms and legitimate interests of the administrative claimant.” The purpose of the study is to prove that paragraph 3 of part 1 of Article 128 of the CAS RF in the interpretation given to it by court practice, contrary to the position stated by the legislator, does not simply unduly narrow the boundaries of judicial review of the legality of those administrative acts that are discretionary, but also the possibility of such verification. Based on dialectical, formal logical, historical, formal legal methods of cognition, the method of interpretation of law and the results of the analysis of published materials of judicial practice, the Author concludes that paragraph 3 of part 1 of Article 128 of the CAS RF does not comply with the provisions of the Constitution of the Russian Federation and the need to exclude it from CAS RF. The proposed legislative measure will allow the CAS RF to be brought into line with parts 1 and 2 of Article 46 of the Constitution of the Russian Federation, which do not establish any barriers for the court to verify the legality of the contested administrative acts. Fears that this step will have the implication of the judiciary on the independence of the executive branch, as well as an excessive increase in the judicial burden, seem to be groundless. Depriving the administrative discretion of Article 128 of the CAS of the Russian Federation on Article 3 of paragraph 3 of immunity from judicial control will bring domestic justice closer to European standards, will help “humanize” the Russian judicial system, strengthen the effectiveness of judicial control over the legality of administrative activities and, consequently, increase public confidence in public authorities, authorities and their representatives.