Development of Legal Positions of the Plenum of the Supreme Court of the Russian Federation on Judicial Review of the Legality of the Implementation of Administrative Discretion

The concept of administrative discretion has become a significant topic in legal scholarship, focusing not on abstract legal terms and concepts, but on the fundamental possibility and extent (intensity, boundaries, limits) of judicial review of the legality of discretionary decisions, actions (or inaction) by public administration. In this context, the article examines the legal positions of the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Plenum) as reflected in its resolutions adopted after the enactment of the Russian Federation’s Law No. 4866-1, “On Appealing Actions and Decisions Violating Citizens' Rights and Freedoms in Court”, dated April 27, 1993. These resolutions concern the judicial review of the legality of discretionary decisions, actions (or inaction) of public administration contested by citizens and organizations through administrative and arbitration proceedings. The purpose of the study is to outline the development trends of these legal positions and assess their capacity to ensure substantive judicial review of the legality of discretionary decisions, actions (or inaction) by public administration. Employing dialectical, formal-logical, historical, formal-legal methods, and the method of legal interpretation, the Author concludes that the Plenum’s legal positions have evolved from an initial disregard of the issue to the establishment of concrete criteria for such a review. This progression, despite certain limitations noted in the article, significantly supports meaningful judicial review of the legality of discretionary decisions, actions (or inaction) by public administration, thereby enhancing the protection of citizens' rights, freedoms, and legitimate interests, as well as those of organizations. The Author suggests that a comprehensive solution would not involve the legislative proposal, made by some authors, to abandon the requirement for courts to determine the illegality of such decisions or actions as a prerequisite for satisfying an administrative claim. Instead, a more effective approach would be the enactment of a federal law on administrative procedures, which is currently absent. Such a law would comprehensively outline principles to serve as criteria for substantive judicial review of the legality of administrative discretion. Until the adoption of this federal law, the Author advocates for a new legal position by the Plenum to clarify how judicial practice interprets the legal requirement for satisfying an administrative claim challenging discretionary decisions or actions by public administration. Specifically, this would involve defining the requirement for courts to establish that the challenged decision, action (or inaction) violated the rights, freedoms, or legitimate interests of the administrative claimant. Adopting the proposed legal position, as outlined in this article, would remove the immunity of administrative discretion from judicial review.

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