The Practice of the Constitutional Court of the Russian Federation on the Discretion of Law-Making and Law Enforcement Agencies

Issues concerning the legal regulation of discretion exercised by public authorities and individual officials have long been the subject of extensive research, debate, and even controversy. The problem is aggravated by the fact that the categories of «discretion», «administrative discretion,» and related concepts still lack a unified and definitive doctrinal understanding, whether in general legal theory or in specific branches of law. This situation inevitably gives rise to difficulties and even conflicts in both rule-making and law-enforcement activity across all bodies and officials of public authority. Since the Russian Federation has declared itself a state governed by the rule of law – one in which human and civil rights and freedoms determine the meaning, content, and application of laws and are safeguarded by justice – the Constitutional Court of the Russian Federation plays a crucial role in establishing constitutional order in public-authority activities and ensuring strict compliance with the Constitution. When formulating constitutional-legal interpretations of discretion, the Court takes into account numerous factors affecting the future application of the relevant normative and law-enforcement provisions, as its interpretations are binding and preclude law-enforcement authorities from applying a normative act in any manner inconsistent with the Court’s interpretation. Drawing upon selected examples from the Court’s practice, the article presents various approaches adopted by constitutional justice to interpreting discretion and administrative judgment as incorporated into normative provisions. The Author argues that, given the still-prevalent «formalistic» attitude of courts and other law-enforcement actors toward the Constitutional Court’s legal positions, it is precisely constitutional-legal interpretations of discretionary norms that make it possible to preserve, to the greatest extent possible, the supremacy and direct effect of the Constitution across the entire territory of the Russian Federation and thereby protect the rights and freedoms of citizens in discretionary legal relations.

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