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.