Методология судебной проверки дискреционных решений (действий) органов власти в Европе: национальные практики и универсальная ценность

Российская юстиция. 2022. № 6. С. 71–80.

Lesiv B.

History of State and Law has testified that the dichotomous struggle for human rights and against tyranny in Europe and America has proved a success and was crowned with the adoption of constitutions based on the principle of the rule of law and reasonably limited discretion of those who use power. Independent court has been specially separated from the state administration to become the main defender of these principles. Since then, European and Anglo-American judges have accumulated a wealth of experience in reviewing and quashing decisions of authorities that suffered from the evils of arbitrariness and caprice, i.e. those, that interfered with human rights not due to rational reasoning, but by officials’ subjective discretion. The rationalization of state power has become a universal value and goal of constitutional law, and the courts of Europe and America, summarizing this experience, have developed specific methods (tests) for reviewing discretionary decisions. In this article, the author researches the basic methods of this type applied in Europe, including the United Kingdom, and also, in the light of previously studied American approach, summarizes the relevant experience of judicial activity, evaluates its perspectives and identifies key patterns

Keywords: независимость судебной власти, судебный контроль, рациональность в принятии решений, judicial review, принцип пропорциональности, principle of proportionality, Discretionary Powers, дискреционные полномочия, principle of judicial independence, rationality of decision-making