On the Question of Legal Ways to Limit Law Enforcement Discretion

Onosov Yurii Viktorovich PhD in Law Associate Professor, Department of Theory of State and Law, Ural State Law University 620028, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21, of. 320 Onosov_nn@mail.ru Other publications by this author

Introduction The existence of law enforcement discretion is caused by the need of the law enforcement officer to interpret the law, its principles, basic principles, the spirit of the law in order to eliminate gaps in legislation and other shortcomings for an objective and independent resolution of social conflict.

"Where there is a right," A. Barak notes, "there will be judicial discretion. The history of law is also the history of the expansion or narrowing of judicial discretion at different times and under different circumstances, according to relevant political considerations. Thus, even the sharpest criticism... does not seek to eliminate it completely. The real question is not whether judicial discretion should or should not be allowed to exist. The real question is the proper scope, the limits of judicial discretion" ^{[1, p. 353]}.

A. I. Solzhenitsyn noted that "the existence of a society of "unbridled rights" is impossible. The stability of society can be achieved not on the equality of resistances, but on conscious limitation. Animals also have the freedom to grab and get full. Human freedom includes voluntary self-restraint in favor of others. Our obligations must always exceed the freedom granted to us"^[4]. Therefore, it is necessary to apply legal norms that limit discretion, eliminate and limit discretion, define limits and restrain discretion in the process of law enforcement practice.

The main partThe concept of "discretion" is widely used in scientific research devoted to certain aspects of law enforcement practice.

The concept of "discretion" in the commonly used sense is used in the meaning of an opinion that has a subjective character; as a logical device, as well as a decision that has a strong-willed connotation. The term "discretion" is not disclosed in legal dictionaries. The complexity and discussion of this problem of law enforcement discretion "is primarily due to the versatility of the concept itself, and the discussion is dictated by the lack of unity in approaches to understanding the category of "discretion" ^{[6, p. 102]}.

The abstract nature of the norms of law, the presence of collisions and gaps with objective necessity is complemented by individual judicial regulation. The problem of the limit of judicial discretion has repeatedly been the subject of discussion by the Plenum of the Supreme Court of the Russian Federation. At the same time, despite a large number of scientific studies, issues related to judicial discretion have not received sufficient regulatory regulation, acts of official interpretation of higher judicial instances are aimed to limit judicial discretion to a greater extent.

Discretion should be "allowed only if its exercise is under proper control and has been stopped so that its application is thoroughly investigated in order to guarantee against arbitrariness" ^{[18, p. 142]}. In addition, according to O.A. Papkova, judicial discretion is a motivated law enforcement activity of the court, consisting in choosing a solution to a legal issue, having general and special limits ^{[9, p. 66]}. As B.M. Lazarev rightly notes, "by establishing the competence of a particular governing body, the state authorizes it to perform certain actions, and naturally introduces its activities into the framework" ^{[7, p. 22]}. Another classification of the legal limits of judicial discretion makes it possible to consider how, depending on the type of norm, the judicial discretion prescribed by it is implemented. So, K.P. Ermakova divides them into normative, special limits and limits when applying evaluative concepts. Speaking about the first type – the normative limits, the jurist points out that they are indicated in them by fixing possible solutions, describing specific conditions, a certain behavior of the judge when resolving specific cases" ^[8].

One of the most important signs of law enforcement discretion is that the key element of discretion is the choice by the law enforcement officer of the option to resolve the legal situation, and this choice can be conditionally limited by the so-called general and special limits " ^{[9, p. 67]}.  

 An interesting position is that, in the institutional sense of the word, discretion should be considered as a type or method of law enforcement activity, although, of course, one cannot deny the socio-cultural conditionality of the legal consciousness of the subject of the application of law (Presnyakov 2013). In general, discretion correlates very strongly with the concept of freedom. M. L. Nokhrina notes that "in the most general sense, the content of freedom consists in the ability to act at one's discretion in any area" ^{[13, p. 24]}.

Thus, the discretion of the judge has its limits, and the current legislation contains different requirements for discretion. Article 67 of the Civil Procedure Code of the Russian Federation provides for the need for the court to consider the case in accordance with the evidence available in the case that meets the criteria of immediacy, comprehensiveness, objectivity and completeness of internal conviction. In domestic legislation, in relation to judicial discretion, it is not prohibitions that dominate, but permits, discretionary norms. According to A. I. Rarog and Yu. V. Gracheva, only those concepts that meet a number of requirements can be an effective means of limiting judicial discretion, namely, "accurately and unambiguously reflect the content of the designated concept; they are used in their direct and well-known meaning, are simple and accessible to understanding ..." ^{[15, P. 94]}. The requirements that must be met with judicial discretion, the limits of the possibilities of such discretion are its limits. These requirements must be met in order to ensure compliance of judicial acts with such criteria as fairness, validity, legality.

The validity of the established circumstances relevant to the resolution of the case, the validity of the court decision is a significant legal criterion characterizing the limits of the court decision.

In various branches of law, for example in criminal legislation, enforcement discretion is an integral element of law enforcement, since general norms, besides containing evaluative features, open lists, relatively defined and alternative sanctions, cannot regulate specific life situations without the discretion of the law enforcement officer, G.V. Nazarenko also adheres to this point of view ^{[14, p. 197]}.

 The explanations of the Supreme Court of the Russian Federation relate to virtually all sections of criminal legislation and are directed against arbitrary interpretation and erroneous application of criminal law prescriptions against persons subject and not subject to criminal liability, who have committed completed and unfinished crimes alone or in complicity, or protecting rights and legitimate interests in circumstances excluding criminal acts, as well as being subjected to punishment or other measures of a criminal nature, or exempt from liability or punishment.

The legal position of the Plenum of the Supreme Court of the Russian Federation, presented in paragraph three of Resolution No. 23 of 19.12.2003, seems to be very significant. According to the explanation of the highest judicial instance, the decision meets the criterion of validity in the case of confirmation by circumstances that do not require proof or admissible and relevant evidence that the court investigated, facts relevant to the case. At the same time, it must contain conclusions made by the court based on established facts, which are exhaustive (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 23 of December 19, 2003 "On the judicial decision").

According to paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 of 10.02.2009, issues that may be the subject of proceedings on the merits of a criminal case, the decisions made should not be prejudged by a judge, prosecutor, head of the investigative body, investigator, inquirer. Thus, the judge does not have the right to present conclusions related to the qualification of the deed, the assessment of evidence, the actual circumstances of the case.

As I.A. Pokrovsky noted at the time, the court needs to base decisions not on such criteria as expediency, general ideas of justice, natural law, but to be guided in passing sentences on the general spirit of the law and its norms ^{[10, p. 94]}.

It should be noted that the judicial discretion has certain advantages and disadvantages. Judicial discretion should not be associated with a violation of substantive and procedural legal norms. The consequence of such violations may be judicial errors. In order to reduce the number of such errors, it is necessary to properly select applicants for judicial positions, improve the level of training of judges, etc. O.A. Popkova in the presented definition of judicial discretion indicates the existence of limits of such discretion, which are general and special ^{[9, p. 75]}.  The limits of the first type exist when resolving all cases in court, are generalizing and are provided for normatively. The limits of the second type are determined by the resolutions of the Constitutional Court of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation, legal norms.

In court proceedings, the judge, on the basis of an internal conviction formed as a result of a direct, comprehensive, objective and complete examination of the evidence in the case, selects the norms that should be applied in the relevant case. The judge, within the framework of the freedom of discretion provided by law, makes a decision. 

The court's choice of possible legal solutions in relation to certain life situations is relatively free, and is limited to certain limits.

Such options of judicial discretion as final and intermediate are possible. The latter is possible in arbitration, administrative, civil, criminal and constitutional proceedings. An example may be situations related to the resolution of the issue regarding the application of interim measures (Article 139 of the CPC of the Russian Federation), the determination of compliance of evidence with the criteria of admissibility and relevance (Articles 59, 60 of the CPC of the Russian Federation, Article 88 of the CPC of the Russian Federation), the resolution of a petition regarding the appointment of an examination (Article 195 of the CPC of the Russian Federation).

By the nature of the applicable legal norms, discretion may be based on the norms of substantive law and procedural law.  In the first case, as an example, we can cite Part 4 of Article 31 of the Criminal Code of the Russian Federation, which excludes criminal liability for an accomplice who took all actions in order to prevent the commission of a criminal offense. The discretion of the court in this case refers to the assessment of the acceptance by the accomplice of all measures that depend on him. Another example is Article 151 of the Civil Code of the Russian Federation. The court determining the amount of compensation for moral damage takes into account the circumstances that deserve attention, including the degree of guilt of the person who committed the offense. At the same time, the court must take into account the degree of suffering of a moral and physical nature, due to the characteristics inherent in the citizen against whom the harm took place. In the second case, an example is Part 1 of Article 100 of the Civil Procedure Code of the Russian Federation, which establishes the award of expenses for the services of a representative within reasonable limits by the second party to the party in favor of which the court ruled, if this party filed a corresponding petition in writing.

When exercising the right, discretion provides for the freedom of choice by the subject of the method of performing the duty or subjective right, which include a model of behavior that best meets the needs of the subject. At the same time, the boundaries within which it is possible for a subject to exercise freedom of choice in the case of performance of duties or use of rights are determined using various means of a regulatory nature.

In the domestic legislation, it is possible to single out some restrictions reflecting the nature of the law enforcement discretion of the limits of freedom of choice.  The exercise of discretion should not contradict the principles of law generally recognized and enshrined in legislation. The study of the norms contained in the legislation allows us to note that the limits of discretion in the exercise of the right are criteria providing for reasonableness and good faith.

The Constitutional Court of the Russian Federation pointed out that only the application of legal norms, which is uniform, allows observing the principle of legal equality and the criterion of certainty following from the Constitution of Russia. In turn, if there were no clearly defined regulatory provisions on the minimum limits of possible reduction of the fine amount, and the discretion of law enforcement agencies in reducing it was not limited by anything, this would directly lead to a violation of the specified criteria and principle ^[18].

A law enforcement officer may violate the limits of discretion when making a law enforcement decision, make a mistake in interpreting the substantive and procedural norms of law, as a result of which he can afford to make a decision based on regulators other than law (for example, based on personal professional and everyday experience) ^[5].  

A separate interesting question in the framework of the study of the limits of judicial discretion is the thesis that judges rely primarily on their intuition when resolving a case, and then rationalize it in the motivational part of the judicial act. This means, for example, that the facts and interpretation of legal norms are "adjusted" by the judge in the text of the judicial act to a certain necessary conclusion, which is formed by the judge "intuitively", i.e. the justification occurs after the intuitive conclusion is made by the judge.

In particular, C.Guthrie, J.J.Rachlinski, A.J. Wistrich tested the hypothesis that judges rely more on their intuitive abilities, although they can rationalize them later ^[19]. Of course, the role of the law in making law enforcement decisions is significant, but it is not necessary to idealize its role. The law is a textual verbal expression of the will of the legislator, and there is a possibility of its interpretation within the discretionary powers of the judge, for example, to prescribe the reasoning part of the judgment in favor of either party.

Interesting in this sense is the point of view of foreign authors on the peculiarities of court decisions made by judges of the Romano-German legal family. Judges of this legal family are not characterized by "digressions, manifestations of indignation or delight, "frivolous reasoning," signs of indecision and doubt, pompous words about the state of legality," verbs suggesting the subjectivity of judges; expressions of sympathy are not approved... The judge mechanically applies the current legislation to the real situation, and not as a social engineer who makes decisions and establishes general rules of conduct" (Michael Wells 1994).

Arguing the role of the judge as a mechanical law enforcement officer K. Zweigert and H.Ketts explain this by the fact that by such judicial decisions "they want to demonstrate the greatness of the law to a subject who respects the authority of the authorities and for this reason hide that the judge could not make a decision based on mental, precisely verified logical operations, but acted based on the materials of the case under consideration, and in doubt sought solutions to specific problems by trial and error, painfully weighed all the pros and cons ^{[16, p. 395]}.

At the same time, in the Anglo-Saxon legal family, where judges allow themselves a "lyrical digression" and judgment on general topics in the motivational parts, an appeal to judicial acts, although bearing a more obvious author's imprint, does not reveal much to us the influence of various factors influencing the adoption of a court decision. The analysis of judicial practice confirms that when correcting the norms of law, courts motivate this with references to restoring justice, protecting the weak side, etc. without much legal reasoning, i.e. judges often use this term only to enhance the significance of their decision (for example, as of mid-2018, only the Supreme Court of the Russian Federation used the concept of justice in almost 23 thousands of decisions and rulings, and the Constitutional Court from the mid-1990s until the end of 2015 applied (explained, mentioned) the principle of fairness in almost 1900 decisions) ^{[3, p. 22]}.   

Based on the study of the presented approaches to understanding the essence of the limits of law enforcement discretion, it seems necessary to note the following - the stages of legal regulation determine the varieties of the corresponding limits.

The formation of moral and legal limits of law enforcement discretion occurs with the value and informational impact of legal regulations. Such limits are represented by the legal culture and legal awareness inherent in the subject of law enforcement. In turn, the formation of legal limits of law enforcement discretion occurs within the framework of law-making, the implementation of norms and in the process of coercion. As part of these limits, it is necessary to distinguish the limits that are procedural, substantive and general.

Having analyzed the above-mentioned features of the limits of law enforcement discretion and approaches to the construction of their typology, it seems necessary to note the unity of the theoretical construction of these limits.  Based on the inherent features of the limits of discretion, it should be pointed out that this limit is a phenomenon whose structure is complex. The elements of the margin of discretion are complementary, taken together, they ensure the formation of absolute limits of discretion.

According to N.S. Pogorelova, there are differences between the boundaries and the limits of discretion. The boundary of judicial discretion finds expression in the exercise of this discretion only within the limits of the sanction and is called the framework discretion. The author believes that the limit of judicial discretion in comparison with its limit is a narrower concept ^{[11, p. 20]}.

It is possible to illustrate the question of the limits of law enforcement discretion by the provisions of administrative legislation. Thus, the following terms and phrases are used in the legislation "within the competence" (Part 1 of Article 22.1 of the Administrative Code of the Russian Federation), "within the powers" (Part 2 of Article 22.1 of the Administrative Code of the Russian Federation), "in case of abolition" (Article 22.3 of the Administrative Code of the Russian Federation) and others. At the same time, the practical significance of identifying "boundaries" and "limits of law enforcement discretion" in legal science has no theoretical value, since it is necessary to investigate ways to limit the law enforcement discretion of judicial authorities and administrative jurisdiction bodies. L.N. Berg's approach seems consistent, according to which the limits of judicial discretion correlate with the limits of legal regulation. They make it possible to differentiate the sphere of regulatory regulation of relations, in relation to which regulation is carried out, from the sphere of relations, in relation to which legal regulation is excluded; relations that can be regulated by law, but at the appropriate time there is no need for regulation of which; not subjected to legal regulation due to various reasons, despite the possibility of such regulation (gaps in legislation) ^{[2, p. 108]}.

ConclusionBased on the above, we draw the following conclusions:

1.                 One of the main properties of law is the certainty of legal norms, the absence of such certainty leads to arbitrariness. In legal science, a significant number of approaches have been developed to understand the limits of law enforcement discretion, classifications of the limits of law enforcement discretion that have scientific and practical significance. The attention of scientists to this problem testifies to the complexity and inconsistency of these legal phenomena.

2.                 There are no clear legal criteria for the principle of fairness, good faith, reasonableness, which allows the law enforcement officer to consider a legal case on the basis of individual ideas about justice or injustice, good faith or bad faith, reasonableness or unreasonableness, which in turn inevitably generates errors and negatively affects economic development.

3.                 Discretion is interpreted in the form of the authority of the person with the appropriate authority to choose a decision related to law enforcement and practical activities carried out by the specified person and consists in the exercise of existing powers.