Limits of discretionary powers through the prism of constitutional principles

Abstract

The article is devoted to the study of the limits of discretionary powers through the prism of the fundamental principles of functioning of public authorities. The purpose of the article is to identify the impact of constitutional principles on determining the limits of discretionary powers of public authorities. The results obtained may be important for the legal doctrine and practice of exercising discretionary powers. The study used the method of logical generalization (to bring theoretical approaches to understanding discretion into a single system), the comparative method (for a comparative study of constitutional principles and their impact on the limits of discretion); the method of systematic analysis (to comprehensively disclose the fundamental principles, in particular, the rule of law). Results. The article considers discretion as one of the ways of exercising the functions of the State, which allows regulating areas not covered by legal norms. The author proves that discretion cannot be interpreted as unlimited freedom of decision-making. The author emphasizes the importance of establishing clear limits of discretion which create a balance between the freedom of action of public authorities and respect for human rights. It is emphasized that the limits of discretion are enshrined in positive law and are defined by the fundamental principles as universal “limiters”, among which the rule of law plays a key role. It is emphasized that constitutional restrictions, principles and provisions serve as a general framework of discretion. Conclusions. It is summarized that the limits of discretion are enshrined at the national and international level. However, these requirements are often insufficient to avoid arbitrariness. It is effective to apply a system of universal restrictions on discretionary powers, which is formed from the fundamental principles and provisions. They are the framework barriers to the exercise of discretion by public authorities at all levels, namely: the rule of law and its components (legality, legal certainty, prohibition of arbitrariness, access to justice, respect for human rights, prohibition of discrimination and equality before the law), the principle of separation of powers, the principle of the rule of law, the principle of a democratic state, as well as justice, reasonableness, etc. They help to define the scope of discretion and are the basis for the exercise of discretion by public authorities.