Prejudice in Administrative Proceedings
Authors: Barikova Anna 
Published: February 2021

The paper addresses the issues of judicial discretion in the application of appropriate preliminary categories for the fair and impartial consideration and settlement of disputes.
The author focuses on the peculiarities of applying the prejudice to express contradictions and truth-falsehood, establishment of erroneousness and truth of assessment. The administrative court is to assess a prejudicial relationship between judicial decisions concerning an established legal fact or composition, the consequences or claims arising from the same legal relationship in the original proceedings. Such prejudice applies to the following cases: 1) emergence, change or termination of the main legal relationship in the primary process, affecting the use of prejudicial categories in derivative legal relations in the subsequent process; 2) emergence of a legal relationship not generated by the primary relationship, which contains interdependent substantive legal regulations; 3) recognition of a claim for a conviction due to confirmed preliminary categories by a primary court decision, etc.
Direction of assessing the circumstances of the case are dealt with in the paper to establish the facts by comparing the judge’s rules of law and conduct of the parties on the basis of operational rules of law, taking into account «legal issues» (in material/primary and procedural/secondary components). Under the influence of the nature of reasoning, such effective evaluation criteria are formulated as observance of the principles of confidence in law, justice, honesty and morality; standards of reasonableness, impartiality, good faith; political goals of ensuring the common good, security of the state, public interests. Within the procedural discretion when using the preliminary categories, the judge is to fully and impartially investigate the «question of fact» regarding the modelling of scenarios and empirical knowledge of the truth on the levels of probability, conviction, absolute certainty. This subject of evaluation is dependent on previous decisions in the direction of «definitive» interpretation in order to make an unambiguous decision.
The author adduces examples of legal positions of the Supreme Court and courts of previous instances on applying preliminary categories in administrative proceedings.
It has been identified that the possibility of preliminary categories non-application in case of motivated judge’s disagreement in the way of the «recall» within the subject of consideration of the factual circumstances of the case is to be provided. Deviation from prejudice might be justified if there is a need for a «live» transition of judicial practice to interpretation, filling gaps and open «legitimate» completion of the law. Relevant changes are to be implemented in a natural, gradual and coordinated manner.
Procedure for overcoming the legal force of the preliminary ruling of a court decision has been proposed. The universality of a court decision is conditional. The standard legitimate way to reject prejudice is to review court decisions. Such decisions might be reviewed for compliance with the law and validity in their adoption. Confirmation of a judicial error «cancels» the preliminary nature of such a decision. Moreover, if the draft decision contradicts the preliminary categories given in another court decision that has entered into force, it is necessary to review unacceptable legal facts and compositions. For example, these could be procedural abuses, artificial distortion (creation or forgery) of evidence, etc.
Key words: discretion, judicial discretionary power, prejudice, falsity, truth, contradiction.