On legal nature of damage cases

Damage cases for the violation of the right to court procedure within a reasonable time or the right to fulfilment of court rulings within a reasonable time represent a relatively new category of cases of administrative (Chapter 26 of the Code of Administrative Court Procedure) and arbitration court procedure (Chapter 27.1 of the Arbitration Procedure Code) both for Russian legislation and law enforcement practice. The emergence of this category was stipulated by the entry of the Russian Federation into the European Council and ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the Convention Russia assumed a commitment to ensure the right to court procedure within a reasonable time or the right to fulfilment of court rulings within a reasonable time to every subject (either a person or legal entity) under its jurisdiction. While constituting a legal basis for court procedure in damage cases for the violation of the right to court procedure within a reasonable time or the right to fulfilment of court rulings within a reasonable time, laws of 2010 made no mentioning of the question about a legal nature of damage cases and this resulted in the discussion among scholars and practitioners. The very core of the discussion can be summarized by saying that some authors considered damage cases to be adversary proceedings while others denied the claim character of such cases. The discussion was brought to a close after new laws in the sphere of regulating proceedings in damage cases had been passed. First to be mentioned are the Code of administrative procedure in Russia dated 08.03.2015 and its Chapter 26 that widely used claim terminology: administrative claim, administrative plaintiff and administrative defendant. The application of claim terminology by legislators is entirely appropriate and meritorious since it corresponds to a legal nature of damage cases. Legal relations in damage cases are publicly legal since a bearer of the right to court procedure within a reasonable time or the right to fulfilment of court rulings within a reasonable time is against the duty of the state ex parte the Russian Federation to create the procedural conditions for a due exercising of the above rights. Compensation is a measure of responsibility of the state. Due to the fact that legal relations resulting in a claim as a demand to protect the violated right to court procedure within a reasonable time or the right to fulfilment of court rulings within a reasonable time « are not based on equality and autonomy of the will of its participants one of which (state) realizes its administrative and other public powers in respect to another participant», such a claim is an administrative one and the damage cases are claim cases.

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