Legitimate expectations are an asset that is a subject to judicial protection


Although the civil law of Ukraine limits the notion of "property" to a particular thing, as well as to property rights and obligations, at the same time, human interests related to certain legitimate expectations are already protected in Ukrainian courts.

These expectations are usually on the edge of a relationship between the person and the state, and cover such forms of benefits as, for example, public services, licenses, franchises, permits for the use of natural resources, etc.

Today the case law of the European Court of Human Rights, regarding the application of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, actively forms the principle of legitimate expectations. Thus, in the case of Stretch v. The United Kingdom, the ECHR found a violation by the State of the right to peacefully own the property of a person who had been denied the opportunity to prolong the lease of land. In other words, the court recognized certain legitimate expectations for the prolongation of the contract as a person's right. The ECHR noted that the concept of "possessions" could mean "existing possessions" or assets, including claim rights, in the matter of which the applicant could claim to have at least a "legitimate expectation" of being able to use the property right effectively.

The principle of legitimate expectations was applied by the ECHR in 2018 in the case of Zelenchuk and Tsytsyura v. Ukraine, when the court, having analyzed the history of the implementation and application of a moratorium on the sale of agricultural land, noted that land owners who could not sell the land had a right to expect the legislative changes and the lifting of the moratorium, as it has been repeatedly stated in the text of the law passed by Ukraine.

Moreover, the principle of legitimate expectations has already been stated in the justification of individual decisions of the Supreme Court (see the orders No. 5023/4388/12 dated 03.10.2018, as well as the ruling No. 352/1243/15-ц dated 03.10.2018, No. 904/3688/17 dated 10.05.2018, No. Б8/142-12 dated 05.06.2019). The Supreme Court proceeded from the assumption that legitimate expectations arise in the presence of several features: legality (predetermined by the realization of a person entitled right) and validity (rational expectation).

At the same time, while the principle of legitimate expectations tends to be more widespread, it can exacerbate certain problems and requires some compensatory measures. For more information, read the article by Sofiya Law Firm partner and attorney Mr Olexander Polivodskyy “The Principle of Legitimate Expectations in Environmental and Land Disputes. Case law of the European Court of Human Rights and the Courts of Ukraine: Problems of Implementation and Means of Solution” in the Collection of the International Judicial Forum on Judicial Protection of the Environment and Environmental Rights.



28.12.2019
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