The Article examines the development of the case-law of the European Court of Human Rights (“ECtHR” or the “Court”) concerning complaints of the applicants against the interference of the Sates into their rights, provided for in Article 1 of Protocol 1 to the European Convention on Human Rights and Fundamental Freedoms (“P1-1”) by way of adoption of laws, whereby they were deprived of possessions or which introduced measures, limiting the ownership, use and disposition of the possessions or interfered with the business activities of the applicants.

The Article examines the development and the current state of the case-law of the ECtHR regarding the violation of the property rights by way of introduction of the measures, which, according to the States are supposed to protect a public interest. This research is aimed at the establishment of the principal factors, which ECtHR takes into account when considering the cases of this type, analysis of the judgments of this kind, issues against Ukraine and development of the proposals for prevention of risks of adoption of the decisions, that are likely to be found by the ECtHR incompatible with P1-1 in the future.

As of today the ECtHR has so far adopted only two judgments regarding the violations by Ukraine of P1-1 by way of adoption of legislative acts, that disproportionately interfered with the right to property. The total amount of expenses, related to these judgments – around EUR 0.5 mln. – is relatively insignificant compared to the amounts of potential just satisfaction, the ECtHR could have awarded in these cases. However, the risk of appearance of new judgments of the ECtHR against Ukraine in this category of cases remains high as long as the procedure of legislative activity lacks the assessment of risks that the relevant policy would breach the property rights of private persons. This said we believe that there is a need to significantly strengthen the expert analysis of the bills specifically from the point of view of the potential violations of the property rights of private persons in case of their adoption. Such analysis should include not only legal assessment of the measure against the requirements of Art. 41 of the Constitution of Ukraine, P1-1 and the relevant bilateral investment treaties, but also the financial-economic valuation, of, e.g. potential expenses of the State, related to the payment of compensation, that nay be awarded by the ECtHR and investment arbitral tribunals.

Bibliography

Authored books

1. Marguenaud J-P, La Cour europeenne des Droits de l’Homme (Dalloz 2005) (in French).

Edited books

2. Schabas W A, ‘Ireland, European Convention on Human Rights and Personal Contribution of Sean McBride’ in Human Rights, Democracy and Transition: Essays in Honour of Stephen Livingstone (Oxford University Press 2006) (in English).

Journal articles

3. Allen Tom, ‘Liberalism, social democracy and the value of property under the European Convention on Human Rights’ [2010] 59 (4) International and comparative law quarterly 1056–60 (in English).

4. Lishchyna I, ‘Problema nevykonannia sudovykh rishen yak porushennia prava vlasnosti u praktytsi Yevropeiskoho sudu z prav liudyny. Ukrainskyi aspekt. Vid Hornsby do Ivanov’ (2020) 3 Pravo Ukrainy 233–55 (in Ukrainian).

5. Lishchyna I, ‘Problema nevykonannia sudovykh rishen yak porushennia prava vlasnosti u praktytsi Yevropeiskoho sudu z prav liudyny. Ukrainskyi aspekt. Vid Ivanov do Burmych’ (2020) 4 Pravo Ukrainy 189–215 (in Ukrainian).

6. Lishchyna I, ‘Skasuvannia derzhavoiu prava vlasnosti: pohliad Yevropeiskoho sudu z prav liudyny’ (2017) 3 Visnyk Natsionalnoi akademii prokuratury Ukrainy 5–11 (in Ukrainian).

7. Lishchyna I, ‘Skasuvannia ostatochnykh sudovykh rishen yak porushennia prava vlasnosti u praktytsi Yevropeiskoho sudu z prav liudyny ta suchasnyi stan problemy v ukrainskomu sudochynstvi’ (2019) 11 Pravo Ukrainy 256–271 (in Ukrainian).

8. Lishchyna I, ‘Vtruchannia u pravo vlasnosti fiskalnymy zakhodamy. Pidkhody ta praktyka Yevropeiskoho sudu z prav liudyny (prodovzhennia statti u nastupnomu nomeri zhurnalu)’ (2020) 5 Pravo Ukrainy 207–34 (in Ukrainian).

9. Lishchyna I, ‘Vtruchannia u pravo vlasnosti fiskalnymy zakhodamy. Pidkhody ta praktyka Yevropeiskoho sudu z prav liudyny (prodovzhennia statti, opublikovanoi u № 5/2020)’ (2020) 6 Pravo Ukrainy 210–33 (in Ukrainian).