The concept of legitimate expectations has entered the domestic scientific community due to the case law of the European Court of Human Rights (ECtHR), at the same time in official/authentic translations of its decisions in Ukrainian, as well as in the scientific literature there are a number of options for translating the term to denote this concept (“lawful anticipation”, “rightful expectations”, “justified expectations”, “legitimate anticipation” etc.), which creates the illusion that these are different legal phenomena. The inconsistency of terminology, as well as the needs of legal practice, actualize attempts to clarify the essence and content of this legal phenomenon.

 The purpose of the article is to identify, based on the analysis of ECtHR decisions in key cases in which the European Court of Human Rights disclosed the concept of legitimateexpectations, a number of criteria that allow a person to argue that he or she has at least a “legitimate expectations” falling within the scope of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

In the ECtHR case law the concept of legitimate expectations was developed while examining complaints under Article 1 of Protocol No. 1 to the Convention and is much narrower than in the Venice Commission documents such as the 2011 Report on the Rule of Law and the 2016 Rule of Law Checklist, in which legitimate expectations are seen as part of the principle of legal certainty, along with res judicata, the enforcement of final judgments and other elements of that principle, and in which there is no indication that the undertakings or promises held out by the state to individuals should in general be honoured (the notion of the ‘legitimate expectation’) applies only to property or economic aspects. Given that the Convention protects existing rights and Article 1 of Protocol No. 1 to the Convention does not guarantee, as such, a right to acquire property, ie protects not a hypothetical possibility but “existing possessions” and assets, including specific property claims, it is necessary that the “legitimate expectation” ‘must be of a nature more concrete than a mere hope’ (see Gratzinger and Gratzingerova, § 73; Kopecký v. Slovakia, § 49).

An analysis of the case law of the ECtHR allows us to conclude that the existence of a person’s legitimate expectations can be asserted only when at the time of interference with the rights guaranteed by the Convention certain conditions have been already existed. The first group of conditions is related to the existence of clear and unconditional legal provisions, which must determine the necessary rules for a claim and do not require the adoption of additional legal provisions; if the legal conditions to be met and the other parameters of a claim are not clearly defined, the legal provision in question cannot be said to serve as a basis for a legitimate expectation. The termination of the norm, its change or abolition also does not create legitimate expectations. For example, since January 1, 2015 and until the decision of the Constitutional Court of Ukraine of December 13, 2019 No. 7-r(II)/2019 in Ukraine, no law has determined neither the conditions (grounds) nor the procedure for recalculation of pensions for years of service, appointed on the basis Law of Ukraine “On the Prosecutor’s Office”. At the same time, if such conditions are defined by law, the lack of procedures or the lack of a mechanism for exercising a statutory right does not undermine legitimate expectations.

Besides a sufficient legal basis for a legitimate expectation to arise a person’s compliance with the essential statutory requirements is needed; the second group of conditions refers to this. The third group of conditions concerns case law – in particular, the proprietary interest which is in the nature of a claim, may be regarded as an “asset” where there is settled case-law of the domestic courts confirming legitimate expectations have a sufficient basis in national law, as well as judgment debt which is sufficiently established to be enforceable constitutes a “possession” protected by the Article 1 of Protocol No. 1 to the Convention. At the same time, cases where the applicants’ claims are upheld by national courts should be distinguished from unresolved disputes, especially in the absence of established case law – despite the applicability of Article 6 of the Convention, the latter claims are unlikely to fall within the scope of the Article 1 of Protocol No. 1 to the Convention.

Bibliography

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3. Slovnyk ukrainskoi movy (Bilodid I, holova redkol, Nauk dumka 1970–1980) (in Ukrainian). Journal articles 4. Burlai Ye, ‘Kontsept prava: mezhi minlyvosti’ (2019) 2 Filosofiia prava i zahalna teoriia prava 16 (in Ukrainian).

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Websites

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