April 24, 2024
On April 24 this year, the Second Senate commenced consideration of the case upon the constitutional complaint of Reinir Business Group Limited Liability Company (hereinafter - the Company) in the public part of the plenary session in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Viktor Gorodovenko, outlined the content of the constitutional complaint and the applicant's arguments. In particular, the judge noted that the Company had filed a petition with the Constitutional Court of Ukraine to verify the compliance of the provisions of Articles 23.3.1, 23.4.1, 23.4.2, 23.4.3 of the Law of Ukraine “On the Prosecution Service” No. 1697-VII dated October 14, 2014 as amended (the “Law”) with Article 131¹ of the Constitution of Ukraine.
Pursuant to Article 23 of the Law, “the prosecutor shall represent the legitimate interests of the state in court in case of violation or threat of violation of the interests of the state, if the protection of these interests is not carried out or is improperly carried out by a body of state power, local self-government body or other subject of power, the competence of which includes the relevant powers, as well as in the absence of such a body” (Article 23.3.1).
According to Article 23.4 of the Law, “the existence of grounds for representation must be substantiated by the prosecutor in court.
The prosecutor represents the interests of a citizen or the state in court only after the court confirms the grounds for representation.
The prosecutor is obliged to notify the citizen and his/her legal representative or the relevant subject of power before applying to the court. If the court confirms the existence of grounds for representation, the prosecutor shall exercise the procedural powers of the relevant party to the proceedings. The existence of grounds for representation may be challenged by a citizen or his/her legal representative or an subject of power” (paragraphs 1, 2, 3).
As noted by the judge-rapporteur, the subject of the right to a constitutional complaint believes that the contested provisions of the Law do not correspond to Article 131¹ of the Constitution of Ukraine, according to which the prosecutor's office operates in Ukraine, which maintains a public accusation in court; organization and procedural management of pre-trial investigations, resolution of other issues in accordance with the law during criminal proceedings, supervision of covert and other investigative and search actions of law enforcement agencies; representation of the state's interests in court in exceptional cases and in the manner specified by law.
In particular, the author of the petition claims that of Article 23.3.1 of the Law “does not contain a definition of the phrase “exceptional case”. Instead, the grounds for representation of state interests by the prosecutor in court were transformed from the term “exceptional case” to the term “improperly” and “does not carry out”, which in turn is not the same as the concept of “exceptional case” and is an evaluative judgment. Such legal uncertainty of the legislation creates legal situations that the grounds for representation by the prosecutor are not exclusive, but permanent and in fact turned the institution of representation into “general supervision” of all physical and legal entities, which the legislators tried to abandon by amending the Constitution of Ukraine by Law No. 1401-VIII dated June 2, 2016”.
After studying the case file in the public part of the plenary session, the Second Senate proceeded to the in-camera part of the plenary session for a decision.
The public part of the plenary session was attended by the authorized representative of the subject of the constitutional complaint, lawyer Yevhen Lukashenko.
The video recording of the plenary session is available on the official website of the Constitutional Court of Ukraine in the Section “Archive of video broadcasts of the sessions”.
