5 December 2025
On 3 December 2025, at a plenary session, the Second Senate of the Constitutional Court of Ukraine delivered a decision in the case upon the constitutional complaint of Reinir Business Group LLC (hereinafter, the “Company”).
The Company appealed to the Court 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 Prosecution” No. 1697-VII dated October 14, 2014, as amended (hereinafter, the “Law”), with Article 1311 of the Constitution of Ukraine.
According to Article 23 of the Law, “the prosecutor shall represent the legitimate interests of the state in court in the event of a violation or threat of violation of the interests of the state, if the protection of these interests is not carried out or is carried out improperly by a state authority, local self-government body or other entity with authority, to whose competence the relevant powers are assigned, 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 shall represent the interests of a citizen or the state in court only after the court has confirmed the grounds for representation.
The prosecutor is obliged to notify the citizen and his or her legal representative or the relevant authority in advance, 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 the citizen or his or her legal representative or the authority” (Articles 23.4.1, 23.4.2, 23.4.3).
In resolving the issues raised in the constitutional complaint, the Constitutional Court of Ukraine proceeded from the fact that as a result of amendments to the Constitution of Ukraine by the Law of Ukraine “On Amendments to the Constitution of Ukraine (On Judiciary)” No. 1401-VIII dated June 2, 2016, the constitutional function of the prosecution, provided for in Article 1311.1.3 of the Constitution of Ukraine, was narrowed compared to that defined in Article 121.1.2 of the Constitution of Ukraine prior to the 2016 constitutional reform. This narrowing consists, in particular, in establishing the criterion of exclusivity for cases where the prosecution represents the interests of the state in court, which must be defined by law.
The court stated that the phrase “in exceptional cases” contained in Article 1311.1.3 of the Constitution of Ukraine indicates its restrictive nature. It does not grant the prosecution universal powers to represent the interests of the state in court and does not establish general or alternative competence for it, but concerns the representation of the interests of the state in court only in exceptional circumstances that are atypical in their legal nature.
Accordingly, the provision “in exceptional cases and in the manner prescribed by law” contained in Article 1311.1.3 of the Constitution of Ukraine means, among other things, that although the legislator has discretion to regulate in the laws of Ukraine the cases and procedure for the representation of the state's interests in court by the prosecution, it is nevertheless mandatory that such cases not only be established by law, but also be objectively exceptional, clearly limited, reduced to the minimum necessary, conditioned by special circumstances, and perceived by an outside observer not as general rules, but precisely as exceptions.
In order for these cases not to violate the constitutional limits of the relevant function of the prosecution, their list must be clear and exhaustive, and the criteria/signs for their establishment by the prosecutor and the conditions and procedure for the exercise of his or her powers in court proceedings must be regulated in detail by law.
Legal regulation of the prosecutor's representation of the state's interests in court must clearly establish its auxiliary (subsidiary) nature and ensure that the prosecution, in performing this function, does not perform the functions of other authorities without objective grounds.
The court emphasised that legislative regulation must prevent the prosecutor from acting arbitrarily in matters of representing the interests of the state in court, from unjustified interference in the activities of other authorities and the lawful activities of participants in legal relations, and that any regulation of such actions by the prosecutor must be limited to subordinate legislation, in particular orders of the Prosecutor General, as this would lead to a violation of the constitutional balance of powers between state authorities and create a risk of unjustified interference in the rights and freedoms of various entities, in the powers of state authorities and local self-government bodies.
The Decision states that the participation of a prosecutor in court proceedings outside the sphere of criminal law should not call into question the implementation of the constitutional right to judicial protection guaranteed by Article 55 of the Constitution of Ukraine for the subjects, rights and interests concerned, as well as compliance with the fundamental principles of judicial proceedings, as defined, in particular, in Articles 129.2.1, 129.2.3 of the Constitution of Ukraine.
In deciding on the constitutionality of Article 23.3.1 of the Law in the part stating that “the prosecutor shall represent the legitimate interests of the state in court in the event of a violation or threat of violation of the interests of the state,” the Court proceeded from the fact that it is objectively impossible to exhaustively define the concept of “interests of the state” in the Law without the risk of significantly reducing the effectiveness of the relevant function of the prosecution, given the prosecutor's duty to prove the grounds for representation, as well as the fact that the prosecutor's representation of the violated or threatened interests of the state is possible only after the court has confirmed the existence of grounds for this. In view of the above, the Court concluded that Article 23.3.1 of the Law does not contradict the Constitution of Ukraine in this respect.
At the same time, the Court emphasised that the legislator has a duty and is not deprived of the opportunity to specify the list of cases in which the prosecutor represents the interests of the state in court, in particular by indicating the criteria/signs for their establishment, in order to determine the limits of the discretion of the prosecutor and the court without prejudice to the effective performance of the functions assigned to the prosecution.
The failure to define in the Law the limits of discretion for the prosecutor and the court, which decide on the existence of grounds for the prosecutor to represent the interests of the state in court, results in the possibility for these bodies to be guided in fact only by their own subjective understanding of what it means to “not perform” or “perform improperly”. This indicates that the discretion of the prosecutor and the court, which follows from the content of the relevant provisions of Article 23.3.1 of the Law, is such that its limits are not clearly and comprehensively defined by the Law. As a result, the exceptional procedural instrument of the prosecution has been transformed into a universal mechanism for representing the interests of the state in court, thereby expanding the content of the relevant constitutional function of the prosecution.
Therefore, certain provisions of Article 23.3.1 of the Law, in that they give the prosecutor the opportunity to represent the interests of the state in court in connection with the failure or improper exercise of the protection of these interests by a state authority, local self-government body or other entity with authority, whose competence includes the relevant powers, contradict Articles 6, 8, and Article 1311.1.3 of the Constitution of Ukraine.
The court also pointed out that the provision of Article 1311.1.3 of the Constitution of Ukraine should be considered in conjunction with, in particular, the provisions of Article 55 of the Constitution of Ukraine. Legislative regulation of the representation of the state's interests in court by the prosecutor shapes the legal environment for the administration of justice and directly affects the conditions for the exercise of the right to judicial protection.
The vagueness of the definition in certain provisions of Article 23.3.1 of the Law of the relevant cases of representation of the state's interests in court by a prosecutor and the grounds for his or her appeal to the court does not provide legal certainty for other subjects of authority and interested participants in social relations and creates significant risks a real threat of violating the fundamental principles of judicial proceedings enshrined in Articles 129.2.1, 129.2.3 of the Constitution of Ukraine, even at the stage of the prosecutor's appeal to the court, and significantly complicates the exercise of the constitutional right to judicial protection by the participants in the proceedings.
In view of the above, the Court concluded that certain provisions of Article 23.3.1 of the Law, in that they enable the prosecutor to represent the interests of the state in court in connection with the failure or improper exercise of the protection of these interests by a state authority, local government body or other authority with relevant powers, also contradict Articles 55, 129.2.1, 129.2.3 of the Constitution of Ukraine.
At the same time, having analysed the provisions of Articles 23.4.1, 23.4.2, 23.4.3 of the Law in their systemic connection and in conjunction with other provisions of the Law and other laws of Ukraine, the Court in particular, noted that these provisions establish a number of guarantees for the proper performance of the prosecution function of representing the interests of the state in court in exceptional cases and in the manner prescribed by law.
Having examined the issues raised in the constitutional complaint, the Court found that Articles 23.4.1, 23.4.2, 23.4.3 of the Law were in line with the Constitution of Ukraine.
At the same time, the Court found certain provisions of Article 23.3.1 of the Law to be unconstitutional in that they give the prosecutor the opportunity to represent the interests of the state in court in connection with the failure or improper exercise of the protection of these interests by a state authority, a local government body or other authority with the relevant powers.
Having established the inconsistency of certain provisions of Article 23.3.1 of the Law with the Constitution of Ukraine, the Court postponed their expiry. Thus, the Decision establishes that they shall expire on 1 January 2027.
The Court also ruled that the Decision does not apply to legal relations concerning the representation of the state's interests in court by a prosecutor, which arose during the period of validity of certain provisions of Article 23.3.1 of the Law and continue to exist after they cease to be in force.
In choosing this approach, the Court took into account, first of all, that during the period of martial law in Ukraine, there is a significant need to comprehensively ensure the protection of the interests of the state of Ukraine and the stability of the constitutional legal order, and proceeded from the fact that the continuity of the performance by the prosecution of the functions defined by the Constitution of Ukraine is an important prerequisite for the proper functioning of the state under martial law.
