Exceptions to the state prosecutor's representation in court must be consistent with the CCU's decision

To prevent the provisions of Article 23 of the Law «On the prosecutor’s office» from being declared unconstitutional again, the proposed amendments contained in the government’s draft law should be clarified.

This conclusion was reached by the Ukrainian National Bar Association following an analysis of Draft Law No. 16026 dated September 4, 2026, «On amendments to the Law of Ukraine «On the prosecutor’s office» regarding bringing the functions of the prosecutor’s office into compliance with the Constitution of Ukraine in terms of representing the state’s interests in court».

As a reminder, Constitutional Court Decision No. 6-r(II)/2025 of December 3, 2025, declared unconstitutional those provisions of the Law that grant the prosecutor the authority to represent the interests of the state in court in cases where a state authority, a local self-government body, or another entity exercising public authority whose jurisdiction includes the relevant powers. After all, paragraph 3 of Part 1 of Article 131-1 of the Constitution authorizes the prosecutor’s office only in exceptional cases.

The draft law proposes to introduce these exceptional cases. Among them are:

• a violation of the state’s interests by a state authority, a local government body, or another legal entity under public law whose powers include the judicial protection of such state interests
• the existence of a conflict of authority among state authorities, local self-government bodies, and other legal entities under public law regarding their protection of the state’s interests within the scope of their respective competences.

In this regard, the UNBA noted that the concept of «a violation of the state’s interests by a state authority, a local self-government body, or another legal entity under public law» is evaluative. The fact of such a violation must be established in accordance with the procedure provided by law. The court must assess the actions of these bodies, including within the framework of judicial proceedings in a case where a violation of the state’s interests may be alleged. The court retains the right to dismiss a claim if an ineffective remedy has been chosen; thereafter, it is possible to file a new claim with the court on a different basis.

Furthermore, the broad application of this ground may violate the principle of adversarial proceedings and the right to a fair trial, as the Constitutional Court noted in its decision.

«Conflict of powers» is also a discretionary concept and may pose a risk of violating the right to a fair trial. Parties to the proceedings exercise their procedural rights at their own discretion. Granting the prosecutor the authority to represent the state’s interests in cases where the position of a body authorized to act on behalf of the state contradicts the position of the prosecution authorities could lead to a violation of the principle of legal certainty. According to advocates, it is inappropriate to resolve this issue by granting the prosecution additional powers.

This would effectively mean a return to a supervisory function. Instead, the powers of the relevant government authorities should be brought into line with Article 8 of the Constitution.

The full text of the comments and proposals can be viewed at this link.