Unconstitutionality of Article 23 of the Law "On the Public Prosecutor's Office": Conflicts in Law Enforcement and Protection Mechanisms

Disputes over lawsuits filed by prosecutors in the interest of the State to invalidate supplementary agreements to electricity and natural gas supply contracts remain one of the most pressing issues in public procurement.

The systematic intervention of prosecutors in commercial legal relations under the pretext of "inadequate protection" of state interests by competent authorities (the State Audit Service, local self-government bodies, etc.) has become the norm rather than the exception required by the Constitution of Ukraine, creating significant economic risks for energy suppliers and leading to substantial financial penalties.

A certain turning point was expected to be the Decision of the Constitutional Court of Ukraine (CCU) dated December 3, 2025, No. 6-r(II)/2025, in the case concerning the constitutional complaint of Rainier Business Group LLC.

In this case, the Court concluded that the provisions of Article 23 of the Law of Ukraine "On the Prosecutor's Office" regarding the grounds for representing the interests of the state are unconstitutional, as they do not comply with the principle of the rule of law and violate the requirement of legal certainty.

However, the practical implementation of this decision has proven complicated due to the wording of its operative part.

The conflict of deferred effect: the problem of legal enforcement

Having declared the provision unconstitutional, the CCU simultaneously deferred its invalidation until January 1, 2027. As the Court noted: "In choosing this approach, the Constitutional Court of Ukraine takes into account, first and foremost, that during the period of martial law in Ukraine, there is a significant need to comprehensively ensure the protection of the interests of the Ukrainian state and the stability of the constitutional legal order, and proceeds from the premise that the continuity of the performance of functions defined by the Constitution of Ukraine by the prosecutor's office is an important prerequisite for the proper functioning of the state under martial law."

In practice, this has led to an ambiguous situation in courts of various jurisdictions and instances.

Most judges of the first and appellate instances, as well as the Supreme Court in a number of cases, continue to mechanically apply the provisions of Article 23 of the Law of Ukraine "On the Prosecutor's Office."

The logic of the courts boils down to a formalistic approach: since the provision only loses its validity in 2027, the prosecutor is currently endowed with the relevant powers, and therefore, there are no grounds to leave the lawsuit without consideration.

As a result, a legal situation has emerged where the state, represented by the constitutional jurisdiction body, has officially recognized the defectiveness of the prosecutorial intervention mechanism, yet the judicial system continues to legitimize such intervention, relying on the deferred invalidation of the relevant legal provision.

In this context, it is important to note that the validity of a provision is not synonymous with its constitutionality or unconstitutionality. The unconstitutionality of a law is a state error, which is what the Constitutional Court of Ukraine establishes.

Conversely, a legal provision may remain in force (remain in the legislative system due to a deferred invalidation) while objectively being unconstitutional. The fact that the provisions of Article 23 of the Law of Ukraine "On the Prosecutor's Office" do not comply with the Basic Law has already been established by the sole body of constitutional jurisdiction, and this non-compliance exists today, regardless of the date of the formal removal of the provision from the text of the Law.

This approach is directly implemented in procedural legislation. In particular, Part 6 of Article 11 of the Commercial Procedural Code of Ukraine imperatively states: "If a court concludes that a law or other legal act contradicts the Constitution of Ukraine, the court shall not apply such law or other legal act, but shall apply the norms of the Constitution of Ukraine as norms of direct effect.". The aforementioned article also provides for the court to appeal (after rendering a decision) to the Supreme Court to initiate a corresponding submission to the CCU; however, in our case, given that the relevant CCU decision already exists, such a need has ceased to exist.

Thus, this provision is effectively a codified confirmation of an approach where the legislator consciously provided a procedural mechanism for situations where a law is formally in force but, due to its objective contradiction to the Basic Law, is not subject to application in a specific case.

Therefore, in the case of Article 23 of the Law "On the Prosecutor's Office," the situation is even more obvious, as courts do not even need to independently conclude that the provision is unconstitutional or initiate a submission—this legal fact has already been established by the CCU decision.

Therefore, the deferral of a provision's entry into force established by the Constitutional Court of Ukraine applies exclusively to the powers and duties of the Verkhovna Rada; it does not repeal, nor can it suspend, the operation of Part 6 of Article 11 of the Commercial Procedural Code of Ukraine, which mandates that a judge refuse to apply a defective law and instead apply the Constitution as an act of direct effect.

A logical question arises: are there procedural mechanisms that allow for disregarding the operative part of a Constitutional Court decision and attempting to leave a prosecutor's claim without consideration today?

In my opinion, an analysis of current judicial practice and international law provides an affirmative answer.

To overcome the formalistic approach taken by courts regarding the deferral of an unconstitutional provision, it is necessary to shift the focus of argumentation from the fact of its temporary validity to the imperative requirements of procedural legislation regarding the application of the provisions of the Constitution of Ukraine.

1. Direct effect of the Constitution and current Supreme Court practice

Despite a formal and, frankly, somewhat "simplified" approach to disputes involving prosecutor claims, the Supreme Court, in its civil and administrative jurisdictions, has established legal positions regarding the application of unconstitutional provisions during their period of validity.

Specifically, in its ruling of January 17, 2025, in case No. 343/1869/23, the Supreme Court emphasized that, in accordance with Part 6 of Article 10 of the Civil Procedural Code of Ukraine (a similar provision is contained in Article 11 of the Commercial Procedural Code of Ukraine), a court shall not apply a law that contradicts the Constitution of Ukraine, but shall instead apply the provisions of the Constitution as norms of direct effect.

The key to this ruling is the conclusion regarding the nature of the Constitutional Court's deferral: "The direct (prospective) effect of a decision of the Constitutional Court of Ukraine, as established in Article 152 of the Constitution of Ukraine and Article 91 of the Law of Ukraine 'On the Constitutional Court of Ukraine,' primarily concerns the procedure for its execution and does not affect the imperative requirements of procedural norms stating that provisions of a regulatory act that contradict the Constitution of Ukraine cannot be applied by a court.

Therefore, when resolving a case, the court must evaluate the content of the claims and the circumstances of the case (the disputed legal relations) while taking into account the constitutionality (or unconstitutionality) of the legal provision subject to application. If there is a relevant decision by the Constitutional Court of Ukraine regarding the unconstitutionality of a provision of a regulatory act on the grounds that such an act does not comply with the Constitution of Ukraine, the court shall take into account the legal position (conclusion) of the Constitutional Court. Conversely, the absence of a decision by the Constitutional Court of Ukraine regarding the unconstitutionality of such a law or other legal act has the legal consequence of the court, after rendering a decision in the case, applying to the Supreme Court to resolve the issue of submitting a petition to the Constitutional Court of Ukraine regarding the constitutionality of the law or other legal act, the constitutionality of which falls under the jurisdiction of the Constitutional Court of Ukraine.".

A similar approach was supported by the ruling of the Judicial Chamber of the Administrative Cassation Court dated December 10, 2024, in case No. 240/19209/21. The court noted that courts must not apply provisions of laws that do not comply with the Constitution, regardless of whether they have been declared unconstitutional by the Constitutional Court, as the direct application of the Constitution grants courts the authority to refuse to apply a defective provision.

These decisions continue the established and consistent position expressed by the Supreme Court of Ukraine in Resolution No. 9 of November 1, 1996, "On the Application of the Constitution of Ukraine in the Administration of Justice": "Since the Constitution of Ukraine, as stated in its Article 8, has the highest legal force and its provisions are norms of direct effect, courts, when considering specific cases, must evaluate the content of any law or other regulatory act from the perspective of its compliance with the Constitution and, in all necessary cases, apply the Constitution as an act of direct application. Judicial decisions must be based on the Constitution, as well as on current legislation that does not contradict it.”

Thus, the provision in the operative part of the Constitutional Court of Ukraine’s decision regarding the loss of validity of a norm from 2027 relates primarily to the procedure for executing that decision, but does not grant courts permission to apply a knowingly unconstitutional mechanism for interfering with the private rights of business entities.

2. Convention guarantees and the concept of “quality of law”

In accordance with Article 17 of the Law of Ukraine “On the Execution of Judgments and the Application of the Case Law of the European Court of Human Rights,” courts apply the Convention and the Court’s case law as a source of law when considering cases.

The European Court of Human Rights has repeatedly emphasized that any interference by a state authority with an individual’s property rights (Art. 1 of Protocol No. 1 to the Convention) or the initiation of judicial proceedings must be “prescribed by law.” However, the mere existence of the text of a law is not sufficient. The law must meet the criterion of “quality of law.”

In fundamental rulings (e.g., The Sunday Times v. the United Kingdom, Koretskyy and Others v. Ukraine), the ECHR established that a legal norm is recognized as law only when it is formulated with sufficient precision, is foreseeable, and provides adequate protection against arbitrary action by a state authority.

In this context, it is evident that the Constitutional Court of Ukraine’s finding that Article 23 of the Law “On the Prosecutor’s Office” is unconstitutional (regardless of the fact that the loss of validity of the norm was deferred) is an indisputable legal fact indicating that the specified norm does not meet the “quality of law” criterion.

Moreover, the deferral of the loss of validity of a norm does not in itself eliminate its defects during the transition period.

Consequently, a prosecutor cannot justify their authority and the existence of an exceptional case for representation using a norm that is not recognized as, and does not constitute, “law” within the meaning of the ECHR. The application of such a substandard law to suppliers constitutes a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Since the prosecutor, in justifying the grounds for representation, relies exclusively on Art. 23 of the Law of Ukraine “On the Prosecutor’s Office,” which is not subject to application by the court due to its inconsistency with the Constitution and the “quality of law” criterion, they effectively fail to prove the existence of an exceptional case for protecting the interests of the state.

According to established practice, a prosecutor’s failure to prove the grounds for representation is an unconditional basis for applying Clause 2, Part 1, Article 226 of the Commercial Procedural Code of Ukraine (dismissal of the claim without consideration).

At the same time, even if courts reject this argument, a detailed exposition of the “quality of law” issue in procedural documents forms the necessary basis for a future application to the European Court of Human Rights and for proving the fact of unlawful interference with the peaceful enjoyment of suppliers' property.

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