Opinion on Draft Law No. 15253 Concerning the Prosecution Service’s Representative Function

Subject Matter

On 15 May 2026, the Cabinet of Ministers of Ukraine registered the Draft Law ‘On Amendments to the Law of Ukraine “On the Public Prosecutor’s Office” on Aligning the Functions of the Prosecution Service with the Constitution of Ukraine Regarding Representation of the Interests of the State in Court’ (Reg. No. 15253 of 15.05.2026).

The explanatory note to the draft law states that the relevant amendments to the law were developed to regulate the cases in which a prosecutor may represent the interests of the state in court and to eliminate the unconstitutional expansion of the functions of the prosecution service.

In view of this, the Draft Law proposes to:

1. set out Article 23 of the Law of Ukraine ‘On the Public Prosecutor’s Office’ in a new version, providing for representation by a prosecutor exclusively of the interests of the state and only in exceptional cases defined by law;
2. specify the scope of such exceptional cases, in particular in the field of objects of civil rights that are withdrawn from or restricted in civil circulation;
3. align the prosecutor’s procedural powers with procedural legislation and the principles of justice;
4. remove from legislation provisions on the prosecutor’s representation of the interests of citizens.

Position of the Constitutional Court of Ukraine

The Draft Law was developed to implement Decision of the Second Senate of the Constitutional Court of Ukraine No. 6-r(ІІ)/2025 of 3 December 2025, which found the function of representing the interests of the state in court to be inconsistent with the Constitution of Ukraine because an exceptional function had turned into a general rule, as the grounds for its exercise were not clearly defined by law.

The Constitutional Court of Ukraine states that ‘the failure to define in the Law the limits of discretion for the prosecutor and the court, which decide whether there are grounds for the prosecutor to represent the interests of the state in court, results in the possibility for these bodies to be guided essentially only by their own subjective understanding of what “does not exercise” or “improperly exercises” means. This indicates that the discretion of the prosecutor and the court arising from the content of the relevant provisions of the first paragraph of Part 3 Article 23 of the Law is such that its limits are not clearly and comprehensibly defined by the Law. As a result, an exceptional procedural instrument of the prosecution service 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 service’ (para. 7.2 of the Decision).

In turn, ‘[this] entails an out-of-court assessment by the prosecutor of the effectiveness of actions or the establishment of inaction by other public authorities outside the field of criminal law, whereas, in particular, in the field of criminal law there are already relevant mechanisms for the prosecution service to respond to cases where public authorities do not exercise or improperly exercise their functions to protect the interests of the state. This has created a mechanism, not provided for by the Constitution of Ukraine, through which the prosecution service may influence the exercise of powers by state authorities, local self-government bodies or other public authorities whose competence includes the relevant powers, and has nullified the requirement of Article 6 of the Constitution of Ukraine that each body exercise its powers independently within the limits defined by the Constitution of Ukraine’ (para. 7.3 of the Decision).

The issue of the constitutionality of these provisions in relation to the prosecutor’s representation of citizens’ interests in court remained outside the scope of this constitutional proceeding, in accordance with the principle of non ultra petita: the conclusions of the Constitutional Court of Ukraine (CCU) did not extend to this aspect of the representative function. At the same time, current legislation still contains provisions on the prosecutor’s representation of the interests of citizens in court, although after the 2016 constitutional reform, such a function is not provided for by Article 131-1 of the Constitution of Ukraine. Therefore, retaining these provisions in the Law violates the principle that the constitutionally defined functions of the prosecution service are exhaustive and contradicts the legal positions of the Constitutional Court of Ukraine prohibiting their expansion.

In the operative part of its Decision, the CCU postponed the loss of force of the provisions found unconstitutional until 1 January 2027. Within this period, the legislator must clearly define the grounds for representation; otherwise, the prosecution service will lose the possibility of representing the interests of the state.

ALI’s Position on the Function of the Prosecution Service in Representing the Interests of the State

The prosecution service’s representation of the interests of the state in court remains one of the debated issues in the context of prosecution reform and alignment of its functions with European standards.

Under paragraph 3, Part 1, Article 131 of the Constitution of Ukraine, the prosecution service represents the interests of the state in court in exceptional cases and in the manner defined by law. This constitutional model was introduced in 2016 as part of justice reform with the aim of substantially limiting powers that are not inherent in the prosecution service but had previously existed.

Historically, the representative function of the prosecution service in Ukraine developed as an element of the Soviet model of the prosecutor’s office, which provided for broad supervisory powers outside criminal justice. Within this model, the prosecution service acted as a universal instrument for protecting state interests in various areas of public administration.

In fact, the Venice Commission issued an opinion on the function of prosecutors in representing the interests of the state and citizens in court as early as 2013, when analysing the then draft of the current Law of Ukraine ‘On the Public Prosecutor’s Office’.

The Venice Commission drew attention to the fact that the function of representing the ‘interests of the state in court’ was formulated too broadly, since such interests could theoretically cover any matter that, in the opinion of the state authorities, concerns the performance of their functions or is of significance for the state in general, even where it concerns specific legal rights and obligations of private persons or organisations.

Although Article 24 of the Law of Ukraine ‘On the Public Prosecutor’s Office’ to some extent limits the scope of this provision in cases where this function is delegated to a state authority other than the prosecution service, the range of interests that the prosecution service may represent remains undefined.

Thus, until this function is fully abolished, the Venice Commission considers it appropriate to clearly define the range of interests that the prosecution service may represent. To this end, the functions of the prosecution service should be limited to representing interests concerning only matters of a moral or public-policy nature, exclusively in cases where it is necessary to protect specific rights of the state provided by law.

In addition, the Venice Commission drew attention to the absence of any indication that representation by prosecutors of the interests of the state is excluded in the case of state-owned companies. This provision may therefore be interpreted as allowing prosecutors to act on behalf of such companies, which would be entirely inappropriate given the role assigned to their management.

Accordingly, even at the stage when the modern legislative model of the prosecution service was being formed, the Venice Commission expressed a rather restrained and, in a certain sense, sceptical position regarding the granting of a broad representative function to the prosecution service. The proposed approach envisaged its significant narrowing and the clearest possible definition of the limits of its application.

In modern democratic systems, this model is gradually being recognised as incompatible with the principle of separation of powers and the role of the prosecution service as an institution of criminal justice.

International standards also proceed from the need to limit the functions of the prosecution service to the field of criminal prosecution. In particular, Recommendation No. 1604 (2003) of the Parliamentary Assembly of the Council of Europe states that prosecutors’ functions should be focused on prosecuting persons guilty of committing criminal offences, while separate competent bodies should be created to perform other functions.

At the same time, Opinion No. 3 (2008) of the Consultative Council of European Prosecutors (CCPE) recognises that, in some states, prosecutors may perform functions outside criminal justice. However, in such cases these powers must be clearly defined by law, be exceptional in nature and must not create a privileged position for the prosecutor in court proceedings.

A similar approach is reflected in Recommendation Rec(2012)11 of the Committee of Ministers of the Council of Europe on the role of public prosecutors outside the criminal justice system, which emphasises that such powers must be clearly regulated, exercised in compliance with the principle of equality of arms and must not disturb the balance between participants in court proceedings.

The European Commission for Democracy through Law (Venice Commission), when analysing amendments to the Constitution of Ukraine in 2015, also emphasised that representation of the interests of the state by a prosecutor should remain a residual and exceptional power, applied only where other mechanisms for protecting state interests are absent or ineffective.

Thus, the constitutional model of the prosecution service introduced in Ukraine in 2016 effectively provides for a subsidiary role of the prosecutor in representing the interests of the state. The prosecution service should intervene only where the relevant state authorities or other entities authorised by law to protect such interests do not exercise or improperly exercise their powers.

In practice, the function of representing the interests of the state continues to be applied quite broadly, although it is regarded as a temporary or transitional mechanism stemming from the particular features of the development of the state’s institutional system. In the long term, protection of the interests of the state should be carried out primarily by the relevant state authorities, which are the holders of these interests and have the necessary powers.

At the same time, the data in the 2025 Report of the Prosecutor General’s Office show that, in conditions where authorised bodies were ineffective or inactive, prosecutors filed claims concerning financial assets worth more than UAH 33.8 billion. The value of assets in respect of which courts issued decisions satisfying prosecutors’ claims amounted to UAH 1.5 billion, while the value of assets whose alienation was prevented in satisfied and closed cases amounted to UAH 13 billion. The value of assets in respect of which actual enforcement of court decisions was secured amounted to UAH 215.2 million. During 2025, particular attention was paid to protecting the interests of the state in budgetary legal relations, where the effectiveness of the measures taken has a direct impact on the ability of the state and local self-government bodies to finance priority needs. In other words, the representative function is actively performed by the prosecution service, while at the level of state policy no plans to limit it have been voiced since 2016.

As already mentioned, in Decision No. 6-р(ІІ)/2025 of 3 December 2025, the CCU stated that cases of representation must be objectively exceptional, clearly defined by law, reduced to the minimum necessary and perceived precisely as exceptions, rather than as a general rule for the prosecution service’s participation in court proceedings.

The Constitutional Court also drew attention to the fact that current legislative regulation does not ensure sufficient legal certainty regarding the limits of the prosecutor’s discretion in deciding whether to apply to court in the interests of the state. In particular, the possibility of representation in cases where the relevant state authority or local self-government body ‘does not exercise’ or ‘improperly exercises’ protection of the interests of the state effectively leaves the prosecutor and the court with excessively broad scope for subjective interpretation of these grounds. In the Court’s view, this uncertainty results in the exceptional procedural instrument of the prosecution service being transformed into a universal mechanism for representing the interests of the state in court, thereby expanding the content of the relevant constitutional function.

In view of this, the Court found unconstitutional certain provisions of the first paragraph of Part 3 Article 23 of the Law of Ukraine ‘On the Public Prosecutor’s Office’ in the part allowing the prosecutor to represent the interests of the state in connection with the failure or improper exercise of their protection by other public authorities. At the same time, the Court postponed the loss of force of these provisions until 1 January 2027, taking into account, in particular, the need to ensure continuity in the performance of the prosecution service’s functions under martial law.

Problems in defining the limits of the prosecution service’s representative powers are also evident in case law. Thus, in the ruling of the Commercial Cassation Court within the Supreme Court of 15 January 2026 in case No. 921/190/25, it was confirmed that specialised prosecutors’ offices in the defence sector may represent the interests of the state only within legal relations related to the defence sector. The Court emphasised that subordinate acts, including orders of the Prosecutor General, may not expand the powers of prosecution bodies beyond the limits defined by law. Accordingly, the claim filed by a specialised prosecutor’s office in the defence sector in a case concerning environmental damage and the interests of a local self-government body was found to have been submitted by a person without proper authority.

Assessment of Draft Law No. 15253

4.1. A positive aspect of the draft law is the very attempt to specify in legislation the list of cases in which a prosecutor may represent the interests of the state (the proposed wording of Part 2 Article 23 of the Draft Law). This approach generally corresponds to the legal position of the Constitutional Court of Ukraine on the need for a clear and predictable algorithm for determining exceptional grounds for the prosecution service to exercise this function. The draft law exhaustively and specifically defines the grounds and sources from which a prosecutor may obtain the information necessary to represent the interests of the state in court and establishes a clear procedure for the prosecutor’s actions.

4.2. The proposed exclusion from legislation of provisions on the prosecutor’s representation of the interests of citizens in court also deserves a positive assessment. Although this component of the representative function is mentioned in Article 23 of the Law of Ukraine ‘On the Public Prosecutor’s Office’, it falls outside the scope of constitutional regulation and is a remnant of the previous powers of prosecution bodies.

After the 2016 constitutional reform, the function of representing the interests of citizens no longer belongs to the constitutionally defined functions of the prosecution service provided for in Article 131-1 of the Constitution of Ukraine. Therefore, further preservation of the relevant provisions in the Law of Ukraine ‘On the Public Prosecutor’s Office’ effectively contradicts the principle that the constitutional powers of the prosecution service are exhaustive and is inconsistent with the legal positions of the Constitutional Court of Ukraine on the inadmissibility of expanding the functions of the prosecution service by law.

In this respect, the draft law demonstrates the correct approach to aligning legislation with the Constitution of Ukraine and the logic of the 2014–2016 prosecution reform, which was aimed at gradually abandoning non-criminal functions not inherent in the prosecution service.

In addition, removing the function of representing the interests of citizens is consistent with Council of Europe international standards and the recommendations of the Venice Commission, according to which the prosecution service should focus primarily on functions in the field of criminal justice, while protection of the rights and interests of private individuals should be ensured through the free legal aid system, the Bar and other specially authorised institutions.

4.3. Concerning the cases in which the representative function may be exercised.

Despite certain positive aspects of the draft law, namely the attempt to specify the grounds for representation in legislation and to align certain provisions of the Law of Ukraine ‘On the Public Prosecutor’s Office’ with the Constitution of Ukraine, the proposed wording as a whole gives rise to a number of significant reservations and requires further revision.

Despite formally enshrining the ‘exceptional’ nature of representation, the proposed list of cases in which a prosecutor may represent the interests of the state in court covers an extremely broad range of legal relations and largely restores the possibility of systemic intervention by the prosecution service in public administration outside criminal justice.

In particular, this concerns such grounds as ‘violation of fundamental national interests’, ‘strategic nationwide priorities’, ‘a conflict of powers’ between authorities, the ‘inability independently to protect’ the interests of the state by the relevant body and the prosecutor’s detection of facts indicating a violation or threat of violation of the interests of the state while exercising procedural guidance over a pre-trial investigation.

In effect, this model contributes to an even greater expansion of the limits of the prosecution service’s participation outside criminal justice.

The proposed wording of Part 2 Article 23 of the Law of Ukraine ‘On the Public Prosecutor’s Office’ defines nine cases in which a prosecutor may represent the interests of the state:

1. violation or threat of violation of the fundamental national interests of Ukraine or strategic nationwide priorities defined by law;
2. violation or threat of violation of the interests of the state concerning objects of ownership of the Ukrainian people or objects of civil rights that are under special state protection, whose preservation is guaranteed by the state and which, under the law, are withdrawn from civil circulation or have limited transferability;
3. absence of a state authority, local self-government body or other legal entity under public law that is authorised by law to protect the interests of the state in court, or absence of powers of such entities to apply to court with the relevant procedural document in the disputed legal relations;
4. violation of the interests of the state by a state authority, local self-government body or other legal entity under public law whose powers include judicial protection of such interests of the state;
5. existence of a conflict of powers between state authorities, local self-government bodies and other legal entities under public law regarding their protection of the interests of the state within their competence;
6. damage caused to the interests of the state by a criminal offence or other socially dangerous act where a civil claim in criminal proceedings was not or could not be filed or was left without consideration;
7. detection by the prosecutor, while exercising procedural guidance over a pre-trial investigation or participating in criminal or administrative proceedings regardless of their outcome, of facts indicating a violation or threat of violation of the interests of the state requiring judicial protection;
8. an application by a state authority, local self-government body or other legal entity under public law requesting the filing of a claim due to its inability independently to protect the interests of the state;
9. cases concerning the recognition of assets as unjustified and their recovery for the benefit of the state.

Within this list, particular reservations arise in relation to paragraph 5, which allows a prosecutor to represent the interests of the state where there is a conflict of powers between state authorities, local self-government bodies and other legal entities under public law concerning their protection of the interests of the state.

In essence, a conflict of powers is the result of imperfect legislative regulation of the delimitation of competences of the relevant public authorities. Identifying and eliminating such conflicts should be carried out primarily at the normative level by clarifying legislation and properly delimiting the powers of the relevant entities, rather than being resolved in each specific case on the basis of a discretionary decision by the prosecutor that there are grounds to represent the interests of the state in court.

Given the absence of clear criteria for the concept of a ‘conflict of powers’, this ground is excessively evaluative in nature and creates a risk of further expanding prosecutorial discretion beyond the constitutional model of exceptional and subsidiary representation of the interests of the state.

Paragraph 7 of Part 2 Article 23 of the Draft Law provides that a ground for the prosecutor’s representation of the interests of the state is the prosecutor’s detection, while exercising procedural guidance over a pre-trial investigation or participating in criminal or administrative proceedings, of facts indicating a violation or threat of violation of the interests of the state requiring judicial protection.

In effect, the proposed model legalises the possibility for a prosecutor to initiate representation of the interests of the state in virtually any area of public-law relations if the prosecutor independently detects a potential violation of the ‘interests of the state’ while exercising other prosecutorial powers.

Taking into account the extremely broad and evaluative nature of the concept in paragraph 1 of Part 2 of the same Article, namely ‘violation or threat of violation of the fundamental national interests of Ukraine or strategic nationwide priorities’, this model creates a risk of significantly expanding prosecutorial discretion and effectively returning the prosecution service to quasi-supervisory functions.

In essence, this creates a mechanism whereby any criminal or administrative proceedings could potentially become a basis for further intervention by the prosecution service in the activities of state authorities, local self-government bodies or other public-law entities through the mechanism of representing the interests of the state in court.

4.4. Concerning the grounds for representation.

Part 3 of the proposed wording of the above-mentioned Article of the draft law provides an exhaustive list of triggers for initiating the establishment of grounds for representing the interests of the state in court:

1. information obtained in the course of exercising the prosecutor’s powers;
2. information received by prosecution bodies from state authorities, local self-government bodies and other legal entities under public law;
3. applications by individuals and legal entities, MPs of Ukraine, deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, members of local councils and associations of citizens;
4. public information and publications in the media.

The provision allowing a prosecutor to exercise representation where facts indicating a violation of the interests of the state are identified from public information and media publications as a trigger for verifying whether grounds exist for representation deserves particular attention. Despite the formal prohibition on independent information searches, this model effectively endows the prosecution service with a function of monitoring the legality of the activities of authorities and other public-law actors. It brings the prosecution service closer to the functionality typical of so-called ‘general supervision’, which Ukraine officially abandoned as a result of the 2014 prosecution reform and the 2016 constitutional amendments.

As a result, there is a risk that instead of implementing the decision of the Constitutional Court of Ukraine on narrowing and clearly limiting the representative function of the prosecution service, the proposed draft law will effectively create a new, much more detailed yet broad model of prosecutorial participation in protecting state interests in court.

4.5. Additional reservations also arise in relation to paragraph 8 of Part 2 Article 23 of the Draft Law, under which a prosecutor may represent the interests of the state on the basis of a request by a state authority, local self-government body or other legal entity under public law due to its inability independently to protect the interests of the state.

The proposed construction creates a risk of formally legitimising the prosecutor’s involvement in any category of disputes at the prosecutor’s own initiative.

In particular, a prosecutor may independently identify, at their own discretion, a potential violation of the ‘interests of the state’ while exercising other powers, after which the prosecution service’s further entry into the case may be formally justified by obtaining the relevant letter or request from a state authority or other public-law entity.

In the absence of clear criteria for the concept of ‘inability independently to protect the interests of the state’, this model effectively allows the application of the relevant body to be used not as an exceptional mechanism but as an instrument for procedurally legitimising an intervention already initiated by the prosecution service.

As a result, there is a risk that the representative function of the prosecution service may be transformed from a subsidiary and exceptional mechanism into a universal form of prosecutorial participation in public-law disputes.

4.6. Analysis of the proposed amendments shows that the actual focus of the draft law does not fully correspond to the legal position of the Constitutional Court of Ukraine, which determined that the purpose of further amendments to the Law of Ukraine ‘On the Public Prosecutor’s Office’ should be precisely to narrow and clearly limit the grounds for the prosecutor’s representation of the interests of the state in court, minimise prosecutorial discretion and ensure the exceptional and subsidiary nature of this function.

Conclusion

Even at the stage of preparing the current Law of Ukraine ‘On the Public Prosecutor’s Office’, the Venice Commission drew attention to the excessive breadth of the concept of ‘interests of the state’, which creates a risk of unduly expanding the role of the prosecution service outside criminal justice. Council of Europe international standards consistently proceed from the premise that criminal prosecution should remain the main function of the prosecution service, while the performance of other functions is permissible only in exceptional cases and provided that they are clearly regulated by law.

The 2014–2016 constitutional reform of the prosecution service was aimed precisely at transforming the prosecution service into a criminal justice body that operates as closely as possible to European standards, while taking into account the domestic specificities of the justice system. In this context, representation of the interests of the state in court was intended to become exceptional, subsidiary and residual in nature.

Therefore, further legislative regulation of the representative function of the prosecution service should not proceed by normatively defining the broadest possible range of grounds for representation but, on the contrary, by substantially narrowing them, defining them clearly and minimising prosecutorial discretion in accordance with the Constitution of Ukraine, the decision of the Constitutional Court of Ukraine and international standards.

In the long term, representation of the interests of the state by a prosecutor in court should be regarded as a temporary, exceptional and residual mechanism that will gradually lose its significance as the prosecution service of Ukraine continues its institutional evolution and moves closer to the European model of a criminal justice body. Although European standards do not prohibit the prosecution service from performing functions outside the criminal justice system, such functions should be minimal. Instead, executive authorities, administrative justice and other instruments outside the field of public prosecution should meet the need to protect human rights.

We consider that Draft Law No. 15253 of 15.05.2026 requires further revision in terms of narrowing the grounds for representation. The proposed detailed list of grounds for representation does not narrow them compared with the current Article 23 of the Law of Ukraine ‘On the Public Prosecutor’s Office’; rather, it preserves them in the same scope or even expands them, which was the very subject of the unconstitutionality established by the CCU in Decision No. 6-r(ІІ)/2025 of 3 December 2025. The relevant grounds may be narrowed during finalisation of the Draft Law for the second reading or by withdrawing the Draft Law and submitting a revised version in its place.