17.03.2026
Recognizing a provision as unconstitutional but allowing it to be applied for two more years — such a legal conflict was created by the decision of the Constitutional Court of Ukraine (CCU) regarding Article 23 of the Law “On the Prosecution Service”.
The CCU decision was supposed to be a turning point for the practice of prosecutorial lawsuits in the field of public procurement. However, the deferral of the expiration of this provision until 2027 has created a paradox: despite the established unconstitutionality of the mechanism of state interest representation by prosecutors, courts continue to accept such lawsuits, citing the fact that the provision formally remains in force until 2027.
Whether this means that suppliers will have to wait another two years, or whether procedural protection mechanisms still exist, and what arguments suppliers can use in court, was explained by Vitaliy Bulat, a lawyer at “Fedotov and Partners”:
“Disputes over lawsuits filed by prosecutors in the interests of the State to declare invalid additional agreements to electricity and natural gas supply contracts remain one of the most acute problems in the field of public procurement.
Systematic interference by prosecutors in commercial legal relations under the pretext of ‘improper protection’ of state interests by competent authorities (State Audit Service of Ukraine, local governments, etc.) has become the norm rather than the exception, as required by the Constitution of Ukraine, which creates significant economic risks for energy suppliers and leads to the recovery of funds in significant amounts.
To some extent, the Decision of the Constitutional Court of Ukraine (CCU) dated December 03, 2025, No. 6-r(II)/2025 in the case following the constitutional complaint of LLC ‘Rainier Business Group’ was supposed to be a turning point.
In this case, the Court concluded that the provisions of Article 23 of the Law of Ukraine ‘On the Prosecution Service’ 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 turned out to be complicated due to the wording of its operative part.
The Conflict of Deferred Action: A Law Enforcement Problem
Having stated the unconstitutionality of the provision, the CCU simultaneously deferred the loss of its force until January 01, 2027. As the Court noted: ‘Choosing such an approach, the Constitutional Court of Ukraine primarily takes into account 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 proceeds from the fact that the continuity of the performance of functions defined by the Constitution of Ukraine by the prosecution service is an important prerequisite for the proper functioning of the state under martial law’.
In practice, this led to the formation of an ambiguous situation in courts of different 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 Prosecution Service’.
The logic of the courts boils down to a formal approach: since the provision loses its force only in 2027, the prosecutor is currently endowed with the relevant powers, and therefore there are no grounds for leaving the lawsuit without consideration.
As a result, a legal situation has arisen where the state, represented by the body of constitutional jurisdiction, has officially recognized the defectiveness of the prosecutorial interference mechanism, but the judicial system continues to legitimize such interference, relying on the deferral of the loss of force of the relevant provision of the law.
In this context, it is important to note that the validity of a provision is not synonymous with its constitutionality/unconstitutionality. The unconstitutionality of a law is a mistake by the state, which is established by the Constitutional Court of Ukraine.
Instead, a provision of a law may remain in force (stay in the legal system due to the deferral of the loss of force), but at the same time objectively be unconstitutional. The fact of non-compliance of the provisions of Art. 23 of the Law of Ukraine ‘On the Prosecution Service’ with the Fundamental Law has already been established by the sole body of constitutional jurisdiction, and this non-compliance exists today, regardless of the date of formal exclusion of the provision from the text of the Law.
This approach is directly implemented in procedural legislation. In particular, part six of Article 11 of the Commercial Procedural Code of Ukraine imperatively defines: ‘If the 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 action’. This article also provides for the court’s appeal (after the decision is made) to the Supreme Court to initiate a corresponding submission to the CCU, however, in our case, given that the corresponding CCU decision already exists, such a need has disappeared.
Thus, this provision is actually a normative confirmation of an approach in which the legislator consciously provided a procedural mechanism for situations where the law is formally in force, but due to its objective contradiction with the Fundamental Law, it is not subject to application in a specific case.
Therefore, in the case of Article 23 of the Law ‘On the Prosecution Service,’ the situation is even more obvious, since courts do not even need to independently reach a conclusion about the unconstitutionality of the provision or initiate a submission — this legal fact has already been established by the CCU decision.
Consequently, the deferral of the validity of the provision established by the CCU concerns exclusively the powers and duties of the Verkhovna Rada, but it does not cancel and cannot stop the operation of Part 6 of Art. 11 of the CPC of Ukraine, which obliges the judge to refuse to apply the defective law and apply the Constitution as an act of direct action.
A logical question arises: are there procedural mechanisms that allow ignoring the content of the operative part of the CCU decision and attempting to leave the prosecutor’s lawsuit without consideration today?
In my opinion, an analysis of current judicial practice and international law provides a positive answer.
To overcome the formal approach of courts regarding the deferral of the validity of an unconstitutional provision, it is necessary to shift the focus of argumentation from the fact of its temporary action to the imperative requirements of procedural legislation regarding the application of the norms of the Constitution of Ukraine.
1. Direct Effect of the Constitution and Current Supreme Court Practice
Despite the formal and, let’s be honest, somewhat ‘simplified’ approach to disputes based on prosecutors’ applications, in other categories of cases, the Supreme Court of civil and administrative jurisdiction has formed legal positions regarding the application of an unconstitutional provision during its validity.
In particular, in the resolution dated January 17, 2025, in case No. 343/1869/23, the Supreme Court emphasized that in accordance with part six of Article 10 of the Civil Procedural Code of Ukraine (a similar provision is contained in Art. 11 of the CPC of Ukraine), the court does not apply a law that contradicts the Constitution of Ukraine, but applies the norms of the Constitution as norms of direct action.
Key in this resolution is the conclusion regarding the nature of the CCU’s deferral: ‘The direct (prospective) effect of the decision of the Constitutional Court of Ukraine, established in Article 152 of the Constitution of Ukraine, Article 91 of the Law of Ukraine “On the Constitutional Court of Ukraine”, concerns primarily the procedure for its implementation and does not affect the imperative prescriptions of procedural norms that the provisions of a normative legal act that contradict the Constitution of Ukraine cannot be applied by the court.
Therefore, the court, when deciding a case, must evaluate the content of the claims and the circumstances of the case (disputed legal relations) taking into account the constitutionality (unconstitutionality) of the provision of the law to be applied. In the presence of a corresponding decision of the Constitutional Court of Ukraine regarding the unconstitutionality of a provision of a normative legal act on the ground that such an act does not comply with the Constitution of Ukraine, the court takes into account the legal position (conclusion) of the Constitutional Court. Instead, the absence of a decision of the Constitutional Court of Ukraine regarding the unconstitutionality of such a law or other legal act has a legal consequence in the form of the court’s appeal, after the decision in the case, to the Supreme Court to resolve the issue of making a submission to the Constitutional Court of Ukraine regarding the constitutionality of the law or other legal act, the resolution of the issue of the constitutionality of which belongs to the jurisdiction of the Constitutional Court of Ukraine.’
A similar approach was supported by the resolution of the Judicial Chamber of the Cassation Administrative Court dated December 10, 2024, in case No. 240/19209/21. The Court noted that courts should not apply the provisions of laws that do not comply with the Constitution, regardless of whether they were recognized by the CCU as unconstitutional, since the direct application of the Constitution implies the authority of courts to refuse to apply a defective provision.
These decisions were a continuation of the stable and consistent position expressed by the Supreme Court of Ukraine in Resolution No. 9 dated 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 Art. 8, has the highest legal force, and its norms are norms of direct action, courts, when considering specific cases, must evaluate the content of any law or other normative legal act from the point of view of its compliance with the Constitution and in all necessary cases apply the Constitution as an act of direct action. Judicial decisions must be based on the Constitution, as well as on current legislation that does not contradict it.’
Thus, the provision of the operative part of the CCU decision on the loss of force of the provision from 2027 concerns primarily the procedure for executing this decision, but is not a permission for courts to apply a knowingly unconstitutional mechanism of interference in the private rights of economic entities.
2. Convention Guarantees and the Concept of ‘Quality of Law’ (Quality of law)
According to Article 17 of the Law of Ukraine ‘On the Enforcement of Decisions and the Application of the Case-Law of the European Court of Human Rights’, courts apply the Convention and the Court’s practice as a source of law when considering cases.
The European Court of Human Rights has repeatedly emphasized that any interference by a state body in the property rights of a person (Art. 1 of the First Protocol to the Convention) or the initiation of judicial proceedings must be ‘prescribed by law.’ At the same time, the existence of the text of the law itself is not sufficient. The law must meet the criterion of ‘quality of law’ (quality of law).
In fundamental decisions (for example, The Sunday Times v. the United Kingdom, Koretskyy and Others v. Ukraine), the ECHR established that a rule of law is recognized as a law only when it is formulated with sufficient precision, is predictable, and provides adequate protection against the arbitrariness of a state body.
In this context, it is obvious that the very statement by the Constitutional Court of Ukraine of the fact that Article 23 of the Law ‘On the Prosecution Service’ is unconstitutional (regardless of the fact of deferring the loss of force of the provision) is an indisputable legal fact indicating that the specified provision does not meet the criterion of ‘quality of law’.
At the same time, the deferral of the loss of force of the provision itself does not eliminate its defectiveness in the transition period.
Accordingly, the prosecutor cannot justify their powers and the existence of an exceptional case for representation by a provision that is not recognized and is not a ‘law’ in the sense of the ECHR. The application of such a low-quality law to suppliers constitutes a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Since the prosecutor, justifying the grounds for representation, refers exclusively to Art. 23 of the Law of Ukraine ‘On the Prosecution Service,’ which is not subject to application by the court due to its non-compliance with the Constitution and the criterion of ‘quality of law,’ they actually do not prove the existence of an exceptional case for the protection of state interests.
According to established practice, failure by the prosecutor to prove the grounds for representation is an unconditional basis for applying paragraph 2 of part 1 of Art. 226 of the CPC of Ukraine (leaving the lawsuit without consideration).
At the same time, even if the courts reject this argument, a detailed coverage of the issue of ‘quality of law’ in procedural documents forms the necessary basis for a future appeal to the European Court of Human Rights and proving the fact of illegal interference with the peaceful possession of the property of suppliers.”
Thus, the decision of the Constitutional Court actually recorded a systemic problem of prosecutorial interference in commercial legal relations, recognizing the corresponding mechanism as one that does not comply with the Constitution of Ukraine. At the same time, the deferral of the loss of force of the provision created a difficult situation for law enforcement, where courts continue to be guided by the formal validity of the provision of the law.
However, as evidenced by the practice of the Supreme Court and the provisions of procedural legislation, the mere fact of the temporary validity of a provision does not relieve the court of the obligation to evaluate its compliance with the Constitution and apply the Fundamental Law as an act of direct action.
Therefore, the key task of the parties in such disputes is to form a convincing legal position that will force the court to go beyond a formal approach and take into account the fact of unconstitutionality of the relevant provisions established by the Constitutional Court. It is on this that it depends today whether suppliers will be able to effectively protect their interests already now, without waiting for January 1, 2027.
