Prosecutor's right to file appeals in the interests of the state is limited - SC AdmCС

The prosecutor has the right to intervene only in cases where the public authority improperly protects the interests of the state or does not do so at all. Lack of funds to pay the court fee or financial difficulties of the public authority are not grounds for the prosecutor to go to court. In case of going to court, the prosecutor must justify the need for his/her intervention in the process and prove that the relevant authority is not performing its functions properly.

This position was reiterated by the Administrative Cassation Court of the Supreme Court in a case where the Prosecutor's Office filed an appeal in the interests of the state instead of the customs office.

In the case that formed the basis for this legal opinion, the court of first instance ruled in favour of the company, satisfying its claim. The customs office, as a defendant, filed an appeal, but the appellate court dismissed it due to the absence of a document on payment of the court fee. The court rejected the customs' request for deferral or exemption from payment of the court fee and returned the appeal, as the customs had not remedied this defect.

The Prosecutor's Office filed an appeal on behalf of the customs, arguing that the customs was not properly protecting the interests of the state. However, the court of appeal returned the prosecutor's complaint as it failed to prove that the customs had improperly fulfilled its duties to protect the state's interests. The court noted that the customs had already exercised its right to appeal the court decision. Failure of the customs to comply with procedural requirements is not a reason for the prosecutor to file an appeal instead, as it violates the principle of legal certainty and equality of parties before the law, and in such circumstances does not prove that the customs improperly protected the interests of the state or did not protect them at all.

The Supreme Court dismissed the cassation appeal of the Prosecutor's Office and upheld the challenged court decision to return the appeal.

The court stated that the prosecutor can represent the interests of the state only in two cases: if the relevant state authority does not protect the interests of the state or improperly protects them, or in the absence of such an authority.

The interests of the state should be protected primarily by the relevant public authorities. The prosecutor will play a subsidiary role, replacing in court proceedings the relevant public authority that fails to defend the interests of the state or does so improperly, contrary to the requirements of the law. In such cases, the prosecutor must prove the reasons that impede the proper protection of the state's interests and are the grounds for his or her intervention in the trial.

Insufficient funding of the public authority or lack of funds to pay the court fee is not a reason for the prosecutor to go to court on behalf of the state. An exceptional case is the failure to protect the interests of the state by the relevant authority, which is confirmed by the improper performance of functions by the public authority.

In this particular case, the customs exercised its right to appeal against the court decision, and the prosecutor failed to justify the need for his intervention in the case, which is a prerequisite for representing the interests of the state.

Resolution of the Administrative Cassation Court of the Supreme Court of 20 March 2025 in case No. 500/8168/23 (proceedings No. K/990/5173/25) - https://reyestr.court.gov.ua/Review/126003956.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.