(the Supreme Court / CSO, case number 924/1237/17, 20.09.18)
This trial is worthy of attention, first of all, from the point of view of economic procedural law in terms of determining the powers of the prosecutor in this process. Cassation appeal of the latter to the ruling of the Economic Court of Appeal and considered the Supreme Court as a member of the board of judges of the Court of Cassation.
Consequently, the court of appeal was canceled the decision of the local economic court, a new decision was made to refuse a prosecutor's suit, who appealed to the court in the interests of the state, suing the Enterprise and the Company for the invalidation of the contract and termination of the obligation for it for the future, as the prosecutor believed, the conclusion of the disputed contract contrary to the provisions of the Law of Ukraine "On Public Procurement" and violates the lawfulness of public procurement, the principles of fair competition, openness and transparency, prevention Nude act of corruption and abuse.
Appealed by the prosecutor decision of the court of appellate instance is motivated by the fact that the prosecutor baselessly when filing a lawsuit to the court does not specify the authority authorized by the state to perform the relevant functions in the controversial legal relationship in this case; it is not substantiated that there are grounds for representing the interests of the state in the given case, nor does it indicate the circumstances of non-fulfillment by the authorized bodies of the powers given to them in the field of procurements.
The Supreme Court, in the composition of the panel of judges of the Court of Cassation Economic Court, agreed with the above conclusion, noting in particular the following.
Taking into account the role of the prosecutor in a democratic society and the need to maintain a fair balance in the issue of the equality of the parties to the proceedings, the content of paragraph 3 of Part 1 of Art. 131-1 of the Constitution of Ukraine as to the reasons for the representation of the prosecutor's interests of the state in the courts cannot be interpreted expanded. Thus, the prosecutor may represent the interests of the state in court in exceptional cases that are expressly provided for by law. Extended interpretation of cases (grounds) for representation by the prosecutor of the interests of the state in the court does not correspond to the principle of competition, which is one of the foundations of justice (paragraph 3 of the second part of Article 129 of the Constitution of Ukraine).
Analysis of Part 3 of Art. 23 of the Law of Ukraine "On Prosecutor's Office" gives grounds to assert that the prosecutor may represent the interests of the state in court only in two cases: if the protection of these interests is not implemented or improperly carried out by a state authority, a local self-government body or other subject of power, until the competences of which are assigned the appropriate powers; in the absence of such a body.
The Supreme Court stressed that the prosecutor cannot be considered an alternative subject to appeal to the court and replace the appropriate entity of power, which may and wishes to protect the interests of the state. In order to protect the interests of the state from being unprotected, the prosecutor carries out a subsidiary role, replaces the relevant subject of power in the court proceedings, which, contrary to the requirements of the law, does not provide protection or does not do so in an improper manner. In each such case, the prosecutor must bring (and the court to verify) the reasons that prevent the protection of the interests of the state by the proper subject, and which are grounds for the prosecutor's appeal to the court.
In this case, such subjects of power authorities in accordance with the current legislation are the Ministry of Economic Development and Trade of Ukraine and the State Service of Ukraine, which have the authority to appeal to the court with claims for the recognition of contracts for the purchase of goods, works and services for budget funds invalid.
Taking into account the conclusion that there are no grounds for the prosecutor's representation of the interests of the state in this case justified.
The Supreme Council also reminded the ECHR of this subject. Thus, in FW v. France, dated 31.03.2005, application 61517/00, paragraph 27), the Court drew attention to the fact that the presence of a prosecutor in court on the side of one of the parties may to influence compliance with the principle of equality of the parties. "Since the prosecutor or officer with similar functions, proposing to satisfy or reject the ... complaint, becomes an opponent or an ally of the parties in the case, his participation may cause one of the parties a sense of inequality."
At the same time there is a category of cases where the support of the prosecutor does not violate the fair balance. Thus, in the case of Menshinsky v. The Russian Federation (decision of 15.01.2009, application No. 42454/02, paragraph 35), the ECHR expressed the following position (in an unofficial translation): "The parties to the civil proceedings are the plaintiff and the defendant, who are given equal rights, including the right to legal assistance. Support provided by the prosecutor's office to one of the parties may be justified in certain circumstances, for example, in protecting the interests of vulnerable categories of citizens (children, people with disabilities and other categories) that are probably not in the ability to protect themselves and their interests, or in cases where the relevant offense affected the interests of a large number of citizens, or when necessary to protect the interests of the state. "