FROM SUBSIDIARITY TO EXCEPTIONALITY: PROSECUTORIAL REPRESENTATION IN CIVIL PROCEEDINGS

Abstract

Introduction. The constitutional formula allowing prosecutors to represent the interests of the State only in exceptional cases requires a clear distinction between exceptionality and subsidiarity. For a considerable period, judicial practice linked the admissibility of prosecutorial intervention primarily to a competent authority’s failure to protect State interests or to the inadequate exercise of that function. Decision No. 6-r(II)/2025 of the Constitutional Court of Ukraine of 3 December 2025 found that this model did not satisfy the requirement of legal certainty and therefore made it necessary to reconsider the procedural standing of prosecutors in civil proceedings. The central research problem is whether the inaction of another public authority can itself create an exceptional case, or whether an objectively extraordinary legal situation defined by law must exist before prosecutorial powers arise.

Purpose. The study aims to justify a transition from the model of subsidiary

substitution by the prosecutor for the competent authority to a model of exclusive procedural legitimacy and define the relationship between exclusivity and subsidiarity in the prosecutor’s representation of the state’s interests.

Materials and methods. The source base includes the Constitution of Ukraine, the Law of Ukraine “On the Public Prosecutor’s Office”, the Civil Procedure Code of Ukraine, decisions of the Constitutional Court of Ukraine, case law of the Grand Chamber of the Supreme Court, Council of Europe instruments, and Ukrainian and foreign scholarship. The research employs formal legal, systemic and structural, comparative legal and hermeneutic methods, together with analysis, synthesis and doctrinal modelling. These methods are used to compare constitutional and statutory regulation, identify the functional place of subsidiarity, and construct a test for judicial review of a prosecutor’s standing.

Results. The study establishes that exceptionality and subsidiarity operate at different legal levels. Exceptionality is a constitutional condition for the emergence of prosecutorial competence, whereas subsidiarity determines the necessity and manner of exercising a power that is already constitutionally admissible. Accordingly, subsidiarity cannot create competence where no exceptional case exists. The article introduces the category of exceptional procedural standing of a prosecutor and argues that the failure or inadequate performance of a competent authority cannot, by itself, transform ordinary legal relations into an exceptional situation. A set of criteria for judicial review is proposed: the existence of a specific State interest; a statutorily defined exceptional case; objective extraordinary circumstances; the necessity and institutional irreplaceability of prosecutorial intervention; subsidiarity and proportionality; and equality of arms. It is also proposed that Article 56 of the Civil Procedure Code of Ukraine be amended to require the prosecutor to substantiate not only the State interest and the need for protection, but also the relevant exceptional case, its factual features, and the proportionality of intervention. This approach shifts judicial scrutiny from checking correspondence with a public authority or the lapse of a reasonable period to assessing the constitutional admissibility of intervention, while preventing courts from constructing additional exceptional cases through unrestricted discretion.

Prospects. Further research should develop an exhaustive statutory model of objectively exceptional cases and differentiate procedural consequences depending on whether the defect concerns the formal content of a statement of claim or the substantive absence of a constitutionally admissible ground for representation.