Prosecutor's participation in cases concerning the recovery of unjustified assets to the State: in search of a functional background

Abstract

The article examines problematic aspects of legislative regulation of the prosecutor's participation in cases concerning the recognition of assets as unjustified and their recovery as state revenue through the prism of the functional justification of such powers outside the sphere of criminal justice.

It has been established that the peculiarities of legislative regulation of the prosecutor's participation in cases concerning the recognition of assets as unjustified and their recovery as state revenue give rise to expert debate regarding the legal nature of such powers of the prosecutor outside the sphere of criminal justice.

The subject of this discourse varies from assertions that legislative provisions granting prosecutors powers to represent the state's interests in court in cases concerning the recognition of assets as unjustified and their recovery as state revenue do not take into account the exceptional nature of such representation and the need for the prosecutor to justify the grounds for such representation in court, as well as the designation of the body authorised by the state to perform the relevant functions in disputed relations, to the characterisation of the procedural status of the prosecutor in this category of cases as one that is in no way related to the constitutional powers of the Public Prosecutor's Office.

It is justified that granting prosecutors the exclusive power to initiate legal proceedings in cases concerning the recognition of assets as unjustified and their recovery as state revenue is determined, among other things, by the legal position of the Constitutional Court of Ukraine on the impossibility of duplicating the functions of the Public Prosecutor's Office by other state bodies, since the opposite could lead to a change in the constitutionally defined mechanism for the exercise of state power by its individual bodies or affect the scope of their constitutional powers.

It is argued that, according to this legal position, the court of constitutional jurisdiction confirmed that only the prosecution authorities have the constitutional power to represent the interests of the state in court in this category of cases, which became a conceptual obstacle to the implementation of the principle of subsidiarity of prosecutorial representation as one of the principles that the activities of public prosecution services must comply with they are given powers outside the sphere of criminal justice.

For the purpose of further promising settlement of relations in the field of issues under consideration and in order to bring the legal status of the prosecutor in cases concerning the recognition of assets as unjustified and their recovery to the state in line with the principle of subsidiarity of representation of the state's interests in court by the prosecutor, it is proposed to grant the National Agency on Corruption Prevention the power to initiate proceedings in these cases as the central executive body with special status in the field of forming and implementing state anti-corruption policy, while retaining the powers of the relevant prosecutors to represent the interests of the state in court in this area in the manner prescribed by law, taking into account the principle of subsidiarity of such representation, as well as clearly stipulating that a prosecutor may perform a representative function only after justifying personal intervention and after these grounds have been accepted by the court.