Prosecutor Recovers Over UAH 2.37 Million: Supreme Court Defines Rules for Compensation for an Unconstitutional Act

The Supreme Court, comprising a panel of judges from the Cassation Administrative Court, partially upheld the cassation appeal of a former prosecutor. The prosecutor had sought state compensation for material damages incurred due to the application of a provision in the Budget Code of Ukraine, which was declared unconstitutional in 2020.

The court ordered the recovery of UAH 2,373,042.69 in material damages, caused by the unconstitutional act, in favour of the plaintiff.

Circumstances of the case

The plaintiff had been employed in the prosecution authorities since 2011. From 15 July 2015, his salary was calculated according to Cabinet of Ministers Resolution No. 505, rather than Article 81 of the Law "On the Prosecutor's Office," which stipulated the salary rates for prosecutors.

This procedure was introduced by paragraph 26 of Section VI "Final and Transitional Provisions" of the Budget Code of Ukraine. It stipulated that the norms of Article 81 of the Law "On the Prosecutor's Office" were to be applied in the manner and amounts established by the Cabinet of Ministers, based on available financial resources.

On 26 March 2020, the Constitutional Court declared this provision unconstitutional. The court concluded that the issue of financial support for prosecutors, as a guarantee of their independence, should be determined by law, not by the government.

Following this decision, the former prosecutor initiated legal proceedings. He sought to recover over UAH 3.15 million in material damages, believing this to be the amount he was underpaid due to the application of the unconstitutional norm.

The courts of first and appellate instances twice rejected the claim. The Supreme Court had previously annulled their decisions and remitted the case for reconsideration, clarifying that the dispute concerned compensation for material damages caused by the state due to the unconstitutional act, rather than a salary recalculation.

What the Supreme Court stated

During the consideration of case No. 420/9554/20, the Supreme Court took into account the legal position of the united chamber of the Cassation Administrative Court, as set out in the ruling dated 24 February 2026, in case No. 160/6949/20.

The court noted that declaring a law unconstitutional signifies that it contradicted the Constitution of Ukraine from the moment of its adoption, even though it only loses force from the date of the relevant Constitutional Court decision. Therefore, damages may have been incurred precisely during the period of the act's validity, i.e., before its official recognition as unconstitutional.

The Supreme Court also emphasised that the absence of a specific law defining the compensation procedure for damages, as stipulated by part three of Article 152 of the Constitution of Ukraine, cannot justify refusing the claim. The Constitution is a directly applicable act, and the negative consequences of failing to adopt such a law cannot be borne by the individual whose rights were violated.

The court stressed that adequate financial support for prosecutors is one of the legislative guarantees of their independence. Consequently, the application of an unconstitutional norm that diminished this guarantee may be grounds for the right to compensation for material damages for both current and former prosecutors. However, this right does not arise automatically; the plaintiff must prove the fact and amount of the damage.

The Supreme Court effectively confirmed that prosecutors whose salaries were calculated not according to Article 81 of the Law "On the Prosecutor's Office" during the period of the unconstitutional provision of the Budget Code may file claims for compensation for material damages.

Why the claim was only partially satisfied

The Supreme Court concurred with the expert examination's conclusions that there was a discrepancy between the salary actually paid to the plaintiff and the amount that should have been calculated according to Article 81 of the Law "On the Prosecutor's Office."

However, the court concluded that not the entire claimed period was subject to compensation.

Following the entry into force on 25 September 2019 of Law No. 113-IX on the reform of the prosecution authorities, the legislative regulation of prosecutors' remuneration changed. For prosecutors who had not completed certification, the law explicitly provided for the application of Cabinet of Ministers Resolution No. 505. These provisions are valid and have not been declared unconstitutional. Therefore, the period after the entry into force of Law No. 113-IX cannot be covered by damages caused by the unconstitutional provision of paragraph 26 of Section VI "Final and Transitional Provisions" of the Budget Code of Ukraine.

Separately, the Supreme Court noted that the plaintiff was dismissed from the prosecution authorities on 30 April 2020, rendering claims for compensation after this date also unfounded.

As a result, the court determined that material damages caused by the application of the unconstitutional norm were subject to compensation only for the period from 15 July 2015 to 25 September 2019.

For this period, the amount of damage is UAH 2,373,042.69, which the Supreme Court ordered to be recovered from the State of Ukraine through the budget allocations of the Odesa Regional Prosecutor's Office.

The court denied the remaining part of the claims.

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