Submission of a Civil Suit by a Prosecutor in the Interests of a State as a Way of Compensation for Damage Caused by a Criminal Offence 

The outcome of every trial is always accompanied by some interest where the civil attains compensation and the criminal imprisonment and fines. In achieving the said interest in a trial process, it is the role of the prosecutor in establishing that the accused is guilty of the crime committed. This article articulates, that it is the role of the prosecutor to carry out justice in the name of the State whether during the criminal or civil trial. The principle is clear here as we all know that during criminal proceedings the prosecutor is the principal party, but such a trial cannot succeed if in the course of the criminal act the victim also incurred damages caused by the accused. In this regard, it is also the role of the prosecuting counsel to submit such a civil action that has caused damages to the victim. There are lots of complexities surrounding the understanding and interpretation of the word "interest of the state" as many states fail in establishing this in their various legislation in which the state of Ukraine is not an exception. Notwithstanding the importance of this concept in every trial whether civil or criminal, what becomes of its outcome when effective recognition is not attached to it in terms of legislative recognition? It is there in this safeguard that there was a necessity in examining the place occupied by the submission of civil suits for the interest of the state and its implications in matters related to damages was deemed necessary.


A. INTRODUCTION
The protection of the state's interests is an integral part of the activities of public authorities, their officials and bodies of local self-government because they shall be obliged to act only on the grounds, within the powers, and in the way determined by the Constitution and the Laws of Ukraine due to the Art.19 of the Constitution of Ukraine.The prosecution authorities play an important role in the legal mechanism of protecting the state's interests, as well as concerning the compensation for damage caused by a criminal offence.The norms of Paragraph 3 of Part 1 of Art.131-1 of the Constitution of Ukraine, which establishes that the Prosecutor's Office represents the interests of the state in the court in exceptional cases and compliance with the procedure established by law, are the legal facts (Constitution of Ukraine, 1996).One of the ways of this function implementation is the right of the prosecutor to submit a civil suit in the interests of the state in criminal proceedings (paragraph 12 of Part 2 of Article 36 of the Criminal Procedure Code of Ukraine).
Nowadays, when our country has difficult times of social and economic, political and legal development, this direction of the prosecution offices' activity acquires special significance.One of its negative factors is the high level of crime, which results in considerable material damage for the state.Such activity is carried out to compensate for damage caused by committed criminal offence to the state and local budgets.

B. METHODS
This study employs a descriptive qualitative approach.Qualitative research is research that aims to understand the phenomenon of what the research subject experiences, such as behavior, and how to describe it in the form of words and language.In a unique natural setting and by employing a variety of natural methods.The information was gathered from two sources: primary and secondary.The author draws on two sources of information.A complete, objective, and accountable data collection procedure through observation, interviews, and documentation that is systematic and consistent.In this study, data analysis was carried out by organizing the information gathered from interviews and fieldwork.

Theoretical Background of the Research
Many scientific works are devoted to the various issues of representative function's realization by a prosecutor in court, in particular, concerning the protection of the interests of the state by submitting a civil suit in criminal proceedings.It is expected because the prosecutor's representative activity on the protection of the interests of the state in court is an effective method of restoring them, as well as the establishment of law and order in society.
At the same time, the rapid legislative changes in the legislative regulation of the prosecutor's submission of a civil lawsuit in the interests of the state in criminal proceedings require a theoretical and applied to rethink through the prism of the general model of criminal procedure.Moreover, fundamentally new changes in the activity of the law enforcement system of Ukraine put new demands on combating corruption, money laundering, as well as prevention of other negative criminal practices in the state.As you can see, nowadays the issues related to compensation for damage caused by illegal land transactions, environmental pollution, deforestation, the outlay of health care institutions for the treatment of the victims of crime, etc., are the key areas for representation of the interests of the state in court by prosecution office, including the submission of a civil suit in criminal proceedings.

Presentation of The Material
The list of statements, provided in the official report on the Prosecutor's Office work, where data on the filing and consideration of a civil suit in a court, as well as the number of losses that were established and reimbursed to the state or local communities, was included as a mandatory column (entitled "Statements on financial loss, their compensation and withdrawal of criminal activity' subjects"), testifies the practical importance of the institution of submission of a civil suit by a prosecutor in criminal proceedings.Thus, according to the official data of the Prosecutor General's Office of Ukraine, in 2014 the prosecutor's office filed 2,234 civil lawsuits for damages caused by criminal offences, totalling about 600 thousand UAH.1,953 civil lawsuits for 428 thousand UAH were submitted in criminal proceedings and only 281 civil suits for 172 thousand UAH were out of criminal proceedings.In 2016, the prosecutor's office submitted 918 civil lawsuits for damages caused by criminal offences, totalling 375 thousand 798 UAH.In 2017, prosecutors established financial damages caused to the state or territorial community for 14797264,75 thousand UAH, 809130,52 thousand UAH of which was reimbursed.In 2019, prosecutors established financial damages caused to the state or territorial community for 42080807,85 thousand UAH, 1250446,81 thousand UAH of which were reimbursed.In January-October 2020, the prosecutor's office established financial damages caused to the state or territorial community for 4488747.36thousand UAH, 1178875.66 thousand UAH of which were reimbursed (Office of the Prosecutor General of Ukraine).Thus, the above statistics clearly show the importance of the institution of a civil lawsuit in the interests of the state.
The issue raised in the manuscript deserves to be highlighted both theoretically and practically.Its essence is that the state of law and order depends on the observance of norms and principles not only of substantive but to an even greater extent on procedural law.Therefore, the prosecutor's participation in criminal proceedings on protecting the state's interests can fully contribute to strengthening the rule of law in the field of economic and other legal relations of Ukraine.In case of the interests of the state' violation as a result of criminal activity, the prosecutor must submit a lawsuit in the interests of a relevant body, which is harmed, if this body has not submitted a lawsuit itself.Otherwise, the prosecutor must support such a lawsuit in court (Mala, 2010, р. 195).Thus, the effectiveness of the execution of the task on protecting the interests of the state in public and legal relations by the prosecutor directly depends on the perfection of procedural norms that form the legal institution of submitting a civil lawsuit by a prosecutor in criminal proceedings.However, there is not an effective unified legal mechanism for the prosecutor to execute this right at the legislative level, and it is not properly defined what can be meant by the interest of the state.The combination of such problematic aspects leads to the court's refusal to accept and further consider a civil lawsuit in the interests of the state.D. K. Bokov (2012, p. 9-10) noted that the civil lawsuit of the prosecutor to protect the interests of the state in criminal proceedings is the prosecutor's demand, expressed in the prescribed procedural form, to protect the state and society interests, which were sustained property damage from the crime, to the suspect, accused, defendant, convicted or other persons, who are financially liable for their actions, for compensation of this damage, declared to the court and jointly solving with the criminal proceedings or through civil legal proceedings.
A legal mechanism of compensation for property damage from criminal violations is a civil suit in a criminal proceeding, the effective use of which provides an opportunity to address a set of significant tasks -to compensate the damage, caused to the State, society and individuals by offences, to promote the education of citizens in the spirit of respect for law and the most important from real rights -the ownership rights, regardless of its forms, to the fullest extent possible (Bokov, 2017, p. 28).
As N. S. Kravchenko noted, a civil suit in a criminal proceeding (2016, p. 4): 1). is private -a written claim of an individual or legal entity, their representative (legal representative); 2). is public -written prosecutor's claim in the interests of a State and citizens in cases, provided by criminal procedural legislation; 3). is submitted against specific individuals, such as a suspected person, accused person or another person (individual or legal entity), who is civilly liable under the law for damage, caused by his or her actions, or mentally defective person, who committed the socially-dangerous act; 4). is intended to compensate caused property damage and/or moral harm; 5). is subject to consideration and settlement by a court in criminal proceedings.

Transformative processes related to the representative function of the Prosecutor's Office
The transformation of the representative function of the Prosecutor's Office is conditioned by the European integration processes, which our country is currently experiencing.In particular, the Venice Commission noted that the aspect concerning the representation of State's legitimate interests in court by the prosecutor, arises only subsequent to the economic interests of the State and if these interests are in fact duly protected by State authorities and other legal persons under public law.Taking this into account, the prosecutor may represent the interests of the State before the court if there is available information concerning a threat to the economic interests of the State as a result of actions or inactions of any legal entities, being in relations with the State (The Opinion № 667/2012).
In compliance with the requirements of current Ukrainian legislation, in case of damage, caused by a criminal offence, the relevant State authority, responsible for the state property, is required to submit a criminal offence report and bring a civil suit in the interest of the State.If the protection of the legitimate interests of the State is not exercised or is improperly exercised by the relevant State authority, local self-government authority or other authority, which is competent for relevant powers, or if there are no such authorities, the prosecutor has the right to bring a civil suit and to represent the State in court.
Requirements of the Venice Commission have been taken into account in the current Law of Ukraine "On the Prosecutor's Office" (2014).However, as the practice on this issue and the author's experience show, the performance of the function of the Prosecutor's Office in the representation of the State's interests in court has significantly decreased in recent years.This, in turn, hurts the restoration of the legitimate interests of the State and, consequently, decrease the authority of the Government.The primary cause of this is the complicated legal procedure for the prosecutor to initiate proceedings for the protection of the State's legitimate interests.

Whether the concept "interest of the State" is unambiguously interpreted in the Ukrainian legislation today?
Nowadays, the definition of the concept "interest of the State" is debatable, since it is not disclosed at the legislative level, and as a result, in practice, it causes certain misunderstandings in its interpretation, because it is an evaluation concept.An attempt to reveal the mentioned concept was made in the decision of the Constitutional Court of Ukraine dated 08.04.1999 in case No. 1-1/9 about the official interpretation of the provisions of Art. 2 of the Arbitration Procedure Code of Ukraine (a case concerning the representation of interests of State in the arbitral court by the Prosecutor's Office of Ukraine).In particular, paragraph 2 of the present decision states that State interests are established both by Ukrainian Constitutional provisions and by the provisions of other legal acts.The interests of the State differ from the interests of other participants in public relations, since there is always a need to carry out nation-wide (political, economic, social and other) actions and programs, aimed at the protection of the sovereignty, territorial integrity, and the state border of Ukraine, ensuring it's national, economic, information and environmental security, land protection as national wealth, protection of persons exercising the right of ownership and husbandry, etc. (Hetman, 2012, p. 234).
In addition, paragraph 4 of the decision of the Ukrainian Constitutional Court dated 08.04.1999, the case No. 1-1/99, states that the interests of the State can be identical, they can overlap or completely disagree with the interests of State agencies, enterprises and organizations or with interests of business entities with a State ownership interest in the statutory fund.However, the State can see its interests not only in their activities but also in the activities of private enterprises and societies.Consequently, the court came to a logical and fair conclusion that the definition of "interests of the State" is an evaluative concept because the prosecutor independently determines where the violation of material interests or other interests of State took place or can take place in each specific case concerning legislation, based on which the suit is submitted.The prosecutor in his statement of claim justifies the necessity of their protection and specifies the agency, authorized by the State to respect the relevant functions in a disputed relationship (Decision of the Constitutional Court of Ukraine).
According to L. R. Nalyvayko and O. R. Mala, it is most appropriate to define the "interests of the State" as a system of fundamental values in the most important areas of activity of Ukrainian people and society (political, economic, social, military, environmental, scientific and technological, information, etc.) stipulated by the Constitution and laws of Ukraine, international treaties (other legal acts).It follows from the above that it is the social value of one or another social relation, which is determined by the society and the State, is an essential element of the concept of "State interest" (Mala, 2014).At the same time, scientists quite rightly point out that the concept "interest" is fundamental, therefore it is not possible to cover it by a single definition.The mentioned category is the subject of study of many sciences, such as philosophy, sociology, economic theory, legal study, psychology, etc.This fact indicates that interest is a general scientific category (Nalyvayko & Mala, 2015, p. 111).Thus, defining the violation of specific state interest, it is necessary for the prosecutor to bear in mind the fact that the concepts "State interest" and "violation of State interests", and especially "threat of violation of State interests" outside its semantic content, is rather extensive, which place an obligation on the prosecutor, as the subject of these concepts evaluation, to prove the substantiation of his position to the court on the availability of grounds to represent the interests of the State (Horhul, 2014, p. 27).Thus, the main and priority condition for the protection of the State interest is the reference by the prosecutor to the relevant legislative rule, which provides for violation of the State interest and the necessity to protect the State interest.In this case, it does not matter what State interest was violated -whether property interest or reputation, etc.Consequently, the protection, restoration and compensation for the damage by the prosecutor caused to the State by a criminal offence logically correlate with the principles of publicity, legality, inviolability of the ownership right, access to justice, etc.Based on this, the primary objectives of criminal proceedings are also achieved, in particular the protection of society and the State from criminal offences.For this purpose, the legislator has established several legal proceedings (measures to secure civil suit), implementation of which specifically directed at submitting and upholding a civil suit in a criminal proceeding.

The legislative framework for implementation of submission of a civil suit by a prosecutor in the interests of a State
Part 3 of the Art.23 of the current Law of Ukraine "On the Prosecutor's Office" states that the prosecutor shall represent the State's lawful interests in court in case of violation or threat of violation of State interests, if a local selfgovernment authority or other authority with the relevant responsibilities do not protect or improper protect such interests, or if such authority is not available.Meanwhile, according to point 4. Art.23 of the Law of Ukraine "On the Prosecutor's Office", the existence of grounds for representation must be justified by the prosecutor in court.In some cases, however, without the mentioned materials, the prosecutor does not have the opportunity to conclude the proper protection of State interests by the authority, and such authority is not interested in the provision of the relevant information.That is why prosecution authorities receive formal replies when requesting the following authority to obtain the necessary information.
It should be noted that the failure to take measures could also be confirmed by the fact that the agency was reliably aware of the existing violations of the State interests or their threat (public appeals, complaints, sent by the Prosecutor's Office, media publications, etc.).In addition, such an agency should have the right to recourse to the courts, wherein, it does not implement it or make it incorrectly following the applicable regulations and requirements of the current legislation.Evidence of such authority's inaction may include nonsubmission of a suit at all, leaving of a suit without consideration and failure to take measures to resubmit it, etc.
One of the ways of establishment and certification of facts of the mentioned inactivity by the prosecutor is request forwarding to the authority by a prosecutor.Such requests should refer only to particular facts that may indicate a violation or threat of violation of State interests in the indicated direction.In this regard, based on the regulatory enforcement, we recommend raising the question on the provision of information on the measures, taken by authorities to protect State interests, as well as in judicial proceeding and the reasons for failure to take such measures, in letters to the authorities in specific cases, indicating violation of State interests, and ask for the provision of information on measures taken by these authorities in the protection of State interests, including through judicial proceeding, and the reasons for their failure to take such measures.However, we emphasize that the Law of Ukraine "On Access to Public Information" should not be used in the preparation of such requests.Therewith, the authority must be aware of the grounds and purpose of the request for provision of the relevant information by the prosecutor to determine the scope of the prosecutors' rights as well as the limits of their duties for the provision of such information.
It is appropriate to state explicitly in the statement of claim that violated State interests are not protected by relevant public officials or agency, despite the evidence of such violations.Thus, the prosecutor in a civil suit should independently determine and justify the exact nature of the inaction of the authority in each specific case.The reasons for such inaction by the competent officials or agencies (lack of funds to pay the court fee, ordinary negligence (incaution), legal ignorance) are not of legal significance in determining the existence of grounds for the representation of the State interests in court.
It should also be noted that the provisions of Art.23 of the Law of Ukraine "On the Prosecutor's Office" established a prohibition on the representation of the State interests by the prosecutor on behalf of public companies.At the same time, the concept "public company" is not defined by the current legislation, and as a result, it brings up a question in court, whether the prosecutor can exercise representational powers on behalf of public enterprises.In each of these cases, the decision on grounds for representation is taken according to the results of relevant documents and materials processing.
According to the Law of Ukraine "On the Prosecutor's Office," the prosecutor shall represent the State interests in court only after confirmation of the grounds for representation in the court.A par. 2 of part 3 of the Art.128 of the Criminal Procedure Code of Ukraine (2012) contains a similar provision.Herewith, the prosecutor is obliged to notify in advance the relevant authority even before applying to the court.And only in case if the court confirms the existence of grounds for representation, the prosecutor uses the procedural powers of the relevant party.However, the existence of grounds for representation may be appealed by the authority.Thus, justifying the existence of grounds in a suit for the representation of the State, the prosecutor must indicate the authorized authority, which does not protect or improperly protects the State interests, and what it is about (suspension from protection or improper protection).Therein it should be taken into account that the grounds for submission of a civil suit in criminal proceedings and the existence of a violation of state interests cannot be identified.That's why a separate block in a civil suit should indicate the nature of State interests and how they are violated by the legal relations in dispute.Due to this, in criminal proceedings, the prosecutor submits a civil suit in the interests of the State in case of violation or threat of violation of the interests of the State unless and until there will be an assessment of the exercise of power by the competent authorities, directly justifying this in a civil suit (Lepey, 2017, p. 280-281).
A comprehensive analysis of the current Ukrainian legislation shows the limitation of a prosecutor's power to obtain evidence basis to establish the existence of grounds for the representation of State interests in court.To establish the existence of grounds for the representation of State interests in court, in case of absence of the authority, competent to protect its interests, the prosecutor has the right upon the written request to claim, examine and receive free copies of documents and materials of State authorities, local self-government authorities, military units, State and municipal enterprises, institutions and organizations, agencies of the Pension Fund of Ukraine and the funds for compulsory State social insurance, which are in the possession of such authorities and receive oral or written explanations from the officials and employees of the said agencies.Explanations from other persons are possible only with their consent.At the same time, if an agency fails to protect or improperly protects the legitimate interests of the State, the prosecutor is only granted the right to obtain information that lawfully belongs to the authority, which is competent to request and receive materials and their copies from it (Law of Ukraine "On the Prosecutor's Office",2014).However, in practice, it is a problem that prevents the prosecutor from implementing the effective protection of the interests of the State in court to the full extent.
As can be seen, one of the problems is the determination of the moment and signs, upon which it should be considered that the authorized agency doesn't protect, or improperly protects the interests of the State.In particular, damages and harm to the state interests or interests of the territorial communities, caused by criminal violations, were not compensated in the process of the pre-trial investigation, and the competent authority did not submit a suit for the protection of the legitimate interests of the State or did not declare his intention to seek such protection, the prosecutor must take measures to bring a civil suit in criminal proceedings and submitted it with the criminal complaints or submit such suit in the preparatory court hearing.That means, that the groundless failure to submitted a suit by the relevant authority at the stage of pre-trial investigation can be considered as "non-protection or improper protection" of the interests of the State by the agency, precisely this fact should form the basis of justification of "suspension from protection or improper protection" of State interests in a suit on behalf of the authorized authority.
As evidenced by the study of the court practice, available in the Unified Register of Judicial Decisions, a practice of submission of a suit in a criminal proceeding by a prosecutor for the compensation of damage suffered by a healthcare institution for the treatment of the victim.The problematics on this matter concerns the fact that there are occasions, both such as suspension of prosecutor's civil suit, brought in the interests of the health-care institution and satisfaction of the suit.This indicates the need to improve the provisions of the Criminal Procedure Code of Ukraine on the specified problematics.Of course, scientists offer their ways of the given problem solution on the pages of the legal periodicals, for example, M. V. Lepey, A. A. Kovalenko proposed to supplement an art.128 of the Criminal Procedure Code of Ukraine by a new regulation.But, to our opinion, the author's position on granting the right to bring a civil suit on compensation for expenses incurred by the healthcare institution to agencies of the Ministry of Finance of Ukraine is not entirely appropriate (Lepey, 2017, p. 54-55;Kovalenko, 2016, p. 82-87).It appears that such direct conflict with provisions of the given Resolution of the Cabinet of Ministers of Ukraine No. 545 dated July 16, 1993, since it expressly states that the amount of the funds for the treatment of the victim shall be recovered by the court on the suit of the health-care institution or the prosecutor.In our point of view, a provision should be made at the legislative level to the effect that the funds spent by the healthcare institution on in-patient treatment of a person, injured by a criminal offence, with exception of the case of damage caused by exceeding the limits of justifiable defence or in a state of severe mental disturbance, which has suddenly arisen as a result of unlawful violence or serious insult on the part of the victim, shall be imposed by a court at sentencing of a suit by a health-care institution or a prosecutor following the current legislation.

D. CONCLUSIONS
The study shows that the current procedure of the submission of a civil suit by the prosecutor in the interests of the State is somewhat bureaucratic since it allows the authority, who doesn't perform or improperly performs his duty concerning the submission of a civil suit or delay the process.This can be explained by the fact that according to the requirements of Art.23 of the Law of Ukraine "On the Prosecutor's Office", it is necessary to establish and prove two interrelated circumstances for the prosecutor to exercise the function of representation of the interests of the State in court, namely: first of all, to prove a violation or threat of violation of State interests; secondly, to provide concrete evidence and facts concerning the non-protection or improper protection by a State authority, local self-government authority or other authority, which is competent for relevant powers, or if there are no such authorities (Kravchenko, 2016, p. 78-79).However, taking into account the current state of corrupt practices, it is very difficult for the prosecutor to prove the inaction of the authority in court.Therefore, the prosecutor can only hope for the understanding of the court concerning the real need to protect the interests of the State.