When the Law Becomes a Risk: Constitutional complaints as a tool for protecting businesses, assets, and property

It is precisely for such situations that the Constitution of Ukraine provides a separate instrument—the constitutional complaint. This is a mechanism that allows individuals and businesses to challenge not a court decision, but the law that was applied in their case. 

Today, this tool is no longer theoretical—it is actively changing the rules of the game for businesses, investors, and asset owners.

When the problem lies not with the court, but with the law

For businesses, it is fundamentally important to correctly identify the source of the violation. Sometimes it is a court error. But increasingly often, it is a situation where the court acts correctly but is forced to apply a provision that:

1) restricts property rights without proper balance;

2) creates unequal or discriminatory conditions;

3) imposes an excessive financial or regulatory burden;

4) allows for excessive state interference in economic activity;

5) violates the principle of legal certainty.

In such cases, a constitutional complaint becomes not just another procedural step, but a strategic tool for influencing the legal system itself.

What Exactly Does the Constitutional Court Review

The subject of a constitutional complaint is not a court decision, but a law or its provision that was applied in the final court decision.

This fundamentally distinguishes this mechanism from an appeal or cassation: the Constitutional Court does not review the facts, but answers the key question—whether the law itself complies with the Constitution.

That is precisely why a constitutional complaint is not a tool to “win a case,” but to change the rules for everyone.

Who Can File

A constitutional complaint is not an abstract legal mechanism, but a practical tool for the protection of individuals and private-law legal entities. Public-law legal entities do not have this right.

For businesses, this means that a company that has already gone through all court instances and received a final court decision does not always exhaust its avenues of defense. If a provision of law was applied in the case that violated the company’s rights and appears unconstitutional, the business may initiate a review of that provision by the Constitutional Court of Ukraine.

Key Conditions for Filing

A constitutional complaint may be filed only if certain clear legal prerequisites are met:

• first, there must be a final court decision in the case;
• second, a specific law or a specific provision thereof must have been applied in that decision;
• third, it is this specific provision that must have caused the violation of the petitioner’s rights;
• fourth, the applicant must adequately justify why the relevant provision is inconsistent with the Constitution of Ukraine;
• fifth, all other domestic legal remedies must have been exhausted;
• sixth, the complaint must be filed within the time limit established by law—as a rule, within three months from the date the final court decision takes effect.

Strategic Importance for Businesses and Asset Owners

For companies and owners of significant assets, a constitutional complaint is a strategic defense tool in disputes where the stakes involve not only financial outcomes but also fundamental guarantees: property rights, regulatory predictability, legitimate expectations, and trust in the state.

The significance of a constitutional complaint is particularly heightened in tax, regulatory, corporate, property, land, banking, sanctions, and other disputes where the application of a legal provision leads to an excessive, disproportionate, or unjust outcome for a business or asset owner.

In such cases, it is the constitutional complaint that allows one to go beyond standard judicial argumentation and raise questions of a fundamentally different level: not merely whether the court correctly applied the law, but whether the law itself complies with the Constitution and whether it can exist in the legal system in its current form.

Key Cases: How the Protection of Business Rights Shapes the Legal Boundaries of the State Through the Constitutional Court

Recent decisions of the Constitutional Court of Ukraine demonstrate a systematic approach to the protection of business and property rights.

1. Tax certainty: the case of Geomax-Resurs Limited Liability Company (Constitutional Court decision No. 3-r (II)/2025 of January 21, 2025)

The case concerned the excise tax on the retail sale of fuel, which was introduced by amendments to the Tax Code effective January 1, 2015, virtually immediately after the law was published.

The essence of the appeal: Geomax-Resurs LLC challenged the provision under which the sale of fuel through gas stations was classified as the retail sale of excisable goods, which created a new tax obligation for the company and led to additional excise tax assessments and penalties.

What the Constitutional Court of Ukraine ruled: The Court found the relevant provision of the Tax Code of Ukraine unconstitutional, as the law took effect almost immediately, without a sufficient transition period. Taxpayers had no real opportunity to adapt their accounting, pricing, and tax planning to the new rules. The essence of the Court’s approach is that the state cannot create a regulatory environment in which businesses are unable to plan their activities, and tax rules must be stable and predictable—this is the foundation of investment attractiveness.

What the case demonstrates: even in the tax sphere, the state cannot suddenly impose new obligations without predictability, legal certainty, and a reasonable time for businesses to adapt. This is an important case regarding the protection of taxpayers’ legitimate expectations and the limits of the legislature’s tax discretion.

2. Protection of Property: The Case of Private Joint-Stock Company “Chernigivobldbud” (Constitutional Court of Ukraine Decision No. 7-r (II)/2021 of October 20, 2021)

Essence of the appeal: PJSC “Chernigivoblbud” challenged a provision of the Law of Ukraine “On Ensuring the Realization of Housing Rights of Dormitory Residents,” which allowed for the compulsory transfer of dormitories included in the authorized capital of private companies to municipal ownership—without the owner’s consent and without compensation—by court order. In essence, this involved state interference in private property under the pretext of protecting the housing rights of dormitory residents.

What the Constitutional Court ruled: The Court found this provision unconstitutional because:

1) compulsory expropriation of property is possible only subject to prior and full compensation for its value;

2) the law allowed for seizure without compensation, which directly contradicts Article 41 of the Constitution of Ukraine;

3) the state cannot shift the resolution of social problems (the right to housing) onto private owners through de facto expropriation.

In other words, even a socially important goal cannot justify a violation of the essence of the right to private property. 

What this case demonstrates: The right to property takes precedence even over a strong social interest (the right to housing). Any state interference with property may occur only in accordance with the principles of proportionality and compensation. The legislature has no discretion to waive compensation in the event of property expropriation—this is a direct constitutional guarantee. The state’s social policy cannot be financed at the expense of individual private entities.

3. The inviolability of property rights: the case of Private Joint-Stock Company “Odesteplokomunenergo” (Constitutional Court of Ukraine Decision No. 9-r (II)/2022 of November 16, 2022)

The case of PJSC “Odeshtelokomunenergo” concerns the limits of the Ministry of Justice’s authority in canceling the registration of property rights.

Summary of the case: Odesteplokomunenergo PJSC held a registered ownership right to a construction-in-progress project. Following a complaint by a local government body, the Ministry of Justice overturned the state registrars’ decision to register this right. The company argued that, due to errors by the registrar, the state had effectively restricted its ownership right.

What the Constitutional Court ruled: The Court declared unconstitutional the provision allowing the Ministry of Justice to overturn a state registrar’s decision. The Court emphasized that registration itself is a key element in the exercise of property rights over real estate. If it is revoked, the owner loses the ability to fully dispose of the property, and the state no longer confirms their right.

In other words, the problem is not that the state cannot correct unlawful registration actions at all. It can. But the mechanism must be clear, proportionate, and must not shift the risk of the state registrar’s error onto a bona fide owner without adequate safeguards or compensation.

What this case shows: cancellation of registration is not merely a technical action. For real estate, it constitutes a de facto interference with property rights. The state must design registration procedures so that the fight against raiding or registrar errors does not turn into a new violation of property rights. The state cannot shift its own mistakes onto the property owner.

4. The State as a Business Participant: The Case of the Joint-Stock Company “Closed Non-Diversified Venture Corporate Investment Fund ‘ABAHPOST’” (Constitutional Court of Ukraine Decision No. 8-r (I)/2020 of July 22, 2020)

The “Avanpost” case concerns whether the state may, by law, forcibly seize a portion of a company’s profits if the shareholders have not adopted a resolution on dividends.

Essence of the appeal: JSC ZNVKIF “Avangard” challenged a provision of the Law of Ukraine “On the Management of State-Owned Property,” which required certain business entities with state participation to pay a portion of their net profit to the state budget, even if the general meeting had not adopted a resolution on dividends.

What the Constitutional Court ruled: The Court found this provision unconstitutional. The state cannot override corporate decisions of shareholders through the mandatory withdrawal of profits. Such a mechanism restricts corporate rights, particularly the right to participate in the management of the company, places the state in a privileged position compared to other shareholders, and constitutes a disproportionate interference with property rights.

What this case shows: even when the state is a shareholder or has influence in a company, it cannot act simultaneously as a market participant and as a government entity that “seizes” profits by law, bypassing corporate procedures. The state’s interest in budget revenues does not justify violating the equality of participants, property rights, and the principle of proportionality. Equality among market participants is a key condition for the functioning of the economy.

5. Powers of anti-corruption agencies: a Constitutional Court decision every business owner should know (Constitutional Court Decision No. 4-r (II)/2019 of June 5, 2019)

Essence of the appeal: A business challenged a provision of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” that allowed the NABU to independently file lawsuits seeking to invalidate agreements. In practice, this created a risk that the anti-corruption agency could interfere in private economic relations not only through investigations but also through judicial challenges to contracts.

What the Constitutional Court of Ukraine ruled: The Court found such authority of NABU to be unconstitutional. Key position: NABU is a pre-trial investigation body, not a body representing the state’s interests in court. Representation of the state in legal disputes belongs to the Prosecutor’s Office in cases specified by the Constitution, and parliament cannot transfer this function to another body by ordinary law.

What this case shows: even the socially important goal of fighting corruption does not give a state body the right to exceed its constitutional powers. For businesses, this decision is important because it enhances legal certainty: state bodies may intervene in agreements and property rights only within the limits of clearly defined jurisdiction.

6. The Prosecutor in Business Disputes: The Constitutional Court of Ukraine Narrowed the “Exceptional Cases” of State Representation (Constitutional Court of Ukraine Decision No. 6-r (II)/2025 of December 3, 2025)

Essence of the appeal: Reinir Business Group LLC challenged a provision of the Law of Ukraine “On the Prosecutor’s Office” that allowed a prosecutor to bring a case to court in the state’s interest if the relevant government authority “fails to” or “improperly” protects those interests. In the case, the prosecutor sought to terminate the company’s ownership of the land plots and return them to the community.

What the Constitutional Court ruled: The Court found this part of the provision unconstitutional. Key Position: The Constitution allows a prosecutor to represent the state’s interests in court only in exceptional cases, not as a universal mechanism to replace government authorities. The phrases “fails to exercise” or “inadequately exercises” protection are too broad and could effectively turn the prosecutor’s office into a general oversight body. 

At the same time, the Constitutional Court upheld the constitutional procedural guarantees: the prosecutor must justify the grounds for representation, the court must confirm them, and the relevant authority must be notified in advance.

What the case shows: The state cannot use the prosecutor as a “universal plaintiff” in disputes with businesses. Representation of the state’s interests must be an exception, clearly defined by law, rather than a tool for interfering with companies’ property and corporate rights. This decision enhances legal certainty for businesses in disputes with the state.

Conclusion

The constitutional complaint is gradually becoming, for businesses, not an exceptional legal tool but an element of strategic protection of assets, property, and investment stability. Its significance lies not only in the ability to challenge a specific provision of the law but also in the capacity to alter the very logic of the state’s interaction with business.

The practice of the Constitutional Court of Ukraine sends a clear signal: the state is not unlimited in its discretion. Tax interests, social objectives, the fight against corruption, the management of state property, or the protection of public interests cannot justify disproportionate interference with property rights, corporate rights, freedom of enterprise, and the principle of legal certainty.

For businesses, this means that even after a court dispute is resolved, legal protection is not always exhausted. If the problem lies not in a court error but in the law itself, a constitutional complaint can serve as the mechanism that shifts the dispute from the realm of individual conflict to the realm of systemic rights protection.

In today’s environment, where regulatory predictability is one of the key prerequisites for investment confidence, the constitutional complaint takes on particular significance. It allows businesses not only to protect a specific asset or financial interest but also to establish the legal boundaries within which the state must act responsibly, proportionately, and in accordance with the Constitution.