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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of April 23, 2013 No. 5

About control of constitutionality of Article 301 of the h. (1) the item c) the Labor code of the Republic of Moldova of March 28, 2003 No. 154-XV in edition of the Law of the Republic of Moldova of April 26, 2012 No. 91 about modification and amendments in some legal acts (the Address No. 31a/2012)

Constitutional court in structure:

To Alexander Tenase, chairman,

Igor DOLYa, judge-speaker,

Aurel Beeshu,

Tudor Pantsyru,

Victor of Pop,

Petra Reiljan, judges,

with the assistance of Corinna of Pop, court session secretary,

in view of the address provided on September 6, 2012 and registered on September 7, 2012

having considered the specified address in open plenary meeting, considering acts and case papers,

issues the following decree:

Points of order

1. The address of the deputy of Parliament Sergey Syrbu brought into the Constitutional court on September 6, 2012 based on Art. 135 of the h formed the basis for consideration of the case. (1) item and) Constitutions, Art. 25 of the item g) Law on the Constitutional court and Art. 38 of the h. (1) the item g) the Code of the constitutional jurisdiction, about control of constitutionality of Article 301 of the h. (1) the item c) the Labor code No. 154-XV of March 28, 2003, in edition of the Law No. 91 of April 26, 2012 on modification and amendments in some legal acts.

2. The author of the address believes that Item c) h. (1) Art. 301 of the Labor code according to which, in addition to the general bases provided by the Code, the individual employment contract signed with pedagogical workers can be stopped in connection with "c) award of pension on age" contradicts provisions of Articles 1 of the h. (3), 4, 5, 7, 8, 9 h (1) and h (2), 16, 43 h (1), 46 h. (1), 47 and 54 Constitutions.

3. Determination of the Constitutional court of October 4, 2012, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the address the Constitutional court requested opinions of the President of the Republic of Moldova, Parliament and the Government.

5. The author of the address participated in open plenary meeting of the Constitutional court personally. The parliament was provided by the main consultant of legal management of the Secretariat of Parliament Serdzhiu Kirike. The representative of the Government was not present.

Applicable legislation

6. Applicable provisions of the Constitution (M.O. No. 1/1, 1994 of):

Article 1

State Republic of Moldova

" [...]

(3) the Republic of Moldova - the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed."

Article 4

Human rights and freedoms

"(1) the Constitutional regulations on human rights and freedoms are interpreted and applied according to the Universal Declaration of Human Rights, pacts and other agreements, one of the parties of which is the Republic of Moldova.

(2) with discrepancies between pacts and agreements on fundamental human rights, one of the parties of which is the Republic of Moldova, and the internal laws the international standards have priority."

Article 7

The constitution - the supreme law

"The constitution of the Republic of Moldova is its supreme law. Any law or other legal act contradicting Constitution provisions have no legal force."

Article 16

Equality

"(1) the Respect and protection of the personality constitute paramount obligation of the state.

(2) All citizens of the Republic of Moldova are equal before the law and the authorities irrespective of race, nationality, ethnic origin, language, religion, floor, views, political affiliation, property status or social origin."

Article 43

Right to work and protection of work

"(1) Each person has right to work, the free choice of work, fair and satisfactory working conditions, and also right of defense from unemployment.

[...]"

Article 46

Right of private property and its protection

"(1) the Right of private property, and also the debt obligations undertaken by the state are guaranteed.

[...]"

Article 47

Right to social insurance and protection

"(1) the State shall take measures for providing to any person of worthy living standards, potrebny for maintenance of health and welfare him and his family, including food, clothes, the dwelling, medical care and necessary social servicing.

(2) Citizens have right to social insurance in case of unemployment, diseases, disability, widowhood, approaches of old age or in other cases of loss of means of livelihood on the circumstances which are not depending on them."

Article 54

Restriction of implementation of the rights or freedoms

"(1) In the Republic of Moldova the laws prohibiting or diminishing the rights and fundamental freedoms of man and citizen cannot be adopted.

(2) Implementation of the rights and freedoms is not subject to any restrictions, except those which are provided by the law, meet the universally recognized norms of international law and protection of the rights, freedoms and advantage of other persons, prevention of disclosure of information obtained confidentially or ensuring authority and impartiality of justice are necessary for the benefit of homeland security, territorial integrity, economic well-being of nation, public order, for the purpose of prevention of mass riots and crimes.

(3) part Provisions (2) restrictions of the rights proclaimed in Articles 20 - 24 do not allow.

(4) Restriction shall correspond to the circumstance which caused it and cannot affect existence of the right or freedom."

7. Applicable provisions of the Labor code of the Republic of Moldova No. 154-XV of March 28, 2003 (M.O. 2003, Art. No. 159-162, 648):

Article 6

Not restriction of right to work and freedom of work

"(1) Freedom of work is guaranteed by the Constitution of the Republic of Moldova.

(2) Everyone is free in the choice of place of employment, profession, occupation or activities.

[...]"

Article 301

The additional bases of the termination of the individual employment contract with pedagogical workers and with employees of the organizations in the field of science and innovations

"(1) In addition to the general bases provided by this code, the individual employment contract signed with the pedagogical worker can be stopped also on the following bases:

a) gross violation of the charter of educational institution, numerous within one year, (Item l) of part (1) Articles 86);

b) application, including single, to pupils of physical or mental abuse (Item n) of part (1) Articles 86);

c) award of pension on age.

(2) In addition to the general bases provided by this code, the individual employment contract signed with the employee of the organization in the field of science and innovations can be stopped on the following additional bases:

a) not passing on tender on replacement of the scientific and executive position provided by the charter of the relevant organization;

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