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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of January 25, 2005 No. 3

About control of constitutionality of some provisions of the Law No. 289-XV of July 22, 2004 "About temporary disability benefits and other benefits of social insurance" * and some provisions of appendix to the Order of the Government No. 416 of April 26, 2004 **

Name of the Republic of Moldova,

Constitutional court in structure:

Ion VASILATI is chairman

Alina YANUCHENKO is judge

Mircha of the SOUTH - the judge

To Dumitr PULBERE - the judge-speaker

Elena SAFALERU is judge with the assistance of Maya Tsurkan, the secretary of meeting, Yuriye Perevoznik, the parliamentary lawyer, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Nicolae Eshana, the permanent representative of the Government in the Constitutional court, the deputy minister of justice, being guided by Art. 135 of h (1) the item and) Constitutions, Art. 4 of h (1) the item and) the Law on the Constitutional court, Art. 4 of the h. (1) item and) and Art. 16 of the h. (1) the Code of the constitutional jurisdiction, considered in open plenary meeting case on control of constitutionality of some provisions of the Law N289-XV of July 22, 2004 "About temporary disability benefits and other benefits of social insurance" and some provisions of appendix to the Order of the Government N416 of April 26, 2004.

The addresses of the parliamentary lawyer Yuriye Perevoznik provided on May 19 and on September 23, 2004 according to provisions of Art. 24 and Art. 25 of the item g) the Law on the Constitutional court, Art. 38 and Art. 39 of the Code of the constitutional jurisdiction formed the basis for consideration of the case.

Were accepted by determinations of the Constitutional court of June 28 and on October 11, 2004 the appeal to consideration on the merits and are integrated in one production.

During preliminary consideration of addresses the Constitutional court requested the points of view of Parliament, the President of the Republic of Moldova, the Government, Confederation of labor unions of the Republic of Moldova, the Ministry of Labour and Social Protection, the Ministry of Justice, the Ministry of Finance, the Prosecutor General's Office, National cash desk of social insurance, the Helsinki Human Rights Committee in Moldova, Leagues on human rights protection in Moldova.

Having considered case papers, having heard the message of the judge-speaker and arguments of participants of meeting, the Constitutional court established:

1. According to the Law N489-XIV of July 8, 1999 "About the state system of social insurance" *** (further - the Law N489-XIV) social insurance is the system of social protection providing provision to insured persons of pensions, benefits for the prevention of diseases and recovery of working capacity, other benefits, stipulated by the legislation. This system acts on the basis of the principles of obligation, participation, distribution, etc. according to which physical persons shall be participants of the state system of insurance, and realization of their right to social insurance depends on payment of the corresponding fees.

In addition to pension entitlement the Law N489-XIV provides the right of insured persons of gosudastvenny system of insurance to temporary disability benefits, according to the prevention of diseases and recovery of working capacity, on motherhood and on education of the child or care of the sick child, on unemployment and on burial (the Art. 41).

Proceeding from the general principles of creation of system of social insurance and according to Art. 42 of the Law N489-XIV according to which the procedure for provision, appointments and allowance payments on social insurance established by the Art. 41, is regulated by the legislation on July 22, 2004 the Parliament adopted the Law N289-XV "About Temporary Disability Benefits and Other Benefits of Social Insurance" (further - the Law N289-XV). This law determines the right of some categories of persons to benefits of social insurance in case of approach of the following risks - diseases, motherhood and death.

The order of the Government N416 "About Approval of Changes and Additions Which Are Made to the Separate Orders of the Government" (further - the Resolution N 416) which some provisions are challenged precedes the Law N289-XV, being accepted on April 26, 2004. This resolution Government made changes and additions to the Regulations on procedure for appointment and allowance payment to families with children (further - the Provision) approved by the Order of the Government N1478 of November 15, 2002 ****.

So, Item 2 of the Provision was added with the following text:

in the subitem and):

"Since January 1, 2004 the lump-sum allowance in case of the birth of the first child is appointed in the following size:

for insured persons - in the amount of 420 lei;

for uninsured persons - in the amount of 380 lei;

in case of the first multiple labor (two or more twins) the allowance is granted on each child: for insured persons - in the amount of 420 lei, and for uninsured - in the amount of 380 lei".

in the subitem b):

"Since January 1, 2004 the lump-sum allowance in case of the birth of each following child is appointed in the following size:

for insured persons - in the amount of 280 lei;

for uninsured persons - in the amount of 250 lei;

in case of the second and subsequent multiple childbirth (two or more twins) the allowance is granted on each child: for insured persons - in the amount of 280 lei; and for uninsured - in the amount of 250 lei".

2. The parliamentary lawyer appealed to the Constitutional court with request to consider constitutionality of following provisions of the Law N289-XV: Art. 5 of the h. (1) the item е), providing that insured persons in system of social insurance have the right to lump-sum allowance in case of the child's birth, and the Art. 17, according to which insured person has the right to lump-sum allowance in case of the child's birth in the amount of at least 500 lei to each child born live, and also the additions made to Item 2 subitems and) and b) Provisions.

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