RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of October 9, 2007 No. 23

About control of constitutionality of provisions of Item 8 of the Art. III of the Order of the Government No. 1306 of December 12, 2005 "About approval of changes and additions which are made to some orders of the Government" (1)

Name of the Republic of Moldova

Constitutional court in structure:

To Dumitr PULBERE - the chairman, the judge-speaker

Alina YANUCHENKO is judge-speaker

Victor PUSKAS is judge

Elena SAFALERU is judge

Valeria SHTERBETS is judge

Ion VASILATI is judge

with the assistance of Victoria Botnaryuk - the secretary of meeting, Nicolae Eshana - the permanent representative of the Government in the Constitutional court, the deputy minister of justice, being guided by Art. 135 of the h. (1) item and) Constitutions, Art. 4 of the h. (1) item and) Law on the Constitutional court, Art. 4 of the h. (1) the item and) the Code of the constitutional jurisdiction, considered in open plenary meeting case on control of constitutionality of the Order of the Government N1306 of December 12, 2005 "About approval of changes and additions which are made to some orders of the Government".

The address of the parliamentary lawyer Ivan to Cook provided on April 20, 2007 according to Art. 24 and Art. 25 of 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.

The address was accepted determination of the Constitutional court of May 21, 2007 to consideration on the merits.

During preliminary consideration of the address the Constitutional court had the points of view of Parliament, the President of the Republic of Moldova, the Government, Ministry of Justice, Ministry of Finance, Ministry of Economy and Trade, Ministry of social protection, family and the child, the Prosecutor General's Office, Confederation of labor unions of the Republic of Moldova, Confederation of free labor unions "Solidaritate" of the Republic of Moldova.

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

1. On December 12, 2005 the Government accepted the Resolution N 1306 "About approval of changes and additions which are made to some orders of the Government" (further - the Resolution N 1306).

Item 8 of the Art. III of the resolution Item 15 of the Regulations on payment procedure of immediate compensation for the damage caused to health, disabled people from among participants of mitigation of consequences of the Chernobyl catastrophic crash approved by the Order of the Government N 374 of April 29, 1999 (2), it was added with the new paragraph, the second, the following content: "The persons who got sick with radiation sickness or became disabled people owing to nuclear testing, accidents with the ionizing radiation and their effects on nuclear civil or military facilities which till June 4, 2004 received immediate compensation for the damage caused to health have no right to recalculation or its payment further".

2. The author of the address considers that provisions of Item 8 of the Art. III of the Resolution N 1306 contradict regulations of Art. 1 of the h. (3), Art. 6, Art. 16 of the h. (2), Art. 47, Art. 54 of the h. (1), Art. 102 of the h. (2) Constitutions, and also Art. 7 and Art. 25 of the Universal Declaration of Human Rights.

In reasons for the address it is noted that the restrictions set concerning recalculation and payment further to immediate compensation to the persons who got sick with radiation sickness or became disabled people owing to nuclear testing, accidents with the ionizing radiation and their effects on nuclear civil or military facilities which till June 4, 2004 received compensation the Government appropriated powers of the legislator. According to the author, these provisions break also the principle of equality of citizens before the law as handicap persons who received immediate compensation based on provisions of the Order of the Government N 575 of September 2, 1992 in relation to persons having the right to immediate compensation based on Art. 9 and Art. 22 of the Law N 909-XII of January 30, 1992 "About social protection of the citizens who were injured owing to the Chernobyl catastrophic crash".

3. Having considered the challenged provisions through prism of the constitutional regulations, in the ratio with the national legal system and the international acts of basic rights and human freedoms, the Constitutional court notes the following.

The legal framework in the field of health protection, social security and protection are the Constitution, the laws and resolutions of Parliament, the resolution and the order of the Government, other regulations in this area.

According to the Constitution:

The Republic of Moldova is the democratic constitutional state in which advantage of the person, its rights and freedoms, free development of the human person are the supreme values and are guaranteed (Art. 1 of the h. (3).

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 (Art. 16 of the h. (2).

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, and in case of disease, disability or in other cases of loss of means of livelihood on the circumstances which are not depending on them citizens have right to social insurance (Art. 47 of the h. (1) and h. (2).

In the Republic of Moldova the laws prohibiting or diminishing the rights and fundamental freedoms of man and citizen cannot be adopted (Art. 54 of the h. (1).

The principle of equality of citizens before the law and the authorities, and also the right of citizens to social security and the protection enshrined in Art. 16 of the h. (2) and Art. 47 of the Constitution, match on content with Art. 7 and Art. 25 of the h. (1) Universal Declaration of Human Rights.

The given constitutional regulations and provisions of Art. 7 and Art. 25 of the Universal Declaration of Human Rights, in force for the Republic of Moldova since April 26, 1993 (3), effective organization-legal mechanisms oblige the state to develop for compensation of the damage caused as a result of disability.

Thus, establishing guarantees of social protection, the state protects health and welfare of citizens, providing the public assistance in the cases provided by the law.

Financial support, the benefits, compensations which are part of general social security system represent types of material security of citizens in case they are exposed to social risks (loss of earnings, increase in the expenses connected with the child's birth, disease, disability, etc.).

The law on the public assistance N 547-XV of December 25, 2003 (4) determines the public assistance as part of national system of social protection within which the state and civil society undertake obligations according to the prevention, reduction or elimination of the temporary or permanent effects of some events considered as social risks, limiting participation or expelling from society persons and the families which are in difficult situation.

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