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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of March 22, 2011 No. 6

About exceptional case of illegality of Art. 62 of the h. (1) the item d) the Law on the state position and the status of the government employee No. 158-XVI of July 4, 2008 (1)

Name of the Republic of Moldova

Constitutional court in structure:

To Dumitr PULBERE - the chairman, the judge-speaker

Victor PUSKAS is judge

Petra RAJLJAN - the judge

Elena SAFALERU is judge

Valeria SHTERBETS is judge the secretary of meeting - Dean Mustyats, with the assistance of the representative of Parliament Victor Morgoch, representatives of the Government Oleg Efrim and Tamara Georgitse, being guided by Art. 135 of the h. (1) item g) Constitutions, Art. 4 of the h. (1) item g) Law on the Constitutional court, Art. 4 of the h. (1) item g) and Art. 16 of the h. (1) the Code of the constitutional jurisdiction, considered case on exceptional case of illegality of Art. 62 of the h in open plenary meeting. (1) the item d) the Law on the state position and the status of the government employee No. 158-XVI of July 4, 2008.

The appeal of the Highest trial chamber provided on November 15, 2010 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 December 8, 2010 to consideration on the merits and is included in the agenda.

During preliminary consideration of the address the Constitutional court requested the points of view of Parliament, the President of the Republic of Moldova, the Government, the Prosecutor General's Office, the Ministry of Justice, Institute of history, the state and the right of Academy of Sciences of Moldova, the Center for human rights, "Alliance for Justice and Human Rights" non-governmental organization, the Moldavian state university, the International independent university of Moldova.

Having considered case papers, having heard the message of the judge-speaker and explanation of participants of process, the Constitutional court at with t and N about in and l:

1. The decision of Appeal chamber Chisinau of March 24, 2010 rejected Rotundu Pyotr's claim for cancellation of the order of the Ministry of Education for dismissal based on Art. 62 of the h. (1) the item d) the Law on the state position and the status of the government employee No. 158-XVI of July 4, 2008, in connection with achievement of the age necessary for receipt of pension entitlement on age.

In the statement the claimant referred to the wrong application of the Law No. 158-XVI existing since January 1, 2009, reasoning for those that the legal relationship provided by Art. 62 of the h. (1) the item d) the law, in its case were exhausted before entry into force of the law which affects only the future.

Board on civil and administrative cases of the Highest trial chamber, considering the writ of appeal on the decision of Appeal chamber, according to provisions of Art. 121 of the Code of civil procedure, accepted the motivated conclusion about giving of request about permission of exceptional case of illegality of Art. 62 of the h. (1) the item d) the Law on the state position and the status of the government employee No. 158-XVI of July 4, 2008.

The highest trial chamber in the address approved by the Resolution of the Plenum No. 15 of October 25, 2010 noted that provisions of Art. 62 of the h. (1) the item d) the law limit right to work of the government employees who reached the age necessary for receipt of pension entitlement on age and by that contradict the constitutional regulations of Art. 43 of the h. (1) and Art. 16 of the h. (2), providing right of any person to work, the free choice of work, and also to protection against unemployment, and equality of citizens before the law and the authorities without any distinctions, Art. 4 of the h. (1), providing that 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, the Art. 54, excluding adoption of the laws prohibiting or diminishing the rights and fundamental freedoms of the person.

In the address it is noted also that the challenged provisions violate instructions of Art. 14 of the European convention on human rights protection and fundamental freedoms, Art. 2 of the h. (2) and Art. 6 of the International treaty on the economic, social and cultural rights according to which use of the rights and freedoms proclaimed the Convention and the Pact is provided without discrimination on any sign as that concerning race, skin color, floor, language, religion, political or other convictions, national or social origin, property status, the birth or other circumstance; Art. 7 and Art. 23 of the Universal Declaration of Human Rights according to which all people are equal before the law and have the right, without any distinction, to equal protection of the law against any discrimination, and each person has right to work and the free choice of work.

In support of the approvals the author of the address referred also to law of the Constitutional court, in particular, on the Resolution No. 9 of March 30, 2004 according to which "legislation provisions which provide age as the basis for the termination of employment relationships if it not the requirement about qualification, is determined as restriction of the rights in the field of work and activities".

2. Having analyzed contents of the legislative provisions constituting subject of the address and having correlated them to the constitutional provisions, regulations of the national legal system and the international acts, the Constitutional court notes the following.

Article 62 of the h. (1) the item d) the Law on the state position and the status of the government employee No. 158-XVI of July 4, 2008 (further - the Law No. 158-XVI) the following content has:

"(1) the Office relations stop on the circumstances which are not depending on will of the parties:

d) in case of achievement of the age by the government employee necessary for receipt of pension entitlement on age, except for the case specified in part (5) Article 42.".

The open entry to public service is enshrined in Art. 39 of the h. (2) the Constitution according to which access to public service is provided to any citizen according to the law. Proceeding from these reasons, Art. 43 of the h provided in the address. (1) Constitutions about right to work and protection of work it will be correlated to Art. 39 of the h. (2) Constitutions.

The constitutional court notes that Art. 39 of the h. (2) the Constitution does not provide conditions and procedure for occupation and execution of the state positions, leaving it at the discretion of the legislator.

Developing the constitutional regulation, the legislator adopted the Law No. 158-XVI which purpose is ensuring execution of stable, professional, impartial, transparent and effective public service for the benefit of society and the state, and the government employee is the person enabling the activities assuming the realization of prerogatives of the public power (Art. 1 of the h. (2), Art. 3) which imply high requirements to its professional qualities. To prevent causing damage to the state, public order, basic rights and freedoms, advantage of the person, the legislator, in departure from general rules, provided that the government employee will take up the state position before achievement of age by it, pension entitlement, necessary for obtaining, on age.

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