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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of April 10, 2012 No. 5

About control of constitutionality of provisions of Art. 4 of the h. (2) item and) and item b), Art. 9 of the h. (1) and Art. 13 of the h. (1) the item c) the Law No. 289-XV of July 22, 2004 on temporary disability benefits and other benefits of social insurance, with subsequent changes and amendments (the Address No. 39a/2011)

Constitutional court in structure:

To Alexander Tenase, chairman,

Petra Reiljan, judge-speaker,

To Dumitr Pulbere,

Victor Puskas,

Valeria Shterbets,

Elena Safaleru, judges,

with the assistance of the court clerk Tatyana Oborok,

in view of the address provided on December 29, 2011, registered by the same number, added on February 15, 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 brought into the Constitutional court on December 29, 2011 based on Art. 135 of the h formed the basis for consideration of the case. (1) item and) Constitutions, Art. 25 of the h. (1) item g) Law on the Constitutional court and Art. 38 of the h. (1) the item g) the Code of the constitutional jurisdiction the parliamentary lawyer Aurelia Grigoriu, about control of constitutionality of provisions of Art. 4 of the h. (2) item and) and item b), Art. 9 of the h. (1) and Art. 13 of the h. (1) the item c) the Law No. 289-XV of July 22, 2004 on temporary disability benefits and other benefits of social insurance in edition of the laws No. 56 of June 9, 2011 and No. 3 of January 15, 2012 which changed conditions of provision of temporary disability benefit.

2. The author of the address considers, in particular, that the challenged provisions which assign certain part of the expenses connected with temporary disability benefit to the worker and the employer and also reduce the benefit size, violate the right to social protection and the property right, being incompatible with provisions of Art. 1 of the h. (3), the Art. 15, the Art. 18, Art. 47 in combination with Art. provisions 16, Art. 46 in combination to the Art. 54, and also with provisions of Art. 126 of the h. (2) item g) Constitutions.

3. Determination of the Constitutional court of February 9, 2012, without decision in essence, the address acknowledged acceptable.

4. On February 15, 2012 the address was added by the author, meaning expansion of subject of the address in connection with the changes made by the Law No. 3 of January 5, 2012 to Art. 4 of the Law No. 289-XV.

5. During consideration of the address the Constitutional court had the conclusions of Parliament, Government, the ministries and other bodies.

6. 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 government was provided by the Minister of Labour, Social Protection and Family Valentina Buliga and the deputy minister of justice Vladimir to Gross.

Applicable legislation

7. Applicable provisions of the Constitution:

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 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.

(2) Nobody can be deprived of the property differently as in case of the social necessity established by the law on condition of fair and preliminary compensation.

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.

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

8. Applicable provisions of the Law on temporary disability benefits and other benefits of social insurance No. 289-XV of July 22, 2004, with subsequent changes and amendments:

Article 4. Sources of financing of benefits of social insurance

(1) Allowance payment of social insurance, provided by Items b), c), d), e), f), g), h) parts (1) Articles 5, it is performed completely by budget funds of the national social insurance.

(2) Allowance payment on the temporary disability caused by general disease or accident, not work-related, except as specified, provided by part (3) this Article, it is performed as follows:

a) the first calendar day of temporary disability is charged to insured person;

b) the second, third and fourth calendar days of temporary disability are paid from means of the employer, and is paid by the unemployed from budget funds of the national social insurance;

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