Name of the Republic of Moldova
of February 9, 2017 No. 6
About exceptional case of illegality of Art. 16 of the h. (5) the Law No. 289 of July 22, 2004 on temporary disability benefits and other benefits of social insurance, and also item 49 of the Provision approved by the Order of the Government No. 108 of February 3, 2005 (benefit on motherhood) (the Address No. 100g/2016)
Constitutional court in structure:
To Alexander Tenase, chairman,
Auryl to Beesh,
Victor of Pop,
Vyacheslav Zaporozhan, judges,
with the assistance of the secretary of meeting Anna Floryan,
in view of the address provided and registered on August 11, 2016
having considered the specified address in open plenary meeting, considering acts and case papers,
having carried out discussion in the consultative room,
issues the following decree.
Points of order
1. The address about exceptional case of illegality of Art. 16 of the h formed the basis for consideration of the case. (5) the Law No. 289 of July 22, 2004 on temporary disability benefits and other benefits of social insurance and item 49 of the Regulations on appointment conditions, procedure for the calculation and allowance payment on temporary disability approved by the Order of the Government No. 108 of February 3, 2005 (further – the Provision), provided at the request of Denis Ipati, the claimant's representative, within the case No. 3-487/16, considered by court of Chisinau, the sector to Chentr.
2. The address was brought into the Constitutional court on August 11, 2016 by the judge in court of Chisinau, the sector to Chentr, Serdzhiu Stratan based on Art. 135 of the h. (1) the item and) and the item g) Constitutions in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also Regulations on procedure for consideration of the addresses brought into the Constitutional court.
3. According to the author of the address, Art. 16 of the p. (5) the Law on temporary disability benefits and other benefits of social insurance and item 49 of the relevant provision Art. 4, contradict the Art. 7, of the Art. 8, of Art. 16 and Art. 47 of the Constitution.
4. Determination of the Constitutional court of October 12, 2016, without decision in essence, the address was acknowledged acceptable.
5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova and the Government.
6. In open plenary meeting the address was supported by the claimant's representative – Denis Ipati. From Parliament there was Valeriu Kuchuk, the chief of service of representation at the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament. From the Government Diana Chebotaru, the assistant department head of pensions and benefits of the Ministry of Labour, Social Protection and Family, and Tatyana Kasapu, the chief of legal management of National cash desk of social insurance took part.
Circumstances of the main dispute
7. Irina Arseni terminated on August 3, 2015 on own initiative the individual employment contract with the company in which she worked.
8. Irina Arseni went on January 14, 2016 on maternity leave.
9. As the spouse who is on content at the spouse, Irina Arseni submitted to Service of social protection and emergency situations on January 25, 2016 the statement for allowance payment on motherhood.
10. The Service of social protection and emergency situations sent it to National cash desk of social insurance.
11. The National cash desk of social insurance responded to its appeal that according to Art. 16 of the h. (5) the Law on temporary disability benefits and other benefits of social insurance the allowance on motherhood is granted to the wife who is on content at the insured husband if she did not work within 9 months in a row preceding month of provision of maternity leave.
12. Irina Arseni brought on March 21, 2016 the legal claim against Service of social protection and emergency situations, and as the wife who is at the husband on content demanded to pay it the benefit on motherhood estimated from the average monthly salary of the husband.
13. During legal proceedings the claimant's representative, Denis Ipati, made inquiry about exceptional case of illegality of provisions of Art. 16 of the h. (5) the Law No. 289 of July 22, 2004 on temporary disability benefits and other benefits of social insurance and item 49 of the Provision approved by the Order of the Government No. 108 of February 3, 2005.
14. The request about exceptional case of illegality court of Chisinau, the sector to Chentr, satisfied and on July 14, 2016 sent the appeal to the Constitutional court for permission.
15. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 78, the Art. 140):
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 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 owing to circumstances".
Article 49. Protection of family and orphan children
(2) the State patronizes motherhood, the childhood and youth and promotes development of the relevant organizations.
16. Applicable provisions of the Labor code No. 154-XV of March 28, 2003 (M.O., 2003, No. 159-162, Art. 648):
Article 123. Medical leave
(2) the Procedure for establishment, calculation and allowance payment in connection with medical leave from budget funds of the national social insurance is provided by the current legislation".
Article 124. Maternity leave and partially paid leave on child care
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