RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of September 23, 2021 No. 30

About exceptional case of illegality of Art. 33 of h (1) the item c) the Law No. 156 of October 14, 1998 on the public pension system (review of pension on restriction of opportunities) (addresses No. 10g/2021 of year, No. 48g/2021 of year, No. 116g/2021 of year and No. 130g/2021 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika Manole, chairman,

Nicolae Roshka,

Liouba Shova,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Vasily Opri,

in view of addresses,

registered on January 19, 2021, on March 3, 2021, on May 21, 2021 and on June 7, 2021,

having considered the specified addresses 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. Addresses about exceptional case of illegality of Art. 33 of h formed the basis for consideration of the case (1) the items c) the Law on the public pension system provided at the request of Mikhail Kozhokara, party litigants No. 3-2842/20 [address No. 10g/2021], by Serdzhiu Roshki, party litigants No. 3-3035/20 [address No. 48g/2021], to Victoria Lesnik, party litigants No. 3-1145/2021 [address No. 116g/2021], and Vitalia Meshtera, party litigants No. 3-3392/20 [address No. 130g/2021] considered by court of Chisinau (sector Ryshkan).

2. Addresses about exceptional case of illegality were brought into the Constitutional court: On January 19, 2021 - the judge the vessels Chisinau (sector Ryshkan) Violeta Kiselitsa at the request of Mikhail Kozhokara; On March 3, 2021 - the judge the vessels Chisinau (sector Ryshkan) Oleg Melnichuk at the request of Serdzhiu Roshki; On May 21, 2021 - the judge the vessels Chisinau (sector Ryshkan) Lyudmila Holevitskaya at the request of Victoria Lesnik; On June 7, 2021 - the judge the vessels Chisinau (sector Ryshkan) Korneliu Guzun at the request of Vitaly Meshter.

3. The constitutional court recognized addresses acceptable. In view of identity of subject of the provided addresses, the Constitutional court according to provisions of Art. 43 of the Code of the constitutional jurisdiction combined them in one production, having appropriated to case No. 10g/2021.

4. During consideration of addresses the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, National cash desk of social insurance, department of private law of faculty of the right of the State university of Moldova and the Center for the rights of persons with limited opportunities. At the same time the Constitutional court received opinion of amicus curiae from Council for the prevention and elimination of discrimination and ensuring equality.

5. At open session of the Constitutional court there were authors of addresses - Mikhail Kozhokaru, Serdzhiu Roshka, Victoria Lesnik and Vitaliye Meshter. The parliament was provided by the chief of service of representation in the Constitutional court and law enforcement agencies of the head legal department of the Secretariat of Parliament Valery Kuchuk. From the Government the state secretary of the Ministry of Labour and Social Protection Vasile Kushka and the deputy chief of legal management of National cash desk of social insurance Olesya Regush took part.

Circumstances of the main disputes

Facts of the case No. 3-2842/20 of.

6. Mikhail Kozhokaru appealed on August 16, 2019 to administrative court with the statement against National cash desk of social insurance with the requirement to oblige organization to review pension on restriction of opportunities.

7. In reasons for the statement he noted that on March 15, 2018, according to Art. 33 of the Law on the public pension system it submitted to National cash desk of social insurance and Territorial cash desk of social insurance of Belts the statement for recalculation of pension on restriction of opportunities as, being beneficiary of pension on restriction of opportunities, after realization of pension entitlement it continued labor activity and from the received salary all taxes, including fees of social insurance were withheld.

8. In the letter No. II-03/04-6847 of October 29, 2020 the National cash desk of social insurance noted that it rejected the statement with similar subject earlier and that the decision is final. At the same time the National cash desk specified that the legislation on which the adopted administrative act was based did not change.

9. During judicial sessions of November 25, 2020 and on December 1, 2020 Mikhail Kozhokaru made inquiry about exceptional case of illegality of Art. 33 of h (1) the item c) the Law on the public pension system.

10. The degree of jurisdiction satisfied with determination of January 6, 2021 request and sent the appeal about exceptional case of illegality to the Constitutional court for permission.

Facts of the case No. 3-3035/20 of.

11. Serdzhiu Roshka submitted to administrative court the application against National cash desk of social insurance, having demanded cancellation of the individual administrative act, adverse for it.

12. In reasons for the statement he noted that he filed on October 13, 2020 in Territorial cash desk of social insurance petition for review of pension entitlement on restriction of opportunities according to Art. 33 and Art. 20 of the Law No. 156 of October 14, 1998 on the public pension system on the formula stated in annex 3 to the law.

13. The statement for review of pension entitlement was rejected by the letter No. X-01/09-3427 of October 14, 2020 based on the fact that the claimant exercised pension entitlement, and Art. 33 of h (1) the item c) does not provide the right to recalculation of pension on restriction of opportunities, and only old-age pensions.

14. Afterwards the claimant submitted the provisional statement with the requirement to cancel the letter of Territorial cash desk of social insurance No. X-01/09-3427 of October 14, 2020, to review pension entitlement on restriction of opportunities and to collect from National cash desk of social insurance of 100 000 lei as moral damage. In the letter No. R-2413/20 of November 12, 2020 explained to the claimant that the working life which is saved up after award of pension on restriction of opportunities will be considered in case of realization of pension entitlement on age on reaching 63 years.

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