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;

c) since fifth calendar day of temporary disability the benefit from budget funds of the national social insurance is paid.

(3) Allowance payment on temporary disability in cases of tuberculosis, AIDS, cancer of any kind or emergence of threat of termination of pregnancy, and also allowance payment on temporary disability to the expectant mothers staying on the registry in sanitary medical institutions is performed completely by budget funds of the national social insurance since first calendar day of temporary disability.

Article 9. Duration of the period for which temporary disability benefit is provided

(1) Temporary disability benefit is provided for no more than 180 days within calendar year. Allowance payment is performed according to Article 4 provisions. (...) Article 13 Size of Temporary Disability Benefit

(1) the Monthly size of temporary disability benefit is established differentially, depending on duration of insurance years of service of the receiver, as follows: (...)

c) 90 percent of the basis for calculation of benefit established according to Article 7, in the presence of insurance years of service over 8 years. (...)

Points of law

9. The laws of June 9, 2011 and of January 15, 2012 the Parliament made changes to the Law No. 289 of July 22, 2004 on temporary disability benefits and other benefits of social insurance.

10. The law No. 56 of June 9, 2011 changed the legislative provisions providing implementation of allowance payment of social insurance completely at the expense of means of the government budget of social insurance (Art. 4 of the law). So, the following sources of financing of temporary disability benefits, diseases of tuberculosis, AIDS, cancer of any type or emergence of threat of termination of pregnancy, and also the allowance payment to the expectant mothers staying on the registry in sanitary medical institutions caused by general disease or accident, not work-related, except as specified are established by the made changes):

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

- the second calendar day of temporary disability is paid from means of the employer;

- since third calendar day of temporary disability the benefit from means of the government budget of social insurance is paid.

11. At the same time the percentage size of basis for calculation of temporary disability benefit in the presence of the insurance guard from 100 was reduced over 8 years to 90%.

12. The constitutional court notes that the Law No. 3 of January 15, 2012, having made new changes to provisions of Art. 4 of the Law on the temporary disability benefits and other benefits of social insurance No. 289 of July 22, 2004 concerning sources of financing of temporary disability benefits, the Parliament assigned payment of three calendar days of temporary disability of the worker to the employer and determined that since fifth day temporary disability benefit will be paid from means of the government budget of social insurance.

13. Considering new legislative provisions, the Constitutional court accepts arguments of the author of the address that the challenged provisions did not undergo essential changes after adoption of law No. 3 of January 15, 2012 so the subject of the address remained the same.

14. Thus, the Constitutional court will consider constitutionality of provisions of Art. 4 of the h. (2) item and), Art. 9 of the h. (1) and Art. 13 of the h. (1) the item c) the Law No. 289 of July 22, 2004 on temporary disability benefits and other benefits of social insurance in edition of the Law No. 56 of June 9, 2011 and provisions of Art. 4 of the h. (2) the item b) this law in edition of the Law No. 3 of January 15, 2012.

15. The constitutional court notes that prerogative which it is allocated owing to Art. 135 of the h. (1) the item and) Constitutions, establishment of ratio between legislative provisions and the text of the Constitution, taking into account the principle of its supremacy assumes.

16. The constitutional court emphasizes that the questions which are subject to constitutionality control in fact are as follows:

a) diversification of sources of financing - participation only of the state is replaced with triple distribution of the specified financial burden between the worker, the employer and the state;

b) application of different approach in case of allowance payment;

c) reduction of the size of temporary disability benefit.

17. In this context the Constitutional court will consider expected violation of Art. 47 in combination to Art. 54 of the Constitution - in the part concerning reducing the state social protection of citizens, Art. 47 in combination to Art. 16 of the Constitution - in the part concerning application of different approach by provision to citizens of temporary disability benefit and violation of Art. 46 in combination to Art. 54 of the Constitution in the part concerning intervention in implementation of the property right, other constitutional regulations to which the author of the address refers, being insignificant for this case.

I. Expected violation of Art. 47 in combination to Art. 54 of the Constitution

18. The author of the address considers that the provisions subjected to constitutionality control violate Art. 47 of the Constitution which provides the following:

"(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."

A. Arguments of the author of the address

19. The author of the address believes that the made changes double burden of person which is forced to incur expenses for the first day of temporary disability in case of approach of insurance risk in spite of the fact that this risk is subject to insurance without fail by payment of fees in the government budget of social insurance.

20. The author of the address considers also that the changes determining that three days of temporary disability of the worker are paid from means of the employer are equivalent to double taxation of the employer.

21. According to the author of the address, these provisions are directed to reducing social security of citizens in case of disease, on the restriction which is not corresponding to the circumstance which caused it and affect existence of the right, contrary to provisions of Art. 54 of the Constitution.

B. Arguments of the authorities

22. The authorities refer to broader freedom of discretion which the state uses in the field of the social rights.

23. In their opinion, the made changes were necessary for the purpose of expense optimization for pension payment and other benefits of social insurance.

24. According to the authorities, the disputed regulations are also directed to increase in responsibility of workers and employers in view of the prevention of disability and its recovery, and also to eradication of abuses of medical leaves.

C. Assessment of the Constitutional court

1. General principles

25. The constitutional court notes that the disputed regulations concern the rights belonging to the category of the social rights. Conceptual difference of these rights is that they have no unconditional character and can be provided only in the limits provided by the law. Owing to this feature the legislator has the right to establish special conditions for implementation of the social rights. At the same time application of legislative provisions cannot conflict to the constitutional principles as the relevant legislative arrangements cannot cancel or abolish the social rights guaranteed by the Constitution. So, in case of realization of the constitutional regulations guaranteeing the social rights, the legislator shall observe provisions of Art. 54 of the h. (4) Constitutions which provide that restriction cannot affect existence and content of the right or freedom.

26. The constitutional court notes also that feature of the social rights consists that they depend, mainly, on economic condition of the state. Level of provision of these rights reflects not only the level of economic and social development, but also the relation between the state and the citizen based on the cross liability and recognition of the principle of solidarity. Degree in which the principles of responsibility and solidarity find the reflection in legal order of the state determines also social nature of the state. Value which acquires the principle of solidarity depends on the level of moral assessment of coexistence in society, on culture of society, and also on personal perception of sense of justice, and feeling of unity with others and separations of destiny with them in certain time and the place.

27. The benefits provided within system of social insurance result from the government budget, and responsibility for these benefits lies fully on the state. As this responsibility is conferred on the state, it shall have opportunity to establish special conditions for provision of these benefits. In this sense the state cannot allow irresponsibility to be the debtor not capable to fulfill the undertaken obligations. However these circumstances cannot affect existence the social rights or, as a result, interfere with their implementation. In case of observance of these limits the legislator uses quite broad freedom of discretion when fixing regulations about realization of the individual social rights, including possibility of their review. At the same time the system of social insurance in the field of maintenance of health cannot be applied for the purpose of covering of central government budget deficit.

2. Assignment of burden of the first day of temporary disability on the worker

28. In the field of social insurance of workers, from introduced in Art. 4 of the p. (2) to the item and) the law of changes follows that workers actually have the right to receive benefit, only if disability remains more than one day. So, in case of disease benefits are provided only since second calendar day of temporary disability, in counterbalance with the previous regulations granting this right from the first day.

29. The constitutional court notes that Art. 47 of the h. (2) Constitutions are guaranteed to citizens by right to social insurance in case of disease. At the same time part (1) this Article provides that 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.

30. As for special constitutional provisions, the Constitutional court concludes that the Constitution, thus, granted to the legislator the right not only to exercise this constitutional right and to determine the corresponding conditions, but also differentiated the constitutional context for the purpose of implementation of this right, using syntagmas of "worthy living standards", "health, potrebny for maintenance, and welfare him and his family, including food, clothes, the dwelling, medical care and necessary social servicing". Considering that the Supreme law does not open content of these syntagmas, it is obvious that their differentiation, and also fixing of additional details belong to the sphere of legislative regulation.

31. According to the Constitutional court, cancellation of provision of benefit of social insurance for the first day of temporary disability in case of disease conflicts to provisions of Art. 47 of the Constitution, in particular to the right to the corresponding material security in the period of temporary disability. New edition of Art. 4 of the h. (2) the item and) the law deprives of the worker of the right to benefit of social insurance for the first day of the temporary disability caused by general disease or accident, not work-related. The constitutional court considers that the state, proceeding from potential abuses (according to opinion of the parties in process), unreasonably authorizes other workers who incapacitated owing to general disease or accident, not work-related. The fact that the prevailing most of workers remains out-of-pocket in the first day of temporary disability though the obligation on contribution payment of social insurance remains is result. The constitutional court considers inadmissible to demand for the state from workers of accomplishment of any obligation (in this case contribution payment of social insurance) and at the same time to neglect protection of interests of these persons suffering from the circumstances which are not depending on their will which result in disability and which are subject to insurance by contribution payment of social insurance.

32. The constitutional court notes that the disease is insurance risk and its availability shall be proved properly (by the medical conclusion). In this context the Constitutional court emphasizes that the state to exclude abuses, has mechanisms on supervision of procedure for issue of health certificates, and also of observance by insured persons of the mode of medical leaves, instead of, to assign to the conscientious workers constituting the majority, effects of absence or inefficiency of these mechanisms.

33. Thus, the Constitutional court considers that cancellation of provision of benefits of social insurance in case of disease for the first day of temporary disability affects essence of the right of workers to the corresponding material security in the period of temporary disability, than Art. 4 of the h. (2) the item and) the law conflicts to provisions of Art. 47 of the Constitution.

3. Assignment of burden of three days of temporary disability on the employer

34. The challenged provisions of Art. 4 of the h. (2) the item b) the law assign payment of three days of temporary disability of the worker to the employer.

35. The constitutional court notes that the right to social insurance guaranteed to Art. 47 of the Constitution assumes possibility of insured person to receive temporary disability benefit for the period when the insurance risk causes it damage therefore the protection established by this constitutional regulation is not applicable to the employer. Also this regulation does not limit the right of the state to regulate participation of the employer in allowance payment of social insurance.

36. Thus, the Constitutional court considers that the made changes do not affect the constitutional regulations as do not contain anything unconstitutional in the part concerning additional participation of the employer in case of approach of temporary disability of his worker.

37. In the light of ascertainings concerning Art. 4 of the law the Constitutional court does not consider necessary to consider separately constitutionality of Art. 9 of the h. (1) the law which contains the reference to the specified provisions.

II. Expected violation of Art. 47 in combination to Art. 16 of the Constitution

38. The author of the address considers that provisions of Art. 4 of the h. (3) the law violate Art. 47 and Art. 16 of the Constitution establishing the principle of equality of citizens before the law and the authorities.

A. Arguments of the author of the address

39. The author of the address believes that the challenged provisions are discrimination as, despite identical participation of insured persons in the budget of the national social insurance, in the attitude towards them different approaches by provision of social benefits, depending on the circumstance which entailed temporary disability are allowed:

- general disease or accident, not work-related: payment from means of the government budget of social insurance is made since fifth calendar day of temporary disability, the first calendar day is charged to insured person and three days are paid from means of the employer;

- tuberculosis, AIDS, cancer of any kind or emergence of threat of termination of pregnancy, and also in case of the expectant mothers staying on the registry in sanitary medical institutions, allowance payment is performed completely at the expense of means of the government budget of social insurance.

B. Arguments of the authorities

40. According to the authorities, the disputed regulations do not establish discrimination, and fix more active intervention of the state concerning vulnerable segments of the population or in situations with the increased social risk when expenses on recovery of health are completely covered from means of the state.

C. Assessment of the Constitutional court

41. The constitutional court confirms earlier drawn conclusions (The resolution No. 16 of June 12, 2007, etc.) according to which the sense of Art. 16 of the Constitution fixing equality of citizens consists that all citizens of the Republic of Moldova have the equal rights, fundamental freedoms and obligations which implementation the state guarantees without discrimination, however this Article allows to apply different approach when there are objective and reasonable grounds.

42. In this context the Constitutional court accepts arguments of the authorities that regulation of Art. 4 of the h. (3) the law responsibility of the state in case of assignment on itself all expenses concerning vulnerable segments of the population in case of disease determines that it cannot be regarded as contradiction to the constitutional regulations.

III. Expected violation of Art. 46 in combination to Art. 54 of the Constitution

43. According to the author of the address, the challenged provisions of Art. 4 of the h. (2) item and) and page 13 of the h. (1) items c) of the law assume reducing the income of person and violate the property right affirmed in Art. 46 of the Constitution, according to which:

"(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".

A. Arguments of the author of the address

44. The author of the address believes that the challenged provisions which cancel the right of insured person to receive benefit for the first calendar day of temporary disability (Art. 4 of the h. (2) the item and) the law) from 100 to 90% on temporary disability in the presence of insurance years of service over 8 years also reduce the size of monthly allowance (Art. 13 of the h. (1) the item c) of the law), the income of insured persons reduces and by that affects their property right.

B. Arguments of the authorities

45. According to the authorities, the affected rights do not represent property, in sense of Art. 46 of the Constitution and Art. 1 of the Additional protocol to the European convention on human rights protection and fundamental freedoms.

C. Assessment of the Constitutional court

46. The constitutional court confirms the conclusion that the Supreme law does not guarantee certain size of social benefit and that in the field of the social rights the legislator uses rather broad freedom of discretion for fixing of regulations about realization of the individual social rights, including possibility of their review.

47. On the other hand, the Constitutional court accepts arguments of the authorities that the regulations on reducing the size of temporary disability benefit pursue establishment of justice concerning temporarily disabled workers and busy workers who pay the income tax and other fees of social insurance while temporary disability benefits are not assessed with tax from the earnings.

48. In this context the Constitutional court notes that persons who fall under action of the challenged provisions do not lose completely benefit of social insurance, and will only incur decrease in the size of this benefit, and not as a result of change of the provision and as result of legislative amendments. Therefore, the challenged provisions have the effect no abolition of these rights.

49. The constitutional court notes also that within circumstances of this case it is reducing does not mention subsistence of persons and does not establish excessive or disproportionate burden.

50. The constitutional court emphasizes that though there is no doubt that in the field of the social rights the Constitution obliges the state to take effective measures for the purpose of their protection, in fact, the obligation of the state consists in providing to owners of these rights the minimum standard of social protection, but not the desirable living standards, according to their expectations as it is often groundless are necessary.

51. According to the Constitutional court, despite certain restriction in the field of social protection in case of temporary disability, this restriction does not reach such degree to be in contradiction with the constitutional regulations, and does not affect essence the rights.

Owing to stated, based on Art. 140 of the Constitution, Art. 26 of the Law on the Constitutional court, the Art. 6, the Art. 61, Art. 62 of the item and) and Art. 68 of the Code of the constitutional jurisdiction

Constitutional court

decides:

1. Recognize constitutional provisions of Art. 4 of the h. (2) 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 Law No. 3 of January 15, 2012 and, respectively, the Law No. 56 of June 9, 2011.

2. Recognize unconstitutional provisions of Art. 4 of the h. (2) the item and) the Law No. 289-XV of July 22, 2004 on temporary disability benefits and other benefits of social insurance in edition of the Law No. 56 of June 9, 2011.

3. This resolution is final, is not subject to appeal, becomes effective from the date of acceptance and is published in "Monitorul Oficial al Republicii Moldova".

Representation

The resolution No. 5 of April 10, 2012 the Constitutional court recognized unconstitutional provisions of Art. 4 of the h. (2) the item and) the Law No. 289-XV of July 22, 2004 on temporary disability benefits and other benefits of social insurance, in edition of the Law No. 56 of June 9, 2011.

The constitutional court noted that cancellation of provision of social benefit for the first day of the temporary disability caused by general disease or accident, not work-related affects essence of the right of workers to the corresponding material security, than Art. 4 of the h. (2) the item and) the law conflicts to provisions of Art. 47 of the Constitution.

In this context the Constitutional court notes that owing to the fact that these provisions of the law are recognized as unconstitutional, there was legislative vacuum concerning source of financing of the first calendar day of temporary disability of the worker as, according to relevant provisions which the Constitutional court recognized constitutional the second, third and fourth calendar days of temporary disability are paid to the worker from means of the employer and only since fifth day the benefit from means of the government budget of social insurance is paid (Art. 4 of the h. (2) item b) and c).

In the light of stated, based on Art. 79 of the Code of the constitutional jurisdiction the Constitutional court considers necessary permission of these questions Parliament.

In this sense the Constitutional court asks Parliament to consider, according to provisions of Art. 28-1 of the Law on the Constitutional court, this representation and to report about results of its consideration in three-months time.

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