RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of November 1, 2012 No. 12

About control of constitutionality of some provisions of Art. 32 of the h. (4) the item j) the Law No. 162-XVI of July 22, 2005 on the status of the military personnel (the Address No. 12a/2012)

Name of the Republic of Moldova

Constitutional court in structure:

To Alexander TENASE, chairman, judge-speaker,

To Dumitr PULBERE,

Victor PUSKAS,

Petra RAJLJAN,

Elena SAFALERU,

Valeria SHTERBETS, judges,

with the assistance of Lyudmila Kikhay, court session secretary,

in view of the address provided and registered on June 6, 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 of the parliamentary lawyer Tudor Lazer provided on June 6, 2012 based on Art. 135 of the h formed the basis for consideration of the case. (1) item a) Constitutions, Art. 25 of the item i) Law on the Constitutional court and Art. 38 of the h. (1) the item i) the Code of the constitutional jurisdiction, about control of constitutionality of provisions of Art. 32 of the h. (4) the item j) the Law No. 162-XVI of July 22, 2005 on the status of the military personnel.

2. The author of the address considers, in particular, that the disputed regulation, providing only category "female serviceman", establishes discrimination on the basis of floor, but without setting off child care leave in the calendar time of military service, infringes at the right of person to the free choice of work and by that violates the Art. 16, of 18, of 43, 48 and 49 Constitutions.

3. Determination of the Constitutional court of July 10, 2012 without decision in essence the address was acknowledged acceptable.

4. In the open plenary session of court the author expanded subject of the address, having requested to recognize unconstitutional regulations of the Regulations on procedure for the execution of military service in Armed forces approved by the Order of the Government No. 941 of August 17, 2006 which reproduce the disputed provisions of the law.

5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, Ministry of Justice, Ministry of Labour, Social Protection and Family and Ministry of Defence.

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 deputy minister of justice Vladimir to Gross and the deputy chief of legal management of the Ministry of Defence Viorel Remishovski.

APPLICABLE LEGISLATION

1. National legal system

7. Applicable provisions of the Constitution (M.O. No. 1/1, 1994 of):

Article 4 of the Human right and freedom

"(1) the Constitutional regulations on 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."

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 48 Family

"(1) the Family is natural and main cell of society and has right of defense from society and the state.

(2) the Family is based on the scrap concluded by mutual consent of the man and woman on their equality and on the right and obligation of parents to raise, bring up and train children. [...]"

Article 49 Protection of Family and Orphan Children

"(1) the State economic and other measures promotes formation of family and accomplishment of the functions by it.

(2) the State patronizes motherhood, the childhood and youth and promotes development of the relevant organizations. [...]"

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 Labor code No. 154-XV of March 28, 2003 (M.O. No. 159-162/648, 2003 of):

The article 124 Maternity leave and partially paid leave on child care

"(1) the Working women and women with whom the employer signs the student's agreement and also to the wives of workers who are at them on content are granted the maternity leave including prenatal leave lasting 70 calendar days and postnatal leave lasting 56 calendar days (in case of the complicated childbirth or the birth of two or more detey70 calendar days), with payment of benefits to them according to the procedure, established in part (2) Article 123.

(2) to Persons specified in part (1), after maternity leave partially paid leave on child care before achievement of age by it with allowance payment from budget funds of the national social insurance is provided three years according to their written application.

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