No complaint was inadmissible. 13g / 2016 regarding the exception of unconstitutionality of Articles 54
lit. e) and 56 par. (3)
Law. 320 of 27 December 2012 on police and police status
activity and point 63, letter e) of the Statute of the police disciplinary
approved by Government Decision
no. 502 of July 9, 2013
in the Official Gazette
Article No. 26
Effective Date: 16/03/2016
Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
Mr. Victor POPA, judges, with Ms Aliona Balaban
Considering the complaint filed on 29 February 2016
Registered on the same date
examined the admissibility of the referral mentioned
Considering documents and materials, deliberated on 16 March
2016 in the council chamber,
Delivers the following decision: tHE FACTS
1. The case originated notification is submitted to the Constitutional Court on 29 February 2016 by Mr. Sergiu Stratan, judge of the Central Court, mun. Chisinau, under Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of 9 February 2016 and the Regulation on the procedure for examining complaints lodged with the Constitutional Court on the unconstitutionality exception of Articles 54 lit. e) and 56 par. (3) of Law no. 320 of 27 December 2012 on police work and police status and point 63, letter e) of the Statute of the police disciplinary approved by Government Decision no. 502 of 9 July 2013, raised by Peter Buzu folder nr.3-90 / 16, before the Central Court, mun. Chişinău.
A. Reasons raising the objection of unconstitutionality
2. Reasons raising objection, as was exposed by its author, may be summarized as follows.
March. Under Article 54, letter e) of Law no. 320 of 27 December 2012 and paragraph 63 of the letter e) of Annex. 1 to Government Decision no. 502 of 9 July 2013, the disciplinary sanction of relegation according to police apply for committing disciplinary offenses, taking into account the seriousness and the degree of guilt.
4. Also, under Article 56 para. (3) of Law no. 320 of 27 December 2012 after the expiry of the disciplinary sanction of relegation in office, the policeman is not reinstated in the position held previously, but can be promoted according to general provisions.
May. According to the author exception of unconstitutionality mentioned provisions contrary to Articles 1, 4, 8, 16, 43, 44 and 54 of the Constitution, Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Articles 1, 2 and 12 of the Convention International Labour forced or compulsory labor.
relevant legislation. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 1Statul Moldova
"(1) The Republic of Moldova is a sovereign, independent, unitary and indivisible.
(2) The form of government is a republic state.
(3) Republic of Moldova is a democratic law, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values and are guaranteed. "
Article 4Drepturile and freedoms
"(1) Constitutional provisions on the rights and freedoms are interpreted and applied in accordance with the Universal Declaration of Human Rights, with the covenants and other treaties to which Moldova is party.
(2) Where any inconsistencies exist between the covenants and treaties on fundamental human rights to which Moldova is a party and its domestic laws, international regulations have priority. "
Article 8Respectarea international law and international treaties
"(1) The Republic of Moldova pledges to respect the Charter of the United Nations and the treaties to which it is party, to its relations with other states the unanimously recognized principles and norms of international law.
(2) The entry into force of an international treaty containing provisions contrary to the Constitution shall be preceded by a revision. "
"(1) to respect and protect the person is a primary duty of the state.
(2) All citizens of Moldova are equal before the law and public authorities irrespective of race, nationality, ethnic origin, language, religion, sex, political affiliation, wealth or social origin. "|| |
Article 43 Right to labor and labor protection
"(1) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
(2) Employees are entitled to labor protection. The protective measures concern safety and hygiene of work, working conditions for women and young people, establishing a minimum wage, weekends, paid annual leave, work in difficult conditions and other specific situations.
(3) The length of the working week is less than 40 hours.
(4) The right to negotiations on labor and the binding force of collective agreements shall be guaranteed. "
Article 44Interzicerea forced labor
"(1) Forced labor is prohibited.
(2) Forced labor does not:
a) military service or activities performed in lieu thereof by those who, by law, compulsory military service;
B) the work of a convicted person under normal conditions, during detention or conditional release;
C) any services required to deal with a calamity or any other danger, as well as those that are part of normal civil obligations established by law. "
Article 54 Restriction of certain rights or freedoms
"(1) In the Republic of Moldova can not adopt laws that would suppress or weaken fundamental rights and freedoms of man and citizen.
(2) The exercise of rights and freedoms can not be subjected to any restrictions other than those prescribed by law and which meet generally accepted principles of international law and are necessary in the interests of national security, territorial integrity, economic welfare, public order, to prevent mass riots and crimes, protecting the rights, freedoms and dignity of others, preventing disclosure of confidential information or guarantee the authority and impartiality of the judiciary.
(3) The provisions of paragraph (2) do not restricting the rights proclaimed in Articles 20 to 24.
(4) The restriction must be proportionate to the situation that caused it and can not touch the existence of the right or freedom. "
July. The relevant provisions of the Labour Code of the Republic of Moldova no. 154-XV of 28 March 2003 (OJ 2003, no. 159-162, art.648) are:
Article 206Sancţiuni disciplinary
"(1) For violation of labor discipline, the employer has the right to apply to an employee following disciplinary sanctions:
C) severe reprimand;
D) dismissal (on the grounds specified in Article 86 para. (1) letter g) -r).
(2) Current legislation may provide for certain categories of employees and other disciplinary action.
August. Relevant provisions of Law No. 320 of 27 December 2012 on police work and police status (OJ 2013, no. 42-47, 145) are:
Article 54Tipurile disciplinary
"Commit disciplinary offenses, depending on their severity and the degree of guilt, attract apply the following disciplinary sanctions:
C) severe reprimand;
D) relegation with a special degree;
E) reducing duties;
F) dismissal. "
Article 56Termenul validity disciplinary
"(1) Disciplinary sanctions shall be deemed extinguished after a period of one year from their date of application.
(2) As an incentive, a disciplinary sanction may be lifted sooner than 6 months from the date of application, by order of the head that he applied to the Minister of Internal Affairs or, except as provided in article 54 lit. d) -f).
(3) After expiry of the disciplinary sanction of relegation in office, the policeman is not reinstated in the position held previously, but can be promoted according to general provisions.
(4) Upon expiry of the disciplinary sanction of relegation with a special degree, police will be given special rank next, the manager assigned this law in connection with the expiration date of the disciplinary sanction. "
September. The relevant provisions of Government Decision no. 502 of 9 July 2013 on the approval of the police disciplinary status (OJ 2013, no. 146-151, art.592) are:
"63. Police officers are disciplined for committing disciplinary offenses, namely depending on their severity and the degree of guilt, apply the following disciplinary sanctions:
C) severe reprimand;
D) relegation with a special degree;
E) reducing duties;
F) dismissal. "
10. The relevant provisions of the ILO Convention on forced or compulsory labor (No. 29, adopted in Geneva on June 28, 1930 and ratified by the Parliament of Moldova nr.610-XIV of 1 October 1999) are:
"1) For the purposes of this Convention, the term forced or compulsory labor shall mean all work or service which is exacted from any person under the menace of any penalty and for which said person has not offered himself voluntarily.
2) However, the term forced or compulsory labor shall not include the purposes of this Convention:
a) any work or service which is exacted under compulsory military service laws for work of a purely military character;
B) any work or service which forms part of normal civic obligations of the citizens of a country fully independent
C) any work or service exacted from any person as a result of a conviction by a court, provided that the work or service is carried out under the supervision and control of public authorities and that the said person is not hired to or placed available to individuals, companies or private moral persons;
D) any work or service exacted in cases of force majeure, ie in case of war, disaster or threatening calamity, such as fire, flood, famine, earthquakes, epidemics and epizootic violent invasion by animal, insect or vegetable pests, and in general any circumstances that endanger or threaten to endanger life or normal living conditions of the entire population or part of the population;
E) Minor communal services in villages, that works executed in the direct interest of the community by its members, work which can therefore be considered as normal civic obligations, incumbent members of the community, provided that the population itself or its representatives direct have the right to rule on the validity of this work. "
11. The relevant provisions of the European Convention on Human Rights and Fundamental Freedoms (signed at Rome on 4 November 1950 and ratified by the Parliament of Moldova nr.1298-XIII of 24 July 1997) are:
Article 4Interzicerea slavery and forced labor
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labor.
March. It is not considered forced or compulsory labor for the purposes of this article:
a) any work required normally a person subject to detention under the terms of article 5 of this Convention or during conditional release which are in;
B) any service of a military character or, for those who refuse to perform military service for reasons of conscience, in countries where this is recognized as legitimate, another service instead of mandatory military service;
C) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
D) any work or service which forms part of normal civic obligations. "
THE LAW. Arguments author exception of unconstitutionality
12. In motivating the exception of unconstitutionality, the author argues that the sanction of relegation in office and ordered disciplined person to work permanently to another job, which he accepted it, in itself constitute forced labor.
13. Thus, according to the author of the exception, attracting forced labor by way of a disciplinary sanction contrary to Articles 43 and 44 of the Constitution and Articles 1, 2 and 12 of the ILO Convention on forced or compulsory labor.
14. It also claims that the disciplinary sanction of relegation in function is not necessary in a democratic society and constitutes an unjustified restriction on the right to work of the person being contrary to Article 54 of the Constitution.
15. Finally, the author argues that the exception contested rules infringe Articles 1, 4, 8, 16, 43, 44 and 54 of the Constitution.
B. The Court's assessment
16. Examining complaints concerning the objection of unconstitutionality in terms of admissibility, the Court finds as follows.
17. Under Article 135 para. (1) a) of the Constitution, the constitutionality of laws and government decisions, namely the Law on Police activity and police status and the Government Decision on the approval of the police disciplinary Statute, the competence of the Constitutional Court.
18. The Court notes that, being raised by Peter Buzu in case no. 3-90 / 16, which is pending before the Central Court, mun., On the plea of unconstitutionality complaint is made the subject of legally authorized, under Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of 9 February 2016
19. The Court held that the power to handle exceptions of unconstitutionality, which was vested by Article 135 para. (1) g) of the Constitution requires establishing the correlation between the laws and the Constitution, taking into account the principle of the primacy and relevance of its contested provisions for resolution of the dispute in the courts.
20. The Court notes that the object of the objection of unconstitutionality is the provisions of Articles 54 lit. e) and 56 par. (3) of Law no. 320 of 27 December 2012 on police work and police status and paragraph 63, letter e) of the Statute of the police disciplinary approved by Government Decision no. 502 of 9 July 2013.
21. The Court observes that the contested provisions provide for the sanction of relegation depending on the police and the effects of applying this disciplinary action.
22. The Court notes that the objection raised by the alleged violation of Articles 1, 4, 8, 16, 43, 44 and 54 of the Constitution.
23. The Court notes that a legal provision can only be the object of constitutional jurisdiction where the alleged constitutional rules affecting the contested rules.
24. In this regard, the Court notes that Article 24 para. (2) of the Law on Constitutional Court and Article 39 of the Constitutional Jurisdiction Code, notification must be substantiated and contain the subject and the circumstances that bases its subject requirements.
25. Analyzing the exception of unconstitutionality in relation to the arguments, the Court observes that the author of the objection claims that by applying the disciplinary sanction of relegation in office and transfer to another job violates Article 43 (right to work and labor protection) and Article 44 (Prohibition of forced) of the Constitution.
26. At the same time, the Court notes the lack of conclusive arguments in the notification that demonstrate how the legal provisions challenged violate constitutional rules invoked.
27. In its case, the Court noted that the constitutional right to work states ensure that any person able to practice or profession of their choosing, under conditions determined by the legislator.
28. The Court notes that Article 206 of the Labour Code sets out the types of disciplinary action. Also in par. (2) EC is expressly stipulated that legislation may provide for certain categories of employees and other disciplinary action.
29. The Court notes that both art. 54 lit. e) of Law no. 320 of 27 December 2012 and section. 63 lit. e) of Annex. 1 to Government Decision no. 502 of 9 July 2013, additional provisions of the Labour Code, establish disciplinary sanction of relegation in office.
30. The Court notes that Article 55 of Law no. 320 of December 27, 2012 reflected the conditions for applying disciplinary sanctions on police. At the same time, the Court notes that the legal framework does not oblige police to provide another kind of work that fall outside normal activity exercised by police.
31. In this regard, the Court notes that in Van der Mussele v. Belgium (judgment of 23 November 1983), referring to the definition of forced or compulsory labor, provided by art. (2) of the Convention on forced or compulsory labor, the European Court noted that "the work performed under a contract freely entered into, could fall under Article 4 of the Convention that only one of the contractors committed to each other in the performance of activities and that the risk of a certain penalty for non-performance. ".
32. However, the Court reiterates that the constitutional rules contained in Article 54 does not have an independent meaning and must be applied by reference to a fundamental right guaranteed by the Constitution.
33. As regards the violation of Articles 1, 4, 8, 16 of the Constitution, the Court notes that these acts constitute a generic and general-binding imperative, underlying any regulation or constitute separate and individual landmarks.
34. Under those listed above, the Court finds that, in the absence of constitutional arguments relied on rules incidence contested notification does not meet the eligibility and can not be accepted for examination.
For these reasons, pursuant to Article 26 of the Law on Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional and pt. 28 lit. d) of Regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court
1. Declare inadmissible complaints concerning the exception of unconstitutionality of provisions of Articles 54 lit. e) and 56 par. (3) of Law no. 320 of 27 December 2012 on police work and police status and paragraph 63, letter e) of the Statute of the police disciplinary approved by Government Decision no. 502 of 9 July 2013, raised by Peter Buzu folder nr.3-90 / 16, pending before the Central Court, mun. Chişinău.
2. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.
CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase