Inadmissibility Of Referral No. 55G/2016 Regarding Constitutionality Exception To Article 20, Item 7) Of Law No. 1036 From 17 December 1996 With Regard To The Penitentiary System (Firing Collaborator Penitentiary System)

Original Language Title: de inadmisibilitate a sesizării nr. 55g/2016 privind excepția de neconstituționalitate a articolului 20 pct. 7) din Legea nr. 1036 din  17 decembrie 1996 cu privire la sistemul penitenciar (concedierea colaboratorului sistemului penitenciar)

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=366206

    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mrs. Eugenia Mîța, Registrar, considering the appeal filed on May 4, 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 8 July 2016 in the Chamber Council Pronounce the following decision : in fact 1. The origin of the case lies the plea of unconstitutionality of article 20, item 7) of law No. 1036 from 17 December 1996 with regard to the prison system, raised by the lawyer in the Ion Nichita No.2-261/16 pending in Buiucani, mun. Chişinău.
2. The appeal was lodged with the Constitutional Court on May 4, 2016 by Judge Victor Boyko within of the Buiucani, mun. Chişinău, pursuant to article 135 paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016.
A. the circumstances of the case 3. On 27 February 2015, under an order of the Minister of Justice, Andrei T was dismissed pursuant to § 24 para. (1) (a). g) of law No. 1036 from 17 December 1996 with regard to the prison system.
4. On 24 March 2015, Andrei T filed at Buiucani, mun. Chişinău, a claim in court against the Ministry of Justice concerning the restitution of the sums of money paid in salary for the period of absence and the material and moral damage.
5. During the meeting of the Court of 13 October 2015, his lawyer, Andy has called for the lifting of non-constitutionality exception to article 20, item 7) of law No. 1036 from 17 December 1996 and the Constitutional Court referral, transmission through the Supreme Court of Justice.
6. by the conclusion of 19 November 2015, the Court has ordered the sending of referral to the Supreme Court of Justice. On February 22, 2016, the Supreme Court returned the dossier, in the context of the judgment of the Constitutional Court No. 2 of 9 February 2016. As a result, on May 4, 2016, the plea of unconstitutionality concerning the referral of article 20, item 7) of law No. 1036 from 17 December 1996 was submitted to the Constitutional Court by the Buiucani.
B. relevant Legislation 7. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 20Accesul to justice "(1) Any person shall be entitled to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.
(2) no law may restrict the access to justice. "


Article 21Prezumţia of innocence "any person charged with an offence is presumed innocent until his guilt is going to be proven legally, during a public trial in which he was assured all the guarantees necessary for his defence."


Article 23Dreptul of everybody to know your rights and duties "(1) every person has the right to recognize legal personality.
(2) the State ensures the right of everybody to know their rights and duties. For this purpose the State publishes and makes accessible all laws and other regulations. "


Article 26Dreptul of the defence "(1) the right of defence is guaranteed.
(2) everyone has the right to respond independently by appropriate legitimate means to an infringement of his rights and freedoms.
(3) throughout the trial the parties have the right to be assisted by a lawyer, either chosen or appointed ex officio.
(4) any interference with the activity of those carrying out the defence within legally established confines shall be punished by law. "


Article 46Dreptul to private property and its protection "(1) the right to private property, as well as loans and advances to the State are guaranteed.
(2) no one may be expropriated for reasons dictated by public necessity, as established by law and in advance.
(3) no assets legally acquired may be confiscated. The character of the assets of the acquisition shall be presumed.
(4) goods intended for, used or resulted from crimes times offence may be confiscated only in accordance with the law.
(5) the right of private property for the protection of the environment and the maintenance of good neighbourly relations, as well as other tasks which, according to the law.
(6) the right to inherit private property is guaranteed. "


Article 54Restrângerea the exercise of certain rights or freedoms "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "


Article 114Înfăptuirea justice "Justice shall be administered solely by the name of the law courts."
8. The relevant provisions of law No. 1036 from 17 December 1996 with regard to the penitentiary system (republished in M.O. 2008, nr. 183-185, art. 654) are as follows: Article 20 (18/4) dismissal of employees of the penitentiary system "Was the prison system may resign or be fired to the leadership initiative: [...]
7) for misconduct-in case of failure to comply with obligations, committed repeatedly within one year after the application of disciplinary sanction for a violation similar to; systematic committing of such facts; committing one grave acts that harmed public interests considerably, rights and legitimate interests of citizens of the time of legal persons; presentation at work drunk or consumption of alcoholic beverages, narcotic substances toxic during service or absence from work without valid reason for more than four hours;
[...]”


Article 24 (20/2) reprimanding the employees of the penitentiary system "(1) employees of the penitentiary system can be applied to the following disciplinary sanctions: [...]
g) dismissal prison system.
(2) For the same misconduct cannot be applied than one disciplinary penalty.
(3) the disciplinary Sanction-dismissal from the prison system, as envisaged in article 20, item 6) and 7) of this Act, may be applied in committing serious disciplinary one.
[...]”
In the author's Arguments AS a. referral to the 9. The author claims that the reasoning of the exceptions in article 20, item 7) of law No. 1036 from 17 December 1996, which was the prison system can be fired at the initiative of the management for misconduct, contrary to articles 20, 21, 23, 26, 46, 54 and 114 of the Constitution.
10. Thus, the author argues that the exception provision of legal criticism violates the free access to justice and the right to self-defence, as guaranteed by articles 20 and 26 of the Constitution, and not in compliance with the principle of inculpability enshrined in article 21 of the Constitution. By the way, claiming that the disputed rule admits a ingerință in courts of law.
11. in addition, the author considers that the expressions "grave acts" and "considerable damage" in article 20, item 7) are General and do not ensure accessibility and foreseeability rule, being contrary to article 23 of the Constitution, and therefore allow their application portfolios in the dismissal of the prison system's collaborator.
12. In addition, the author has invoked that exception rule challenged, which constitutes the reason for the issue of duties, affect the right of the property. Or, as a last resort, the person lacks the ability to carry out a particular activity, and to benefit from the salary.
B. Assessment Of Court 13. Examining the admissibility of the referral, please note the following.
14. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws is the responsibility of the Constitutional Court.
15. the Court finds that the plea of unconstitutionality, being raised by a lawyer in the Ion Nichita No.2-261/16, is sought by the regulated subject to this law, in accordance with article 135 paragraph 1. (1) letter a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016.

16. In the present case, the Court retains the author noted that the exception in article 20, item 7) of law No. 1036 from 17 December 1996 with regard to the prison system, namely by MediaWiki "grave acts" and "considerable" damage, the provisions of articles 20, 21, 23, 26, 46, 54 and 114 of the Constitution.
17. Note that the prerogative Court was vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution requires correlation of the rules/laws, Constitution and challenged the text taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
18. In this regard, the Court points out that, according to article 24 para. (2) of the law on the Constitutional Court and article 39 of the code of constitutional jurisdiction, the appeal shall be reasoned and contain subject matter and circumstances based on their subject matter requirements.
19. Thus, the Court may not withhold criticism of the text of the law in relation to the provisions of article 20 of the Constitution concerning freedom of access to justice and article 26 of the Constitution, which guarantees the right to legal defence, whereas the text of what is subject to the exception does not prevent contributor prison system to challenge the Act under which it was fired nor forbids that, subsequently, in the context of court judgment to be assisted by a defender.
20. the Court points out that, by its wording, article generality. 20 of the Constitution allows for access to justice for the protection of any rights or liberties and any vested interest. Thus, any interested person has the right to address the Court, in the manner established by law, to defend their rights violated or contested, freedoms and legitimate interests.
21. In this connection, the Court retains that according to the existing legal framework, the Act to impose a disciplinary sanction shall not be excluded from judicial control. The referral to the party concerned, the Court is expected to rule on the legality of the sanctions applied.
22. At the same time, the Court noted that rule in article 21 of the Constitution, which guarantees the presumption nevinovăției, has no incidence in this question.
23. With reference to the Generalitat, which challenged the wording of rule establishes the dismissal for breach of discipline in the prison system, the Court points out that it will be applied as a whole with all legal provisions governing the prison system and the obligations of employees in the exercise of their duties. At the same time, section 26 of the disciplinary Status of the employees of the penitentiary system from the Ministry of Justice, approved by Government decision No. 308 of 19 March 1998, establishes that "disciplinary sanctions must be consistent with the guilt of him who has committed the violation and the gravity of the infringement committed with. The application of the death penalty, it will consider: the character, circumstances and consequences of infringements committed, the conduct of his collaborator, workmanship service. Disciplinary sanction must be fair, unbiased and will only apply after researching (finding) the facts and obtain explanations from the guilty. "
24. With regard to the violation of the right to property, the Court note that a person may claim his rights only for actual wage period in which took a certain activity. Termination of employment has as a consequence the wage payments entitlements extinction.
25. According to the case-law of the European Court of human rights, article 1 of Protocol No. 1 to the Convention does not guarantee the right to acquisition of property (see Kopecky v. Slovakia, judgment of 28 September 2004, no. 44912/98, § 34). An applicant may claim violation of art. 1 of Protocol 1. 1 only in so far as the contested decision relates to "property" within the meaning of this provision. "Property" can be a "existing", or property assets including receivables, to which the applicant alleges that he or she has at least one "legitimate" hope to obtain effective satisfaction his right of ownership. Per contrario, hope a recognition of property, which was not possible exercised effectively, cannot be considered as "property" within the meaning of article 1 of Protocol No. 1 (see Kopecky, cited above, § 34).
26. Analyzing overall constitutionality exception, the Court notes that it deals with matters pertaining to the interpretation and application of the law.
27. In the light of the above, the Court noted that the appeal is unfounded and cannot be accepted for examination.
For these reasons, pursuant to articles 26, paragraph 2. (1) and 31 of the law on the Constitutional Court, articles 61 para. (1) and (3), 64 of the code of constitutional jurisdiction and item 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal regarding plea of unconstitutionality of article 20(1), point 7 of law No. 1036 from 17 December 1996 with regard to the prison system, raised by a lawyer in the civil Ion Nichita No.2-261/16 pending in Buiucani, mun. Chişinău.
2. this decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

The PRESIDENT of the CONSTITUTIONAL COURT Alexandru Tanase