No Complaint Was Inadmissible. 18/2015 On The Control Of The Constitutionality Of Some Provisions Of Section 3 Of Government Decision No. 863 Of 1 August 2006, Pt. 16 Of The Government Decision No. 650 Of 12 June 2006, Pt. 10 Of The Regulation On

Original Language Title: de inadmisibilitate a sesizării nr. 18a/2015 privind controlul constituționalității unor prevederi din pct.3 din Hotărârea Guvernului nr. 863 din 1 august 2006, pct. 16 din Hotărârea Guvernului nr. 650 din 12 iunie 2006 și pct. 10 din Regulamentul cu priv

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No complaint was inadmissible. 18/2015 on the control
constitutionality of some provisions of section 3 of Government Decision no. 863 of 1 August 2006
section. 16 of the Government Decision no. 650 of 12 June 2006 and section.
10 of the Regulation on the provision of financial information and
security officers, approved by Government Decision no.
253 of April 20, 2012 (salary increase for state secrets and material aid)


Posted: 11/12/2015
in the Official Gazette

Nr. 332-339
Article No. 35
Effective Date: 02/06/2015

Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, judges
with Ms Ludmila Chihai Registrar,
Considering the complaint filed on 15 April 2015
recorded on the same date
preliminary Examining the complaint said,
Considering documents and materials, deliberated on 2 June
2015 closed hearing

Delivers the following decision:


THE FACTS 1. 15 April 2015 Mr Artur Reshetnikov MPs and Igor Weather addressed the Constitutional Court complaint, requesting review the constitutionality of some provisions of section 3 of the Government Decision no. 863 of 1 August 2006 on the establishment of the pay rise function permanent access to state secrets, pt. 16 of the Government Decision no. 650 of 12 June 2006 on the remuneration of the military, troop and command staff employed in the service of national defense, state security and public order and pt. 10 paragraph two of the Regulation on financial provision of intelligence officers and security approved by Government decision no. 253 of 20 April 2012 on ensuring financial security and intelligence officers.
A.
Two grounds for referral. The grounds for referral, as was exposed by its authors, may be summarized as follows.
March. Government Decision no. 863 of 1 August 2006 to grant the pay rise sets of officials having access to state secrets. Point 3 of the judgment provides that the increase is not granted the military, troop and command staff employed in the service of national defense, state security and public order.
4. The provisions of section. 16 of Government Decision no. 650 of 12 June 2006 on the remuneration of the military, troop and command staff employed in the service of national defense, state security and public order establish that the calculation of the aid material does not include benefits, including monthly benefit the overall work on the drive, and emoluments compensation unique character.
May. According pt. 10 paragraph two of Regulation on ensuring financial security and intelligence officers, approved by Government Decision no. 253 of 20 April 2012 on ensuring financial security and intelligence officers in the calculation of allowances not included material aid, including monthly benefit the overall work of the unit and other financial compensation unique character.
June. The authors of the referral considers that the contested provisions relating to the determination of wages supplements for state secret material aid and who pays the military, troop and command staff employed by national defense, state security and public order, contrary to Articles 1 para. (3), 4, 7, 16, 43 paragraph. (1), paragraph 46. (1), 47 and 54 of the Constitution.
B.
Relevant legislation in July. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 1Statul Moldova


"[...]
(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 16 Equality


"(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.
[...] "

Article 46 right to private property and its protection

"(1) The right to private property and state bonds guaranteed.
[...] "

Article 47 Right to social assistance and protection

"(1) The State shall take measures to ensure that every person has a decent standard of living, to adequate for the health and well-being, him and his family, including food, clothing, housing and medical care and necessary social services.
(2) Citizens have the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood, in circumstances beyond their control. "

Article 54Restrângerea exercise 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. "
Article 102 Acts of the Government


"(1) The Government shall adopt decisions, ordinances and provisions.
(2) Decisions shall be adopted for the application of laws.
(3) Ordinances shall be issued under Article 106/2.
(4) Decisions and ordinances adopted by the Government are signed by the Prime Minister, countersigned by the Ministers who are bound to carry them into execution and published in the Official Gazette of the Republic of Moldova. Publicity entails the existence of a decision or order.
(5) Directives are issued by the Prime Minister for the internal organization of the Government. "
August. The relevant provisions of No.245-XVI of 27 November 2008 on State Secret (MO, 2009, no. 45-46, art. 123) are:
Article 1 Getting


"In this law the following definitions shall apply:
[...]
right of access to state secret - the individual right of access to state secrets, and the legal person - Working with using information defined as state secret, concluded appropriately;
[...]
State secret - information protected by state national defense, economy, science and technology, foreign relations, state security, ensuring the rule of law and of public authorities, the unauthorized disclosure or loss is likely to harm the interests and / or security of the Republic of Moldova. "
Article

31Compensaţiile granted to citizens in connection with the execution of works related to access to state secrets

"(1) Where, by virtue of his business, the citizen is always working with state secret information assigned, he or she establishes a wage depending on the degree of secrecy of information to which it has access.
(2) Employees of subdivisions protection of information defined as state secret, in addition to the increase referred to in para. (1), they rise in wages for seniority (in service) in these subdivisions.
(3) sizes and the application of increases in para. (1) and (2) and other types of compensation to citizens working in conditions of secrecy shall be determined by the Government. "
9 . The relevant provisions of Law No 355-XVI of 23 December 2005 on the salary system in the budgetary sector (OJ 2006, no. 35-38, 148) are:

"Art.6 - (1) Persons holding public positions (except those with the status of magistrate) have, for work performed in accordance with applicable law, a monthly salary determined in accordance with Annexes No. 2 and 3 that is their only form of remuneration.
[...]
(3) state secrecy in relation to facts, information or documents which they receive in office, persons holding public positions (except those with the status of magistrate) benefit a monthly bonus amounting to 20% of monthly salary. The specific size of the bonus is determined by the Government. "
" Art.21 - (1) soldiers, intelligence officers and security officials of the Centre National Anti troops, body control and employees in service of national defense, state security public order and receive bonuses to base salary:
a) military rank (special);
B) seniority;
C) category of qualification;
D) special conditions of work, work intensity, and to meet the emergency, the special tasks of major importance;
F) other allowances pertaining to the specific activity of some special categories of personnel agencies indicated.
[...]
(5) Other increases in base salaries and supplements pertaining to the specific activity of some special categories of personnel is provided in specified organs, conditions and amount established by government decision. "
" Art.22 - (1) the overall work of the unit they are employees, officers, troops, body control and contract employees receive monthly allowance of up to 0.5 monthly salaries, calculated taking into account the bonuses and supplements in accordance with regulations set force, except for military grade gain (special), gain scientific degree and honorary, allowances and other emoluments compensation unique character. The allowance is paid in the month following the reporting period.
[...]
(4) Employees of the bodies indicated in Article 19 para. (1) specified in Annex No. 7, military units military troops, police units and troops, and the command staff of subdivisions police, penitentiary system, body NCO and officer corps of border police, staff non-commissioned officers of the Intelligence and Security, security services militarized, rescuers and firefighters and employees of all the Centre National Anti be granted material aid in the amount of the monthly basic salary, calculated taking into account the benefits and supplements. "
" Art.29 - (1) salaried staff budget units under the single tariff network benefit from increases to base salary: | || [...]
(11) for keeping the secrecy of the facts, information or documents in office acquaint staff budget units (civilian employees) receive a monthly allowance amounting to 10 % of basic salary. Categories of staff benefiting from this increase and the percentage concrete amount thereof shall be determined by the Government. "
" Art.31 - Other allowances and supplements stimulating character and compensation related to the specific working conditions in different branches or fields in the budgetary sector are established in the manner and amount provided by applicable law and subject to the conditions set by the Government pay for these branches. "
10. The relevant provisions of Law No. 317-XV of 18 July 2003 on the normative acts of the Government and other authorities of central and local government (OJ 2003, no. 208-210, art. 783) are:
Article 11Actele Government normative


"(1) To exercise constitutional powers and those arising from the Law on the Government to carry out the laws, the Government adopts decisions and ordinances.
[...] "
11. The relevant provisions of Government Decision no. 863 of 1 August 2006 on the establishment of the pay rise function permanent access to state secrets (OJ 2006, no. 126-130, art. 917) are the following:

"For enforcement of Article 6 para. (3) and Article 29 paragraph. (11) of Law No 355-XVI of 23 December 2005 on the salary system in the budgetary sector (Official Gazette of the Republic of Moldova 2006, nr.35-38, 148), as amended and supplemented, and in accordance with the Law no.245-XVI of 27 November 2008 on State secret (Official Gazette of the Republic of Moldova, 2009, no .45-46, Article 123), as amended and supplemented, the Government [...] "
[...]
" 1. For keeping the secrecy of the facts, information or documents peruse while on duty, staff units with financial autonomy, regardless of the type of property and juridical organization, receive a bonus of up to 10% basic salary and budget units staff (civilian employees), including professionals cabinet with public positions, receiving a monthly allowance amounting to 10% of the salary. "
[...] || | "3. The allowance provided in this judgment is not granted the military, troop and command staff employed in the service of national defense, state security and public order. "
12. The relevant provisions of Government Decision no. 650 of 12 June 2006 on the remuneration of the military, troop and command staff employed in the service of national defense, state security and public order (MO, 2006 nr.91-94, art.692) are:
" 16. Military personnel, troop and command staff employed in the service of national defense, state security and public order, and the Center's National Anti-Corruption and directions of territorial shall receive material aid in the amount of a monthly salary depending calculated taking into allowances and other additional consideration, determined in accordance with regulations in force. The calculation does not include material assistance benefits, including monthly benefit the overall work of the unit and other financial compensation unique character listed in this judgment.
[...] "
" 17. Bonuses, supplements and allowances listed above shall be determined in accordance with Regulation on the manner of determining and calculating the bonuses, payments and allowances of the military, troop and command staff, developed by the Ministry of Defense, Ministry of Interior, Police Department Border Protection and Guard Service State Penitentiary Department, National Anti-Corruption Center, State Service of Special Courier. "
13. The relevant provisions of the Regulation on ensuring financial security and intelligence officers, approved by Government Decision no. 253 of 20 April 2012 on ensuring financial security and intelligence officers (OJ 2012, no. 85-87, art. 295), are:
. "10 Security and intelligence officers are given material aid according to the size of a salary, calculated taking into account bonuses and additional payments, determined in accordance with regulations in force.
The calculation does not include material assistance benefits, including monthly benefit the overall work of the unit and other financial compensation unique character, listed above and in Annex No. 14 of the Government Decision nr.650 June 12, 2006 "on salaries of military personnel, troop and command staff employed in the service of national defense, state security and public order."
a
tHE LAW. Arguments authors referral
14. According to the authors of the referral, pt. 3 of the Government Decision no. 863 of 1 August 2006, which prohibits the granting of allowances for permanent access to state secret military personnel, troop and command staff employed by national defense, state security and public order is established in contradiction with the law, without taking into account the constitutional principle of equality, having quality time primary.

15. However, according to the authors of the referral, sub. 16 of Government Decision no. 650 of 12 June 2006 on the remuneration of the military, troop and command staff employed in the service of national defense, state security and public order and pt. 10 paragraph two of the Regulation on financial provision of intelligence officers and security approved by Government decision no. 253 of 20 April 2012 on ensuring financial security and intelligence officers, significantly reduces the amount of material aid enjoyed by persons concerned in the decisions of the Government mentioned. As stated in those rules is excluded from the calculation of material aid monthly benefit the overall work of the unit, which is an essential monthly salary amount.
B. The Court's assessment
16. Examining the notification in terms of admissibility, the Court notes the following.
17. The Constitutional Court exercises jurisdiction constitutional referral subjects specified in Article 25 of the Law on Constitutional Court and Article 38 of the Constitutional Jurisdiction Code.
18. Under the law, MPs are subjects entitled to notify the Constitutional Court.
19. Similarly, Article 135 para. (1) a) of the Constitution, Article 4 para. (1) a) of the Law on Constitutional Court and Article 4 para. (1) a) the Constitutional Jurisdiction Code empowers the court of constitutional jurisdiction with power to review the constitutionality of government decisions.
20. The Court notes that the power conferred upon it by that Article 135 para. (1) a) of the Constitution requires the correlation between the contested rules and the Constitution, taking into account the principle of supremacy it.
21. The Court notes that, in this instance, notification is to review the constitutionality pt. 3 of the Government Decision no. 863 of 1 August 2006, pt. 16, the second sentence of Government Decision no. 650 of 12 June 2006, pt. 10, paragraph two of Regulation on ensuring financial security and intelligence officers, approved by Government Decision no. 253 of 20 April 2012.
22. The Court finds that the subject of the referral relates to two issues that were targeting military troops, and body control, service employees in national defense, state security and public order, namely: 1) lack of wages supplements for secret access State and 2) not including monthly allowance in the calculation of the aid material.
23. The Court notes that the authors complaint alleged breach by the contested rules, Articles 1 para. (3), 4, 7, 16, 43 paragraph. (1), paragraph 46. (1), 47 and 54 of the Constitution.
24. Thus, with reference to the use of Articles 1 and 7 of the Constitution, the Court holds that the constitutional act generic, is imperative general-binding behind any legislation or constitute separate and individual landmarks.
25. Meanwhile, the constitutional rules contained in Articles 4, 4:54 p.m. no independent significance and be applied in combination with the constitutional rules that guarantee a fundamental right.
26. Similarly, the Court notes that the authors have reasoned notification within constitutional norms of Articles 46 and 47 of the contested provisions.
27. As regards invoking Article 43 of the Constitution, in the absence of conclusive arguments that indicate how to violate the constitutional norm by the contested provisions, the Court finds as follows.
28. According to art. 72 para. (3) of the Constitution, Parliament adopts the organic law governing the general regime labor relations, trade unions and social.
29. In order to ensure the material conditions necessary for the effective exercise of powers by employees of establishments budgetary consolidation potential and raising professionalism by rewarding appropriate professional performances, on 23 December 2005 Parliament adopted Law No 355-XVI on salary system in sector.
30. Law on salary system in the public sector regulates the conditions of pay and the basic wages of the public authorities, institutions and organizations financed from the national budget.

31. Thus, the legislature, by Law No 355-XVI of 23 December 2005, established both wages and bonuses, supplements, allowances and quantity (amount) of material aid benefiting soldiers, intelligence officers and security officials of the Centre National Anticorruption , troops, body control and employees in service of national defense, state security and public order.
32. Article 21 of the Law on salary system in the budgetary sector enumerated the bonuses and supplements that benefit the military, intelligence officers and security officials of the Centre National Anti troops, and body control service employees in national defense, state security and public order. And para. (5) of article states that set bonuses and other supplements to basic salaries, related to the specific activity of special categories of personnel agencies indicated, is provided in the conditions and amount established by government decision.
33. In this regard, the Court notes that the legislature did not expressly established the right of employees mentioned above to receive extra pay for access to state secrets.
34. However, according to art. 6 paragraph (3) of the Law on salary system in the public sector, for keeping the secrecy of the facts, information or documents which they receive in office, persons holding public positions (except with status of magistrate) receive a monthly bonus amounting to 20% of monthly salary. The specific size of the bonus is determined by the Government.
35. Same provisions of article 29 par. (11) invoked the law established that for keeping the secrecy of the facts, information or documents in office acquaint staff budget units (civilian employees) receive a monthly increase amounting to 10% of basic salary. Categories of staff benefiting from this increase and the percentage concrete amount thereof shall be determined by the Government.
36. The Court notes that the purpose of enforcing Article 6 para. (3) and Article 29 paragraph. (11) of Law No 355-XVI of 23 December 2005 on the salary system in the public sector, the government on August 1 2006 adopted Decision nr.863 on setting the pay rise function permanent access to state secrets.
37. Also, under Article 22 para. (4) of the Law on salary system in the public sector, military units military troops, police units and troops, and the command staff of subdivisions police, penitentiary system, body NCO and officer corps of border police, staff non-commissioned officers of the Intelligence and Security, security services militarized, rescuers and firefighters and employees of all the Centre National Anticorruption are given material aid in the amount of a monthly salary base calculated taking into account the benefits and supplements.
38. In order to enforce the law, the Government Decision no. 650 of 12 June 2006 and No. 253 of 20 April 2012 which determined that the calculation does not include material assistance benefits, including monthly benefit the overall work of the unit and other financial compensation unique character.
39. The Court notes that according to Article 22 para. (1) of the Law on salary system in the public sector, military, troops, body control and contract employees receive monthly allowance, which is calculated taking into account the bonuses and supplements determined in accordance with regulations in force.
40. At the same time, the Court points out that, in accordance with Article 22 para. (4) laid down the law, the Government has determined that bonuses and other additional payments will take into account in determining the material aid for that category of employees.
41. The Court notes that, by its nature, material aid is a financial incentive to the basic salary, which the legislature has full constitutional legitimacy of the grant of public funds, according to the budgetary revenue it produces state, he has no, but, character of fundamental rights, but the rights of additional salary.

42. In Case No. 30 of December 11, 2014 the Court pointed out that, under Article 43 of the Constitution, the state is obliged to provide all employees a minimum wage, so the salary is a fundamental right protected. Supplements to wages are not fundamental rights, but additional salary rights.
43. Similarly, the Court stated in its judgment noted that the legislature has power to grant civil bonuses, incentives, awards to the basic salary. The legislature is entitled, however, to differentiate increases in the categories of personnel, can change in different periods of time, may suspend or even cancel.
44. Also, the European Court held that the State is able to determine what benefits its employees be paid from the state budget. State may order placing, suspending or terminating payment of such benefits through appropriate legislative changes (Case Kechko vs. Ukraine of 8 February 2006, §23).
45. The Court notes that the creation and reduce bonuses, granting them a certain period of time, their alteration or termination of the grant, establishing categories of staff remunerated eligible for these benefits, as well as other conditions and criteria for granting vested exclusive legislature.
46. Thus, the nature bonus for state secrets and material aid, it appears that bonuses, awards and other incentives granted to employees by laws represent additional salary rights, but not fundamental rights recognized and guaranteed by the Constitution. So we can not talk about fundamental rights when advertising bonus for failure to state secret or not including allowances in the calculation of material aid, so it is not incident Article 43 of the Constitution, which guarantees the right to salary.
47. Thus, under the above, the Court finds that the complaint does not meet the conditions of admissibility for the constitutionality and can not be accepted for examination.
For these reasons, in accordance with Articles 26 para. (1) 31 of the Law on Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional Court Constitutional

DECIDED:

1. Declare inadmissible complaints concerning the constitutionality of certain provisions of control:
- point 3 of Government Decision no. 863 of 1 August 2006 on the establishment of the pay rise function permanent access to state secret;
- Pt. 16 of the Government Decision no. 650 of 12 June 2006 on the remuneration of the military, troop and command staff employed in the service of national defense, state security and public order;
- Pt. 10 paragraph two of Regulation on ensuring financial security and intelligence officers, approved by Government Decision no. 253 of 20 April 2012 on ensuring financial security and intelligence officers.
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.