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Decision No. 2017Referitoare 15 March 6 At A Preliminary Ruling Regarding The Following Question Of Law: How To Apply The Provisions Of Article 3. 56 Para. (1) (A). F) Of Law No. 53/2003-Labour Code, Republished, With Amendments

Original Language Title: DECIZIA nr. 15 din 6 martie 2017referitoare la pronunţarea unei hotărâri prealabile cu privire la următoarea chestiune de drept: modul de aplicare a dispoziţiilor art. 56 alin. (1) lit. f) din Legea nr. 53/2003 - Codul muncii, republicată, cu modificările

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DECISION no. 15 15 of 6 March 2017 on the delivery of a preliminary ruling on the following question of law: art. 56 56 para. ((1) lit. f) of Law no. 53/2003-Labor Code, republished ,, with subsequent amendments and completions
ISSUER HIGH COURT OF CASSATION AND JUSTICE-THE PANEL FOR THE UNBUNDLING OF QUESTIONS OF LAW
Published in OFFICIAL MONITOR no. 470 470 of 22 June 2017



File no. 3.779/1/2016 Iulia Cristina Tarcea -president of the High Court of Cassation and Justice-president of the panel Lavinia Curelea -delegated president of the Civil Section I Eugenia Voicheci -President of the Second Civil Section Ionel Beard -president of the Administrative and Fiscal Division Mihaela Tabarca -Judge at the Civil Division I Simona Lala Cristescu -Judge at the Civil Division I Alina Iuliana Tuca -Judge at the Civil Division I Mihaela Paraschiv -Judge at the Civil Division I Romanita Ecaterina Vrinceanu -Judge at the Civil Division I Rodica Dorin -Judge at the Second Civil Section Ileana Izabela Dolache -Judge at the Second Civil Section Constantin Branzan -Judge at the Second Civil Section Virginia Florentina Dumineca -Judge at the Second Civil Section Mirela Politeanu -Judge at the Second Civil Section Eugenia Marin -Judge at the Administrative and Fiscal Litigation Section Carmen Maria Ilie -Judge at the Administrative and Fiscal Litigation Section Laura-Mihaela Ivanovich -Judge at the Administrative and Fiscal Litigation Section Cristian Daniel Oana -Judge at the Administrative and Fiscal Litigation Section Luiza Maria Paun -Judge at the Administrative and Fiscal Litigation Section The panel for the unbundling of some questions of law that form the object of File no. 3.779/1/2016 3.779/1/2016 was constituted according to the provisions art. 520 520 para. ((8) of the Code of Civil Procedure and ale art. 27 ^ 5 para. ((1) of the Regulation on the organization and administrative functioning of the High Court of Cassation and Justice, republished, with subsequent amendments and completions ( Regulation )). The meeting is chaired by Judge Iulia Cristina Tarcea, president of the High Court of Cassation and Justice. Mrs. Elena Adriana Stamatescu, assistant magistrate, appointed in accordance with the provisions art. 27 27 ^ 6 of the Regulation . The High Court of Cassation and Justice-The panel for the unbundling of some questions of law took into consideration the complaint made by the Court of Appeal of Brasov-Civil Section, in order to pronounce a preliminary ruling on the next issue of law: the application of the provisions art. 56 56 para. ((1) lit. f) of Law no. 53/2003-Labor Code, republished , with subsequent amendments and completions, in the sense of establishing whether they are applicable in all cases of the conviction of an employee, by final court decision, to a custodial sentence, including the suspension execution of sentence The assistant magistrate presents the reference of the case, showing that the opinions of specialists were submitted to the file: prof. univ. dr. Alexandru Ticlea, prof. univ. dr. Alexandru Athanasiu and assistant univ. dr. Ana-Maria Vlasceanu, prof. univ. dr. Ion Traian Stefanescu, prof. univ. dr. Magda Volonciu, prof. univ. dr. Raluca Dimitriu; the report prepared by the judge-rapporteurs was also filed, which was communicated to the parties, in accordance with the provisions of art. 520 520 para. (10) of the Civil Procedure Code ; the appellant-objector and intimated have, within the legal term, formulated through the lawyer, points of view on the matter of law subject to judgment. Following the deliberations, the High Court of Cassation and Justice-the Panel for the unbundling of some matters of law remains in the ruling on the referral on the delivery of a prior ruling.
HIGH COURT, deliberating on the question of law with which it was notified, finds the following: I. Holder and object of referral 1. The Court of Appeal of Brasov-Civil Section ordered, by Conclusion of October 17, 2016, delivered in File no. 3.485/62/2015, pending before the Court, the complaint of the High Court of Cassation and Justice, pursuant to the provisions of art. 519 519 of the Code of Civil Procedure , for a preliminary ruling on the following question of law: how to apply the provisions art. 56 56 para. ((1) lit. f) of Law no. 53/2003-Labor Code, republished , with subsequent amendments and completions (Labor Code), in the sense of establishing whether they are applicable in all cases of the conviction of an employee, by final court decision, to a custodial sentence, including with suspension of sentence execution. II. Brief exposure of the process 2. By the application registered before the Court of Brasov-Civil Section I, the objector requested, in contradiction with his employer, the annulment of the decision issued by the intimata ordering the termination of the individual employment contract, the reinstatement parties in the situation prior to the issuance of the act of dismissal and the obligation of the intimate to pay compensation equal to the indexed, increased and updated salaries, as well as with the other rights that would have benefited from the date of dismissal until effective reintegration. 3. Intimata made a welcome by which he requested the rejection of the action and the maintenance of the contested decision on the termination of the individual employment contract, as a result of the conviction to a custodial sentence. 4. By Civil Sentence no. 251 /MAS of February 24, 2016, Brasov Court-Civil Section I rejected the appeal, noting that the conditional suspension of the execution of the sentence represents a judicial measure of individualization of the sentence, which does not have the effect of amending the qualification legal basis of the sentence applied, in the sense of the removal of his custodial character, but has as a provisional effect the non-execution of the custodial sentence during the trial period. This interpretation was given by Decision no. 18 18 of 8 June 2015 , delivered by the High Court of Cassation and Justice-Complete for the unbundling of some questions of law, published in the Official Gazette of Romania, Part I, no. 469 469 of 29 June 2015. Although these dislegations have looked at the situation of conviction, by final court decisions, of local elected officials, the principle solution is also applicable to the present case. Therefore, the first instance found that, correctly, the employer retained the scope of the provisions art. 56 56 para. ((1) lit. f) of the Labor Code . 5. Against this sentence he declared appeal to the objector, criticising it in terms of illegality and non-compliance, claiming that, through the disentangements given on how to interpret and apply the provisions art. 56 56 para. ((1) lit. f) of the Labor Code , the court of substance ignored all the literature, simplistically appreciating that the doctrine does not constitute the source of law, and wrongly held that the said judgment, delivered by the High Court of Cassation and Justice-the Panel for the unbundling of questions of law is applicable in the case, although it concerned another hypothesis, that of the termination of the mandate of the local councillors. The considerations of the judgment were also criticized, as exceeding the powers of a civil court, and in the light of the violation of the norms of substantive law, the unpermitted mixture between two law institutions was invoked. 6. By the appeal application the objector also requested the complaint of the High Court of Cassation and Justice, pursuant to the provisions art. 519 519 of the Code of Civil Procedure ,, for the unbundling of the application of the provisions art. 56 56 para. ((1) lit. f) of the Labor Code . 7. Intimata filed a welcome, requesting the rejection of the appeal, appreciating that, correctly, the court held that in the case inferred the judgment cannot be the application by the employer of a complementary punishment consisting of prohibition of the exercise of the previously held office, but of the application of the text of the law, according to which the individual employment contract ceases by law as a result of the conviction to the execution of a custodial sentence, from the date the final stay of the sentencing judgment. 8. At its public meeting on October 17, 2016, the appellate court put in the discussion of the parties the request for referral of the High Court of Cassation and Justice. 9. The complaint was considered admissible by the conclusion delivered on this date, which also ordered the suspension of the judgment, pursuant to the provisions of art. 520 520 para. ((2) of the Code of Civil Procedure . III. Grounds for admissibility retained by the holder of the complaint 10. By the conclusion delivered on October 17, 2016, the Court of Appeal of Brasov-Civil Section found the admissibility of the complaint of the High Court of Cassation and Justice, pursuant to the provisions of art. 519 519 of the Code of Civil Procedure , motivated by the following considerations: - clarifying the interpretation of the provisions art. 56 56 para. ((1) lit. f) of the Labor Code , respectively, if they are applicable in all cases of the conviction of an employee, by final court decision, to a custodial sentence, including the suspension of the execution of the sentence, it depends on the resolution on the merits of the case, this being the main reason for appeal invoked by the objectors; - the question of law is new and has not been analyzed before, and the application of the provisions art. 56 56 para. ((1) lit. f) of the Labor Code conduct different interpretations, requiring the intervention of the High Court of Cassation and Justice; - this issue of law is not the subject of an appeal in the interest of the law, according to the records of the High Court of Cassation and Justice, consulted on the date of the conclusion. IV. Point of view of the parties on the unbundling of the question of law 11. By the sitting notes filed on 3 October 2016, the appellant-objector assessed that the conditions of admissibility provided for by art. 519 519 of the Code of Civil Procedure . Claimed that the text art. 56 56 para. ((1) lit. f) of the Labor Code is susceptible to different interpretations, which can generate a non-unified practice, which is already foreshadowed on the doctrinal plane; insisted on the differences between this text and the provisions art. 15 15 para. ((2) lit. e) of Law no. 393/2004 on the Statute of local elected officials, with subsequent amendments and completions ( Law no. 393/2004 ), because it regulates different service relations, treated differently by the legislator, in the sense that, unlike the Statute of local elected officials, where the legislator made no distinction as to the kind of execution of the sentence, in Labour code is explicitly spoken about the termination of the individual employment contract in the case of conviction when serving a custodial sentence. 12. Intimata filed, on October 17, 2016, notes of the meeting, requesting the rejection of the request for referral of the High Court of Cassation and Justice, claiming that the question of law in question the supreme court held by Decision no. 18 18 of 8 June 2015 , published in the Official Gazette of Romania, Part I, no. 469 469 of 29 June 2015 ( Decision no. 18/2015 )), and by Decision no. 1 1 of 17 January 2011 , delivered by the United Sections, published in the Official Gazette of Romania, Part I, no. 495 495 of 12 July 2011 ( Decision no. 1/2011 )). 13. Following the communication of the report by the Court of Justice, in accordance with the provisions of art. 520 520 para. (10) of the Civil Procedure Code , the appellant-appeal filed, through the lawyer, a point of view requesting to give priority to the variant of interpretation for which the judge-rapporteurs opt. Also, intimata filed, through lawyer, a point of view according to which the norm interpreted is applicable in all cases of the conviction of an employee, by final court decision, to a custodial sentence, even with suspending execution. V. Case law of the national courts 14. The Bucharest Court of Appeal said that, following the checks carried out, a single court decision was identified by which the question of right in question was untied and which established that the legal provision makes no distinction on how to execute the prison sentence. 15. The Suceava Court of Appeal communicated a decision of the Civil Section I, according to which, in the situation of the conviction of the employee to a custodial sentence, the application of which was postponed for a surveillance term of two years, cannot operate the termination of the individual employment contract, not being an effective execution. 16. Points of view were expressed in the sense that the termination of the employment contract does not operate in the case of the conviction of an employee, by final court decision, to a custodial sentence with the suspension of the execution of the sentence, Whereas the reason for the law was that of the impossibility of objectives of carrying out the employment contract in the event that the employee was sentenced to a custodial sentence, reason not found in the case of the employees for whom he was suspended sentence execution. It is only when the deprivation of liberty is effective, that the individual employment contract ceases. In the contrary view it was assessed that the provisions art. 56 56 para. ((1) lit. f) of the Labor Code are imperative, being applicable even in the situation of suspension of the execution of the sentence, the individual employment contract ceasing by right, but nothing stops the employer from concluding another employment contract with the convicted person, in full knowledge to the case concerning the legal situation in which that person is located. 17. The Public Ministry-the Prosecutor's Office of the High Court of Cassation and Justice has communicated that at the level of the Judicial Section-the civil judicial service has not been verified nor is it currently verified the judicial practice in order to promote a possible appeal in the interest of the law on the issue of law that forms the object of VI. Case law 18. The checks carried out are found that the constitutional court did not rule on the constitutionality of the provisions art. 56 56 para. ((1) lit. f) of the Labor Code . VII. Expert opinions 19. In the majority opinion it was considered that, under the suspension of the execution of the sentence under supervision, given that the employee was at large and could honour his contractual obligations to the employer, his employment contract would not cease. as opposed to a complementary punishment or a safety measure which prevents it from actually exercising the profession. It was argued that the interpretation that the termination of the individual employment contract would also occur in the case of the suspended sentence would contravene the explicit wording of the provisions. art. 56 56 para. ((1) lit. f) of the Labor Code , unduly restricting the right to work. Provisions art. 56 56 para. ((1) lit. f) of the Labor Code are applicable only if the employee is actually deprived of liberty, that is, he was convicted with the execution of the sentence in prison; in the situation provided by the text the employee is not in any of the situations concerned by lit. h) of the same article and does not constitute a disruptive element in the labor collective; unlike the other cases of termination of the individual employment contract, which put the employee in objective situations of not being able to perform work, the norm analyzed in an extended sense does not envisage such a hypothesis; in labor law, in case of doubt, the rules of law must be interpreted in favor of the employee. If the employee's act has nothing to do with the employment relationship, there is no reason for the right to work to be defeated. The intention of the labor law legislator was in the sense that the termination of law is not related to the quality of the employee, but to the fact that an objective situation intervenes that makes it impossible to provide work, a situation consisting in the deprivation of liberty of that person. 20. In the minority opinion it was shown that, given that the text of the law does not distinguish between the ways of individualizing the execution of penalties, the termination of the individual employment contract in this hypothesis intervenes not because the work would not could also be effectively performed, but because the legislator considered that an incompatibility between the quality of the employee and the one to be condemned by a final decision in criminal matters. VIII. Report on the question of law 21. By the report in question, art. 520 520 para. ((8) of the Code of Civil Procedure , the judge-rapporteurs opted for a restricted interpretation of the text of the law, based on historical, logical and legal fairness considerations, according to which the termination of the employment contract would only occur in the situation in which the convict effectively execute the punishment in the penitentiary, being in physical impossibility to present himself at work to fulfill his contractual obligations. IX. High Court of Cassation and Justice Examining the complaint for a preliminary ruling, the report drawn up by the judge-rapporteurs and the question of law that is requested to be disconnected, finds the following: On the admissibility of referral 22. Regarding the regularity of the complaint of the High Court of Cassation and Justice in order to pronounce a prior decision, the legislator, in the art. 519 519 of the Code of Civil Procedure ,, establishes a number of conditions of admissibility for the triggering of this procedure, conditions that are required to be met cumulatively, namely: - the existence of a pending case; - the case to be settled as a last resort; - the case which is the subject of the judgment to be in the legal jurisdiction of a court of law of the High Court of Cassation and Justice, of the appellate court or of the court vested in the case; - The issue of a question of law whose clarification depends on the pending settlement of the case; - the question of law identified to present a novelty character and on it the High Court of Cassation and Justice should not be held. 23. Proceeding to the analysis on the admissibility of the complaint, it is found that the first three conditions are met, as the High Court of Cassation and Justice was notified by a complete of the Court of Appeal of Brasov, a labor conflict, according to the provisions art. 208 relative to art. 214 of the Social Dialogue Law no. 62/2011 62/2011, republished , with subsequent amendments and completions ( Law no. 62/2011 )), art. 96 96 section 2 and art. 483 483 para. ((2) of the Code of Civil Procedure . 24. Thus, the Court of Appeal of Brasov is legally invested with the settlement of an appeal in a case in which a decision issued by the employer is challenged, finding the termination of the individual employment contract, the judgment handed down by the court in the first instance being subject to the appeal 25. With regard to the requirement that the settlement on the merits of the case depend on the clarification of the question of law covered by the complaint, it is to be noted that one of the grounds for appeal in question concerns the interpretation of the art. 56 56 para. ((1) lit. f) of the Labor Code , supporting the restricted application of the text of the law, namely only in the situation of an effective impossibility to execute the employment contract. 26. Also fulfilled is the requirement of the novelty of the question of law subject to interpretation, which, according to art. 519 519 of the Code of Civil Procedure , is a distinct condition of admissibility. It is fulfilled when the question of law has its source in newly-entered regulations, and the courts have not yet given it a certain interpretation and application at the jurisprudential level or if certain clarifications are required, in a context new or modified legislation on a previous one, such as to impose the reassessment or reinterpretation of the rule of law analysed. 27. According to the jurisprudence of the High Court of Cassation and Justice, in the situation where there is a significant number of judicial decisions that have settled differently, constantly, a question of law, in a certain period of time, the legal mechanism the unification of judicial practice is the one with adjustment function-the appeal in the interest of the law, and not the prior decision. 28. The checks carried out are found not to have crystallized a unified and constant jurisprudence in relation to the question of law the clarification of which is requested, a situation that justifies the interest in the formulation of a request for the delivery of a prior rulings in order to prevent the occurrence of unitary practice. Moreover, the analysis of the judgments given and the views expressed provides clues to the possibility of a non-unit practice from this perspective. 29. Thus, the condition of novelty is verified, becoming the current requirement of unbundling the interpretation and application of the respective rule of law. 30. In connection with the question of law brought into the debate it is noted that the High Court of Cassation and Justice did not untie, with erga omnes effects, the problem that constitutes the object of the complaint. 31. It is therefore concluded that all the conditions of admissibility regarding the triggering of the pre-judgment procedure are fulfilled. On the referral fund 32. The rule of national law forming the object of the complaint of the High Court of Cassation and Justice on the delivery of a prior decision: - art. 56 56 of the Labor Code : ((1) The existing individual employment contract ceases by law: (...) f) as a result of the conviction to the execution of a custodial sentence, from the date of final stay of the judgment; (...). 33. The complaint was made in a dispute in which the applicant, sentenced to a custodial sentence with the suspension of execution, disputes the employer's decision finding the termination of the individual employment contract, claiming that this measure applies only to the situation where the punishment is actually carried out as a custodial, which makes it impossible to physically present the employee in the workplace. 34. The issue of right of issue concerns the question of whether this case of termination of the individual employment contract applies to all situations in which an employee is sentenced to a custodial sentence, including in the situation suspension of sentence. 35. In order to be able to appreciate this issue, it is necessary to clarify the two phrases mentioned in the above quoted text-the "custodial sentence", namely the "termination of the individual employment contract", and the verification incidence Decision no. 18/2015 , in which the phrase "conviction to a custodial sentence" was interpreted, while in the legal norm that forms the object of the complaint there is the phrase "conviction to the execution of a custodial sentence". 36. The concept of custodial sentence: According to art. 53 lit. a) and b) of the Criminal Code , custodial sentences are life and prison detention. Right. art. 60 60 of the Criminal Code ( Head. II "Main Penalties", Section 2 "Prison"): "The prison consists of deprivation of liberty for a determined duration, between 15 days and 30 years, and is executed according to the law on the execution of penalties." 37. In addition to the main penalties, Criminal Code also provides for accessory penalties, complementary penalties and safety measures. Relevant in the case are the following laws: Article 65 : ((1) The accessory punishment consists in the prohibition of rights provided by art. 66 lit. a) , b) , d)-o) whose exercise was prohibited by the court as a complementary punishment. ((...) ((3) The accessory punishment of the prohibition of the exercise of certain rights is carried out from the moment of the final stay of the judgment of conviction and until the main custodial sentence was executed or considered as executed. ((...) Article 66 : ((1) The complementary punishment of the prohibition of the exercise of certain rights is to prohibit the exercise, for a period of one to five years, of one or more of the following rights: (...) g) the right to function, to exercise the profession or profession or to carry out the activity of which it was used for the commission of the crime; h) the right to own, carry and use any category of weapons; i) the right to drive certain categories of vehicles established by the court; (...). Article 67 : ((1) The complementary punishment of the prohibition of the exercise of rights can be applied if the main sentence established is imprisonment or fine and the court finds that, to the nature and gravity of the crime, the circumstances of the case and person offender, this punishment is necessary. ((2) The application of the prohibition of the prohibition of rights is mandatory when the law provides for this punishment for the crime committed. ((...) Article 68 : ((1) The execution of the prohibition on the exercise of rights begins: (...) b) from the final stay of the sentencing decision ordering the suspension of the execution of the sentence under supervision. ((...) 38. In Head. V --The individualisation of penalties in Title III -Penalties of the Penal Code are regulated, together with other institutions, the following ways of individualizing penalties: waiving the application of punishment ( art. 80-82 )), deferral of punishment ( art. 83-90 )), suspension of the execution of the sentence art. 91-98 )). Therefore, the custodial sentence of the prison can be effectively enforced in prison terms, its application can be postponed or its execution can be suspended under supervision. As opposed to The Criminal Code of Romania in 1968 ( art. 81 81 the following )), current Criminal Code no longer includes as a way of individualizing the custodial sentence and the conditional suspension of the execution of the sentence. 39. In the analysis to come, the High Court of Cassation and Justice-The panel for the unbundling of some questions of law will consider the situations of suspending the execution of penalties from both the old and the new Criminal Code, which are similar from the prospect of their qualification as ways of individualizing penalties. It is considered that, unlike the previous legislation, in the situation of suspension of the execution of the sentence under supervision, the accessory and complementary penalties apply from the time of the final stay of the sentencing decision. It is also important to note that the suspension of the execution of the sentence under supervision, as a way of individualizing the prison sentence, can only be ordered if the punishment imposed, including in case of contest of crimes, is imprisonment of no more than 3 years, not if the sentence imposed is fine. 40. In addition, it also shows the relevance that, according to art. 93 93 para. ((1) of the Criminal Code , one of the surveillance measures put in place in charge of the convict, whose prison sentence has been suspended, is also that, during the term of supervision, the convict must communicate the change of employment [ lit. d) ], respectively to communicate information and documents of a nature to allow the control of its means of existence [ lit. e) ]. He is also obliged to provide unpaid community work for a period of between 60 and 120 days, under the conditions established by the court, a circumstance that is not such as to exclude the execution of the other obligations. 41. Criminal Code regulates, in Title IV , the safety measures that may be taken towards the person who has committed a criminal act, even if a punishment is not imposed, in order to remove a state of danger or prevent the commission of the facts provided by the criminal law. Within the framework of the safety measures, the relevant relevance is that provided by art. 108 lit. c) of the Criminal Code , "prohibition of the occupation of a profession or the exercise of a profession", applicable when the act was committed due to incapacity, non-preparation or other causes that make the convicted unfit for the exercise of a profession or trades or for conducting an activity. 42. Right. Decision no. 1/2011 , the institution of conditional suspension of execution of the sentence is a complementary institution designed to complete the possibilities that the law gives to the court for the realization of the individualization of the sentence It is the consequence of a conviction, however, it retains its character as a criminal coercive, a character that consists of the obligation imposed on the convicted person to have good conduct during the term of trial and to refrain from committing a new crimes. Otherwise, the suspended sentence becomes enforceable. The conditional suspension of the execution of the sentence has the legal character of "means of individualization of the execution of the sentence" and operates as a judicial measure (substitute for punishment) to which the execution of the execution depends. The main immediate effect (provisionally) is that the execution of the sentence is suspended (i.e. the punishment, although definitively applied, is not enforced). 43. The concept of termination of the individual employment contract is governed by the provisions art. 56 56 of the Labor Code , constituting the seat of matter The termination of the individual employment contract is defined in the doctrine as a way of terminating the employment relationship in power and by the effect of the law, independent of the will of the parties, when a particular case has intervened (a legal act or a legal fact) expressly established by the rules of law, which makes it impossible, on a permanent basis, to produce further the effects of that contract. Right. art. 56 56 para. ((1) lit. f) of the Labor Code , the individual employment contract ceases by law: "as a result of the conviction to the execution of a custodial sentence, from the date of the final stay of the court decision." The relevant concerned are also the cases of termination of the individual employment contract governed by the art. 56 56 para. ((1) lit. g) and h) : g) from the date of withdrawal by the competent authorities or bodies of the opinions, authorizations or attestations necessary for the exercise of the profession; h) as a result of the prohibition of the exercise of a profession or function, as a measure of safety or complementary punishment, from the date of final stay of the court decision ordering the ban. 44. An extended interpretation of the text of the law cannot be retained according to which, given that art. 56 56 para. ((1) lit. f) of the Labor Code does not create any distinction between custodial sentences, the legislator would have instituted an absolute presumption of the state of incompatibility between the quality of the employee and the one to be convicted and, therefore, in any situation, the employment contract in conduct of a person criminally sentenced to a prison sentence with the suspension of its execution, conditional or under supervision, ceases by right, whether or not the act committed is related to the profession, work, activity exercised by the convicted person. 45. According to his nature, the prison sentence is effectively executed and the execution takes place in a penitentiary. As such, the phrase "execution of prison sentence", as a rule, is interpreted in the sense of "effective execution of punishment in a penitentiary". With this sense is usually used this phrase in new Criminal Code ,, for example, within the framework art. 91 91 para. ((1) , art. 96 96 para. ((1) lit. d) , art. 96 96 para. ((1) , art. 96 96 para. ((3) . However, in Previous Criminal Code it was provided that, in the context of the individualization of the sentence, the court had the possibility to order that the punishment be executed in a manner other than its own, as was the case with the regulation on the execution of prison sentence at the place of work, or even order the conditional suspension of the execution of the sentence, institutions that no longer find themselves in new Criminal Code . New Criminal Code regulates the institution of suspension of the execution of the sentence under supervision, a situation in which it is stipulated that " if until the expiry of the term of supervision the convict did not commit a new crime, the suspension of the execution punishment under supervision and no cause of cancellation was discovered, the sentence is deemed to be executed " [ art. 98 98 para. (1) final sentence of the Criminal Code )). Thus, "considering that the execution of the sentence" represents a legal fiction. It does not mean that the punishment was effectively executed, according to her nature. 46. In this context there is a question of whether the labor law legislator used the phrase "execution of punishment" according to the common, restricted meaning used even in Criminal Code , in the sense of "effective execution in a penitentiary", having regard to the provisions art. 25 25 of Law no. 24/2000 on the rules of legislative technique for the elaboration of normative acts, republished, with subsequent amendments and completions, interpreted per a contrario, or used it with a broad, special meaning, which would also include situations in which, although the punishment is not actually executed, is "considered" executed. 47. The study of labor law doctrine and the historical perspective on the adoption of the said law lead to the conclusion that the legislator used the narrow meaning of the phrase "execution of the sentence", namely that of " effective execution of the sentence according to his nature in a penitentiary ", which would have as a consequence the actual impossibility of the employee to present himself at work, and not the broad meaning that would also include the ways of individualizing the sentence consisting of the suspension the execution of the sentence, which have as a finality, in the event of the Law, "consideration as execution of sentence". 48. A first argument in supporting this view is inferred from the analysis of the history of the evolution of regulation in the matter. In this regard, it is noted that, initially, Labour code adopted by Law no. 10/1972 , including in the form republished since 1997, does not regulate the institution of termination of employment. Instead, it provided, among the dismissal cases, both the theses currently covered by lit. h) a art. 56 56 para. ((1) of the Labor Code [ art. 130 lit. l) -the criminal court handed down the prohibition on the exercise of the profession, temporarily or definitively], and the situation not covered by law wide, that of an incompatibility of the continuation of the employment relationship, determined by the nature of the facts for which it was ordered the conviction, regardless of the form of individualization of the sentence, left by the legislator in the margin of appreciation of the employer [ art. 130 lit. k) of the Labor Code of 1972 -the person in employment is definitively convicted of a crime in connection with his work, if the conviction makes it improper to the post he holds]. 49. By Law no. 53/2003 53/2003 on the Labour Code cases of termination of the employment contract have been introduced, in which case any possibility of appreciation of the parties concerning the continuation of the legal work relationship, among them, is excluded, lit. g) art. 56 56 para. ((1) , being provided for the situation of criminal conviction with execution at work, from the date of issue of the execution mandate. 50. Lit. g) a par. ((1) of art. 56 [[become lit. f) by republishing in the Official Gazette of Romania, Part I, no. 345 345 of 18 May 2011, pursuant to Law no. 40/2011 to amend and supplement Law no. 53/2003 53/2003-Labor Code ]] has been amended by Government Emergency Ordinance no. 65/2005 amending and supplementing Law no. 53/2003 53/2003-Labor Code , approved with amendments and additions by Law no. 371/2005 ( Government Emergency Ordinance no. 65/2005 ), being introduced the current form of the law text instead of a wording referring to the termination of the employment contract only if the conviction with the execution of the sentence at the workplace was ordered. In the explanatory memorandum of the emergency ordinance no explicit speech is made by this amendment, in order to be able to use the method of official interpretation or the teleological one, in order to identify the finality pursued by the legislator when adopting this rules, by reference to the one he replaced (which was limited to regulating the impossibility of carrying out a work report based on two different legal sources: the employment contract and the sentencing decision with the execution of the sentence at the work). Thus, the explanatory memorandum aims to make labor relations more flexible, to dynamize the labor market, harmonize the provisions Labour Code with the European Directives, but none of these purposes is applicable to the change under consideration in the present case. The explanatory memorandum also states that it is necessary to review cases of termination of the individual employment contract to cover unregulated cases in the current legislation, the changes being aimed to cover the legislative vacuum for certain situations found in the application of the law, but those listed explicitly do not include the cases provided for in lit. f) or h) a art. 56 56 para. ((1) of the Labor Code . 51. In doctrine, the rationale for the legislative amendment Law no. 53/2003-Labor Code, republished , with subsequent amendments and completions, by Government Emergency Ordinance no. 65/2005 was assessed as being that the criminal legislator gave up the way of execution of the sentence at work (but the provisions art. 86 86 ^ 7 and the following -on the execution of the sentence at work-were repealed with Law no. 15/1968 on Criminal Code , republished, with subsequent amendments and completions, by art. 250 250 of Law no. 187/2012 for the implementation of Law no. 286/2009 286/2009 on the Criminal Code ,, long after the change art. 56 56 para. ((1) lit. f) of the Labor Code ] and, in addition, it was shown that the situation of the employee's contract that could no longer physically present at work, being held in the penitentiary, would have been uncovered. Since the time of the legislative amendment, the labor law doctrine has considered, unequivocally, that the text of the law applies to people in the penitentiary, appreciating that the institution of termination of law intervenes in any situation that makes impossible the presence of the employee at work, his absence for a long period of the unit justifying the termination of the contract, without the need for any employer's approach. 52. Also, in the case of the detention of an extensive interpretation, it would not be justified to impose the supervisory measure regulated by art. 93 lit. d) of the Criminal Code , to announce the change of employment, which means that the criminal legislator allows the convict to a sentence with the suspension of execution under supervision to hold the status of an employee. Therefore, given that the employee is at large and can honour his contractual obligations to the employer, his employment contract will not cease by law unless he has been imposed a complementary, accessory or a punishment. the safety measure, which would prevent the employee from actually exercising the profession. Thus, as an exception, the employment contract can be terminated by law in the event that the convict also applies the complementary punishment of the prohibition of certain rights [ art. 66 66 para. ((1) lit. b) , c) , g) , h) , i) , k) and m) of the Criminal Code ]] or the safety measure provided for by art. 108 lit. c) with reference to art. 111 111 of the Criminal Code . 53. The legislative evolution is observed as lit. f) a par. ((1) of art. 56 56 of the Labor Code replaces the situation in which a single form of individualization of the sentence was regulated, which allowed the convict to return to work, based on a legal source other than the employment contract, namely the mandate of execution of the sentence. It is hard to assume that through the new regulation the legislator intended an exhaustive expansion of the institution of termination of employment to all forms of individualization of the custodial sentence, all the more so as the notes that in the phrase used by the legislator in this case "following conviction to the execution of a custodial sentence" the word execution is used, which, unlike the provisions contained in Law no. 393/2004 -"sentencing to a custodial sentence", object of interpretation Decision no. 18/2005 , involves the effective execution of the sentence in a custodial environment. 54. If, by absurd, the phrase "conviction to the execution of a custodial sentence" such as the phrase "conviction to a custodial sentence" would be interpreted, in the sense that it would also include the situation of persons with regard to which he ordered the measure of the individualisation of the sentence of the suspension of execution, would mean, first of all, that no effect is given to the difference in forms used by the legislator for a specific purpose. Secondly, in the case of such an interpretation it would also come to the absurd situation in which the general regulation in the matter of labour law contains more serious sanctions than special regulation, edict in consideration of the activity that certain categories of employees carry out, activity of a certain nature and importance, specific to certain professions, where the legislator said that those categories of employees cease their contract/specific relations only in the case of conviction for the commission of a specific type of offences in relation to the tasks to them, which prejudice the dignity or prestige of the profession (for example conviction for the intentional commission of a crime against humanity or life in circumstances related to the exercise of the profession of doctor and pharmacist, respectively, art. 388 ,, respectively art. 572 572 of Law no. 95/2006 on health care reform, republished, with subsequent amendments and completions], or that they may not be relieved of their duties if convicted of a certain type of crime (e.g. conviction for committing the offence of culpable bodily harm, if it is assessed that the offence committed is without prejudice to the prestige of the profession, to the courts/prosecutors, art. 65 65 para. ((1 ^ 1) of Law no. 303/2004 on the status of judges and prosecutors, republished, with subsequent amendments and completions). 55. On the other hand, the application of the termination of the employment contract to all employees, without distinguishing in relation to the nature of the act committed (including, for example, in the case of a fault at fault, unrelated to the employment relationship), could have the effect of a punishment, not provided for by any legal text from which to deduct and the social value protected by the establishment of such a measure, which would prevent the exercise of the right to work of the citizen who, objectively, in the absence of this prohibitions, could continue to carry out the work report. An extended interpretation would contradict the very purpose pursued by the individualization of the sentence in the form of suspension under supervision, that of substitute for punishment, character retained and in the Decision no. 1/2011 . 56. In addition, to remove the person of the main source of subsistence-the salary, given that, when individualizing the criminal sentence, the circumstances of the act and the person of the employee were considered by the court that established a form of execution of the sentence in a regime other than the penitentiary, the only one having the legal ability to apply the accessory or complementary penalties, implies to disregard one of the purposes pursued by the very form of individualization of this punishment, that of carrying out a normal life in society. 57. On the other hand, a termination of the employment relationship for persons sentenced to prison sentence, regardless of how to individualize/execute this sentence, in consideration of an incompatibility between the quality of the employee and the convicted, resulting from the specificity of the activity, would, rather, correspond to a case of dismissal on the initiative of the employer, which can prevail against such incompatibility (as is the situation in which the complaint was made, in which the the employer claims that, although no complementary punishment has been imposed, by nature crimes committed, the employee is incompatible with the work carried out), if he manifests the diligence and initiates in parallel with the criminal investigation, within the limitation periods, a disciplinary research procedure, founded by law lata, in the absence of a case explicitly applicable to this situation as in the Labour Code previously on the provisions art. 61 lit. a) of the Labor Code (if the employee has committed a serious deviation or repeated deviations from the labor discipline rules or from those established by the individual employment contract, the applicable collective agreement or the internal regulation). 58. It is also to be noted that the constitutional court, when it ruled on the unconstitutionality of the measure of suspension of the individual employment contract in the situations provided by art. 52 52 para. ((1) lit. a) and b) of the Labor Code , during the prior disciplinary research of the employee ( Constitutional Court Decision no. 261 261 of 5 May 2016 , published in the Official Gazette of Romania, Part I, no. 511 of July 7, 2016), namely for the case in which the employer filed criminal charges against the employee or he was sent to trial for criminal acts incompatible with the position held ( Constitutional Court Decision no. 279 279 of 23 April 2015 , published in the Official Gazette of Romania, Part I, no. 431 of 17 June 2015), observed (paragraph 26 and 30 respectively of the said decisions) that the right to work is a complex right, involving different aspects, of which the freedom of choice of profession and of the workplace is only one of the components of this right Thus, once a job is acquired, it must enjoy a series of guarantees to ensure its stability, and it cannot be conceivable that the constitutional provisions would ensure the freedom to obtain a job, but not the guarantee. keeping it, in compliance with the conditions and constitutional limits. The most important guarantee for the exercise of the right to work is the limiting by law of cases and the reasons why the termination of legal employment can take place from the initiative and from the unilateral will of employer. This argument, even if it relates to measures that can be adopted unilaterally by the employer, may also be relevant in cases imposed by the legislator, which should not intervene in a legal relationship of private law than for reasons of order public, for the protection of important social values, not being able to consider, in the absence of an express wording, that it instituted a general inaptitude of the convict to continue carrying out the work relationship in being at the time of remaining final of the sentencing judgment. 59. The inoposability of statuary Decision no. 18 18 of 8 June 2015 delivered by the High Court of Cassation and Justice-Panel on the unbundling of matters of law, in its interpretation art. 15 15 para. ((2) lit. e) of Law no. 393/2004 ,, on the situation of the present judgment On the occasion of the proceedings before the referring court, it was stated that an analysis of the question of law in the present case would be unnecessary, as it was debated and resolved in a procedure for the unification of the practice, as regards the mandate local councillors, meaning that the High Court of Cassation and Justice has pronounced Decision no. 18/2015 ,, and that absolution would apply mutatis mutandis to the present situation. The High Court of Cassation and Justice-The panel for the unbundling of some questions of law finds that there is no similarity of the situations nor of the arguments for which it came to the pronouncement of that solution, in order to be able to oppose it, with the power positive of the working authority interpreted, in the present case. 60. Thus, according art. 15 15 para. ((2) lit. e) of Law no. 393/2004 , the quality of mayor and, respectively, the president of the county council ceases, by right, before the expiry of the normal term of office in the following cases: " e) conviction, by final court decision, to a sentence custodial; '. In the interpretation of the said text, in conjunction with the provisions art. 57 57 para. ((1) and art. 81-82 of the Criminal Code of Romania from 1968 (conditional suspension of the execution of the sentence imposed), it was noted that the conditional suspension of the execution of the sentence, as a measure of judicial individualization of punishment, does not have the effect of amending the legal qualification of the sentence applied, in the removal of his custodial character. The interpretation of the provisions forming the object of the complaint only on the grounds of the effective impossibility of exercising the mandate by a person deprived of liberty, because he executes the sentence of possession, in the penitentiary, was considered to be be contrary to the legislator's option, in consideration of the fact that he did not use a phrase such as "the mandate ceases in the assumption of execution in the regime of possession of the custodial sentence applied". The text of the law states that the mandate ceases in the hypothesis of conviction to a custodial sentence, and not only in the hypothesis of the execution of the custodial sentence, so that it concerns the punishment imposed, and not the way of its execution. 61. It is noted that the law text interpreted in Decision no. 18/2015 , aimed at sentencing to a custodial sentence, differs from that of the Labor Code-following the conviction to the execution of a custodial sentence. As previously mentioned, the introduction of an additional word-enforcement-presupposes, in the literal interpretation of the phrase, that the legislator used an additional, narrower criterion of how to execute the sentence, along with the requirement of conviction to a custodial sentence must be fulfilled and the requirement of the execution of that sentence, according to its nature, on a custodial basis. That's the distinction he makes, in reverse, and Decision no. 18/2015 mentioned above, which noted that in the case art. 15 15 para. ((2) lit. e) of Law no. 393/2004 , the text of the law states that the mandate ceases in the hypothesis of conviction to a custodial sentence, in general, and not only in the hypothesis of the execution of the custodial sentence. 62. It is true that, and in this case, the legislator tried to limit, by a change of art. 15 15 para. ((2) lit. e) of Law no. 393/2004 , the applicability of the cause of termination of the local elected office (mayor, county council president, local councillor and county councillor) to the existence of a final court decision condemning a custodial sentence freedom, ordering the execution of the sentence. The Constitutional Court upheld the objection of unconstitutionality of the amendment, by Decision no. 536 536 of 6 July 2016 , published in the Official Gazette of Romania, Part I, no. 730 730 of 21 September 2016 ( Decision no. 536/2016 ), by which, resuming statuaries from previous jurisprudence ^ 1), it essentially appreciated that the social value protected by the text of the law in the form prior to the amendment is the integrity of the person holding the mandate and exercising the public dignity for who was elected and for whom the trust was granted by the voters, the reason of the legislator being to defend the principle of integrity in the exercise of public office. Note
^ ^ 1) Decisions of Constitutional Court no. 1.192 1.192 of 13 December 2007 , published in the Official Gazette of Romania, Part I, no. 39 39 of 17 January 2008, No. 418 418 of 3 July 2014 , published in the Official Gazette of Romania, Part I, no. 563 563 of 30 July 2014, No. 66 66 of 16 February 2016 , published in the Official Gazette of Romania, Part I, no. 352 352 of 9 May 2016, No. 175 175 of 29 March 2016 , published in the Official Gazette of Romania, Part I, no. 435 435 of 10 June 2016. The cause of termination is circumscribed to the margin of discretion of the legislator in this matter, being an appropriate measure, necessary and proportional to the legitimate purpose pursued, namely the removal of the possibility of public functions or dignities by convicted persons for committing crimes. The Constitutional Court considered in this situation that the presumptions of innocence, of good faith and loyalty of this person were abolished as an effect of the final judgment of conviction, so that, regardless of the execution of punishment, such a person can no longer be entrusted by the state to the exercise of public authority, since, by criminal conviction, the person occupying public dignity loses legitimacy and ceases to be in agreement with the interests of general of the community entrusted with the mandate. It is further stated that for all socio-occupational categories (including the provisions mentioned above) art. 56 56 para. ((1) lit. f) of the Labor Code ], the legislator provided drastic consequences when sentencing convictions to custodial sentences. 63. It is noted, on the one hand, that the measure of termination of the employee's individual employment contract is mentioned, as an example, as an additional argument, in the context of determined socio-professional categories, as applicable regardless of of the form under which the custodial sentence is executed (the law texts invoked in Decision no. 536/2016 refers to incompatibilities related to the specificity of some professions-for doctors or pharmacists crimes against life, for civil servants and magistrates, in consideration of their investment with the exercise of state authority), without having analysis of the constitutionality of this provision from the perspective of exercising the right to work and without making an analysis related to the difference of expression of the legislator within this law text to the other special provisions alongside which was mentioned, given the limits of the investment of the constitutional court, but, on the other hand, it is noted that, unlike the situation of a legal work report, in the case of local councillors, the social value protected by the establishment of the measure was identified, thus justifying the rationale of the legislator who imposed a interference in the exercise of the elective mandate considered proportional to the intended purpose It is true that every employer has the right to defend his own reputation, to select his staff based on social and moral values, but this implies a margin of appreciation that he does not have in the situation of termination of law. contract. By law wide, as previously mentioned, it can be prevented by the disciplinary procedure, until an eventual regulation, for that situation, of a distinct case of dismissal on its initiative. 64. In conclusion, the text of the law inferred by the pronouncement of a prior judgment carries a narrow interpretation, based on historical, logical and legal fairness considerations, according to which the termination of the employment contract occurs only in the event that the convict actually executes the punishment in the penitentiary, being in physical impossibility to present himself at work to fulfill his contractual obligations. This justifies the rationale for which, unlike the functions of public dignity, in the matter of employment relations, the legislator referred to the execution of a custodial sentence, and not only to the conviction to such a punishment. For the other legal incompatibilities between the quality of employee and the deed held in the person of the convict, other measures that can be applied are found in the legislation: complementary penalties and accessories, safety measures in criminal law; other legal bases for the termination of the individual employment contract: art. 56 56 para. ((1) lit. g) of the Labor Code [possible to be applied in case of complementary penalties relating to the prohibition of the right to own weapons-according to art. 66 66 para. ((1) lit. h) , respectively prohibition of the right to drive certain categories of vehicles- art. 66 66 para. ((1) lit. i) of the Criminal Code ]] and art. 56 56 para. ((1) lit. h) of the Labor Code (prohibition of the exercise of a profession or function) or the measure of dismissal if the employee's act also represents a disciplinary misconduct- art. 61 lit. a) of the Labor Code .
HIGH COURT OF CASSATION AND JUSTICE
For the law
DECIDE: Admits the complaint made by the Court of Appeal Brasov-Civil Section in File no. 3.485/62/2015 3.485/62/2015 on the delivery of a preliminary ruling and, consequently, determines that: Provisions art. 56 56 para. ((1) lit. f) of Law no. 53/2003-Labor Code, republished , with subsequent amendments and completions, it is interpreted in the sense that they are applicable only in the situation in which the convict actually executes the punishment in the penitentiary, being in physical impossibility to present himself at work. Mandatory, according to the art. 521 521 para. ((3) of the Code of Civil Procedure . Delivered in public sitting today, 6 March 2017.
PRESIDENT OF THE HIGH COURT OF CASSATION AND JUSTICE
IULIA CRISTINA TARCEA
Assistant magistrate,
Elena Adriana Stamatescu -----