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08.05
2018

The Court Examined the Constitutionality of Certain Provisions of the Law on the Public Pension System Related to Pension Payment Cancellation, in Case the Insured Person Establishes His/Her Domicile Abroad

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On Tuesday, 8 May 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of the texts: “domiciled in the Republic of Moldova” of Article 2 (1) and “the insured person establishing a domicile abroad is not entitled to pension payment according to this law” of Article 36 (1) of the Law no. 156 of 14 October 1998 on the public pension system (Application no.24g/2018).

Circumstances of the case
The exception of unconstitutionality underlying this case was raised by the attorney Petru Coșleț, in a pending case at the Court of Appeal of Chișinău. According to him, the mentioned provisions infringe upon the pension rights of the insured persons establishing a domicile abroad.

Court’s assessment:
The Court analysed this exception of unconstitutionality in light of Articles 46 and 47 in conjunction with Article 16 of the Constitution: the right to property, social protection and equality of citizens. 

The Court noted that Article 46 (1) of the Constitution provides that the right to own private property and the debts incurred by the State are guaranteed and that Article 47 (2) of the Constitution grants citizens the right to insurance in case of: unemployment, disease, disability, widowhood, old age or other situations where, due to causes beyond one’s control, one loses the source or subsistence means. These two rights shall not be ensured in different manners, with no objective and reasonable justification, in case of persons in similar situations. 

The Court observed that Articles 2 (1) and 36 (1) of the Law no. 156 of 14 October 1998 on the public pension system renders pension payment dependent upon the domicile of the individual, which may lead to situations where certain individuals who worked in the Republic of Moldova and made contributions to the social insurance system with their payments are deprived of this entirely, for the mere reason of not having a domicile in the Republic of Moldova. 

The Court noted that the Parliament and the Government of the Republic of Moldova did not provide any justification for depriving this category of persons of their right to pension, merely due to them having established their domicile out of the country. Hence, the National Social Security Office provided as an explanation the possibility of deficiencies that would arise in uncovering double payments of the pension – in the Republic of Moldova and in other states that have no bilateral agreements on social insurances concluded with the Republic of Moldova. The Court observed that the mentioned authorities did not come up with a relevant reasoning in order to justify the differentiated treatment in question. The institutional incapacity of the National Social Security Office may not constitute a reason to deprive individuals from their fundamental freedoms.

The Court reiterated the caselaw of the European Court in that the Convention is a living instrument that ”must be interpreted in the light of present-day conditions.” The higher population mobility, closer international cooperation and integration, as well as the latest developments from the banking system and information technologies do not justify anymore restrictions based on technical criteria against beneficiaries of social insurance payments residing abroad, restrictions that were considered reasonable in the past. 

Accordingly, the Court found that a differentiated treatment of the individuals who do not have a domicile in the Republic of Moldova, as compared to those who do, when it comes to pension payments, infringes upon Articles 46 and 47 in conjunction with Article 16 of the Constitution. 

Conclusions of the Court
Stemming from the above mentioned, the Court admitted the exception of unconstitutionality raised by the attorney Petru Coșleț in the case no. 2a-163/2017 pending before the Court of Appeal Chișinău. 

It declared unconstitutional the phrases:

-       “domiciled in the Republic of Moldova” of Article 2 (1) of the Law no. 156 of 14 October 1998 on the public pension system;

-       “the insured person establishing a domicile abroad is not entitled to pension payment according to this law” of Article 36 (1) of the Law no. 156 of 14 October 1998 on the public pension system.

This judgment is final, it cannot be appealed, it shall enter into force on the date of its adoption, and it shall be published in the Official Journal of Moldova.

The full reasoning may be consulted in the Judgment of the Constitutional Court of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.

 

 
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