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13.12
2017

Financial incentive for investigating agents of the General Police Inspectorate – constitutional

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On 13 December 2017, the Constitutional Court delivered its judgment on the review of constitutionality of Article 21/2 of the Law no.355-XVI of 23 December 2005 on the salary system in the budgetary sector and Government Decision no.172 of 22 March 2017 for the approval of the Regulation on the financial incentive procedure for investigating agents within the General Police Inspectorate of the Ministry of Internal Affairs. (Complaint no.46a/2017)

 

Circumstances of the case

The case originated in the complaint, lodged with the Constitutional Court by the MP Vladimir Odnostalco, on the review of constitutionality of Article 21/2 of the Law no.355-XVI of 23 December 2005 on the salary system in the budgetary sector and Government Decision no.172 of 22 March 2017 for the approval of the Regulation on the financial incentive procedure for investigating agents within the General Police Inspectorate of the Ministry of Internal Affairs.

Article 21/2 of the law states that: “Investigating agents from subdivisions of the General Police Inspectorate of the Ministry of Internal Affairs who, by examining contraventions, in accordance with their competences, contributed to the collection of revenues to the state budget are financially incentivised with an amount of 25 % of the respective revenues, from the budget of the General Police Inspectorate. The procedure for determining the said incentive will be carried out on the basis of a regulation approved by the Government.”

The author of the complaint, in essence, claimed that the challenged provisions were contrary to the principle of equality laid down in Article 16 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

 

Mr Tudor PANŢÎRU, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, justices

 

Conclusions of the Court

Hearing the reasoning of the parties and examining the casefiles, the Court held that the principle of equality before the law, enshrined in Article 16 of the Constitution, provides for equal treatment in situations which, depending on the purpose pursued, are not different.

The Court ascertained that on 16 December 2016, in the Law no.355-XVI of 23 December 2005 on the salary system in the budgetary sector was introduced Article 21/2, that provides for that “Investigating agents from subdivisions of the General Police Inspectorate of the Ministry of Internal Affairs who, by examining contraventions, in accordance with their competences, contributed to the collection of revenues to the state budget are financially incentivised with an amount of 25 % of the respective revenues, from the budget of the General Police Inspectorate.”

For the purpose of implementing the provisions of Article 21/2 of the law, on 22 March 2017, the Government, by Decision no.172 approved the Regulation on the financial incentive procedure for investigating agents within the General Police Inspectorate of the Ministry of Internal Affairs.

The Court noted that the legislator, given the specificity of the activity of certain categories of employees, may intervene to establish bonuses and incentives, which differentiate in accordance with staff categories.

The Court ascertained that, under Article 31.3 of the Law no.320 of 27 December 2012 on the activity of police and the policeman status, the latter is a civil servant of special status, to whom special degrees are granted.

In its Judgment no.30 of 11 December 2014, the Court found that offices cannot be deemed as identical, since each office has its specific features and requirements under which it is exercised. The Court also noted that, in the light of the legal provisions, the comparison of offices and the salary system shall be made taking into account the complexity of the competences required, the degree of commitment and responsibility in the exercise of public powers, as well as the level of institutions in the hierarchy of state bodies.

Therefore, the Court noted that the investigating agents of the General Police Inspectorate, having a special status, with rights and duties specific to the their statute, and having regard to the existence of risk factors in their activity, are not in identical situations with other categories of investigative agents within public authorities.

Moreover, the Court pointed out that while the challenged provisions provide for a quarterly financial incentive for investigating agents within the General Police Inspectorate of 25% of the amount of fines collected to the state budget, in case the report on the contravention is annulled by the court of law, the amount that the investigative agent beneficiated from previously shall be withheld.

Therefore, the Court held that in case of abuses by investigating agents in establishing contravention fines, the drawn up reports may be challenged in a court of law which, according to the Contravention Code, has full competence: to establish the guilt of a person against whom were initiated contravention proceedings; the existence of mitigating and/or aggravating circumstances; the necessity to penalize and, where appropriate, the nature of the contravention penalty.

Similarly, the Court noted that the General Police Inspectorate is entitled to bring an action of recourse against the investigating agent regarding the payment of material and non-material damages caused by the unlawful application of the contravention fine.

In this respect, the Court underlined that the investigating agent shall behave loyally and act in good faith in the exercise of his/her duties.

The Court held that, under Article 43 of the Constitution, the State is bound to establish a minimum wage per economy.

At the same time, the Court noted that the legislator has the competence of granting to bonuses, incentives, and basic salary bonuses to officials. The legislator is also entitled to differentiate bonuses in accordance with staff categories, to modify, suspend or even cancel them.

In the light of the foregoing, the Court held that the adoption of the challenged provisions falls within Parliament's margin of appreciation and is not contrary to Article 16.2 of the Constitution.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court rejected the complaint and declared constitutional Article 21/2 of the Law no.355-XVI of 23 December 2005 on the salary system in the budgetary sector and of the Government Decision no.172 of 22 March 2017 for the approval of the Regulation on the financial incentive procedure for investigating agents within the General Police Inspectorate of the Ministry of Internal Affairs.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of Moldova.

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

 
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