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22.11
2018

The Court Examined the Constitutionality of the Conditions on Granting Disability Pensions

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On Thursday, 22 November 2018, the Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of the table no. 1 of para. (1) of Article 20 of the Law no. 156 of 14 October 1998 on the public pensions system.

The circumstances of the case
The case originated in an exception of unconstitutionality referred to the Court upon the request of the attorney Alexandru Cebănaș in the case no. 3-51/2018, pending before Chișinău District Court.

The applicant alleged that the provisions laid down in the challenged table are unconstitutional, as they violate the right to decent life and the right to social protection.

The Court’s assessment
The Court noted that in a modern democratic state, a special protection shall be ensured for persons who are not able to make a living. In this respect, Article 47 of the Constitution (”The right to social assistance and protection”) provides that the State is under the duty to take measures for everyone to have a decent living standard, that would ensure him and his family health protection and welfare, this including food, clothing, shelter, medical assistance, as well as the needed social services.

An important feature of the right to social assistance and protection consists of the right to pension. Under paragraph (2) of Article 47 of the Constitution, citizens are entitled to benefit from insurance in case of: unemployment, disease, disability, widowhood, old age or other situations where, due to causes beyond one’s control, one loses the means of obtaining the needs of life.

The Court noted that the constitutional provisions of Article 47 were transposed by the Law no. 156 of 14 October 1998 on public pension system referring to the categories of pensions and to the conditions on benefitting from them. As a matter of principle, the legislator provided that the right to pension shall be granted based on a period of contribution, as well as when a standard age of retirement is reached. When both conditions are met, depending on the specificity of each type of pension, this renders it possible for the right to pension of the individual to be granted.

The Court noted that the third section of the law regulates the scope of application of the right to disability pension. Under these provisions, the disability pension is granted to the insured person who was registered as a person with disabilities caused by a common disease, workplace accident or a professional illness, following an expertise made by the National Council on Diagnosing Disabilities and Work Capacity or by its offices. The table no. 1 of para. (1) of Article 20 of the same section of the law provides for the conditions on the age and the needed period of contribution in granting the right in question.

The Court pointed out that in such a field as the one before it, involving political and social decision making by the legislator, with complex assessment required, it shall enjoy a certain discretion. Nevertheless, the exercise of such discretion may not be completely precluded from the constitutional review performed by the Court. It implies that the latter is entitled to verify whether the limits of the said discretion were not exceeded.

In this respect, the Court considered that the rationale behind regulations providing for a standard retirement age or a minimum contribution period does not stand up. A total loss of work capacity resulted from a common illness represents a devastating life event for the people in question, so that imposing the age related condition or that of a minimum contributory period in order for the disability pension to be granted is not justified. The conditions to be imposed here by the legislator should strictly refer to the actual contribution period, so that irrespective of the age of the insured person, he would be able to benefit from a disability pension based on the contributions made. As a rule, the social insurance system is binding for everyone who is employed, them being under the duty to make contributions to the social insurance system. Moreover, they cannot ask for the reimbursement of the paid amounts in cases where, out of different reasons, they do not benefit from social protection.

Therefore, in such a case, it may occur that a person fully loses his work capacity, so that he could not work again, but he is not able to benefit from the contributions made.  

The Court mentioned that the challenged legislative solution may not be justified by the fact that persons with disabilities are anyway granted social bonuses. The disability pension has a legal nature of a social welfare benefit, whereas the benefit discussed in this case has a social nature, with a different justification. Accordingly, a different ground applies when granting it.

The Court’s conclusions
Considering the foregoing, the Court partially admitted the exception of unconstitutionality referred to the Court upon the request of attorney Alexandru Cebănaș in the case no. 3-51/2018 pending before the Chișinău District Court.

It declared constitutional the table no. 1 of paragraph (1) of Article 20 of the Law no. 156 of 14 October on public pension system, to the extent that the right to disability pension, in case of sever disability resulted from a general medical condition, is granted based on the actual contribution period.

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

This a courtesy translation of the original text available in Romanian language.

 


This a press-release of the Constitutional Court of Moldova, which may be subject to editorial revision. It does not bind the Court. Future press-releases, decisions, judgments, further information about the Court, as well as summaries (in Romanian) of relevant case-law of the European Court of Human Rights can be accessed on www.constcourt.md.  

 

 

 
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