Employment relationship suspension in case of filing any criminal case is in breach of Moldova’s Constitution

On 3 March 2016, the Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of Article 53.c of the Law no. 158-XVI of 4 July 2008 on public office and status of civil servant and of Article 76.g of the Labour Code.

Circumstances of the case

The case originated in a complaint lodged with the Constitutional Court of Moldova on 20 November 2015 by the Supreme Court of Justice, on the exception of unconstitutionality of Article 53.c of the Law no. 158-XVI of 4 July 2008 on public office and status of civil servant and of Article 76.g of the Labour Code. The exception has been raised by Mr Anatolie Focșa within the case no. 3-137/2015 pending before Căușeni District Court.

Under Art. 53.c of the Law on public office, employment relationships with the employee are suspended by the public authority hiring him: "in case he is under the statute of a suspect or there is an ordinance of accusation in his regard, till a final decision of the court of law."

The author of the exception of unconstitutionality contended that suspension of employment relationships by the employer under the abovementioned conditions, infringes upon Articles 21, 43, 47 and 54 of the Constitution.

The complaint was examined by the Constitutional Court, in the following composition:

Mr Alexandru TĂNASE, President, 

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mr Victor POPA, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the casefiles, the Court noted that under Article 43 of the Constitution, anyone enjoys the right to work, fair and satisfactory work conditions.

The Court mentioned that labour legislation conditions entering labour market with a set of requirements, it also setting out the situations of suspension and termination of labour relationships.

In this regard, the Court noted that under Article 53.c of the Law on public office and Article 76.g of the Code la Labour, employment relationships may be suspended upon criminal proceedings being instituted.

The Court noted that upon suspension of employment relationships, the head of the institution does not pronounce on the guilt or innocence of the civil servant, neither on his criminal liability, these issues pertaining to the field of work of the judicial bodies.

The Court also noted that suspension from office in case one commits alleged criminal offences, pursues the goal of safeguarding the institution and prestige of the profession.

At the same time, the Court found that while under the Code of Labour, suspension from office only operates when the criminal case is sent to the court and the committed offence is incompatible with the labour input provided, the Law on public office provides for a suspension even beginning with the stage of the civil servant being qualified as a suspect and lacking a causal link between his work and the committed offence.

The Court mentioned that when placing a restriction on the right to work, there shall be ensured the proportional character and sufficient guarantees granted, which would preclude arbitrariness of abuses from the employer.

Under these conditions, the Court found that the provision of Article 53.c of the Law on public office, which entitles the employer to suspend employment relationships till the case is sent to court, with no intrinsic link between the alleged criminal offence and his office, infringes upon the principle of proportionality. Therefore, the measure is excessive compared to the pursued goal, this being in breach of Article 43 in conjunction with Article 54 of the Constitution.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court of Moldova:

- Declared partially admissible the exception of unconstitutionality;

- Declared unconstitutional Article 53.c of the Law no. 158-XVI of 4 July 2008 on public office and the status of civil servant;

- Declared constitutional Article 76.g of the Code of Labour of Moldova no. 154-XV of 28 March 2003.

The Judgment of the Constitutional Court of Moldova is final, cannot be appealed, enters into force upon adoption and is published in the Official Journal.

This press-release is also available in the original Romanian language version.