(Română) Persoanele cu dizabilități lipsiți de drepturi

The Report on respect for human rights of persons with mental disabilities institutionalized in mental health hospitals of the Republic of Moldova (in Romanian language) can be read here aici

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How Smart is This: the Constitutional Court of the Republic of Moldova says ”The age is not a prohibited ground of discrimination because it is not expressly listed in any of the international human rights treaties”

Opinion on Constitutional Court’s judgement no 6 of 22 March 2011 regarding the constitutionality of  art. 62 para (1) point d) of the Law on public office and status of public officials nr. 158-XVI of 4 July 2008

Republic of Moldova has no antidiscrimination law, but it has Article 16 of the Constitution which declares that every citizen (not even every body, only citizens) of the Republic of Moldova are equal before the law and public authorities, with no distinction based on rase, nationality, ethnic origin, language, religion, sex, opinion, political membership, fortune or other social origin. Moldovan Constitutional Court is the only judiciary with the authority to interpret the provisions of the Constitutions (probably except the prohibition of discrimination) and determine whether any law, decision, regulation adopted by the Parliament or the Government may qualify as unconstitutional.

On 22 March 2011 the Constitutional Court issued a judgment where it has found no violation of the constitutional right to be not discriminated against on the ground of age. The Court found support of its view in Article 2 paragraph 2 of the International Covenant on Economic, Social and Cultural Rights and Article 7 of the Universal Declaration of Human Rights which do not have age as an expressly mentioned prohibited ground of discrimination. The Constitutional Court even disagrees that age would be covered by “other status” arguing that in this particular case the age of the plaintiff is the precise condition for dismissal mentioned in the law.

The plaintiff had been dismissed from his job as public official by the decision of the Ministry of Education based on Art. 62 para 1 point d) of the Law regarding public office and the status of public officials of 4 July 2008 which allowed termination of employment on the ground of age when the employee reached the retiring age. The plaintiff appealed the decision to terminate his employment but lost in the first instance court. In the appeal before the Supreme Court of Justice, he argued that this provision is unconstitutional because it denies him the right to labour and protection against unemployment, as well as discriminates against him on the basis age. The plaintiff reached the retiring age of 62. The Supreme Court of Justice suspended the examination of the appeal and lodged a petition with the Constitutional Court asking to find unconstitutional Art. 62 para 1 point d) of the Law regarding public office and the status of public officials of 4 July 2008.

The Constitutional Court explains that since the goal of the Law regarding public office and the status of public officials is to ensure a stable, professional, impartial, transparent and efficient public service in the interest of the society and the person holding public office ensures that the prerogatives of the states policies are implemented, which imposes high professional requirements on all those holding public office. The Court further agues that to avoid any risks of damages the interests of the state, public order, human rights and freedoms, dignity of citizens, the Law made an exception from the general rule and expressly mentioned that the person will be holding public office only until reaching the retiring age. It rejects the argument that such a provision violates the right to labour and protection against unemployment as it says that this right is no absolute and the person is not forbidden from seeking employment in accordance with its professional qualifications. It is only denied the right to hold public office to persons that reached their retiring age, 57 for women and 62 for men. The Constitutional Court sustains that public officials should be treated differently from all other employees of the public sector, in light of the special functions they have. This, in Court’s view, justifies the provision in Art. 62 para 1 point d) of the Law that ends employment with the one who reached his retiring age.

There is a twofold consequence to this judgment. One suggests that all those holding public office positions: central and local authorities, policemen, prosecutors, judges and many others that fall under the Law of public office and the status of public officials shall have their employment terminated the next day when he/she reaches the retiring age. Secondly, it implies that the age may never be a prohibited ground of discrimination just because the Constitutional Court of Republic of Moldova did not find it mentioned expressly in international human rights treaties and it may not be covered by “other status” because the law refers directly to retiring age as condition for termination of employment. Should we accept such an interpretation of Article 16 of the Constitution, which many argue suffice to protect anyone, anywhere from any action of discrimination?

There is a long established legal principle that direct discrimination cannot be justified, but, in recognition of the fact that society accepts certain age-based rules and practices, the jurisprudence of the European Court of Human Rights under Article 14 of the Convention allows direct discrimination on grounds of age provided the treatment is a proportionate means of achieving a legitimate aim – i.e. such treatment meets the objective justification test.

The Moldovan Government is allowed to operate mandatory retirement age for certain jobs, provided that the practice can be objectively justified. The individual employees should have at least the right to challenge forced retirement by bringing an employment claim to domestic courts arguing that the employer’s mandatory retirement age was an unjustifiable exception to the general rule against age discrimination, thereby ensuring that such policies were well thought through and subject to periodic review by a judicial body.

Forced retirement is contrary to the interests of individual workers, businesses and the economy.  Continuing to work allows people to use their skills and experience, maintain social networks, boost their retirement income and maintain a sense of purpose. It can also help older workers stay healthy. For example, recent research shows that retiring later may delay the onset of dementia. Older workers make a substantial contribution to the economy and provide valuable experience to business. The age is not a conviction not an annulment of rights. It does not deny professional competence, experience and knowledge of which any enterprise, be it public or private, may only benefit from. For example, judicial system needs most experienced judges to hold high positions in Supreme Courts of Justice and Constitutional Courts to deliver wise and truthful judgments that strengthen protection of human rights and freedoms, rule of law and judicial authority. We need experienced persons to hold public office so that we can truly say that we have a stable, professional, impartial, transparent and efficient public service in the interest of the society.

Agreeing that Art. 62 para 1 point d) of the Law is not discriminatory, the Constitutional Court refers to the legitimate aim pursued by this measure – forced retirement, stated in the Law which is to ensure a stable, professional, impartial, transparent and efficient public service in the interest of the society and the person holding public office ensures that the prerogatives of the states policies are implemented, which imposes high professional requirements on all those holding public office. It may indeed be the case that we aim to have a professional public service and no doubt we expect high professionals to occupy such positions. Further, the Court went on to explain why there is no other way to secure this legitimate aim but to terminate the employment with those who reached their retiring age - to avoid any risks of causing damages to the interests of the state, public order, human rights and freedoms, dignity of citizens. I am getting cautious every time I am told that the sex, race, age, social origin or other characteristic of a person determines his or her ability to function as a professional. Is it only specific to old people to make mistakes? How did the Constitutional Court determine that young ones present no risks of causing damages to the interests of state, public order, human rights and freedoms, dignity of citizens? Did not we had enough convictions of the European Court of Human Rights that resulted from decisions taken by young and middle aged public officials? Have not we witnessed public officials violating human rights on 7,8,9 April 2009 and further denying any remedy to those violations? Or maybe the Constitutional Court meant to say that old people are slow and disabled, therefore inefficient in exercising their public functions? Yes, this may be the meaning that the Constitutional Court put into the phrase “avoid any risks of causing damages” which is an ageist assumption and stereotyping, and as such renders the justification put forward by the Court as unreasonable, falling out of the objective justification test.

It is not the age that is a risk, but the lack of professional qualifications, experience, knowledge and respect for Rule of Law. Art. 62 para 1 point d) of the Law is a forced retirement which establish a blank prohibition to hold office once reaching the retiring age and as such constitutes direct discrimination on the ground of age.

In relation to „other status” term included in every treaty of international law on human rights, the European Court of Human Rights had highlighted on many ocassions that the European Convention is a living instrument called upon to decide whether human rights and freedoms have been guaranteed in situations which reflect up today’s human experiences. It was never believed to be necessary or desirable to create an exhaustive list of prohibited grounds of discrimination. Such an approach would run the risk of being inflexible, and unable to respond to developments that come along with the human relations.  It might also have a negative impact on innovation: for example, out of concern to adopt a new approach not covered by an exception,  courts might be discouraged from developing jurisprudence that would protect against discrimination on grounds that are not listed in the exhaustive list provided. To this understanding came various countries’ representatives that had elaborated and ratified, among many others, the UN Treaties on human rights and the European Convention of Human Rights and Fundamental Freedoms. Why the Constitutional Court of Republic of Moldova does not see fit to understand this approach to prohibiting discrimination, would stay an enigma. Or is it a damage caused to the fundamental human rights and liberties due to the old age of the judges from the Constitutional Court?

2015-03-01

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