Retirement pay without borders

         Retired soldiers will be able to receive their salary abroad. The good news came from the Constitutional Court (CC), which declared unconstitutional Article 60 of the Law on Pension Insurance of Military and Personnel in the Command Corps and Troops of Internal Affairs and in the General Inspectorate Carabinier no. 1544 of June 23, 1993.

         Until then, the pensioners have received their lunar money depending on the place of their residence. In other words, the military man working for years in and for the country under special conditions acquired the right to a pension, but once he moved to another country, he was deprived of this right.

         The court concluded that this was an unjustified differential treatment of military pensioners. Moreover, the Court considered that invoking the economic crisis or financial difficulties to restrict (deprive) fundamental rights and freedoms is unjustified.

         This decision, notified by the Ombudsman, Mihail Cotorobai, is final and entered into force on the date of adoption. However, after the publication of the decision in the Official Gazette, what are the next steps on December 18, 2020? Major Ana Stratan, senior specialist, legal department, Institutional Management Department, MD, answers this and other questions.

– Further, the competent central public authorities will submit the draft amendment to the law by excluding the rule declared unconstitutional. According to Law 317 / 13.12.94 on the Constitutional Court, art. 281, the term of execution of the act is 3 months. Parliament will examine the draft law as a matter of priority. Also, within this period, the authorities will inform the CC about the results of the examination.

 – Is an automatic the procedure, or should it be a lobby to realize the decision and who has to monitories the subsequent actions?

– The procedure is an automatic one, or rather a technical one, given the fact that with the entry into force of the Court’s Decision, according to point 3 of the operative part, it is already final, enforceable and irrevocable. Respectively, regardless of the competent public authorities having a period to make changes, citizens’ right exists and cannot be violated.

 – Does the mechanism involve individual negotiations with each country, even if they have already signed an International Pact on Economic, Social and Cultural Rights?

 – The Pact stipulates that the Parties undertake to work to grant economic, social and cultural rights (ESCR) to territories and persons who are not autonomous, including the rights to work, health, education and an adequate standard of living. In January 2020, the pact registered 170 parties. Four other countries, including the United States, have signed but not ratified the Pact.

         At the same time, it should note that regardless of the member states or not, the amendment adopted by the Court has effects and is subject to national law, it obliges the state of Moldova to assume and respect the rights of citizens, including the right to assistance and social protection.

         By the way, according to the website of the National Social Insurance House (NSIH), our country has signed an agreement in the field of social security with Bulgaria, Portugal, Romania, Luxembourg, Estonia, Czech Republic, Austria, Belgium, Poland, Hungary, Lithuania, Germany, Turkey and Belarus.

 – What will happen to the countries that have not signed this pact?

 – The note referred to this document, because we have ratified it, respectively its provisions are mandatory for the Republic of Moldova. In case of divergence between a norm of national legislation and a norm provided in a treaty to which the Republic of Moldova is a party, the international treaty provisions shall apply.

 – The document speaks of permanent domicile. Does this term mean the resident status or only a citizen of that country?

 – Permanent domicile refers to persons who have the status of resident, doesn’t matter if they hold or not the citizenship of that state. To benefit from the respective pension, the person must hold the Republic of Moldova’s citizenship.

 – Does the document only refer to the age military retirement pay or does it include retirement in case of illness, for example?

 – There is no specification, so it is about all types of pensions granted for the military under the conditions of Law 1544 / 23.06.93.

 – How about the family members, also targeted in the document?

 – Article 31 of Law 1544 / 23.06.93 refers to family members who are entitled to a pension. For example, in case of loss of the maintenance, the right to pension is available for members, who can’t work, starting with the children and ending with the grandparents, but only under certain conditions, specified in each article’s point. By excluding the targeted norm (art. 60), this category of people will also benefit from the pension in the situation when they will be domiciled abroad.

– The document mentions the reasonable ratio of proportionality between the means used and the aim pursued. Who determines how far is reasonable, and what is the proportion?

 – The Civil Code, book 1 art.12 defines the reasonable term: „The reasonableness, provided in a legal provision or a legal act, is assessed objectively, taking into account the nature and purpose of the element subject to assessment, the circumstances of the case, such as and relevant customs and practices.”

 – What difficulties could arise by using this phrase?

 – Of course, the human factor has a decisive role when adopting a decision, in the sense that the judge appreciates subjectively through his own conscience and visions this reasonable relationship of proportionality between the means used and the purpose pursued depending on certain situations.

         Therefore, when a person wants to get retirement pay abroad, he needs to apply for this service to the NSIH in Moldova. What are the next steps; what documents must be presented, is or not necessary the Life Certificate (https://bit.ly/3olCVHC); how often will the pensioner’s situation, domiciled abroad, be updated? – there are questions to which we will receive an answer, probably, within 4 months, during which the Government must regulate the new provisions of art. 60 of Law no. I544 of June 23, 1993, I deduced from the answer given by Elena Tibirna, general manager of NSIH.

         Every year, about 20 soldiers retire with the right to a pension. According to the statistics held by NSIH, until 08.12.2020, we have over 3500 military pensions of the National Army, the same source added. We do not know how many of them are domiciled abroad and receive or would like to receive retirement pay in the host country. Certainly, this case is not about transferring and equating the pension to the respective country’s system, but only a conversion of the amount. Moreover, the Republic of Moldova’s legislation provides for the citizen’s right to a single pension. If he meets the conditions for another pension, for example, for old age or disability, he will choose the one that suits him best. Regarding the pensions granted by other states, if the person meets the legal conditions of that state, restrictions on a pension granted by the state of Moldova should not exist, concludes Major Ana Stratan, senior specialist, legal department, institutional management department, Ministry of Defence.

         In the context of the subject, I remembered the meditations of the American biochemist, Betty Sullivan: „There is a whole new kind of life ahead, full of experiences just waiting to happen. Some call it ‘retirement.’ I call it ‘bliss.'”

         How good it would be for all retirees!

Romanian version: https://dragostinavicol.org/2021/01/05/pensie-fara-granite/

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