On 8 April 2019, the Constitutional Court of Moldova delivered a judgment on the plea of unconstitutionality of the term “woman” of the second phrase of Article 5 of the Law no. 188 of 10 July 2008 on amnesty related to the declaration of 2008 year as Youth Year.
The applicant alleged that the challenged provisions granted the right of being released from prison only to mothers of children under the age of eight, yet not to fathers of small children; although, from the perspective of the right to care for children, both categories of subjects find themselves in similar situations. In his view, this amounts to unjustified differentiated treatment.
The Court’s assessment
The Court considered that this case has to be assessed in light of Article 16 in conjunction with Article 28 of the Constitution, which are reflected by Articles 14 and 8 of the European Convention.
The Court noted that by releasing mothers of children up to eight years of age and not fathers, the Parliament has imposed a differential treatment based on sex. The advantage granted to mothers was not granted to fathers of little children, this being sufficient to establish the existence of a differentiated treatment.
The Court acknowledged that by releasing mothers from imprisonment, the Parliament did so aiming to achieve the best interest of the child expressed by his upbringing and education by his mother.
The Court also noted that there are various European and international instruments addressing women's needs from the perspective of pregnancy and maternity protection.
The Court held that these considerations may constitute a sufficient basis for determining a legitimate aim pursued by the challenged provisions.
As regards the justified nature of granting amnesty only to mothers who have children under the age of eight, the Court found that, according to data released by the National Bureau of Statistics, at the beginning of 2008, there were about 95% more male detainees than female ones. Granting the right of amnesty to all fathers of children aged up to eight, including those who have committed serious crimes, would imply a large number of detainees being released from prison. And the release of a large number of people who have not served their sentences, some of whom may be dangerous, could create a sense of public insecurity among the people.
Under such circumstances, the Court found that it would be very difficult, perhaps even impossible, for Parliament to provide for the release of fathers on the same grounds as mothers. Thus, releasing from imprisonment only women who have children aged up to eight years, and not men, is based on an objective and reasonable justification.
Accordingly, the Court concluded that the term “woman” of the second phrase of Article 5 of the Law no. 188 of 10 July 2008 on amnesty related to the declaration of 2008 year as Youth Year is in line with Article 16 in conjunction with Article 28 of the Constitution.
The Court’s conclusions
Considering the foregoing, the Court rejected the plea of unconstitutionality referred to the Court upon the request of Mr. Sergiu Cojocaru, litigant in the case no. 21-889/2019 pending before the Court of Law of Chișinău, central office.
It declared constitutional the term “woman” of the second phrase of Article 5 of the Law no. 188 of 10 July 2008 on amnesty related to the declaration of 2008 year as Youth Year.
This judgment is final, it cannot be appealed, entering into force upon adoption and shall be published in the Official Journal of the Republic of Moldova.