Under the Estonian Constitution, everyone is equal before the law. No one may be discriminated against on the basis of ethnicity, race, colour, sex, language, origin, religion, political or other views, property or social status, or on other grounds.
The Chancellor of Justice Act stipulates that the Chancellor is competent to check the conformity of legislation with the Constitution and existing laws as well as checking the activities of representatives of public authority. The Chancellor also arranges conciliation proceedings for resolving discrimination disputes between persons under private law, and promotes the principle of equality and equal treatment.
During the reporting period, the Chancellor received 58 petitions with complaints about unequal treatment. Of these, 38 petitions concerned the general fundamental right to equality and 20 concerned unequal treatment on specific grounds of discrimination (sex (3 petitions), ethnicity and ethnic belonging (3), language (2), age (6), disability (1), sexual orientation (3), and religion (2)). The Chancellor did not initiate any conciliation proceedings.
Problems of people with disabilities often reach public attention when the principle of equal treatment is violated. During the reporting year, the procedure for ensuring aid devices for residents of social welfare institutions attracted considerable attention. The cost of procuring a necessary aid device (e.g. an audio reader – a Daisy player; a walking frame) is up to ten times higher for a person living in a care home or other social welfare institution as compared to someone living at home. The reason is that people living at home receive state support for procuring the aid device while people living in social welfare institutions do not. This distinction cannot be justified by saving money or by the aim of motivating people to live at home. The Chancellor found that such unequal treatment is unjustified and asked the Riigikogu to bring § 47(3) of the Social Welfare Act into line with the Constitution. The Riigikogu initiated an amendment to the Act that should enter into force in 2019.
Treatment of people with disabilities in hospitals arose as a painful problem. A letter sent to the Chancellor revealed that a hospital had failed to provide necessary care to a patient with profound disability and did not allow the patient’s next of kin do so either. Since the hospital itself acknowledged the scarcity of its resources and skills, the Chancellor asked that the Ministry of Social Affairs should draw up guidelines for taking care of people with disabilities in hospitals in order to avoid such incidents. The Chancellor also asked that attention be paid to training hospital staff.
Different treatment is not always unconstitutional. For example, the Chancellor found that the amount of benefits for people with disabilities of working age and retirement age may differ. The reason is that these two target groups are granted support for a different purpose.
The state has laid down various benefits for people with disabilities. However, it may be difficult to obtain them. Several individuals wrote to the Chancellor that when applying for aid devices they were not given sufficient explanation as to their rights or what documents must be produced to receive support. The Chancellor found that administrative authorities must always provide individuals with relevant and detailed explanations. This helps to avoid misunderstandings and unlawful decisions by administrative authorities.
Insufficient health data produced for assessing the capacity for work of people with disabilities and establishing the degree of disability has sometimes led to a wrong decision that subsequently had to be amended. A person’s health was assessed to be worse than before, yet they failed to obtain the prescribed benefit due to bureaucratic mismanagement. Under the Constitution, people with disabilities enjoy special care from the state, so that the state should ensure that the system of providing and implementing assistance to these people should operate flawlessly.
Several people asked the Chancellor why they were not entitled to support from the EU-funded project for physical adaptation of homes of people with disabilities. A person with a visual disability who wanted assistance in rebuilding their heating system believed that they did not receive the support because of their type of disability. In actuality, the problem was lack of awareness. Under the Social Welfare Act, everyone with disabilities is entitled to receive assistance from a rural municipality or city in adapting their dwelling or in obtaining a more suitable dwelling. Beneficiaries include people with reduced mobility as well as those who find it difficult to cope independently or communicate because of their disability. The duty of rural municipalities and cities is not affected by the conditions of the EU home adaptation project – if a rural municipality or city cannot adapt a person’s dwelling to their needs with European Union funds then the rural municipality’s or city’s own funds must be used for this purpose.
Capacity for work reform
In connection with changes introduced by the capacity for work reform, people asked the Chancellor to clarify the difference between the previous incapacity for work pension and the current work ability allowance. The Chancellor found that the difference in the basis for calculation of the incapacity for work pension and the work ability allowance – e.g. the fact that the work ability allowance no longer depends in a person’s work contribution – is compatible with the Constitution. The Chancellor is also of the opinion that the Constitution does not oblige the Riigikogu to tax the incapacity for work pension and the work ability allowance in the same manner.
If a person’s income from their work is above a certain threshold, the work ability allowance granted to them begins to diminish. This has led to the question whether working and non-working people are treated equally. According to the Chancellor’s assessment, the Constitution obliges the state to assist people when they are no longer able to earn income due to a reduction in their capacity for work. Thus, the choices made by the Riigikogu are compatible with the Constitution.
Some conditions for paying the work ability allowance seem unfair to people. Similarly to previous years, the Chancellor was asked during this reporting period whether it was fair that people with partial capacity for work must work or seek work (i.e. comply with the so-called activeness requirements) in order to receive the work ability allowance. In those cases, the Chancellor explained that people with partial capacity for work are partially able to earn their livelihood themselves. Therefore, similarly to other members of society they must seek opportunities to procure their livelihood.
People also expressed dissatisfaction that the work ability allowance of a person with partial capacity for work could be attached in enforcement proceedings. According to the Chancellor’s assessment, this is not unconstitutional because the law differentiates between attaching types of income according to the purpose of the income. It is also allowed to attach remuneration and income replacing it, such as work ability allowance or pension.
An individual writing to the Chancellor raised the issue of unfairness of the arrangement that bars a minor who has lost one parent from simultaneously receiving work ability allowance and survivor’s pension. The Chancellor forwarded the question to the Riigikogu Social Affairs Committee for debate, because social policy choices as to the benefits and support that a person is entitled to receive simultaneously have not been consistent. The Social Affairs Committee found that a minor whose capacity for work is reduced and who has lost a provider should be entitled to receive several benefits simultaneously and this problem needs to be resolved.
The Supreme Court asked the Chancellor’s opinion as to whether abolishing the old-age pension paid in the event of a judge’s loss of capacity for work was constitutional. Unlike the Supreme Court, the Chancellor found that abolition of this special pension was justified by the aim of the capacity for work reform – i.e. increased employment of people with reduced capacity for work. The amendment did not completely deprive judges of income but they are entitled to work ability allowance on the same conditions as others.
Several individuals expressed dissatisfaction that assessing capacity for work and granting a work ability allowance in cross-border cases took the authorities too long. As a result, people who cannot go to work because of reduced capacity for work could remain without an income for a long time. In one instance, the Chancellor found that the criticism was justified and no exhaustive reasons existed for delaying the decision. And this was so despite the need for the Estonian Unemployment Insurance Fund to communicate with officials in another country and to apply European Union rules. The Chancellor sent a recommendation to the Estonian Unemployment Insurance Fund to avoid unjustified delays even when a case is being dealt with simultaneously in several countries. The individual must also be kept informed about the status of resolving their application.
Regional wage differences
The Chancellor was asked on several occasions whether regional differences in wages of public servants were constitutional. For example, the wage level set for prison officers in Viru Prison is on average 25% higher in comparison to officers in Tallinn Prison. This kind of different treatment of prison officers is justified.
Rescue service staff in Ida-Viru and Harju counties may also be paid up to 10% higher basic wage than rescue service workers elsewhere in Estonia. A higher wage for rescue service workers in Ida-Viru county is justified by the aim under the regional development programme of strengthening the region’s competitiveness and promoting employment. In Tallinn the justification is the higher workload of rescue service workers. This kind of differentiation in the remuneration of rescue service workers is constitutional.
Unequal treatment of older people in popular amateur sporting events
The Chancellor was contacted by an individual who was not satisfied that at popular amateur sporting events supported by the Cultural Endowment of Estonia older participants were treated unequally in comparison to others. In the opinion of the petitioner, these competitions often fail to take into consideration the interests of older participants, because women can only compete in the age group for up to 50- or 60-year-olds and men in age groups for up to 55- or 60-year-olds and older. Therefore, for example, a 70-year-old amateur athlete must compete with those up to 20 years younger than them. In other age groups, the categorisation is usually by five- or ten-year intervals.
In the Chancellor’s opinion, organisers of popular amateur sports events could consider the possibility of creating more age groups for older people in competitions. By setting conditions for granting support, the Cultural Endowment of Estonia can promote equal treatment of different age groups in sports events. All participants in a competition should be able to compete in age groups formed on comparable bases. However, failure to form separate age groups for older people does not necessarily mean discrimination. If objective reasons for this exist (e.g. insufficient competition because of the limited number of participants or the specificity of a certain sport), competition organisers need not keep separate records for older people. The Cultural Endowment of Estonia affirmed that the Chancellor’s recommendations would be taken into account in granting support.
Taking ethnicity and social status into account in court proceedings
Two petitions received by the Chancellor concerned alleged discrimination in court proceedings. One petitioner contended that the court sentenced them to imprisonment because of their ethnicity and social status and not because of having committed a criminal offence. Materials of court proceedings showed that the court had justified the sentence by the facts of the criminal offence and had not relied on ethnicity or social status. When imposing expulsion from Estonia and a ban on entering Estonia as a supplementary punishment, the person’s citizenship, residence and social contacts were taken into account, which constitute relevant reasons.
Another petitioner complained that their next of kin had been discriminated against in court proceedings because of their Roma ethnic origin. Allegedly, the prosecutor in the courtroom had treated the person poorly but the judge had not intervened. In the information system of judicial decisions it was found that the accused had filed with the court a complaint for recusal of the prosecutor because, allegedly, the prosecutor’s conduct may have been motivated by prejudice against people of Roma ethnicity. The court dismissed the complaint because the criticism raised in the complaint did not provide grounds to conclude that the prosecutor had been impelled by subjective motives or prejudice when exercising their official duties. The materials of the court proceedings did not indicate that the court had treated the defendants in a discriminating manner.
Thus, neither suspicion of discrimination was confirmed.
Formation of classes
The Chancellor was asked to verify the claim that a school was assigning pupils to classes based on their ethnicity and required that parents should communicate in Estonian with children at home.
Pupils may not be distributed to classes according to ethnicity. It is also not admissible to make demands concerning the language to be used at home – communication in Estonian with children at home may not be set as a prerequisite for admission or transfer of a pupil to a class where tuition takes place in Estonian.
The local authority’s representative explained that children from non-Estonian speaking families can be admitted to an Estonian-speaking class if the child’s proficiency in Estonian is sufficient. Pupils are assigned based on their language proficiency and not ethnicity. A language immersion class is recommended if this is in the interests of the child. Teachers monitor the development of children and also transfer them to another class based on the children’s language proficiency and ability to cope (i.e. transfer from a language immersion class to an Estonian-speaking class and the other way round), if the parents consent to this.
The owner of the school affirmed that the school may not make any demands as to the language of communication at home. Nevertheless, parents had been given recommendations as to how a child could better learn the language (e.g. attending extended-day groups and Estonian-speaking hobby groups)
Absence of implementing legislation for the Registered Partnership Act
Tallinn Court of Appeal initiated constitutional review proceedings, declaring failure to adopt implementing legislation for the Registered Partnership Act unlawful and unconstitutional. The Chancellor found that absence of implementing legislation for the Registered Partnership Act results in lack of legal clarity, so that it cannot be ruled out that errors of discretion occur when implementing the Act.
The Supreme Court affirmed that the Registered Partnership Act is valid even without implementing legislation. The Act is part of the Estonian legal order and it must be applied in conformity with other legislation.
Amendment of the Equal Treatment Act
The Ministry of Social Affairs prepared a Draft Act on amending the Equal Treatment Act with a view to ensuring more extensive protection against discrimination on grounds of religion or belief, age, disability or sexual orientation. To date, such protection is only regulated in the field of work and occupational activities. The Draft Act also stipulates that no one may be discriminated against on those grounds when providing goods and services (including access to housing).
Several persons sought the Chancellor’s opinion on the Draft Act and asked how to implement simultaneously the prohibition on discrimination and freedom of religion when providing goods and services to the public, for example when buying or renting housing.
In her reply, the Chancellor explained that the state must ensure protection against discrimination in all walks of life, including legal relationships between persons in private law (§§ 13 and 14 of the Constitution). The requirement also arises from international human rights instruments. Frictions between fundamental rights must be resolved by applying the principle of proportionality. Prohibition of discrimination only applies if a person offers goods or services to the public. Thus, interference with the right to property or freedom of contract is mostly proportionate, but the circumstances of a particular case should always be taken into account. As a rule, refusal to provide goods or services (including accommodation) to people belonging to a sexual minority cannot be justified merely on grounds of beliefs (e.g. that partnership between people of the same sex is contrary to God’s will).
The right of a same-sex partner to join a family member
During this reporting year, the Chancellor was again asked whether it was compatible with the Constitution and European law that an Estonian citizen’s same-sex partner who has entered into a registered partnership contract or married abroad cannot apply for a residence permit on the same grounds as spouses or a cohabiting couple of different sexes.
In 2015, the Chancellor made a proposal to the Riigikogu to bring the Aliens Act into conformity with the Constitution. Although the Riigikogu supported the proposal, the Act has not been amended to date.
The right of a refugee to change their name
A person who has received refugee status in Estonia cannot change their name. The person writing to the Chancellor claimed that Tallinn Vital Statistics Office refused to accept the relevant application.
Under legislation, an Estonian citizen and an alien who is not a citizen of any country and is living in Estonia on the basis of a residence permit may apply for name change. Refugees are deemed to be de facto stateless persons because, by granting them international protection, their legal relationship with the country of origin ceases. So they cannot apply to the country of citizenship to change their name. Estonian identity documents are also issued to a refugee, so that the authorities can document the person’s name change in Estonia.
The Chancellor found that since the right to change one’s name also extends to persons who have been granted refugee status, and the legal situation of refugees is different from the situation of other third-country nationals (because essentially they are in the same situation as stateless persons), the Names Act must be interpreted in conformity with the Constitution and international treaties.
Applying for citizenship
The Chancellor was asked to assess the situation where a Syrian citizen could not apply for Estonian citizenship because they are not released from their current citizenship. Under the Citizenship Act, an Estonian citizen may not simultaneously hold the citizenship of another country. The requirement of release from previous citizenship does not apply to a person who has been granted international protection.
The Chancellor found that unequal treatment could be suspected if a person is in the same situation as a person entitled to international protection. According to statistics, 91 per cent of international protection applications by Syrian citizens were granted in the fourth quarter of 2017. Also when a person has arrived in the country based on another lawful ground (e.g. in the frame of family migration), the reason to settle in the country may be the situation in the country of origin which serves as a basis for granting international protection. Due to an armed conflict in the country of origin, normal administrative organisation might not be functional there. These circumstances must be taken into account in administrative court proceedings. In the course of proceedings, an assessment must be made as to whether the exception under the Citizenship Act can be applied by analogy.
Status of an asylum applicant after the administrative court’s negative decision
The Chancellor was asked to clarify the status of an asylum applicant after the Police and Border Guard Board (PBGB) had rejected their application and the administrative court dismissed the appeal against that decision. Under the Act on Granting International Protection to Aliens, a final decision is, inter alia, a decision by the PBGB to reject an application or revoke international protection, the appeal against which has been dismissed by the administrative court.
Deeming the administrative court decision to be a final decision raises the question as to the status of an applicant for international protection during the proceedings taking place in the court of appeal or the Supreme Court; as well as in a situation where the court annuls the PBGB decision and remits the case for re-consideration to the PBGB.
The definition of a final decision arises from European Union directives. The Chancellor is not competent to carry out an abstract review of whether legislation conforms to European Union law. However, application of law must take into account the obligations arising from EU treaties and the relevant directive, as well as the case-law of the EU Court of Justice. The Chancellor is not aware of any cases to date where the rights of applicants for international protection (e.g. the right to work or receive services) would have been restricted after the administrative court decision. If necessary, an assessment should be carried out in the frame of a specific legal dispute as to whether the rules are in conformity with EU law and the Estonian Constitution.
Detention of asylum applicants
The Chancellor was asked to express an opinion on whether detention of an applicant for international protection was lawful after the PBGB renewed proceedings to examine their repeat application for international protection. The PBGB applied for court authorisation to detain the applicant in connection with initiating expulsion proceedings, but did not file a new application with the court after renewing international protection proceedings.
Under the Act on Granting International Protection to Aliens, the PBGB must apply for a new court authorisation if the person files an application for international protection during expulsion proceedings.
In the Chancellor’s opinion, no legal basis existed to detain the applicant. The Chancellor recommended that the PBGB should file a new application with the court to obtain an authorisation for detention, if detaining that person is still necessary.
Twenty-first century employment relationships and the labour market are characterised by flexibility. People are expected to show more flexibility than before in changing jobs, retraining, and adapting to change. The main yardstick for the labour market is no longer the total number of full-time employed persons. Increasingly, more people are simultaneously active in several fields, have different sources of income, use different forms of work, while the boundaries between entrepreneurship and traditional work are getting fuzzier.
These changes are also reflected in questions sent to the Chancellor, which, similarly to previous years, concern first and foremost social security issues. The consequences of changes appear most clearly in this area.
More up-to-date unemployment insurance
While the previous concept of unemployment insurance certainly met the needs of its time, changes in the nature of work and in the labour market compel us to find more flexible solutions.
In a petition sent to the Chancellor, a person explained that even though they had lost their main job the state refused to pay them unemployment insurance benefit. Granting the benefit was prevented by a valid contract of mandate which the person had entered into as an expert serving on a committee under a ministry.
A person cannot be registered as unemployed if they have a valid contract for provision of a service under the law of obligations (e.g. a contract for services, a contract of mandate) regardless of how much, when and if at all a person receives remuneration under that contract. In the instant case, the expert received only symbolic remuneration for their contribution, and during the months when the committee had no work there was not even that remuneration. The restriction on registration as unemployed deprives a person of unemployment insurance benefit since the requirement of registration as unemployed is one of the preconditions for receiving benefit. This is so even if the person had previously paid unemployment insurance premiums and meets all other conditions for receiving benefit.
The Chancellor made a proposal to the Government and the legislator that, in future, unemployment insurance should be viewed as insurance against loss of work-related income, and the underlying premise should not be whether a person is engaged in some activity. In its judgment the Supreme Court affirmed that the decisive factor in the unemployment insurance scheme is not the existence of activity deemed as work but whether it is remunerated. Thus, the unemployment insurance scheme should be updated so that people who have lost their permanent work-related income could also receive unemployment insurance benefit.
A wider debate is needed on the issue of possible reconciliation of the existence of work-related income and unemployment insurance. Following the example of the parental benefit system, consideration could be given to the idea of continuing to pay unemployment insurance benefit even when an insured person has found work which does not provide the same income as previously, yet allows the person to maintain the habit of working and participation in working life. Accepting low-paid short-term work does not mean that the person’s work-related income is thereby restored. Therefore, a situation where casual work deprives an unemployed person of all state assistance in finding permanent employment might not be justified.
Similarly, a person currently cannot register as unemployed if they are enrolled in full-time study. Yet the state should make all efforts to promote life-long learning.
Forms of work and equal treatment
In connection with social benefits, an answer is needed to the question whether people may be treated differently depending on the form of work. The Constitution does not prohibit different treatment if a reasonable and relevant cause exists. Therefore, the purpose of different treatment must be analysed when granting benefits. When weighing different decisions, an assessment is always required as to whether the aim sought and the possible consequences are compatible with the changed needs of work and the labour market.
Still recently only fathers working under an employment contract were entitled to paid paternity leave. This trend was changed by reorganisation of the parental benefits scheme, making paid paternity leave an integral part of the parental benefit system. In future, a 30-day supplementary parental benefit (to which only the father is entitled) is available to all fathers regardless of their form of work.
In spring 2018, a similar issue arose when establishing a paid carer’s leave: whether to grant entitlement to paid leave only to those next of kin and carers of a disabled person who work under an employment contract, or also to next of kin and carers who provide care to an adult person with profound disability but work in a different form.
Employment contracts differ from other contracts regulating work (e.g. contract of mandate) or entrepreneurship by the fact that the law lays down the bases for employee vacations. If the law were not to do so, an employee and employer might not reach mutual agreement on issues of receiving/granting a vacation. That would harm the employee’s interests. People engaged in other forms of work have considerably more freedom in organising their working life. They can decide themselves whether and when to have a vacation. Despite this, the issue of a paid vacation may be just as important for them as for people working under an employment contact – if they lose financially when taking carer’s leave, a risk exists that they might not take a vacation at all.
The risk of abuse might also not significantly depend on whether a person works under an employment contract or in some other form. At first sight, it may seem that people who decide themselves over their vacation (e.g. self-employed persons or people working under a contract of mandate) might not even go on vacation but nevertheless use the opportunity to receive remuneration for carer’s leave from the state. In actuality, the same suspicion may arise with regard to people working under an employment contract. The state cannot or even should not monitor whether a person uses the time intended for carer’s leave in the interests of the person under their care or does something else during that time. Certainly, it is important to prevent abuses, but this is also possible in a system which is more flexible than currently and takes account of the changes in the labour market while also keeping in mind the principle of equal treatment.
The Riigikogu resolved the dispute over carer’s leave in a spirit of compromise by introducing a statutory provision obliging the Government to analyse the problem and submit relevant proposals to the Riigikogu. The Government must consider whether also to give entitlement to carer’s leave to those who do not work under an employment contract, more specifically people working under a contract for services under the law of obligations or people holding a position in public law as independent entities.
International labour market
The social security coordination legislation in force in the European Union should ensure that movement in EU countries would not entail any negative consequences for people. However, implementing this principle is complicated.
During the reporting period, the Chancellor received numerous complaints that obtaining an unemployment insurance benefit or work ability allowance has taken very long. For example, the Chancellor found that assessing a person’s capacity for work and granting them a work ability allowance by the Estonian Unemployment Insurance Fund had clearly taken too long, even in view of the fact that communication with officials in another country and application of European Union legislation was required. The Chancellor recommendedthat the Estonian Unemployment Insurance Fund should avoid unnecessary delays in future and should always keep people informed about the status of resolving their application.
There has also been confusion with Estonian laws regulating cross-border cases. For example, the unemployment insurance benefit of a person who has worked in the European Union may turn out to be significantly lower than the benefit of a person who worked outside the European Union or decided not to work at all during the same time. This could be so even when these people paid the same amount of unemployment insurance premiums in Estonia. The Chancellor drew the attention of the Riigikogu Social Affairs Committee to the problem, as a result of which the Ministry of Social Affairs also started looking for a solution.
People themselves must also make an effort to obtain compensation or a benefit. If a family moves abroad, thought should be given to, for example, which Estonian authorities need to be informed about this. The Chancellor had to explain that the state can continue paying a child allowance to a child at least 16 years of age and studying abroad only if the state has data about the fact that the child is studying. Data on children studying in Estonia are recorded in the Estonian education information system, but the Social Insurance Board needs to be specifically notified of the fact of a child studying abroad.