Equal treatment

In the area of equal treatment, the Chancellor checks conformity of legislation with the Constitution and laws, as well as checking the activities of representatives of public authority. The Chancellor also carries out conciliation proceedings where persons in private law have a dispute about discrimination.

During the last reporting period, the Chancellor received a total of 18 petitions with complaints about discrimination. Among them, six petitions concerned discrimination on grounds of disability, three on grounds of ethnicity, three on race, two on age, one on political or other belief, one on language, one on European Union nationality, and one on other grounds. In one case, the Chancellor initiated conciliation proceedings at the request of the parties. In other cases, the Chancellor mostly offered explanations. For instance, people asked whether a university applicant may be treated differently on the grounds of their ethnicity and nationality, or whether a student may be expelled from school because of their beliefs, as well as whether a landlord is obliged unconditionally to enter into a tenancy agreement with a person of any ethnicity.

In several cases, the Chancellor’s assessment was sought as to whether representatives of public power have complied with the principle of equal treatment. Those petitions mostly concerned the rights of people with disabilities and age discrimination. For example, the Chancellor had to assess whether Tartu Homeless Animals Shelter may refuse to give a kitten to an over-65-year-old animal lover and whether a child suffering from diabetes is entitled to attend kindergarten similarly to other children of the same age. In one instance, the Chancellor made a proposal to a rural municipality to amend the regulation, so that a child and their family would not be treated unequally in comparison to others. The topic of equal treatment was also the focus in several other petitions. For example, petitioners asked whether in paying family allowances the state may support families with many children  more than single-child and two-child families and whether a fee may be charged for social transport arranged by a municipality  while a disabled person could use the regular national bus service for free.

On 15 March 2022, the Supreme Court issued a judgment (in case No 5-19-29) holding that a person’s impaired hearing below the required threshold cannot be an absolute impediment for employment in the prison service. Rules must enable a decision as to whether an officer with impaired hearing is able to perform their working duties or not. The Chancellor submitted an opinion in this case already in 2019, finding that the relevant rules were unconstitutional since they did not enable assessment of whether poor hearing is an impediment to performance of a prison officer’s working duties and whether impaired hearing can be compensated by a hearing aid.

The Chancellor continued her work promoting the rights of people with disabilities. On several occasions, the Advisory Chamber of People with Disabilities, set up by the Chancellor, also convened. At the meeting of the Advisory Chamber on 25 October 2021, the topic was accessibility of buildings and services. On 11 May 2022, a joint meeting of the Advisory Committee on Human Rights and the Advisory Chamber of People with Disabilities took place on the topics “How and how well is equal treatment guaranteed in Estonia?” The Gender Equality and Equal Treatment Commissioner Liisa-Ly Pakosta introduced the legal space dealing with equal treatment and discrimination.

Close cooperation with the Estonian Chamber of People with Disabilities and its member organisations enables the Chancellor to more quickly resolve the problems of those in need. For instance, it was revealed that visually impaired people had been unable to use online calculators created after establishing the energy support measure because the possibilities of a screen reader were not taken into account when creating technical solutions. After the Chancellor’s intervention, the calculator was adjusted to be compatible with a screen reader.

The reputation of the Chancellor’s Office as a centre of excellence for the rights of people with disabilities is becoming ever more rooted. The Chancellor’s advisers have been asked for advice about accessibility and they have been involved in the work of working groups in several government agencies.

After the accessibility task force operating under the Government Office made several proposals to the Government for improving accessibility, the Chancellor’s Office plans to monitor implementation of the action plan.

Freedom of belief

The Chancellor was contacted by a student whom the university wanted to exmatriculate because their views (including about the reasons for the war in Ukraine) did not coincide with those of the traineeship institution.

Section 41 of the Constitution guarantees everyone the right to their opinion and beliefs. This provision also protects the freedom to be without an opinion or beliefs, as well as the right to change one’s beliefs. The fact that a student thinks differently from their school or its management about a topical event cannot serve as a reason to unenroll the student.

The right to education is a fundamental right which may only be restricted under the law (§§ 3 and 11 of the Constitution). Grounds for exclusion from a higher educational institution are laid down by the Higher Education Act. A school may exclude a student who, for example, has seriously breached the conditions of and procedure for organisation of studies, who harms other students or other persons with their behaviour, or who has committed a serious discreditable act. A school’s procedure for organisation of studies cannot establish other grounds for exclusion than those laid down by law.

Ethnicity and citizenship

During the reporting year, the issue arose whether third-country nationals and stateless persons living abroad are entitled to enter a university in Estonia and study here.

No subjective right for this exists.

Under the Aliens Act, an educational institution offering study places to foreigners incurs a number of obligations. Under § 38 of the Constitution, universities are autonomous within the limits laid down by law. Universities are free to organise instruction at and operation of the university. The right of self-organisation also extends to decisions on whether and what responsibility the university wants to assume for foreign students. At the same time, universities have no grounds to refuse to admit permanent residents of Estonia if they fulfil the admission conditions. The Higher Education Act does not lay down a possibility not to admit a student because of their citizenship.

In the first days of the war started by Russia, the Chancellor was asked why some shops in Estonia removed from sale Russian-language books produced in Russia, including children’s books. The Chancellor found that people of Russian mother tongue – let alone children – are not responsible for the war started by the Russian leadership against the Ukrainian state and people, nor for war crimes committed there. For this reason, such a decision was unfair. Bookshops changed their decision while admitting that before they place books on sale they examine the content of books produced in Russia so as to prevent, for example, distribution of war propaganda.

The Chancellor received a letter from a Belarusian citizen to whom a bank had refused to provide banking services due to their citizenship. The petitioner was given the explanation that a bank must enter into a basic payment service contract with a client lawfully residing in the European Union in the event of justified interest from a client. A bank must enter into a payment service contract and open an account for a person in respect of whom no suspicion of money laundering and terrorist financing exists and if the person and the contract terms sought by them conform to statutory requirements as well as the payment service provider’s general terms and conditions for services or standard conditions for provision of payment services. Nor may a bank refuse to enter into a basic payment service contract with a foreigner holding an Estonian residence permit or entitled to live here. A basic payment service contract must also be concluded with an applicant for international protection (within the meaning of the Act on Granting International Protection to Aliens) regardless of the person’s citizenship or residence. If a bank refuses to enter into a payment service contract, they must justify it.

The Chancellor was asked to analyse whether the principle of equal treatment is also observed on the housing market since many owners of dwellings allegedly do not wish to rent out their dwelling to foreigners due to lack of proficiency in a foreign language and cultural differences.

The Chancellor explained that it is not possible to assess in advance whether refusal to enter into a contract with a foreigner or whether taking certain aspects into account when doing so may be discriminatory or not. Since a landlord needs to communicate with a tenant, sometimes it may be justified to take into account the language proficiency of a landlord and tenant or the possibility to involve an interpreter. Assessment may also depend on the particular landlord: whether it is a single individual renting out one apartment or a company engaged in the business of renting out housing.

If a person rents out, for example, one room in their apartment where they also live themselves, they may proceed more from their preferences when choosing fellow residents. In the case of a wish, a landlord may also establish conditions for using the dwelling, which the tenant must observe and by which the landlord can prevent behaviour that they find inappropriate (for instance because of cultural differences). Thus, assessment depends on specific circumstances: the landlord, the tenant, as well as details of the dwelling to be rented. The landlord’s considerations and their relevance must also be taken into account.

Healthcare

Under § 28(1) of the Constitution, everyone has the right to health protection. This does not mean that a person could demand all healthcare services for free and without restrictions. The state enjoys a broad margin of appreciation in deciding how to ensure social rights to people. At the same time, the Supreme Court has emphasised that in doing so the core of fundamental rights may not be excluded from protection nor may unreasonable conditions be imposed on the exercise of rights (Supreme Court judgment in case No 3-3-1-65-03, para. 14). Nor may choices based on the state’s social policy considerations lead to a situation where the fundamental right to equality is violated when allocating the limited resources of health insurance (Supreme Court judgment in case No 3-4-1-12-10).

The approach to the right to health changes constantly. It is affected by several factors: on the one hand, development of medicine, and on the other hand, the fact that the right to health must be seen as evolving over time. This means that the state’s obligations in ensuring the right to health increase along with the state’s increasing financial and other possibilities. More information about this can be found in the book “Inimõigused“ (Human Rights) published this year (see the chapter “Õigus tervisele“ (The right to life)).

In several petitions the Chancellor was asked for an explanation as to why the Estonian Health Insurance Fund does not finance a certain service. People asked whether the Estonian Health Insurance Fund should pay in the same way for giving birth at home as for giving birth in a hospital. The Chancellor explained that, by relying on the Constitution, it is not presently possible to demand that a home birth should be included in the list of healthcare services financed by the Estonian Health Insurance Fund.

Legislation stipulates that the Estonian Health Insurance Fund only pays for giving birth in hospital. This has been justified by the fact that giving birth in hospital can be chosen instead of a home birth, and financing the home birth delivery assistance service is not practicable on health policy considerations.

Discussions about home birth usually focus on the issue whether hospital birth is safer than home birth. These discussions dwell on the risks involved in a home birth: mortality of newborn babies and factors endangering the health and life of mothers. However, little has been said about women’s satisfaction with the experience of giving birth. The state deems it important to protect the health of child and mother. Therefore, a question may arise how to find proper balance between several rights.

Analysis is needed as to whether possible risks of home birth could be mitigated more effectively if the state were to finance this service to some extent. Possibly, this could help develop the service. Under what conditions home births could be financed is for the state to assess in cooperation with experts, while taking account of newer medical and scientific achievements.

The Chancellor was also asked whether it is admissible that financing bariatric surgery (i.e. stomach reduction surgery) by the Estonian Health Insurance Fund depends on a patient’s weight. The Chancellor found that no reason exists to consider the current situation unconstitutional. Before the Estonian Health Insurance Fund decides to finance a healthcare service, expert opinions and clinical guidelines are taken into account which proceed from indications for medical intervention, scientific evidence, effectiveness, and safety. It is planned to update the guidelines for treatment of bariatric patients in 2022. Should it be found thereby that the regulation needs to be amended, it is possible to initiate amendment.

The Chancellor was asked why medicines for treatment of attention deficit hyperactivity disorder are not available at a discounted rate for those adults covered by health insurance whose disease manifested itself before the age of 20 but was diagnosed after the age of 20. At the same time, discounted medicines are available for patients whose disease was diagnosed before the age of 20. Due to such differentiation, treatment might be inaccessible for people who cannot afford the medication without a discount.

Under § 12 of the Constitution, unequal treatment of people in a similar situation is prohibited unless a reasonable and adequate justification for this exists and unless the objective of different treatment outweighs the severity of the resulting different situation. The Chancellor found that no reasonable justification existed for the unequal treatment described in the petition and proposed bringing the ministerial regulation into conformity with the Constitution.

The Chancellor has received several petitions expressing dissatisfaction about poor communication by healthcare workers. For instance, the Chancellor received a letter from someone wishing to donate blood but who was not allowed to do so because of medication they had used. Unfortunately, the person was offered contradictory explanations about this temporary restriction and was treated impolitely. The Chancellor drew the attention of the blood centre to the incident.

A donor must receive clear answers to their questions and they must also be able to understand the reasons for a temporary or permanent ban on donating blood. People must also be offered an explanation as to why blood or blood components may not be donated if this may entail a risk for a blood recipient.

The Chancellor was also asked whether blood-donating restrictions on men having male sexual partners were lawful. The Chancellor explained that the risks of sexual behaviour of a person wishing to donate blood and their suitability to be a blood donor can only be assessed by experts in the field relying on modern science-based opinions. Mere sexual intercourse between men within the last four months might not be the best justified or the only possible risk criterion to restrict donating blood.

When assessing the suitability of a blood donor, a doctor or a nurse analyses the person’s overall condition and physiological indicators and speaks with the person. On this basis, the medical professional can decide whether a person may donate blood or not. The safety of blood and blood components depends on whether a person wishing to donate blood is prepared to disclose truthful and complete information concerning their personal data and circumstances essential in terms of the safety and suitability for treatment of blood and blood components. Readiness for cooperation is better if the criteria for choosing donors are unequivocally understandable, sufficiently justified and necessary. Scientific literature contains references to the fact that in the event of excessive restrictions potential blood donors may consciously withhold truthful information.

Protection of the rights of people with disabilities

The Riigikogu ratified the Convention on the Rights of Persons with Disabilities and its Optional Protocol on 21 March 2012. In doing so, Estonia assumed the obligation to promote opportunities for persons with disabilities to participate fully and independently in society.

Under Article 4 of the Convention, States Parties must undertake all appropriate legislative, administrative, and other measures for implementation of the rights of people with disabilities.

The Chancellor of Justice Act contains a provision according to which, as of 1 January 2019, the Chancellor fulfils the role of promoter and supervisor of the obligations and aims set out in the Convention on the Rights of Persons with Disabilities. The Chancellor helps to ensure that people with disabilities could exercise fundamental rights and freedoms on an equal basis with others.

In line with Article 12 of the Convention on the Rights of Persons with Disabilities, no guardianship can be assigned to persons with disabilities. By ratifying the Convention, Estonia has declared that it interprets Article 12 of the Convention so that it does not prohibit considering a person to have restricted capacity if the person is unable to understand or control their actions. When curtailing the rights of people with restricted capacity, Estonia proceeds from its domestic law. In 2021, the Committee on the Rights of Persons with Disabilities recommended Estonia to review its declaration on Article 12 in order to ensure equal recognition before the law of all people with disabilities and making supported decisions in all areas of life.

Estonian laws prescribe that assigning a guardian is the measure of last resort taken to protect a person’s interests. Guardianship is not necessary if an adult’s interests can be protected by authorisation and through family members or other assistants. Thus, in principle, protection of a person’s interests could also be ensured without assigning a guardian since the person is assisted by family members or other assistants or the person’s matters are handled by someone authorised for this purpose. Unfortunately, these other measures cannot always be used. For example, if a person has insufficient capacity in terms of comprehension in order to issue a power of attorney, if a power of attorney issued before loss of ability to comprehend does not cover all necessary situations, or if issuing a power of attorney is not in the person’s interests.

In view of the Convention and the recommendation by the Committee on the Rights of Persons with Disabilities, the Chancellor asked the Minister of Justice and the Minister of Social Protection to let her know whether, how and when Estonia intends to introduce amendments to the guardianship system under the Family Law Act and related legislation.

For years, problems have been caused by lack of access to buildings. The Chancellor was asked who should make a decision on building a lift in a Soviet-period five-storey apartment building. The Chancellor noted that the decision can be made by apartment owners by proceeding from the Apartment Ownership and Apartment Associations Act. Building a lift in an older apartment building may be highly expensive, so that the costs cannot be left only for apartment owners to bear. Therefore, both the state and local authorities should be looking also for solutions to make older apartment buildings accessible to all.

The Chancellor was contacted with a similar concern by a wheelchair user who complained that the rural municipality government had not offered them sufficient assistance. Communication with the rural municipality government revealed that at first the person had wanted a lift inside the house but this could not be installed in the stairway. The person declined an outdoor lift and, instead, preferred a stair crawler.

The Chancellor found that it is one of the local authority’s duties to help ascertain how a person could actually be helped. Where necessary, a local authority should ask for assistance from an expert who is able to assess the person’s need for assistance and suggest specific solutions. The person should also be able to test whether the suggested aid device is suitable for them. The rural municipality government promised to provide all-round support until the person has been able to obtain a suitable device enabling access to their apartment.

In order to ensure that by the time of the 2023 Riigikogu elections people with disabilities have access to all polling stations, the Chancellor sent a memorandum to local authorities and the State Electoral Committee. While in 2019 only 60% of polling stations met the needs of people with restricted mobility, then by the 2021 local elections the indicator had risen to 80%, whereas 95% of main polling stations were accessible.

Adjusting buildings to requirements may be costly but this money should nevertheless be found. For instance, if a polling station has been set up on school premises, the Ministry of Education and Research has also supported adjustment of the school building. The Chancellor’s advisers had visited polling stations and found that some stations could be made accessible at relatively small expense – in some places it was sufficient to simply level out one step at the front door.

Ensuring a support person

The Chancellor was asked for assistance by a parent where a kindergarten had refused to admit their children with special needs unless accompanied by a support person. The parent was concerned that the kindergarten had also partially failed to comply with the recommendations given by the Rajaleidja network’s extra-school counselling committee under which the assistance of a special educator and a speech therapist was prescribed for the children.

In the course of resolving the petition, the rural municipality and the kindergarten admitted to the Chancellor that the municipality is of course responsible for enabling a support person for a child and the kindergarten cannot refuse to admit a child without a support person. The Chancellor recommended that the rural municipality should analyse how to resolve the situation where for some reason a support person cannot perform their tasks. The Chancellor also asked the municipality to comply with the Rajaleidja decision and provide the necessary extent of support services to children in the kindergarten adjustment group that the children attend.

The law does not allow refraining from organising support services merely because a kindergarten does not have enough support specialists. The services of a speech therapist and special educator must be offered on-site at a kindergarten but in justified cases this may also be done outside the kindergarten if this is in the child’s best interests and the municipality arranges the child’s transport to the speech therapist and back.

Another family was also concerned about the absence of a support person. The parent explained that for a long time their child had been unable to attend kindergarten because they had no support person. This, however, also interfered with the parents going to work and, moreover, the child failed to obtain preschool education at the kindergarten. Since other families living in Tallinn have also had problems with finding a support person for their child, the Chancellor asked Tallinn city to change the organisation of the support person service so that children in need of assistance actually do receive assistance.

One petition concerned kindergarten attendance by a child suffering from diabetes. Although all problems were resolved over time, the Chancellor analysed the kindergarten’s activity during the two previous school years and found that the kindergarten had failed to ensure the child a possibility to use the kindergarten place in line with statutory requirements. For a long period, the child could only attend kindergarten half a day at a time, and on several occasions the kindergarten asked that the child be left at home because the group teachers who were used to dealing with the child were not at work that day.

Since the family had on several occasions contacted the Tallinn Education Department for assistance, the Chancellor also analysed the lawfulness of the Department’s activities. In the Chancellor’s assessment, the activities of the Tallinn Education Department were not sufficiently productive in order to enable the child with a diabetes diagnosis to continue attending the kindergarten without impediments and in a manner appropriate to the child. For instance, the Department failed to assess whether the kindergarten’s activity complied with legislation. Nor did the Department try to resolve the situation when kindergarten teachers needed additional assistance to support the child but the city district administration refused to assign a support person to the child. The Department violated the principle of good administration when it failed to answer the parent’s questions. The Chancellor recommended that Tallinn Education Department should avoid such mistakes in the future.

Simplified curriculum

The Chancellor was asked to assess whether the extra-school counselling team from the Rajaleidja network had acted lawfully and in the child’s best interests when recommending a simplified curriculum for children. So far the Rajaleidja counselling team has recommended a simplified national curriculum only for children with a diagnosis of intellectual disability ascertained by a specialist doctor. In other cases, the recommendation has been to reduce learning results where necessary.

The Chancellor found that such practice is lawful and compatible with the child’s best interests. Based on information available to the Chancellor, however, the Ministry of Education and Research intends to expand the possibilities for applying a simplified national curriculum.

Assessment of the need for assistance

The Chancellor was asked for assistance by a family with a disabled child. The local authority assessed the family’s need for assistance but decided to help the family only when almost a year had passed from the moment of applying. Assessment of the need for assistance revealed that since the children needed constant assistance and supervision the mother’s burden of care was too heavy. The city granted a carer’s allowance to the disabled child’s family but this was not sufficient to prevent the mother’s burnout – this is the conclusion also reached by the city itself in its assessment of the need for assistance. Offering a kindergarten place or a place in childcare or assigning a support person would have been of assistance but the city had failed to pass those decisions and only limited itself to carrying out assessment.

The Chancellor explained that a person in need must be contacted as soon as reasonably possible if the situation so requires. After assessing the need for assistance, the local authority must decide whether and what assistance a person needs and to what extent and under what conditions it will be provided. A local authority may not limit itself only to carrying out assessment. A decision on provision of assistance must be made within ten working days.

Fee for the social transport service

The Chancellor was asked whether a fee may be charged for social transport arranged by a rural municipality while a disabled person can use national regular bus services for free. The Chancellor found that a municipality is entitled to ask people for an affordable fee for the social transport service (§ 16 Social Welfare Act). Saaremaa Rural Municipality Government had set 18 euros as the price of a ride to Tallinn. The ticket on a long-distance bus line Kuressaare−Tallinn also costs 12−18 euros depending on the operator. At the same time, according to social transport contracts entered into by Saaremaa Rural Municipality Government, for a ride with a vehicle transporting a stretcher from Kuressaare to Tallinn the municipality had to pay approximately 255 euros. Thus, it may be said that a discount was also available for people who, due to their disability, could not ride on a regular bus or use any of the national bus transport concessions. If the person found the social transport service at the cost of 18 euros set by the rural municipality government to be unaffordable, they could apply for an additional concession.

Being deprived of school support

Otepää rural municipality paid support for a child on first starting school only to those parents whose child was a resident of the municipality and entered a school in Otepää rural municipality. However, when establishing the conditions for support, the municipal council had failed to take into account that there also exist disabled children who, due to their disability, cannot attend that municipality’s school and must therefore choose another school. Yet those families were not paid school support.

The Chancellor found that depriving a parent of school support for this reason alone was not compatible with § 12(1) and § 28(4) of the Constitution since no reasonable justification existed for declining to grant school support. The objective of different treatment is to influence a parent to choose an educational institution located in the municipality. By declining to grant support, the municipality cannot influence the family to decide in favour of a school in Otepää rural municipality if, objectively, the child cannot attend a school in the municipality due to their disability. For this reason, the Chancellor proposed to Otepää Rural Municipal Council that it should bring the regulation into conformity with the Constitution. The council agreed with the proposal and amended the regulation.

Discrimination on grounds of age

Tartu Homeless Animals Shelter had established a rule that kittens are not given to animal lovers over 65 years old. The Chancellor found that in giving an abandoned animal to a new owner the animal shelter must definitely proceed from the animal’s well-being but, at the same time, it cannot decline to give someone an animal merely on grounds of their age.

Although, by taking a kitten, a person assumes a long-term obligation to take care of it, a person’s own ability to assess whether they can offer a good home for the animal should always be taken into account. Even when giving someone an adult cat it cannot be ruled out that the animal will outlive its owner.

It is also impossible to agree with the opinion that people cannot be given a kitten due to some inadequate cat-keeping habit. Such an opinion is prejudicial and does not justify an elderly person’s poorer treatment. It is possible to explain to people how best to arrange the animal’s life but the shelter may also impose specific conditions for keeping an animal at home.

However, imposing an age limit is not always discriminating. For instance, the age limit imposed on artificial insemination (50 years) is justified and compatible with the prohibition on discrimination arising from the Constitution and international law. In vitro fertilisation procedures are invasive and doctors, and medical science more broadly, must find solutions which are proportional, based on science and as safe as possible for patients. Moreover, it should be taken into account how a woman’s age may affect pregnancy and birth. For instance, pregnancy at an older age may pose a greater risk to a woman’s health: the risk of serious health problems increases as well as maternal mortality during pregnancy and giving birth.

It has been scientifically proven that after the age of 40 the success of in vitro fertilisation decreases sharply down to five per cent (see statistics). Thus, the age limit on in vitro fertilisation procedures is proportional and does not violate the prohibition on discrimination.