Equal treatment

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.

Under the Chancellor of Justice Act, the Chancellor carries out checks over conformity of legislation with the Constitution and laws as well as over 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 reporting year, the Chancellor received in total seven petitions with complaints against discrimination. Two of the petitions concerned discrimination on grounds of belonging to the LGBTI+ community, one on grounds of disability, one on age, one on language, one on ethnicity, and one on grounds of beliefs. As a rule, the Chancellor gave explanations in these cases, and on one occasion also made a recommendation on compliance with the principles of good administration. No initiation of conciliation proceedings was requested during the reporting year.

At the same time, the Chancellor resolved several petitions complaining about violation of the general fundamental right to equality. The Chancellor also gave her opinion on draft laws concerning the fundamental right to equality and to the Supreme Court in constitutional review cases.

Social rights

Paying sickness benefit to pregnant women

In the event of an employee’s illness, initially their replacement income is guaranteed by the employer and then by the Health Insurance Fund. Sickness benefit paid by the employer can be conditionally divided into two parts. The first part is mandatory sickness benefit (70 per cent of the employee’s average wage) and the second part is voluntary sickness benefit, which the employer can pay up to the employee’s average wage beginning from the second day of illness until the day when the Health Insurance Fund starts paying compensation to the sick person. 

There is a special scheme for payment of sickness benefit to pregnant women. From the second day of illness, they will be paid sickness benefit by the Health Insurance Fund. The amount of sickness benefit is 70 per cent of the income subject to social tax in the previous calendar year. An employer cannot pay sickness benefit to an employee who has fallen ill during pregnancy. If an employer were to pay sickness benefit to a pregnant employee at the same time as the Health Insurance Fund, the employer would have to pay social tax on this remuneration. It should also be taken into account that if a woman were to receive income subject to social tax at the same time as the Health Insurance Fund sickness benefit, she would lose her right to health insurance benefit. This places a pregnant employee in a worse position in comparison to other employees. 

No reason exists for worse treatment of a pregnant employee. If the state has decided to build the system of sickness benefits so that, in certain cases, it allows maintaining an average income for the sick worker, then all employees who have fallen ill must be able to take advantage of this opportunity. 

The Chancellor made a proposal to the Riigikogu to amend the law and allow pregnant workers to maintain proportionally the same amount of replacement income as the rest of the insured persons to whom the employer pays voluntary sickness benefit. The Riigikogu supported the Chancellor’s proposal.

Compensation for childcare service

The Chancellor made a proposal to Tallinn City Council to bring the first sentence of § 2(5) of the council regulation on the “Procedure for financing the childcare service” into line with the principle of equal treatment set out in § 12 of the Constitution. Under that provision, an application for childcare service compensation may be made only as of the day following termination of parental benefit for the child for whom childcare is purchased. 

When setting the conditions for the childcare service, the council failed to take into account that a family may also use parental benefit in parts, on a single-day basis, until the child reaches the age of three.

According to the regulation, parents who are not paid parental benefit or who receive parental benefit for another child who does not attend childcare are entitled to childcare service compensation. However, parents who need a place in childcare but who continue to be entitled to parental benefit are not entitled to childcare service compensation. This means that parents of children between the ages of one-and-a-half and three years old are treated differently when granting childcare service compensation. No relevant reason exists for such differential treatment.

Registration as unemployed

The Chancellor was asked why it was not possible for upper secondary school pupils enrolled in full-time study to use all the labour market measures stipulated for vocational school pupils. For example, upper secondary school pupils cannot register as unemployed.

The Chancellor approached the Riigikogu Social Affairs Committee with this question. On a proposal by the Social Affairs Committee, the Draft Labour Market Measures Act pending in the Riigikogu was supplemented. The parliament amended the law and, as a result, upper secondary school pupils can also be registered as unemployed in the future. 

At the same time, the law was also supplemented so that a student acquiring higher education in full-time study can also be registered as unemployed. The Labour Market Measures Act enters into force on 1 January 2024.

Ethnicity and citizenship

The Chancellor of Justice was approached by a European Union citizen whose partner with Russian citizenship was not granted an Estonian visa. A representative of the Embassy of the Republic of Estonia in Moscow had replied to the petitioner that only the spouse of a citizen of the European Union, and not a registered partner, could apply for a visa. The petitioner found the situation to be discriminatory. 

The Chancellor explained that it is possible for a registered partner of a citizen of the European Union to apply for a visa despite the fact that the government has imposed sanctions on citizens of the Russian Federation. According to the government regulation, sanctions do not apply to people who apply for a visa and who enjoy the right of free movement under European Union law. The legal status of a European Union citizen and their family member is regulated by the Citizen of the European Union Act. Under this law, the registered partner of a European Union citizen is also considered to be their family member. 

The Chancellor was also contacted by a person who had married a same-sex partner abroad. The problem was that, even though Estonia does not recognise such marriage, Estonian notaries did not allow the couple to enter into a registered partnership contract either. For this reason, the person could not apply for a residence permit to settle with their same-sex partner. 

The Chancellor explained that it must be possible to enter into a registered partnership contract even if same-sex partners have registered their marriage in a foreign country. Such cases have been heard in Estonian courts. It is quite common for people of the same sex to marry in a foreign country, but this marriage is not recognised in their country of residence. In this case, these people can legitimately formalise their relationship in Estonia only through a registered partnership contract. After conclusion of a registered partnership contract, it is possible to apply for a residence permit to settle with a same-sex partner.

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 can exercise fundamental rights and freedoms on an equal basis with others.

In spring 2023, the first composition of the Advisory Chamber of People with Disabilities, convened by the Chancellor of Justice in 2019, finished its work. The purpose of the Advisory Chamber is to advise the Chancellor of Justice in carrying out her tasks of protecting, promoting and monitoring the rights of people with disabilities. The new composition of the Advisory Chamber will start its work in autumn 2023. 

During the reporting year, the Advisory Chamber analysed how people with disabilities can participate in cultural events. The final report of the Accessibility Task Force, which had already been completed a couple of years ago, sets out proposals that should be implemented in order to achieve accessibility. Unfortunately, no progress has been made in this matter. Therefore, the Chancellor of Justice reminded the Minister of Culture of her responsibilities in this area and asked her to consider ways in which the Ministry could speed up implementation of proposals made by the Task Force. 

At the end of the year, the Chancellor was approached by Jüri Jaanson, a member of the Riigikogu, who pointed out that the end-of-year interview with the President that aired on the Estonian Public Broadcasting (ERR) television channel was inaccessible to hearing impaired people as it was not subtitled. The Chancellor contacted the management of the ERR for clarification. 

For several years, the Chancellor has drawn attention to accessibility of broadcasts of significant national anniversary events by Estonian Public Broadcasting. Although, for example, the concert ceremony of the anniversary of the Republic of Estonia has been broadcast with an audio description for some time, the decision to include an audio description is made every year only after reminders from representative organisations of disabled people and the Chancellor of Justice. Thus, when planning the television broadcasts of the celebrations of the 105th anniversary of the Republic of Estonia in 2023, it was found once again that ensuring accessibility was not the responsibility of either the organiser of the event or the broadcaster. The broadcast of the concert performance was nevertheless provided with an audio description, which was also supported by the Office of the Chancellor of Justice. The Chancellor asked the Minister of Culture to take into account the costs of ensuring accessibility when making proposals for allocating money from the state budget to the ERR. 

In spring, the Advisory Chamber of People with Disabilities also discussed the impact of the changes proposed by the new civil contingencies law on people with disabilities. The Chancellor sent the Advisory Chamber’s proposals to the Government Office.

Supporting people with no capacity for work

The Chancellor was also asked to justify why only old-age pensioners can receive the single pensioner allowance. The Estonian Association for the Blind proposed that people with no capacity for work should be paid the same one-off benefit as pensioners living alone. 

The Chancellor explained that the conditions for payment of the allowance depend on political choices, which the Chancellor of Justice cannot assess. However, people may propose to the Riigikogu to amend the law.

The petition by the Estonian Association for the Blind prompted the Chancellor to draw the attention of the Riigikogu (see presentation, page 2 para. 5) to the fact that the current work ability allowance is not sufficient.

Under § 28 of the Constitution, people have the right to assistance from the state in the case of incapacity for work. The Constitution also stipulates that persons with disabilities are under the special care of the state. This means that in the event of loss of capacity for work (and the resulting loss of income), a person must be offered financial support in an amount that protects them from poverty and maintains a reasonable proportion to their previous income. 

In Estonia, people with reduced capacity for work are paid work ability allowance, the amount of which is calculated on the basis of the daily rate of work ability allowance established by law, which is indexed similarly to the state pension. As of April 2023, the indexed daily rate is 18.60 euros, which makes the amount of allowance paid to a person with no capacity for work 558 euros a month on average. 

Under the European Social Charter, it has been agreed that if someone is deprived of income due to loss of capacity for work then the state must ensure them income that should not be lower than 50 per cent of the median equivalised net income of a member of household. If a person additionally also receives other benefits, adequate compensation paid in case of a decrease in the capacity for work may be 40-50 per cent of the median. Compensation of less than 40 per cent cannot under any circumstances be considered sufficient. Since the latest data on the median equivalised net income in Estonia is from 2021, we can only make a comparison for that year. The median equivalised net income in 2021 was 14 826.67 euros. Work ability allowance accounts for only 37.1% of this. Although the calculations have been made for 2021, there is no reason to believe that the situation has improved significantly by now. This means that the daily rate of work ability allowance should be raised. 

The Chancellor’s assistance was sought by a person with no capacity for work whose work ability allowance in one month was reduced so much that in that particular month they only received 35.28 euros. The person found themselves in this situation because, in the month of termination of their employment, they had been simultaneously paid the last month’s salary along with the salary for the month of termination of employment, as well as remuneration for unused vacation days. 

The employer declared the social tax payable on these amounts to the Tax and Customs Board at the beginning of the next month, so that the Estonian Unemployment Insurance Fund considered these amounts to be income for this month. The Unemployment Insurance Fund reduced the person’s work ability allowance in the second month following termination of employment so much that the person was essentially left without any income in that month. If the person had left work at the beginning of the calendar month and not at the end of the month, their work ability allowance would not have been reduced. 

It is clear that the person was caught in the cogwheels of the system. Therefore, the Chancellor approached the Riigikogu Social Affairs Committee. The Social Affairs Committee discussed the Chancellor’s application in two sessions in January 2023, but no solution was reached in the Riigikogu. The Chancellor drew attention to the problem once again in a written presentation (see page 3 para. 6) sent to the Social Affairs Committee of the new composition of the Riigikogu at the end of May. (See also the chapter on “Social protection”.)

The Estonian Unemployment Insurance Fund estimates that currently about 20 per cent of people with no capacity for work are engaged in work (the total number of people with no capacity for work is approximately 38 000). The Chancellor has been asked why it is not possible for people with no capacity for work to apply for occupational rehabilitation services. The overall aim of the work ability reform was to help people who are prevented from working due to health problems to find work within their abilities.

The state should not deprive people of necessary assistance if, with such support, they could work even a little and thereby improve their material and mental well-being.

The Chancellor informed the Riigikogu Social Affairs Committee of the concerns of people with no capacity for work, so that the Riigikogu could consider the possibility of granting the right to occupational rehabilitation also to those people with no capacity for work who wish to continue working or find new work within their abilities.

Paying for special care services

The guardian of a person receiving special care services wanted to know if a care home is entitled to charge from a resident a higher fee for a place in the care home than laid down by law. The Minister of Social Protection has established the conditions for provision of special care services. However, if the service is provided in better conditions than prescribed, the Social Welfare Act allows charging a higher fee for the service than normally. 

The Chancellor found that the conditions for payment of expenses for accommodation and meals for people living in better conditions, as well as annual changes to payment conditions, may remain incomprehensible to care home residents and their representatives. For this reason, the Chancellor proposed that the Social Insurance Board should include a clause against unexpected price increases in future contracts concluded between the Social Insurance Board and a service provider. This would help to better protect people’s rights and interests. The Social Insurance Board promised to do so.

The Chancellor was also approached with a concern that Tallinn did not sufficiently support the people receiving the supported daily living service in paying the expenses for special care service. The Chancellor explained that Tallinn city has helped to pay the own contribution of those people receiving 24-hour special care services in better conditions than required by law. The city pays them support on the basis of the procedure for the provision of social assistance laid down by the municipal council. Under this provision, assistance may be given in the case of emergence of exceptional circumstances or an urgent problem.

The Chancellor asked Tallinn City Council to consider whether and under what conditions the city could permanently pay support to those people receiving special care services who do not have enough money to pay their own contribution.

The personal care assistant service for a ward

The Chancellor was also asked whether a personal care assistant could be appointed for the ward.

The aim of the personal care assistant service is to increase the self-sufficiency of an adult who needs physical assistance due to disability, as well as to reduce the burden of care for the person's legal carers. A personal care assistant helps a person with their daily activities, such as moving around, eating, preparing food, dressing, household chores and other activities (§ 27(1) and (2) Social Welfare Act). Thus, it is important that due to disability the person needs physical external assistance in their everyday activities.

The Chancellor explained that if a person with intellectual disability in need of physical assistance is able to communicate what they want within the limits of their communication skills (for example, asking to be supported when moving from one room to another), there is no reasonable justification why the possibility of using a personal care assistant should be restricted only because the person in need has an intellectual disability or that, for example, in financial matters their legal capacity is limited. Failure to provide a personal care assistant to someone with restricted legal capacity would be contrary to international agreements. The Revised European Social Charter (Art 15 para. 3), as well as the UN Convention on the Rights of Persons with Disabilities (Art 19), stipulate that people with disabilities have the right to independent living (General Comment by the Committee on the Rights of Persons with Disabilities, No 5 (2017), paras 8, 16 (c, iv), 17, 21).

Ill-treatment of children in a closed childcare institution

In January 2023, three former employees of Lille Home of AS Hoolekandeteenused were convicted of ill-treatment of disabled children. All the defendants were sentenced to a term of imprisonment on probation. Such a light sentence for this criminal offence breached people’s sense of justice and raised many questions among the public. The Estonian Chamber of People with Disabilities asked the Chancellor to assess the proceedings of the case. 

The Chancellor concluded that, in this particular case, existing legal provisions and the internal control systems of the institutions did not sufficiently protect the rights of particularly vulnerable children. The Chancellor asked the Riigikogu to consider establishing supplementary rules in order to be able to protect people in a vulnerable or helpless situation against ill-treatment or against degradation of their human dignity. This concerns care for both children with disabilities and adults with disabilities, as well as care for people in need of assistance and support due to age or illness (e.g. failure to help a person in need of support when eating and degrading treatment of those in need).

The Chancellor also called on the Riigikogu to consider whether it is necessary to introduce a lifetime ban on working with children if physical abuse of a child has been repeated or systematic. Under § 121 of the Penal Code currently in force, a convicted person may resume work involving children after deletion of the person’s criminal record from the criminal records database. In the Lille Home case, this is three years after the end of the probation period imposed by the court judgment.

Supporting children with special needs in kindergarten

Children with special needs have the same right to attend kindergarten as all other children. If necessary, the local authority must appoint a support person for a child and the kindergarten must organise a speech therapist or other support service for a child if the child needs it.

The Chancellor was approached by a parent to whom the rural municipality refused to reimburse expenses incurred in connection with the child’s speech therapy. The pre-school counselling team had recognised that the child needed the help of a speech therapist, but this was not provided in kindergarten. The Chancellor explained that a child is entitled to receive free speech therapy in kindergarten. If a child is receiving speech therapy already in kindergarten, it is possible that when the child goes to school they no longer need the help of a speech therapist or need it much less. 

Speech therapy options in a kindergarten must be created by the owner of the kindergarten, i.e. a rural municipality or city, and the help of a speech therapist must be organised by the director of the kindergarten. A municipality cannot refuse to provide support to a child due to the fact that there is no speech therapist in the kindergarten. If a local authority places performance of its task on a parent, the local authority must at least reimburse the expenses incurred by the parent. 

The Chancellor of Justice noted that a child must be provided with the necessary assistance even if the family is economically well-off or if the child has not been found to have a disability. Regardless, the local authority must fulfil the duties imposed on it by law. 

The Chancellor’s assistance was also sought by a parent whose child with diabetes could not attend kindergarten because sufficient support was not provided there. The Chancellor’s advisers contacted the local authority, and subsequently the city, in cooperation with the kindergarten, found a solution to the problem: a support person was appointed for the child, the procedure for replacing the support person was agreed, and the kindergarten prepared itself to support a child diagnosed with diabetes.

The status of sign language 

The Chancellor of Justice was asked whether Estonian sign language is an official language of Estonia and whether the state has an obligation to develop sign language and enable its use. The Chancellor explained that, within the meaning of the Constitution, Estonian sign language probably cannot be an official language. Sign language is not a sign system that is uniformly used throughout the country and that unites the nation, and knowledge of which can be required from all public authorities and service providers.

Although sign language cannot be regarded as an official language within the meaning of the Constitution, both the Constitution and international law instruments stipulate a number of obligations relating to sign language. Estonia must recognise sign language and deaf culture and ensure sign language interpretation services so that hearing-impaired people can participate in society on an equal basis with others. Of course, hearing- impaired people must also be guaranteed access to education.

The Chancellor explained that the state needs to develop sign language and promote opportunities for its use. Clearly, quite a lot still needs to be done in this area.