eSToNia, RepUBLiC oF
5. Social security rights 15 1. Principle of social justice
According to § 10 of the Constitution of the Republic of Estonia, the basic principles of the constitution are human dignity and social justice (Sozialstaat). The basic social rights can be derived from these principles, including also the ones mentioned in Constitution § 28. The content of social rights is to prevent the damage proceeding from the realisation of social risks and to mitigate the consequences of the occurred damage, and by this ensure the dignity of human life. A dignified life has to ensure that the immediate needs of a human being (e.g. food, clothing, hygiene, health care, transport, and housing) are met and a person can actively and without being embarrassed take part in everyday life. When the everyday management of the human being is ensured, human dignity in general is guaranteed. When a human being can lead a dignified life, also the stability and unity of the society is ensured.
Based on the fact that the constitution proceeds from the autonomy and freedom, a human being himself/herself is responsible for ensuring dignified human life. Among other items of the Constitution, a variety of rights are ensured as follows e.g § 19 guarantees the right to free self-realisation, § 29 ensures the right to freely choose the area activity, profession and position of employment, § 32 the property of every person, § 34 the right to inviolability of family and private life. If a person is unable to cope with his/her management, according to Constitution § 27 subsections 3 and 5, it is the duty of the solitary family (the natural or horizontal solidarity of the family) to help and provide for them. If a family is unable to provide for the needs of a family member adequately, the society has to provide for the person’s needs partly or at full. Hence, the state’s duty to ensure dignified human life by providing for the basic social rights is considered only as the third option.
Briefly, the relevant content of the principles of a social justice declare that a human being should not be left alone in trouble. The state has to take care of those citizens, who are not able to provide livelihood and ensure their subsistence. When talking about the principles of the social justice, the objective and subjective dimensions have to be differentiated.
The objective obligations of the representatives of the state power proceed from the principles of the social justice. When making decisions based on social-political choices, the legislator has to act in compliance with the nature of the principles and basic rights of the Constitution. As the measures applied for social purposes include the inevitable re-distribution of benefits, the objective dimension of the social justice provides additional statements to justify for example the restrictions on the right of property (PS § 32) or taxation (PS § 113).
As far as the subjective dimension of the social justice is concerned, the first sentence of § 28 subsection 2 describes the state’s duty in regard to a person in need “entitled to state assistance in the case of need, the prejudice of which gives the right to have recourse to the courts and the court has the right to check the compliance of the act providing social rights with the Constitution”. 16
According to the principles of human dignity, the minimum means of subsistence cover the immediate needs, including adequate food and clothing, which correspond to the prevailing weather conditions, bed for sleeping in a room heated during a cold season, basic toiletries and washing facilities, basic medical care and education, which enables to cope with life. The basic right to dignified subsistence proceeds from the combined impact of the principles of human dignity and the subjective dimension of the social state.
The increase of general welfare may have an impact on the re-distribution of the level of minimal needs, from which we cannot exclude the possibility that due to the development of the society the social means the level of subsistence may also rise at some extent.
15 About the Estonian social security system see also: L.Leppik. Estonia, in D.Pieters. The social security systems of the states applying for membership of the European Union, Intersentia 2003, pp 44-58. T. Dijkhof. International social security standards in the European Union. The cases of Czech Republic and Estonia. Intersentia, 2011, pp 195-295.
16 The Decision of 21.01.2004 of the Constitutional Review Chamber of the Supreme Court No. 3-4-1-7-03, p 16.
Estonia
5.2. Right to health protection
The state has to fulfil several obligations proceeding from the person’s right to health protection and the international legislation.
According to Constitution § 28 subsection 1, the state is obliged to protect the mental and physical health of indefinite number of citizens by applying preventive measures. The state has to apply measures to ensure that people’s living environment is healthy and safe (e.g. quality of the air, safe noise level, food safety; protection from radiation; protection from asbestos). Illnesses (e.g. contagious diseases, occupational diseases, depression) and injuries (e.g. caused due to a dangerous toy) and death (e.g. lethal traffic accidents) have to be avoided. Measures applied to ensure healthy and safe living environment (e.g. requirements established to, water quality, the safety of the passenger transport, waste management;
prohibition provided in the legal act to handle narcotics and psychotropic substances and a corresponding punishment for the breach of it) have to be reflected in legal acts. As the established requirements are useful only when they are followed, the efficiency of state supervision has to be focussed on.
Besides the obligation to ensure a healthy living environment, the state has to apply various preventive measures in order to guarantee the possible highest level of citizens’ mental and physical health (e.g. vaccination, health education). Focussing on the citizens’ health and the application of preventive measures is considered important by the United Nations Organisation, the European Council and on the level of the European Union. In addition, the state has to create and operate a health care system via which a citizen as an access to a high quality health service in case of an illness or injury without an unreasonable long delay, and a substitute income in case of temporary inability to work. The state is obliged to create a collectively financed social welfare system, which ensures an access to the health service to the majority of the population, including economically non-active citizens (including children, unemployed drug addicts, people permanently incapacitated for work). The obligation of partial financing of the health service is not excluded; however, the size of the charged fee has to ensure a citizen the economic availability of the service. The state has to create a social welfare system to provide substitute income to people in case temporary inability to work is caused to an economically active person due to an illness or injury.
Constitution § 28 states the person’s right to protection of health. Although according to the mentioned paragraph the right to health protection is established, it is not clear whether the right to health protection also includes the right to health insurance. In Estonia it has to be kept in mind that the right to health protection may be ensured in two different ways. On one hand and according to the Health Services Organisation Act, 17 every person has a right to assistance in case of emergency. The emergency aid is financed from the state budget. On the other hand, in order to receive full health insurance protection, the person must be insured or to be viewed equal to an insured person. 18 An insured person is a person who pays for or for whom a part of social tax (the health insurance part) is paid in the health insurance fund. A person equal to an insured person is covered by health insurance according to the law, for (children, pensioners, pregnant women). 19
Health insurance protection is ensured to all Estonian citizens and foreigners, who stay in Estonia and have at least a temporary residence permit or a temporary right of residence. In case of the above-mentioned persons the same restriction is valid – either the employer pays the social tax for the health insurance or they enter into an insurance agreement with the Health Insurance Fund. Emergency care is guaranteed to all people, who happen to be on the territory of Estonia, and which provision does not depend on the basis that allows them to be of the territory of Estonia. Therefore, it may be stated on the basis of the Constitution that the right to health protection is ensured to a person, but the above-mentioned right does not automatically mean that the Constitution guarantees the right to health insurance to any person.
17 § 5 and 6 Tervishoiuteenuste korraldamise seadus (Health Services Organisation Act, (english translation available:
http://www.riigiteataja.ee), RT I 15.04.2014,5,
18 §5 Ravikindlustuse seadus (Health Insurance Act, english translation available: http://www.riigitetaja.ee), RT I 2002,62,377
19 According to the data of Estonian Health Insurance Fund, the number of people subject to health insurance as of 31.12.2013 was 1.23 million. Taking into account the fact that according to the last census carried out, the population in Estonia was 1.3 million people, the number of people not covered by health insurance is about 75 000.
5.3. Pension insurance
A person’s constitutional right to state pension insurance proceeds from Constitution § 28. According to Constitution § 28 subsection 1, everyone is entitled to state assistance in the case of old age, incapacity for work, loss of provider, or need. The categories and extent of the assistance, and the conditions and procedure for its allocation shall be provided by law.
Estonian pension insurance consists of three different pension systems. Firstly, there is the general state pension insurance, which provides aid to a person in four cases as follows: due to age (old age pension), incapacity to work (pension for incapacity to work), the loss of provider (survivor’s pension) and the minimal pension insurance, which is the national pension. 20 The conditions for receiving the state pension are provided in the State Pension Insurance Act. To ensure the better protection of the population at the retirement age, the Estonian parliament established an additional pension scheme – mandatory funded pension already in 2002. The mandatory funded pension is not ensured by the state, but is managed by different private pension funds. The mandatory funded pension is received on condition that the person has reached the old-age for receiving old-age pension, established by the state. 21 The third type of the pension constitutes specials pensions. Special pensions are financed from the state budget and are paid to certain people for having worked in specified areas. Special pensions are established to some groups of employees who have worked in various public sectors (police, prosecuting authority, defence army, rescue service), and some people working in the private sector (hard work performed in especially hard working conditions, superannuated pension). Based on the above-described information, Estonia guarantees the constitutional right to state assistance in the case of old age, incapacity for work, loss of provider.
According to Constitution § 28, the mentioned assistance is guaranteed to Estonian citizens, however, according to Constitution § 28 subsection 2, the assistance may be extended to foreign citizens. According to different legal acts dealing with the pension insurance, the payment of the state pension is guaranteed to permanent residents of Estonia and to persons and individuals living on the territory of Estonia with a temporary right of residence or residence permit. Hereby, the problematic issue of the accession in the mandatory pension fund has to be solved. According to the Funded Pensions Act, 22 it is not stated whether the foreign citizens coming to work in Estonia can join the described system or not. Concurrently, as the state pension system is ensured, the described situation does not violate the foreigners’ rights either. As far as the foreign citizen stays legally on the territory of Estonia, he/she is granted the benefits received via the state pension insurance in the case of old age, incapability for work and the loss of provider.
5.4. Social protection of the unemployed
As far as the social protection of the unemployed is concerned, the Constitution of Estonia provides no certain standards. The Constitution only establishes that the state deals only with the retraining of the unemployed. However, the Constitution does not specify what is meant under it. According to the Constitution, the state has to create a system, which guarantees the unemployed effective training and retraining courses. The Constitution does not establish which kind of benefits have to be granted to the unemployed by the state. Hence, according to the Constitution, the state has to guarantee the unemployed only the necessary training and retraining courses and services.
20 National pension is a kind of pension, which ensures minimal pension insurance to all people in Estonia. National pension is paid in case material conditions for receiving a pension (age, loss of ability to work, loss of provider) are met but qualification requirements (qualification period) are not met. In addition to the above-said, the payment of national pension is guaranteed in case when a person has reached the age of 65 and has lived in Estonia before applying for the pension at least five years.
21 According to the State Pension Insurance Act, the age of retirement for men and women is 63 years, starting with the year 2016 the retirement age starts rising until the year 2022, when both – men and women may retire at the age of 65., see § 7 (2), Riikliku pensionikindlustuse seadus (State Pension Insurance Act, available: http://www.riigiteataja.ee), RT I 2001,100, 648.
22 Kogumispensionide seadus (Funded Pensions Act), RT I 2004, 37, 252.
Estonia
At the same time, it may be stated based on the Constitution that the unemployed have a right to two types of assistance: firstly, the substitute income during the period of unemployment; and secondly, the assistance for returning to the labour market via a variety of labour market services. The state has to guarantee an unemployed person a substitute income from the collectively funded social insurance scheme, which in case of unemployment guarantees the majority of economically active population the right to receive adequate social insurance compensation during a reasonable period. If a person has not joined the social insurance scheme and gets no substitute income or the period of paying the compensation has ended, and the person has no money for living, social assistance has to be allocated to the person. The state may exclude social assistance in monetary form if the family is able to provide for the person.
Constitution § 29 subsection 3 part two establishes the state’s obligation to provide assistance to a person seeking for work. This provision together with Constitution § 28 subsection 1 and 2, gives a person the right to claim assistance from the state for a professional counselling service for re-entering the labour market. It is primarily the state’s duty to create labour market services, and ensure their quality and purposefulness. It does not exclude the option that private persons may provide labour market services, but means that the state is obliged to ensure the existence and availability of these services (economic, physical, temporal) and their compliance with the needs of the labour market.
5.5. Protection of family
The constitutional protection of family is endured by Constitution § 27. According to this section families with children are under state protection. The Constitution itself does not specify what the state protection actually includes. In case of families with children, the state may provide direct assistance (state family allowance) or indirect assistance (e.g. deduction of expenses related to bringing up children from the person’s tax return). In addition to the above-mentioned services provided by state, the assistance of state to families with many children holds an important place. State benefits are established in the State Family Benefits Act. 23 In addition, also the parental benefit provided by the state has to be pointed out. 24 The aim of the parental benefit is to give a parent an opportunity to stay at home with the child until the child is 18 months old. The size of the benefit is calculated from the employee’s salary of the previous year. In other words – a parent has a right to be at home with the child and receive a benefit, which size equals to her/his salary. For those people who have no salary the state has fixed a minimum benefit, which equals to the minimum monthly salary in the country.
Family obligations include the responsibility to take care of the child and to bring him/her up until he/
she is 18 years old, and taking care of adults who are incapable of taking care of themselves. The role of the state in the family management is mainly stated in the fact that the state ensures services, which support family life and, provides family income supplement. Proceeding from the international law, the state has to pay family or child benefits, ensure certain services (e.g. baby-sitting service), take care of a child without parental care, arrange care of an adult family member, etc. When paying compensations, the state may consider the family’s need for assistance, but also pay them universally without evaluating the need for assistance. The only important fact is that the payable benefits should form a significant addition to the income of numerous families. When a family is not able to cope, social assistance, including the payment for social services, has to be provided.
According to Constitution § 28 subsection 4, families with a large number of children as well as people with disabilities enjoy special care of the national government and of local authorities. It means that both – the state and the local authorities have to pay special attention to families with a large number of children and people with disabilities. This has to be considered upon the creation of legislation and its application.
The mentioned standard is based on the fact that having a family with a large number of children and people with disability may face significant obstacles and their realisation of human dignity and other basic
23 Riiklike peretoetuste seadus (State Family Benefits Act), RT I, 22.12.2013, 2.
24 Vanemahüvitise seadus (Parental Benefit Act), RT I,10.01.2014,14.
rights and freedoms may be hindered. Firstly, the social risks depending on a certain situation may cause expenses, which a person may not be able to bear unless becoming subject to extreme poverty. Secondly, the mentioned social risks may cause factual obstacles to the realisation of other basic rights, freedoms and obligations (e.g. mobility disability may hinder the right to choose a profession or a working position as provided in Constitution § 29 subsection 1).
Having many children and taking care of them causes major expenses and may hinder earning livelihood, because parents have to give up working partially or at full extent in order to care for the family.
Therefore, the families with numerous children are subject to the probable realisation of the possible risk of becoming poor. According to European Social Charter (Revised) article 12 and 16, among other things, to avoid families with numerous children becoming extremely poor, the state has to provide them with appropriate child benefits.