Estonie

RIGHT TO SOCIAL SECURITY IN ESTONIAN CONSTITUTION

Dr. Gaabriel Travis

 

I. HISTORICAL DEVELOPMENT AND CONCEPT OF THE PROTECTION OF THE SOCIAL RIGHTS

1.1 The concept of social rights

The concept of social rights is not uniquely developed in Estonian legal system. In the professional literature, social rights are classified in compliance with the broader and narrower terms. The right to an adequate standard of living is considered to be the core of the social rights, which requires as a minimum everyone to be provided with the opportunity to use the rights necessary for existence such as the right to adequate food, clothing, housing, and adequate care. Certain rights of a social nature are necessary to ensure these rights, such as the right to property, the right to work, and the right to public assistance.

When speaking of the social rights in the narrower terms, the following social rights are brought as example in Estonian professional literature: the universal right to public assistance (Constitution (hereinafter PS)  Art. 28 (2)), special obligation to care for families with a large number of children and persons with disabilities (PS Art. 28 (4)), the right to protection of health (PS Art. 28 (1)), voluntary and local government welfare services promotion (PS Art. 28 (3)) and assistance in finding employment (PS Art. 29 (3)).^[1]

However, other social rights have been recognized, as well, such as the right to freely choose employment (Art. 29), equal treatment of persons (Art. 12), the state's obligation to provide free legal aid.^[2] This section reviews the fundamental social rights more broadly, not just the obligations for state assistance as of Art. 28. The rights concerning different field of social security is the main topic of the current chapter.

Fundamental social rights are based on the principle of human dignity, just like other fundamental rights. The Constitution requires the state to guarantee everyone a decent subsistence minimum. A social right is the right of everyone to receive state benefits. The state is also obliged to take action to ensure these benefits for everyone.

Standards adopted for social purposes in the Constitution may be of dual nature: to guarantee either general national objectives as well as individual subjective rights. It is generally accepted that the legislator is provided with considerable leeway to safeguard social rights, and the courts have no rights to make socio-political discretionary decisions when evaluating the substance of individual subjective rights.

1.2. Historical development^[3]

The historical development of social rights in Estonia will be observed during the 1st period of Estonian statehood, i.e. 1918-1940, and since regaining of independence in 1991.

The Republic of Estonia was proclaimed on 24 February 1918 by the Salvation Committee, declaring in public the “Manifesto to the Peoples of Estonia (the Declaration of Independence)”. Until the adoption of the Constitution, the popularly elected Constituent Assembly decided to draft the so-called Provisional Constitution. On 4 June 1919 the Constituent Assembly adopted the law “The Principles of Temporary Procedure of Estonian Government Act”, which entered into force on 9 July 1919. The law stated that Estonia was an independent and democratic republic. This law, like the manifesto, contained a long list of fundamental rights and freedoms. Social rights were added as follows: The right to a free elementary education in a native language, the right to employment, the right to decent upkeep on statutory basis, the right to obtain land for cultivation and housing, the right to protection of motherhood and labour rights, the right to state aid for youth, old age, disability and accidents.

On 15 June 1920, the Constituent Assembly adopted the first Constitution of the Republic of Estonia, which entered into force on 21 December of the same year. The Constitution of 1920 was one of the most democratic constitutions in Europe at that time. The Constitution was an explicit demonstration of the idea of the rule of law. The Constitution of 1920 was influenced by both the French Declaration of the Rights of Man and the Citizen, and the Constitution of the Weimar Republic. We have to highlight the comprehensive catalogue of the fundamental rights of the citizen which contained more than twenty fundamental rights: equality of all citizens (Art. 6), inviolability of the home (Art. 10), freedom of conscience (Art. 11), freedom of speech (Art. 13), privacy of correspondence (Art. 14), freedom to move and find a place of residence (Art. 17), freedom to hold meetings, freedom of association and freedom to strike (Art. 18), freedom to choose a profession and freedom to be engaged in business (Art. 19), the right to private property (Art. 24). As for social rights, one of the key provisions was Art. 25, under which the organization of the economic life in Estonia had to meet the principles of fairness, with the aim of promoting decent upkeep pursuant to appropriate laws, which were intended to guarantee obtaining arable land, housing and access to employment, the protection of motherhood and labour rights, as well as state aid for youth, old age, disability and accidents.

The economic crisis of the early 1930s and the absence of any system of checks and balances in the Constitution of 1920 resulted in amending the Constitution in 1933. Since the changes were substantial and related primarily to the system of state authorities, it is also called the Constitution of 1933 in legal literature. The Constitution Amendment Act abolished parliamentarism and replaced it with a peculiar form of dualism. Despite important changes, the chapter of the Constitution of 1920, concerning the fundamental rights of the citizens, remained in force (Chapter 2). In 1937, a new Constitution was adopted. The main list of the fundamental rights was retained, including fundamental social rights. A number of social rights were elaborated and specified in the new Constitution. Separate provisions were added to protect the family: the family is under the protection of the state, protection of mothers and children shall be managed by law. Special care shall be taken for families with a large number of children (Art. 21). Assistance from the state in finding work (Art. 27) was provided, as well as organizing help to aged or disabled citizens or those living in deprivation; pursuant to statutory provisions of social security and social welfare (Art. 28). The so-called fundamental rights development clause was stipulated in Art. 33 of Fundamental Rights Chapter – the list of the citizens' rights and obligations in this section does not eliminate other rights and obligations arising from the spirit of the Constitution or in accordance with the Constitution.

The Constitution of 1937 sought to further develop the ideas of liberalism and individualism, while emphasizing the solidarity with the state. That is the reason why social aspects were less emphasized in the Constitution, and the primary attention was focused on the collective nature of fundamental rights, including social rights, where an individual is laid on responsibilities towards the country and his/her fundamental rights shall be limited at that.

Finally, by 1940, the Constitutions had provided for establishment of quite a comprehensive system of social law in Estonia, which was divided into the law of social care, the law of healthcare, and the law of social insurance. Here are some examples of the laws: the Welfare Act, the Public Health Administration Act, the Livelihood Act, the Act on the Prevention and Control of Infectious Diseases, etc.

The first period of Estonian independence ended on 17 June 1940 when Estonia was occupied by the Soviet Union and was incorporated into the Soviet Union for more than fifty years.^[4]

On 20 August 1991, the Republic of Estonia was restored de facto on the basis of legal consistency. The Constitutional Assembly was formed to draft a constitution; the draft constitution was approved by the Supreme Council of the Republic of Estonia on 20 April 1992 and was decided to put to a referendum. The referendum for the adoption of the Constitution took place on 28 June 1992. This Constitution entered into force on 3 July 1992.

The minimal model of fundamental social rights has been realized quite convincingly in the Constitution.^[5] The Constitution provides for social rights such as:

1. the general right to state assistance (Art. 28 (2));
2. special care of families with a large number of children as well as people with disabilities (Art. 28 (4));
3. the right to protection of his or her health (Art. 28 (1));
4. promotion of the provision of voluntary welfare services and the provision of welfare services by local authorities (Art. 28 (3));
5. assistance for persons who seek employment in finding work (Art. 29 (3));

 

II. LEGAL ESSENCE OF SOCIAL RIGHTS

Social rights are rights under which an individual has the right to demand something from the state. Social rights force the state to take active steps and provide individuals with benefits. The protection of social rights is based on the idea of assistance to and care for those who are unable to adequately provide for themselves on their own.

Social rights constitute rights to something that an individual could also receive from private persons if he or she had sufficient funds and if the market had an abundant supply.^[6]

In guaranteeing social rights, the legislature has particularly extensive power of decision over the extent of benefit allocation. The great freedom of the legislature in allocating social benefits arises from the issue that these benefits have a considerable impact on economic and social policy and the establishment of the budget. If social rights are interpreted too extensively, it could lead to an increase in the tax burden and, thereby, the reallocation of funds which may cause fundamental social rights to come into conflict with other fundamental rights.

Several social rights are subject to the principle that in order to guarantee the rights it is sufficient for the government to at least have an action plan to achieve social welfare. It can be provisionally argued that the protection of social rights also exists if the courts do not order the payment of a new or larger benefit, but the legislature has already failed to allocate the existing benefit and the courts eliminate such unequal treatment.^[7]

Upon talking about social rights, they are often contrasted with classic civil and political rights. If fundamental liberty rights are primarily liberty rights with respect to the state, social rights are social claim rights of an individual to the positive action of the state. Therefore, social rights are rights under which each individual has the right to demand something from the state. Social rights force the state to take active steps and provide individuals with benefits. In the case of classic fundamental liberty rights, there is usually no doubt that these are subjective rights that can be protected in court. Social rights cause more disputes. The question of the extent to which the social provisions included in the Constitution should be interpreted as everyone’s subjective right to claim benefits via court proceedings is highly controversial.^[8]

In the context of Estonia, it must be considered that the violation of section 28 of the Constitution or another constitutional rule can be established by the courts even if no one’s subjective right has been directly violated. In light of constitutional values, laws can also be evaluated at the general level. The Chancellor of Justice, for example, can theoretically raise an issue about the scope of social security, arguing that the duty imposed on the government under the Constitution to create universal social security has not been complied with.

In addition, it must be taken into account that if any right to social protection does not form a constitutional right, it may be an ordinary subjective right granted to an individual by law. In such an event, the question concerning the extent to which the courts have the right to intervene in decisions made by the executive must be assessed. Can the courts provide an assessment of the assistance that is needed by a specific person in a specific case? According to Estonian case law, intervention by the courts is allowed and possible.^[9]

Although social policy is a matter of political choice to a large extent, the Estonian Constitution does not tolerate an extremely liberal social policy. Whereas the granting or refusal to grant social assistance was earlier considered the discretionary decision of the state, today this is everyone’s subjective right, at least to a certain extent. Under the Constitution, social assistance is the right of people without sufficient means and not a privilege that is allocated on the basis of the free discretion of powers.

States with a functioning democracy, respect for separation of powers and impartial administration of justice consider that the rights and freedoms that can be legally realised or that can be protected in courts which will provide a final judgment thereon are binding. Provisions concerning fundamental rights whose violation cannot be established by any court have a closed nature in terms of the administration of justice. Thus they are not legally binding – simply morally or politically binding. They represent programmatic objective-setting.

The binding nature and judicial realisability of rights and freedoms depends on their content and, to a lesser extent, on their form. Based on the general understanding and practice, political rights are legally binding and judicially realisable. Judicial realisability also means the justification of courts in basing the conclusion of a judgment directly on a relevant provision of the Constitution and/or international agreement.

However, social rights are mostly closed for the administration of justice, as they are too general and too objective-setting by nature and depend on the socio-economic and political possibilities and expediency of the state, which can be decided on by the political management of the state as democratically elected and not by a court. An individual can, in principle, exercise social rights via the private sector, if he or she has the corresponding desire, means and possibilities, and in this case the liability of the state is not direct, but indirect.

The legal validity of rights and freedoms also depends on the form of the constitutional provision or on how clear and specific its wording is. The clearer the provision, the greater the possibility to realise it in court. Decisions on the judicial realisability of one or another constitutional provision are made by the Supreme (Constitutional) Court in the final stage.^[10]

In summary of the above, the following can be observed: just like other fundamental rights, social rights guaranteed by the Constitution bind state authorities, which are required to act in accordance with the meaning and content of objectives provided for in the Constitution; they are also applicable as a means of control when the constitutionality of laws is inspected, and they can also be used as a justification in restricting fundamental rights and the substantiation of deviations from the principle of equal treatment; social rights must also be considered upon the interpretation of provisions by the authority implementing the law.

 

III. SOURCES OF SOCIAL RIGHTS

3.1. National law

The hierarchy of norms in the current legal system of the Republic of Estonia is based the Constitution. According to the first sentence of Art. 3 (1) of the Constitution, the governmental authority is exercised solely pursuant to the Constitution and laws which are in conformity therewith. Thus, the regulations and principles of the Constitution have the supreme legal force. The Constitution is followed by acts. The acts are followed by regulations of the Government of the Republic and the ministers, and orders of local governments and other administrative bodies. In defining social rights, collective agreements, case law and common law are of less importance.

3.1.1. Constitution

The Constitution of the Republic of Estonia was adopted by referendum on 28.06.1992. The catalogue of fundamental social rights in the Constitution of the Republic of Estonia of 1992 is minimal.  Article 10 of the Constitution should be noted for its importance to indirectly lay down the principle of a social justice (Sozialstaat).  Although it is not said directly in Article 10 of the Constitution that Estonia is a Sozialstaat, it is established in Article 10 that the fundamental rights contained in the Constitution, do not preclude other rights which are in conformity with the principles of social justice and the rule of law. Social rights are explicitly provided by Art. 27 about the protection of the family. Art. 28 that provides the right to health protection and the right to government assistance in the case of old age, incapacity for work, loss of provider, or need.; and Art. 29 that provides the right to freely choose his or her profession and position of employment, and state help for unemployed.

The main source of fundamental rights in Estonia is the Constitution and in particular its second chapter. Pursuant to Article 10 of the Constitution, the rights, freedoms and duties listed in the second chapter do not preclude “other rights, freedoms and duties which arise from the spirit of the Constitution or are in accordance therewith, and which are in conformity with the principles of human dignity, social justice and democratic government founded on the rule of law.”. This provision includes a development clause and refers in particular to the fact that the Constitution cannot be interpreted not only in the literal meaning of the text of the Constitution, but the values accepted in the Constitution should be considered more widely. Furthermore, it allows the use of the principles of human dignity, social and democratic rule of law for interpreting the Constitution.

3.1.2. Laws

The legislative body of the Republic of Estonia is the Riigikogu (the Parliament). The Constitution of the Republic of Estonia adheres to two types of laws: constitutional and ordinary laws. In order to pass a constitutional law, a majority vote of the membership of the Riigikogu is required. ^[11] In order to pass an ordinary law, positive result of the voting among the members of the Riigikogu is required. Constitutional laws are set out in Art. 104 (2) of the Constitution and the said laws do not affect the social rights provided by law. Legislation in the field of social rights is abundant. No comprehensive codification of the protection of social rights is not yet established in Estonia^[12].

3.1.3. Other regulations

Pursuant to Art. 87 (6) and 94 (2) of the Constitution, the Government of the Republic and the minister who presides over his or her ministry, have the right to issue regulations and directives on the basis of and for the implementation of laws. Regulations and directives may also be issued by local government councils, rural municipalities and city councils. The execution of the right to issue regulations usually requires an empowering provision by the legislator. The regulations specify and determine the implementation of the laws. On the basis of self-management, the local authorities, as public institutions, have the right to issue regulations without any special empowering provision. These regulations constitute statutes.

3.1.4. Collective agreements

In Estonian legal system, collective agreements can be perceived as legal sources in employment law, but they do not represent legal sources of social rights. Collective agreements are not mentioned as a source of social rights in the Constitution. In Estonian legal system, the importance of collective agreements is relatively unimportant. In Estonian legal system, collective agreements can be entered into by the trustee to employees and trade unions. The share of collective agreements in regulating labour relations is relatively unimportant and that is the reason why collective agreements do not have a significant role in the development of social rights, neither in ensuring working conditions. Today, collective agreements can be better considered as wage agreements.

3.1.5. Law of the Judge

In Estonian legal system, the task of the judges lays in implementation of the law, not acting as a legislative institution. Pursuant to Article 146 of the Constitution, the court administers justice in accordance with the Constitution and the laws. Thus, court decisions have no effect of case law. However, implementation of law cannot be understood only in a very narrow meaning and only as mere subsuming. In order to eliminate the deficiencies of legislative standardization the courts develop existing legal scales, using the techniques of interpretation and analogy. Thus, the essence of the law of the judge lays in interpretation, specifying and further development of the law. At that, interpretation and furnishing of the principles of the Constitution are important. Most important here is the role of the Supreme Court as the highest court of the country, which acts also as the constitutional review court. So, for example, the Supreme Court has noted about the furnishing of the principles of a social justice and human dignity as the principles of the Constitution that the social justice and the protection of social rights include the idea of assistance and care to those who are not able to secure their own lives and primary needs independently and sufficiently. Their human dignity would be lowered if they were deprived of the assistance they require to meet their priority needs.^[13] As secondary source social justice, the judicial decisions constitute the development of social law, providing more specificity and interpretation.

3.1.6. Common law

In Estonian legal system, based on the principle of the legal basis set out in first sentence of Article 3 of the Constitution (Governmental authority is exercised solely pursuant to the Constitution and laws which are in conformity therewith), the approval of the common law as the source of social law, is highly problematic. Thus, common law has no significance as an independent source of social law. Upon the Constitution, for example, different social guarantees must be regulated by law (e.g. Article 28). Common law may be introduced in the interpretation of laws by courts.

3.2. International law

Validity of international law in the country is dependent on the regulations and conditions arising under the Constitution. Pursuant to Article 3 (1) of the Constitution, the generally recognized principles and rules of international law are an inseparable part of Estonian legal system.

The regulations concerning the validity of international agreements are set out in Chapter IX of the Constitution. According to Article 121 of the Constitution, some international treaties are subjected to ratification in the Parliament. The provisions of such agreements have priority over formal law. If Estonian laws or other acts are inconsistent with international treaties ratified by the Riigikogu, the provisions of the international treaty shall apply according to Article 123 of the Constitution. Most of the international treaties concluded by the executive authority are not subject to ratification by the Riigikogu. What is the position and the legal force of such agreements in the hierarchy of the sources of law has not been reflected in the Constitution, as well as in the existing case law. Given that these agreements are not legitimized by the Parliament, they should not have priority before the law.

International agreements, containing provisions, being sufficiently clear and specific, and targeted to regulating domestic relations, are the source of social rights.

Estonia is a party to various relevant international conventions that have provided for social rights. For example, the European Convention on Human Rights and Fundamental Freedoms, which is directly applicable, and ratified by the Riigikogu.

In terms of the social rights, there are two more important sources, the European Code of Social Security and the revised version of the European Social Charter. These two documents ensure the compliance of the social rights of Estonian legal system with the norms and principles established by the European Council.

In addition to the above-mentioned international treaties, Estonia has joined a number of universal agreements: the International Covenant on Economic, Social and Cultural Rights and Civil and the International Covenant on Civil and Political Rights. Estonia has also ratified a number of ILO conventions, but among these conventions there is no convention that concerns the issues of social security.

 

IV. CIRCLE OF PROTECTED INDIVIDUALS – BEARERS OF SOCIAL  SECURITY RIGHTS[14]

The general abstract notion of a bearer of fundamental rights, freedoms and duties is everyone (section 9 of the Constitution). The notions “no one” and “any person” are also used as synonyms of “everyone” in the wording of the Constitution.

“Everyone” means, first of all, any persons, natural persons, children and adults, the ill and the healthy, persons with or without active legal capacity, and citizens and non-citizens. An unborn person (i.e. a foetus) is generally not considered a bearer of rights and freedoms. Certain rights of some natural persons – such as children, prisoners, persons without active legal capacity, public servants, servicemen, non-citizens and persons with multiple citizenship – may be restricted under the law.

Protected persons also include a group of natural persons and various associations without passive legal capacity and non-governmental organisations that may be bearers of both individual and collective rights.

The Estonian Constitution also distinguishes:

1. the rights of all and everyone; and
2. the rights of citizens of Estonia.

The first group of subjects is identified using the word “everyone” and the universal content of the right. The second group of subjects is designated using the expression “citizens of Estonia” and this subject is primarily related to single political rights.

The entitled subjects of fundamental rights (bearers of fundamental rights) are those who can directly refer to fundamental rights as provisions granting them rights. In addition, in certain events legal persons have fundamental passive legal capacity. On the other hand, traditionally the state does not have fundamental rights.

Most of the fundamental rights are “everyone’s” fundamental rights, meaning that any and all persons are bearers of these fundamental rights. Everyone’s rights apply to all persons, irrespective of their age, gender, citizenship, active legal capacity or other circumstances.

4.1. Citizens

Under section 8 of the Constitution, every person for whom one parent is a citizen of Estonia is entitled to Estonian citizenship. Citizenship of the Republic of Estonia is acquired by birth or naturalisation.

Based on historical tradition, a distinction is made between human rights and civil rights. Citizenship or belonging to a state’s nation creates closer ties with the state along with the special rights and duties accompanied therewith. The Constitution grants certain fundamental rights to citizens, e.g. section 28 of the Constitution provides the right to assistance in the case of need and subsection 29 (1) the right to freely choose a position of employment and area of activity. This does not mean that aliens have no fundamental rights: many rights specified in the Constitution are human rights that extend to all persons and that the state must guarantee, irrespective of citizenship.

4.2. Aliens

According to the Constitution, social rights are also guaranteed to aliens, unless the Constitution prescribes otherwise. The rights provided for in the Constitution as the rights of citizens extend to non-citizens in two ways. Firstly, the Constitution contains a reference to some of these rights saying that they also extend to aliens unless otherwise provided by law. Aliens can only be deprived of these rights under the law if this is necessary in a democratic society. The notation “unless otherwise provided by law” substantially indicates that Estonian citizenship may be an additional criterion under which the legislature may prescribe specifications.

As an important requirement in terms of qualifying as an alien, the Constitution provides that they must be in Estonia. In most cases it is sufficient if an alien is on Estonian territory.

The notion of an alien is not included in the Constitution. In accordance with the Aliens Act, an alien is a person who is not an Estonian citizen. Aliens are directly mentioned in respect of the fundamental rights included in the Constitution in the following instances: subsection 28 (1) of the Constitution expressly prescribes that every citizen of Estonia is entitled to state assistance in the case of old age, incapacity for work, loss of provider, or need. Unless otherwise provided by law, citizens of foreign states and stateless persons in Estonia enjoy this right equally with citizens of Estonia. Subsection 29 (1) of the Constitution reads that every citizen of Estonia is entitled to choose his or her area of activity, profession and position of employment. Unless otherwise provided by law, citizens of foreign states and stateless persons in Estonia enjoy this right equally with citizens of Estonia.

 

V.SOCIAL SECURITY RIGHTS[15]

5.1. 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.

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.

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 re-training 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 re-training courses and services.

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 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.

 

VI. PROTECTION OF  SOCIAL SECURITY RIGHTS

6.1. Content of the Protection

6.1.1. Public authority with competency to restrict social freedoms

As mentioned under sources of social rights, the legislature is primarily competent to exercise the legal regulation of social freedoms under the corresponding provision delegating authority. The Constitution also prescribes competency for adopting such legislative acts. Article 10 of the Constitution includes a clause on the restriction of fundamental rights.

6.1.2. Principle of proportionality and other restrictions

The Supreme Court has embraced the principle of proportionality as a general principle applicable in a state governed by the rule of law. The principle of proportionality requires that the means applied must correspond to the desired outcome. The principle of proportionality is a significant criterion in restricting fundamental rights.[25]

The principle of proportionality is closely linked with discretionary power – the duty to take into consideration both private and public interests and other circumstances in a specific case. It is clear that if the executive or courts receive discretionary power upon the application of a provision, they are required to consider the specific circumstances. However, disputes have emerged due to an issue as to whether the principle of proportionality requires that the authority (the court or the executive) applying the law upon restricting personal rights must receive discretionary power or whether the law serves as a basis for establishing the rules requiring the application of definite legal consequences in the case of certain factual circumstances irrespective of the conditions of a specific case.

6.2. Abuse of fundamental social rights

The Constitution of the Republic of Estonia does not contain a direct prohibition on the abuse of social rights. Section 19 of the Constitution provides that everyone has the right to “free self-realisation”. The Supreme Court has not attempted to define the notion of free self-realisation. The case law of the Supreme Court, according to which the right to free self-realisation includes very different rights, refers to the broad scope of protection of this right. If subsection 19 (1) means a general liberty and personality right, this also means that all other fundamental rights can be restricted to protect this right. Under subsection 19 (2), everyone must observe the freedoms of others and the law provides the possibility to restrict everyone’s rights to protect subsection 19 (1). Nevertheless, restrictions must be prescribed by law and the law must be necessary in a democratic society. Subsection 19 (1) of the Constitution does not considerably diminish the meaning of other fundamental rights.[26]

Subsection 19 (2) of the Constitution includes the general duty to respect and observe the rights and duties of others. Secondly, subsection 19 (2) of the Constitution also contains a general duty to obey the law. This duty entails all provisions that are in accordance with the Constitution. Subsection 19 (2) of the Constitution finally stipulates the triple impact or validity of fundamental rights in mutual relations between private individuals. [27]

At the same time, the Constitution contains the government’s duties to protect and assist and possibilities to restrict fundamental social rights. If a fundamental right imposes an active duty on the state, the general principles of the protection of fundamental rights are analogous to liberty rights. The scope of protection of fundamental rights must be determined and thereafter it must be assessed whether the violation of the scope of protection is justified.

As in the case of liberty rights, the violation of social rights does not necessarily constitute a violation of fundamental rights. A fundamental right may be restricted if this is necessary in a democratic society. The economic possibilities of the state, for example, establish important restrictions on the government’s duty to protect and support. For instance, Article G of the amended and revised European Social Charter prescribes that restrictions can be established on the rights protected under the Charter for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health or morals.

In establishing substantial restrictions, the Riigikogu (i.e. the Estonian parliament) must take into account the principle according to which the restriction on fundamental rights must be necessary in a democratic society. In assessing the scope of duties to protect and support or fundamental social rights, the legislature has quite extensive freedom of discretion. Courts may not make social and political discretionary decisions in assessing the correctness of restrictions on subjective rights.

6.3. Possibility to exercise fundamental social rights guaranteed under the Constitution without the intervention of the legislature

Since fundamental freedoms can also be realised without the intervention of the legislature, the realisation of fundamental social rights without the intervention of the legislature is associated with fundamental social rights in the narrower meaning and also with the principle of equality. Although special literature is based on the fact that, in principle, active intervention by the legislature is necessary, the idea that the realisation of social rights is also possible without the intervention of the legislature is supported.

6.4. Legal bases of, prerequisites for and limits of social benefits

Pursuant to subsection 28 (4) of the Constitution, everyone is entitled to government assistance in the case of old age, incapacity for work, loss of provider, or need. The law provides for the conditions of receiving benefits. Thus, the Constitution stipulates the requirement under which social benefits can only be established and changed under the law. Section 113 of the Constitution reads that national taxes and compulsory insurance payments are established by law. The funds prescribed for financing social benefits arising from said principle must be set out by law.

Taking into account the budgetary prerequisites and restrictions referred to above, it arises from the foregoing that the courts cannot guarantee social benefits, at least in cases that entail a decrease in public revenue or excessive expenses.

6.5. Sanctions applied in the case of omissions of the legislature and administration

The realisation of the majority of social rights still presumes that active steps will be taken by the government and, above all, by the legislature. As in other Member States of the European Union, the Constitution of the Republic of Estonia does not recognise legal measures that provide the possibility of forcing the legislature to take active steps. At the same time, it is possible to contest a situation in court where the government or local authority has failed to issue a certain legal act.

If legislation of general application is not issued, a person can claim compensation for damage caused due to the failure to issue the legislation. Under section 14 of the State Liability Act, a person may claim compensation for damage caused by legislation of general application or by failure to issue legislation of general application only if the damage was caused through a significant violation of the obligations of a public authority, the legal provision forming the basis for the violated obligation is directly applicable and the person belongs to a group of persons who have been specially injured due to the legislation of general application or by failure to issue the legislation of general application.

The court can sanction the failure of the administration to take positive measures to establish fundamental social rights regulated by the Constitution and laws indicating that the omissions of the executive are considered unlawful. These omissions of the administration may also lead to the liability of the administration.

6.6. Principle of equality and extension of social benefits

Neither special literature nor case law express answer the question as to whether, relying on the principle of equality, the courts can extend benefits prescribed to a certain group of persons to individuals to whom the benefits are not prescribed under the provision of equal treatment. Current case law has had to engage in the application of the principle of equal treatment on the basis of age in disputes related to health insurance, but no common opinion has been formed as to whether the circle of recipients of social benefits can be extended upon the application of the general principle of equality.

 

VII. REFERENCES

R. Alexy. Fundamental Rights in the Estonian Constitution. Special Edition of Juridica, 2001.

T. Annus. Riigiõigus. Tallinn, 2006, Juura.

T. Annus, B. Aaviksoo. Social Welfare as a Fundamental Right: Duties of the State, Local Governments, Family and Other Persons in Guaranteeing Constitutional Rights in the Sphere of Social Welfare. Special Edition of Juridica, 2002.

T. Annus, A. Nõmper. The Right to Health Protection in the Estonian Constitution. Juridica International 2002, pp. 117- 126.

N. Barr. Labor Markets and Social Policy in Central and Eastern Europe: The Accession and Beyond. The World Bank, 2005.

T. Dijkhoff. International Social Security  Standards in the European Union.The Cases of the Czech Republic and Estonia. Intersentia, 2011.

Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne 2 tr. Tallinn 2008.

M. Ernits. Holders and Addressees of Basic Rights in the Constitution of the Republic of Estonia. Juridica International, IV, 1999, pp. 11-31.

R. Maruste, Konstitutsionalism ning põhiõiguste ja -vabaduste kaitse, Tallinn 2004.

K. Merusk. Estonia: in Constitutional law of 10 EU Member States: The 2004 Enlargement. Ed. C. Kortmann, J. Fluren, W. VoermansKluwer, 2006, pp. III3 – III73.

D.Pieters. The Social Security systems of the States Applying for membership of the European Union. Intersentia, 2003.

H. Siimets-Gross. Social and Economic Fundamental Rights in Estonian Constitutions Between World Wars I and II: Avanguard or Rearguard of Europe. Juridica International, 10, 2005, pp. 135-143.