One petitioner raised the issue of constitutionality of § 9(1) of the Unemployment Insurance
Act regulating the calculation of the unemployment insurance benefit of a parent who worked
to a small extent during their parental leave, because in a situation where the insured person has
worked to some extent during the parental leave they may find themselves in a disadvantaged
position as regards the calculation of the benefit in comparison to the parent who did not work
during the parental leave.
The Chancellor noted that according to the explanations by the Ministry of Social Affairs the
neutral formula for the calculation of the benefit under the Unemployment Insurance Act (i.e.
the remuneration paid during the latest period of employment is used as a basis for everybody)
ensures, on the one hand, that the basis for the calculation of the insurance benefit is the same
for all the applicants and, on the other hand, that the applicants for the insurance benefit cannot
arbitrarily choose a basis for the calculation of the benefit which is more favourable for them.
The Chancellor found that if, instead of a neutral formula for the calculation of the benefit, a
different formula would be introduced which takes into account the objective reasons for
earning a lower than usual income it would inevitably lead to an unjustified different treatment
of other groups. This would happen, inter alia, because it is almost impossible to distinguish
objective reasons from the subjective reasons as to why one or another person during a certain
period of their life earns less or more than their habitual income. This, in turn, could lead to an
unjustified unequal treatment of all the applicants for the benefit. On this basis, the Chancellor
concluded that the current situation was in conformity with the Constitution.
In another case, the petitioner asked to verify whether the Military Service Act was in
conformity with the Constitution to the extent that it establishes the national defence obligation
only for male citizens of the Republic of Estonia. The Chancellor found that under § 124 of the
Constitution the legislator could in principle establish the national defence obligation only for
male Estonian citizens. Complying with the national defence obligation as a constitutional duty
brings about a restriction of various fundamental rights. In establishing the national defence
obligation, the legislator must keep in mind that the number of persons having to bear the
obligation should be optimal. Imposing the national defence obligation on absolutely all
Estonian citizens for purposes of national defence might not be necessary. The Riigikogu in
establishing the national defence obligation has found that for purposes of effective national
defence it is sufficient if the obligation applies to men. The choice for men may be due to the
reason that performing of the tasks arising from the national defence obligation is more feasible
for men in comparison to women, in view of physiological peculiarities of the sexes.
In addition, the Chancellor was asked to verify whether the Health Insurance Act was
compatible with the principle of equal treatment to the extent that a referral is required to get
an appointment with an andrologist at the expense of the Estonian Health Insurance Fund unlike
in case of an appointment with a gynaecologist where no referral is needed. The Chancellor
found that in establishing the requirement of a referral as a matter of health care administration
the legislator has a rather wide margin of discretion and the Chancellor cannot assess its
practicability. Therefore, the Chancellor found that in view of factual gender differences and
the diversity of the health care services provided within either speciality, the different
conditions for getting an appointment with these specialist doctors cannot be considered as
evidently unjustified.
72
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