OPINION

The opinion was adopted in the proceedings regarding the complaint of the National Council of the Bosniak National Minority (hereinafter: the National Council) against the Ministry of Education, Science and Technological Development (hereinafter: the Ministry), due to discrimination based on nationality. In the complaint, it was stated that the Ministry failed to obtain the opinion of the National Council, which was required in accordance with the Law on National Councils of National Minorities (hereinafter: LNCNM) and the Law on the Fundamentals of the Education System (hereinafter: LFES), when making a decision on the termination of the duties of the principal of Elementary School “…” in Novi Pazar and the appointment of the acting head of the same school. In the statement of the Ministry, it was specified that, while proceeding with the competition for the election of the school director, it was determined that the director had reached the age of 65, and consequently his mandate ended “by force of law”. It was further stated that LFES does not stipulate that the Ministry issues a decision in this case, nor does it require the opinion of the relevant national council of the national minority, i.e. there was no legal basis to request the opinion of the National Council. It was also stated that neither LNCNM nor LFES stipulates that the opinion of the national council is obtained in the process of appointing the acting director of the school, as well as that the Ministry appointed the acting director of the school when the conditions prescribed by law have been met, where the appointed person meets the required conditions. During the procedure, it was established that it was indisputable between the parties that the opinion of the National Council was obtained during both competitions for the selection of the school director, as well as that, as opposed to the procedure for selecting a director by competition, the Ministry did not obtain the opinion of the National Council in the process of deciding on the appointment of acting director of this school. It is also indisputable between the parties that the elementary school “…” in Novi Pazar is a school where educational work is carried out in the language of the national minority and that, in accordance with the law, it has the status of a school of special importance for the education of members of the Bosniak national minority. It was further determined that in the decision to appoint the acting director, the Ministry also stated the termination of duty of the school director. Bearing in mind the competence of the Commissioner, the subject of consideration is not whether the Ministry should have issued a special act (declarative decision) that would state the fact that the duty of the director is terminated by force of law, upon reaching the age of 65, but the subject of consideration is whether, in the process of appointing the acting director of this school, the Ministry should have obtained the opinion of the National Council, as it has done in the process of selecting the director by competition. The provisions of Article 128 of the LFES stipulate that the duties of the director of an institution end upon the expiration of the mandate, upon personal request, upon reaching the age of 65, and by dismissal (paragraph 1), and that the decision on the termination of the director’s duty is made by the minister (paragraph 2), as well as that in the institution in which the educational work is carried out in the language of the national minority, the minister obtains the opinion of the relevant national council of the national minority (paragraph 5). Article 123 of the LFES stipulates that the director of the institution is appointed by the minister, that the director is selected by a competition (paragraph 4), as well as that the governing body obtains the opinion of the appropriate national council of the national minority in the institution where educational work is carried out in the language national minorities (paragraph 8). The provisions of Article 12 of the Law on National Councils of National Minorities prescribe the participation of national councils of national minorities in the management of institutions, by the national council giving an opinion on the candidate for the director of the institution. It was further established that LFES and LNCNM do not explicitly stipulate that the appointment of the acting director of an educational institution requires the opinion of the national council, as well as that, in accordance with Article 125 of LFES, the acting director has the same authority as the director, which is why the acting director of the school has the same importance for the exercise of collective rights of members of national minorities in in the field of education as the director of the school. Also, in accordance with the basic principles of the Constitution and the guaranteed right to participate in management in the field of education, as well as considering that LNCNM stipulates that national councils give an opinion on a candidate for the director of the institution and that the acting director has the same powers as the director, it can be concluded that the national councils have the right to give an opinion on the candidate for the acting director of the educational institution. By interpreting the aforementioned provisions of the LFES, it is clear that only requesting an opinion is mandatory, because in the event that the national council does not submit an opinion within the time limit prescribed by law from the receipt of the request, it is considered that the opinion has been given. Since in the meantime the director of this institution was selected in a competition and the opinion of the National Council was requested, the Commissioner for the Protection of Equality issued the opinion that by failing to obtain the opinion of the National Council of the Bosniak National Minority in the process of appointing the acting director of this school, the Ministry violated the provisions Article 24 of the Law on Prohibition of Discrimination. The Commissioner gave a recommendation to the Ministry that, when appointing an acting director in this school in the future, it requests the opinion of the National Council, as it has done in the process of appointing the director at a competition.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković