No. 07-00-331/2024-02  Date: 20.1.2025.

OPINION

The Opinion was adopted in proceedings conducted following a complaint submitted by A.A. from Belgrade on behalf of her minor son, against the Preschool Institution “BB”. In the complaint and the supplement to the complaint, the complainant stated, inter alia, that her son was born in 2018, that he has cerebral palsy, and that he is a beneficiary of an allowance for assistance and care by another person. She further stated that on 20 April 2023 she submitted an application to the Preschool Institution “BB” for the enrollment of her son in kindergarten, that, in accordance with the protocol, she applied to three kindergartens closest to their place of residence, that this was the third application over a period of three years, and that, once again, as in previous years, the application was rejected with the explanation that “enrollment was not announced for his age group.” She further stated that throughout this period she exercised the right to leave from work for special childcare, to which she was entitled until the child reached the age of five, that this right expired on 14 July 2023, and that, due to the obligation to return to work and the inability to enroll the child in kindergarten, on 4 July 2023 she contacted the Ministry of Education, Science and Technological Development and the Education Inspectorate. She emphasized that “only after the reaction of the institutions” did the Preschool Institution “BB” invite her to a meeting, and that the members of the enrollment commission “continuously insisted that the child be enrolled in one of the kindergartens located in Padinska Skela, Kovilovo, or Ovča, which are very far from their place of residence, that both she and her husband are employed, and that it is very difficult to transport the child to a distant kindergarten and arrive at work on time.” She also stated that, “seeing their persistence,” she decided to enroll the child in the kindergarten “VV,” as of all the offered options “this was the only somewhat acceptable one,” and that she asked to be informed when conditions were met for transferring the child to any closer kindergarten. She further stated that her son began attending the kindergarten “VV” on 4 September 2023, that on 21 January 2024 the preschool institution published a notice inviting parents to submit requests if they needed to transfer their child to another kindergarten; that she submitted such a request but that she was again rejected with the explanation that “the transfer could not be carried out due to a lack of technical capacity.” The complainant pointed out that, as of 1 September 2024, her son has been attending the compulsory preschool preparatory programme, which requires his daily attendance at kindergarten, and that this has been made difficult due to the distance of the kindergarten from their home and the deterioration of his health condition, of which she informed the preschool institution. In the statement and the supplementary statement of the Preschool Institution “BB”, it was stated, inter alia, that her son “was not refused enrollment in kindergarten in any of the aforementioned calls, and that all unrealized applications are redirected to a waiting list and considered once a month at meetings of the enrollment commission.” It was further stated that, when considering applications, account is taken of spatial conditions as well as the needs of each individual child, and that, when considering the enrollment application, the Commission determined that “there were no available capacities for admitting children of the specified age group to the kindergarten.” It was also stated that technical capacities imply the existence of a vacant place in the kindergarten for the specific age group, and that, when it comes to children who require additional support, it is not possible to carry out a new enrollment or a transfer if there are already children in that group who require such support. Furthermore, it was stated that a call for applications for children born in 2018 was not announced because the existing capacities in the kindergarten “GG” were already filled, that legally prescribed norms apply for each age group (specific year of birth) and are followed during enrollment, and that “age as such is not an obstacle, but that decisions are guided exclusively by the availability of places in a specific kindergarten.” It was clarified that requests for the transfer of children are considered once a year, in February, and that, in the event of a positive decision, they are implemented from September of the same year, that during the relevant period two applications were submitted for the enrollment of children belonging to vulnerable social groups, and that neither was implemented due to a lack of technical capacity. In this regard, it was stated that the request for transfer to the desired kindergarten was not implemented even after the meeting of the Commission, “taking into account all the needs of the child and the current situation in the group, which consists of 38 children, including children who require additional support.” The Commissioner first notes that Article 13, paragraph 2 of the Law on Preschool Education and Upbringing prescribes that, when enrolling children in a preschool institution founded by the Republic of Serbia, an autonomous province, or a local self-government unit, priority shall be given to children from vulnerable groups. Article 2 of the Rulebook on Detailed Conditions for Determining Priority for the Enrollment of Children in a Preschool Institution prescribes the criteria for determining enrollment priority for children from socially vulnerable groups. Bearing in mind that the complainant’s son has cerebral palsy, that he is a beneficiary of an allowance for assistance and care by another person, and that both the complainant and her husband are employed, it is undisputed that, in accordance with the law and the Rulebook, he is entitled to priority enrollment in a preschool institution on the basis of several prescribed criteria. Furthermore, although it was stated in the statement that D.D. was not refused enrollment in any call, the evidence submitted with the complaint shows that, due to the refusal of the enrollment application dated 20 April 2023, the complainant lodged an appeal with the enrollment commission of the Preschool Institution “BB” on 13 June 2023, while she did not appeal previous decisions because she was exercising her right to leave from work for special childcare. In addition, bearing in mind that the statement does not dispute that the complainant applied for the enrollment of her son in that preschool institution for three consecutive years, the Commissioner finds that the statement fails to explain why, after the first application submitted by the complainant, on the basis of which D.D. was not enrolled in kindergarten, the enrollment commission did not consider his application as a priority at the next meeting, but instead only provides reasons for rejecting D.D.’s enrollment application after the third application. In addition, the statement does not indicate how many applications submitted by children entitled to priority enrollment were granted and how many such applications there were, nor were any pieces of evidence submitted to make it plausible that, during the relevant period, no child of the same age as the complainant’s son was enrolled due to a lack of technical capacity. Furthermore, with regard to the statement that the kindergarten “GG”, for which the complainant applied in her application, as well as the kindergarten “ĐĐ”, in which D.D. was subsequently enrolled, each had one child requiring additional support, account was taken of Article 34, paragraph 4 of the Law on Preschool Education and Upbringing, which, inter alia, prescribes that up to two children with developmental difficulties may be placed in one educational group. In this regard, and for the purpose of further clarification, the Commissioner reviewed the letter of the City Administration of the City of Belgrade – Secretariat for Education and Child Protection, Inspection Supervision Sector, dated 1 August 2023, which was submitted with the complaint. The letter states, inter alia, that, following the application submitted by the complainant to the Preschool Institution “BB”, an extraordinary inspection was carried out, during which it was established that there were no available places for children born in 2018 in the facilities listed by the complainant in the enrollment application, and that the professional team of the preschool institution invited her to a meeting after she informed them of her son’s needs. It was also stated that “at the meeting it was agreed that the child would be enrolled in the kindergarten ‘VV’, which is closest to their place of residence and which provides the most optimal conditions for D.D.’s stay, as it is a ground-floor facility, the yard is level and spacious, and the number of children is within the prescribed norm.” However, the complaint indicates that the enrollment commission invited the complainant to a meeting on 26 July 2023 only after she contacted the Ministry of Education and the Education Inspectorate on 4 July 2023. In addition, the complainant stated that “the entire conversation with the members of the enrollment commission was directed toward enrolling the child in one of the kindergartens that were more acceptable to the kindergarten administration than to the child,” and that the most favorable “option” offered on that occasion was a kindergarten located 8.5 kilometers from their place of residence, which she was forced to accept due to the fact that she had to return to work and that her husband is also employed. In this regard, the Commissioner also points to the position of the European Court of Human Rights, which, in one case it examined, indicated that the problem lay in the manner in which the legislative framework was applied in practice, noting that the particularly specific situation in which the applicant found himself, relating to his child’s disability, had not been taken into account, and therefore found a violation of Article 14 of the European Convention on Human Rights. Furthermore, the Commissioner also considered the allegations in the complaint according to which the preschool institution refused the request for transfer to another facility despite the fact that the kindergarten “VV” does not correspond to the child’s health condition. In the statement, it was indicated that 95 requests for transfer had been submitted, that a total of 48 of them were approved, and that the remaining requests were not approved due to a lack of technical capacity, including two requests for the transfer of children belonging to vulnerable social groups. When analyzing these allegations from the statement, the Commissioner took into account the fact that, in the request submitted on 1 February 2024, the complainant stated, as the reason for requesting her son’s transfer that, since starting kindergarten, D.D. had experienced frequent pulmonary obstructions due to excessive humidity in the kindergarten “GG,” and that neither she nor her husband were able to quickly pick up the child in such situations because of the distance of the kindergarten from their place of residence and work. Furthermore, it is also undisputed from the transfer request that the complainant stated that, as of 1 September 2024, when the Preschool Institution “BB” implemented the transfers of children whose requests had been approved, D.D. was a “preschooler,” i.e. that he was obliged to attend the preschool preparatory programme. However, since the request for D.D.’s transfer was rejected despite all of the above, and he continues to attend the kindergarten “VV,” it can be concluded that the preschool institution did not undertake activities aimed at finding a solution for transferring D.D. to any other closer facility, although it was aware that the conditions in the kindergarten “VV” do not correspond to his health condition. In addition, bearing in mind that the burden of proof lies with the preschool institution, no evidence was submitted with the statement demonstrating that the capacities of the kindergartens for which the complainant requested a transfer were fully occupied. In this regard, the Commissioner points out that the Law on the Prohibition of Discrimination also provides for special (affirmative) measures, which are introduced in order to achieve full equality, protection, and advancement of persons or groups of persons who are in an unequal position, and which are applied until the objective for which they were prescribed is achieved. Taking into account all of the foregoing, as well as the importance of inclusive education for children with developmental difficulties and disabilities, the Commissioner issued an opinion that, through the actions of the Preschool Institution “BB,” the provisions of Article 7, in conjunction with Articles 17 and 19 of the Law on the Prohibition of Discrimination, were violated. The Preschool Institution “BB” was recommended, bearing in mind that requests for the transfer of children are considered in February, to act upon the request for transfer submitted by the complainant on 1 February 2024, in order to enable the child with a disability to attend the preschool preparatory programme at the kindergarten “ĐĐ,” which is geographically the closest to his place of residence, and to henceforth comply with regulations on the prohibition of discrimination.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković