Natisni vsebino

Right of children to free expression of their opinion in schools and educational institutions in the republic of Slovenia

07.10.2005 14:00
Category: papers


1. Legal framework

In 1992 the Republic of Slovenia notified its succession to the United Nations Convention on the Rights of the Child, which had previously been ratified by Yugoslavia. On the basis of Article 8 of the Constitution of the Republic of Slovenia, ratified and published international treaties are applied directly. This is very significant since it means that there is no need to adopt special legislation in order to put an individual provision into effect. It is however true that the provisions of international acts are usually too general to be applied in their entirety without additional internal legal regulation.

State bodies must apply the provisions of these international treaties in the same way that they apply the law of the State. This causes quite a number of problems, particularly for administrative bodies, which often only seek a legal basis for their decisions in domestic legislation even though they could directly apply the norms of the international treaty. It is therefore no surprise that employees in educational institutions and other institutions, the majority of whose everyday professional work is governed by implementing regulations, circulars from the ministry and various instructions from the competent bodies, are even less familiar with the provisions of the international treaties. Unfortunately, public employees very often prefer to rely on internal instructions than to use logical thought and address an issue in accordance with the child’s best interests.

If employees, who are supposed to know them and use them in their everyday work are poorly acquainted with the (compulsory) provisions of international acts, it is no surprise that children and adolescents – and their parents – have poor knowledge of their rights. That is why one of the ombudsman’s most important tasks is the promotion of children’s rights – an area to which we are devoting more and more attention. For this reason, we are working to make learning about children’s rights part of the regular curriculum of all schools, and we are also cooperating with the School for Head Teachers, which trains teaching staff. Among the latter, the belief that children’s rights are more of an obstacle in the teaching process than an essential part of it is more widespread than it should be.

The right to freedom of expression is set out by Articles 12 and 13 of the Convention on the Rights of the Child (hereinafter: CRC).

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 13

1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.
2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others; or
(b) For the protection of national security or of public order, or of public health or morals.

In the broader sense the provisions of Article 14 of the CRC on freedom of thought, conscience and religion also apply to the right to freedom of expression, while the provisions of Article 17, which defines the right to access to information, could also be included in this context.

All of the rights mentioned above are defined in more detail in various statutes and implementing acts of the Republic of Slovenia in individual spheres, but to analyse them would go beyond the scope of this conference. We shall therefore deal only with the sphere of education. In the process of preparing this paper we obtained additional information from the Ministry of Education and Sport which drew our attention to certain aspects of the exercising in practice of the rights we are talking about.

Particular attention should be drawn to the provision of the Constitution of the Republic of Slovenia that guarantees to everyone the freedom of expression of thought, freedom of speech and public appearance, of the press and other forms of public communication and expression. Everyone may freely collect, receive and disseminate information and opinions. Under the Constitution, this right may not be limited by statute. Its limitation derives from the rights of others, whose rights and freedoms may not be prejudiced by the exercising of this right.

1.1 Legal definition of the right

The right to freedom of expression of one’s own opinion in schools is not explicitly set out in any legal act regulating the sphere of education (there are five such acts: the Organisation and Financing of Education Act, the Elementary School Act, the Gimnazija Act, the Vocational and Professional Education Act and the Adult Education Act). It is however possible to define the right through interpretation of the individual statutory provisions that oblige schools to allow pupils the possibility, in accordance with regulations, of influencing matters at school and participating in decisions on them.

The 1996 Organisation and Financing of Education Act makes it possible, at the vocational school, gimnazija and school boarding house level, for representatives of pupils/apprentices to sit on the school council (the managing body of a school). The Act sets out the compulsory composition of the school council: two representatives of the founder (the State), five representatives of the school staff, two parents’ representatives and two apprentices/pupils’ representatives. The mandate of apprentices and pupils is linked to their status and limited to four years. They are elected through direct, secret balloting. The procedure is set out in more detail by the school’s founding act.

There are no limitations on the work of pupils’ representatives on the council. The Act does not even exclude the possibility of their being elected president of the council, although this has not happened to date.

In practice, they are for the most part pupils from higher years, and they do not really have much power at council meetings because they can always be outvoted by the other members of the council, who outnumber them.

The main competences of the school council are as follows: appointing and dismissing the head teacher, adopting the school’s development programme, and deciding on complaints relating to the status of pupil, parents’ complaints and the complaints of school staff in relation to their rights deriving from employment.

At the school council the representatives of apprentices/pupils may represent with complete autonomy the positions of those they represent, although they are not bound by their instructions and have no ‘imperative mandate’.

In many schools pupils are invited to the periodic meetings of parents with the teachers of an individual class. At these meetings they can state their wishes, make suggestions and comment on the work of the teachers. This practice has proved to be very successful, since among pupils it strengthens self-confidence and the feeling that they are being taken into consideration as part of the school, and that adults actually accept them as equal partners in dialogue. This practice, of course, is not a rule. Participation at meetings depends above all on the envisaged content. Thus pupils may, together with parents and teachers, analyse teaching results and problems, and attempt, through dialogue, to find ways to achieve better results or resolve open questions. Naturally this form of cooperation and obtaining the opinion of pupils is more common with higher-year pupils, who are increasingly aware of their possibilities and rights, and above all have a better knowledge of themselves, of others and of the entire school environment.

One particular problem is represented by disciplinary proceedings instituted by the school against a pupil who has broken school rules with regard to the organisation of lessons (lateness, leaving early) or discipline during lessons. In these proceedings pupils are not always given the chance to give their opinion and the teacher can pronounce a disciplinary measure (admittedly the mildest one possible) without giving them the chance to be heard. It is true that disciplinary proceedings against a pupil are not, by their nature, judicial or administrative proceedings. I do however feel that the same procedural guarantees should apply to them, since in such proceedings a decision is nevertheless being made about children’s rights.

1.2. The right at elementary school

The Rules on the rights and duties of elementary school pupils, issued by the Minister of Education, define the class community as the basic form of organisation of pupils. Within the framework of the class community, pupils may, among other things, participate in the assessment process, propose to the class teacher the assessing of the suitability of a specific mark or grade, and formulate proposals for commendations and prizes for members of the class community. Via secret ballot each class community elects two representatives to the pupils’ community at the school level. Its main competences are as follows: monitoring the exercising of rights and duties of pupils, drawing the attention of the head teacher and school council to any violations of pupils’ rights, proposing improvements of the living environment, organisation of school events, etc. The executive body of the pupils’ community is the school parliament, which is elected by the pupils’ community.

In accordance with special rules, elementary school pupils have the right, following consultation with parents and the teacher, to choose their own teaching group in subjects where flexible ability grouping is practiced. This also applies to the decision regarding the difficulty level they wish to join. In these cases the school is obliged to respect the expressed opinion or wish of the pupil, and the Human Rights Ombudsman has no records of this type of violation.

As regards assessment, pupils are guaranteed the opportunity to express their opinion, since they may draw attention to violations by writing to the class teacher, the school counselling service, the head teacher or the school council, who must respond to a pupil’s written communication within 30 days. If the pupil or his or her parents are not satisfied with the reply, or do not receive one, they can submit a request for an inspection by a school inspector.

It is interesting that the Elementary Schools Act only gives the right to object to an incorrect grade, in the case of final assessment, to parents, and does not grant this right directly to the pupil. The legislator evidently did not wish to grant youngsters under 15 the capability of establishing, on the basis of their own assessment of their knowledge, whether their (final) grade was unfair and objecting to it. I believe that pupils in the last year of elementary school are already mature enough to be granted the right to object, since after all the law even permits full-time employment at this age. Likewise, it is not logical that pupils should have the right to express their opinion during the year but not with regard to their final grade. 

1.3 The right at gimnazija

Under the Gimnazija Act, the Minister of Education defines in more detail the duties of pupils and the procedure and method for taking measures relating to school rules. This however is questionable with regard to constitutional arrangements. The Constitution provides that rights and duties may only be regulated by law. The ombudsman has already drawn the ministry’s attention to this fact several times, but the latter asserts that an implementing regulation can be amended more rapidly and thus be adapted to different new situations.

The Gimnazija Act provides that pupils may organise pupils’ communities at the school and class levels. The school pupils’ community is run by a committee consisting of representatives of all the class communities. The pupils’ community organises extra-curricular life and work and deals with questions relating to educational work and administration, and makes its own proposals to the school bodies. Unfortunately, no regulation or school act sets out the procedure for dealing with proposals from the pupils’ community, and thus this right has more of a declarative nature and no practical value in the sense of exercising the right to express an opinion. The right to express one’s opinion should not be allowed to end merely with the action of expression, it should encourage action from the other party, the party for whom it was intended. Otherwise, the right has no real content and is simply words.

The Act also provides that pupils of gimnazije can join together to form associations of gimnazija pupils, but it does not follow from the Act what their functions should be or what their activity should consist of.

Under the Gimnazija Act, a pupil has the right to object to a grade in an individual subject, while the Act does not grant this right to parents.

2. Actual content of the right – some examples

2.1 Freedom of dress

The concept of expression of opinion does not only cover words or speech, it also relates to images, appearances, symbolic expression and even clothes. Slovenia has no regulations determining the mode of dress in schools, and individual schools are not allowed to prescribe uniforms or other compulsory garments (the exceptions are protective clothing for specific subject and sportswear). Under the previous regime, in around 1960, the school authorities made several attempts to introduce uniforms, as a way of hiding social differences. These attempts soon failed, however, owing to the reluctance of parents, who had to pay for the uniforms. Today not even private schools have the right to prescribe a uniform, while faith schools may not prescribe compulsory religious symbols.

Furthermore, pupils’ clothes, jewellery, hairstyle and make-up may reflect their beliefs, and teachers may not persecute them on these grounds, except if they are a cause of disturbance in class or if these symbols violate the rights of others (e.g. cause offence to those who think differently, those with different religious beliefs and so on).

2.2 Religious freedom

In Slovenia the separation of religious communities and the State is determined by the Constitution. For this reason, religious symbols may not appear in schools, and under an express legal provision also confirmed by a decision of the Constitutional Court, no confessional activities may be carried out in schools. The expression of faith on the part of a public school would mean a violation of the rights of all pupils not members of this faith. For this reason too there is no prohibition or persecution of the displaying of religious symbols on the clothes, jewellery or hairstyles of pupils, who are free in this type of expression of belief. Their freedom is only limited by the right of others not to be offended by these symbols or badges or otherwise have their rights encroached on by them.

Another legitimate objective of limiting freedom of expression may be ‘protection of honour or rights of others’. This enables a school to prevent a teacher from exposing his pupils to his own subjective moral or religious views. By way of example allow me to cite a problem that we dealt with last year, when a teacher refused to work with pupils on Saturdays because of his religious beliefs. The school governors were of the view that this constituted a violation of his contract of employment but the teacher insisted that his freedom of religion had been violated. He applied to the ombudsman, who however did not agree, since he considered that the teacher’s religious beliefs were part of the right to privacy, which however he could not exercise at the expense of the children on whose account he was employed at the school, since in this specific case his right represented an inadmissible encroachment on the children’s right to education.

Another problem still very fresh in our minds occurred when the Government of the Republic of Slovenia recommended to all state bodies, institutions and inhabitants of the Republic of Slovenia the observance of a minute’s silence to honour the memory of Pope John Paul II. Some individuals in the media called for the intervention of the Human Rights Ombudsman, on the grounds that the Government’s recommendation violated the rights of non-believers, where children in schools were considered to be particularly exposed because they had no way of avoiding this event. The ombudsman did not intervene, since we felt that the Government’s decision was merely a recommendation that everyone was free to observe in accordance with his or her own beliefs. In the ombudsman’s opinion, a minute’s silence for someone who has died is an expression of respect and does not involve a religious definition or the imposition of religious customs or values. This was also our published position. As it turned out, schools reported no difficulties in relation to this issue.

2.3 Expression of opinions outside school

In principle, a school has no right to encroach on the rights and freedoms of pupils outside school. The only exception permitted are actions or declarations by pupils that directly attack the school and threaten the realisation of its ‘educational’ function, although such conduct must be assessed on a case-by-case basis. Under the law, and depending on the gravity and nature of the action, the school can propose criminal proceedings or demand damages or other satisfaction in a civil proceeding in order to exercise its rights. However, we have had no such criminal proceedings – at least in the last ten years – while any civil claims are usually resolved by an out-of-court settlement involving the school and the pupil’s parents.

It is therefore not a violation of the right to free expression if the school prohibits the use of slang on school premises and during lessons. If, however, the school were to prohibit the use of slang out of school, or for example were to prohibit a play being prepared by pupils as part of their extra-curricular activities, such a prohibition would probably constitute a violation of the right to expression, since it would mean an impediment to pupils’ creativity.

2.4 Expression of opinions during lessons

Similarly, we cannot talk about a violation of the right to free expression of opinion if a teacher interrupts a pupil during a lesson or does not permit a pupil to express his or her opinion. The teacher is responsible for ensuring that the lesson proceeds without disturbance and must have the right to decide, on each occasion, when the expression of opinions or discussion of a specific issue can contribute to better understanding of the subject matter, and when it could threaten the realisation of the learning objectives which should be common to all those attending the lesson. Thus when the individual right to expression encounters the right of others to education, the teacher has to decide on a case-by-case basis which right should take priority. In such a decision, the good of the child, as defined by the CRC, must always prevail.

3. Conclusion

I should end by admitting that even at the Human Rights Ombudsman’s office we have still not found an effective way of encouraging children and adolescents to exercise their right to express their own opinion in the sense that the ombudsman can listen to them and react appropriately. Children and adolescents rarely apply to the ombudsman, and only in cases of specific violations of their rights in relation to education (assessment of knowledge, questions of status). To date, we have dealt with no complaints alleging a violation of the right to express one’s opinion. This of course does not mean that such violations do not occur, but it probably does mean that other rights are more important to children and adolescents, or that they are not even aware of this right. In the ombudsman’s conversations with children, the latter tend to open up and talk about their problems when teachers are not present. When teachers are present, they talk about other topics and issues.

In general we can say that in Slovenia the opinion that a child is, above all, the object of education, and thus the object and not the subject of rights, is slowly changing. Among pupils, the process of gaining self-confidence and greater awareness about their rights – and obligations – is changing slowly and gradually. Pupils who draw attention to violations of rights are no longer, in the eyes of the teachers, simply a troublesome element in the teaching process. Instead, their opinions are becoming increasingly valuable in the shaping of a friendly school. The problem is never merely that rights are violated: it becomes a bigger problem if no-one deals with this or reacts to it, either because they do not acknowledge the violations or because they ignore them.

Tone Dolčič
Deputy Human Rights Ombudsman

Ljubljana, 1 October 2005


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