The Ombudsman believes that it is against the provisions of Article 3 of the Convention on the Rights of the Child and Articles 56 and 57 of the Constitution of the Republic of Slovenia if a child is not allowed to advance to a higher grade of primary school, contrary to the applicable legislation. The school in question did not explicitly agree with the Ombudsman's opinion, but followed him with its actions and allowed the child to enrol in a higher class.

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The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) received for consideration a complaint that related to very specific problems of a primary school student. With the decision of the Institute of Education of the Republic of Slovenia, he was directed to an adapted educational programme of a primary school with a lower educational standard at another primary school. The parents did not agree with the decision and, after the finality of the decision, turned to the court, which issued a temporary order at the end of May 2024 to postpone the execution of the decision on orientation until the final decision in the administrative dispute.

For half a year until the temporary order was issued, the child did not attend the new school, but went to the old one and was otherwise present during lessons there, but was not included in the work together with the other students; the teachers did not want to test his knowledge, not even when he specifically asked them to do so, as he had specially prepared for the knowledge test. The student thus remained ungraded. The school decided to solve the resulting complication by allowing him to take eight subject exams from 20 August to 30 August 2024, if he wanted to successfully complete the 4th grade, which the student was only informed about on 2 August 2024.

In doing so, according to the complainants, the school should rely on the provision of Article 76 of the Elementary School Act (ZOsn), which stipulates that students who cannot attend classes due to illness or other valid reasons can take exams in individual subjects until the end of the school year. As can be seen from the mentioned letter from the school dated 2 August 2024, the student would thus have to take an exam in one subject every working day in a row, and this represents an obviously disproportionate burden that probably none of the students in Slovenian elementary schools can cope with.

This is also why Article 11 of the Rules on Testing and Assessing Knowledge and the Advancement of Pupils in Elementary School (Rules) stipulates, among other things, that in subjects for which the scope is set by the syllabus for a maximum of two hours per week, the pupil's knowledge is assessed at least three times during the school year , and in the case of courses for which the scope is determined by the curriculum more than two hours per week, at least six times during the school year.

Therefore, the parents informed the school that the child would not take the exams. In the complaint, they stated that the school did not know how to respond to the situation, which is undoubtedly complicated and not foreseen in the current regulations. The school is said to have decided that the child would have to repeat the 4th grade.

In relation to this case, the Ombudsman warned the school and the Ministry of Education that the provision of Article 76 of the ZOsn is not an adequate basis in this particular case, since the child was not absent from classes due to illness or other reasons. The child attended classes, although he was not formally enrolled at the school. The Ombudsman also drew attention to the provision of Article 69 of the ZOsn, which stipulates, among other things, that a 4th grade student can repeat a grade without the consent of the parents, based on a written, reasoned proposal from the class teacher, when he is evaluated negatively in one or more subjects at the end of the school year, only under on the condition that the school allowed him to participate in supplementary classes and other forms of individual and group assistance. Given that supplementary lessons and other forms of individual assistance were not provided to the child, in the opinion of the Ombudsman, the conditions for repeating the class were not met.

In the Ombudsman's opinion, as stated, it was a very specific situation, which is not foreseen by the current regulations, therefore it also demanded an appropriate specific solution, which, however, must take into account the requirement of Article 3 of the Convention on the Rights of the Child (CRC), which stipulates that the best interests of the child should be guiding principle in all activities related to children.

The Ombudsman therefore called on the addressee to immediately find an appropriate solution for the student, which will take into account, among others, Article 2 of the Rules, which stipulates that the teacher in the elementary school checks and evaluates the student's knowledge in a way that respects the personal integrity of the students and the difference between them, whereby the above must be understood not only by taking into account the diversity of students and their specific personality traits and abilities, but also by taking into account the diversity of circumstances that arise, such as appeared, for example, in the specific case.

From the answers of the MVI and the school, which the Ombudsman received a few days before the start of the new school year, it was evident that various explanations were given as to why the unusual situation had occurred, but no explicit explanations were given as to how the matter would be resolved, or that both addressees insisted that the child must take the exams.

The complainants informed the Ombudsman that the school had enrolled the student in the 5th grade on the first day of the new school year.

The Ombudsman assessed that in the specific case there was no interference with the rights of the child (yet), since the matter was resolved properly, literally at the last moment, but the Ombudsman estimates that without his intervention, there would have been a violation of the rights of the child. which are protected by the provisions of Article 3 of the Convention on the Rights of the Child and Articles 56 and 57 of the Constitution of the Republic of Slovenia. Regardless of the fact that the school did not accept his arguments in the response sent to the Ombudsman, it apparently still acted in a direction consistent with the Ombudsman's views, which is why he closed this case. 19.1-68/2024