U-I-110/16

Reference no.:
U-I-110/16
Objavljeno:
Official Gazette RS, No. 47/2020 and OdlUS XXV, 2 | 12.03.2020
ECLI:
ECLI:SI:USRS:2020:U.I.110.16
Note:
¤
Document in PDF:
The full text:
[Publisher's Note: The full text of this Decision/Order is available only in Slovene. The text published below is a summary prepared for the annual report.]
 
Public Financing of Private Primary Education
 
In Decision No. U-I-110/16, dated 12 March 2020 (Official Gazette RS, No. 47/20), the Constitutional Court reviewed, on the basis of several petitions, the regulation of the financing of education.
 
The disputed question in the case at issue was the scope of the public financing of state-approved primary education programmes carried out by private schools. The petitioners challenged the first sentence of the second paragraph of Article 86 of the Organisation and Financing of Education Act (hereinafter referred to as the OFEA), in the part that refers to the 85% public financing of morning and afternoon out-of-school-hours care, and remedial education in private primary schools with a state-approved primary education programme. They alleged the unconstitutionality of the challenged provision since 100% public financing of private primary school programmes should allegedly have been provided. In the opinion of the petitioners, the second paragraph of Article 57 of the Constitution ensures pupils the right to attend a compulsory state-approved primary education programme free of charge regardless of whether it is carried out by entities of public or private law. Therefore, primary education, which is compulsory for pupils, must be financed from public funds, whereby such obligation does not refer to educational institutions but to the prescribed content of education programmes.
 
 
The Constitutional Court has already reviewed the challenged statutory provision. By Decision No. U-I-269/12, dated 4 December 2014, it found this provision to be inconsistent with the second paragraph of Article 57 of the Constitution. The attempts to implement the cited Decision have demonstrated that its interpretation varies. The Constitutional Court thus first had to answer the question of whether the cited Decision refers only to the public financing of the compulsory part of primary education or to the public financing of the entire primary education programme. Since the human right to attend a compulsory primary education programme free of charge only encompasses 100% public financing of the part of the programme that is compulsory for pupils attending primary schools with state-approved programmes, the Constitutional Court emphasised that in Decision No. U-I-269/12 it found the challenged provision to be inconsistent with the Constitution only in the scope that refers to the public financing of the part of the education programme in private primary schools with state-approved programmes that corresponds to the content of the compulsory part of the primary education programme in public schools. In the cited Decision, the Constitutional Court did not address the issue of the statutorily prescribed conditions for private primary school programmes to be approved by the state. It also did not review the regulation of the financing of morning and afternoon out-of-school-hours care, or remedial education in private primary schools with state-approved programmes.
 
With regard to the fact that – despite the expiration of the time limit – the legislature has failed to respond to Decision No. U-I-269/12 by adopting an appropriate law, the Constitutional Court held that the failure of the legislature to respond to its Decision not only maintains but also deteriorates the unconstitutional situation and entails a violation of the principles of a state governed by the rule of law (Article 2 of the Constitution) and the principle of the separation of powers (the second sentence of the second paragraph of Article 3 of the Constitution).
 
The Constitutional Court deemed the petition to be a repeated petition in the part that refers to the public financing of the part of the state-approved programme in private schools that corresponds to the content of the compulsory part of the programme in public primary schools and which was found to be unconstitutional by Decision No. U-I-269/12. It assessed that all the grounds due to which such Decision was adopted still continue to exist. Nevertheless, the Constitutional Court still cannot abrogate the challenged statutory provision on which the 85% public financing of primary education programmes in private schools with a state-approved programme is based. Such abrogation would namely entail an even more severe interference with the constitutional right to attend compulsory primary education free of charge. The Constitutional Court once again did not choose to determine the manner of implementation of Decision No. U-I-269/12. It emphasised that disrespect for a decision of the Constitutional Court is, in itself, not a reason for determining the manner of its implementation. It depends on the circumstances of the individual case, the conduct of the legislature, the technical characteristics of the regulation, and the complexity of the affected real-life relationships whether the Constitutional Court temporarily enters the legislature’s field and determines the manner of implementation of its decision. The regulation of the financing of primary education is complex and a change in the system of financing education requires comprehensive consideration of issues that are not merely of legal nature. The Constitutional Court did, however, underline that the legislature must ensure, in accordance with the constitutional requirements, that the established unconstitutionality be eliminated without delay.
 
The Constitutional Court deemed the petition to be a new petition in the part that refers to the public financing of the content of the non-compulsory part of the public school programme in private schools with a state-approved programme. It reviewed the regulation of the public financing of morning and afternoon out-of-school-hours care and remedial education in private primary schools with a state-approved programme from the perspective of the second paragraph of Article 57 of the Constitution. In accordance with the cited constitutional provision, the state must fully finance only that part of the state-approved programme in private primary schools that corresponds to the content of the compulsory part of the programme of public primary schools. The extended part of the public primary education programme, which includes morning and afternoon out-of-school-hours care and remedial education, is voluntary. Such entails that the stated contents are not compulsory for the fulfilment of the constitutional obligation of primary education in private primary schools with a state-approved programme; therefore, the challenged regulation is not inconsistent with the second paragraph of Article 57 of the Constitution in this part.  
 
The Constitutional Court also rejected as unfounded the petitioners’ allegations that the challenged regulation is inconsistent with the first paragraph of Article 14 of the Constitution. It stated that attending a private primary school with a state-approved programme is not a personal circumstance in the sense of this constitutional provision. The Constitutional Court further held that the challenged regulation is not inconsistent with the principle of equality determined by the second paragraph of Article 14 of the Constitution. It held that the positions of the compared groups (i.e. children who attend private primary schools with state-approved programmes and their parents, on one hand, and children who attend public primary schools and their parents, on the other) are different from a constitutional law perspective.
 
The petitioners also alleged that in the part that ensures only partial public financing of remedial education in private primary schools with state-approved programmes the challenged regulation is inconsistent with the principle of a social state (Article 2 of the Constitution). With regard to such, the Constitutional Court clarified that the legislature regulated the right of children who are vulnerable, in terms of their need for assistance in education, to enjoy special protection in the second and third paragraphs of Article 52 of the Constitution and that the circle of beneficiaries within the framework of the principle of a social state cannot be broadened. With regard to the petitioners’ allegations that the challenged regulation, in the part that ensures only partial public financing of morning and afternoon out-of-school-hours care in private primary schools with state-approved programmes, is inconsistent with the provision determining the rights and obligations of parents (Article 54 of the Constitution), the Constitutional Court decided that the mentioned Article does not ensure the public financing of the stated content.
 
 
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Peter Gregorčič, Ljubljana in drugi
Date of application:
17.06.2016
Date of decision:
12.03.2020
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute dismissal rejection
Document:
AN4025