Children are the ornament of the world – a requiem for the stupidity of adults

Written by: Alen Nakić, attorney

"Children are the ornament of the world" is one of the most beautiful songs for children, once
sung as an ode to children's freedom and the universality and boundlessness of the freedom of a child's mind by the
incomparable Arsen Dedić, with lyrics by Ljubivoje Ršumović.

There is no world, nor planet
where a child cannot reach
because all children's paths lead
from play to freedom.

This idea of boundless children's freedom and full protection of children's rights is also promoted by the UN Convention on the Rights of the Child from 1989, as one of the international instruments for the protection of human rights ratified by Bosnia and Herzegovina.

Why am I even writing this, when it is self-evident that this is so?!

True, both as a parent and as someone who practices law as a craft, I held and believed that this universality and cosmic boundlessness of children's freedom, in a democratic society such as Dayton BiH, absolutely cannot be called into question by any regulation, especially not by a regulation of the Ministry responsible for the upbringing and education of children.

Until a few days ago, when, as a parent of an eighth-grader, at a parent-teacher meeting in an elementary school, I was handed an unsigned form. By signing it blank and giving consent for what was requested, I, as a parent, would not only violate the obligation I have by law, but would betray my child in every sense, and "hand him over" to a system and procedure that guarantees him no protection—neither legal, nor psychological, nor physical—such as he might need if he were in a situation to give a statement as a witness to an event.

You surely assume what this is about; it is the form from Annex 1 of the Rulebook on Imposing Educational-Disciplinary Measures in Elementary and Secondary Schools ("Official Gazette of Sarajevo Canton", no. 33/24), which requires parents to give consent for their child, in the event of a specific incident requiring additional fact-finding, to fill out a form with the requested information.

What is the problem?!

The problem is that the aforementioned Rulebook prescribes the procedure of a process in which
sanctions are ultimately imposed, and which, as such, in its habitus, has all the elements of a procedure
that has the character of a criminal proceeding in light of the jurisprudence of the European Court of Human Rights
in Strasbourg (Engel and Others v. the Netherlands). Ultimately, this means that by giving this consent, the child, as a possible perpetrator of a disciplinary offense under the
Rulebook, is deprived of the right to the privilege against self-incrimination guaranteed by the provisions of Article 6, paragraphs 1 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

On the other hand, the fact that the form in question absolutely contains no instructions to the child about his rights indicates its complete contradiction with the provisions of Article 6, paragraphs 1 and 3 of the cited Convention, which, pursuant to Article II/2 of the Constitution of BiH, applies directly and with priority over all other regulations in BiH. When added to this that the author of the form, as well as the Rulebook itself, absolutely did not foresee the possibility for the child to have legal protection through a lawyer when giving a statement, nor did he foresee that a parent or guardian of the child could be present during the taking of any statement, it is indisputable that the Rulebook and the said form are not some novelty, and especially not a benefit for children and an improvement of the educational system, but an exemplary example of the violation of children's rights.

This is all the more so considering Article 3, paragraph 1 of the UN Convention on the Rights of the Child from 1989, which explicitly stipulates that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration," which, when applied to elementary schools, means that in every type of procedure in which sanctions are imposed on students, the cited standards from Article 6, paragraphs 1 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms must be met.

When it is added to the above that parents are asked to give consent under the guise that
they are doing so for the well-being of their child and supposedly all students, such conduct represents a perfidious legal insolence by which the parent would hand over the child to the system and procedure, without the parent's participation, without the possibility for the parent to provide legal protection for the child, whereby the child would ultimately feel betrayed because the parent, by giving consent, obligated the child to provide it. And the consequences, ultimately, would be borne only by the parents/guardians and the children.

Therefore, in this specific case, it is obvious that the regulation in question has deprived children attending elementary school, who are absolutely not criminally liable until the age of 14, through the Rulebook and the cited form, of a right that the author and issuer of the same would have in a similar procedure determining his disciplinary responsibility, namely the right to defend themselves with the assistance of a professional. Thus, it is clear that the issuer of the regulation has not only violated the previously cited convention rights of elementary school children, but has simultaneously discriminated against them regarding procedural rights compared to a similar procedure that would be conducted against the issuer of the regulation himself.

I WILL NOT give you my consent, initiate the procedure, I am ready and waiting.