Admission of a child to a kindergarten "in excess of the maximum capacity"

The Defender was approached by a head teacher of a kindergarten with a request for help. She stated that statutory representatives of one of the children not admitted had appealed a decision of non-admission with the Regional Authority of the South-Bohemian Region, which had found unlawfulness and reversed the decision of the head teacher, thereby admitting the appellant to preschool education. Following the decision of the appellate body the number of children in the kindergarten increased to twenty nine. The head teacher of the kindergarten, however, objected that the maximum number of children in a class in the kindergarten was twenty eight; moreover, within the provision of Sec. 23 (5) of Act No. 561/2004 Coll., on Pre-school, Basic, Secondary, Tertiary Professional and Other Education (the Education Act), as amended, that number was a result of increasing the maximum number of children by the maximum of four children as anticipated by law. Therefore, following the decision of the appellate body the number of children exceeded even the exception to the maximum number of children in the class as permitted by the promoter. 

The Defender opened an inquiry on his own initiative, concluding that the appellate body had endeavoured to protect both public interest and the child's interest in preschool education. The Defender had earlier pointed out the problem of only theoretical and solely formal possibility of a child to defend itself against an unlawful decision of a head teacher by appealing such a decision. If an appellate body only quashed the decision and returned the matter for new proceedings, it is apparent that a child would not be admitted for capacity reasons; only stating unlawfulness by an appellate body would not be capable of remedying the consequences of an unlawful decision and the whole appellate proceedings would be only formal in character. Quashing an unlawful decision and returning the matter for a new proceeding would make sense only in case the head teacher left some places in the kindergarten unoccupied for the purpose of appeal.

The maximum capacity within the sense of the provisions of Sec. 23 (3) of the Education Act and the Decree on Preschool Education binds and limits in particular promoters of kindergartens and may not be to the detriment of a child who has not been admitted to the kindergarten in violation of law. Moreover, before the start of the school year the capacity of a kindergarten is de facto not exceeded and an unlawful state of affairs occurs only when the actual state of affairs has not been brought into compliance with law at the beginning of the school year. If a child is admitted to a kindergarten in appellate proceedings in excess of the existing capacity, it is up to the promoter to bring the actual state of affairs in compliance with law before the start of the school year by increasing the capacity. The decision of the appellate body was in accordance with the principle of legality in the given case.