Procedures
The DOCER has introduced a special, so-called reconciliation, procedure in line with the nature and the system of mechanisms of the Office. When the Office learns of the possibility of a violation of education-related rights, or the imminent threat of such and the petition is not rejected on account of failure to meet the procedural criteria, the reconciliation process is initiated. At the beginning of the procedure the validity of the complaint is not checked: instead, the investigated party is informed of the contents of the submission and asked to inform the Office of its position concerning the issue. We always make efforts to learn the opinion of the investigated party involved in the case for it is essential that both sides of the case be heard. Another goal of requesting the position of the investigated party is to enable such party to look into the problem and to review its position established in response to our question. As a result of the application of this approach many problems were resolved at the initial phase of the investigation and the institute concerned remedied the violation.
During the following phases of our proceedings we establish our position on the basis of the statements of both parties, the supporting documents submitted and after review of the statutes applicable to the issue. The DOCER does not provide any other means of carrying out an investigation. Thus we cannot demand documents for inspection and we may only ask the institution concerned to provide us with information on the case.
We will try to clarify a conflict, sometimes without means to carry out an investigation, even where the parties make contradictory statements and representations on the same questions. When the difference between their opinions cannot be reconciled, we have to explore and identify the potential infringement. To this end, the DOCER offers the following mechanisms: on the one hand, it regulates the burden of proof, on the other hand, it introduces the principle of personal reconciliation. Pursuant to the provision on the burden of proof, the facts constituting the basis of a petition have to be proven by the petitioner, while the facts constituting the basis of its position have to be proven by the institution. Consequently, where the statements of the complainant and the institution are contradictory, and the complainant cannot supply evidence to support his or her statements, we cannot continue our proceedings by performing an investigation. Since in this case the available data do not support the allegation of the infringement of educational rights, the case has to be terminated.
Pursuant to Article 7 (3) of the DOCER, where it is justified, the parties are invited to conduct personal reconciliation negotiations. Personal reconciliation is a special element of our procedure, in the course of which those involved in a conflict explore the circumstances of the case together, with the involvement of our staff members. The Office provides the framework for an efficient discussion and to shed light on the legal background of a case. The organisation of a reconciliation session provides sufficient time for the parties to listen to one another's opinions. The parties are asked to discuss only issues pertaining to education in the course of such a meeting and to try and avoid getting side-tracked with personal grievances, so as to properly explore and evaluate the events that led up to the complaint. Personal reconciliation makes it possible to allow for possible forms of remedy when infringement has been established. Thus, in this way those involved in the conflict may help to resolve it. The type of the solution will thus also depend on the parties involved in a conflict, and will allow for the development of a sense of 'ownership' of the solution. Of course the agreement between the parties cannot be contrary to the statutes, however the legislative framework allows a wide range of solutions to the majority of conflicts. We are convinced that personal reconciliation increases the probability of voluntary compliance for a jointly established position. It may lead to a more durable result than an official resolution or decision passed by an authority which has to be enforced by legal means.
The institution of personal reconciliation enables the participants of education to resolve a conflict before it harms their dignity. This sophisticated and efficient form of conflict management may create the demand in education institutions to set up their own procedures for conflict resolution.
Based on the above procedural steps, a review is initiated to determine whether rights relating to education have been violated in a given particular case. Some 26% of our cases were terminated for non-violation of rights. Either because we established that no infringement had taken place or the information made available was not sufficient for the establishment that educational right had been infringed upon. Infringement of educational rights was established in 17% of cases. In these cases, where the infringing party fails to rectify the offending behaviour under its competence, measures have to be taken, as per the DOCER.
From among the possible remedies available to the Office, the specific mechanisms for making initiatives or recommendations had been applied most often. These measures do not have binding force; i.e.) the institutions to which such initiatives or recommendations are addressed are not obliged to carry them out. Throughout our procedures this feature needs to be taken into account, as is indicated by the conciliatory nature of our investigations and the policy of personal reconciliation. The objective of the entire process is to ensure that the parties identify with the contents of the recommendation or initiative resulting from the procedure and accept the proposed solution. It should be a solution arrived at through the reconciliation process, with each party's active participation, and a solution that they implement voluntarily, without recourse to enforcement by law.
It should also be noted that in the course of our procedures we always act in favour of the aggrieved party. In some cases, it may not be the same as the complainant or petitioner. In numerous cases the complainant was found to have violated educational rights, therefore, the recommendation was addressed to the submitter to terminate the non-compliant behaviour. (VI/89/2000., VI/477/2000.)
The DOCER contains a number of rules to ensure that persons do not suffer disadvantage just because of submitting complaints or petitions to the Office.
Personal data of petitioners are handled in accordance with the provisions laid out in the Act on the Protection of Personal Data. From the aspect of the Office, one of the most important rules of the Act on the Protection of Personal Data is that it is to be assumed that the petitioner consents to the handling of his or her data in the proceedings launched. In the course of our investigations, therefore we may handle the personal data of the complainant and may forward them to the other party, but only to the extent and in ways to which and in which it is required for the resolution of the issue. According to the DOCER, the complainant may ask for the confidential treatment of his or her name during the proceedings. Of course the Office deals with each case without transmitting the name of the submitter where there is no need for the naming of the complainant. Therefore, the request for anonymity is important primarily where it is not possible to carry out the investigation without transferring the petitioner's personal data. In these cases the submitter is informed that such request would hinder the resolution of the case and we ask them whether, in view of this fact, they give up the demand for anonymity. Pursuant to Article 10 (2) of the Decree on the Proceedings of the Office, this report must not contain personal data of individuals involved in the cases.
Article 6(4) of the DOCER requires that no other authority should learn of complaints received by the Office even if the investigation of the given issue is beyond its remit. Pursuant to the DOCER, the Office informs the complainant of its lack of competence and specifies the organisation or authority that does have the competence to deal with the issue. Under the same paragraph no case may be transferred to another authority without knowledge and consent by the complainant.
Act No. LXIII of 1992 on the Protection of Personal Data and the Publicity of Information of Public Interest
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