Scope of competence of the Commissioner for Educational Rights, and the conditions required to initiate investigations
The Office is authorised to act in the case of grievances related to educational rights or when imminent threat of the violation of such is identified. The group of educational rights under protection that include rights of participants of education is granted by the Constitution and by the acts on public education, higher education and vocational education and training. Participants in education are usually considered to be children, pupils, students, researchers, teachers, instructors, parents and their communities. The Office may take remedial steps, i.e.) initiate investigations, in the case of infringements and threats of infringement. Other statutory provisions specify the contents and guarantees of the rights provided for in the above laws.
The Office may launch investigations not only in the case of infringements that have already occurred or in the case of existing violations of the above elements of legislation, but also when imminent danger of such infringement is communicated to the Office. It has been found that complainants contact the Office after the occurrence of infringement rather than upon the perception of a direct threat of infringement. However, there are examples of petitions concerning such threats as well, (VI/97/2000, VI/115/2000.)
The DOCER allows two ways for the launching of an investigation. They may be initiated by a request, as when the complainant is part of the investigation, or they may be initiated ex officio. The launching of an investigation by ex officio must meet the conditions as specified in the DOCER.
If the petitioner is not personally affected, i.e.) if the petition is submitted by a person other than who would be entitled to do so, the Office cannot carry out the investigation and the submission is rejected outright. Anonymous submissions are also dismissed by the Office for in that case it is not possible to establish whether the claimant is actually entitled to make a complaint or not. The DOCER allows for a legal representative of an individual incapable to act or one of limited capability to act to submit a petition to the Office. Thus for instance, the Office may launch investigations based on complaints submitted by parents on account of the infringement of rights of pupils and students as specified on the Act on Public Education. But in the case of infringements suffered by university or college students, no complaints or petitions submitted by parents may be accepted by the Office. If however, a complaint submitted by an individual, otherwise not entitled to submit such complaint, draws the attention of the Office to a serious grievance or to one affecting a large group of citizens, or the imminent threat of such, it is possible for the Office to launch an investigation ex officio whilst dismissing the petition itself. (VI/448/2000.)
Our procedures are started on the basis of petitions as specified in the DOCER. For this reason and in order to enable faster handling of such cases we always ask those contacting the Office for assistance to submit their complaints in writing, i.e.) by mail, fax or E-mail. Of course, particular attention is paid to enabling complainants to submit their petition in person and to allow the Office to interview complainants when deemed necessary. When a complainant submits a request, he or she will be personally interviewed. We also try and provide assistance to those contacting the Office by telephone.
As has been mentioned, the DOCER enables the Commissioner to start investigations at his or her own initiative, i.e.) on an ex officio basis. For example, this would be the case where the Commissioner learns of a grave violation of rights or an infringement affecting a larger group of citizens, or the immediate threat of such. Our comprehensive investigations carried out in year 2000 on an ex officio basis will be described in the chapter discussing the cases dealt with by the Office.
In order to enforce the principle of security in law and in view of the fact that the circumstances of grievances that occurred in the distant past cannot be properly identified; the DOCER specifies a deadline for complainants concerning the submission of their complaints. The Office may start proceedings on request if the grievance took place not longer than one year before the entry into force of the DOCER, i.e.) October 23, 1999. Also, the complainant has to submit the petition to the Office within one year of the date on which the decision was made in the public administration procedure. When there is no possibility for legal remedy in the public administration procedure, the complainant must submit within one year of the date on which the final decision was made or on which the measure was taken. Petitions concerning statutes of law are an exception to this rule: there is no deadline on the submission of such petitions to the Office. The Office may start proceedings ex officio if the carrying out of a recommendation takes place after the coming into force of a decree that may contravene it. The law does not prescribe any other time limit on this case.
An individual entitled to legal recourse may seek such recourse to be provided by the Office after having exhausted all other possibilities, with the exception of legal measure. In addition to possible forms of legal recourse in the public administration system, the set of available legal remedies includes those provided for by the statutes on education. Pursuant to the relevant law statutes, a claimant may almost always turn for recourse to the head of the relevant institution or to the authorities responsible for the institution.
A number of submissions were turned down without investigation because the claimants had not tried to secure legal recourse through other available means provided by law. It should be noted that satisfactory resolution to a problem that has emerged in an educational institution should make use of all the possible forms of legal recourse that are available locally and within the given educational institution. For in many cases, dialogue and exchange of information between those concerned may be enough for the clarification and resolution of a conflict. Without willingness to co-operate in such cases the Office cannot take action and cannot achieve long-term solutions. Where a complainant submits a petition directly to the Office, without resorting to other possible forms of legal remedy, he or she may even miss the deadline concerning legal recourse. In addition it cannot be expected that the Office will take action to secure legal recourse for the claimant on account of his or her failure to have exhausted other possible forms of legal recourse. The conflict resolution mechanism of the Office cannot replace the exhaustive application of the legal remedies provided for by law. By its very nature and on account of its instruments, the Office can undertake only exceptional roles in protecting rights of complainants.
A submission has to be dismissed without substantive investigation where court proceedings have already been started with respect to the case or where final court decision or verdict has been passed. This is demanded by the constitutional principles of legal security and the division of power.
A complaint is rejected if investigation has already been conducted with respect to the associated case and the submission contains no new facts in addition to those previously presented to the Office. Likewise, a complaint that is clearly unjustified also has to be dismissed. However, thus far no complaint has had to be rejected for this reason.
Pursuant to the DOCER, a petition may be turned down if it is submitted on account of a minor infringement or the imminent threat of such. However, the Office has rarely exercised this right. (VI/365/2000.)
In summary, a petition that does not meet any one of the procedural criteria will be turned down without substantive investigation. When this is recognised during the proceedings of the Office, the petition is rejected. However, the Office always pays particular attention to ensure that a complainant is given adequate information, even if his or her submission has been dismissed. The information given may concern the legal background of the situation covered by the submission and on other possible ways to secure legal recourse or to exercise his or her rights. This course of action is followed in the case of submissions containing labour related disputes, e.g.) seniority, salary, terminations, that may be submitted by teachers, university or college instructors.
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