PUBLIC EDUCATION
PREVALENCE OF PERSONAL LIBERTIES
The personal liberties of public education participants are fundamental
constitutional rights that are confirmed in the Act on Public Education
among the first of the rights of educational participants by repeating
the provisions of the Constitution in consideration of their importance.
These rights are particularly vulnerable in the world of mutual interdependencies
of schools; the co-operation and legal awareness of educational participants
are indispensable for their prevalence. With a view to the importance
of personal liberties and the large number of applications related thereto,
our Office pays particular attention to protection thereof. As a result
of the foregoing, a separate part of this Report is devoted to our cases
related to these rights.
Educational participants have often contacted us protesting the infringement
of their rights to human dignity, privacy and protection of personal data
or inquiring about the scope of these rights. The right to human dignity
is a fundamental constitutional right to which everyone - including every
educational participant is entitled, including the prohibition of the
corporal punishment of pupils, physical cruelty to teachers and parents
and humiliation of public education participants. All educational participants
are entitled to the right to human dignity regardless of their age or
whether they are in breach of any of their obligations.
Pursuant to Paragraph (2) of Article 10 of the Act on Public Education,
the personality, the human dignity and the rights of children or pupils
must be respected, and they must be protected against physical and mental
abuse. Children and pupils may not be subjected to corporal punishment,
torture, cruel or inhumane punishment or treatment. Our Office received
several complaints from parents protesting against their children being
subjected to corporal punishment. It is our position that the most severe
infringement of rights that may take place inside an educational institution
is physical abuse.
If the use of corporal punishment is substantiated, we always draw the
attention of the heads of institutions, in our initiative addressed to
them, that the use of corporal punishment by a teacher may entail the
initiation of disciplinary proceedings and may even constitute a crime.
We also inform the heads of institutions that pursuant to a decision of
the Supreme Court, teachers may not use corporal punishment against children
under their education and supervision; in such an instance, the disciplinary
offence committed by the teacher is of such scale with which even the
most severe disciplinary action may be proportionate. (BH 1998. 53.)
Parents have informed our Office in several complaints that their children
were physically abused by their fellow students in the school. Pursuant
to Paragraph (1) of Article 10 of the Act on Public Education, students
have the right to education and teaching in a secure and healthy environment
within the educational institution. Paragraph (5) of Article 41 of the
Act states that the educational institution must provide for the supervision
of students entrusted to them.
| On the basis of parents'
complaints, we have expressed in our position that, arising from
the legislative provisions governing supervision, teachers are obliged
to make all efforts in order to prevent conflicts that may lead
to fights or abuses among the students. (K-OJOG-226/2001, K-OJOG-572/2001) |
Pursuant to Paragraph (1) of Article 19 of the Act on Public Education,
in connection with their positions, teachers are entitled to the right
to be respected as members of the teaching staff, and to have their human
dignity and personal rights respected. Our Office received complaints
informing on the abuse of teachers.
| A head of institution
requested a position concerning the following problem. One of the
school's students misbehaved and disturbed teaching during a physical
education class. He was reprimanded for his behaviour by both his
teacher and the head of the physical education department. The father
of the student in question then visited the school and severely
beat both teachers. The student himself took part in assaulting
the physical education teacher. Disciplinary proceedings were brought
against the student. The principal requested our position on whether
the student may be suspended from school for the period of the disciplinary
proceedings with a view to the severity of the action. We established
that the intensive physical abuse of a teacher is such a severe
and delinquent breach of obligations that allows for the launching
of disciplinary proceedings, still the student may not be suspended
until the conclusion of the proceedings. We had no jurisdiction
over the elements of the case raising criminal law liability, therefore
we only informed the principal that the assaulted teachers may lodge
a penal complaint since this crime is punishable only upon a private
initiative. (49228/2001) |
We informed stakeholders, often teachers, in several of our cases, in
connection with their rights to privacy and to the protection of personal
data.
The scope of Codes of Conduct extend to life within the school and to
school events organised outside the school. Beyond this, Codes of Conduct
may not resolve any rules governing the life of students outside the school.
| We informed an applicant
on a request that, pursuant to Paragraph (7) of Article 40 of the
Act on Public Education, Codes of Conduct resolve rules related
to exercising students' rights and duties set forth in legislation,
to the order of student work within the school, to the order of
curricular and extracurricular activities, to the use of school
premises and areas. The legislation gives a complete list of the
areas to which the scope of Codes of Conduct extend. This is confirmed
in Paragraph (2) of Article 6/A of MKM Decree 11/1994 (VI. 8.) of
the Minister of Culture and Education, which resolves that Codes
of Conduct must define the protective and preventive requirements
students must comply with during their stay in the school. In line
with the foregoing, Codes of Conduct may resolve rules concerning
life in the school (including moving around between the various
locations of school life from arrival to legal departure) and school
events organised outside the school. Any school regulation governing
the conduct of students at home, in public, in public or private
institutions, entertainment premises, visits as guests, at any other
location during vacation or outside the school is in breach of the
law, since established in the absence of regulatory authority. (K-OJOG-554/2001) |
Private relationships or friendships between a teacher and one of the
teacher's students above the legal age of majority may not result in any
sanction under educational laws.
| A student above the legal
age of majority inquired about the possibility of any discrimination
as a result of a closer-than-usual friendly relationship with a
teacher. The consideration of any relationship between a teacher
and one of the teacher's students above the legal age of majority
is not a question of law but a question of ethics; therefore we
were not in the position to establish a position. However, we informed
this student that the institution has no authority to terminate
the legal relationship of either the pupil as a student or the teacher
as a civil servant as a result of this relationship. The Act on
Public Education and the Act on the Legal status of civil servants
both enumerate the instances resulting in a termination of the legal
relationship of students or civil servants (1). It is at
the discretion of the disciplinary panel in both instances to adopt
a decision in the course of the disciplinary proceedings resulting
in the termination of the legal relationship. The imposing of these
penalties are, however, subject to the teacher breaching an essential
obligation arising from their legal relationship as a civil servant
delinquently or to the student breaching their obligations severely
and delinquently. A friendly relationship between a teacher and
a student may not constitute a disciplinary offence since it may
not be regarded as a breach of obligations in itself. The mere fact
that a close relationship has evolved between a student and their
teacher does not give grounds for suspension from school or for
dismissal. (K-OJOG-532/2001) |
It was a question raised in several cases as to whether a teacher has
the right to search students' clothing and personal belongings or to subject
them to blood testing. The right to privacy and personal safety is a liberty
to which all are entitled. Not even a crime or an established suspicion
of offence committed by a student may waive these rights, and only the
authorities empowered in a piece of legislation may search the personal
belongings of a student and only if complying with the applicable safeguards
on such proceedings. In order to establish the facts, the persons appointed
by the school may employ the actions enumerated in the Act on Public Education
as a disciplinary authority (e.g. individual or collective hearing, trial,
obtaining and assessing proofs in co-operation with the student), yet
a teacher may not search a student's clothing and personal belongings
even within this scope. Students' rights may only be limited temporarily,
proportionately and to the extent required within a very limited scope
set forth by law (e.g. justified defence, emergency) when others' personality,
assets or public interest is impaired or directly threatened.
| We informed a teacher
upon request that with a view to the above, a teacher in general
does not have the right to check the contents of a student's bag
regardless of an established suspicion. In this regard, a teacher
is governed by the same rules as any other person. (K-OJOG-551/2001)
An applicant requested the opinion of our Office on Codes of Conduct
provisions whereby the person appointed by the principal may, in
case of the suspicion of a disciplinary offence (e.g. possession
of tobacco products or alcoholic drinks, consumption of illegal
substances), check students' bags and clothing, and may instruct
a doctor to make a blood test. According to the Codes of Conduct,
these measures are subject to prior consent of the parent over the
telephone, if a parent withholds this consent, the reaching of an
agreement on the pursuit of studies in another school may be initiated.
It is our position that the "searching" and "medical testing" described
above may only be applied by the agencies set forth in legislation
and within the framework of proceedings set forth in legislation.
The principal or the person appointed by the principal does not
have this power even if a parent consents to this; the principal
or the person appointed by the principal may commit a crime by using
these measures. The principal or the person appointed by the principal
may only initiate the appropriate proceedings - whether they be
disciplinary, offence or penal - within which the agencies set forth
in legislation may use measures of this kind during the particular
proceedings. With a view to the foregoing, the provisions of the
Codes of Conduct referred to and any application of the measures
specified therein infringe students' rights, students may not be
obliged to tolerate them, and refusal of them may not entail any
discriminatory consequences. If the disciplinary liability of a
student is established in the course of disciplinary proceedings
complying with legislation and discarding the above measures, the
disciplinary penalties set forth in Paragraph (2) of Article 76
of the Act on Public Education may be applied, and no other sanction
may be imposed on the student. Since the penalty of "initiating
the reaching of an agreement on the pursuit of studies in another
school" as regulated in the Codes of Conduct as a penalty is not
included in the act, therefore it may not be applied following the
disciplinary proceedings. (K-OJOG-114/2001) |
We examined the prevalence of teachers' and students' right to protection
of personal data in a number of our cases, e.g. in connection with producing
school home pages.
| We informed a teacher
upon request on the legislative provisions governing the inclusion
of teachers' and students' personal data on a school's home page.
Pursuant to Article 3 and to Paragraph (2) of Article 83/B of the
Act on the Legal status of civil servants, the name, position, ranking
and description of employer of a teacher employed as a civil servant
may be disclosed without prior knowledge and consent of the teacher.
Other personal data of teachers employed as a civil servants, including
their photographs, and all personal data of teachers not employed
as civil servants, and of students, may only be disclosed upon consent
of the person concerned in accordance with Paragraph (3) of Article
3 of the Act on Data Protection. In any request for such consent,
the exact purpose of data management must be specified and data
may not be disclosed for any other purposes. Consent must be voluntary
and may be subsequently revoked at any time; in this case, the data
of the person revoking their consent must be removed. This consent
may be given by the lawful representative of an incapacitated person;
the consent or subsequent approval by the lawful representative
of a partially incapacitated person is required. In practice, this
means that such consent may be given by the parents of students
who have not yet turned 14 years of age, while the consent of students
between the age of 14 and 18 require approval from their parents.
(K-OJOG-93/2001) |
(1) Act XXXIII of 1992 on the Legal status of civil
servants.
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