OPTIONS FOR MEASURES
If in the course of our investigation, we detect the infringement of educational
rights or direct threat thereof, we may use an initiative or a recommendation
as mentioned above. We contact the infringing institution with the initiative
and the superior agency of the institution with the recommendation, and
request them to terminate the infringement of right or direct threat thereof.
Both the initiative and the recommendation are peculiar measures since
as opposed to decisions by authorities, they have no binding force, and
the institutions addressed are not obliged to implement them. The Decree
sets forth an obligation of responding with a set timeframe since the
institution must notify our Office on its position concerning the initiative
or the recommendation, and on the measures it has taken on the basis thereof,
within 30 days.
As a result of the obligation of the institution addressed to respond,
our proceedings do not end with the communication of an initiative or
a recommendation. Legislative provisions are indeed designed to continue
the professional dialogue between the educational institution and our
Office, and to enable both parties in this dialogue to explain the arguments
supporting their positions. The measures could not succeed in fulfilling
their functions in any other way since, in the absence of binding forces,
the institutions must truly ascertain the adequacy and legality of the
proposed solution. This is the only way to achieve the voluntary implementation
of the recommendation or the initiative by the institutions, and their
ensuring that no similar infringement of rights taking place in the future.
The Decree on our operation also offers an opportunity for us to withdraw
or modify a previously proposed initiative or recommendation as a result
of this dialogue, if the arguments of the institution addressed are convincing.
This did not happen in 2001 at all. The efficiency of measures is demonstrated
by the fact that last year, we used initiatives or recommendations on
51 occasions, and the institutions addressed did not refuse our position
described therein in a single instance.
Educational rights may not only be infringed by decisions or measures
of institutions adopted on a case-by-case basis. In 2001, we concluded
three instances when it was possible to trace back the infringement of
protected rights or direct threat thereof, to the shortcomings of legislation
or other legal instruments of state control. In these instances, we took
advantage of the opportunity to propose the issue, amendment or annulment
of a piece of legislation or other legal instrument of state control to
the Minister of Education in order to avoid or eliminate the infringement
of rights. The Minister of Education accepted the proposal of the Commissioner
for Educational Rights in all three instances.
The Decree also resolves that we contact the authority empowered to proceed,
make a report or lodge a complaint if we become aware of any infringement
of rights. Over the last two years, we were asked to hold the infringing
party liable under the criminal law in two applications, which we forwarded
to the investigating authorities with jurisdiction in such matters.
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