PROCEDURE
The Decree on our operation established a peculiar so-called conciliation
process conforming to the nature and means of the Office.
If our Office detects the possibility of an infringement of educational
rights - or direct threat thereof - and the application does not have
to be rejected for the procedural obstacles described above, we launch
the conciliation process. At the beginning of this process, we do not
examine the truth of the complaint but communicate the contents of the
application to the other party and request them to inform our Office on
their position concerning the case. We believe that it is important to
learn about the opinion of the other party involved in the complaint and
about both sides of the situation regarded as injurious. This request
for a statement also aims at encouraging the other party concerned in
the application to examine the problem and review its position concerning
the case on account of giving a response. As a result of this process,
the investigation is often resolved in this initial stage: the infringement
of right is remedied by the institution contacted, within its own scope
of control.
Thereafter we conclude our position after comparing the statements of
the parties, the documents rendered available to us, and the relevant
legislation. We have to attempt to clarify the conflict or to explore
any possible infringement of rights even in the case of contradictory
statements by the parties, or positions that cannot be approximated. To
this end, the Decree regulating our proceedings ensures the following
means for us: on the one hand, it resolves the burden of proof, and on
the other hand, sets up the institution of conciliation in person. In
accordance with the provision on the burden of proof, the applicant is
obliged to prove the facts claimed in the application, while the institution
is obliged to prove the facts constituting the basis for its statement.
As a consequence of the above rules, if the statements of the complainant
and the institution are contradictory, and the complainant is unable to
substantiate their statement, we have no option other than to end the
investigation. Since the infringement of educational rights cannot be
concluded on the basis of data available to us, we have to close the case.
When circumstances justify it, we invite the parties to conciliate in
person. This conciliation in person is a peculiar element of our process
- to explore the circumstances of the case together with the parties involved
in the conflict and with our officers. Our role is to ensure the framework
for an effective discussion and to highlight the legal background of the
case. We organise conciliation in such a way so as to allow sufficient
time for the parties to hear each other's opinion. We request the participants
to limit the discussion to issues related strictly to education and to
refrain from stressing personal conflicts since only this enables the
adequate exploration and assessment of events. Conciliation in person
facilitates the finding of possible forms of remedy together if the infringement
of a right is concluded, thus the parties involved in the conflict may
contribute to resolving it. As the type of agreement reached is also up
to them, they may regard it as their own. No agreement in breach of a
piece of legislation may be reached, though a number of solutions can
be envisaged within the legislative framework. It is our firm belief that
conciliation in person increases the probability of voluntary law-abiding
behaviour since a mutually-agreed position may lead to more lasting results
than a decision by the authorities that is enforced by the power of law.
The institution of conciliation in person offers an opportunity for the
participants in education to resolve their conflicts without any harm
to their dignity. Thus civilised and efficient forms of conflict management
may create a need for educational institutions to set up similar forums
on the spot.
It is determined on the basis of the above process whether educational
rights have been infringed or not in the case investigated. 32 per cent
of our cases have been closed in the absence of infringement of rights
since we concluded that there was no infringement of rights or that it
was possible to conclude on the basis of available information that there
was no infringement of rights. Infringement of educational rights was
demonstrated in 16 per cent of the cases, where the infringing party failed
to remedy the infringement within its own scope of control, leading to
the application of measures provided for by the Decree.
Among the given options, initiatives and recommendations is the one we
use the most often. They entail no legal pressure, i.e. the institutions
addressed are not obliged to implement their specifications. Our proceedings
must, at all times, respect this peculiar feature demonstrated in the
conciliatory nature of the investigation and in the institution of conciliation
in person. The entire process must be designed to encourage the parties
to adopt the contents of the initiative or recommendation emerging as
a result of the process, to accept the proposed solution that was agreed
with their involvement in the course of conciliation, and to implement
it voluntarily, without any legal pressure.
It is important to note that in the course of this process, we always
act on behalf of the injured party, who is not necessarily the same as
the applicant. It was discovered in several instances that it was the
very complainant who infringed educational rights, therefore we identified
an initiative towards the applicant with a view to terminate the infringement
of rights.
The Decree on our operation sets forth a number of safeguards for protecting
complainants contacting our Office against any disadvantage resulting
from their application. This principle is stated in Paragraph (7) of Article
5 of the Decree on the Commissioner for Educational Rights in line with
the constitutional right to complaints as provided for in Article 64 of
the Constitution.
Pursuant to Paragraph (5) of Article 5 of the Decree, the personal data
of applicants is utilised in line with the stipulations of the Act on
Data Protection. Among the rules specified in the Act on Data Protection,
it should be stressed that in proceedings launched upon the request of
the party concerned, the consent to the utilisation of necessary data
must be assumed. So we are authorised to utilise the personal data of
the complainant in the course of our investigations. We may forward them
to the other party but only to the extent indispensable for the processing
of the case. The complainant has the opportunity to request anonymity
in the course of conducting the proceedings. Our Office will, of course,
handle all cases without the forwarding of data of the applicant where
the identification of complainant is not necessary. Therefore the request
for anonymity carries particular significance when an investigation may
not be conducted without forwarding the personal data of the complainant.
In these instances, applicants are informed that a request of this nature
will hinder the processing of their case and are asked whether they waive
their request for anonymity in the light of this circumstances. Pursuant
to Paragraph (2) of Article 10 of the Decree on our proceedings, personal
data of natural persons involved in the cases may not be included in this
Account either.
The Decree states that applicants are entitled to the same protection
as reporters of matters of public interest. As a result of this provision,
Article 257 of the Penal Code offers protection to complainants contacting
us, the said Article orders the penalising of those taking discriminating
measures against reporters of matters of public interest because of their
reports.
The rules of our operation ensure the prevention of other authorities
learning about the complaints we receive even if our Office has no jurisdiction
for conducting the investigation. In accordance with the Decree, we inform
the complainant on our lack of jurisdiction and identify the agency with
proper jurisdiction. Pursuant to this provision, no case may be transferred
to another authority without the knowledge and consent of the complainant.
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