SCOPE OF AUTHORITY AND CONDITIONS OF PROCEDURES OF THE
COMMISSIONER FOR EDUCATIONAL RIGHTS
Our Office may act if educational rights are infringed or directly threatened.
With respect to our proceedings, protected educational rights include
rights to which participants in education, children, pupils, students,
researchers, teachers, tutors, parents, and communities thereof are entitled,
pursuant to Articles 70/F and 70/G of the Constitution guaranteeing cultural
rights and to the acts on public education, higher education and vocational
training. We may also initiate proceedings for the infringement or direct
threat to other legislative provisions which set forth the contents and
guarantees of rights secured in the acts specified above.
The Decree on our operation provides for two ways of launching proceedings.
Proceedings may be launched, on the one hand, upon a request, when the
launching of an investigation depends upon the involvement of the complainant
approaching us, and on the other hand, ex officio, if the conditions specified
in the Decree prevail. In the absence of the involvement of the applicant,
i.e. when the application is submitted by a party other than those affected,
we may not conduct an investigation, we must reject the application without
any investigation on its merits. We have to act in a similar way when
our Office receives an anonymous application since in this case we cannot
determine whether the complainant approaching us can be regarded as an
eligible person. The Decree on our operation confirms that the incapacitated
or the partially incapacitated may be represented by their lawful proxies
when approaching our Office. Thus for example when student rights ensured
in public education are infringed, an investigation may also be launched
on the basis of complaints filed by the parents; however, when rights
affecting university and college students are infringed, applications
filed by the parents will not be accepted. In the case of complaints received
from a party other than one who is eligible and the complaint in question
draws our attention to a serious infringement or an infringement of a
right affecting a larger group of citizens, or a direct threat thereof,
we have the option of launching an investigation ex officio, along with
the rejection of such an application.
Our proceedings are launched on the basis of written applications; therefore
and with a view to the more expeditious processing of cases, we always
request those approaching us to submit their complaints by mail, fax,
e-mail or via our home page. Of course we devote special attention to
meeting the parties concerned in person during the course of our investigation,
we hear the complainants in person upon their request, and we strive to
assist those contacting our Office by phone. The purpose of any information
we offer is to enable those contacting us to decide -on the basis of already
existing legislative provisions - whether their rights have been infringed
and if yes, whether they request proceedings by our Office or another
authority.
In order to enforce the principle of legal certainty and because the circumstances
of temporally remote infringements of rights cannot be explored with a
sufficient degree of thoroughness, the Decree on our operation resolves
a timeframe for those submitting complaints. Proceedings may be launched
upon an application if the infringement of a right occurred within one
year before the entry of the Decree on the Commissioner for Educational
Rights into force, that is before October 23rd 1999, and if the complainant
files the application to our Office within 1 year, reckoned from the decision
reached in public administration proceedings becoming binding or in the
absence of the possibility of public administration legal remedy, from
the adoption of a binding decision or action. An exception to this provision
is an application, related to legislation or other legal instrument of
state control, which may be submitted with no deadlines. We may launch
an investigation ex officio if the legal remedy proceedings were finally
concluded after the entry of the Decree into force, no other temporal
constraints are set forth by the law in this instance.
Eligible parties may contact our Office if all available legal remedy
possibilities have been exhausted with the exception of judicial proceedings.
This scope, in addition to the possibilities of public administration
legal remedy, extends to those guaranteed by educational laws. The injured
party has virtually all opportunities by law to contact the head or the
operator of an institution with a particular complaint. An application
often has to be rejected without any investigation on the merits because
the complainants have not taken advantage of the legal remedy possibilities
provided for by law. It needs to be stressed that in order to resolve
problems arising in educational institutions, an attempt must be made
to utilise all legal remedy possibilities available within the institutions
on the spot, since the dialogue, and the exchange of information between
the parties concerned may itself often lead to the clarification and resolution
of a conflict. Without this willingness to co-operate, the proceedings
of our Office may not bear fruit, and may not result in lasting solutions
in the majority of the cases. If complainants contact us directly without
taking advantage of the legal remedy possibilities, it may also happen
that the timeframe set forth for such legal remedies is not met. Moreover,
it is also the case that our Office may not proceed in such cases in the
absence of the exhaustion of legal remedies. Our proceedings may not replace
the utilisation of legal remedy possibilities provided for by law. The
nature and the means of our Office lend to it an exceptional role as protector
of rights.
We must reject an application without investigation of its merit if judicial
proceedings were launched or a binding judicial decision was made in connection
with the case. This is demanded by the constitutional principles of legal
certainty and the separation of powers. A complaint is rejected if an
investigation was previously conducted in the same case and the application
contains no additional facts or circumstances compared to the previous
proceedings. We have to act in a similar way if an application is obviously
unfounded, although we have not yet rejected a complaint for this reason.
In accordance with the Decree regulating our proceedings, an application
may be rejected if the infringement of rights specified in the application
or its direct threat is of minor importance, however, this is a tool we
seldom use.
Thus, pursuant to the Decree on our operation, if an application does
not fulfil any of the procedural conditions, we reject it without investigation
of its merit, and if we become aware of any such circumstance in the course
of our investigation, we terminate our proceedings. However, in all instances,
we devote particular attention to offer sufficient information on the
legal background of the situation the complainant considers injurious
and on the possibilities available for enforcing their rights, to those
contacting us even if we reject their application. Teachers and tutors
often contact us with labour-related applications, e.g. concerning their
salary scale classification, mandatory contact times, the work they may
perform on the basis of their qualifications, their wage supplement for
quality, or the termination of their civil servant legal relationship.
These are forwarded to the Education Administration Department of the
Ministry of Education with the consent of the complainant. (K-OJOG-165/2001,
K-OJOG-94/2001, K-OJOG-148/2001, K-OJOG-432/2001, K-OJOG-176/2001, K-OJOG-295/2001,
K-OJOG-151/2001, K-OJOG-432/2001) In all instances, we draw the attention
of those contacting us to the fact that any claims resulting from a civil
servant legal relationship may be vindicated in a labour action. The labour
court with jurisdiction over the place of the employer will proceed in
labour-related legal disputes, and statements of claims may be submitted
to that court.
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