Absence
We stated in several of our former investigations that the Public Education Act and the decree about its implementation states little about what can be concerned as absence. The definition of the substance of this legal institution is missing from statutory provisions. It became obvious from the indications of heads of institutions, teachers, parents and pupils that the difficulties of the application of statutory provisions concerning absence have caused infringement of rights in several cases.
Under Decree 11/1994 (VI. 8.) of the Minister of Education and Culture on the operation of educational institutions, pupils absent from a class have to justify their reason for absence. Therefore two things follow from the text of the law: first, any time when a pupil is missing from a class is considered as absence, and second, absence can only be considered to occur if the pupil is missing from the class. Under the statutory regulations, the primary obligation associated with absence from class is the justification of the reasons for the absence, with the requirement that the relevant rules are to be laid down in the rules of operation and organisation of the educational institution. (K-OJOG-147/2003., K-OJOG-233/2003., K-OJOG-260/2003.)
In some cases, absence from kindergarten activities, classes or dormitory activities should be regarded as justified by the force of provisions of law. Such is the case if the child or pupil was ill and he/she justifies this according to the relevant rules laid down in the rules of operation and organisation. In this case the regulatory competence of the institution does not exceed the stipulation of the procedural provisions of the submission of medical certificate. Pursuant to Article 20 of the Decree, children and pupils who are ill may not attend the institution within the period determined by the doctor. The provision of law does not provide for the educational institution to doubt the content of medical certificate or to refuse it. (K-OJOG-271/2003.) The absence shall also be considered as justified if the pupil can not fulfil his/her obligation due to measures of an authority, or for other justified reasons.
In our opinion, justified reasons include traffic obstacles due to extraordinary weather conditions or other unforeseeable events, and the case when pupils participate in secondary school entrance exam. An opposing decision can not be passed even on the basis of the regulations laid down in the rules of operation and organisation. In other cases, if absence is not justified, the legal consequences of unjustified absence shall be applied.
The uncertainty concerning the interpretation of statutory provisions is shown by the fact that heads of institutions and teachers turned to us in several cases requesting our view concerning the legitimacy of provisions in the rules of the house or measures taken by teachers. In our view, under the Public Education Act, the late arrival of pupils to a lesson can not be regarded as absence. Furthermore, the pupil can not be banned from the entire lesson because of arriving late, as this infringes the student's right to study. Late arrivals can be sanctioned by the school with disciplinary actions or possibly with disciplinary punishments imposed through a disciplinary proceeding . (K-OJOG-103/2003., K-OJOG-517/2003.) The legal consequences of unjustified absence can also not be applied when a pupil leaves his or her physical education equipment at home and therefore can not participate in the physical education class, or if he/she requests exemption from the class from the teacher due to his/her sickness. (K-OJOG-230/2003.)
The unlawful interpretation of the term absence and its unlawful regulation appearing in the rules of the house infringes further educational rights. The provisions of law attach grave legal consequences to unjustified absence. Paragraph (3) of Article 75 of the Public Education Act stipulates that - with the exception of pupils of compulsory school age - a child's pupil status ceases when he or she is unjustifiably absent from compulsory school activities and this amounts to a certain time threshold set in the provision of law.
The statutory definition of absence and late arrival to class, as well as the regulation of the legal consequences of late arrival are missing from the provisions of law. The absence of these provisions of law risk the infringement of educational rights, therefore our Office presented an initiative to the Minister of Education to regulate the terms 'absence' and 'late arrival to class' and their legal consequences. The Minister of Education accepted our initiative. (K-OJOG- 520/2003.) Content
|
