MATTERS RELATING TO STUDIES AND EXAMINATIONS

The Office received a complaint from several students of the communication correspondence degree programme at the Budapest Media Institution of the University of Szeged. The petitioners had conducted studies in this degree programme from February 2002. The petitioners found that they had to take another degree subject in addition to the university-level communication degree subject and they only learned of this in the course of their studies.

The Office established that the Faculty of Arts of József Attila University, legal predecessor of the University of Szeged, had received a permit to launch a university-level degree programme in communication effective 1 September 1992. According to decision number 56.815/1992.XIII of the Deputy State Secretary for Public Administration of the Ministry of Education and Culture dated 7 November 1992, the degree programme can be taken by students admitted to university and college training. The decision about establishing and launching the degree programme governs the training of students affected by the examination.

According to the statement of the rector, the institution launched the initial degree programme with internal procedure of entering into new degree programme ('Degree Programme B'), i.e. the degree programme could be taken by students already pursuing studies at the faculty, after one completed academic year, with the submission of the request to take a degree programme, in accordance with the decision about launching a degree programme. The rector informed the Office that from 1992 the Faculty gradually switched to the single degree programme training form, whereby from the academic year 1994/95, the communication degree subject was also announced as 'Degree Programme A', single degree programme training, with an entrance examination.

The rector stated that they had contacted the Department of Higher Education and Research of the Ministry of Education and Culture in the subject of the re-classification of 'Degree Programmes B' to 'Degree Programmes A'. According to the answer of the department number 59.635/'93./XIV., dated 19 March 1993, in the case of degree programmes already established previously as so-called 'Degree Programme B' there is no need to conduct another procedure to launch a degree programme for re-classification to ' Degree Programme A'. According to the statement of the institution the decision of the university council number 140/1993-94., in which it classified the communication degree subject as 'Degree Programme A', was made on the basis of this official stand. However (as the deputy state secretary pointed out in his statement) this official position concerned degree programmes in Altaic studies and philosophy, not communication; in the case of these degree subjects the start of the administration process for the re-classification was not necessary since the institution had already obtained the permit for launching these degree programmes in such a manner previously.

In the Admission Guide of 2002 the institution announced the communication degree programme as a single degree programme training, with a condition stipulated in the footnote of the programme that the condition of obtaining the diploma is the completion of studies in another degree programme.

Consequently, the Office established that, in the absence of a legal provision authorising it, the university could not lawfully depart from the provision of the decision about the permit of establishing and launching the degree programme in communication degree programme, whereby the degree programme could be taken by students admitted to university and college training. Therefore the students who do not participate in further university and college training did not fulfil the requirement of admission determined in the decision about establishing and launching the degree programme, thus they could not have been admitted to the communication degree programme lawfully. These students could not have conducted studies lawfully at the degree programme at the time of judging the case either. Naturally the lawful nature of the announcement of the degree programme and the admission of students would not have been influenced by the official stand of the ministry with contents contrary to the legal regulations. Nevertheless it has to be noted that in its official position number 59.635/'93./XIV. (already cited above), the ministry did not provide information contrary to the permit to launch a degree programme, since the official position did not relate to the communication degree subject.

Moreover the Office established that the provision of the Admission Guide of 2002 whereby the condition of obtaining the diploma in communication degree programme was the completion of studies in another degree programme was not in harmony with the decision about establishing and launching the degree programme ('communication degree programme may be taken by students admitted to university and college training'). The requirement stated in the Admission Guide did not substitute the fulfilment of the condition stipulated in the decision. However the Office established that the fulfilment of this condition also approached the situation of the students to the situation that was the objective of the provision stipulated in the permit to launch a degree programme, namely that the students may obtain their degree in communications in possession of another higher education degree.

Moreover, all the applicants to the communication degree programme could be familiar with the requirement appearing in the Admission Guide (in contrast with the provision stipulated in the permit to launch a degree programme), thus it can be established that the applicants had to know it already at the time of their application that the diploma at the communication degree programme may be obtained only in possession of another diploma, and for this they have to study at another university or college degree programme.

Also, the Office was informed that the institution provided an opportunity for the students concerned to take up further university degree programmes. The position of the Office is that by doing so, the university took exactly the measures necessary so that those students who otherwise did not participate in other university or college training should pursue studies in the subject of communication as their only degree subject. By taking the second degree programme the situation of the students concerned became the closest to the status which was required by the decision about launching the degree programme. Taking the second degree programme did not cause the infringement of the educational rights of the students concerned, thus the Office closed the procedure without the formulation of an initiative. (K-OJOG-105/2003.)

The petitioner was a first-year student who had to repeat a semester. In the previous year he received grade fair (3) in a subject. He read in Section 4 of Article 17 of the Study and Examination Regulations of the Faculty that 'during the repeated semester the examination does not have to be taken again for those subjects in which the student previously received at least grade fair (3) or a satisfactory report'. Despite this the department informed the students repeating the semester in an announcement that they were obliged to take the examination as well because of the partial change in the curriculum. According to the petitioner the procedure of the department violated the provisions of the Study and Examination Regulations.

The Office contacted the institution about this matter, the institution remedied the problem in its own sphere of competence after receiving the letter of the Office requesting a statement: the institution decided that the examination did not have to be repeated. Therefore the case was closed without the formulation of an initiative. (K-OJOG-407/2003.)

The petitioners received grade 'unsatisfactory' for their written examination from a subject, then they could not reach level 'satisfactory' in the repeat examination either. After this the petitioners submitted a request of equity in which they requested the authorisation of a third examination possibility. The principal of the institution rejected the request. According to the petitioners the rejection is unlawful since the person making the decision cohabits with the professor teaching the specific subject, and he could not have made a decision in this case as a partial person.

The principal sent the documents generated in this case and the relevant sections of the Study and Examination Regulations to the Office. The principal wrote the following, among others, in his letter made in this case, rejecting the request of equity: 'As acting principal of the College, I rejected your request of equity after judging your situation, your performance until now, your further opportunities, the opinion of the leadership of the institution, the department offering the course and the professor responsible for it, moreover the practice of the College until now. In the course of judging the case I consulted the representatives of other Hungarian higher education institutions and the Ministry of Education and requested advice from the desk officer of the Office of the Commissioner for Educational Rights.'

Two questions had to be judged in this case. The first is whether the principal could be construed as partial in the judgement of the case; the second is whether the institutional decision was carried out in an appropriate procedural order and whether it produced a lawful result.

With respect to the first question it had to be determined first what was the subject of the two decisions objected. The petitioners could not fulfil the requirements of the subject.

After this they turned to the principal to allow another examination possibility for them. The students made a grievance of the personal affectedness of the principal, since the professor of the subject cohabits with the principal. It can be established that the decision of the principal was made in a subject different from the one that the instructor of the specific course had decided in. Namely, the decision of the professor was about the performance or non-performance of the requirements of the subject, whereas the principal decided not in this subject, course-related performance, but about whether the students may receive another examination possibility in contrast with the general rules of the Study and Examination Regulations. Since the two decisions were made in a different subject, partiality could not arise in the course of the decision of equity.

The judgement of the second question is as follows. The petitioners submitted a request of equity to the principal. Equity means that the person applying the legislation (if receiving authorisation for this) proceeds by considering the circumstances, and disregards the general conditions determined in the legal source to the benefit of the client. Thus he/she allows a right to the client, though the conditions determined in the legal regulation are not or are not fully available. In this case the petitioners requested one more date of examination despite the fact that they would not have an opportunity to do so according to the Study and Examination Regulations. After considering the above mentioned circumstances and enlisting his reasons, the person exercising the jurisdiction of equity - on the basis of the Study and Examination Regulations: the principal - could lawfully make a decision of rejection. Since no infringements of rights were found on the basis of these, the case was closed. (K-OJOG-441/2003.)

The petitioner stated that the Deputy State Secretary for Higher Education of the Ministry of Education had sent to his institution a letter of the Minister of Defence written to the Minister of Education in which the Minister of Defence reminded of fulfilling the data provision obligation stipulated in Act No. CX of 1993 about defence. In connection with the above letters the petitioner requested the position of the Office about what obligations higher education institutions had on the basis of the legal regulations.

According to Section i) of Article 75 of the Defence Act, the competent educational institution provides data to the replacement centre about the start, interruption, completion or discontinuation of studies of the person liable to military service. Pursuant to Paragraph (8) of Article 47 of the Government Decree 178/1993. (XII. 27.) on the execution of the Defence Act, the education institution notifies the competent replacement centre according to the permanent address of the person liable to military service about the start, interruption, completion or discontinuation of studies within 30 days after the beginning or termination of the legal status, according to Section i) of Article 75 of the Defence Act.

The notice has to include the following data about the person liable to military service: name, date of birth (year, month, day), mother's maiden name, address, exact name of training programme, date of starting studies and expected date of completion thereof at the beginning of the legal status.

Based on Section 1 of Article 2 of the Act on Data Protection about the protection of personal data and the public nature of data of public interest, personal data are data that can be connected to a specific natural person (hereinafter referred to as ' the person concerned'), and the conclusion related to the person concerned that can be deducted from the data. In the course of data handling the personal data preserves this quality until its relationship with the person concerned can be restored. Thus the data stipulated in the provisions of the above legal regulations are the personal data of the student concerned. Pursuant to Paragraph (1) of Article 8 of the Act on Data Protection, personal data can be forwarded if the person concerned approved it or the law allows it, and the conditions of data handling are met with respect to each and every personal data. Thus providing data for which the law grants authorisation is legal even in lack of the consent of the student. In this case the above mentioned provision of the Defence Act creates legal basis for providing data. At the same time the regulations of the Defence Act and the Government Decree 178/1993. (XII. 27.) make it the obligation of the higher education institutions to notify the competent replacement centre about the data stipulated therein.

Paragraph (1) of the Article 70 of the Defence Act determines the notion of 'person liable to military service': based on compulsory military service, all men of Hungarian citizenship living in the territory of the Republic of Hungary are liable to military service. Compulsory military service starts upon reaching the age of 17 years and it holds until the 31 December of the year when the person liable to military service reaches the age of 50 (age of compulsory military service). Appendix 2 of the Higher Education Act determines the scope of personal and extraordinary data handled at the higher education institutions. According to Section 1. a) of the Annex, the higher education institution registers the student's name, place and date of birth, citizenship, and address and phone number of the permanent or temporary address. On the basis of these data the higher education institution can determine which of its students are liable to military service. The Higher Education Act and the regulations of the higher education institution govern with respect to the events constituting the basis of data to be provided about the student liable to military service (start, interruption, or completion of studies). (K-OJOG-482/2003.)

A petitioner defended his thesis at the faculty of law of a university in 2003. The members of the review committee included a senior lecturer (who was also the consultant of the student) and a lecturer. According to the petitioner the defence procedure was carried out unlawfully, the committee was not set up in accordance with the legal regulations.

According to the position of the institution, although the defence of the thesis is a part of the final examination, it does not follow from the provisions of the Higher Education Act that the defence should take place vis-a-vis a final examination committee, since the contents of the qualification requirements make possible defence vis-a-vis a separate committee in the case of certain departments. Pursuant to Paragraph (2) of Article 46 of the Study and Examination Regulations of the university, the 'student has to defend the thesis vis-a-vis a committee. According to the contents of the curriculum, the committee may be a final examination committee or a committee invited by the head of the organisational unit responsible for training'. Pursuant to Paragraph (1) of Article 73 of the Study and Examination Regulations of the faculty, 'the thesis has to be defended publicly vis-a-vis an at least 2-member committee appointed by the head of department.'

According to the disclosure of the institution, the mentioned regulations do not rule out the participation of the consultant in the review committee.

Pursuant to Paragraph (1) of Article 95 of the Higher Education Act the students in university- and college-level initial training and in professional further education complete their studies with a final examination, whereas in accredited formal tertiary level vocational training the studies are completed with a professional examination. Pursuant to Paragraph (2), the final examination is the control and evaluation of the knowledge (skills) necessary for obtaining the higher education qualification, in the course of which the candidate also has to reveal that he/she can apply the knowledge studied. Section a) of Paragraph (3) stipulates that the preparation and defence of the thesis (diploma piece) is a part of the final examination. Article 96 states the following:

Article 96. Paragraph (1) The final examination has to be taken vis-a-vis a board of examiners.

Paragraph (2) The final examination committee has at least two members in addition to the chairman.

Paragraph (3) The final examination committee has to be assembled in such a manner that at least one member of it has to be an external expert.

Paragraph (4) The method of the written part of the final examination and the method of judgement are determined by the Regulations.

Paragraph (5) Minutes have to be taken about the final examination.

Paragraph (6) Institutions operating in the same professional area (faculties, degree programmes) may also establish a common examination board.

Although it uses the phrase 'director of studies' instead of 'consultant', the university regulations only stipulate that the consultant assists the student in preparing the theses (ESZ Article 44). According to Article 68 of the Study and Examination Regulations of the faculty, the subject of the thesis has to be approved by the head of department or other professor, senior lecturer or lecturer of the department until the start of the examination period preceding the final examination by at least one year and the approval has to be certified in writing. Paragraph (2) of Article 69 adds that the student has to present the brief outline of the thesis to the consultant at least six months before submitting the thesis.

The legal judgement of two partial questions had to be decided in this case. The first question was whether it was legal to have the defence vis-a-vis a separate committee and whether the committee can have less than three members. The second question was whether the consultant can be a member of the review committee.

Pursuant to the cited provision of the Higher Education Act, the defence of the thesis is a part of the final examination. Moreover, the final examination has to be carried out vis-a-vis a final examination committee of at least three members. The institution did not dispute this, but it argued that the qualification requirements make possible defence vis-a-vis a separate committee in some degree programmes.

The position of the institution was not justified, since the Government Decree 54/2000. (IV. 13.) on the qualification requirements of the initial training programmes in law in higher education does not include such a provision, furthermore the chronological effect does not encompass the final examination of the petitioner. Therefore it can be established that the cited sections of the regulations of the institution (university and faculty) violate the law. The regulations of the university made it possible to establish a separate committee in all the degree programmes without any authorisation granted by the law, whereas the regulations of the faculty provided an opportunity for decreasing the number of people in the committee despite the specific provision of the Higher Education Act.

Therefore the Office established that the defence of the thesis of the petitioner did not take place under lawful conditions, the institution did not provide a review committee in accordance with the Higher Education Act.

During its almost four years of operation, the Office established the following official position in such issues: that compliance with the requirements of the law - and the regulations of the institution in the given case - provides a guarantee for the students taking the examination. It is not simply a minor violation of the text of the law, since the right of the student to a fair procedure is infringed in these cases. The aim of the provision of the law is to ensure the prevention of incidental partiality of the instructor and compliance with other provisions relevant to the examination. Also, the requirement of the participation of external experts is aimed at ensuring that members of the academic community outside the given institution are also present. Therefore the neglect of the committee form is a serious formal deficiency of the examination that provides ground to declare the result of the examination conducted irregularly null and void.

The other question to be judged was whether the consultant could be a member of the review committee. This is not ruled out by the legal regulations. Based on the regulations of the university and the regulations of the faculty, it can be established that the task of the consultant (director of studies) is not more than assisting the student in the preparation of the thesis. In the course of this the student is obliged to present the brief outline of the thesis to the consultant. At the same time the approval of the subject is not the task of the consultant.

On the basis of these the consultant cannot be construed as partial in connection with the evaluation of the thesis, moreover it cannot be stated that the consultant has any responsibility in terms of the contents of the thesis. Therefore the Office established that the fact that the consultant was also a member of the review committee did not violate the law in the course of the defence of the thesis of the petitioner, thus the Office closed the case with respect to this question in lack of violation of the law.

Taking into account the time passed it was not possible to cancel the defence of the thesis of the petitioner and hold a new defence at the institution. However, the grade of the degree of the petitioner was the best nevertheless and he did not intend to request the cancellation of his defence.

Consequently, the Office contacted the head of the institution with an initiative to start a procedure to amend the provisions of regulations not complying with the Higher Education Act, and to ensure that defence of the thesis take place under lawful circumstances in the future. (K-OJOG-158/2003.)

The Minister of Education requested the official position of the Office about a case. Documents sent to the Office by the minister indicated that the final examination of a higher education institution did not take place in order. The investigation of the head of the institution established that the final examination did not take place vis-a-vis a committee. As the Office established it in case number K-OJOG-158/2003 mentioned above, compliance with the requirements of the law - and the regulations of the institution in the given case - provides a guarantee for the students taking the examination. It is not simply a minor violation of the text of the law, since the right of the student to a fair procedure is infringed in these cases.

The aim of the provision of the law is to ensure the prevention of incidental partiality of the instructor and compliance with other provisions relevant to the examination. Also, the requirement of the participation of external experts is aimed at ensuring that members of the academic community outside the given institution are also present. Therefore the neglect of the committee form is a serious formal deficiency of the examination that provides ground to declare the result of the examination conducted irregularly null and void. The Office informed the minister about this position. (K-OJOG-471/2003.)

A petitioner said that he had been conducting studies at a university-level degree programme in history from academic year 1995/1996. It arose in connection with the language requirements necessary for obtaining his degree whether the rules of Government Decree 129/2001. (VII. 13.) on the qualification requirements of the initial training programmes in arts and social sciences in higher education were applicable to him or not.

Paragraph (2) of Article 6 of the decree states that the requirements specified in the decree have to be applied first for the students starting their studies in initial training in academic year 2002/2003. The students with student status and conducting studies in academic year 2001/2002 can conduct their studies according to the academic order valid at the time of becoming into effect of the decree until 31 July 2006, and the certificate appropriate for this certifies their higher education degree and qualification.

Since the petitioner had student status in academic year 2001/2002, the rules of this government decree do not apply with respect to the language requirements set for him, the provisions of the institutional regulations govern the language examination requirements. Although the decision of the institution dated 11 October 2002 does not specifically include the above, it can be established that the institution made its decision on the basis of similar reasoning. Namely, the justification of the decision cites the provisions of Paragraph (2) of Article 6 of the government decree, moreover it states that 'the language examination of students who took it at the Modern Languages Department of the faculty and currently still have student status has to be accepted by all means.'

According to the documents enclosed to the submission, the Study and Examination Regulations of the faculty effective in 1995 ordered about the language requirements set for students as follows: 'Each student participating in a university degree programme at the faculty is obliged to take an intermediate level and a basic level language examination from modern languages. (...) The obligatory language examinations can be taken at the Modern Languages Department (...)'. The regulations of the faculty were amended in the meantime, based on the Study and Examination Regulations effective from 1 September 2001, the institute solely accepts the state language examination or the language examination recognised by the state as final examination eligibility criteria. A question arose in this case, whether the provisions of the regulations effective from 1995 or 2001 are applicable for the petitioner. In connection with the cases of similar subject, the Office already established the following position before. In the case of amending the regulations the higher education institution has to comply with the general requirement of providing sufficient time of preparation for their students. The period between the announcement and becoming effective (application) of the decision amending and aggravating the requirements regulated in the Study and Examination Regulations has to be determined in such a way that the new requirements are introduced in a manner predictable and calculable for the students, and the students should have an opportunity to plan the method of their fulfilment and fulfil them. Without a sufficient period for preparation it may be unlawful for the institution to demand fulfilment of the stricter language requirements stipulated in the regulations effective from 2001 by all its students. Although the decision of the institution does not specifically take a stand in this issue, since it basically establishes its decision on the provisions of the regulations effective in 1995, moreover it includes the above mentioned findings, it can be established that it judged the case on the basis of the regulations effective in 1995. Thus it did not arise in this case that the educational rights of the student were infringed applying the provisions of the regulation in effect from 2001.

Therefore, in what follows the Office examined whether the petitioner fulfilled the language requirements stipulated in the Study and Examination Regulations on the basis of the provisions of the regulations. The petitioner wrote that he had conducted his studies at another faculty of the institution between 1997 and 2002 and he had taken an intermediate level language examination in German on 16 May 2002 at the Modern Languages Department of this faculty. According to the petitioner, this language examination is sufficient for obtaining the degree. However, according to the decision of the institution, cited several times, the language examination taken at the Modern Languages Department of another faculty cannot be accepted as criteria of eligibility for final examination. According to the justification of the decision, 'taking into account the fact that this provision is included in the regulations of the faculty, not the central regulations of the university, moreover that the provision specifically mentions a certain Department, not departments in general, ... the interpretation of the sentence indicates that the provision solely refers to the language examinations taken at the Modern Languages Department of the faculty.'

According to the position of the Office, the decision of the institute was established. The general principles of the interpretation of legislation appropriately govern the interpretation of the Study and Examination Regulations as an institutional norm. Pursuant to the provision constituting the subject of interpretation, 'the obligatory language examinations can be taken at the Modern Languages Department.' Based on the taxonomic and grammar interpretation of this rule, it can be established that the regulations of the faculty mentioned first is about the Modern Languages Department of the faculty and it accepts the language examination taken there as the condition of obtaining a degree. Taking into account the above, no infringement of the educational rights could be established in this case, thus it was closed. (K-OJOG-386/2003.)