Absence
The experience of previous years show that difficulties have surfaced in connection with the application of statutory provisions concerning absence, and these difficulties highlight the need for amendments.
As a result of this, there have been significant statutory changes since the last amendment of Decree No. 11/1994 (VI. 8.) of the Ministry of Culture and Public Education on the Operation of Educational Institutions. One of the most significant changes is that pursuant to previous regulations the rules related to absence from class and the justification of this absence was to be laid down in the rules of operation and organisation of the educational institution, while the new regulations state that this should be contained in the house rules. Pursuant to Article 20 of the Decree, if students are absent from class, and then they must justify this absence. This means two things: on the one hand, every time a student misses a class, it is regarded as an absence; on the other hand, an act may only be regarded as an absence if the student is missing a class. In certain cases, absence from kindergarten activities, classes or dormitory activities should be regarded as justified by the force of provisions of law. These cases are the following: if the parent has previously notified the kindergarten teacher that he will not take the child to kindergarten, then the student-in case of minors in a written request by the parents-is authorised to be absent in accordance with house rules; if the student can justify the illness in accordance with house rules; or if the child is unable to fulfil this obligation due to official proceedings or other well-founded reasons.
Prior to the amendment, we received numerous complaints regarding the issue of being late from class, as the statutory definition of late arrival to class, as well as the regulation of the legal consequences of late arrival were missing from the statutes prior to amendment.
| A petitioner came to us with the problem that his child is regularly late from the first class, in connection with this asked us whether the teacher is allowed to exclude him from this class.
We informed him that in accordance with Paragraph (2) of Article 20 of Decree No. 11/1994 (VI. 8.) of the Ministry of Culture and Public Education, if students are absent from class, then they must justify this absence. If the absence is not justified, then it will be considered as unjustified. Furthermore, if a student is late from class, then this does not constitute being absent . Students cannot be excluded from the whole of the class simply due to being late from class, as this violates the student's right to learn. The school can sanction late arrivals with disciplinary tools, or possibly disciplinary punishments determined during disciplinary proceedings. 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 the law attach grave legal consequences to unjustified absence. Paragraph (3) of Article 75 of the Public Education Act stipulates that-with the exception of students of compulsory school age-a child's student status ceases if he or she is unjustifiably absent from compulsory school activities more often than the number of times tolerated as set out in the statutes.
We asked the complainant to review the school's rules of operation and organisation. We also informed the complainant, that if said rules of operation and organisation do not sanction late arrival for class with unjustified absence, then he can notify the school principal that the teacher in question deviates from the rules of operation and organisation. If, however, the rules of operation and organisation prescribe unjustified absence as a legal consequence for being late to class, then this is considered a violation of rights. (K-OJOG-358/2004.)
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The statutes do not define the normative concepts of absence and late arrival to class-and this endangers student rights-and for this reason in 2003 our office put forward a legislative recommendation addressed to the Minister of Education, which requested regulations regarding the concepts and legal consequences of absence and late arrival to class. The Minister of Education accepted our recommendation. In accordance with this, the next major change in the topic of absences was the entering into force of regulations concerning late arrival from class. Pursuant to the amendment to the Decree that entered into force on the 5 th of November, if students do not arrive by the beginning of classes in school, they shall be considered late which they will have to justify. The duration of the period of coming late to class can be-in accordance with house rules -be added and counted as an aggregate sum. If this aggregate time equals or exceeds the duration of a class, then this will count as a justified or unjustified absence. Students arriving late to class cannot be excluded from said class.
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