Decree No. 40/1999 ME of the Minister of Education

On the Tasks and Operation of the Office of the Commissioner for Educational Rights

Based on the mandate stipulated in Art. 94 (1c) of Public Education Act No. 79/1993 (Kt.) and in Art. 74 (1c) of Higher Education Act No. 80/1993 (Ftv.), in order to ensure more efficient maintenance of the tasks stipulated in Art. 1 (1), (2) of Governmental Decree No. 162/1998 on the tasks and competence of the Minister for Education, I enact the following:

Tasks and Legal Status of the Office of the Commissioner for Educational Rights
Article 1.

1.§ (1) I establish the Office of the Commissioner for Educational Rights ("Office") as an independent, internal organisational unit of the Ministry for Education ("Ministry"). The Office contributes to the promotion of citizens' rights concerning education of children, pupils, students, researchers, educators, teachers and parents.

(2) The Office is directed by the Commissioner for Education ("Commissioner"). All licences assigned to the Office are exercised by the Commissioner.

(3) During his/her mandate, the Commissioner is entitled to the title of Commissioner.

(4) The Commissioner is appointed and dismissed by the Minister for Education ("Minister"), and the Minister exercises the rights of employer. During his/her mandate within the Ministry, the Commissioner is directly responsible to the Minister.

(5) Employees of the Office are appointed by the Minister, and the Minister exercises the rights of employer.

(6) The operation of the Office, its organisational structure, and its internal and external relations are stipulated by the Organisational and Operational Statute of the Ministry and by the Procedures of the Office. The Procedures of the Office are prepared by the Commissioner and are approved by the Minister.

(7) The annual budget of the Office is established separately within the administrative budget of the Ministry.

Conflict of Interest
Article 2.

2.§(1) The Commissioner may not proceed in cases in which she has been proceeding prior to his/her appointment.

(2) The Commissioner shall advise the Minister without delay in writing, should the circumstances described in (1) arise.

Personal and Material Effects
Article 3.

3.§ The subject of the Commissioner's proceedings shall be decrees or measures brought or taken in individual cases, as well as the omission of such decrees or measures, which infringe or present a direct threat of infringement of the rights guaranteed by Arts. 70/F and 70/G of the Constitution, by the Kt., by the Ftv. and by Vocational Education and Training Act No. 65/1993 for children, pupils, parents, educators, students, researchers and teachers (hereafter 'guaranteed rights'). Rights guaranteed by the law for any association of children, pupils, parents, educators, students, researchers and teachers receive equal protection.

Time Restrictions
Article 4.

4.§(1) Proceedings can be requested within one year of a decree introduced in administrative proceedings entering force. If the law does not provide for administrative remedies, proceedings may be initiated within one year of delivery of the decree or measure in question.

(2) Petitions concerning legal regulations or other legal instruments of state direction may be submitted without time restrictions.

(3) Inquests may be initiated without time limit.

Proceedings of the Commissioner Initiated by Petitions
Article 5.

5.§(1) Proceedings of the Commissioner must be conducted on the basis of the provisions of the present decree.

(2) Any child, pupil, parent, educator, student, researcher, teacher or their association (hereafter 'claimant') might submit a written petition in individual cases, if in their judgement their guaranteed rights have been infringed or there is a direct threat of such infringement (proceedings initiated by petitions). Proceedings initiated by petitions start upon receipt of the petition by the Commissioner.

(3) Legal representatives of incapable persons or persons of limited capability may also initiate proceedings with the Commissioner instead of or in the name of these persons.

(4) (4) Claimants may submit their petitions to the Commissioner once they have exhausted all available legal remedy apart from court proceedings.

(5) In the absence of a request to the contrary, the Commissioner handles personal data of claimants in accordance with Act no. 63/1992. This fact has to be brought to the attention of the claimant.

(6) The Commissioner may return incomplete petitions for completion by an assigned deadline.

(7) No person shall be put at a disadvantage in connection with his/her petition to the Commissioner. Claimants are entitled to identical protection to claimants of public concern [unclear].

Article 6.

(1) The Commissioner shall investigate all petitions.

(2) The Commissioner may dismiss a petition without substantive investigation, or may terminate proceedings if:

a) the petition is not submitted by the claimant;

b) the petition is submitted after expiry of deadline;

c) the claimant did not exhaust all available remedies - with the exception of court proceedings;

d) court proceedings have been initiated or a court decision has entered into force in the case;

e) the Commissioner has already proceeded in the same case and the petition does not present new facts;

f) the petition is evidently unfounded.

(3) The Commissioner may dismiss a petition if the infringement or the threat of infringement claimed is of minor importance.

(4) The Commissioner informs the claimant in writing, if, on the basis of the present decree the case is not within his/her competence. The notice names the competent organ in the case.

(5) The Commissioner informs the claimant about dismissal of the petition or termination of procedures - including justification - within thirty days of the relevant decision made.

Article 7.

7. §(1) Petitions not dimissed by the Commissioner on the basis of Art. 6. § 2 undergo conciliation with the claimant, the institution which brought or omitted the decision (institution), the legal or natural person in question.

(2) As part of this conciliation, the Commissioner sends the petition to the institution for a declaration - with a specified deadline - and initiates in writing that the claimant and the institution reach a consensus.

(3) If on the basis of the written opinion or response of both the claimant and the institution the Commissioner seems fit, s/he calls the parties for a personal mediation and suggests possible solutions.

(4) Should the parties reach an agreement respecting the guaranteed rights, the Commissioner prepares a report and sends it to the parties in question. Personal data in the report shall be treated in accordance with Art. 5 (5).

(5) The burden of proof is rests with the claimant concerning facts claimed in the petition, and with the institution concerning facts claimed in its declaration.

(6) If a consensus is not reached between the claimant and the institution, the Commissioner prepares a report on the results of the conciliation and proceeds in accordance with paragraphs (7) and (8).

(7) If the available facts suggest that the institution has not terminated the infringement of guaranteed rights within its jurisdiction, the Commissioner calls for the director of the institution to terminate the infringement or the direct threat of infringement. This can be initiated by telephone, fax and also electronic mail, in which case the date, method and contents of the initiative shall be recorded in the file with specification of a deadline.

(8) If the Commissioner finds that the initiative has not led to consensus or would only achieve this in an unreasonably long time, or if he finds that the conditions are unsuitable for an initiative, in order to terminate the infringement or direct threat of an infringement the Commissioner prepares a recommendation to the institution and to the organ of its legal supervision or control (supervisory organ).

(9) Within thirty days of the disclosure of the Commissioner's initiative or recommendation, the institution or its supervisory organ submits its declaration, its standpoint on the initiative or recommendation and on the measures taken on the basis of the above.

(10) The Commissioner may withdraw or amend his/her initiative or recommendation, and s/he may prepare a new initiative or recommendation.

(11) The Commissioner shall prepare a report on the outcome/result of the initiative or recommendation.

Ex-officio procedures of the Commissioner
Article 8.

8.§(1) If the Commissioner establishes that the infringement, or the direct threat of infringement of guaranteed rights is due to defects of legal regulations or any other legal instruments of state direction; in order to prevent or terminate legal violations the Commissioner submits a proposal to the Minister for Education concerning legislation, amendment or repeal of legal regulations (or other legal instruments of state direction).

Article 9.

(1) On the basis of the observation of a person proceeding within the framework of the office, on the basis of a notice or a petition the Commissioner submits a proposal to the Minister to proceed as stipulated in Art. 93 (2), (4), (5) of the Kt. and as listed in Art. 107 (8) of the Kt. and in the Ftv. (ex-officio procedure).

(2) Ex-officio investigation may be initiated if a legal regulation (or other legal instrument of state direction), or a decision, measure or omission of an institution results in, or presents a direct threat of either a grave violation or infringement of the rights of a group of citizens.

(3) On perceiving perpetration [of… (a crime; an infringement?)], the Commissioner initiates proceedings or files a complaint with the competent authority.

(3) Az oktatási jogok biztosa a tudomására jutott jogsértéssel kapcsolatban az eljárásra jogosult hatóságot megkeresi, bejelentést, illetve feljelentést tesz.

(4) During ex-officio proceedings paragraphs (7) - (11) of Art. 7 and the provisions of Art. 8 shall apply.

(5) The proceedings stipulated in this article are carried out on the basis of an Annual Action-Plan or on the basis of a case by case decision. The Annual Action-Plan is published in the Educational Bulletin.

Annual Report of the Commissioner
Article 10.

10.§(1) The Commissioner shall prepare an Annual Report for the Minister for Education on the details/success of his procedures conducted on the basis of petitions or ex-officio; on the efficiency of his initiatives and recommendations; and on his reports, proposals, conclusions and legal observations. The Minister publishes the Annual Report in the Educational Bulletin by the end of the first quarter of the calendar year following the subject year.

(2)(3) The Annual Report may only include personal data of claimants or other natural persons concerned in cases upon their explicit consent.

Closing Provisions

11.§(1) This Act shall enter into force fifteen days after its promulgation.

(2) The Commissioner may initiate ex-officio procedures only in relation to cases in which legal remedies are due to be exhausted after this Act enters into force. Otherwise procedures may be initiated in relation to cases in which the violation occurred within a year before the entry into force of this Act.