FIELDS OF EDUCATION
PUBLIC EDUCATION
Public education is one of the most extensive public service in Hungary. A large number of citizens are involved as pupils, teachers and parents. Due to the existence of compulsory schooling, participation in this service is not voluntary on the part of the pupils and parents. In addition to senior governmental officers, school managers and teachers, a growing number of parents and pupils consider education a very important public matter, and thus expect much more information in order to make responsible decisions. The Office of the Commissioner for Educational Rights receives an increasing number of questions which are not yet requests for our procedures to be implemented, only requests for information about rights and possibilities. We issue such information if the Commissioner for Educational Rights has already conducted an inquiry and drawn up a legal opinion about the given theme, or if the available information and the legislation are sufficient to give a clear answer. Most often, this occurs through the telephone. In comparison to earlier years, we are contacted much more often by telephone. In each case we place great emphasis on enabling the caller to decide whether, based on the information received, they wish to initiate the proceeding of our Office, and also on providing them with correct information on the legal background of the situation covered by their complaint and their possibilities for asserting their rights, even when the case does not fall into our sphere of competence.
We have mentioned earlier that the actions and decisions of public education institutions are less documented, and several decisions are not backed by a local regulatory framework. There are further characteristics of public education as well, one of them being that the participants in legal relationships in public education are the pupils, parents, teachers, heads of institutions, managers and finally the state. These participants are also connected to one another separately. Their relationships are characterised by mutual dependence, and all this significantly affects the enforcement of the rights of participants in education. Dependence is rooted in not only educational, but also labour law relations. We also cannot ignore the closed nature of the community, as, due to compulsory schooling, the participation of educational players in this community is of an obligatory and mutually dependent nature. It is also important to note that one group of the players is more vulnerable than the others. Children and pupils have always been less able to enforce their rights and are more defenceless against the infringement of rights. The rights of children can only be fully enforced if adults take an active role in ensuring that this is so. In the context of public education, we receive submissions not only with respect to rights directly connected to education, but also basic rights of the educational players, specified by the Constitution and reaffirmed by the Public Education Act, as these become very vulnerable in the framework of mutual dependence.
HUMAN RIGHTS AND FREEDOMS
As emphasised a number of times in our earlier reports, the personal freedoms of participants in public education are fundamental constitutional rights which, with regard to their significance, are stipulated repeatedly by the Public Education Act as the main rights of educational participants. These rights are especially vulnerable in the world of mutual dependencies which exists in the schools, and can only be preserved with the co-operation and awareness of the participants involved in education.
We continued to receive many complaints in 2002 about the violation of human dignity, the right to privacy and the protection of personal data, and also many inquiries about the content of these rights. The right to human dignity is a fundamental constitutional right afforded to each person and thus each educational participant. This means, for example, that corporal punishment of pupils, and physical aggression against parents and teachers is forbidden, as well as the humiliation of any participant in education. Educational participants are entitled to the right to human dignity regardless of their age.
Pursuant to Paragraph (2) of Article 10 of the Public Education Act, the personality, human dignity and rights of children and pupils shall be respected, and they shall be protected against physical and mental aggression. Children and pupils may not be subjected to corporal punishment, torture, cruel, inhuman or humiliating punishment or treatment. The Office received complaints in year 2002 from parents making a grievance of corporal punishment against their child by a teacher. In our opinion, the most serious violation of the law which can occur in an educational institution is physical abuse.
When a pupil behaves in an undisciplined manner and thus disturbs the class, the work of the teacher and the others in the class, the teacher may only apply those means of discipline whereby the law is not violated. In the course of teaching, teachers are free to decide which pedagogical method to use to discipline pupils. Such means, however, are subject to strict legal restrictions, in that there cannot exist a teaching situation where the only solution involves the violation of a basic human right. Therefore, teachers may only use means of discipline which are allowed by legislation, so as not to impair the human dignity or violate human rights of the pupils at school.
Our experience is that heads of the institutions consider corporal punishment a serious breach of duty, and seek to investigate relevant notifications of parents as thoroughly as possible. Often, once the investigation is completed, the heads of the institution take the necessary steps within their own competence with respect to the breach committed by a teacher, so that no similar events may occur in the future. The heads of the institution must consider all merits of the case when, as employers, they decide on the action to be taken with respect to the teacher who has committed a breach of duty.
| One parent claimed that the child was hit several time at school. The complainant claimed that on the last occasion, her partner was also an eyewitness when the child's teacher hit the child with a book with such strength that the little girl was dazed. The mother also thought the abuse to be related to the child's Roma origin. The principal started an inquiry about the parent's notification concerning the abuse of the child, and, having considered the facts, gave the teacher a warning. As the head of the institution started a thorough investigation of the case, we did not prepare an initiative, but reminded the principal of the above-mentioned restrictions of discipline. The child's Roma origin increased the sensitiveness of the case. In this respect we gave the following advice to the principal. In some schools attended by a larger number of Roma children, a practice has proved successful whereby the Roma parents choose one of them to act as a mediator between them and the school. This mediator is a person who knows the Roma families well and who is well aware of their position concerning various issues of school life, as well as any problems which might be solved by the school, and who regularly communicates these to the school. With this, the representative of Roma parents can be very helpful not only to the Roma families but also to the management and teachers working at the school. The mediator may thus eliminate mistrust between parents and the school, prevent misunderstandings, overcome obstacles in communication, and facilitate co-operation for both sides. Correspondingly, we asked the parents that if such a request is made by the school, they help the teachers find the person suitable for the role. (K-OJOG-56/2002.) |
The Constitution protects the right to personal privacy. Paragraph (1) of Article 59 stipulates that each person in the Republic of Hungary has the right to good reputation, the privacy of home, and the right to protection of private secrets and personal data. Pursuant to Section e) of Paragraph (3) of Article 10 of the Public Education Act, children, pupils and pupils have the right to have their personal rights, especially their rights to the unobstructed growth of their personality, their right of self-determination, their right to free action, right to family life and their right to privacy, respected by the kindergarten, the school and the hall of residence.
Many conflicts may be generated when the teacher stops the flow of small private letters in the classroom during class - which disturbs teaching - by taking such letters away from the pupils. In the three years of our operation, mostly pupils and their parents have come to us with problems in this field. Naturally, teachers may apply disciplinary acts and steps when pupils behave in an undisciplined manner and disturb teaching by writing letters in class; depending on the seriousness of the actions, even a disciplinary proceeding may be initiated. This is governed by the rules set forth in the school's own rules. Educational rights are not violated when a teacher takes away letters from pupils in order to stop behaviour which disturbs teaching. When, however, a teacher not only takes the letters away but also reads them or reads them out, he or she violates the personal rights of pupils. (K-OJOG-16/2002.)
Also in year 2002, we had several cases which concerned the right to the protection of personal rights. We have found that this right can be impaired for any of the participants in education. In one submission, the issue of protection of personal data was raised in connection with creating school web pages.
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A teacher was creating the school's homepage together with a pupil, and they wished to show the names and photos of the pupils, as well as the names and the timetables of teachers. They were told by the head of the institution, however, that the listed data may only be displayed on the school's homepage if the parents of the pupils and the teachers approve. The teacher asked whether they need to ask the permission of the affected persons, and whether displaying the names, timetables and photos on the homepage constitutes a breach of the law. Pursuant to Article 2.1 of the Data Protection Act, personal data are data which can be connected to a specific natural person (the affected person), as well as conclusions which may be made from these data with respect to the affected person. In the course of data processing, personal data maintain their status as personal data as long as their connection to the affected person may be restored. Pursuant to this statutory definition, the data items to be displayed on the school homepage, as mentioned by the teacher - the names, photos and timetables of pupils and teachers - fall into the category of personal data. Under Article 3 and Paragraph (2) of Article 83/B of the Public Employee Act, the name, position, categorisation details and the name of the employer of teachers may be published without the prior approval of teachers employed as public employees. Under Paragraph (3) of Article 3 of the Data Protection Act, other personal data of teachers employed as public employees, as well as all personal data of teachers who are not employed as public employees, and of pupils, can only be published (including placement on the school homepage) with the prior approval of those affected. We informed the complainant that when asking for permission, the aim of the handling of data needs to be accurately identified, and the data may not be used for any other purpose. Approval must be voluntary and may be withdrawn any time in the future. Should this happen, the data of the person withdrawing permission have to be deleted. (K-OJOG-69/2002.) |
In one case, the head of an institution violated the personal rights of one of the teachers at the school by not observing data protection regulations.
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A teacher's complaint was that the school principal had made an inquiry with the head of a higher education department, because the principal had doubts about the complainant's higher education diploma. The claim was that the principal's method of action constituted a violation of the complainant's rights as a teacher. In public education institutions, employer's rights are exercised by the principal of the institution, who is also responsible for the lawful operation of the school. It is the principal's job to verify that the teachers employed in the institution possess the qualifications required by the Public Education Act. In our opinion, the law does not prevent the principal from seeking the opinion of the head of the department of the institution which issued the diploma. In the next phase, our inquiry was targeted at finding out whether the principal respected personal rights and data protection regulations when requesting the opinion of the head of the department; more specifically, whether the principal violated the complainant's rights to the protection of personal data when supplying the teacher's name along with the teacher's qualification and the subjects taught. We found that pursuant to Paragraph (2) of Article 83/B of the Public Employee Act, of the records of the register of public employees, the employer's name, the public employee's name and categorisation details may be published without the approval of the affected person. Not included here, however, are the public employee's qual-ification and the subjects taught. By supplying the teacher's name together with the teacher's qualification and the subjects taught (without the approval of the affected person), the principal communicated personal data without authorisation. Thereby the principal violated the right of the teacher provided by Paragraph (1) of Article 19 of the Public Education Act, that is, in the context of the their job, teachers are entitled to have their personal rights (including the right to the protection of personal data) respected. With a view to this, we initiated with the head of the institution that in the future, the principal respect the personal rights of teachers when fulfilling the job. The principal accepted our initiative. (K-OJOG-312/2002.) |
Another question related to the personal freedoms of pupils concerned the issue of what objects the pupils may take with them into the school building.
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In the context of the school's responsibility for objects taken into the school, the chairman of a parents' association asked whether the school may forbid pupils to take any objects not closely related to education with them into the school building. We answered by telling the inquirer that the case of objects taken in the school corresponds to the liability form 'special forms of deposit' under the Civil Code. Paragraph (1) of Article 471 of the Code governs the liability of baths, cafés, restaurants, theatres and similar entities, as well as cloak-room operators. In the literature and in judicial practice, the liability of schools for property taken by pupils into the school which are needed for school attendance and which the pupils cannot guard during teaching belongs in the same category. In judicial practice, the regulations on strict liability generally apply only to objects which people usually take with themselves to the facility in question. Thus, liability does not cover the loss, damage etc. of assets which were not needed by a client to use a relevant service or carry out a relevant activity. Liability does not cover, for example, valuable watches made of precious materials, or a larger amount of cash, bank cards or securities, etc. The latter do not qualify as objects which are needed to use the relevant service and which are essential to reaching the goal of the visit by the client. From this, it is obvious that the school is not liable for objects not closely related to education, and therefore, they may not be forbidden by referring to this non-existent liability. Pupils may take such objects with them, but only at their own responsibility. The inquirer also asked whether the wearing of any jewellery may be forbidden at school on the ground that it may cause injuries. Pursuant to Section e) of Paragraph (3) of Article 10 of the Public Education Act, pupils may not endanger their own health and safety, or the health and safety of other pupils or the staff of the educational institution by exercising their rights. Under this provision, the institutions which forbid in their own rules certain dangerous objects do not violate the law. However, the decision concerning which objects are deemed dangerous requires individual consideration. Whether a rule is in accordance with the law or not can only be decided after collecting all facts of the case. One thing can be said for certain, that forbidding jewellery in general seems to give rise to concerns, as it is not reasonable to presume that each piece of jewellery seriously jeopardises the health of pupils and staff. (K-OJOG-171/2002.) |
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