According to Paragraphs (1)-(2) of Article 85 of Act LXXIX of 1993, local governments shall undertake the tasks related to public education as stipulated in this Act. The state shall participate directly in the tasks related to public education by means of establishing and operating institutions, or by entering into agreements with the maintainers of institutions not established by the state or by a local government. The Public Education Act contains special rules pertaining to institutions of public education that are not maintained by a local government.
A parent contacted our Office informing us that a primary school maintained by the church operates a board of directors to which the parents delegated him as their representative. The parent found it injurious that the ecclesiastical council did not accept the parents' decision. We informed the parent that the board of directors he mentioned - based on the relevant provisions of the documents sent to us at our request, i.e. the so-called synodical laws - was an organisation established by the maintainer of the public education institution which, among others, exercised the rights assigned by the maintainer. The synodical laws also determine the composition of the organisation established by the maintainer. These are considered to be the internal regulations of the church. Under Article 15 (2) of Act IV of 1990 on the freedom of conscience and religion and on the churches, no state power can be exerted to enforce the internal laws and rules of the church. Based on the above, we could not launch proceedings in this case. The problem could only be remedied within the church, in accordance with ecclesiastical regulations. (K-OJOG-283/2005.)
The detailed rules pertaining to control by the maintainer are set out in Articles 102-106 of the Public Education Act. The maintainer, among others, makes decisions on the establishment of a public education institution, its restructuring and dissolution, defines the budget of the institution, the number of the groups and classes that may be run in the given school year, and supervises the legality and efficiency of the operation and the financial activities of the public education institution.
A parent turned to our Office presenting the case of her child who attended kindergarten. According to the petition, in January 2005 at a parent-teacher meeting the parents were informed that the maintainer of the kindergarten decided to have the kindergarten building renovated and that during the renovation the building must be vacated. Since the renovation works were planned to start on 1 April 2005, for the rest of the school year the kindergarten pupils were to be received by a kindergarten which was located in another district. Even though they were pleased that as from the next school year their children would enjoy the benefits of a more modern environment, nevertheless, they objected to the fact that during the decision-making process the provision of Article 102 (9) (b) of the Public Education Act, which states that during the school year, with the exception of the months of July and August, the maintainer cannot reorganise a group at a kindergarten, was violated. Every decision of the maintainer which leads to the statutory modification of the founding charter shall be regarded as a reorganisation of the institution under point 15 of the definitions section of the Public Education Act. The change of seat or place of operation is also such modification. On the other hand, the parents claimed that taking their children to a kindergarten which is a lot further away would impose disproportionate burdens on both the pupils and the parents. We investigated the case, and contacted the maintainer of the kindergarten. In its declaration, the business association that maintained the kindergarten informed our Office that the building of the kindergarten was in an extremely deteriorated condition and posed a risk of accident. The pipelines and the roof were leaking, the doors and windows could not be repaired anymore, the wall and floor tiles were moving in a way that entailed the risk of accident, and some of the windows had to be nailed to the frame to prevent their falling off. Both the constructors and the company management agreed that construction works implied so much noise, dust and also chemical substances that it could not be undertaken in the presence of the pupils, so the dangerous building had to be vacated. After negotiations with the constructors, the maintainer managed to reduce the time originally planned for accomplishing the work from five to four months. They wished to provide for the kindergarten placement of every child for the remaining period. In order to relieve the parents from the excessive burdens the changed location of the kindergarten meant, the company also undertook to open the institutions half an hour before and to close them half an hour later than usual and that the teachers would change the clothes of the children. The maintainer also offered the parents the help of the company in finding other, individual ways of solving the problem. We adopted the following position in the case. According to the provision of Article 102 (9) (b) of the Public Education Act, during the school year, with the exception of the months of July and August, the maintainer cannot reorganise a group at a kindergarten. Every decision of the maintainer which leads to the statutory modification of the founding charter shall be regarded as a reorganisation of the institution under point 15 of the definitions section of the Public Education Act. The change of seat or place of operation is also such modification. At the same time, pursuant to Article 10 (1) of the same Act, children shall have the right to receive education under safe and healthy conditions at an institution of education and teaching. Within the meaning of Article 41 (5) of the Act, the education and teaching institution shall make sure that children and students in its care are under supervision, the conditions of education and teaching are healthy and safe, and that reasons of accidents of students and children are discovered and eliminated . Respecting the rights of the child on the one hand means that their violation should be avoided, on the other hand that the conditions necessary for their exercise must be provided. The right to health and physical integrity, given its importance, precedes other rights defined in the Public Education Act; this right should enjoy priority over any other entitlement and, if necessary, should prevail even to the detriment of other rights. In view of the above, we did not establish an infringement of educational rights in this case. (K-OJOG-164/2005.)