INDIVIDUAL AREAS OF EDUCATION
The branch of human rights and freedoms has historically evolved in a move to ban state intervention and as the legal means of curbing state power in law. Later on the state has taken steps to protect the rights and freedoms of citizens also against other entities. Generally, the following fundamental rights are customarily recognised as human rights and freedoms:
- the right to life and to human dignity, the right to self-determination, the right to physical integrity;
- the right to personal liberty, the protection of privacy;
- the right to freedom of movement;
- the protection of personality rights, personal rights, the protection of honour, the protection of personal data;
- the right to ownership.
In this chapter of our report we shall present how these rights were enforced in public education by acquainting you with the cases we dealt with in 2005.
Our office receives a vast number of complaints in which the educational participants request our assistance with the cases of corporal punishment at school. Some are even uncertain whether corporal punishment is indeed an unlawful disciplinary action. We had a parent asking if in such a case it was possible to take or worth taking action against the teacher inflicting corporal punishment, since the victim of corporal punishment, that is the child, is already in a defenceless situation at school (K-OJOG-1330/2005.). Then there was a parent who contacted us to learn about the position our Office had adopted on the issue of corporal punishment (K-OJOG-619/2005.).
According to the position consistently maintained by the Commissioner for Educational Rights, physical abuse is the most serious infringement of rights that can occur in an educational institution. We find it important to stress that the right to human dignity is the fundamental constitutional right of everyone, including all educational participants, giving rise, among others, to the prohibition of physical or psychological abuse against students and the infliction of humiliating punishment on them. All educational participants are entitled to the right to human dignity regardless of their age.
According to Article 10 (2) of the Act on Public Education the personality, human dignity and the rights of children and students shall be respected and they shall be protected from physical and psychological violence. Children and students may not be subjected to corporal punishment, cruel, inhuman, and humiliating punishment or treatment.
Teachers may not deprive students of their human, civil, children's and students' rights, as these rights are not subject to any pedagogical deliberation. Neither are these rights dependent on whether students meet their obligations at school; in other words, the fundamental rights of students may not be associated with the fulfilment of the students' obligations.
In their declarations, the heads of institutions have often argued that in order to be able to progress in the class and to maintain order at school teachers have at times no other means but corporal punishment against overly disobedient students. When a student disturbs the class with his or her undisciplined behaviour, the teacher takes disciplinary action for good cause. However, teachers may not use any unlawful means to maintain discipline. In their educational and teaching activities, teachers are free to decide what teaching methods they choose to use for maintaining discipline, but their choice is restricted by the law: they must not take disciplinary measures that infringe the most fundamental rights of students, i.e. the right to human dignity and physical integrity.
If the occurrence of corporal punishment is established in the course of our inquiry, we are of the view that the student's right to human dignity has been infringed. Therefore, in all such cases, we send an initiative to the head of the institution, in which we request him or her to act in his or her competence as the principal and take the necessary measures to ensure that in the future teachers take only such disciplinary actions against students as are allowed by the law, to prevent the infringement of students' human rights and right to human dignity at school.
A grandmother representing her grandchild turned to our Office complaining that one of her grandchild's teachers had slapped the child across the face and pulled the child's hair. The petitioner also stated that she had contacted the head of the institution to settle this issue, who in response instructed the afternoon class teacher to discontinue checking the homework of the petitioner's grandchild during the classes. The grandparent claimed that the head of the institution was of no help to her in investigating the physical abuse her grandchild had suffered.
In his declaration, the head of the institution stated that the grandmother complained to him about the child having been hit by the afternoon class teacher. The head of the institution replied to the grandparent requesting her to file a complaint in writing. According to the head of the institution, despite the fact that the grandmother had not submitted her complaint in writing, the head of the institution assigned an investigating officer to examine the case of the corporal punishment, and subsequently sent the officer's report to our Office, in which it was verified that the teacher had used corporal punishment. The head of the institution reported that in consequence of the above, he imposed the disciplinary sanction of censure on the teacher.
In our inquiry, we concluded that the head of the institution had in his competence investigated the corporal punishment and had taken a disciplinary measure against the teacher. To avoid the occurrence of similar cases in the future, we have nonetheless initiated in line with the above that the head of the institution act in his competence as the principal and take the necessary measures to ensure that in the future teachers take only such disciplinary actions against students as are allowed by the law, to prevent the infringement of students' human rights and right to human dignity at school. The principal of the school accepted our initiative. (K-OJOG-509/2005.)
A parent contacted us claiming that a teacher slapped several students, including the petitioner's child, across the face in the school lavatory. In her declaration on the matter, the head of the institution acknowledged that the child had indeed been hit by the teacher. The principal informed our Office that she acted in accordance with the provisions of the Act on the legal status of public employees and as a disciplinary measure taken against the teacher in proportion to the offence, she prolonged by one year the teacher's waiting period for promotion. Having regard to the above, we again addressed an initiative to the principal of the school requesting her to act in her competence as the principal and take the necessary measures to ensure that in the future teachers take only such disciplinary actions against students as are allowed by the law, to prevent the infringement of students' human rights and right to human dignity at school. (K-OJOG-233/2005.)
Our experiences confirm that the abuse of their children is rather frustrating for parents, and even the most prudent procedure applied by the head of institution leaves them in doubt as to whether the problem has been satisfactorily settled. Our inquiries reveal that in general the heads of institutions themselves regard corporal punishment as a very serious infringement, and in the event that they learn that such a case has occurred at school, they do their best to resolve the problem and to call the abusing teacher to account. By applying corporal punishment the teacher not only infringes the rights of the student, but also commits a serious disciplinary offence in the case of which the employer is required to launch a disciplinary proceeding within the meaning of Act XXXIII of 1992 on the legal status of public employees. Moreover, in one of its resolutions the Supreme Court declared that teachers may not apply corporal punishment vis á vis children taught or supervised by them. If it does happen, the disciplinary offence committed by the teacher is so grave that even the most serious disciplinary penalty may be proportionate (BH 1998. 53.).
A parent turned to us with the complaint that the head teacher hit his child four times in the class. The petitioner stated that the school did not provide a satisfactory solution to the problem, and that the maintainer failed to lend them assistance. The documents sent to our Office by the head of the institution proved that the head teacher had indeed hit the child of the petitioner. The teacher explained her action by saying that the student behaved in an undisciplined manner during the class. The principal launched disciplinary proceedings in the case as a result of which the teacher was given a warning as a disciplinary sanction. The documents also attested that the head of the institution informed the petitioner that an inquiry was conducted and that the teacher regretted what she had done and then apologised to the parent and the student. Furthermore, the head of the institution assured the parent that no similar case would occur in the future. The head of the institution also informed us that the parent did not accept the above procedure and transferred his child to another school. The Commissioner for Educational Rights has no competence with regard to employers' decisions in matters of disciplinary sanction, and therefore apart from calling the attention of the heads of institutions to the relevant statutory provisions, we are not authorised to launch disciplinary proceedings or to challenge employers' decisions of this kind.
Having regard to the above, we presented an initiative to the principal of the school requesting him to act in his competence as the principal and take the necessary measures to ensure that in the future teachers take only such disciplinary actions against students as are allowed by the law, to prevent the infringement of students' human rights and right to human dignity at school. (K-OJOG-108/2005.)
Within the scope of their duty to supervise children and students, teachers are also required to ensure that students suffer no harm at school. In this context teachers must prevent the violation of rights and accidents, and identify in time the sources of danger that may jeopardise the health or physical integrity of students. Arising from their statutory obligation to supervise students, teachers shall prevent any conflict that could lead to the physical abuse of students.
Several parents requested our help with the following issue. One day, when at 4:30 p.m. they went to pick up their children from school, they were informed that during that day the students were abused in the school by the father of one of their class mates. The man had been shouting at them, used obscene words, pulled their ears and hair, and threatened them. The parents found it injurious that the man who had committed the abuse could go up to the classroom despite the fact that, as was known to the parents, this was prohibited by the local policy of the school. The parents further objected to the fact that the school had subsequently failed to notify them of the incident. They also expressed their disapproval of the school not having requested assistance from the police.
In his declaration, the principal of the school informed us that the incident happened in the morning, and that it would have been the school receptionist's duty to stop the parent, but as the receptionist is a woman, she was unable to hold up an outraged man. The teachers on duty did not notice the parent sneaking in, they were at the time not on the corridor where the incident took place; they only arrived there after they had been notified by the students and called on the parent to leave. The head of the institution informed us that they did not launch any official proceedings on the grounds that the incident was only witnessed by minors, and there were no adults around to see the abuse. He believed that the case was not that significant so as to notify the parents immediately, he wished to inform the parents the next day, who had nevertheless learned about the case earlier from their children and the deputy principal who was just about to leave. Finally, the principal also told us that the school made a decision afterwards, according to which the parent in question may accompany his child no further than the school gate, and may not enter the school. The parent also approved of the decision.
In this case first we examined the fulfilment of the institution's obligation to supervise students. Pursuant to Article 41 (5) of the Act on Public Education, 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, that reasons of accidents of students and children are discovered and eliminated, and that children and students are put under regular medical examination . The 'definitions' section of this Act includes the definition of 'supervision'. 'Supervision' is defined as the protection of the physical and moral integrity of children and students during the time elapsing between entering the institution and leaving it lawfully, as well as during the time of extra mural classes and programs which are compulsory as part of the teaching program. Students must be protected from all circumstances that may endanger their health and safety. As part of this obligation, teachers must endeavour to prevent the violation of rights and accidents, and identify in time the sources of danger that may jeopardise the health or physical integrity of students. In consequence of their statutory obligation to supervise students, teachers shall do their best to prevent any conflict that could result in the physical abuse of students. In all such cases teachers' failure to act and their responsibility must be investigated. Since the teachers were not there when the incident happened, they could not prevent the conflict. Considering the above, we concluded that leaving the students unattended constituted an infringement.
Second, we examined whether the necessary information had been imparted. The right to information appears in the Public Education Act as a general principle among the rights of the individual educational participants, and has a guarantee function. According to the provisions of Article 14 (1) (b) of the same Act parents have the right especially to regularly receive detailed and proper information on their children's development, conduct, and school results. Consequently, parents should be informed on any other circumstances that concern the students, provided that such information does not endanger the students or put them at a disadvantage. As the parents were informed in the afternoon on the same day - although not in a planned manner but as a result of their accidental encounter with the deputy principal - we did not take an initiative in this matter.
In the light of the above, we presented an initiative to the head of the institution, in which we proposed that in the future the school should fully observe the statutory obligation to supervise the students. The head of the institution accepted our initiative. (K-OJOG-302/2005.)
Taking care of children and students with health problems in kindergarten and at school can impose extra tasks on teachers which they are liable to perform in order to preserve the health of children. According to Article 10 (1) of the Act on Public Education, children and students shall have the right to receive education under safe and healthy conditions at an institution of education and teaching. This is the first right of children and students the Act on Public Education stipulates. Based on Article 41 (5) of the same Act, the education and teaching institution shall make sure that children and students in its care are under supervision, and that the conditions of education and teaching are healthy and safe. Respecting and protecting children's rights is more than simply not violating such rights, it also means that the conditions for the enforcement of their rights are ensured.
Pursuant to Article 6 (2) of the UN Convention on the Rights of the Child States Parties shall ensure to the maximum extent possible the survival and development of the child. Article 18 (3) provides that States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. The Convention particularly stresses that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
In her letter, a kindergarten teacher requested information on whether she has an obligation to attend to the tasks that the everyday care of a kindergarten pupil suffering from diabetes entail. Besides the above requirement, we called her attention to the fact that for the development of the child and for the child's education to be conducive to his proper social integration, it is extremely important to acquaint children at a very early age with community life, customs, tolerance, and the rules of behaviour. Having a child with diabetes in kindergarten perhaps also benefits his healthy peers as they can experience first-hand that although in certain things their peer demands closer attention (he has meals at other times than the others, his blood sugar levels must be measured), but on the other hand he immerses himself in playing as much as they do, he is interested in the same things as the others. Although he has to live with this disease, nonetheless, this does not restrict him in enjoying a full life similarly to his peers. (K-OJOG-381/2005.)
Over the past few years too, we received many petitions concerning the look, the clothing and the hairdo of students. Several questions sent by students, parents and teachers also focused on this issue. That this problem is indeed an important one is confirmed by the fact that a head of institution also contacted us requesting our help in ensuring that the house rules of the school he was heading would contain provisions that are compliant with the laws (K-OJOG-1261/2005.). We have adopted the following position in respect of this problem. Clothing and the choice of one's look constitutes humans' right to self-determination. This right is a fundamental right guaranteed in the Constitution, and belongs to the scope of freedoms. It is also referred to as a general personality right due to its function as the 'parent right' of other fundamental rights, the existence of several of which can be derived from this right. In essence, it guarantees the free development and expression of human personality, in particular vis á vis the state or the bodies and authorities acting on its behalf. That is why it is called freedom.
The general personality right is a fundamental right of all people. Everyone, and thus not only adults, but children and, in the context of education, teachers and students are also entitled to this right. At the same time, as is the case with most of the fundamental rights, it is not unrestricted. Within the meaning of Article 8 (2) of the Constitution, in the Republic of Hungary the rules applying to fundamental rights and obligations are established in law. Accordingly, any restriction of a fundamental right must be stipulated in law.
In consequence of the above, every human can freely shape their appearance within certain limits. One such limit is for example the provision of criminal law which prohibits any appearance that arouses indignation and fear in others and stipulates that such appearance should be sanctioned. General statutory provisions that are binding to all should evidently be applied to educational participants as well. However, the relations in a community as special as that of a public education institution are governed by Act LXXIX of 1993 on Public Education. This Act sets out the majority of the rules that concern the restriction of fundamental rights at school. There are several provisions related to the clothing of students in the Public Education Act. These are based on the requirement that public educational institutions must ensure that minor students are supervised and as part of this obligation they must protect their physical integrity, health, and must safeguard their values and protect their moral integrity. As a result the school's code of clothing can only serve this particular purpose, or else they unduly curtail students' right to self-determination without the authorisation of law. The essence of personal freedoms is exactly that these can be freely exercised as long as they are not restricted by law. Any such restriction, on the other hand, as stipulated in the aforementioned constitutional provision, shall be laid down in law, that is, the internal standards of the school (teaching program, school house rules) can only explicate and specify the legislative restriction but may not introduce new grounds for it.
Thus the school's code of clothing that aims to protect the physical integrity of students is compliant with the law. The rule that certain pieces of jewellery should not be worn during physical education classes as these may cause accidents is such a code, as is the provision that protective clothing must be put on in workshop classes. (It should be noted that in vocational schools ensuring compliance with work safety rules and sanitary regulations is obviously a lawful measure as these must be observed not only by the students but also by everyone engaged in that type of activity.) Regulations not necessarily aiming at the protection of physical integrity but rather that of the clothes of students are also regarded as lawful, and these are very often inseparable from accident prevention regulations.
However, a policy that specifies certain rules for clothing only for the sake of the "standardisation" of students is unlawful as there is no statutory objective stipulating such requirement. Similarly, it is also unlawful for clothing codes to have an implicit disciplinary objective. Public education institutions must apply other means for maintaining discipline, for that matter, these are also listed in the Public Education Act.
A parent contacted us asking for our position because she found it injurious that her child had to wear a school cloak at school. Pursuant to the above line of argument, we informed the parent that on the basis of what she had written we suspected that the school her child attends had unlawfully made the wearing of cloaks compulsory. The use of school cloaks is not in compliance with the principles outlined above, and there is no sensible reason that could justify the use of cloaks during ordinary classes held in a classroom. (K-OJOG-887/2005.)
A petitioner asked for information about the compulsory rules concerning the clothes students should wear in physical education classes. In addition to informing her of our position we detailed above, we also called the petitioner's attention to the following. Article 19 (2) of Act LXXIX of 1993 on Public Education states that, without specifying the quality, type and price, teachers may request students to obtain clothing or other equipment which are indispensable for participation in the class they hold or for the acquisition of the subject matter of instruction, and are regularly and simultaneously used by all students in the class. The law stipulates that teachers may determine the equipment without specifying its quality, type and price. In view of the above, our position is that defining the sort of clothing students must wear in physical education classes does not constitute an unlawful restriction of freedoms. Specifying a particular colour for the clothing however, is not an indispensable condition for class attendance or one that cannot be substituted. (K-OJOG-1229/2005.)
A parent contacted us with the following complaint. As her child's natural blonde hair started to darken at the roots, in view of her participation in preparatory classes for secondary school, last year September she dyed her hair to get a single colour. To adjust the change in hair colour that occurred due to hair washes, the parent dyed the child's hair again in December. The petitioner told us that as a consequence, her child received a warning from the principal. According to the parent the school house rules state that it is prohibited for students to dye their hair, to paint their nails and to wear provoking clothes.
In his declaration the head of the institution claimed that when the school house rules were adopted each parent consented to its provisions by signing it. The student received a warning from the principal for having violated the school house rules. During his discussion with the mother the principal learned that the parent dyed the child's hair against her will. The head of the institution also informed us that the student's conduct was marked exemplary at the end of the first term, and her warning was in fact neutralised by a former recognition from the principal.
Within the meaning of Article 40 (7) of the Act on Public Education the regulations for the school shall lay down the rules relating to the exercise of the rights and the fulfilment of the duties of students, the working order of the school, the rules relating to classroom and extracurricular activities and the use of school premises or territories belonging to the school. The school house rules can thus include a chapter on the obligation of students. The provisions of this chapter can, however, only further detail the obligations stipulated by law, and can determine the manner in which these are to be met. The school house rules may not impose any further obligations on students other than those laid down in law. In our view there is no rational reason for stipulating in the school house rules that every student should keep their original hair colour. There are no activities in school education which would be adversely affected by the fact that participating students do not have their original hair colour.
Under the authorisation of the Public Education Act, the rules of the school house rules are binding; breaching these will result in adverse consequences for those to whom these apply. However, according to our position, non-compliance with aesthetic requirements and expectations in terms of taste cannot produce adverse consequences: disciplinary measures or in more serious cases disciplinary sanction.
We are of the view that the school may not intervene in issues that concern the wear of students as this would mean limiting students' personal rights. Therefore the school house rules cannot lawfully require students not to have dyed hair. As part of their educational activity, teachers may certainly express their disapproval of the matter and attempt to convince the students not to do so, but they may not force the students or influence them through prospective sanctions in this respect.
On the basis of the aforementioned facts, we concluded that the educational rights were infringed by the provision in the school house rules which state that all students shall keep their original hair colour, even if this provision was agreed by the parents when they signed the house rules.
Considering the above, we presented an initiative to the principal of the school requesting him to act in his competence as the head of the institution and take the necessary measures to ensure that the school house rules do not contain provisions that impose such obligations on the students in respect of clothing as restrict their personal rights. We also initiated that the warning of the principal given to the child of the petitioner on grounds of her failure to observe the unlawful provision of the school house rules be annulled. The head of the institution accepted our initiative. (K-OJOG-28/2005.)
We have mentioned earlier that educational institutions must ensure that minor students are supervised and as part of this obligation they must protect their physical integrity, health, and must safeguard their values and protect their moral integrity. Nevertheless, this does not mean that if an offence or, for that matter, criminal act takes place at school the teacher would be entitled to go through the clothes or search the bags of the students. The right to privacy is a basic human right. Even if there is reasonable suspicion that a student has committed an offence or criminal act, this right may not be suspended, and only the authorities authorised thereto by the law may search the personal belongings of a student and, furthermore, they may only do so subject to the relevant procedural rules that serve as a guarantee. As a disciplinary authority, the persons mandated by the school may perform the actions listed in the Public Education Act (for example, private or joint hearing, negotiations, obtaining and assessing the means of evidence in cooperation with the student) in order to establish the facts, but even then teachers would not be entitled to go through the clothes and the bags of a student. There are only a few exceptional cases governed by law (e.g. self-defence, emergency) where the rights of students can be temporarily restricted to a proportionate and the necessary extent if another person, his or her property or the public interest is harmed or is in imminent danger.
A petitioner asked our Office whether the deputy principal was entitled to search the clothes and the bags of students in the case of lost valuables.
We informed the petitioner that in our view only the bodies specified in law may search the students in accordance with the procedure defined by law. The petitioner told us that students' pockets and bags were searched because a mobile phone was lost. We informed him that in such a case the deputy principal can initiate the appropriate - disciplinary, infringement or penal - proceedings whereby the bodies authorised thereto by law may take the relevant measures. (K-OJOG-99/2005.)
A re-occurring and important problem in the everyday life of schools is what to do when a student causes damage to the school.
A student lost the school's digital camera when they were on a school excursion. The school ordered the legal representative of the student to pay HUF 26,500 for damages, and the legal representative paid the said amount. Our Office was contacted by the maintainer of the school requesting our opinion about students' liability for damages in the case of intentional or negligent tort and in what procedure the school can enforce a damage claim against the student or his or her legal representative. The maintainer also inquired whether, in addition to the provisions laid down by law and decree, it was necessary to institute local regulations with regard to the rules of procedure in order to establish the liability for damages. We informed the maintainer that pursuant to Article 77 (1) of the Public Education Act, a student shall be responsible for any damage he or she has caused in breaking the law to the education and teaching institution or to the organizer of practical training in connection with the pursuit of his or her studies under the stipulations of the Civil Code of the Republic of Hungary. According to Paragraph (2) in the case defined in Paragraph (1) the extent of damages may not exceed
a) fifty percent of the lowest wage, its monthly sum being established in accordance with the regulations in effect on the day of causing the damage, in case the damage was caused out of negligence ,
b) the value of the damage in maximum the sum of the lowest wage of five months, the monthly sum being established in accordance with the regulations in effect on the day of causing the damage, in case the damage was caused intentionally, if the student is incompetent or has limited legal capacity.
In the present case the damage was obviously caused due to negligence (according to the maintainer the student had lost the camera), and the compulsory minimum wage in 2004 equalled HUF 53,000 as defined in Article 2 (2) of Government Decree 210/2003 (XII.10.) on the Establishment of the Compulsory Minimum Wage, that is, the maximum amount for which the student could be held liable indeed amounted to HUF 26,500. Liability for damages is otherwise governed by the general rules of civil law (and of civil proceedings), and no special regulation is required to deal with such matters. In our case, as the student admitted that he had caused damage, there was no need for further procedures and the student could directly indemnify the injured party. If this had not been the case, the institution could have enforced its claims in a civil suit (depending on the value of the claim, through a payment warrant), i.e., it would have had to prove in court that the damage had been caused, the identity of the person who caused it, the extent of the damage, etc. (K-OJOG-466/2005.)
Another frequent issue is the liability for the damage the student sustains at school. This problem is usually associated with the things students take to school.
A parent turned to our Office because she found the procedure her daughter's school conducted injurious. The school requested the parents, including the petitioner, to sign a declaration. In this declaration, the parents were to agree that their children would go to school by bicycle and that the school would not assume liability for any damages to the bicycles parked in the school courtyard. Students whose parents did not sign the declaration could not store their bicycles in the courtyard of the school. This was the case with the child of the petitioner.
We requested the head of the institution to make a declaration on the matter, in which he confirmed the above facts.
According to the provisions set forth under the title 'Special Types of Deposit' (Art. 471) of the Civil Code the regulations governing hotel liability shall be applied to the liability of baths, cafés, restaurants, theatres and similar establishments as well as cloak room operators, with the difference that the liability of the enterprise shall apply only to the things that are usually taken to such establishments by their visitors. According to judicial practice, schools qualify as 'similar establishments'. Consequently, the liability of schools does not cover things that are usually not taken to school, and a bicycle is such thing.
Pursuant to Article 77 (3) of the Public Education Act, if a student suffers damages in connection with his or her student status, the school shall be totally liable regardless of culpability. As regards compensation, the stipulations of the Civil Code of the of the Republic of Hungary shall be applied with the difference that the education and teaching institution or the organiser of practical training shall be exempt from their liability only if they can prove that the damage was the result of an unavoidable cause outside the scope of influence. No damages have to be paid if the damage has been caused by the unpreventable conduct of the person suffering the damage. Moreover, a school can cause damage in connection with student status only to things that are indispensable for the exercise of the rights or the fulfilment of the obligations that stem from student status, and hence not to bicycles.
In our view, as the bicycle is not a thing usually taken to school, nor is it indispensable for the exercise of the rights or fulfilment of the obligations that arise from student status, any special liability of the school for damages caused to bicycles is precluded by the law. Therefore, it is unnecessary to get the parents sign the aforementioned declaration; this may only serve as a tool for informing the parents about the legal context.
Consequently, the school may not refuse to let those students keep their bicycles in the school courtyard whose parents did not sign the declaration as this would discriminate these students against those peers whose parents had signed the declaration. Based on the above, signing the declaration has no legal effect whatsoever and therefore it cannot give rise to any potential discrimination.
Having regard to the above and because in this case the infringement of educational rights could be established, we sent an initiative to the head of the institution requesting him to eliminate the infringing condition . The principal of the school accepted the initiative and stated that in the future they would not ask parents to make a declaration on bicycles, but instead they would inform them in writing about the relevant statutory provisions. (K-OJOG-63/2005.)
Several institutions are still struggling with the issue of how to institute lawful local rules for the use of mobile phones by students.
A deputy principal inquired at our Office whether the provisions of their school house rules concerning the use of mobile phones by students were lawful.
Under Point i) of Paragraph (2) of Article 4 of Decree No 11/1994 Of the Ministry of Culture and Public Education on the operation of educational and teaching institutions, schools shall specify in their rules of operation and organisation, among others, the forms of disciplinary measures and the principles of their application. Based on the above provision, the rule of the school house rules according to which - with a view to maintaining order during the classes - mobile phones may only be used in the breaks between classes is acceptable. Mobile phones should not disrupt discipline during instruction, therefore it is a just requirement that these should be kept in a state so that teachers and students are not interrupted in their work. However, this does not necessarily mean that the apparatus must be switched off once the class bell has sounded. Requiring that mobile phones be set to silent mode is also a sufficient measure to ensure that the class is not disturbed and students can benefit from the advantages of silent mode, for example they can check after the class whether they received any calls during the class. At the request of the principal, we also examined that provision of the school house rules which states that mobile phones confiscated by the teacher may only be collected by parents from the School Board. The disciplinary measure defined in the school house rules according to which if a student disturbs the class by using his or her mobile phone, the phone must be handed over to the teacher giving the class, is a necessary action for restoring order in the class. Once the class bell has rung indicating the end of the class, the break starts during which there is no instruction that could be disrupted by the use of phones. However, pursuant to the currently effective provisions of the school house rules the student whose mobile phone was confiscated during the class may not enjoy the right - which is also guaranteed in the school house rules - of being allowed to use his or her phone during the break. Considering the above, we proposed the modification of the current provisions of the school house rules so that mobile phones should be allowed to be kept switched on in silent mode during the classes. On the other hand, if as a disciplinary measure the teacher confiscates the mobile phone from a student on the grounds that it has disturbed instruction during the class, the phone should be returned to its owner at the end of the class. (K-OJOG-93/2005.)
A head of institution inquired whether it was lawful to employ a security service for the maintenance of order at the school.
Pursuant to Paragraph (1) of Article 54 of the Public Education Act, the principal is responsible for the professional and lawful operation and the sound financial management of the institution, exercises the employer's rights and makes decisions on operational issues in all matters that do not fall within the competence of others under the law or the collective bargaining agreement (regulations for public employees). As such, it is the right and obligation of the head of the institution to ensure that order is maintained and healthy and safe conditions for education are guaranteed in the institution. He also has the powers to decide through what means and methods this is achieved. (K-OJOG-1296/2005.)
Both the Constitution and Act III of 1989 on the freedom of assembly stipulate the freedom of assembly as a fundamental human right. The inquiries we have received nonetheless prove that many people are unaware that no age limit applies to the freedom of assembly. Therefore, everyone, and thus also the educational participants, are entitled to this right regardless of their age.
The petitioner requested information as to whether a student who attends a church school can exercise his or her constitutional right to freedom of assembly. In formulating our position we examined if the education related rights of students or parents were injured in connection with the call for participation at the demonstration the school organised.
Educational and teaching activities in the institutions of education are governed by statutory provisions, local school regulations and teaching programs. Students are required to attend the compulsory classes these stipulate as part of their obligation of compulsory education. Beyond that, institutions may organise extra mural programs which fall outside the scope of the statutory provisions and the local regulations that apply to educational and teaching activities. Attending these programs can only be voluntary for students. Participation at a demonstration is an extracurricular event which is not an integral part of education and teaching. Therefore, participation at the demonstration can only take place on a voluntary basis, and the school may not compel the students to attend. We can talk of voluntariness only if the students can rest assured that they will not suffer any disadvantage in case they refuse to attend. If the students are concerned that there is a chance that the school will take measures that will adversely affect them, they do not make their decisions on a voluntary basis.
The above issue involves various stakeholders of education, and several groups of educational players, such as students, parents, teachers, heads of institutions, and maintainers. These groups are also separately connected to one another. Their relationships are characterised by mutual dependencies, which influences to a great degree how rights can be exercised. The management and the teachers of the school, on the one hand, and the students of the school, on the other hand, are not in the same position at a school, as students are dependent on the school management and the teachers in many areas of school life. The fact that a school exists as a sort of closed community cannot be neglected either, as educational participants all contribute to this community on a compulsory basis while they are parties to a mutually dependent relationship. Another important dimension is that one group of the educational players is more powerless than the rest. Children and students are less capable of asserting their rights so they are more defenceless against infringements. Due to the nature of this dependency, students may have grounds to be afraid of suffering disadvantages in some areas of school life if they do not attend the demonstration. We believe that under such circumstances voluntary participation is precluded, even if the principal of the school informs the parents that not permitting their children to attend the event will result in no adverse consequences for their children. Within the meaning of Article 41 (3) of Act LXXIX of 1993 on Public Education children, students, and parents may not be compelled to confess or deny their conscience, and ideological or political convictions.
We are of the view that by appealing to the students or the parents, the head of the institution can exert great influence on the parents. In such a case parents will deliberate not the question whether they agree with the objectives of the demonstration or whether they approve of their children's attendance, but rather what kind of consequences their children will have to face at school if they refuse to give their consent.
As set forth in Article 62 (1) of Act XX of 1949 on the Constitution of the Republic of Hungary , the Republic of Hungary recognizes the right to peaceful assembly and shall ensure the free exercise thereof. According to Article 15 of Act LXIV of 1991 promulgating the New York Convention on the Rights of the Child of 20 November 1989, States Parties to the Convention recognize the rights of the child to freedom of association and to freedom of peaceful assembly. Children and students are entitled to this right regardless of their age.
Fundamental rights can only be exercised on a voluntary basis. If the conditions for exercising such rights are not provided due to the lack of voluntariness, we find that it is not possible for students to exercise their right to freedom of assembly in accordance with its original purpose. (K-OJOG-1316/2005.)