The Ombudsman asks the Constitutional Court to revise the amendment of an act on possible law enforcement measures applicable in case of truancy

AJB-6980/2012

The Ombudsman asks the Constitutional Court to revise the amendment of an act on possible law enforcement measures applicable in case of truancy

According to the commissioner for fundamental rights the authorization to the police for the application of coercive measures against children under the age of 14 is an unnecessary and disproportionate restriction of rights, which can be even worse considering the basic deficiencies of the regulation and the risk of uncertain and arbitrary application. The ombudsman therefore asked the Constitutional Court for the urgent revision and the suspension of the entry into force of said provision.

In July 2012, the Parliament adopted the amendment of an act entering into force from 1 January 2013, which makes possible for the police to take measures against pupils younger than 14 who miss school without permission. Following previous consultation, the police may escort the child to the director, if he/she can not justify his/her absence. Credible permission may be issued by the school, the doctor and the parent of the student.

In the course of giving his opinion on the draft, commissioner Máté Szabó pointed out that the concept of preventing truancy by means of law enforcement measures is irrational, adverse and presents a disproportionate restriction of rights. The draft might have led also to several problems in practice: as an example, policemen are not able to judge whether the child's absence from school is justified or not. The ombudsman requested to delete from the draft the possibility of applying law enforcement measures. This request was ignored by the Parliament, therefore the ombudsman asked the Constitutional Court for the urgent revision and the preliminary suspension of the entry into force of the provision.

The commissioner for fundamental rights has argued that the text of the amendment does not meet the requirements of legal certainty. Due to the incorrect codification it is not clear under what conditions the police will have the right to accompany the pupil to school. The legislator has not defined clearly in which periods of schooldays may such measures be taken, and how long may take previous consultations with the school, and thereby for how long may a pupil be restrained. The Ombudsman also had concerns over the exculpation provisions.

The ombudsman argues that the regulation generates a constant uncertainty both for parents and for children considering that several situations may happen when a pupil can not obtain a credible permission or loses it through no fault of his own. In his petition the commissioner noted that the application of law enforcement measures, the possibility of police measures is an unnecessary and disproportionate restriction of the right to self determination of children under the age of 14.  Being taken to school by a police officer can be traumatic and humiliating experience, therefore, it can severely violate a child's right to dignity.

The ombudsman says that ensuring regular school attendance is the parents' responsibility and obligation. It is a parental discipline privilege to decide how to ensure school attendance and how to control it. The commissioner does not dispute that truancy is a serious problem, but, in order to prevent it, it is primarily the efficiency of the child protection signal system that needs to be improved.

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