case no · web viewdec 22, 2011 · the constitutional court of the republic of lithuania. ruling....
TRANSCRIPT
Case No. 13/2010-140/2010
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF THE PROVISIONS OF THE REPUBLIC OF
LITHUANIA LAW ON SCIENCE AND STUDIES (WORDING OF 30
APRIL 2009) WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
22 December 2011
Vilnius
The Constitutional Court of the Republic of Lithuania, composed of the Justices of the
Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Ramutė Ruškytė,
Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,
with the secretary—Daiva Pitrėnaitė,
in the presence of the representatives of a group of Members of the Seimas of the Republic
of Lithuania, a petitioner, who were Vytenis Povilas Andriukaitis, Vydas Gedvilas and Julius
Sabatauskas, Members of the Seimas,
the representatives of the Seimas of the Republic of Lithuania, the party concerned, who
were Valentinas Stundys, Chairman of the Committee on Education, Science and Culture of the
Seimas, Mantas Adomėnas, a Member of the Seimas, Audrius Skaistys, an Adviser at the Office of
the Education, Science and Culture Committee of the Office of the Seimas, Gytautas Damijonaitis,
an Adviser to the Minister of Education and Science of the Republic of Lithuania, and Tomas
Daukantas, Head of the Law Division of the Ministry of Education and Science of the Republic of
Lithuania,
pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article
1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 17,
21 and 23 November 2011, heard constitutional justice case No. 13/2010-140/2010 subsequent to:
1) a petition of the group of Members of the Seimas of the Republic of Lithuania, a
petitioner, requesting to investigate whether:
– the provision “The Lithuanian policy on science and studies guarantees <...> conditions
for the best of them to do scientific work” of the Preamble to the Republic of Lithuania Law on
Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 2 of Article 25,
Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the
Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of
law;
– the provision “A state school of higher education shall be a public legal person functioning
as a public establishment, possessing the autonomy guaranteed by the Constitution of the Republic
of Lithuania, and the special status defined by this and other laws” of Paragraph 4 of Article 6,
Paragraphs 1 and 3 of Article 8, Paragraph 3 of Article 9, Articles 19, 20, 21 and 22 (save
Paragraph 8 of Article 22), Paragraph 4 of Article 53, Item 3 of Paragraph 2 of Article 86,
Paragraph 4 of Article 90, and Paragraph 3 of Article 91 of the Republic of Lithuania Law on
Science and Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article 40 of
the Constitution of the Republic of Lithuania and the constitutional principle of a state under the
rule of law;
– Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Republic
of Lithuania Law on Science and Studies (wording of 30 April 2009) are not in conflict with
Paragraphs 1 and 4 of Article 46 of the Constitution of the Republic of Lithuania and the
constitutional principles of a state under the rule of law and equality of persons;
– Item 4 of Paragraph 1 of Article 11 of the Republic of Lithuania Law on Science and
Studies (wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 42, Paragraph 1 of
Article 46 and Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law;
– Paragraph 2 of Article 17 of the Republic of Lithuania Law on Science and Studies
(wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 33, Paragraphs 1 and 2 of
Article 35 and Paragraph 4 of Article 46 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law;
– Article 39 of the Republic of Lithuania Law on Science and Studies (wording of 30 April
2009) is not in conflict with Paragraph 3 of Article 40 and Paragraph 1 of Article 42 of the
Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of
law;
– Paragraph 2 of Article 48 of the Republic of Lithuania Law on Science and Studies
(wording of 30 April 2009) is not in conflict with Paragraphs 1 and 3 of Article 40, Paragraph 1 of
Article 42 and Paragraphs 3 and 7 of Article 43 of the Constitution of the Republic of Lithuania and
the constitutional principle of a state under the rule of law;
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– Paragraph 3 of Article 66 of the Republic of Lithuania Law on Science and Studies
(wording of 30 April 2009) is not in conflict with Article 18, Paragraph 1 of Article 25, Paragraphs
1, 2 and 3 of Article 26, and Paragraphs 3 and 7 of Article 43 of the Constitution of the Republic of
Lithuania;
– Paragraph 2 of Article 69 and Paragraph 4 of Article 76 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article
41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under
the rule of law;
– Paragraphs 2, 5, 7 and 11 of Article 70 of the Republic of Lithuania Law on Science and
Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article 41 of the
Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of
law;
– Paragraphs 2, 4, 6 and 8 of Article 93 (“Implementation of the Law”), Article 94 (“Entry
into Force and Application of the Provisions of Chapter VII of the Law”) and Article 96
(“Reorganisation of State Schools of Higher Education from Budgetary Establishments into Public
Establishments”) of the Republic of Lithuania Law on Science and Studies (wording of 30 April
2009) are not in conflict with the constitutional principles of a state under the rule of law, legitimate
expectations, legal certainty and legal security, as well as whether Paragraph 4 of Article 96 of this
law is not in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania;
– Paragraph 5 of Article 94 of the Republic of Lithuania Law on Science and Studies
(wording of 30 April 2009) is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of
Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state
under the rule of law;
– Paragraph 5 of Article 95 of the Republic of Lithuania Law on Science and Studies
(wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 48 of the Constitution of
the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition
No. 1B-3/2010);
2) a petition of the Supreme Administrative Court of Lithuania, a petitioner, requesting to
investigate whether Paragraph 1 of Article 70 of the Republic of Lithuania Law on Science and
Studies (wording of 30 April 2009) is not in conflict with Paragraph 3 of Article 40 and Paragraph 3
of Article 41 of the Constitution of the Republic of Lithuania (petition No. 1B-153/2010).
By the Constitutional Court decision of 14 October 2011 the petitions of the petitioners were
joined into one case and it was given reference No. 13/2010-140/2010.
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The Constitutional Court
has established:
I
1. The petition (No. 1B-3/2010) of the group of Members of the Seimas, a petitioner, is
substantiated by the following arguments.
1.1. As a result of the fact that a subject has been allocated the funds from the state budget, a
duty should arise for such a subject to inform society of its financial, economic and scientific
activities as well as the use of its funds; therefore, a non-state school of higher education and a non-
state institute of scientific research, which would receive the funds of the state budget or the funds
of the state financed programmes, should also be obliged to account to society for their financial,
economic and scientific activities as well as the use of their funds—at least to the extent the said
funds have been used.
1.2. One may not set for educationists and other employees any requirements connected
with their convictions. The neutrality and secularity of the state may not serve as the grounds to
discriminate against the believers, to restrict their rights and freedoms; secularity of the state also
presupposes the non-interference of the state in the internal life of churches and religious
organisations. In secular state schools of higher education studies in theology and the scientific
degree of licentiate in theology are accessible to persons holding different religious convictions and
views and are not to be linked to any concrete religion. Recognising a scientific organisation as an
organisation of confessors of exclusively one religion violates the constitutional principles of a state
under the rule of law and equality of persons, while institutionalising a scientific organisation on the
grounds of a confession violates the constitutional principle of a state under the rule of law.
1.3. The petition of the group of Members of the Seimas, a petitioner, is essentially
substantiated by the provisions of the official constitutional doctrine, which construe the autonomy
and funding of schools of higher education and the criteria enabling to establish which persons are
regarded as being good at their studies. In the opinion of the petitioner, the most important
constitutional doctrinal provisions substantiating its petition are the following:
– according to the Constitution, the legislator, while not denying the principle of autonomy
of schools of higher education, may establish by means of laws the bases of organisational and
governance structure of schools of higher education;
– governance institutions of schools of higher education, which implement the functions of
self-government of the school of higher education, are formed by the schools of higher education
themselves; the ways and procedure of forming such institutions are established, according to the
bases that are entrenched in laws, by the schools of higher education in their regulations or statutes;
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– as a rule, the said institutions of schools of higher education are formed from members of
their academic community; autonomy of schools of higher education implies the right of schools of
higher education to provide that not only members of academic community of the particular school
of higher education could become members of such institution;
– representatives of institutions of the executive power of the state may be appointed to the
institutions of schools of higher education that perform functions of control and supervision and the
purpose of which is to ensure the responsibility and accountability of the school of higher education
to the public; the manner and procedure for forming such institutions may be established by the
legislator by means of laws, while not denying the principle of autonomy of schools of higher
education;
– the autonomy of schools of higher education entrenched in the Constitution implies that
state schools of higher education must be, for the purpose of performing their functions, allotted
state funds; these funds must be provided for in the state budget; an essential guarantee of autonomy
of state schools of higher education is such legal regulation when the law on the state budget
provides not only for the allocation of money for the higher education, but also for the funds for
each state school of higher education;
– free-of-charge education is guaranteed at state schools of higher education to the citizens
who study subsequent to the requisition by the state in order to meet the demand of specialists of
corresponding areas (fields), which is established by the state, providing their learning corresponds
to the criteria of good learning established by law;
– the criteria enabling to establish which students are good at their studies and which would,
consequently, as prescribed by the Constitution, have the right that their education in state schools
of higher education would be financed by the state, must be established only by law;
– higher education tuition of citizens who are good at their studies cannot be imposed on
these persons themselves in whatever form;
– the assessment of the results of learning (according to the criteria of good learning
established by law) of citizens who study in state schools of higher education subsequent to the
requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas
(fields), which is established by the state) must be conducted on a regular basis after checking the
knowledge of the studied subjects after each period of academic learning;
– the citizens who were admitted in state schools of higher education to study subsequent to
the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas
(fields), which is established by the state) must be guaranteed the education free of charge till the
first basic checking of the knowledge of the subjects studied by them;
– the Constitution does not contain a prohibition for the state to undertake, in accordance
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with its possibilities, higher financial obligations to students of schools of higher education; the
undertaking of higher financial obligations than implied in the constitutional provision stipulating
that citizens who are good at their studies shall be guaranteed education free of charge in state
schools of higher education should not deny the striving for a just and harmonious society enshrined
in the Constitution;
– upon assessing the needs of society and the state and the financial capabilities of the state,
in cases when specialists of particular areas (fields) cannot be prepared in state schools of higher
education due to objective circumstances, they may be prepared also in non-state schools of higher
education upon requisition of the state and from funds of the state budget; in such a case the state
must guarantee that the expenses of learning (studies) of such specialists will be covered by state
funds, provided that the learning of the said individuals meets the criteria of good learning
established by law.
2. The petition (No. 1B-153/2010) of the Supreme Administrative Court of Lithuania, a
petitioner, is substantiated by the following arguments.
2.1. By granting, in Paragraph 1 of Article 70 of the Law on Science and Studies, the
Ministry of Education and Science the powers to determine the procedure for setting up the queue
of persons who have completed a secondary education programme with the best results, the
legislator has entrenched only a model rather than final list of the criteria which are to be taken into
account when establishing the priority right to state-funded student places pursuant to study
programmes of the first cycle and integrated study programmes. The constitutional doctrine
formulated by the Constitutional Court regarding the construction of Paragraph 3 of Article 41 of
the Constitution consolidates the provision that the criteria enabling to establish which students are
regarded as being good at their studies and which would, consequently, as prescribed by the
Constitution, have the right that their education in state schools of higher education would be
financed by the state, should be established by law. In the opinion of the petitioner, such regulation
when a law does not provide for an essential condition for implementing the right to free-of-charge
education guaranteed in the Constitution, inter alia the criteria enabling to establish which students
are to be regarded as being good at their studies in terms of Paragraph 3 of Article 41 of the
Constitution, and when a law does not respectively commission the Ministry of Education and
Science to establish the said criteria, is in conflict with Paragraph 3 of Article 41 of the
Constitution.
2.2. Once the legislator chooses such a model of financing of studies from funds of the state
budget under which it commissions the Ministry of Education and Science to determine the
procedure for setting up a queue of persons who have completed a secondary education programme
with the best results, and at the same time does not establish in the law any clear criteria for setting
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up such a queue, nor the meaning of these criteria, a situation is possible that, after a school of
higher education implements, as guaranteed by the Constitution, the right to set up independently
the procedure for admission to study programmes of the first cycle and integrated study
programmes, inter alia the criteria for admission to studies and the meaning of these criteria, the
persons who have enrolled according to that established order with the best (better) results may be
not admitted to state-funded student places in study programmes of the first cycle and integrated
study programmes where the criteria established by the corresponding higher school will differ
from the principles and criteria established for the procedure for setting up a queue of persons who
have completed a secondary education programme with the best results. Thus, such a chosen model
of financing of studies in state schools of higher education from funds of the state budget creates
preconditions to maintain that state schools of higher education, while having a possibility of
admitting to studies and preparing as many specialists as necessary in order to meet the demand of
specialists of corresponding areas (fields), which is established by the state, and while seeking to
receive funding for preparing these specialists, must establish such criteria of admission to studies
and the meaning of these criteria that would not, in essence, differ from the criteria established by
the Ministry of Education and Science for setting up a queue of persons who have completed a
secondary education programme with the best results, as well as from the meaning of these criteria,
however, such regulation, in the opinion of the petitioner, is in conflict with Paragraph 3 of Article
40 of the Constitution.
II
1. In the course of the preparation of the case for the Constitutional Court hearing written
explanations were received from the representatives of the Seimas, the party concerned, who were
M. Adomėnas, a Member of the Seimas, and A. Skaistys, an Adviser at the Office of the Education,
Science and Culture Committee of the Office of the Seimas, wherein it is maintained that the
disputed provisions of the Law on Science and Studies are not in conflict with the Constitution. The
position of the representatives of the party concerned, M. Adomėnas and A. Skaistys, has been
substantiated by the following arguments.
1.1. The preamble of a law is not an obligatory part of the structure of a legal act; it does not
belong to the normative part of a law and does not create any legal consequences characteristic of
norms of law; in the preamble one indicates the objectives of and the reasons for the issuance of the
legal act, as well as the political will of the subject who has passed that legal act. Thus, the
provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of
them to do scientific work” of the Preamble to the Law on Science and Studies does not, in itself,
create any relations of a discriminatory nature, and the striving to ensure conditions for the best
ones to do scientific work is not elaborated on in the normative part of the law so that it would
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violate the right to freely choose a job or business, which is guaranteed in the Constitution. The aim
to ensure conditions for the best ones to do scientific work, which is pursued within the Lithuanian
policy on science and studies, is a positive one, as it is based on a legal presumption that the best
ones, while conducting scientific work, will efficiently contribute to the improvement of the quality
of science and studies, and in order that the profession of a scientist would be more prestigious, one
must create favourable financial and professional conditions, the career motivation system and
similar preconditions, which may not be of a discriminatory nature.
1.2. The provision of Paragraph 3 of Article 40 of the Constitution guarantees the autonomy
of schools of higher education. In the official constitutional doctrine, which construes the concept of
autonomy of schools of higher education, it is noted that the legislator, while not denying the
principle of autonomy of schools of higher education, may establish the bases of the organisational
and governance structure of schools of higher education, that governance institutions of schools of
higher education, which perform the functions of self-government of the school of higher education,
are formed by the schools of higher education themselves, and that representatives of institutions of
the executive power of the state may be appointed to the institutions of schools of higher education
that perform the functions of control and supervision.
Schools of higher education are directly connected with the state and the processes taking
place therein and in the whole Europe, therefore the concept of the autonomy granted to schools of
higher education may not imply the ignorance about or the dissociation from the said processes to
such an extent that it would be impossible to amend the legal regulation and that such legal
regulation would always remain the same, without taking account of the indicators of a
demographic and social situation. The autonomy of schools of higher education means that the state
institutions do not regulate the inner life of schools of higher education in a petty manner, and that
schools of higher education are provided with the means to efficiently respond to the changes taking
place in society, the state and the world.
1.3. In the official constitutional doctrine, which construes the concept of autonomy of
schools of higher education, it is noted that that governance institutions of schools of higher
education, which implement the functions of self-government of the school of higher education, are
formed by the schools of higher education themselves. Article 19 of the Law on Science and
Studies provides for the following system of institutions of a school of higher education: the
collegial governance bodies—the council and the senate, and a one-person governance body—the
rector.
Namely the system of institutions of a school of higher education, entrenched in Article 19
of the Law on Science and Studies, ensures the autonomy of a school of higher education. Under
the Law on Science and Studies, when forming the aforesaid system of institutions of a state school
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of higher education, the decisive word belongs to the community of the school of higher education
itself. The community of a school of higher education, exclusively, forms the senate of the school of
higher education and elects half of the members of the council of the school of higher education;
one member of the council is appointed by common agreement (i.e. that member may not be
appointed against the will of the community of the school of higher education), while the other
members of the council are proposed by legal and natural persons from the persons who do not
belong to the staff and students of the school of higher education—these latter members of the
council are approved by the Minister of Education and Science. The rector is elected by the council.
Under the quorum requirements established in the Law on Science and Studies, while electing the
rector and deciding the other most important questions ascribed to the competence of the council,
the academic community has a decisive vote, as without the assent of the members of the council
who have been elected by the academic community the said decisions may not be adopted. Such a
system is a guarantee of self-government and institutional balance in the governance of a school of
higher education.
Thus, the system of interaction of institutions of a state school of higher education, which is
established in the Law on Science and Studies, guarantees the essential participation of the
university community in the course of implementation of self-government of the school of higher
education and ensures the transparency of the university’s activity as well as its accountability to
the public.
1.4. When assessing the compliance of Item 2 of Paragraph 3 of Article 7 and Item 2 of
Paragraph 2 of Article 11 of the Law on Science and Studies with the Constitution, one should note
the official constitutional doctrinal provisions, formulated in the Constitutional Court ruling of 20
March 2008, that “while forming and executing the policy of higher education, the state must pay
heed to interests of schools of higher education—of both state and non-state schools of higher
education—since higher education, as well as, science in general, can foster and be developed only
without the state’s petty administration of scientific activity and teaching. <...> However, it needs to
be emphasised that funds allocated by the state to schools of higher education must be used
efficiently, by heeding the requirements of legal acts”. It needs to be noted that in its ruling of 5
February 2002 the Constitutional Court held that “A school of higher education which receives
funds from the state budget must account for proper use of the received funds, while it is within the
discretion of the legislator to establish by law the manner and means of control of the use of the
funds”.
While using the freedom of discretion, the legislator has established different legal
regulation with respect to state and non-state institutions of science and studies regarding the
information provided for founders of these institutions and the public about the financial, economic
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and scientific activity, the use of funds, and the findings of external quality assessment and
accreditation of study programmes in these institutions. By establishing different legal regulation,
the legislator does not deny the fact of control of the use of state budget funds as established in
accordance with the procedure set out in other laws.
1.5. According to the mission and objectives of an institute of scientific research, formulated
by the legislator, an institute of scientific research is not an institution of science and studies which
prepares scientists and specialists, since for the preparation of scientists and specialists university
studies are necessary, which may be provided not by any type of institution, but only by schools of
higher education—universities, certain part of teachers whereof are scientists or established artists.
Under the Law on Science and Studies, persons at doctoral studies are not employees, but students;
therefore, for their preparation one needs not only a corpus of scientific research, but also the
corresponding studies as well as the teachers who conduct doctoral studies.
1.6. The Centre for Quality Assessment in Higher Education is a non-typical budgetary
establishment, its activity has obvious specificity, due to which this establishment must be
independent. Seeking to ensure the best representation possible of public interests, the state also has
the right to involve, in the governance of an institution established by the state, the persons
delegated by non-state organisations. The Lithuanian Confederation of Industrialists, the Lithuanian
Chamber of Trade, Industry and Crafts, and the association “The Knowledge Economy Forum”
join, on the basis of associated membership, representatives of the labour market and
representatives of science into associations; in addition, these organisations have the reputation of
trusted partners who conduct expert assessment of institutions of education and science. Taking
account of the functions discharged by the Board of the Centre for Quality Assessment in Higher
Education, it is not possible to maintain that the board may influence the activity of the Centre for
Quality Assessment in Higher Education so that the prohibition against monopolisation of
production and the market or freedom of fair competition would be violated. On the contrary, the
involvement of non-state organisations in the governance of the Centre for Quality Assessment in
Higher Education is in conformity with the European good practice principles as well as with one of
the objectives of the Law on Science and Studies—to guarantee the quality of science and studies.
1.7. In assessing the constitutionality of Article 39 of the Law on Science and Studies, which
regulates the unity of science (arts) and studies, it needs to be noted that the Seimas, as an
institution forming the policy on higher education, has used its constitutional right to establish, by
law, certain standards of higher education. Science, by its nature, is international, therefore, it is
sought that Lithuanian schools of higher education would conform to the provisions of the
European research and higher education area, set out in the Magna Charta Universitatum, inter alia
the provisions consolidated therein, under which “teaching and research in universities must be
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inseparable if their tuition is not to lag behind changing needs, the demands of society, and
advances in scientific knowledge” and “recruitment of teachers, and regulation of their status, must
obey the principle that research is inseparable from teaching”.
1.8. The academic degree of licentiate in theology has been awarded in Lithuania (Kaunas
Vytautas Magnus University) as far back as from 1928. The licentiate is an academic qualification
degree of the second cycle, which is awarded to graduates of a school of higher education who have
completed continuing (graduate) studies (analogous to a master’s degree). The degree of licentiate
in theology is not directly and exceptionally linked to the training of the clergy, it is, both under the
Republic of Lithuania laws and canon law, also awarded to the laity and indicates not the
preparation to hold the office of a clergyman, but a special competence of a respective level. The
legitimisation of the title of a concrete degree should not be treated as a violation of autonomy of a
school of higher education, which then would be in conflict with the Constitution.
1.9. The Lithuanian Catholic Academy of Sciences is the oldest academic organisation in
Lithuania; it is the only institution that evidently attests to the continuity of non-institutional activity
of scientists, which was fostered in the pre-war independent state of Lithuania, among Lithuanian
émigrés, and in the restored Republic of Lithuania. As a result of historical circumstances, a very
small number of scientific unions in Lithuania have the tradition of long-term activity. Paragraph 3
of Article 66 of the Law on Science and Studies conveys the attitude of the Seimas towards the
recognition, continuity and nurturance of Lithuanian academic traditions, towards the assurance of
quality of scientific research and studies of all the areas and types and the assurance of the
continuity of activity of the Lithuanian Catholic Academy of Sciences. These provisions express the
striving to involve, more fully, the community of scientists in the processes of the formation of the
policy on science and studies, and to encourage them to act more actively.
1.10. By consolidating in Paragraph 2 of Article 69 of the Law on Science and Studies that
“State budget funds for studies shall not be appropriated for the branches of foreign schools of
higher education established in the Republic of Lithuania”, the Seimas has resolved to limit, by law,
additional financial liabilities and to create no possibilities for the branches of foreign schools of
higher education established in the Republic of Lithuania to acquire legitimate expectations to
receive the state budget funds allocated for the training (studies) of specialists of separate areas
(fields). However, under Paragraph 1 of Article 73 of the Law on Science and Studies, as regards
funding of target studies from funds of the state budget, the branches of foreign schools of higher
education established in the Republic of Lithuania may, by way of competition, compete alongside
state and non-state schools of higher education, as well.
2. In the constitutional justice case at issue written explanations were also received from the
representatives of the Seimas, the party concerned, who were G. Damijonaitis, an Adviser to the
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Minister of Education and Science, and T. Daukantas, Head of the Law Division of the Ministry of
Education and Science, wherein it is maintained that the disputed provisions of the Law on Science
and Studies are not in conflict with the Constitution. The position of G. Damijonaitis and T.
Daukantas, the representatives of the party concerned, has been substantiated by the following
arguments.
2.1. The comparative study on university autonomy across 26 European countries published
by the European University Association in 2011 shows that European universities themselves
regard autonomy as a relative quality which is realised to a certain extent. This study has also
indicated that Lithuanian schools of higher education are lacking most in academic autonomy,
whereas in terms of governance and finances, their situation, both de facto and de jure, meets the
average of Europe, or they have been even found to enjoy a more extensive than medium level of
autonomy. In addition, the said study maintains that external members are involved in making the
most important decisions of university governing bodies in most of the European universities. It
needs to be noted that the experience of the activity of Lithuanian state schools of higher education
in the period of several years also shows that the new governance system does not weaken
autonomy, but, on the contrary, it provides schools of higher education with more opportunities and
intellectual capacity to build their future in the conditions of dynamic changes and assume
responsibility for it. The said exhaustive study carried out by the authoritative institutions
unambiguously confirms that models of the governance of schools of higher education in Europe
are very various and changeable, and that the concept of autonomy is being modified, as both the
public itself and the perception in society of the mission of universities are also changing.
In almost all European countries institutions of higher education are undergoing reformation
for the purpose of creating new models of institutional governance. All institutions of higher
education in Europe have an executive body, generally the rector’s office, which is governed by the
rector, president or vice-rector—the executive manager of an institution. Most institutions of higher
education have a collegial academic body, generally called the senate, academic council or
academic board, which is responsible for education and research services provided by the
institution. There is a tendency in Europe to form advisory or supervisory bodies, which supervise
or control work, educational and financial activity, and which, for the most part or totally, are
formed from external stakeholders. In approximately one third of the states a supervisory body is at
the same time a decision-making body.
2.2. The Law on Science and Studies lays down such a model of funding of studies under
which the state, after assessing the demands in chosen study areas, finances the quality studies of
the students who have passed corresponding examinations with the best results. This model of
financing is in line with the fundamental constitutional value—the right of a person to choose
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responsibly, other important values and principles (those of non-discrimination, fair competition,
consumer rights, anti-monopolisation), and the following important goals of the state: to educate
responsible individuals capable of building their future and assuming responsibility for it, to fund
transparently institutions of science and studies, and to ensure competitiveness, modernisation,
efficiency of the institutions funded by the state, as well as the quality and accessibility of
education, flexibility of the education system, and response to demands.
The state, while applying the system of the study basket, satisfies the demand of the public
and the state to have, in accordance with the available financial possibilities, specialists of certain
areas (fields) who have received higher education. The Government of the Republic of Lithuania
allocates all the funds for studies according to study areas (humanities, social, physical, biomedical
and technological sciences, and arts).
2.3. Paragraph 1 of Article 70 of the Law on Science and Studies does not consolidate that
persons included in a queue of persons who have completed a secondary education programme with
the best results, as determined in accordance with the procedure established by the Ministry of
Education and Science, must be granted state funding, however, the said paragraph provides that
such persons, who are included in a queue of persons who have completed a secondary education
programme with the best results, are given priority to receive state funding. Thus, funding for
studies from the state budget may be allocated only for the person included in a queue of persons
who have completed a secondary education programme with the best results, and who meets a list
of competitive subjects according to study fields and the principles of composition of a competitive
grade, set by a school of higher education in accordance with Paragraph 1 of Article 52 of the Law
on Science and Studies, as well as a lowest passing entrance grade and other criteria assessed by the
students’ representation.
Prior to the entry into force of the Law on Science and Studies, state-funded student places
used to be distributed during the same year when the respective admission took place, but the
distribution of state-funded student places and the establishment of admission conditions for
enrolling persons were two separate processes. The Law on Science and Studies has consolidated a
possibility that the criteria of the formation of a queue of persons who have completed a secondary
education programme with the best results could differ from the admission conditions set by schools
of higher education themselves. Still there is also a possibility, which has been realised in Lithuania,
for the Ministry of Education and Science to choose, on the basis of the criteria for determining the
aforementioned queue, the admission conditions fixed by schools of higher education. In Lithuania
schools of higher education have managed to agree on common admission conditions. If they had
failed to reach such an agreement, the criteria for determining a queue of persons who have
completed a secondary education programme with the best results would have substantially differed
13
from the admission conditions of separate schools of higher education.
2.4. The recommendations by the Supervisor for Academic Ethics and Procedures reveal
that there exists a standard of academic ethics and procedures which is acceptable at the national
level. This standard means that the existence of common norms of academic ethics is being
recognised, therefore, no such situation is possible where a scientist, after moving from one
institution of science and studies to another, would be obliged to follow different standards of
academic ethics. A common standard of academic ethics and procedures is important not only to
institutions of science and studies, but also to expert institutions, which are commissioned to assess
the quality of scientific activity.
III
In the course of the preparation of the case for the Constitutional Court hearing, as regards
certain issues of this constitutional justice case, written explanations were received from Assoc.
Prof. Dr. Benas Ulevičius, Dean of the Faculty of Catholic Theology of Vytautas Magnus
University, Deividas Kriaučiūnas, Director General of the European Law Department under the
Ministry of Justice of the Republic of Lithuania, and Gintaras Steponavičius, Minister of Education
and Science of the Republic of Lithuania.
IV
1. At the Constitutional Court hearing, the representatives of a group of Members of the
Seimas, a petitioner, who were the Members of the Seimas—V. P. Andriukaitis, V. Gedvilas and J.
Sabatauskas, reiterated the arguments set forth in the petition of the petitioner and answered the
questions.
2. V. Stundys, Chairman of the Committee on Education, Science and Culture of the
Seimas, a representative of the Seimas, the party concerned, while submitting his explanations on
the compliance of the Law on Science and Studies with the Constitution, asserted that the disputed
provisions are not in conflict with the Constitution and substantiated his position by the following
arguments.
The Law on Science and Studies was drafted while taking account of several important
principles: state funds are following the student (student’s basket); the right of a school of higher
education to establish the number of students to be admitted; increase in accessibility of studies by
ensuring an effective loan system, by partial coverage of tuition fees, and by establishing students’
social grants. The Law on Science and Studies has developed the content and notion of autonomy of
a school of higher education: autonomy of schools of higher education includes freedom to
establish, by themselves, programmes of studies and content thereof, fields of scientific activities,
their internal structure, staff policy, as well as the right to dispose of the property that was acquired
14
by them or was entrusted by the state. Thus, the Law on Science and Studies has established a
special legal status of schools of higher education.
The Law on Science and Studies also seeks to achieve that the activity of schools of higher
education would be that of quality and that the schools themselves would be accountable to society.
The responsibility is related to assessment from outside, funding the higher education according to
the results, competition among schools of higher education and participation of social partners in
governance of such schools. This law has entrenched the reformed councils of schools of higher
education, these councils were granted the status of a strategic institution. The institution of the
supervisor of academic ethics and procedures is designated for securing the quality of science and
studies. Under this law, scientific activity is funded by applying the principle of competition, the
activity of societies and associations uniting scientists and students is promoted, such societies and
associations are drawn in the formation of the policy of science and studies.
By establishing a new procedure for formation the council of a state school of higher
education, one was attempting to make a balance in the proportion of its members appointed from
outside and from inside, and to define more precisely as to who can be a member of the council of a
state school of higher education. While seeking to diminish the possibility to violate autonomy of
schools of higher education as much as possible and to prevent politicians from participating in the
activity of the councils of a school of higher education, one has established clear criteria as well as
requirements for a member of the council of a school of higher education—he may not be a state
servant of political confidence. It was also sought to achieve that the Minister of Education and
Science would not exert a decisive influence but that he would have only an opportunity to choose
from the members submitted by the independent Council of Higher Education.
Since the concept of one’s being good at his studies often depends upon a lot of
circumstances, especially upon the culture of assessment in a school of higher education, upon the
nature of the programme of studies, it is rather difficult to compare as to what one’s being good at
his studies is, and what one’s being good at his studies according to separate programmes of studies
is. Therefore, the Law on Science and Studies has entrenched rotation—after two years of studies
the state funding is reassessed in essence: if the mean of the results of the studies during an
appropriate period is more than 20 per cent lower than the mean of the results of studies of an
appropriate study programme or course, the studying person loses his state-funded student place and
the one who is studying at his own expense may aspire to such a place. In addition, while seeking to
secure the accessibility of studies, it was established that up to 10 per cent of the students who are
good at their studies and whose student places are not funded by the state, may aspire to be
compensated for the fee paid for their tuition.
3. The representatives of the Seimas, the party concerned, who were M. Adomėnas, a
15
Member of the Seimas, and A. Skaistys, an Adviser at the Office of the Education, Science and
Culture Committee of the Office of the Seimas, reiterated the arguments set forth in their written
explanations, as well as answered the questions and gave additional explanations.
3.1. In its rulings the Constitutional Court has entrenched a traditional concept of autonomy
of schools of higher education, however, the tradition may be subject to change—in the European
higher education area such traditional autonomy is being reinterpreted by ensuring the compliance
of the higher education system with the interests of society. Autonomy of schools of higher
education must help seek to achieve that higher education would be that of quality and that schools
of higher education would be accountable to society: the state acts with regard of schools of higher
education both as the authority from which the academic community is independent, and as the
founder to which schools of higher education are accountable. The requirement for autonomy of
schools of higher education is not an end in itself, its purpose is to implement the public mission of
schools of higher education. It is noteworthy that the Law on Science and Studies seeks to
implement transparent mechanisms of accountability to society without violating academic freedom
at the same time.
3.2. The council of a state university is a governance institution through which society
expresses its interest which can be expressed so only in democratic states. Under the Law on
Science and Studies, the principles of formation of the council of a state university and the
mechanism of its functioning ensure inviolability of autonomy of a school of higher education and
non-interference with the life and activities of the academic community. The Law on Science and
Studies also allows to form active councils of state universities; the mechanism of adoption of
decisions by these councils is a transparent one.
3.3. In order to ensure the control and supervision of schools of higher education, the Law
on Science and Studies has strengthened the functions of the Centre for Quality Assessment in
Higher Education and entrenched the institution of the supervisor of academic ethics and
procedures, whose recommendations regarding the ethics provisions may not be deemed mandatory
for the schools of higher education.
3.4. In the area of the social relations in higher education and studies, the public and private
sectors must be adjusted. While taking account of the world tendency where the boundaries
between public and private higher education are disappearing, it is noteworthy that, in Lithuania, in
the area of higher education and studies, there could be, along with the state sector, a private sector
in higher education, which is more dynamic, which often meets concrete interests more efficiently,
and which reorients faster. Under the Law on Science and Studies, it is persons who are funded, but
not institutions of science and studies, thus, the non-state sector is funded insofar as it is related
with the choice by the students, i.e. with the implementation of a constitutional value—freedom of
16
choice by the person. Thus, the Law on Science and Studies promotes competition in higher
education and seeks to implement the standards of highest quality. It is important to note that the
accessibility of higher education to everyone according to his individual abilities does not mean at
all that higher education must be universal and that the standards diminishing the quality of higher
education should be established.
4. The representatives of the Seimas, the party concerned, who were G. Damijonaitis, an
Adviser to the Minister of Education and Science, and T. Daukantas, Head of the Law Division of
the Ministry of Education and Science, reiterated the arguments set forth in their written
explanations and answered the questions.
The Constitutional Court
holds that:
I
On the compliance of the provision “The Lithuanian policy on higher education and
research guarantees <…> favourable conditions for the best of them to do scientific work” of
the Preamble to the Law on Science and Studies with Paragraph 2 of Article 25 of the
Constitution, on the compliance of the same provision as well as Item 4 of Paragraph 1 of
Article 11 of the Law on Science and Studies with Paragraph 1 of Article 42, Paragraph 1 of
Article 46, Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a
state under the rule of law, on the compliance of Paragraph 3 of Article 8, Paragraph 3 of
Article 9, Article 39, and Paragraph 4 of Article 53 of the same law with Paragraph 3 of
Article 40 of the Constitution and the constitutional principle of a state under the rule of law,
and on the compliance of Article 39 of the same law with Paragraph 1 of Article 42 of the
Constitution.
1. A group of Members of the Seimas, a petitioner, has doubted whether the provision “The
Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do
scientific work” of the Preamble to the Law on Science and Studies (wording of 30 April 2009) is
not in conflict with Paragraph 2 of Article 25, Paragraph 1 of Article 42, Paragraph 1 of Article 46
and Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the
rule of law.
1.1. The petitioner has substantiated its doubts regarding the provision “The Lithuanian
policy on science and studies guarantees <...> conditions for the best of them to do scientific work”
of the Preamble to the Law on Science and Studies by the fact that, according to the petitioner,
scientific work can be done by those who feel calling for such an activity, who meet the
qualification requirements needed for scientific work, but not only by those who can be recognised
17
best to do scientific work.
1.2. The provision “The Lithuanian policy on science and studies guarantees <...> conditions
for the best of them to do scientific work”, which is being disputed by the petitioner, is entrenched
in the Preamble to the Law on Science and Studies; in the Preamble inter alia the purposes of the
law are established. It needs to be noted that the provisions of the preamble to this law are of
programmatic nature, in their context other provisions of this law are construed.
Thus, the provision (disputed by the petitioner) of the Preamble to the Law on Science and
Studies expresses the aspiration of the legislator to create the conditions where scientific work is
done by the persons best fit for such work, i.e. to create, by the legal regulation established in the
law, favourable conditions for the persons best fit for scientific work to choose this work, also, to
establish such requirements for screening which would allow to select those best fit to do this work.
This provision must be related first of all with the other provision “The Lithuanian policy on
science and studies guarantees the quality of science and studies” of the Preamble to the Law on
Science and Studies. The quality of science and studies would not be guaranteed if the conditions to
do scientific work were guaranteed to every person wishing to do this work regardless of his
abilities; the best quality of preparation of science and studies, inter alia the quality of preparation
of specialists and scientists, is possible only if the persons best fit for scientific work are selected
under procedure established by legal acts. The provision disputed by the petitioner is also to be
construed inter alia in the context of Item 2 of Paragraph 3 of Article 53 of the Law on Science and
Studies, in which the equal rights of the academic community to take part in competitions, as well
as Articles 58 and 59, in which the minimal qualification requirements are established for the
persons willing to work in the positions of teachers of schools of higher education and scientific
workers. When this provision is construed in this way, one is to draw a conclusion that namely
those persons who best meet the established qualification requirements for doing scientific work are
recognised as best fit to do scientific work and, due to this, under procedure established by legal
acts, they are selected or appointed to corresponding positions.
1.3. The provisions (specified by the petitioner) of the Constitution with which, according to
the petitioner, the provision “The Lithuanian policy on science and studies guarantees <...>
conditions for the best of them to do scientific work” of the Preamble to the Law on Science and
Studies is in conflict, are interrelated. In Paragraph 1 of Article 42 of the Constitution the principle
of academic freedom, or freedom of science, research and teaching, is entrenched; the constitutional
freedom of science and research also inter alia means that every person has the right to freely
decide by himself whether to engage in science and research, including the right to freely choose
the sphere of scientific research and methods of investigating particular subjects, to form his
scientific world-view (Constitutional Court decision of 28 October 2009). The constitutional
18
freedom of each human being to choose a job or business also implies the right to freely choose a
profession and acquire it (Constitutional Court ruling of 20 February 2008). Therefore, this freedom
entrenched in Paragraph 1 of Article 48 of the Constitution includes the human right to freely
decide himself whether to engage in science and research. On the other hand, the opportunity to
freely choose a job or business guaranteed in Paragraph 1 of Article 48 of the Constitution is related
to the provision of Paragraph 1 of Article 46 of the Constitution in which freedom of economic
activity and initiative of a person is entrenched (Constitutional Court ruling of 4 March 1999);
freedom of economic activity and initiative of a person implies his freedom to choose a job or
business.
Paragraph 1 of Article 42 of the Constitution is also related to Paragraphs 1 and 2 of Article
25 of the Constitution. In its ruling of 5 May 2007, the Constitutional Court held that the
constitutional freedom of science and research is inseparable from the freedom of having one’s own
convictions and expressing them, which is entrenched in Article 25 of the Constitution and which
implies among other things the freedom of a person to form his own convictions and to choose
values of world-view (Paragraph 1 of Article 25 of the Constitution), and from freedom of
information consolidated in the same article of the Constitution, which means that a person may not
be hindered from seeking, receiving and imparting information and ideas (Paragraph 2 of Article 25
of the Constitution).
1.4. The provision of Paragraph 1 of Article 42 of the Constitution must be construed inter
alia while taking account of the provision of Paragraph 3 of Article 41 of the Constitution which
entrenches the right of a human being to seek higher education according to his individual abilities
(Constitutional Court ruling of 20 February 2008).
In its ruling of 14 January 2002, the Constitutional Court inter alia held: “There has to be a
balance between the legitimate interests of a person and the needs of both the society and the state.
The financial possibilities of the state (including possibilities to fund higher education) are not and
cannot be unlimited. The constitutional provisions that higher education shall be available to
everyone according to their individual abilities cannot be interpreted as imposing a duty on the state
to ensure funding of any higher education for anyone capable of seeking it without proper
consideration of the needs and possibilities of the society and the state. The constitutional
provisions that higher education shall be available to everyone according to their individual abilities
cannot be interpreted in a way that would deny an individual’s constitutional right to seek higher
education according to his abilities even when the state does not finance his education because that
would exceed the needs and possibilities of the society and the state. The need of the society and the
state to have graduate specialists in various areas and the possibility to finance only a certain
number of specialists cannot be an obstacle for a person to seek higher education according to his
19
abilities not at the expense of the state even when this exceeds the needs and possibilities of the
society and the state.”
It needs to be noted that these provisions of the official constitutional doctrine are to be
applied mutatis mutandis in construing Paragraph 1 of Article 42 of the Constitution. It is not
allowed to construe the constitutional freedom of science and research as the one where the state
must, without taking account of the needs and possibilities of society and the state, guarantee the
conditions do scientific work for all persons willing to do such work; on the other hand, the needs
and possibilities of society and the state are not an obstacle for every human being willing to do
scientific work, to engage in science and research without state support.
1.5. Taking account of the arguments set forth, one is to draw a conclusion that the provision
“The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do
scientific work” of the Preamble to the Law on Science and Studies is not in conflict with Paragraph
2 of Article 25, Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48
of the Constitution and the constitutional principle of a state under the rule of law.
2. A group of Members of the Seimas, a petitioner, has doubted whether Item 4 of Paragraph
1 of Article 11 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 42,
Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the Constitution and the constitutional
principle of a state under the rule of law.
2.1. Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies prescribes:
“1. A scientific research institute shall have the right:
<...>
4) in conjunction with universities and in accordance with the procedure laid down by this
Law, to train scientists, to help in training specialists.”
2.2. The doubts of the petitioner regarding the conflict of Item 4 of Paragraph 1 of Article 11
of the Law on Science and Studies with the Constitution are substantiated by the arguments
whereby a scientific research institute has the right to train scientists and specialists not only in
conjunction with universities, but also independently or in conjunction with other scientific research
institutes of Lithuania or with scientific research institutes of other states.
2.3. It needs to be noted that the provisions of Paragraph 1 of Article 42 of the Constitution,
in which inter alia freedom of science and research is entrenched, is related with Paragraph 3 of
Article 40 of the Constitution, in which autonomy of schools of higher education is guaranteed: the
constitutional concept of freedom of science and research implies the professional independency of
the scientific community, which is inseparable from self-government of schools of higher
education, which is one of essential conditions for implementation of autonomy of schools of higher
education (Constitutional Court decision of 28 October 2009). Thus, autonomy of schools of higher
20
education inter alia encompasses academic autonomy.
In its ruling of 27 June 1994, the Constitutional Court held that the development of the
academic autonomy had always been determined by the understanding that science and teaching
may normally exist and induce progress only when they are free and independent. Thus appeared
the principle of academic freedom, which expressed the striving to protect the researchers’ and
teachers’ freedom of scientific thought and its expression from outward influence.
In this context it needs to be noted that the right of the state to regulate external affairs of the
school of higher education does not contradict the autonomy unless it impairs the freedom of
scientific and pedagogic activity of the school of higher education (Constitutional Court ruling of 27
June 1994 and decision 28 October 2009).
2.4. It also needs to be noted that the provision of the official constitutional doctrine that
autonomy of schools of higher education (which is granted to them under Paragraph 3 of Article 40
of the Constitution) includes their right to independently establish their study programmes, is to be
construed in the context of the constitutional obligation of the state to supervise the activity of
educational establishments and the constitutional obligation to secure that the level of provided
higher education, which is marked by corresponding qualification degrees, would comply with
certain uniform standards of the quality of higher education (Constitutional Court ruling of 20
February 2008).
It also needs to be noted that, in its rulings of 20 February 2008 and 20 March 2008, the
Constitutional Court held that the arising from the Constitution guarantee of recognition of the
higher education (profession) provided by legally operating schools of higher education implies the
powers of respective state institutions to control the quality of higher education and secure that the
level of the provided higher education, which is denoted by various qualification degrees, would
meet certain uniform standards of quality of higher education—both general standards and those
concretising them, those defining the requirements for certain areas of studies. Such standards must
be established by the state institutions which, within their competence, form the higher education
policy, and organise and implement the supervision of the activity of schools of higher education.
These provisions of the official constitutional doctrine are applicable mutatis mutandis also
to the legal regulation of activities of scientific research institutes, inter alia state scientific research
institutes.
2.5. In the context of the constitutional justice case at issue it needs to be noted that, under
the Constitution, while heeding autonomy of schools of higher education, the legislator has broad
discretion to choose and regulate a concrete model of organising science and studies, which meets
best the needs of development of the progress of the state and society in a particulate period of time.
However, having chosen a concrete model, the legislator must ensure uniform standards of higher
21
education rendered by institutions of science and studies, inter alia those of training of scientists
and specialists. It also needs to be noted that the Constitution, inter alia Paragraph 3 of Article 40
thereof, explicitly mentions only schools of higher education, however, it does not mean that the
legislator may not provide for other institutions of science and studies, inter alia scientific research
institutes, whose academic community is also guaranteed freedom science and research, i.e. an
essential element of academic autonomy, entrenched in Paragraph 1 of Article 42 of the
Constitution.
2.6. Under Paragraph 13 of Article 4 of the Law on Science and Studies, a scientific
research institute means an establishment the main activity of which is scientific research and
experimental (social, cultural) development.
Thus, the purpose of a scientific research institute is not conducting studies, but its main
activity is scientific research and experimental (social, cultural) development, meanwhile, the
competence of a school of higher education also encompasses conducting studies and scientific
research (Paragraph 3 of Article 6, Paragraph 1 of Article 8, Paragraph 1 of Article 9, and Article 35
of the Law on Science and Studies). Therefore, the differences in the legal regulation of the status
(inter alia the rights and purposes) of a scientific research institutes and a school of higher
education are objectively justifiable.
It needs to be noted that, according to the purposes of a scientific research institute, which
have been formulated to it by the legislator, a scientific research institute is not an establishment of
science and studies training scientists and specialists, since in order to train scientists and specialists
studies are necessary, which may be conducted only by schools of higher education. “Studies”
means studying done by a person, who has completed at least his secondary education, in a higher
education institution according to a certain study programme or when preparing a dissertation
(Paragraph 20 of Article 4 of the Law on Science and Studies).
Thus, the notion of studies encompasses the first and second cycles of studies (professional
bachelor’s, bachelor’s degree studies, and master’s degree studies), specified in Items 1 and 2 of
Paragraph 2 of Article 46 of the Law on Science and Studies, during which specialists are trained,
i.e. upon completing such studies, one is awarded the necessary professional qualification or the
scientific knowledge and analytical capabilities necessary for performing respective work are
acquired (Paragraphs 1 and 2 of Article 48 of the Law on Science and Studies), as well as the third
cycle of studies specified in Item 3 of Paragraph 2 of Article 46 of the Law on Science and Studies,
i.e. the doctoral studies the purpose of which is to prepare scientists who would be able to
independently conduct research and experimental (social, cultural) development work, and to solve
scientific problems (Paragraph 5 of Article 48 of the Law on Science and Studies). Carrying out
studies is one of the objectives of a university and a college (Item 1 of Paragraph 2 of Article 8,
22
Item 1 Paragraph 2 of Article 9 of the Law on Science and Studies), whereas training scientists is
one of the objectives of a university (Item 2 of Paragraph 2 of Article 8 of the Law on Science and
Studies). Thus, only universities and colleges can organise and carry out the studies necessary for
training specialists, whereas only universities can organise and carry out the doctoral studies.
2.7. It needs to be noted that with regard to schools of higher education and scientific
research institutes inter alia Article 53 of the Law on Science and Studies is applicable, in which
the academic community of institutions of science and studies and the academic freedom
guaranteed to it are defined. Under Paragraph 1 of this article, the academic community shall
consist of students, the teaching staff, scientific workers, other researchers, and professors emeritus
of institutions of science and studies.
Thus, academic freedom, which is inter alia defined in Paragraph 2 of Article 53 of the Law
on Science and Studies, which encompasses freedom of thought, freedom of expression, freedom to
choose methods of and access to research (artistic) and pedagogical activities, which is in
conformity with the accepted principles of ethics, protection against restrictions and sanctions for
making public the results of one’s research, and for the manifestation of one’s beliefs, with the
exception of the cases when the published information is a state or official secret and/or is in
violation of laws of the Republic of Lithuania, is guaranteed to members of the academic
community of scientific research institutes as well as members of the academic community of
schools of higher education; these members are also guaranteed the rights of academic community
(the rights of creative and intellectual work, equal rights to take part in competitions, objective and
open reviewing of scientific works) specified in Paragraph 3 of the same article.
2.8. Summing up the legal regulation of institutions of science and studies, which is
established in the Law on Science and Studies, it needs to be held that the legislator has chosen the
model of organising science and studies whereby inter alia:
– there are two groups of institutions of science and studies: schools of higher education and
scientific research institutes (Article 5 of the Law on Science and Studies);
– the differences of the legal regulation of the status, inter alia the rights and objectives, of
these two groups are objectively justified, since they are related with different purpose of schools of
higher education and scientific research institutes: carrying out studies and scientific research are
ascribed to the competence of schools of higher education; the main activity of scientific research
institutes is not carrying out studies, but scientific research and experimental (social, cultural)
development;
– studies are a component part of training scientists and specialists;
– the academic communities of both groups of institutions of science and studies are
guaranteed inter alia freedom of science and research, which is an essential element of academic
23
autonomy.
2.9. It has been mentioned that, under the Constitution, while heeding autonomy of schools
of higher education, the legislator has broad discretion to choose and regulate a concrete model of
organising science and studies, which meets best the needs of development of the progress of the
state and society in a particulate period of time; having chosen a concrete model, the legislator must
ensure uniform standards of higher education rendered by institutions of science and studies, inter
alia those of training of scientists and specialists.
It has also been mentioned that, in the Law on Science and Studies, the legislator established
the model of organising science and studies whereby studies are a component part of training
scientists and specialists and there are two groups of institutions of science and studies: schools of
higher education and scientific research institutes; carrying out studies and scientific research are
ascribed to the competence of schools of higher education, whereas the main activity of scientific
research institutes is not carrying out studies, but scientific research and experimental (social,
cultural) development. It has also been mentioned that the academic communities of both groups of
institutions of science and studies are guaranteed inter alia freedom of science and research, which
is an essential element of academic autonomy.
Thus, one is to draw a conclusion that if the legislator chose such a model of organisation of
science and studies, in which scientific research institutes, which do not organise and carry out
studies, are allowed to train scientists and specialists without schools of higher education, one
would create no preconditions for ensuring the uniform standards of higher education provided by
institutions of science and studies, inter alia those of training scientists and specialists.
2.10. Taking account of the arguments set forth, one is to draw a conclusion that Item 4 of
Paragraph 1 of Article 11 of the Law on Science and Studies is not in conflict with Paragraph 1 of
Article 42 of the Constitution.
2.11. It needs to be noted that the other provisions of the Constitution specified by the
petitioner, i.e. the provisions with which, according to the petitioner, the provision of Item 4 of
Paragraph 1 of Article 11 of the Law on Science and Studies is in conflict, are related with
Paragraph 1 of Article 42 of the Constitution, in which the principle of academic freedom, or
freedom of science, research, and teaching, is entrenched. As mentioned, the freedom of each
human being to choose a job or business, which is entrenched in Paragraph 1 of Article 48 of the
Constitution, also implies the right to freely choose a profession and acquire it; this freedom
includes the human right to freely decide himself whether to engage in science and research; the
opportunity to freely choose a job or business guaranteed in Paragraph 1 of Article 48 of the
Constitution is related to the provision of Paragraph 1 of Article 46 of the Constitution in which
freedom of economic activity and initiative of a person is entrenched: freedom of economic activity
24
and initiative of a person implies his freedom to choose a job or business.
While taking account of this, one is to draw a conclusion that Item 4 of Paragraph 1 of
Article 11 of the Law on Science and Studies is also not in conflict with Paragraph 1 of Article 46
and Paragraph 1 of Article 48 of the Constitution as well as with the constitutional principle of a
state under the rule of law.
3. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 3 of
Article 8, Paragraph 3 of Article 9 of the Law on Science and Studies are not in conflict with
Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the
rule of law.
3.1. Paragraph 2 of Article 8 of the Law on Science and Studies provides:
“More than half of the teaching staff of a university must be scientists and/or established
artists.”
Paragraph 3 of Article 9 of the Law on Science and Studies provides:
“More than a half of the teaching staff of a college must have at least three-year practical
work experience in the sphere of a subject they teach. The qualification in the sphere of a taught
subject must be improved in accordance with the procedure laid down by the college. Subjects
which must be taught at colleges by the teaching staff members with a scientific degree shall be
determined by descriptions of a study field, a set of study fields or a study area.”
3.2. In Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Education and
Science the same requirements are established for the teaching staff of schools of higher education:
in Paragraph 3 of Article 8—to the teaching staff of all universities, whereas in Paragraph 3 of
Article 9—to the teaching staff of all colleges. “Teachers” means persons who educate and teach
students and learners in a higher education institution (Paragraph 7 of Article 4 of the Law on
Science and Studies). Thus, the requirements established in Paragraph 3 of Article 8 and Paragraph
3 of Article 9 of the Law on Science and Studies are related to the quality of education and teaching
in a school of higher education.
“Scientist” means a researcher who has a scientific degree (Paragraph 12 of Article 4 of the
Law on Science and Studies). “Established artist” means a creator or a performer of artistic works
whose creative activities are defined by the works which are especially significant for art and
culture and have been implemented in Lithuania or/and abroad, gained a wide recognition of the
public and art specialists, acknowledged with prestigious international or national prizes and other
high awards, or/and who has educated distinguished artists and meets the requirements set by a
higher education institution in which he seeks to hold or already holds a position (Paragraph 17 of
Article 4 of the Law on Science and Studies). Thus, the disputed provision of Paragraph 3 of Article
8 of the Law on Science and Studies is the uniform requirement for the quality of the teaching staff
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of all universities: more than half of the teachers, who educate and teach students and learners in
universities, must be researchers with a scientific degree and/or creators or performers of artistic
works whose creative activities are defined by the works which are especially significant for art and
culture and/or who have educated distinguished artists.
The uniform requirement for the quality of the teaching staff of colleges is at least three-year
practical work experience in the sphere of a subject they teach. This requirement must be met by
more than half of the teaching staff of colleges.
3.3. The petitioner is maintaining that the legal regulation established in Paragraph 3 of
Article 8 and Paragraph 3 of Article 9 of the Law on Science and Studies violates autonomy of
schools of higher education and the Constitutional principle of a state under the rule of law.
3.4. It has been mentioned that autonomy of schools of higher education (which is granted to
them under Paragraph 3 of Article 40 of the Constitution) is to be construed in the context of the
constitutional obligation of the state to supervise the activity of educational establishments and the
constitutional obligation to secure that the level of provided higher education, which is marked by
corresponding qualification degrees, would comply with certain uniform standards of the quality of
higher education. It has also been mentioned that the arising from the Constitution guarantee of
recognition of the higher education (profession) provided by legally operating schools of higher
education implies the powers of respective state institutions to control the quality of higher
education and secure that the level of the provided higher education, which is denoted by various
qualification degrees, would meet certain uniform standards of quality of higher education—both
general standards and those concretising them, i.e. those defining the requirements for certain areas
of studies. Such standards must be established by the state institutions which, within their
competence, form the higher education policy, and organise and implement the supervision of the
activity of schools of higher education.
In its ruling of 13 June 2000, the Constitutional Court noted that supervision of activities of
establishments of teaching and education includes the supervision of control how the Constitution
and laws are observed; for this purpose, the state (its institutions) may resort to various ways and
forms of control established by laws. By the state supervision of activities of establishments of
teaching and education equal observance of the standards of education and learning is ensured, and
the compliance of contents and level of education and teaching with the qualification recognised by
the state is guaranteed.
Thus, under the Constitution, the right of the state to establish the quality requirements for
higher education, inter alia those related with the qualification of teachers, does not deny per se
autonomy of schools of higher education, however, in the course of implementing this right one
must heed the imperatives arising from the Constitution, inter alia the constitutional principles of
26
proportionality and reasonableness, and the principle lex non cogit ad impossibilia (it is not allowed
that legal acts demand impossible things).
3.5. It has been mentioned that in Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of
the Law on Science and Studies certain uniform quality standards for higher education—
requirements for university and college teachers—are established. It has also been mentioned that,
under the Constitution, the right of the state to establish the quality requirements for higher
education, inter alia those related with the qualification of teachers, does not deny per se autonomy
of schools of higher education. Thus, the legal regulation of Paragraph 3 of Article 8 and Paragraph
3 of Article 9 of the Law on Science and Studies does not deny autonomy of schools of higher
education (inter alia academic autonomy implying freedom of scientific and pedagogical activity),
but it seeks to secure the quality of higher education provided by schools of higher education. In
addition, there are no grounds to assert that the disputed legal regulation violates the imperatives
arising from the Constitution, inter alia the constitutional principles of proportionality and
reasonableness as well as the principle lex non cogit ad impossibilia.
3.6. Taking account of the arguments set forth it needs to be held that Paragraph 3 of Article
8 and Paragraph 3 of Article 9 of the Law on Science and Studies are not in conflict with Paragraph
3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.
4. The group of Members of the Seimas, a petitioner, has doubted whether Article 39 of the
Law on Science and Studies is not in conflict with Paragraph 3 of Article 40, Paragraph 1 of Article
42 of the Constitution and the constitutional principle of a state under the rule of law.
4.1. Article 39 of the Law on Science and Studies prescribes:
“1. Higher education institutions must ensure the unity of scientific (artistic) activities and
studies.
2. The unity of scientific (artistic) activities and studies at universities shall be ensured by
the participation of teaching staff and students in scientific research and experimental (social,
cultural) development (artistic activities), participation of scientific (art) workers in the study
process, conveyance of scientific knowledge and scientific (artistic) work skills in study
programmes of the second cycle and doctoral studies, commissioned scientific and experimental
(social, cultural) development (artistic) works carried out at universities for business, non-state and
public sector. Conducting of studies of the second cycle shall be related to the results of scientific
(artistic) activities carried out at a university. Scientific research (artistic) activities shall be
mandatory for students of the third cycle.
3. The unity of higher education and research at colleges shall be ensured through a close
contact with the practice—participation of teaching staff and students in applied scientific research
and experimental (social, cultural) development works commissioned by business, industrial and
27
other organisations, at regional development projects, in consulting activities.”
4.2. Article 39 of the Law on Science and Studies establishes and regulates the principle of
unity of scientific (artistic) activities and studies in schools of higher education. In universities the
implementation of this principle is ensured by the participation of teaching staff and students in
scientific research and experimental (social, cultural) development (artistic activities), participation
of scientific (art) workers in the study process, by conveying scientific knowledge and scientific
(artistic) work skills in study programmes of the second cycle and doctoral studies, by carrying out
commissioned scientific research and experimental (social, cultural) development (artistic) works
carried out at universities for business, non-state and public sector, also, this principle is ensured by
relating the conduct of studies of the second cycle to the results of scientific (artistic) activities
carried out at a university, and by carrying out, in a mandatory manner, scientific research (artistic)
activities by students of the third cycle. At colleges this principle is ensured through a close contact
with the practice—participation of teaching staff and students in applied scientific research and
experimental (social, cultural) development works commissioned by business, industrial and other
organisations, at regional development projects, and in consulting activities. Thus, while
participating in scientific (artistic) activities and in the study process, teachers of schools of higher
education can apply their theoretical knowledge in practice and impart this knowledge to students,
whereas students can gain the theoretical and practical knowledge necessary for the sought
professional qualification.
4.3. In this context it needs to be noted that the principle of science and teaching is
entrenched in the Magna Charta Universitatum. It proclaims that teaching and research in
universities must be inseparable if their tuition is not to lag behind changing needs, the demands of
society, and advances in scientific knowledge. The same charter points out that recruitment of
teachers, and regulation of their status, must obey the principle that research is inseparable from
teaching.
4.4. Thus, Article 39 of the Law on Science and Studies, wherein the principle of unity of
science (art) and studies is entrenched and implementation thereof is regulated, is designed for
ensuring the tight link between the scientific research work and the teaching process, which is one
of the preconditions for guaranteeing the quality of higher education. Such a link is necessary so
that the education provided by schools of higher education would be in conformity with changing
needs of progressive development of the state and society.
4.5. The petitioner has substantiated its doubts regarding the compliance of Article 39 of the
Law on Science and Studies by inter alia the provisions of the official constitutional doctrine
formulated in the Constitutional Court ruling of 5 May 2007 whereby, under the Constitution, no
scientific views may be thrust upon a person, he may not be forced to choose a certain sphere of
28
scientific research or not be permitted to choose it (save the exceptions stemming from the
Constitution), he may not be forced to perform certain scientific research or be prohibited from
performing certain scientific research (save the exceptions stemming from the Constitution), and to
publish or not to publish results of the performed scientific research; this is a matter of the
discretion of the person and his free choice.
4.6. Paragraph 3 of Article 40 of the Constitution provides: “Schools of higher education
shall be granted autonomy.” It has been mentioned that this provision is related to the provision of
Paragraph 1 of Article 42 of the Constitution in which freedom of science and research is
entrenched. The autonomy of schools of higher education inter alia encompasses academic
autonomy.
It has also been mentioned that autonomy of schools of higher education is to be construed
in the context of the constitutional obligation of the state to supervise the activity of educational
establishments and the constitutional obligation to secure that the level of provided higher
education, which is marked by corresponding qualification degrees, would comply with certain
uniform standards of the quality of higher education; the arising from the Constitution guarantee of
recognition of the higher education (profession) provided by legally operating schools of higher
education implies the powers of respective state institutions to control the quality of higher
education and secure that the level of the provided higher education, which is denoted by various
qualification degrees, would meet certain uniform standards of quality of higher education—both
general standards and those concretising them, i.e. those defining the requirements for certain areas
of studies. Such standards must be established by the state institutions which, within their
competence, form the higher education policy, and organise and implement the supervision of the
activity of schools of higher education.
It needs to be noted that also the legislator must create preconditions to ensure the quality of
higher education. In its ruling of 20 February 2008, the Constitutional Court held that the standards
of quality of higher education which must be met by a person aspiring to hold a certain position or
to be engaged in a certain professional activity must be established by the law.
In this context it also needs to be noted that, in its ruling of 20 March 2008, the
Constitutional Court held that teaching and scientific activity are a special activity which requires
creativity; such activity is not similar to other types of professional activities and it is impossible to
liken it to those other types of activities. Studies do not mean only work in lecture rooms; a very
important part of the qualitative, thus, creative, work time of a teacher of a school of higher
education is given for preparation for classes with the students, for guiding the students in their
independent studies, for heading scientific activities, for professional communication with other
scientists and researchers etc.
29
4.7. It has been mentioned that Article 39 of the Law on Science and Studies, wherein the
principle of unity of science (art) and studies is entrenched and implementation thereof is regulated,
is designed for ensuring the tight link between the scientific research work and the teaching process,
which is one of the preconditions for guaranteeing the quality of higher education; such a link is
necessary so that the education provided by schools of higher education would be in conformity
with changing needs of progressive development of the state and society.
Thus, by such legal regulation the legislator implements the powers granted to it by the
Constitution to create preconditions to ensure the quality of higher education, inter alia to guarantee
that the level of higher education provided by schools of higher education, marked by
corresponding qualification degrees, will meet certain uniform standards of higher education.
Without establishing and implementing the principle of unity of scientific (artistic) activity and
studies, one would not ensure the necessary standards of higher education, i.e. schools of higher
education would not prepare specialists who meet the standards of higher education applied to those
wishing to take a certain position or engage in a certain professional activity, also, one would not
reach the other objectives of schools of higher education established in Paragraph 2 of Article 8 of
the Law on Science and Studies (inter alia objectives of the university to carry out studies which
provide to a person the university higher education and a higher education qualification based on
scientific research and corresponding to the modern level of knowledge and technologies, develop a
thoroughly educated, ethically responsible, creative and entrepreneurial person, to develop society
receptive to education, sciences, arts and culture, which is able to effectively make use of science
and compete in the market of high technologies, products and services), and Paragraph 2 of Article
9 thereof (inter alia objectives of colleges to carry out studies which provide to a person the college
higher education and a higher education qualification satisfying the needs of the State, society and
economy of Lithuania, and conform to the level of science and latest technologies, to create
conditions for persons to improve their acquired knowledge and skills, to develop society receptive
to education and culture, which is able to work under the conditions of rapid technology change).
Alongside, the provisions of Article 39 of the Law on Science and Studies do not thrust upon
anyone any scientific views, they do not force anyone to choose a certain sphere of scientific
research or prohibit from choosing it, they do not force anyone to perform certain scientific research
or prohibit from performing certain scientific research, they do not violate autonomy of schools of
higher education.
4.8. Taking account of the arguments set forth, one is to draw a conclusion that Article 39 of
the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40, Paragraph 1 of
Article 42 of the Constitution and the constitutional principle of a state under the rule of law.
5. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 4 of
30
Article 53 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
5.1. Paragraph 4 of Article 53 of the Law on Science and Studies provides:
“The academic community shall make use of the academic freedom and acts in compliance
with the Code of Academic Ethics, which is prepared and approved by science and studies
institutions in accordance with the recommendations of the supervisor of academic ethics and
procedures.”
Thus, the Code of Academic Ethics, in compliance with which the academic community
acts, is prepared and approved in accordance with the recommendations of the supervisor of
academic ethics and procedures. Article 18 of the Law on Science and Studies provides that the
supervisor of academic ethics and procedures shall be a state official who examines complaints and
initiates investigation regarding the violation of academic ethics and procedures (Paragraph 1), and
that the Seimas shall appoint the supervisor for the term of five years on the recommendation of the
Research Council of Lithuania (Paragraph 2).
While discharging his functions, the supervisor of academic ethics and procedures has the
right inter alia to inform institutions of science and studies and the Ministry of Education and
Science about the persons who have violated the academic ethics and procedures, to recommend the
institutions of science and studies to revoke the decision taken on the basis of the documents
regulating the academic ethics and procedures, to recommend to an employee to refuse participating
in an ongoing project of research and experimental (social, cultural) development, to inform an
institution responsible for a specific sphere about the persons (authors) who have suffered from
violations of the academic ethics, to make public the cases about the violation of academic ethics
and procedures (Paragraph 12 of Article 18 of the Law on Science and Studies). Thus, while
implementing these powers, the supervisor of academic ethics and procedures contributes to the
improvement of standards of academic ethics and, alongside, to the quality of higher education. In
this context it needs to be mentioned that, under Sub-item 6 of Item 12 of the Regulations for the
Service of the Supervisor of Academic Ethics and Procedures, approved by Seimas Resolution No.
XI-1583 “On Founding the Service of the Supervisor of Academic Ethics and Procedures of the
Republic of Lithuania and on Approving the Regulations for the Service of the Supervisor of
Academic Ethics and Procedures of the Republic of Lithuania” of 15 September 2011 (which was
adopted while invoking Paragraph 14 of Article 18 of the Law on Science and Studies), one of the
tasks is the supervisor of academic ethics and procedures is contribution to the quality of science
and studies while fostering the principles of academic responsibility and ethical scientific practices,
while applying preventive measures against plagiarism, illegal copying or other illegal use of results
of intellectual property created by other persons, as well as against forging, falsifying or
31
manipulating scientific research data.
While summing up the legal regulation established in Paragraph 4 of Article 53 of the Law
on Science and Studies, it needs to be noted that recommendations of the supervisor of academic
ethics and procedures regarding the Code of Academic Ethics prepared and approved by the
institution of science and studies reveals what is the recommended standard acceptable to the
academic community of all institutions of science and studies. While taking account of the
recommendations of the supervisor of academic ethics and procedures, as well as of the specificity
of activity of a respective academic community and of the traditions of good academic practice,
each institution of science and studies (a school of higher education or an institute of scientific
research) prepares and approves its code of academic ethics.
5.2. The doubts of the petitioner regarding the compliance of Paragraph 4 of Article 53 of
the Law on Science and Studies with the Constitution are substantiated by the fact that, according to
the petitioner, the supervisor of academic ethics and procedures, while being a state official
appointed by the Seimas, has a possibility to violate autonomy of schools of higher education, when
he is submitting recommendations regarding the Code of Academic Ethics.
5.3. The autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of
the Constitution implies academic and institutional autonomy. In its ruling of 27 June 1994, the
Constitutional Court, while construing the provision of Paragraph 3 of Article 40 of the
Constitution, whereby schools of higher education shall be granted autonomy, held that,
historically, the idea of the autonomy of the school of higher education came into being in the
Middle Ages, when universities originated as establishments of science and studies. The autonomy
meant that the university, to a certain extent, was independent from the state, was striving to
dissociate itself from the influence of political power, to create an independent system of regulation
of internal activities within the school of higher education. The purpose of such dissociation from
the state power was to safeguard the freedom of science, research and teaching, to protect
researchers and professors from political influence. The development of the academic autonomy has
always been determined by the understanding that science and teaching may normally exist and
induce progress only when they are free and independent. Thus appeared the principle of academic
freedom, which expressed the striving to protect the researchers’ and teachers’ freedom of scientific
thought and its expression from outward influence. Traditionally, the autonomy of the school of
higher education is conceived as the right to independently determine and establish in the
regulations or statute the organisational and governance structure, relations with other partners, the
procedure of research and studies, study programmes and the procedure of student enrolment, to
solve other related questions, to use the property given over by the state and other acquired
property, to possess the territory, buildings and other property allotted for the needs of research and
32
studies, and to have the guarantee of inviolability. For this purpose, the school of higher education
is guaranteed the institutional autonomy, i.e. a certain status, which means that there are certain
spheres of activities independent from the control of the executive power (Constitutional Court
rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008, 20 March 2008,
decision of 28 October 2009).
On the other hand, the interests of schools of higher education and those of society must be
adjusted; autonomy of schools of higher education must be coordinated with their duty to observe
the Constitution and laws and with responsibility and accountability to society (Constitutional Court
rulings of 5 February 2002 and 20 March 2008). Granting autonomy to schools of higher education
does not relieve the state from its constitutional obligation to secure the efficiency of the system of
higher education; therefore, autonomy of schools of higher education does not mean that the
activity of such schools cannot be subject to state control; quite to the contrary, this activity, since it
is related inter alia with the implementation of human rights and freedoms, as well as with the use
of funds of the state budget, must be subject to regulation and supervision; such a conclusion
follows also from the provision of Paragraph 4 of Article 40 of the Constitution whereby the state
shall supervise the activities of establishments of teaching and education; however, the right of the
state to regulate external relations of schools of higher education may not limit the freedom of
scientific and educational activity of schools of higher education (Constitutional Court rulings of 27
June 1994, 5 February 2002, 20 February 2008, and 20 March 2008, decision of 28 October 2009).
In the constitutional justice case at issue it has been mentioned that supervision of activities
of establishments of teaching and education includes the supervision of control how the
Constitution and laws are observed; for this purpose, the state (its institutions) may resort to various
ways and forms of control established by laws. By the state supervision of activities of
establishments of teaching and education equal observance of the standards of education and
learning is ensured, and the compliance of contents and level of education and teaching with the
qualification recognised by the state is guaranteed (Constitutional Court ruling of 13 June 2000).
In the constitutional justice case at issue it has also been held that the right of the state to
establish the quality requirements for higher education per se does not deny the autonomy of
schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution. It needs to
be noted that the quality of higher education is related inter alia to heeding the norms of academic
ethics while pursuing activities of science and studies. Therefore, while seeking to ensure inter alia
the quality of higher education, the state may establish recommended standards of academic ethics
and procedures.
5.4. It has been mentioned that the recommendations of the supervisor of academic ethics
and procedures mentioned in Paragraph 4 of Article 53 of the Law on Science and Studies, whereby
33
institutions of science and studies prepare and approve their codes of academic ethics, disclose the
recommended standard acceptable to the academic community of all institutions of science and
studies; in addition, while taking account of the recommendations of the supervisor of academic
ethics and procedures, of the specificity of activity of the academic community and of the traditions
of good academic practice, each institution of science and studies (a school of higher education or
an institute of scientific research) prepares and approves its code of academic ethics.
It has also been mentioned that the right of the state to establish the quality requirements for
higher education, inter alia those related with the heeding the norms of academic ethics, per se does
not deny autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the
Constitution; while seeking to ensure inter alia the quality of higher education, the state may
establish recommendable standards of academic ethics and procedures.
5.5. Taking account of the arguments set forth it needs to be held that Paragraph 4 of Article
53 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
II
On the compliance of the provision of Paragraph 4 of Article 6 and Paragraph 1 of
Article 8 of the Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution
and the constitutional principle of a state under the rule of law.
1. The group of Members of the Seimas, a petitioner, has doubted whether the provision “A
state school of higher education shall be a public legal person functioning as a public establishment,
possessing the autonomy guaranteed by the Constitution of the Republic of Lithuania, and the
special status defined by this and other laws” of Paragraph 4 of Article 6 of the Law on Science and
Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional
principle of a state under the rule of law.
The group of Members of the Seimas, a petitioner, has also doubted whether Paragraph 1 of
Article 8 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
Paragraph 1 of Article 8 of the Law on Science and Studies provides:
“The university shall carry out university studies, conduct scientific research, experimental
(social, cultural) development and/or develop high-level professional art. The name of a school of
higher education carrying out this activity must contain the word ‘university’ or ‘academy’, or
‘seminary’.”
It needs to be mentioned that the university is one of the two types of schools of higher
education (Paragraph 1 of Article 6 of the Law on Science and Studies). Thus, it is clear from the
arguments of the petitioner that it is disputing the provision of Paragraph 1 of Article 8 of the Law
34
on Science and Studies inasmuch as it is established therein that the name of a school of higher
education of the university type must contain the word “university” or “academy”, or “seminary”.
2. The provision (which is being disputed by the petitioner) of Paragraph 4 of Article 6 of
the Law on Science and Studies has entrenched the sole legal form of a state school of higher
education as a public legal person, which is a public establishment.
Under Paragraph 1 of Article 2 of the Republic of Lithuania Law on Public Establishments,
a public establishment shall be a non-profit public legal person of limited civil liability founded
according to this law and other laws, the aim of which is to satisfy public interests by carrying out
the educational, training and scientific, cultural, health care, environmental protection, sports
development, social or legal aid provision as well as other activities useful to the public. In this
context it needs to be noted that a state school of higher education, whose founder is the state,
satisfies the public interests while carrying out the educational, training, scientific and cultural
activities (under Paragraph 3 of Article 6 of the Law on Science and Studies, the state school of
higher education shall organize and carry out studies, award higher education qualifications,
conduct scientific research, pursue experimental (social, cultural) development and/or artistic
activity, apply results of the research and experimental (social, cultural) development, accumulate
scientific knowledge, develop creative activity and culture, foster values and traditions of the
academic community).
Alongside, Paragraph 4 of Article 6 of the Law on Science and Studies prescribes that the
state school of higher education possesses the autonomy guaranteed by the Constitution of the
Republic of Lithuania, and the special status defined by this and other laws. Thus the legislator has
recognised the autonomy (guaranteed by the Constitution) to the state school of higher education
and established the special legal status related to such autonomy; this legal status is concretised in
other provisions of the Law on Science and Studies, inter alia in the ones regulating the
peculiarities of the governance of the school of higher education and those of the science (art) and
studies’ activity, which are necessary to ensure the institutional and academic autonomy of the state
school of higher education.
3. The provision (disputed by the petitioner) of Paragraph 1 of Article 8 of the Law on
Science and Studies provides that the name of a school of higher education of the university type
must contain the word “university” or “academy”, or “seminary”. Paragraph 1 of Article 8 of the
Law on Science and Studies also provides that the university shall carry out university studies,
conduct scientific research, experimental (social, cultural) development and/or develop high-level
professional art.
4. The doubts of the petitioner regarding the provision of Paragraph 4 of Article 6 of the
Law on Science and Studies are substantiated by the fact that, according to the petitioner, while
35
regulating all state schools of higher education only as public establishments, the legislator could
negate the variety of schools of higher education. The petitioner has also paid attention to the fact
that as regards institutes, this law has provided even two types of state scientific institutes—
budgetary establishments or public establishments.
5. The doubts of the petitioner regarding the disputed provision of Paragraph 1 of Article 8
of the Law on Science and Studies are substantiated by the fact that the limitation of the names of
the schools of higher education conducting the activities of a university only to three possible
variants may be in conflict with the principle of autonomy of schools of higher education, since the
schools conducting the activities of a university are not allowed to choose other names; in addition,
the legislator may oblige to change a traditional name of the university.
6. As mentioned, in its ruling of 27 June 1994, the Constitutional Court construed the
provision of Paragraph 3 of Article 40 of the Constitution and stated that, traditionally, the
autonomy of the school of higher education is conceived as the right to independently determine
and establish in the regulations or statute the organisational and governmental structure, relations
with other partners, the order of research and studies, academic syllabus, the order of student
enrolment, to resolve other related questions, to use the property given over by the state as well as
newly acquired, to possess the territory and buildings as well as other property, allotted for the
needs of research and studies, to have the guarantee of inviolability. For this purpose, the school of
higher education is guaranteed the institutional autonomy, i.e. a certain status, which means that
there are certain spheres of activities independent from the control of the executive power
(Constitutional Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February
2008, 20 March 2008, decision of 28 October 2009).
7. It needs to be noted that Paragraph 3 of Article 40 of the Constitution must be construed
while taking account of inter alia Paragraph 4 of Article 40 of the Constitution, in which it is
established that “The State shall supervise the activities of establishments of teaching and
education”. Autonomy of schools of higher education does not mean that the activity of such
schools cannot be subject to state control; quite to the contrary, this activity, since it is related inter
alia with the implementation of human rights and freedoms, as well as with the use of funds of the
state budget, must be subject to regulation and supervision; it follows also from the provision of
Paragraph 4 of Article 40 of the Constitution whereby the state shall supervise the activities of
establishments of teaching and education. However, the right of the state to regulate external
relations of schools of higher education may not limit the freedom of scientific and educational
activity of schools of higher education (Constitutional Court rulings of 27 June 1994, 5 February
2002 and 20 February 2008, decision of 28 October 2009).
In this context it needs to be noted that, under the Constitution, the establishment of the legal
36
form for the state school of higher education as a public legal person and the establishment of
mandatory words in names of the schools of higher education of the university type per se do not
deny the freedom of scientific and educational activity of the school of higher education and self-
government of the academic community, i.e. the academic and institutional autonomy of schools of
higher education. The legislator enjoys the discretion to establish the legal form of a state school of
higher education and the words mandatory in the name of a school of higher education. However,
the legal form of a state school of higher education as a public legal person must be in line with the
purpose of the school, which is to satisfy public interests, in a non-profit manner, while carrying out
the educational, training, scientific and cultural activity. On the other hand, the words specified in a
mandatory manner in the names of schools of higher education must be in line with the type of the
school of higher education and with the level and specificity of the studies and scientific research
and those of the higher education provided by such a school.
8. It has been mentioned that, under Paragraph 4 of Article 6 of the Law on Science and
Studies, the legislator established the only form of a state school of higher education as a public
legal person—a state school of higher education must function as a public establishment (i.e. a non-
profit public legal person of limited civil liability, the aim of which is to satisfy public interests inter
alia by carrying out the educational, training and scientific, and cultural activities); alongside, the
autonomy (guaranteed by the Constitution) is recognised to the state school of higher education and
the special legal status related to such autonomy is established; this legal status is concretised in
other provisions of the Law on Science and Studies, inter alia in the ones regulating the
peculiarities of the governance of the school of higher education and those of the science (art) and
studies’ activity, which are necessary to ensure the institutional and academic autonomy of the state
school of higher education. It has also been mentioned that Paragraph 1 of Article 8 of the Law on
Science and Studies provides that the name of a school of higher education of the university type
must contain the word “university” or “academy”, or “seminary”; the university shall carry out
university studies, conduct scientific research, experimental (social, cultural) development and/or
develop high-level professional art.
It has also been mentioned that, under the Constitution, the establishment of the legal form
for the state school of higher education as a public legal person and the establishment of mandatory
words in names of the schools of higher education of the university type per se do not deny the
freedom of scientific and educational activity of the school of higher education and self-government
of the academic community, i.e. the academic and institutional autonomy of schools of higher
education; the legal form of a state school of higher education as a public legal person must be in
line with the purpose of the school, which is to satisfy public interests, in a non-profit manner, while
carrying out the educational, training, scientific and cultural activity, whereas the words specified in
37
a mandatory manner in the names of schools of higher education must be in line with the type of the
school of higher education and with the level and specificity of the studies and scientific research
and those of the higher education provided by such a school.
8.1. The only legal form of a state school of higher education as a public legal person—a
public establishment—established in Paragraph 4 of Article 6 of the Law on Science and Studies, is
in line with the aim of the state school of higher education to satisfy public interests, in a non-profit
manner, by carrying out the educational, training, scientific, and cultural activities. Thus, having
established such a legal form of a state school of higher education autonomy of schools of higher
education is not denied.
8.2. The requirement established in Paragraph 1 of Article 8 of the Law on Science and
Studies to indicate the word “university” or “academy”, or “seminary” is in line with the type of this
school of higher education and the level and specificity of the university studies and scientific
research and with the level and specificity of the higher education provided by such a school. Thus,
having established such mandatory words in the names of university type schools of higher
education one does not deny the autonomy of schools of higher education.
9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 4 of
Article 6 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law, also that Paragraph 1 of
Article 8 of the Law on Science and Studies inasmuch as it is established therein that the name of a
school of higher education of the university type must contain the word “university” or “academy”,
or “seminary” is not in conflict with Paragraph 3 of Article 40 of the Constitution and the
constitutional principle of a state under the rule of law.
III
On the compliance of Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of
Article 11 of the Law on Science and Studies with Paragraphs 1 and 4 of Article 46 of the
Constitution and the constitutional principles of a state under the rule of law and equality of
persons.
1. The group of Members of the Seimas, a petitioner, has doubted whether Item 2 of
Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies
are not in conflict with Paragraphs 1 and 4 of Article 46 of the Constitution and the constitutional
principles of a state under the rule of law and equality of persons.
2. Item 2 of Paragraph 3 of Article 7 of the Law on Science and Studies prescribes:
“A school of higher education must:
<...>
2) inform the founders, members of the legal person, and the public about quality assurance
38
measures in studies and scientific activities, and in case of state schools of higher education—also
about their financial, economic and scientific activities and the use of funds; the results of external
quality evaluation and accreditation of their study programmes.”
Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies prescribes:
“A scientific institute must:
<...>
2) inform the founder (members of the legal person) and the public about the quality
assurance measures in scientific activity, and in case of a state research institute—also inform about
its financial, economic activities and the use of funds.”
3. In this context it needs to be noted that Paragraph 1 of Article 67 of the Law on Science
and Studies provides for a possibility to allocate state budget funds to institutions of science and
studies. Such funds can be allocated to both state and non-state institutions of higher education
(schools of higher education and scientific research institutes). Funds of the basic financing of the
state budget and funds of state investment programmes as well as of state investment projects may
be allocated only to state institutions of science and studies (Items 1 and 3 of Paragraph 1 of Article
67 of the Law on Science and Studies). Funds of the state budget for studies, financing of scientific
research from the state budget on a programme and competition basis and funds of state foundations
may be allocated to both state and non-state institutions of science and studies (Items 2, 5 and 6 of
Paragraph 1 of Article 67 of the Law on Science and Studies).
4. Thus, Item 2 of Paragraph 3 of Article 7 of the Law on Science and Studies has
established different duties of state and non-state schools of higher education related to information
about their activity and use of the funds. All (state and non-state) schools of higher education must
inform the founder, members of the legal person, and the public about the quality assurance
measures in studies and scientific activity, the results of external quality evaluation and
accreditation of their study programmes. State schools of higher education also must inform their
founder and the public about their financial, economic and scientific activities and the use of funds,
whereas non-state schools of higher education do not have such a duty even in cases when they are
allocated funds form the state budget.
A similar legal regulation regarding scientific research institutes is established in Item 2 of
Paragraph 2 of Article 11 of the Law on Science and Studies. All (state and non-state) institutes of
scientific research must inform their founders (members of the legal person) and the public about
the quality assurance measures in scientific activity. State institutes of scientific research also must
inform their founder (members of the legal person) and the public about their financial, economic
activities and the use of funds, whereas non-state institutes of scientific research do not have such a
duty even in cases when they are allocated funds form the state budget.
39
5. The doubts of the petitioner regarding the compliance of Item 2 of Paragraph 2 of Article
7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies with the Constitution
are substantiated by the fact that, in the opinion of the petitioner, a duty should arise for such a
subject to inform society of its financial, economic and scientific activities as well as the use of its
funds, because the subject has been allocated funds of the state, therefore, a non-state school of
higher education and a non-state scientific research institute, which receive the funds of the state
budget or the funds of the state financed programmes, should also be obliged to account to society
for their financial, economic and scientific activities as well as the use of their funds—at least to the
extent the said funds have been used.
6. It needs to be noted that from the provision “the State shall supervise the activities of
establishments of teaching” of Paragraph 4 of Article 40 of the Constitution, the provision “the law
<…> shall protect freedom of fair competition” of Paragraph 4 of Article 46 thereof, and the
provision “the State shall defend the interests of the consumer” of Paragraph 5 of the same article, a
duty arises to the state when it regulates the relations linked with the school of higher education, to
establish such legal regulation, which would not distort fair competition, also to consolidate various
measures of protection of consumers of higher education services (Constitutional Court ruling of 20
March 2008).
In the constitutional justice case at issue it has been mentioned that the interests of schools
of higher education and society must be adjusted; autonomy of schools of higher education must be
coordinated with their duty to observe the Constitution and laws and with responsibility and
accountability to society (Constitutional Court ruling of 5 February 2002). Schools of higher
education must act in compliance with the Constitution and law; making use of the autonomy
guaranteed to them by the Constitution by no means may create preconditions for abuse of such
autonomy.
7. In its ruling of 5 February 2002, the Constitutional Court held that, although Paragraph 1
of Article 134 of the Constitution provides that the State Control shall supervise the lawfulness of
the possession and use of state property and the execution of the State Budget, however, this does
not mean that the legislature does not have a right to establish other forms of supervision, too. After
it has allocated funds for financing the schools of higher education, the state has the right to know
how these funds are used (Constitutional Court decision of 28 October 2009).
A school of higher education which receives funds from the state budget must account for
proper use of the received funds, while it is within the discretion of the legislator to establish by law
the manner and means of control of the use of the funds (Constitutional Court ruling of 5 February
2002, decision of 28 October 2009). These provisions of the constitutional doctrine are applicable
also to the legal regulation related to allocation of funds of the state budget to scientific research
40
institutes.
In this context it needs to be noted that, while co-ordinating autonomy of schools of higher
education with their responsibility and accountability for society, the legislator has a duty to
establish the legal regulation whereby all (state and non-state) schools of higher education and all
state and non-state scientific research institutes should inform society of the use of the funds of the
state budget allocated to them.
8. In Paragraph 1 of Article 29 of the Constitution the principle of equality of rights of
persons is entrenched. The Constitutional Court has held more than once that the constitutional
principle of equality of persons must be followed in the course of both enactment of laws and their
application; the constitutional principle of equality of persons before the law means an innate
human right to be treated equally with the others (Constitutional Court rulings of 3 February 2010,
22 March 2010, decision of 20 April 2010, rulings of 29 June 2010, 14 February 2011) and obliges
to legally assess the homogenous facts in the same manner and prohibits to arbitrarily assess the
facts, which are the same in essence, in a different manner (Constitutional Court decision of 20
April 2010, rulings of 29 June 2010, 14 February 2011).
The Constitutional Court has held more than once that the constitutional principle of
equality of all persons before the law would be violated when a certain group of people to which the
legal norm is ascribed, if compared to other addressees of the same legal norm, were treated
differently, even though there are not any differences in their character and extent between these
groups that such an uneven treatment would be objectively justified; while assessing whether an
established different legal regulation is a grounded one, particular legal circumstances must be
taken into account; first of all, differences of the legal situation of subjects and objects to which
different legal regulation is applied must be considered (Constitutional Court ruling of 8 June 2009,
decision of 20 April 2010, rulings of 29 June 2010, 14 February 2011).
9. It needs to be noted that the constitutional grounds of the possession, use and disposal of
state property are entrenched in inter alia Paragraph 2 of Article 128 of the Constitution, wherein it
is established that the procedure for the possession, use and disposal of state property shall be
established by law.
The provisions of Paragraph 2 of Article 128 of the Constitution are inseparable from other
provisions of the Constitution, inter alia the provisions that citizens who are good at their studies
shall be guaranteed education at state schools of higher education free of charge (Paragraph 3 of
Article 41 of the Constitution), the state shall support science (Paragraph 2 of Article 42 of the
Constitution).
From the Constitution, inter alia Paragraph 2 of Article 128 thereof, follows the requirement
to treasure state-owned property, not to waste it and manage it rationally (Constitutional Court
41
rulings of 30 September 2003, 5 July 2007, and 20 March 2008). It needs to be noted that Paragraph
2 of Article 128 of the Constitution inter alia implies the requirement to establish the legal
regulation which would ensure proper use of the funds of the state budget allocated to institutions of
science and studies. Thus, the legislator, while regulating the allocation and use of funds of the state
budget to institutions of science and studies, must establish the duty of all institutions of science and
studies to account for the use of the funds of the state budget allocated to them.
10. While assessing the legal regulation established in Item 2 of Paragraph 3 of Article 7 and
Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies, it needs to be noted that
state schools of higher education and state scientific research institutes, if compared to non-state
schools of higher education and non-state scientific research institutes, are treated in a different
manner, even though there are not any differences of such nature and extent with respect to their
accountability for the use of funds of the state budget allocated to them so that such different
treatment would be objectively justifiable, therefore, the disputed provisions violate the
constitutional principle of equality of all persons before the law.
It has been mentioned that, while co-ordinating autonomy of schools of higher education
with their responsibility and accountability for society, the legislator has a duty to establish the legal
regulation whereby all (state and non-state) schools of higher education and all (state and non-state
scientific research institutes) should inform society of the use of the funds of the state budget
allocated to them; this duty inter alia arises from Paragraph 2 of Article 128 of the Constitution.
It has also been mentioned that Item 2 of Paragraph 3 of Article 7 of the Law on Science and
Studies established no such duty for non-state schools of higher education, whereas Item 2 of
Paragraph 2 of Article 11 thereof established no such duty for non-state scientific research institute.
11. Taking account of the arguments set forth it needs to be held that Item 2 of Paragraph 3
of Article 7 of the Law on Science and Studies to the extent that it does not establish a duty of non-
state schools of higher education to account to society for the use of funds of the state budget
allocated to them, and, Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies to the
extent that it does not establish a duty of non-state scientific research institutes to account to society
for the use of funds of the state budget allocated to them, are in conflict with Paragraph 1 of Article
29 and Paragraph 2 of Article 128 of the Constitution.
Having held this, the Constitutional Court will not further investigate whether Item 2 of
Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies
are not in conflict with Paragraphs 1 and 4 of Article 46 of the Constitution and the constitutional
principle of a state under the rule of law.
IV
On the compliance of Paragraph 2 of Article 17 of the Law on Science and Studies with
42
Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of
the Constitution and the constitutional principle of a state under the rule of law.
1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 2 of
Article 17 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 33,
Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution and the
constitutional principle of a state under the rule of law.
2. Paragraph 2 of Article 17 of the Law on Science and Studies provides:
“A collegial body of governance of the Centre for Quality Assessment in Higher Education
shall be the Council of the Centre for Quality Assessment in Higher Education, which consists of 11
members. They shall be appointed for the term of six years by: the Seimas, on the recommendation
of the Committee on Education, Science and Culture, the Government, the Minister of Education
and Science, the Research Council of Lithuania together with the Lithuanian Academy of Sciences,
the senates of universities, the academic councils of colleges, unions of student representations of
schools of higher education of Lithuania, the Lithuanian Council of Culture and Art, the Lithuanian
Confederation of Industrialists, the Lithuanian Chamber of Commerce, Industry and Crafts, the
Knowledge Economy Forum. The composition of the Council of the Centre for Quality Assessment
in Higher Education shall be announced by the Minister of Education and Science. The Council of
the Centre for Quality Assessment in Higher Education shall draw up and approve its own rules of
procedure.”
3. Thus, the disputed Paragraph 2 of Article 17 of the Law on Science and Studies inter alia
established the procedure for forming the Council of the Centre for Quality Assessment in Higher
Education, a collegial body of the Centre for Quality Assessment in Higher Education. The
legislator established that the following subjects appoint one member each to the Council of the
Centre for Quality Assessment in Higher Education: the Seimas, on the recommendation of the
Committee on Education, Science and Culture, the Government, the Minister of Education and
Science, the Research Council of Lithuania together with the Lithuanian Academy of Sciences, the
senates of universities, the academic councils of colleges, unions of student representations of
schools of higher education of Lithuania, the Lithuanian Council of Culture and Art, the Lithuanian
Confederation of Industrialists, the Lithuanian Chamber of Commerce, Industry and Crafts, the
Knowledge Economy Forum.
It needs to be noted that one of the main tasks of the Centre for Quality Assessment in
Higher Education is to encourage the quality of activities of schools of higher education through an
external assessment and accreditation of institutions and study programmes (Item 1 of Paragraph 1
of Article 17 of the Law on Science and Studies). Thus, the legislator granted the competence to the
Centre for Quality Assessment in Higher Education to contribute to improvement of quality of
43
activity of schools of higher education, to supervise and assess activity of schools of higher
education in the quality aspect, to implement the policy of supervision of quality of higher
education. The Centre for Quality Assessment in Higher Education is to be regarded as an
institution supervising the implementation of the state education policy.
4. The petitioner, while requesting to investigate the compliance of the Law on Science and
Studies with the Constitution, is doubting whether a collegial body of governance of the Centre for
Quality Assessment in Higher Education, as a state budgetary establishment, may also be formed
from non-governmental, public organisations and those representing the interests of private persons,
and it also points out that due to the disputed legal regulation there has emerged such an
unreasonable situation where, by the will of the state, a certain concrete non-governmental subject
is granted the right and duty to appoint members of the Centre for Quality Assessment in Higher
Education, whereas the other subject is not granted such a right and duty.
5. In the constitutional justice case at issue it has been mentioned that the autonomy of
schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies
academic and institutional autonomy. In the jurisprudence of the Constitutional Court it has been
held that, traditionally, the autonomy of a school of higher education is conceived as the right to
independently determine and establish in the regulations or statute its organisational and governance
structure, its relations with other partners, the procedure of research and studies, academic syllabi,
the procedure of students’ enrolment, to resolve other related questions, as well as that there are
certain spheres of activities, independent from the control of the executive power (Constitutional
Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008 and 20 March
2008). It was also held that the society is concerned with creating due conditions for institutions of
higher education in order to ensure all-round education of the personality, and that schools of higher
education enjoy freedom of teaching, of scientific research and creative activities (Constitutional
Court rulings of 5 February 2002 and 20 March 2008). On the other hand, the interests of schools of
higher education and those of society must be adjusted; autonomy of schools of higher education
must be coordinated with their duty to observe the Constitution and laws and with responsibility
and accountability to society (Constitutional Court ruling of 5 February 2002). Schools of higher
education must act in compliance with the Constitution and law; making use of the autonomy
guaranteed to them by the Constitution by no means may create preconditions for abuse of such
autonomy.
6. It has also been mentioned that the Constitutional Court has held more than once that
granting of autonomy to schools of higher education does not relieve the state from its
constitutional duty to secure the efficiency of the system of higher education. Therefore, autonomy
of schools of higher education does not mean that the activity of such schools cannot be subject to
44
state control; quite to the contrary, this activity, since it is related inter alia with the implementation
of human rights and freedoms, as well as with the use of funds of the state budget, must be subject
to regulation and supervision; it follows also from the provision of Paragraph 4 of Article 40 of the
Constitution whereby the state shall supervise the activities of establishments of teaching and
education. However, the right of the state to regulate external relations of schools of higher
education may not limit the freedom of scientific and educational activity of schools of higher
education (Constitutional Court rulings of 27 June 1994, 5 February 2002, 20 February 2008, and
20 March 2008).
7. It needs to be noted that Paragraph 4 of Article 40 of the Constitution has entrenched not
only the right, but also the duty of the state to supervise the activities of establishments of teaching
and education.
In the constitutional justice case at issue it has been mentioned that supervision of activities
of establishments of teaching and education includes the supervision of control how the
Constitution and laws are observed; as regards this matter, the state (its institutions) may resort to
various ways and forms of control established by laws. By the state supervision of activities of
establishments of teaching and education equal observance of the standards of education and
learning is ensured, and the compliance of contents and level of education and teaching with the
qualification recognised by the state is guaranteed (Constitutional Court ruling of 13 June 2000).
It also needs to be noted that the legislator enjoys broad discretion to establish the procedure
for forming collegiate bodies of governance of institutions supervising the state education policy,
inter alia to establish the subjects appointing members of these bodies. However, while establishing
this procedure, the legislator must take account of the purposes of the institution supervising the
state education policy, and of the concernment, grounded on the public interest, of the subjects
appointing members of its collegiate body of governance to form and implement the state education
policy.
8. It has been mentioned that the disputed Paragraph 2 of Article 17 of the Law on Science
and Studies inter alia established the procedure for forming the Council of the Centre for Quality
Assessment in Higher Education, a collegial body of governance thereof. Seven members of the
Council of the Centre for Quality Assessment in Higher Education are appointed by one concrete
subject (the Seimas, the Government, the Minister of Education and Science, the Lithuanian
Council of Culture and Art, the Lithuanian Confederation of Industrialists, the Lithuanian Chamber
of Commerce, Industry and Crafts, the Knowledge Economy Forum), while four members are
appointed jointly by several subjects (the Research Council of Lithuania together with the
Lithuanian Academy of Sciences, the senates of universities, the academic councils of colleges,
unions of student representations of schools of higher education of Lithuania).
45
It has also been mentioned that the legislator enjoys broad discretion to establish the
procedure for forming collegiate bodies of governance of institutions supervising the state education
policy, inter alia to establish the subjects appointing members of these bodies; while establishing
this procedure, the legislator must take account of the purposes of the institution supervising the
state education policy, and of the concernment, grounded on the public interest, of the subjects
appointing members of its collegiate body of governance to form and implement the state education
policy. There are grounds to maintain that the subjects established in Paragraph 2 of Article 17 of
the Law on Science and Studies have the concernment, grounded on the public interest, regarding
the quality of carrying out the studies in higher education and that they could be represented at the
Council of the Centre for Quality Assessment in Higher Education.
9. In this context it needs to be noted that, while implementing its discretion to establish the
procedure for forming collegiate bodies of governance of institutions supervising the state education
policy, inter alia to establish the subjects appointing members of these bodies, the legislator may
also provide for other subjects which have the concernment, grounded on the public interest,
regarding the quality of carrying out the studies in higher education, and which would be granted
the right to appoint members of the Council of the Centre for Quality Assessment in Higher
Education.
10. In this context it also needs to be noted that, while implementing the social responsibility
falling upon them, the subjects which are established by the legislator and have the right to appoint
members of the Council of the Centre for Quality Assessment in Higher Education, should
implement this right so that preconditions would be created for the Council of the Centre for
Quality Assessment in Higher Education to discharge its functions properly; inter alia it means that
members of the Council of the Centre for Quality Assessment in Higher Education should be
persons of impeccable reputation, whose education and qualification would create preconditions for
ensuring qualified, efficient and responsible activity of this institution.
11. Taking account of the arguments set forth it needs to be held that by means of the legal
regulation established in Paragraph 2 of Article 17 of the Law on Science and Studies the legislator
properly implemented the discretion arising from Paragraph 4 of Article 40 of the Constitution to
establish the procedure for forming collegiate bodies of governance of institutions supervising the
state education policy, inter alia to establish the subjects appointing members of these bodies.
It needs to be noted that the implementation of such discretion of the legislator is not related
with the legal regulation of production, the market or fair competition, the right of citizens to
participate in the governance of their state as well as the right to enter on equal terms in the state
service, the right to freely form societies, political parties and associations, i.e. Paragraph 2 of
Article 17 of the Law on Science and Studies regulates the relations of different character than those
46
regulated in Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article
46 of the Constitution. Therefore, there are no arguments for maintaining that by means of the legal
regulation established in Paragraph 2 of Article 17 of the Law on Science and Studies the legislator
has created preconditions for violating the imperatives stemming from Paragraph 1 of Article 33,
Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution.
12. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2
of Article 17 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 33,
Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution.
V
On the compliance of Paragraph 2 of Article 48 of the Law on Science and Studies with
Paragraphs 1, 3 of Article 40, Paragraph 1 of Article 42, and Paragraphs 3, 7 of Article 43 of
the Constitution and the constitutional principle of a state under the rule of law, and on the
compliance of Paragraph 3 of Article 66 of the same law with Article 18, Paragraph 1 of
Article 25, Paragraphs 1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the
Constitution.
1. The group of Members of the Seimas, a petitioner, has had doubts as to whether
Paragraph 2 of Article 48 of the Law on Science and Studies is not in conflict with Paragraphs 1, 3
of Article 40, Paragraph 1 of Article 42, and Paragraphs 3, 7 of Article 43 of the Constitution and
the constitutional principle of a state under the rule of law.
1.1. Paragraph 2 of Article 48 of the Law on Science and Studies provides:
“Master’s degree study programmes shall be designed for preparation for independent
scientific (artistic) work or any other work the performance of which requires scientific knowledge
and analytical competence. Master’s degree studies shall be conducted in universities in which
scientific (artistic) activities corresponding to the study field are carried out. On completion of
master’s degree study programmes persons shall be awarded a master’s degree of an appropriate
study field. On completion of theological study programmes of the second cycle persons may, after
consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology.”
1.2. The petitioner, while substantiating its doubts, indicates that one may not set for
educationists and other employees any requirements connected with their convictions; in secular
state schools of higher education, studies in theology and a scientific degree of licentiate in theology
should be accessible to persons holding different religious convictions and views and are not to be
linked to any concrete religion. Therefore, the petitioner has had doubts as to whether the
requirement to consult with the Catholic Church hierarchy before awarding a degree of licentiate in
theology to a person who has completed a theological study programme of the second cycle is in
compliance with the Constitution.
47
Thus, from the arguments set forth by the petitioner it is clear that the petitioner has had
doubts as regards the constitutionality of not the entire Paragraph 2 of Article 48 of the Law on
Science and Studies, but as regards the compliance, with the Constitution, of only the provision “On
completion of theological study programmes of the second cycle persons may, after consultation
with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2
of Article 48 of the Law on Science and Studies, to the extent that it prescribes that a degree of
licentiate in theology may be awarded after consultation with the Catholic Church hierarchy.
1.3. The disputed provision “On completion of theological study programmes of the second
cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of
licentiate in theology” of Paragraph 2 of Article 48 of the Law on Science and Studies regulates the
awarding of a degree of licentiate in theology.
1.3.1. It needs to be noted that the provision disputed by the petitioner is set forth in
Paragraph 2 of Article 48 of the Law on Science and Studies, which regulates the requirements for
programmes of studies of the second cycle—master’s studies—in schools of higher education. The
paragraph in question inter alia provides that on completion of master’s degree study programmes
persons are awarded a master’s degree of an appropriate study field.
In this context it needs to be mentioned that, under Paragraph 2 of Article 46 of the Law on
Science and Studies, studies may be of three cycles: the first cycle—professional bachelor’s and
bachelor’s degree studies, the second cycle—master’s degree studies, and the third cycle—doctoral
studies. Thus, Paragraph 2 of Article 48 of the Law on Science and Studies, first of all, establishes a
general norm, which obligates to award a master’s degree of an appropriate study field to all the
persons who have completed studies of the second cycle (master’s degree studies).
The provision of Paragraph 2 of Article 48 of the Law on Science and Studies, which is
being disputed by the petitioner, provides that on completion of theological study programmes of
the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a
degree of licentiate in theology. In this way the legislator provides for a possibility for persons who
have completed specific—theological—studies of the second cycle to be awarded a specific degree.
Thus, the legal regulation laid down in Paragraph 2 of Article 48 of the Law on Science and Studies
specifies a possibility of organising specific (licentiate) theological studies, which are an equivalent
of master’s degree studies; on completion of these studies persons may be awarded a specific
degree of licentiate in theology, which is an equivalent of a master’s degree. From the material of
the constitutional justice case at issue it is clear that the minimum requirements, with regard to the
volume of a study programme and duration of studies, for a licentiate theological programme are
the same as the maximum requirements for the volume of a master’s degree study programmes,
which are established in Paragraph 6 of Article 47 of the Law on Science and Studies.
48
The provision of Paragraph 2 of Article 48 of the Law on Science and Studies, which is
being disputed by the petitioner, provides that on completion of theological study programmes of
the second cycle persons may be awarded a degree of licentiate in theology only after consultation
with the Catholic Church hierarchy. Paragraph 2 of Article 48 of the Law on Science and Studies
does not explicitly establish that on completion of the said programmes a person is awarded another
degree confirming the education he has acquired where the awarding of a degree of licentiate in
theology to that person is not consulted with the Catholic Church hierarchy. However, from the
aforementioned general norm of Paragraph 2 of Article 48 of the Law on Science and Studies,
which obligates to award a master’s degree of an appropriate study field to all the persons who have
completed studies of the second cycle (master’s degree studies), a conclusion is to be drawn that in
the cases where the awarding of a degree of licentiate in theology to persons, who have completed
theological study programmes of the second cycle, is not consulted with the Catholic Church
hierarchy, such persons must be awarded a master’s degree of an appropriate field.
1.3.2. From the material of the constitutional justice case at issue it is clear that a degree of
licentiate in theology has centuries-old traditions and that up till the present it has been awarded in
schools of higher education that function in various countries and enjoy recognition from the
Catholic Church. The licentiate (licentiatus) in theology, referred to in Paragraph 2 of Article 48 of
the Law on Science and Studies, is a specific degree of university studies of the second cycle, which
confirms a special competence of an appropriate level recognised by the Catholic Church in the area
of studies in Catholic theology and which is necessary when one seeks to further continue Catholic
theological studies (i.e. doctoral studies) in universities and faculties recognised by the Catholic
Church, also when one seeks to take up a certain church office.
It needs to be noted that a degree of licentiate in theology is not directly and exceptionally
linked to the training of the clergy and it does not indicate the preparation to hold the office of a
clergyman, nor a possibility of being appointed to a church office; this degree may be also awarded
to the laity. It also needs to be noted that a degree of licentiate in theology does not automatically
grant the right to lecture in a school of higher education or to teach the Catholic religion. Persons
holding a degree of licentiate in theology may become clergymen, or they may be appointed to a
church office in accordance with the procedure established in canon law, or to an educational office
—in accordance with the procedure established in the legal acts of the Republic of Lithuania,
provided that they meet the qualification and other requirements set for such offices.
1.3.3. In this context one needs to mention the Agreement between the Republic of
Lithuania and the Holy See on Cooperation in Education and Culture of 5 May 2000, in the
Preamble of which it is indicated that the Republic of Lithuania has concluded this agreement
acting in accordance with its Constitution, while the Holy See—acting in accordance with the
49
documents of the Second Vatican Council, particularly its declaration Gravissimum educationis, as
well as the norms of canon law.
Taking account of the whole legal regulation of the Agreement between the Republic of
Lithuania and the Holy See on Cooperation in Education and Culture, one is to draw a conclusion
that provisions of the said agreement are based on the presumption of compatibility of the
Constitution and canon law. In the context of the constitutional justice case at issue this inter alia
means that schools of higher education of the Republic of Lithuania, which have recognition from
the Catholic Church, conduct theological studies and award corresponding degrees to persons
successfully completing these studies without violating the Constitution.
Article 5 of the aforesaid agreement provides that the Catholic Church may organise courses
and engage in spiritual-religious education in universities and other establishments of higher
education in agreement with the administration of these institutions. Article 7 of the agreement
prescribes that the authorised institutions of the contracting parties, each within its competence,
shall ensure that the contents and methods of teaching the Catholic religion comply with the
requirements established by the Catholic Church and the Republic of Lithuania; professional
qualifications of teachers of the Catholic religion shall be assessed and their work shall be
supervised in accordance with the procedure prescribed by the legal acts of the Republic of
Lithuania with the joint participation of the representatives of the Conference of Lithuanian
Bishops.
It also needs to be mentioned that Article 3 of the agreement provides that the qualifying
certificate for teaching the Catholic religion shall be granted in accordance with the procedure
prescribed by the legal acts of the Republic of Lithuania with due regard to the norms of the
Conference of Lithuanian Bishops; teachers of the Catholic religion must have the written
authorisation (missio canonica) of the local bishop and such authorisation constitutes an
indispensable part of the qualification requirements for the profession; from the moment when the
authorisation is withdrawn, a teacher loses the right to teach the Catholic religion.
1.4. In its ruling of 13 December 2000, the Constitutional Court held the following:
– Paragraph 1 of Article 40 of the Constitution provides that state and municipal
establishments of teaching and education shall be secular; this constitutional provision implies a
requirement that these establishments be tolerant, open and accessible to people of all religions, as
well as those members of society who are non-believers;
– the fact that the State of Lithuania and its institutions are neutral as regards the matters of
world view and religion, means disconnection of the purpose, functions and activities of the areas of
the state and religion, those of the state and the churches and religious organisations; the neutrality
and secularity of the state may not serve as the grounds to discriminate against the believers, to
50
restrict their rights and freedoms;
– while construing the norm set down in Paragraph 7 of Article 43 of the Constitution that
there shall not be a state religion in Lithuania, that of Paragraph 4 of the same article that churches
and religious organisations shall function freely according to their canons and statutes, also that of
Paragraph 1 of Article 40 that state and municipal establishments of teaching and education shall be
secular, as well as other constitutional provisions, in a systematic manner, one is to draw a
conclusion that the principle of separateness of the state and the church is established in the
Constitution; the constitutional principle of separateness of the state and the church is the basis of
the secularity of the State of Lithuania, its institutions and their activities; the constitutional
principle of separateness of the state and the church, along with the freedom of convictions,
thought, religion and conscience, which is established in the Constitution, together with the
constitutional principle of equality of persons and the other constitutional provisions, determine the
neutrality of the state in matters of world view and religion;
– under the Constitution, state and municipal establishments of teaching and education are
secular; in these establishments no requirements may be set to educationists and other employees
which are connected with their convictions; neither state or municipal institutions, nor parents at
whose request classes in religious instruction are offered, nor teachers of religion, nor traditional
churches or religious organisations, nor any other state-recognised churches or religious
organisations may set such requirements; otherwise the norm of Paragraph 1 of Article 42 of the
Constitution, whereby culture, science, research, and teaching are free, would also be denied.
1.5. In the context of the constitutional justice case at issue the provisions of Paragraph 1 of
Article 40 of the Constitution, whereby state and municipal establishments of teaching and
education are secular, and the provisions of Paragraph 1 of Article 42 of the Constitution, which
establish that culture, science, research, and teaching are free, are to be related to the provision
“Higher education shall be accessible to everyone according to his individual abilities” of Paragraph
3 of Article 41 of the Constitution. While construing this provision in its ruling of 14 January 2002,
the Constitutional Court noted that the constitutional provision that higher education is available to
everyone according to his abilities means that both state and non-state higher schools established
according to the procedure prescribed by law, as well as the entire system of higher education
establishments, have to be accessible to every person. This provision also means that those who
seek higher education cannot be subjected to requirements that are based on criteria other than their
abilities. The said provision is closely related to the principle of equality of individuals enshrined in
Article 29 of the Constitution, to the provision contained in Paragraph 2 thereof that a person may
not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex,
race, nationality, language, origin, social status, religion, convictions, or opinions.
51
Thus, from the aforementioned provision of Paragraph 3 of Article 41 of the Constitution a
requirement arises to award an appropriate degree confirming the acquired education and
qualification to a person who has successfully completed a study programme of higher education;
the Constitution would be violated by such legal regulation under which a situation would be
possible where a person who has successfully completed a study programme would not be awarded
an appropriate degree. In the context of Paragraph 1 of Article 40 and Paragraph 1 of Article 42 of
the Constitution, the aforesaid requirement inter alia also means that one is not permitted to lay
down any such legal regulation under which a person who has successfully completed a theological
study programme of the second cycle would not be awarded any degree confirming the acquired
education where the awarding of a degree would not be consulted with the Catholic Church
hierarchy.
1.6. It has been mentioned that from the legal regulation established in Paragraph 2 of
Article 48 of the Law on Science and Studies it is clear that a degree of licentiate in theology is a
specific equivalent of a master’s degree, which is, after consultation with the Catholic Church
hierarchy, awarded to persons who have completed theological study programmes of the second
cycle. It has also been mentioned that from the aforesaid general norm of Paragraph 2 of Article 48
of the Law on Science and Studies, which obligates to award a master’s degree of an appropriate
study field to all the persons who have completed studies of the second cycle (master’s degree
studies), a conclusion is to be drawn that in the cases where the awarding of a degree of licentiate in
theology to persons who have completed theological study programmes of the second cycle is not
consulted with the Catholic Church hierarchy such persons must be awarded a master’s degree of an
appropriate field.
It has also been mentioned that from the provision of Paragraph 3 of Article 41 of the
Constitution a requirement arises to award an appropriate degree confirming the acquired education
and qualification to a person who has successfully completed a study programme of higher
education; the Constitution would be violated by such legal regulation under which a situation
would be possible where a person who has successfully completed a study programme would not be
awarded an appropriate degree. In the context of Paragraph 1 of Article 40 and Paragraph 1 of
Article 42 of the Constitution, the aforesaid requirement inter alia also means that one is not
permitted to lay down any such legal regulation under which a person who has successfully
completed a theological study programme of the second cycle would not be awarded any degree
confirming the acquired education where the awarding of a degree would not be consulted with the
Catholic Church hierarchy.
Thus, only when the provisions of Paragraph 2 of Article 48 of the Law on Science and
Studies are construed in such a way that, as mentioned, in the cases where the awarding of a degree
52
of licentiate in theology to persons who have completed theological study programmes of the
second cycle is not consulted with the Catholic Church hierarchy, these persons must be awarded a
master’s degree of an appropriate field, one may draw a conclusion that no preconditions are
created for emerging of such a situation when a person who has successfully completed a study
programme would not be awarded an appropriate degree, i.e. only when construed in this way, the
disputed provision “On completion of theological study programmes of the second cycle persons
may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in
theology” of Paragraph 2 of Article 48 of the Law on Science and Studies is not in conflict with
Paragraph 1 of Article 40, Paragraph 3 of Article 41, Paragraph 1 of Article 42 of the Constitution
and the constitutional principle of a state under the rule of law.
1.7. In the constitutional justice case at issue it has been mentioned that Paragraph 3 of
Article 40 of the Constitution, which guarantees the autonomy of schools of higher education, is
related to the provision of Paragraph 1 of Article 42 of the Constitution, which consolidates the
freedom of science and research. The autonomy of schools of higher education inter alia
encompasses academic autonomy. Therefore, having held that the provision “On completion of
theological study programmes of the second cycle persons may, after consultation with the Catholic
Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2 of Article 48 of the
Law on Science and Studies is not in conflict with Paragraph 1 of Article 42 of the Constitution,
one also needs to held that this provision (which is being disputed by the petitioner) is not in
conflict with Paragraph 3 of Article 40 of the Constitution.
1.8. It needs to be noted that the provision of Paragraph 2 of Article 48 of the Law on
Science and Studies, which is being disputed by the petitioner, regulates the relations of other
nature than those that are regulated under Paragraph 3 of Article 43 of the Constitution, wherein it is
established that churches and religious organisations are free to proclaim their teaching, perform
their practices, and have houses of prayer, charity establishments, and schools for the training of the
clergy, as well as than those that are regulated under Paragraph 7 of Article 43 of the Constitution,
wherein it is established that there shall not be a state religion in Lithuania. Therefore, there are no
grounds due to which it would be possible to maintain that by the legal regulation laid down in
Paragraph 2 of Article 48 of the Law on Science and Studies the legislator has created preconditions
to violate the freedom of activity of churches and religious organisations provided for in Paragraph
3 of Article 43 of the Constitution, nor the provision of Paragraph 7 of the same article that there
shall not be a state religion in Lithuania.
1.9. Taking account of the arguments set forth, one is to draw a conclusion that the provision
“On completion of theological study programmes of the second cycle persons may, after
consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of
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Paragraph 2 of Article 48 of the Law on Science and Studies, to the extent that it prescribes that a
degree of licentiate in theology may be awarded after consultation with the Catholic Church
hierarchy, is not in conflict with Paragraphs 1, 3 of Article 40, Paragraph 3 of Article 41, Paragraph
1 of Article 42, and Paragraphs 3, 7 of Article 43 of the Constitution and the constitutional principle
of a state under the rule of law.
2. The group of Members of the Seimas, a petitioner, has had doubts as to whether
Paragraph 3 of Article 66 of the Law on Science and Studies is not in conflict with Article 18,
Paragraph 1 of Article 25, Paragraphs 1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the
Constitution.
2.1. Paragraph 3 of Article 66 of the Law on Science and Studies provides:
“The Lithuanian Catholic Academy of Sciences shall join together the most prominent
catholic-oriented Lithuanian scientists, Lithuanian scientists living abroad and foreign scientists
who, because of their activities, are connected with Lithuania. The Lithuanian Catholic Academy of
Sciences shall act in compliance with its statutes.”
Thus, Paragraph 3 of Article 66 of the Law on Science and Studies defines the Lithuanian
Catholic Academy of Sciences as an organisation of scientists, which joins the most prominent
catholic-oriented Lithuanian scientists, Lithuanian scientists living abroad and foreign scientists
who, because of their activities, are connected with Lithuania. This organisation acts in compliance
with its statutes, which are registered in accordance with the procedure laid down in the laws of the
Republic of Lithuania.
From the material of the constitutional justice case at issue it is clear that the Lithuanian
Catholic Academy of Sciences is the oldest Lithuanian non-governmental academic organisation,
which was established nine decades ago (in 1922). The legislator refers to the Lithuanian Catholic
Academy of Sciences in Paragraph 3 of Article 66 of the Law on Science and Studies, regarding it
as part of the historical heritage and traditions of Lithuanian science.
It needs to be noted that Article 66 of the Law on Science and Studies is designated for the
establishment of the bases of the activity of organisations of students, teaching staff members,
scientists and other researchers. The said implies that the legal bases of the activity of the
Lithuanian Catholic Academy of Sciences are established by the same laws of the Republic of
Lithuania as the ones that regulate the activity of other organisations of students, teaching staff
members, scientists and other researchers. Inter alia the activity of the Lithuanian Catholic
Academy of Sciences, as well as the activity of other organisations of students, teaching staff
members, scientists and other researchers, is regulated in Paragraph 4 of Article 66 of the Law on
Science and Studies, wherein it is provided that the said organisations may, in accordance with the
procedure laid down by the Research Council of Lithuania, receive state budgetary funds for
54
activities related to the objectives of the system of science and studies.
Consequently, under Paragraph 3 of Article 66 of the Law on Science and Studies, the
Lithuanian Catholic Academy of Sciences is not granted any privileges or special legal status, if
compared to other organisations of students, teaching staff members, scientists and other
researchers, nor may the same paragraph be construed as granting any such privileges or special
legal status.
2.2. Although the petitioner requests investigation into the compliance of Paragraph 3 of
Article 66 of the Law on Science and Studies with Article 18, Paragraph 1 of Article 25, Paragraphs
1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the Constitution, from the arguments of
the petitioner it is clear that it has had doubts as to the compliance of the disputed provision with the
constitutional principle of a state under the rule of law, insofar as this principle is related to the
constitutional principle of equality of persons. The petitioner points out that, by recognising a
scientific organisation as an organisation of confessors of exclusively one religion violates the
constitutional principles of a state under the rule of law and equality of persons; institutionalising a
scientific organisation on the grounds of a confession, in the opinion of the petitioner, violates the
constitutional principle of a state under the rule of law, as well.
Taking account of the said, the Constitutional Court will investigate whether Paragraph 3 of
Article 66 of the Law on Science and Studies is not in conflict with the constitutional principle of a
state under the rule of law, insofar as this principle is related to the constitutional principle of
equality of persons.
2.3. The constitutional principle of a state under the rule of law is especially capacious; it
comprises a range of various interrelated imperatives. The principle of equality of persons, which is
entrenched in Article 29 of the Constitution, is inseparable from the constitutional principle of a
state under the rule of law, which is a universal principle upon which the entire Lithuanian legal
system and the Constitution itself are based.
The Constitutional Court has held that the constitutional principle of equality of rights of
persons in itself does not deny an opportunity to establish diverse, differentiated legal regulation by
means of legislation with respect to certain persons which belong to different categories, if there
exist differences between these persons of such character, which objectively justify such
differentiated regulation. Differentiated legal regulation, when it is applied to certain groups of
persons which are distinguished by the same signs, and in case it strives for positive and socially
meaningful goals, or if the establishment of certain limitations or conditions is linked with
peculiarities of regulated social relations, in itself is not to be regarded as discrimination
(Constitutional Court rulings of 11 November 1998, 13 May 2005, 31 May 2006, 2 March 2009, 29
April 2009, and decision of 20 April 2010).
55
The Constitutional Court has held more than once that the constitutional principle of
equality of all persons before the law would be violated when a certain group of persons to which
the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated
differently, even though there are not any differences in their character and extent between these
groups that such an uneven treatment would be objectively justified. While assessing whether an
established different legal regulation is a grounded one, concrete legal circumstances must be taken
into account. First of all, differences of the legal situation of subjects and objects, to which the
corresponding different legal regulation is applied, must be considered (Constitutional Court rulings
of 28 February 1996, 13 November 1997, 4 July 2003, 24 December 2008, 2 March 2009, 8 June
2009, and decision of 20 April 2010). The compliance of a concrete legal norm with Article 29 of
the Constitution may be assessed only by taking into account all significant circumstances
(Constitutional Court rulings of 4 July 2003, 24 December 2008, 2 March 2009, and 8 June 2009).
2.4. It has been mentioned that the constitutional principle of equality of all persons before
the law would be violated when a certain group of persons, to which the legal norm is ascribed, if
compared to other addressees of the same legal norm, were treated differently, even though there
are not any differences in their character and extent between these groups that such an uneven
treatment would be objectively justified.
It has also been mentioned that Paragraph 3 of Article 66 of the Law on Science and Studies
refers to the Lithuanian Catholic Academy of Sciences, by taking into consideration the fact that the
Lithuanian Catholic Academy of Sciences is regarded as part of the historical heritage and traditions
of Lithuanian science; the legal bases of the activity of the Lithuanian Catholic Academy of
Sciences are established by the same laws of the Republic of Lithuania that regulate the activity of
other organisations of students, teaching staff members, scientists and other researchers. It has also
been mentioned that, under Paragraph 3 of Article 66 of the Law on Science and Studies, the
Lithuanian Catholic Academy of Sciences is not granted any privileges or special legal status, if
compared to other organisations of students, teaching staff members, scientists and other
researchers, nor may the same Paragraph 3 of Article 66 be construed as granting any such
privileges or special legal status.
It needs to be noted that, under the Constitution, the legislator may not lay down any such
legal regulation under which the Lithuanian Catholic Academy of Sciences would be granted any
privileges or special legal status, if compared to other organisations of students, teaching staff
members, scientists and other researchers.
2.5. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 3
of Article 66 of the Law on Science and Studies is not in conflict with the constitutional principle of
a state under the rule of law.
56
VI
On the compliance of Paragraph 2 of Article 69 of the Law on Science and Studies with
Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under
the rule of law.
1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 2 of
Article 69 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 41 of the
Constitution and the constitutional principle of a state under the rule of law.
2. Paragraph 2 of Article 69 of the Law on Science and Studies provides:
“State budget funds for studies shall not be appropriated for branches of foreign schools of
higher education established in the Republic of Lithuania.”
3. Thus, under the legal regulation (disputed by the petitioner) established in Paragraph 2 of
Article 69 of the Law on Science and Studies, appropriation of state budget funds for branches of
foreign schools of higher education established in the Republic of Lithuania is prohibited.
3.1. Under Paragraph 1 of Article 2.53 of the Civil Code of the Republic of Lithuania, the
branch office of a legal person shall be its structural unit, which has its registered office and
performs all or part of the legal person’s functions. In this context the notion “branch of a foreign
school of higher education established in the Republic of Lithuania” employed in Paragraph 2 of
Article 69 of the Law on Science and Studies should be understood as a structural unit of a school
of higher education, which is established and has its seat abroad, where the said unit is founded and
has its seat in the Republic of Lithuania and carries out all functions (or part thereof) of the said
school of higher education.
3.2. It needs to be noted that, under Paragraph 2 of Article 6 of the Law on Science and
Studies, schools of higher education may be state and non-state ones; under Paragraph 4 of the same
article, a state school of higher education shall be a public legal person functioning as a public
establishment, possessing the autonomy guaranteed by the Constitution, and the special status
defined by this and other law, whereas a non-state school of higher education shall be a public legal
person functioning as a public establishment or a private legal person.
It also needs to be noted that, under Paragraphs 3 and 4 of Article 27 of the Law on Science
and Studies, either the Seimas or the Government are founders of schools of higher education (the
Seimas shall establish a state university upon the recommendation of the Government, whereas a
state college shall be established by the Government upon the recommendation of the Ministry of
Education and Science). Under Paragraph 5 of Article 27 of the Law on Science and Studies, a non-
state school of higher education may be established by natural or legal persons, with the exception
of state and municipal institutions and establishments, as well as by branches, located in Lithuania,
of enterprises established in Member States of the European Union or other states which signed the
57
Agreement on the European Economic Area.
Thus, in the context of the legal regulation established in the Law on Science and Studies,
branches of foreign schools of higher education established in the Republic of Lithuania are
virtually equalled to non-state schools of higher education.
3.3. The provision (disputed by the petitioner) of Paragraph 2 of Article 69 of the Law on
Science and Studies is first of all related to the provision of Item 2 of Paragraph 1 of Article 67 of
this law wherein a possibility is provided to allocate state budge funds to all (i.e. both state and non-
state) institutions of science and studies. Thus, Paragraph 2 of Article 69 of the Law on Science and
Studies has established a special norm with regard to the norm of Item 2 of Paragraph 1 of Article
67, since the norm of Paragraph 2 of Article 69 contains a special prohibition to allocate state
budget funds to branches of foreign schools of higher education established in the Republic of
Lithuania; in this way the said branches are singled out from among non-state schools of higher
education.
3.4. The provision (disputed by the petitioner) of Paragraph 2 of Article 69 of the Law on
Science and Studies is related to Paragraph 1 of the same article, wherein it is established:
“State budget funds for studies shall be appropriated for:
1) covering the study cost in student places which are funded by the state;
2) compensating, in the manner prescribed by Article 71 of this Law, the study costs paid by
the students who achieved the best results of studies in the student places which are not funded by
the state;
3) target funding of studies;
4) state loans or state-supported loans;
5) social scholarships and other support.”
The allocation of the state budget funds for studies provided for in Paragraph 1 of Article 69
of the Law on Science and Studies is regulated in Articles 70, 71, 73, 74, 75 of this law. In this
context it needs to be noted that, under Paragraph 2 of Article 69 of the Law on Science and
Studies, appropriation of state budget funds for branches of foreign schools of higher education
established in the Republic of Lithuania is prohibited. Therefore, this prohibition may not be
understood as a prohibition to allocate state budget funds for studies to the persons who are
studying in branches of foreign schools of higher education established in the Republic of
Lithuania, i.e. the state budget funds for studies provided for in Items 2, 4, 5 of Paragraph 1 of
Article 69 of the Law on Science and Studies. While taking account of this, the said persons may be
allocated state budget funds under Article 71 of the Law on Science and Studies, which regulates
compensation of the costs paid for studies, under Article 74 thereof, which regulates allocation of
state loans and state supported loans to students of schools of higher education, and under Article
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75 thereof, which regulates allocation of scholarships and other support from state budget funds to
students.
Article 70 of the Law on Science and Studies regulates payment of study costs in student
places funded by the state, i.e. distribution of student places funded by the state among schools of
higher education (both state and non-state ones) and the procedure for payment for such student
places by state budget funds. It needs to be noted that, under the same article, the state budget funds
for payment of the study costs in student places funded by the state are allocated not directly to the
persons studying in student places funded by the state, but to the schools of higher education so that
they continue to keep such distributed student places funded by the state. Such funds are allocated
under procedure established by the Government, after distribution of state-funded student places
among schools of higher education within study programmes of the first cycle and integrated study
programmes, without exceeding the state funding established by the Government for each area of
studies and upon approval, by the Ministry of Education and Science, the final number of state-
funded student places of the first cycle and integrated studies, after the results of admission to
higher education institutions are made known and study agreements are signed, also upon
establishment, by the Government, the number of state-funded student places of the second cycle,
doctoral studies and studies which do not award a degree in concrete fields of studies (Paragraphs 2,
5, 9, 11 of Article 70 of the Law on Science and Studies).
Article 73 of the Law on Science and Studies regulates targeted funding of studies;
Paragraph 1 thereof inter alia provides that, in accordance with the procedure laid down by the
Ministry of Education and Science, state budget funds may, by way of competition, be appropriated
to institutions (both state and non-state ones) of science and studies for the implementation of study
programmes, taking into consideration the most urgent needs of the economic, social and cultural
development of the state, if the said needs may not be satisfied in other ways laid down in this law.
Thus, the prohibition, established in Paragraph 2 of Article 69 of the Law on Science and
Studies, to allocate state budget funds for studies to branches of foreign schools of higher education
established in the Republic of Lithuania means a prohibition to allocate, for studies, the state budget
funds mentioned in Items 1, 3 of Paragraph 1 of the same article, i.e. state budget funds for covering
the study costs in student places which are funded by the state under Article 70 of the Law on
Science and Studies and state budget funds for target funding of studies under article 73 of the same
law.
3.5. While summing up the legal regulation (which is being disputed by the petitioner)
established in Paragraph 2 of Article 69 of the Law on Science and Studies, it needs to be noted that
the prohibition to allocate state budget funds for studies to branches of foreign schools of higher
education established in the Republic of Lithuania also means that state-funded student places may
59
not be distributed among branches of foreign schools of higher education established in the
Republic of Lithuania, nor may target funding of studies be allocated to such branches. Thus, if
compared with other, inter alia non-state schools of higher education, one has established less
favourable conditions for activity with respect to branches of foreign schools of higher education
established in the Republic of Lithuania. Such limitations upon activities of branches of foreign
schools of higher education established in the Republic of Lithuania are substantiated by a single
criterion—the location of the main activity and of the seat of the school of higher education—i.e.
the legal regulation established less favourable conditions for activity with respect to branches of
foreign schools of higher education established in the Republic of Lithuania only because of the fact
that such branches are established by foreign but not Lithuanian state and non-state schools of
higher education.
4. In the context of the constitutional justice case at issue it needs to be noted that the legal
regulation of branches of foreign schools of higher education is related to the main principles of EU
law, inter alia to the principle of non-discrimination and to the main freedoms.
4.1. Under Article 150 of the Constitution, the Constitutional Act of the Republic of
Lithuania “On Membership of the Republic of Lithuania in the European Union” is a constituent
part of the Constitution. Article 2 of the said act provides that the norms of the European Union law
shall be a constituent part of the legal system of the Republic of Lithuania; where it concerns the
founding Treaties of the European Union, the norms of the European Union law shall be applied
directly, while in the event of collision of legal norms, they shall have supremacy over the laws and
other legal acts of the Republic of Lithuania.
In this context it needs to be mentioned that the Constitutional Court has noted more than
once that the jurisprudence of the Court of Justice of the European Union (hereinafter referred to as
the ECJ) as a source of construction of law is also important to construction and application of
Lithuanian law (Constitutional Court rulings of 21 December 2006, 15 May 2007, 4 December
2008 and 27 March 2009).
4.2. Even though under Paragraph 1 of Article 165 of the Treaty on the Functioning of the
European Union (hereinafter referred to as TFEU) the European Union fully respects the
responsibility of the Member States for the content of teaching and the organisation of education
systems, in this area the Member States must comply with other provisions of EU law, especially
those pertaining to the principle of non-discrimination on grounds of nationality, which is
entrenched in Article 18 of the TFEU, as well as with the provisions consolidating the main
freedoms, inter alia the provisions of Articles 49–55 of the TFEU regulating freedom of
establishment.
Under the first section of Article 49 of the TFEU, restrictions on the freedom of
60
establishment of nationals of a Member State in the territory of another Member State shall be
prohibited; such prohibition shall also apply to restrictions on the setting-up of agencies, branches
or subsidiaries by nationals of any Member State established in the territory of any Member State.
Article 54 of the TFEU provides that companies or firms formed in accordance with the law of a
Member State and having their registered office, central administration or principal place of
business within the Union shall be treated in the same way as natural persons who are nationals of
Member States; this provision is applied to companies or firms constituted under civil or
commercial law, including cooperative societies, and other legal persons governed by public or
private law, save for those which are non-profit-making. Thus, profit-making schools of higher
education may also make use of freedom of establishment.
The ECJ has held in its jurisprudence more than once that freedom of establishment entails,
in accordance with Article 54 of the TFEU, for companies formed in accordance with the law of a
Member State and having their registered office, central administration or principal place of
business within the European Union, the right to exercise their activity in the Member State
concerned through a subsidiary, branch or agency (the 21 September 1999 judgment in
Saint-Gobain ZN, C-307/97, ECR I-6161, paragraph 35; the 12 September 2006 judgment in
Cadbury Schweppes and Cadbury Schweppes Overseas, C-196/04, ECR I-7995, paragraph 41; the
13 March 2007 judgment in Test Claimants in the Thin Cap Group Litigation, C-524/04, ECR
I-2107, paragraph 36). Thus, freedom of establishment includes the right of companies, inter alia
that of profit-making schools of higher education, to establish their branches within the territories of
Member States of the European Union (EU) and the prohibition to limit this right if there is no
justifying reason within EU law.
In this context the ECJ has noted that it is not allowed to resort to any such national
measures, which, even though applied without discrimination on grounds of nationality, are liable to
hamper or to render less attractive the exercise, by Community nationals, of fundamental freedoms;
the limitation is allowed only if such a measure pursued a legitimate objective compatible with the
Treaty establishing the European Community (at present—the TFEU) or if it is justified by
imperative requirements in the general interest, and provided corresponding national legal acts are
suitable for securing the attainment of the objective which they pursue and if they do not go beyond
what is necessary in order to attain it (the 31 March 1993 judgment in Kraus, C-19/92, ECR I-1663,
paragraph 32; the 30 November 1995 judgment in Gebhard, C-55/94, ECR I-4165, paragraph 37;
the 9 March 1999 judgment in Centros, C-212/97, ECR I-1459, paragraph 34). Thus, EU law
expressively prohibits the measures limiting freedom of establishment (inter alia the right of
companies to establish their branches), discriminating on the grounds of citizenship and hampering
or rendering less attractive the exercise of this right.
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4.3. It needs to be noted that, under Directive 2006/123/EC of the European Parliament and
of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, pp.
36–68), which inter alia regulates freedom of establishment of providers supplying services,
Member States must not establish discriminatory requirements based directly or indirectly on
nationality or, in the case of companies, the location of the registered office (Item 1 of Article 14).
Inter alia different conditions of activity, related to the requirement to the seat of a provider
supplying services, are attributed to indirect discrimination. Thus, under the said directive, the
establishment of less favourable conditions for companies supplying services, inter alia for profit-
making schools of higher education conducting studies, only on the grounds of the location of their
seat is per se to be regarded as a prohibited discriminatory limitation.
5. While substantiating its doubts regarding the compliance of Paragraph 2 of Article 69 of
the Law on Science and Studies with the Constitution, while invoking the official constitutional
doctrine, the petitioner is asserting that, having assessed the needs of society and the state and the
capabilities of the state, in cases when state schools of higher education cannot prepare specialists
of some areas due to objective reasons, then such specialists, under commissioning by the state,
must also be prepared in non-state schools of higher education, including branches of foreign
schools of higher education.
6. The petitioner is disputing the compliance of Paragraph 2 of Article 69 of the Law on
Science and Studies with inter alia Paragraph 3 of Article 41 of the Constitution which inter alia
provides that persons who are good at their studies shall be guaranteed education at state schools of
higher education free of charge.
It needs to be noted that, while construing the state duty to fund state schools of higher
education from the state budget, in its ruling of 20 March 2008 the Constitutional Court held that,
under commissioning of the state, specialists of certain areas (fields) may also be prepared in non-
state schools of higher education by funds of the state budget; in addition, it is permitted to support
citizens, who study in schools of higher education of other states, by funds of the state budget.
Thus, upon assessing the needs of society and the state and the capabilities of the state, in
cases when specialists of certain areas cannot be prepared in state schools of higher education due
to objective reasons, they may be prepared, upon requisition of the state, also in foreign schools of
higher education, including branches of foreign schools of higher education established in the
Republic of Lithuania.
7. The petitioner is disputing the compliance of Paragraph 2 of Article 69 of the Law on
Science and Studies inter alia with the constitutional principle of a state under the rule of law.
As mentioned in the constitutional justice case at issue, the constitutional principle of a state
under the rule of law is especially capacious; it comprises a range of various interrelated
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imperatives. The principle of equality of persons, which is entrenched in Paragraph 1 of Article 29
of the Constitution, is inseparable from the constitutional principle of a state under the rule of law,
which is a universal principle upon which the entire Lithuanian legal system and the Constitution
itself are based.
Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before
the law, the court, and other state institutions and officials. This provision enshrines formal equality
of all persons. The constitutional principle of equality of all persons before the law requires that in
law the main rights and duties be established equally to all (Constitutional Court rulings of 30 June
2000, 24 December 2008, and 2 March 2009).
In the constitutional justice case at issue it has been mentioned that the constitutional
principle of equality of rights of persons in itself does not deny an opportunity to establish diverse
and differentiated legal regulation by means of legislation with respect to certain persons who
belong to different categories, if there exist differences between these persons of such a character
that objectively justify such differentiated regulation. Differentiated legal regulation, when it is
applied to certain groups of persons which are distinguished by the same signs, and in case it is
striving for positive and socially meaningful goals, or if the establishment of certain limitations or
conditions is linked with the peculiarities of regulated social relations, in itself is not to be regarded
as discrimination. However, the constitutional principle of equality of all persons before the law
would be violated when a certain group of persons, to which the legal norm is ascribed, if compared
to other addressees of the same legal norm, were treated differently, even though there are not any
differences in their character and extent between these groups that such an uneven treatment would
be objectively justified.
It has also been mentioned that, while assessing whether an established different legal
regulation is a grounded one, particular legal circumstances must be taken into account. First of all,
differences of the legal situation of subjects and objects to which different legal regulation is
applied must be assessed. The compliance of a concrete legal norm with Article 29 of the
Constitution may be assessed only by taking into account all significant circumstances.
8. It has been mentioned that the principle of equality of persons, which is entrenched in
Paragraph 1 of Article 29 of the Constitution, is inseparable from the constitutional principle of a
state under the rule of law, which is a universal principle upon which the entire Lithuanian legal
system and the Constitution itself are based; the constitutional principle of equality of all persons
before the law would be violated when a certain group of persons to which the legal norm is
ascribed, if compared to other addressees of the same legal norm, were treated differently, even
though there are not any differences in their character and extent between these groups that such an
uneven treatment would be objectively justified; while assessing whether an established different
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legal regulation is a grounded one, particular legal circumstances must be taken into account: first
of all, differences of the legal situation of subjects and objects to which different legal regulation is
applied must be assessed.
It has also been mentioned that the branches of foreign schools of higher education
established in the Republic of Lithuania, which are specified in Paragraph 2 of Article 69 of the
Law on Science and Studies, in the context of the legal regulation established in this law, are
virtually equalled to non-state schools of higher education. It has also been mentioned that
Paragraph 2 of Article 69 of the Law on Science and Studies contains a prohibition to allocate state
budget funds for studies to branches of foreign schools of higher education established in the
Republic of Lithuania; alongside, such legal regulation means that state-funded student places may
not be distributed among branches of foreign schools of higher education established in the
Republic of Lithuania, nor may target funding of studies be allocated to such branches. Thus, if
compared with other non-state schools of higher education and persons studying therein, one has
established less favourable conditions for activity with respect to branches of foreign schools of
higher education established in the Republic of Lithuania and persons studying in such branches.
Such limitations upon activities of branches of foreign schools of higher education established in
the Republic of Lithuania are substantiated by a single criterion—the location of the main activity
and of the seat of the school of higher education—i.e. such legal regulation has established less
favourable conditions for activity with respect to branches of foreign schools of higher education
established in the Republic of Lithuania only because of the fact that such branches are established
by foreign schools of higher education.
It needs to be noted that in the context of the constitutional principle of equality of all
persons before the law such differentiated legal regulation of branches of foreign schools of higher
education established in the Republic of Lithuania is to be regarded as discriminatory, since the
criterion substantiating it (the location of the main activity and seat of the school of higher
education) may not be objectively justified, especially when establishing differentiated legal
regulation with respect to branches of schools of higher education established in the Republic of
Lithuania, which have their seat in other Member States of the European Union. While establishing
limitations upon the activity of science and studies only according to the location of the main
activity and seat of the school of higher education, one is not seeking any objectives corresponding
to the public interest. It needs to be emphasised that the mere fact that the activity of science and
studies is carried out by the branch of a foreign school of higher education may not serve as grounds
for an assumption that the higher education provided by it is of lesser quality than that provided by
Lithuanian schools of higher education.
Thus, one is to draw a conclusion that Paragraph 2 of Article 69 of the Law on Science and
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Studies is in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional
principle of a state under the rule of law.
9. It has been mentioned that, while construing Paragraph 3 of Article 41 of the Constitution,
the Constitutional Court held that, under commissioning of the state, specialists of certain areas
(fields) may also be prepared in non-state schools of higher education by funds of the state budget;
in addition, it is permitted to support citizens, who study in schools of higher education of other
states, by funds of the state budget. It has also been mentioned that, upon assessing the needs of
society and the state and the capabilities of the state, in cases when specialists of certain areas
cannot be prepared in state schools of higher education due to objective reasons, they may be
prepared, upon requisition of the state, also in foreign schools of higher education, including
branches of foreign schools of higher education established in the Republic of Lithuania.
It has also been mentioned that Paragraph 2 of Article 69 of the Law on Science and Studies
contains a prohibition to allocate state budget funds for studies to branches of foreign schools of
higher education established in the Republic of Lithuania; alongside, such legal regulation means
that state-funded student places may not be distributed among branches of foreign schools of higher
education established in the Republic of Lithuania, nor may target funding of studies be allocated to
such branches. Therefore, under the legal regulation established in Paragraph 2 of Article 69 of the
Law on Science and Studies, the state is prohibited from presenting a commissioning, upon
assessing the needs of society and the state and the capabilities of the state, to train specialists of
separate areas in branches of foreign schools of higher education established in the Republic of
Lithuania even in the cases when such specialists cannot be trained in state schools of higher
education.
Thus, one is to draw a conclusion that Paragraph 2 of Article 69 of the Law on Science and
Studies is in conflict with Paragraph 3 of Article 41 of the Constitution.
10. Summing it up, it needs to be held that Paragraph 2 of Article 69 of the Law on Science
and Studies is in conflict with Paragraph 1 of Article 29 and Paragraph 3 of Article 41 of the
Constitution and with the constitutional principle of a state under the rule of law.
VII
On the compliance of Articles 19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the
Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution and the
constitutional principle of a state under the rule of law.
1. The group of Members of the Seimas, a petitioner, has had doubts as to whether Articles
19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the Law on Science and Studies are not in
conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state
under the rule of law.
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1.1. Article 19 “Bodies of schools of higher education” of the Law on Science and Studies
prescribes:
“1. A state university must have the collegial governance bodies—the council and the
senate, and a one-person governance body—the rector.
2. A state college must have the collegial governance bodies—the council and the academic
council, and a one-person governance body—the director.
3. Governance of a non-state school of higher education shall be regulated by the founding
documents of this school of higher education.”
1.2. Article 20 “Council of a state school of higher education” of the Law on Science and
Studies prescribes:
“1. A governance body of a state school of higher education shall be the council.
2. The council shall perform the following functions:
1) approve the vision and mission of the school of higher education, a strategic action plan
presented by the rector (director);
2) upon hearing the opinion of the senate (academic council), submit amendments of the
university statute to the Seimas (amendments of the college statute—to the Government) for
approval;
3) consider and approve plans for reorganisation of the structure of the school of higher
education presented by the rector (director);
4) set the procedure for managing, using and disposing of funds (also funds allocated for
work remuneration of the school’s leadership and other employees) and assets of the school of
higher education, consider and approve key decisions related thereto;
5) set the procedure for organising election of the rector (director) of the school of higher
education through open competition; elect, appoint to the office and dismiss from it the rector
(director) of the school of higher education;
6) set the principles for selection and assessment of employees of the school of higher
education;
7) on the recommendation of the rector (director) set the study cost and the rates of fees that
are not directly related to the implementation of a study programme;
8) set a general number of student places, taking into account the possibilities of quality
assurance in studies and scientific activities;
9) approve an annual statement of revenue and expenditure of the school of higher education
and a report on the execution of this statement presented by the rector (director); may initiate an
audit of economic and financial activities of the school of higher education;
10) approve an annual report on the activities of the school of higher education presented by
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the rector (director), evaluate the compliance of the activities with the strategic plan, the achieved
results and their impact;
11) ensure the accountability and relation of the school of higher education with the public
and its founders, each year inform the public about the results of the implementation of the strategic
action plan of the school of higher education;
12) attend to support for the school of higher education;
13) upon hearing the opinion of the senate (academic council), approve plans for
reorganisation or liquidation of the school of higher education and submit them to the Seimas (the
Government) for approval;
14) prepare an annual report on its activities and submit it: in case of state universities—to
the Seimas, and in case of state colleges—to the Government;
15) perform the functions prescribed in the statute of the school of higher education and
other legal acts.
3. The council shall consist of 9 or 11 members. The statute of the school of higher
education shall set an exact number of the council members. In accordance with the procedure laid
down by the statute of the school of higher education, one member of the council shall be appointed
by the representation of students, and in the absence of such—a general meeting (conference) of
students; two members, or if the council consists of 11 members, three members shall be appointed
by the teaching staff and the scientific staff; one member—by the administration and other
employees; one council member shall be appointed by the Minister of Education and Science
together with the senate (academic council) of the school of higher education; four members, or if
the council consists of 11 members, five members shall be proposed by legal and natural persons
from the persons who do not belong to the staff and students of the school of higher education—
these members of the council shall be appointed and recalled by the Minister of Education and
Science on the recommendation of the Council of Higher Education, upon hearing the opinion of
the council of the school of higher education. The Minister of Education and Science shall publicly
announce the composition of the council.
4. A person may be a member of the council if he is of good repute, held or holds a position
of responsibility in the sphere of education, science, culture, public activity or business (this
requirement shall not apply to a representative of students) and has knowledge and competence
enabling him to seek the objectives of the school of higher education and to fulfil the mission of the
school of higher education. The same person may serve on the council only for two consecutive
terms of the council.
5. The President of the Republic, Members of the Seimas and the Government, as well as
public servants of political (personal) confidence may not be members of the council.
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6. The term of office of a member of the council shall be five years. Not later than a month
before the expiry of the term of office of a council member the Minister of Education and Science
shall announce a composition of a newly formed council.
7. When commencing the duties of his office, a member of the council shall, at a meeting of
the council, in the manner prescribed by the statute of the school of higher education, sign a
commitment to follow the interests of the school of higher education and the public and to fulfil in
good faith the functions set out by this law.
8. The council shall elect the chairman of the council from among its members and recall
him by a majority of votes cast by all members of the council. A person belonging to the staff of the
school of higher education or a student may not be the chairman of the council.
9. The council shall approve its rules of procedure. The council shall take decisions by a
majority of votes cast by the council members attending the meeting. A meeting of the council shall
be valid if it is attended by at least two thirds of the members of the council.
10. The rector (director) of the school of higher education may attend meetings of the
council in an advisory capacity.
11. If a member of the council fails to properly perform the duties set out by the statute of
the school of higher education, the rules of procedure of the council or the commitment referred to
in Paragraph 7 of this Article, or fails to sign the commitment referred to in Paragraph 7 of this
Article, the chairman of the council shall have the right to address the person who appointed the
said member with a request to recall the appointed member of the council.
12. If the powers of the member of the council are terminated before the expiry of his term
of office, a new member of the council shall be appointed in accordance with the procedure laid
down in Paragraph 3 of this Article by the person who appointed the member of the council whose
powers are terminated. The new member of the council shall commence his duties after the Minister
of Education and Science announces his appointment and the member of the council signs a
commitment specified in Paragraph 7 of this Article.
13. Members of the council may be remunerated for the activities during the tenure with the
funds of the school of higher education. The procedure for paying payments shall be laid down in
the statute of the school of higher education.
14. The rector (director) shall ensure organisational conditions necessary for the activities of
the council.”
1.3. Article 21 “Senate (academic council) of a state school of higher education” of the Law
on Science and Studies prescribes:
“1. The senate (academic council) of a state school of higher education shall be the
governance body of academic affairs of that school of higher education.
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2. The university senate shall execute the following functions:
1) approve programmes of studies, scientific research and experimental (social, cultural)
development, art programmes, and present proposals to the rector regarding the funding of these
programmes and reorganisation of the university structure which is necessary for implementation of
those programmes, evaluate the results of conducted research as well as the quality and level of all
scientific and artistic activities of the university;
2) define a procedure of studies; approve internal rules of the university;
3) approve an internal system of quality assurance in studies and control its implementation;
4) in compliance with the established principles for selection and evaluation of university
employees, approve the qualification requirements for positions of teaching staff members and
scientific staff members, lay down the procedure for performance evaluation of teaching staff
members and scientific staff members and for organisation of a competition to fill a position;
5) in accordance with the procedure laid down by the university statute, convene meetings
(conferences) of the academic community of the university to discuss important issues concerning
activities of the university;
6) in accordance with the procedure laid down by the university statute, bestow university’s
honorary degrees and other titles;
7) perform other functions prescribed by legal acts and the university statute.
3. The academic council of a college shall perform the following functions:
1) approve study programmes and present proposals to the director regarding the funding of
these programmes and reorganisation of the college structure which is necessary for implementation
of those programmes, evaluate the results of conducted research as well as the quality and level of
applied scientific and artistic activities of the college;
2) define a procedure of studies; approve internal rules of the college;
3) approve an internal system of quality assurance in studies and control its implementation;
4) in compliance with the established principles for selection and evaluation of college
employees, approve the qualification requirements for positions of teaching staff members and
scientific staff members, lay down the procedure for performance evaluation of teaching staff
members and scientific staff members and for organisation of a competition to fill a position;
5) in accordance with the procedure laid down by the college statute, convene meetings
(conferences) of the academic community of the college to discuss important issues concerning
activities of the college;
6) in accordance with the procedure laid down by the college statute, bestow college’s
honorary degrees;
7) perform other functions prescribed by legal acts and the college statute.
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4. A senate (academic council) shall be set up in accordance with the procedure laid down in
the statute of the school of higher education for a period not exceeding five years.
5. Members of the academic community of the university (college), members of the
administration of the university who pass into the senate (academic council) based on their position,
as well as scientists, teaching staff members and established artists of other institutions of science
and studies may be members of the senate (academic council). Representatives appointed by
students must comprise not less than 20 per cent of the members of the senate (academic council).
Representatives of students shall be appointed to the senate (academic council) by a student
representation; if there is no such representation—by a general meeting (conference) of the
students. Persons holding the position of professor and chief scientific staff member must comprise
not less than 20 per cent of the members of the senate. Persons holding the position of associate
professor and senior scientific staff member must comprise not less than 20 per cent of the members
of the senate (academic council). Persons who are members of the senate (academic council) based
on their position must comprise not more than 10 per cent of the members of the senate (academic
council). Employees of other institutions of science and studies may also be members of the senate
(academic council) based on their position. The rector (director) of the school of higher education
shall also be a member of the senate (academic council) based on his position.
6. Activities of the senate (academic council) shall be regulated by the rules of procedure of
the senate (academic council) as approved by the senate (academic council) of the school of higher
education.
7. The rector (director) of the school of higher education may not be chairman of the senate
(academic council).
8. The senate (academic council) shall, in accordance with the procedure laid down by the
statute of the school of higher education, inform the community of the school of higher education
about its decisions and shall account for its activities to the said community once a year.”
1.4. Article 22 “Rector (director) of a state school of higher education” of the Law on
Science and Studies prescribes:
“1. The rector (director) of a school of higher education shall be a one-person governance
body of the school of higher education, shall act in the name of the said institution and represent it.
2. The rector (director) shall execute the following functions:
1) head a school of higher education, organise its activities, ensuring the implementation of
a strategic action plan;
2) issue orders;
3) recruit and dismiss employees of the school of higher education;
4) admit and exclude students in accordance with the procedure laid down by the statute of
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the school of higher education;
5) upon evaluation of proposals of the student representation, submit to the council for
approval the study cost and the rates of fees that are not directly related to the implementation of a
study programme;
6) be responsible for financial activities of the school of higher education, proper
management, use and disposal of funds and assets;
7) submit to the council for approval and publicly announce an annual report on the
activities of the school of higher education, an annual statement of revenue and expenditure and a
report on the execution of this statement;
8) acquaint the senate (academic council) with an annual report on the activities of the
school of higher education and submit it to the Ministry of Education and Science;
9) submit to the council for approval a strategic plan for activities of the school of higher
education and plans for reorganisation of the structure of the school of higher education;
10) perform other functions prescribed in legal acts and the statute of the school of higher
education.
3. The rector (director) shall be elected by an open competition, appointed and dismissed by
the council.
4. The council shall announce an open competition to fill a position of the rector (director).
The rector (director) shall be considered to be elected if at least three-fifths of all the council
members vote for him.
5. The rector may be a person who has a scientific degree or is an established artist, who has
the experience in pedagogy and management.
6. The director may be a person who has the experience in pedagogy and management.
7. The chairman of the council or any other person authorised by the council shall sign in the
name of the school of higher education an employment contract with the elected rector (director) for
the duration of his term of office.
8. The term of office of the rector (director) shall be five years. The same person may be
elected rector (director) of the same school of higher education for not more than two terms of
office in succession and not earlier than after the lapse of five years since the end of the last term of
office, if the last term of office was consecutively second.
9. If an annual report on the activities of the school of higher education or an annual report
on the implementation of the statement of revenue and expenditure presented by the rector
(director) of the school of higher education is not approved by a majority of the council members at
a meeting of the council, the rector (director) may be dismissed from office in accordance with the
procedure laid down by legal acts.”
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2. In the opinion of the group of Members of the Seimas, a petitioner, the legal regulation
laid down in Articles 19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the Law on Science and
Studies denies the principle of autonomy of schools of higher education and violates the
constitutional principle of a state under the rule of law. The petitioner maintains that the fact that the
functions of the council of a state school of higher education are much more extensive if compared
to the functions of control and supervision, the purpose of which is to ensure the responsibility of a
school of higher education and its accountability to the public, as well as the fact that the Minister
of Education and Science directly participates in appointing 5 (out of 9) or 6 (out of 11) council
members, are not in line with the official constitutional doctrine formulated by the Constitutional
Court in relation to the autonomy of schools of higher education.
Thus, from the arguments of the petitioner it is clear that, in view of the official
constitutional doctrine, the petitioner has had doubts as to the compliance, with the Constitution, of
the provisions of Paragraph 2 of Article 20 of the Law on Science and Studies, which sets the
functions of the council of a state school of higher education, also those of Paragraph 3 of this
article, which regulates the formation of the council of a state school of higher education, and the
provision of Paragraph 1 of the same article relating to the said paragraphs, whereby a governance
body of a state school of higher education is the council, as well as the compliance, with the
Constitution, of the provisions of Paragraphs 1 and 2 of Article 19 of the same law, to the extent
that these paragraphs consolidate the council as a collegial governance body of a state university or
state college, the provision of Paragraph 1 of Article 21, whereby the senate (academic council) of a
state school of higher education is the governance body of academic affairs of that school of higher
education, and the provisions of Paragraphs 2 and 3 of this article, which regulate the functions of
the university senate and the academic council of a college, the provisions of Paragraph 2 of Article
22, which regulate the functions of the rector (director), the provisions of Paragraphs 3, 4 and 7 of
the same article, which concern the procedure for election, appointment and dismissal of the rector
(director), and the provisions of Paragraph 9 of this article, which relate to accountability of the
rector (director).
By taking account of the said, the Constitutional Court will, first of all, investigate whether
Paragraphs 2 and 3 of Article 20 of the Law on Science and Studies are not in conflict with
Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the
rule of law.
3. It has been mentioned that Paragraph 2 of Article 20 of the Law on Science and Studies
sets the functions of the council of a state school of higher education, while Paragraph 3 of this
article—the procedure for formation of this council. The provisions in question are to be, first of all,
related to Paragraph 1 of the same article, which provides that a governance body of a state school
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of higher education is the council, as well as to Paragraphs 1 and 2 of Article 19, wherein the
council is identified as one of the collegial governance bodies of a state university (state college).
Although the council is identified as a governance body, it performs the functions of governance as
well as functions of control and supervision.
3.1. Under Paragraph 2 of Article 20 of the Law on Science and Studies, the council
performs the following main functions of governance of a state school of higher education:
approves the vision and mission of the school of higher education, a strategic action plan presented
by the rector (director) (Item 1); upon hearing the opinion of the senate (academic council), submits
amendments of the university statute to the Seimas (amendments of the college statute—to the
Government) for approval (Item 2); approves plans for reorganisation of the structure of the school
of higher education presented by the rector (director) (Item 3); sets the procedure for managing,
using and disposing of funds (also funds allocated for work remuneration of the school’s leadership
and other employees) and assets of the school of higher education, considers and approves key
decisions related thereto (Item 4); sets the procedure for organising election of the rector (director)
of the school of higher education through open competition; elects, appoints to the office and
dismisses from it the rector (director) of the school of higher education (Item 5); sets the principles
for selection and assessment of employees of the school of higher education (Item 6); on the
recommendation of the rector (director) sets the study cost and the rates of fees that are not directly
related to the implementation of a study programme (Item 7); sets a general number of student
places, taking into account the possibilities of quality assurance in studies and scientific activities
(Item 8); approves an annual statement of revenue and expenditure of the school of higher
education and a report on the execution of this statement presented by the rector (director) (Item 9);
approves an annual report on the activities of the school of higher education presented by the rector
(director) (Item 10); upon hearing the opinion of the senate (academic council), approves plans for
reorganisation or liquidation of the school of higher education and submits them to the Seimas (the
Government) for approval (Item 13). Under Item 15 of the same paragraph, the council of a state
school of higher education may also perform other functions of governance of the school of higher
education, as prescribed in the statute of the school of higher education and other legal acts.
Thus, under Paragraph 2 of Article 20 of the Law on Science and Studies, the main
functions of the council of a state school of higher education are chiefly related to the adoption of
strategic decisions and other most important decisions of governance of the school of higher
education. The said functions include decisions inter alia relating to the most important questions in
strategic planning (approval of the vision and mission as well as a strategic action plan of the school
of higher education), reorganisation of the structure and governance of the school of higher
education, principal issues regarding amendments of the legal regulation of the school’s activities as
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well as liquidation of its activities (submission of amendments of the statute to the Seimas or the
Government, approval of plans for reorganisation of the structure of the school of higher education,
approval of plans for reorganisation or liquidation of the school of higher education and their
submission to the Seimas or the Government), principal issues regarding assets and finances of the
school of higher education (establishment of the procedure for managing, using and disposing of
funds and assets of the school of higher education and approval of key decisions related thereto,
approval of the study cost and the rates of fees that are not directly related to the implementation of
a study programme, approval of an annual statement of revenue and expenditure of the school of
higher education and a report on the execution of this statement, establishment of a general number
of student places), as well as the principal issues of personnel management (establishment of the
principles for selection and assessment of employees, establishment of the procedure for organising
elections of the rector (director), also election, appointment and dismissal of the rector (director)).
3.2. In this context it needs to be noted that, under Paragraph 3 of Article 20 of the Law on
Science and Studies, the council of a state school of higher education is composed of 9 or 11
members (an exact number of members of the council is set in the statute of the school of higher
education); in accordance with the procedure laid down by the statute of the school of higher
education, one member of the council is appointed by the representation of students, and in the
absence of such—a general meeting (conference) of students, two members, or if the council
consists of 11 members, three members are appointed by the teaching staff and the scientific staff,
and one member—by the administration and other employees; one council member is appointed by
the Minister of Education and Science together with the senate (academic council) of the school of
higher education; four members, or if the council consists of 11 members, five members are
proposed by legal and natural persons from the persons who do not belong to the staff and students
of the school of higher education—these members of the council are appointed and recalled by the
Minister of Education and Science on the recommendation of the Council of Higher Education,
upon hearing the opinion of the council of the school of higher education.
3.2.1. In this context one also needs to mention Paragraph 1 of Article 53 of the Law on
Science and Studies, wherein it is established that the academic community of institutions of
science and studies, inter alia schools of higher education, consists of students, the teaching staff,
the scientific staff, other researchers, and professors emeritus of these institutions. Thus, under
Paragraph 3 of Article 20 of the Law on Science and Studies, the academic community of a state
school of higher education may directly appoint 3 out of 9 or 4 out of 11 members of the council
(one member of the council is a representative of students, two or three—representatives of the
teaching staff and the scientific staff).
3.2.2. The other 6 out of 9 or 7 out of 11 members of the council of a state school of higher
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education are not directly appointed by the academic community:
– one member of the council is appointed by the administration and other employees (in this
context it needs to be noted that, under Paragraph 1 of Article 60 of the Law on Science and
Studies, the administration is necessary for performance of administrative functions of the
institution of science and studies as well as those of its units, and the administration employees and
other employees are necessary for implementation of the objectives of studies, scientific research,
experimental (social, cultural) development, as well as economic activities of the institution; the
administration is headed by the rector (director), who is appointed by the council);
– one council member is appointed by the Minister of Education and Science together with
the senate (academic council) of the school of higher education, i.e. legal preconditions are created
so that without a decision of the Minister of Education and Science one may not appoint as a
council member a candidate acceptable to the senate (academic council) of the school of higher
education;
– the other 4 out of 9 or 5 out of 11 council members are also appointed by the Minister of
Education and Science from among any candidates who are proposed by legal and natural persons
and who do not belong to the staff members and students of the school of higher education (inter
alia the academic community); these members of the council are appointed by the Minister of
Education and Science on the recommendation of the Council of Higher Education, upon hearing
the opinion of the council, but not the senate (academic council) of the school of higher education.
It needs to be noted that candidates who are proposed by legal and natural persons are not required
to be connected with the school of higher education to the council whereof they are being proposed,
nor to be concerned with successful activities of that school of higher education in the course of
implementation of its goals and mission (i.e., they are not necessarily proposed by, for example,
organisations of benefactors, social partners or the alumni (former students of the school of higher
education) of that school of higher education).
In this context it also needs to be noted that, under Paragraph 3 of Article 12 of the Law on
Science and Studies, the Council of Higher Education is an advisory body to the Ministry of
Education and Science on strategic issues of higher education development. The regulations of the
Council of Higher Education are approved by the Government. In accordance with Item 8 of the
Regulations of the Council of Higher Education, as approved by Resolution of the Government No.
771 “On the Approval of the Regulations of the Council of Higher Education” of 22 July 2009, the
Council of Higher Education consists of 15 members; the chairman of the Council of Higher
Education and its deputy are appointed by the Minister of Education and Science pursuant to the
requirements set for members of the Council (Item 11 of the said regulations); the other 13
members of the Council, in accordance with the procedure set in Item 12 of the said regulations, are
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also appointed by the Minister of Education and Science after a special commission for selection of
council members, formed by the Minister of Education and Science together with the acting
Council, submits to the minister a list of candidates to members of the Council, in which the
number of the indicated candidates must be larger than the required number of members of the
Council which must be approved.
Thus, upon hearing the opinion of the acting council of the school of higher education, and
without the participation of the academic community of the school of higher education, the Minister
of Education and Science appoints 4 out of 9 or 5 out of 11 members of the council of that state
school of higher education on the recommendation of an advisory institution formed by the minister
himself.
3.2.3. In the context of Paragraph 2 of Article 20 of the Law on Science and Studies it needs
to be noted that, under Paragraph 9 of the same article, the council adopts decisions by a majority of
votes cast by the council members attending the meeting; a meeting of the council is valid if it is
attended by at least two thirds of the members of the council.
Thus, strategic and other most important decisions of governance of a state school of higher
education, indicated in Paragraph 2 of Article 20 of the Law on Science and Studies, are adopted by
such a governance body (the council) in which members directly appointed by the academic
community constitute the minority and in forming which the academic community has no decisive
influence; the members directly appointed by the academic community have no decisive influence
in adopting decisions of this body, either.
Paragraph 4 of Article 22 of the Law on Science and Studies provides for an exception in
the event of the election of the rector (director) of a state school of higher education—a special
norm with regard to the aforementioned general norm entrenched in Paragraph 9 of Article 20 of
this law: to elect the rector (director) not a simple majority of votes cast by the council members
attending the meeting is required, whereas votes of at least three-fifths of all the council members,
i.e. votes of 6 council members, if the council consists of 9 members, or votes of 7 council
members, if the council consists of 11 members. Another exception—a special norm with regard to
the general norm entrenched in Paragraph 9 of Article 20 of the Law on Science and Studies—is set
in Paragraph 9 of Article 22 of this law: an annual report on the activities of the school of higher
education or an annual report on the implementation of the statement of revenue and expenditure
presented by the rector (director) may not necessarily be approved by a majority of votes of the
council members, i.e. by votes of 5 council members, if the council consists of 9 members, or votes
of 6 council members, if the council consists of 11 members.
While taking account of the fact that the academic community of a state school of higher
education directly appoints 3 out of 9, or 4 out of 11 members of the council, a conclusion is also to
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be drawn that the academic community has no decisive influence either when the council elects the
rector (director), or when it decides on the question of approval of an annual report on the activities
of the school of higher education or an annual report on the implementation of the statement of
revenue and expenditure presented by the rector (director).
3.2.4. While summing up the legal regulation laid down in Paragraph 3 of Article 20 of the
Law on Science and Studies, it needs to be noted that:
– when forming the council of a state school of higher education, a decisive influence is
wielded by the Minster of Education and Science: without the participation of the academic
community of the school of higher education, the Minister of Education and Science appoints 4 out
of 9, or 5 out of 11 members of the council of a state school of higher education on the
recommendation of an advisory institution formed by the minister himself, and he also appoints one
more member of the council together with the senate (academic council) of the school of higher
education;
– the academic community of a state school of higher education has no decisive influence in
the formation of the council—as a collegial governance body—of that school of higher education: it
may directly appoint 3 out of 9 or 4 out of 11 members of the council;
– the academic community of a state school of higher education has no decisive influence
upon decisions of the council: strategic and other most important decisions of governance of the
school of higher education may be adopted by the council without the assent of the council
members directly appointed by the academic community.
Thus, taking account of the legal regulation laid down in Paragraph 3 of Article 20 of the
Law on Science and Studies, the council of a state school of higher education is not an institution
implementing self-government of the academic community—it performs the main functions of
governance related to self-government of the school of higher education.
3.3. The provisions of Paragraph 2 of Article 20 of the Law on Science and Studies are also
to be construed in the context of the functions of the other collegial governance body of a state
school of higher education—the senate (academic council).
3.3.1. Under Paragraph 5 of Article 21 of the Law on Science and Studies, members of the
academic community of a university (college), members of the administration of a university who
pass into the senate (academic council) based on their position, also scientists, teaching staff
members and established artists of other institutions of science and studies, as well as
representatives appointed by students may be members of the senate (academic council):
representatives appointed by students must comprise not less than 20 per cent of the members of the
senate (academic council), persons holding the position of professor and chief scientific staff
member must comprise not less than 20 per cent of the members of the senate, and persons holding
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the position of associate professor and senior scientific staff member must comprise not less than 20
per cent of the members of the senate (academic council); persons who are members of the senate
(academic council) based on their position must comprise not more than 10 per cent of the members
of the senate (academic council).
Thus, taking account of the procedure for forming the senate (academic council) of a state
school of higher education, the senate (academic council) is a collegial governance body which
directly represents the academic community and is the sole such body implementing self-
government of the academic community.
3.3.2. Under Paragraph 1 of Article 21 of the Law on Science and Studies, the senate
(academic council) of a state school of higher education is defined as the governance body of
academic affairs of the school of higher education. Paragraph 2 of this article sets the functions of
the senate of a state university, while Paragraph 3—those of the academic council of a state college.
The said functions inter alia include the approval of programmes of studies (in the case of the
senate of a university—also programmes of scientific research and experimental (social, cultural)
development, art programmes) and presentation of proposals to the rector (director) regarding
funding of these programmes and corresponding reorganisation of the structure of the school of
higher education, evaluation of the results of conducted research as well as the quality and level of
all scientific and artistic activities of the whole school of higher education, establishment of the
procedure of studies and approval of internal rules of the school of higher education, approval of an
internal system of quality assurance in studies and control of its implementation, approval of the
qualification requirements for positions of teaching staff members and scientific staff members,
establishment of the procedure for performance evaluation of teaching staff members and scientific
staff members and for organisation of a competition to fill a position, convening of meetings
(conferences) of the academic community to discuss important issues concerning activities of the
school of higher education, and bestowing of honorary titles of the school of higher education.
3.3.3. When construing the provisions of Paragraph 2 of Article 20 of the Law on Science
and Studies in conjunction with Paragraphs 2 and 3 of Article 21 of this law, it also needs to be
noted that the senate (academic council) does not participate, or participates only in an advisory
capacity, in adopting strategic and other most important decisions of governance of the state school
of higher education. Inter alia the senate (academic council) does not participate in adopting
decisions on the principal questions of strategic planning (approval of the vision and mission as
well as a strategic action plan of the school of higher education), it only presents its proposals or
opinion regarding the reorganisation of the structure and governance of the school of higher
education, as well as the reorganisation or liquidation of the school of higher education (under Item
1 of Paragraph 2 and Item 1 of Paragraph 3 of Article 21, the senate (academic council) presents
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proposals to the rector (director) regarding the reorganisation of the university (college) structure
which is necessary for the implementation of programmes of studies, scientific research and
experimental (social, cultural) development, as well as art programmes, under Items 2 and 13 of
Paragraph 2 of Article 20, the senate (academic council) presents its opinion to the council
regarding amendments of the university (college) statute and regarding plans for reorganisation or
liquidation), and it does not participate or participates only by presenting its proposals while
adopting principal issues regarding assets and finances of the school of higher education (the senate
(academic council) participates neither in establishing the procedure for managing, using and
disposing of funds and assets of the school of higher education, nor in approving key decisions
related thereto, nor in approving the study cost and the rates of fees that are not directly related to
the implementation of a study programme, nor in approving an annual statement of revenue and
expenditure of the school of higher education and a report on the execution of this statement, nor in
establishing a general number of student places; under Item 1 of Paragraph 2 and Item 1 of
Paragraph 3 of Article 21, the senate (academic council) presents proposals to the rector (director)
regarding the funding of university (college) programmes of studies, scientific research and
experimental (social, cultural) development, as well as art programmes), the senate (academic
council) does not participate in adopting decisions on the principal issues of personnel management
(in establishing the principles for selection and assessment of employees, setting the procedure for
organisation of elections of the rector (director), also in electing, appointing and dismissing the
rector (director)). In addition, while deciding on other questions of personnel management, the
senate (academic council) is subordinated to the council: under Item 4 of Paragraph 2 and Item 4 of
Paragraph 3 of Article 21 of the Law on Science and Studies, the senate (academic council), in
compliance with the established principles for selection and evaluation of university (college)
employees, approves the qualification requirements for positions of teaching staff members and
scientific staff members and lays down the procedure for performance evaluation of teaching staff
members and scientific staff members and for organisation of a competition to fill a position. The
rector (director) of a state school of higher education is not accountable to the senate (academic
council) and he simply acquaints the senate (academic council) with an annual report on the
activities of the school of higher education approved by the council.
3.4. The provisions of Paragraph 2 of Article 20 of the Law on Science and Studies are also
to be construed in the context of the functions of the rector (director)—another governance body of
a state school of higher education, which are established in Paragraph 2 of Article 22 of this law.
3.4.1. It needs to be noted that the rector (director) of a state school of higher education is a
one-person governance body, who acts in the name of the school of higher education and represents
that school (Paragraph 1 of Article 22 of the Law on Science and Studies). The rector (director) is
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elected, appointed to the office and dismissed from it by the council (Item 5 of Paragraph 2 of
Article 20 and Paragraphs 3, 4 and 7 of Article 22 of the Law on Science and Studies). The rector
(director) is accountable to the council: he submits to the council for approval an annual report on
the activities of the school of higher education, an annual statement of revenue and expenditure of
the school of higher education and a report on the execution of this statement; if the said documents
are not approved by a majority of the council members at a meeting of the council, the rector
(director) may be dismissed from office (Items 9 and 10 of Paragraph 2 of Article 20 and Paragraph
9 of Article 22 of the Law on Science and Studies).
The functions of the rector (director) are established in Paragraph 2 of Article 22 of the Law
on Science and Studies. These functions inter alia include: heading a school of higher education,
organising activities of the school of higher education by ensuring the implementation of a strategic
action plan as approved by the council, issuing orders, recruiting and dismissing employees of the
school of higher education, admitting and excluding students, submitting to the council for approval
the study cost and the rates of fees not directly related to the implementation of a study programme,
being accountable for financial activities of the school of higher education, proper management, use
and disposal of funds and assets, submitting to the council for approval an annual report on the
activities of the school of higher education, an annual statement of revenue and expenditure and a
report on the execution of this statement, acquainting the senate (academic council) with an annual
report on the activities of the school of higher education as approved by the council and submitting
it to the Ministry of Education and Science, submitting to the council for approval a strategic action
plan of the school of higher education and plans for reorganisation of the structure of the school of
higher education.
3.4.2. When construing the provisions of Paragraph 2 of Article 20 of the Law on Science
and Studies in conjunction with Paragraph 2 of Article 22 of this law, it also needs to be noted that
the council of a state school of higher education adopts certain decisions of strategic governance
and other most important decisions of governance upon the proposal of the rector (director). Inter
alia, on the proposal of the rector (director), the council approves a strategic action plan of the
school of higher education, plans for reorganisation of the structure of the school (Items 1 and 3 of
Paragraph 2 of Article 20, Item 9 of Paragraph 2 of Article 22), an annual statement of revenue and
expenditure of the school of higher education and a report on the execution of this statement, as
well as an annual report on the activities of the school of higher education (Items 9 and 10 of
Paragraph 2 of Article 20, Item 7 of Paragraph 2 of Article 22), and sets the study cost and the rates
of fees not directly related to the implementation of a study programme (Item 7 of Paragraph 2 of
Article 20, Item 5 of Paragraph 2 of Article 22).
3.5. It needs to be noted that, besides the aforementioned functions of governance, under
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Paragraph 2 of Article 20 of the Law on Science and Studies, the council of a state school of higher
education also performs the control and supervision functions relating to responsibility of the school
of higher education and its accountability to the public: the council may initiate an audit of
economic and financial activities of the school of higher education (Item 9), assesses the
compliance of an annual report on the activities of the school of higher education presented by the
rector (director) with the strategic plan, the achieved results and their impact (Item 10), ensures the
accountability of the school of higher education to the public and its founders as well as its relation
with them, each year informs the public about the results of the execution of the strategic action
plan of the school of higher education (Item 11), prepares an annual report on its activities and
submits it to the Seimas or the Government (Item 14).
3.6. While summing up the legal regulation laid down in Paragraph 2 of Article 20 of the
Law on Science and Studies in conjunction with other related provisions of this law, it needs to be
noted that:
– the council of a state school of higher education is a governance body of that school of
higher education which has the greatest powers: most of its functions are related to the adoption of
strategic and other most important decisions of governance of the school of higher education; inter
alia the said decisions include the most important decisions concerning the use of financial funds
and other assets for the purpose of implementing the mission of the school of higher education;
– the academic community has no decisive influence in the formation of the council, nor
does it when the council adopts strategic and other most important decisions of governance of the
school of higher education, inter alia the principal decisions concerning the use of financial funds
and other assets for the purpose of implementing the mission of the school of higher education: the
academic community directly appoints a minority of council members, while the majority of
council members are appointed by the Minister of Education and Science; strategic and other most
important decisions of governance of the school of higher education may be adopted by the council
without the assent of the council members directly appointed by the academic community; thus, the
council of a state school of higher education is not an institution implementing self-government of
the academic community, even though it performs the main governance functions related to self-
government of the school of higher education;
– the council adopts strategic and other most important decisions of governance of the state
school of higher education without the participation, or with the participation in only an advisory
capacity, of the senate (academic council), which is a collegial governance body directly
representing the academic community of the school of higher education and the sole such body
implementing self-government of that academic community;
– the council adopts certain strategic and other most important decisions of governance upon
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the proposal of the rector (director)—a one-person governance body appointed by and accountable
to the council;
– besides the functions of governance of the state school of higher education related to the
strategic governance and adoption of the most important decisions of governance of that school, the
council also performs the control and supervision functions related to responsibility of the school of
higher education and its accountability to the public.
4. From the material of the constitutional justice case at issue, inter alia from the systemic
comparative study on higher education in Europe “Higher Education Governance in Europe.
Policies, structures, funding and academic staff” published in 2008 by the information network on
education in Europe “Eurydice”, it is clear that European states apply various models of self-
government and governance of state and state-controlled schools of higher education.
It is noted in this study that all such institutions of higher education in Europe have an
executive body, often called the rectorate, which is headed by a rector, director, president or vice-
chancellor, as the executive head of the institution. Almost all of the said institutions have a
collegial academic body, usually called a senate, academic council or academic board, which is
responsible for the educational and research services provided by the institution. In part of the
European states decisions concerning important institutional matters—long-term and strategic
planning, determining the institutional orientation—are adopted by the academic body. There is a
general trend across Europe toward the introduction of advisory and supervisory bodies, which
supervise or control operational, educational and financial activities.
From the aforesaid study it is clear that the executive head (a rector, director, president or
vice-chancellor) is the main person responsible for the strategic development, organisation and
planning of the institution’s activities (including programming); he performs these duties in close
cooperation with the respective governance bodies. Most of the states examined in this study have a
system by which the head of a state and state-controlled school of higher education is selected and
confirmed by the institution’s academic body.
An academic body—a collegial body, usually called a senate, academic council or academic
board, is primarily responsible for the educational and research services provided by the state or
state-controlled school of higher education. In the majority of European states (e.g., Ireland,
Austria, Belgium, Bulgaria, the Czech Republic, Denmark, Estonia, Greece, Spain, Italy, the United
Kingdom, Latvia, Poland, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal,
Romania, Slovakia, Slovenia, Sweden, Hungary, Germany) in the said institutions of science an
academic body is composed of members of the academic community (internal stakeholders).
A decision-making body of a state or state-controlled school of higher education is
responsible for long-term and strategic planning, as well as for determining the institutional
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orientation. There is not an inconsiderable number of European states (e.g., the Czech Republic,
Denmark, Estonia, Greece, Italy, Latvia, Poland, the Netherlands, Portugal, Romania, Slovenia,
Slovakia, Hungary) in which a separate decision-making body is not formed and its functions are
assumed by the academic body. In some of the states (e.g., Spain, most of the German Länder) the
academic body is not vested with the competence to adopt the aforesaid important institutional
decisions. However, in the majority of European states (e.g., Bulgaria, the Czech Republic, Estonia,
Spain, Italy, Latvia, Poland, the Netherlands, Romania, Slovakia, Slovenia, Germany (most of its
federal Länder)) the bodies discharging decision-making functions (inter alia academic bodies or
special decision-making bodies), which adopt the most important decisions relating to long-term
and strategic planning as well as to determining the institutional orientation, are composed
exceptionally of internal stakeholders of the institution of science. In some European states the
decision-making body is composed of internal as well as external stakeholders (e.g., Norway,
France, Finland), or solely of external stakeholders (e.g., Belgium, Liechtenstein, Luxembourg).
In most European states (e.g., Austria, Bulgaria, the Czech Republic, Denmark, Estonia,
Spain, Italy, Latvia, the Netherlands, Portugal, Slovakia, Slovenia, Hungary, Germany) state and
state-controlled schools of higher education have instituted advisory or supervisory bodies, which
supervise or control operational, educational and financial activities, and which are composed solely
or largely of external stakeholders. In some European states (e.g., Ireland, Cyprus, Liechtenstein,
Luxembourg, Norway, Sweden) the supervisory body performs both the supervisory and decision-
making functions.
5. The principle of autonomy of schools of higher education inter alia is entrenched in the
Magna Charta Universitatum, which declares inter alia the following fundamental principles:
– the university is an autonomous institution at the heart of societies differently organised
because of geography and historical heritage; it produces culture by research and teaching; to meet
the needs of the world around it, its research and teaching must be morally and intellectually
independent of all political authority and economic power;
– freedom in research and training is the fundamental principle of university life;
governments and universities, each as far as in them lies, must ensure respect for this fundamental
requirement; rejecting intolerance and always open to dialogue, a university is an ideal meeting-
ground for teachers capable of imparting their knowledge and well equipped to develop it by
research and innovation and for students entitled, able and willing to enrich their minds with that
knowledge.
6. The group of Members of the Seimas, a petitioner, has had doubts as regards the
compliance of Paragraphs 2 and 3 of Article 20 of the Law on Science and Studies with inter alia
Paragraph 3 of Article 40 of the Constitution, which consolidates the autonomy of schools of higher
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education.
In the constitutional justice case at issue it has been held that the autonomy of schools of
higher education, guaranteed in Paragraph 3 of Article 40 of the Constitution, implies academic and
institutional autonomy. In its ruling of 27 June 1994, the Constitutional Court, while construing the
provision of Paragraph 3 of Article 40 of the Constitution, whereby schools of higher education are
granted autonomy, held that, historically, the idea of the autonomy of the school of higher education
came into being in the Middle Ages, when universities originated as establishments of science and
studies. The autonomy meant that the university, to a certain extent, was independent from the state,
was striving to dissociate itself from the influence of political power, to create an independent
system of regulation of internal activities within the school of higher education. The purpose of
such dissociation from the state power was to safeguard the freedom of science, research and
teaching, to protect researchers and professors from political influence. The development of the
academic autonomy has always been determined by the understanding that science and teaching
may normally exist and induce progress only when they are free and independent. Thus appeared
the principle of academic freedom, which expressed the striving to protect the researchers’ and
teachers’ freedom of scientific thought and its expression from outward influence. Traditionally, the
autonomy of the school of higher education is conceived as the right to independently determine
and establish in the regulations or statute the organisational and governance structure, relations with
other partners, the procedure of research and studies, study programmes and the procedure of
student enrolment, to solve other related questions, to use the property given over by the state and
other acquired property, to possess the territory, buildings and other property allotted for the needs
of research and studies, and to have the guarantee of inviolability. For this purpose, the school of
higher education is guaranteed the institutional autonomy, i.e. a certain status, which means that
there are certain spheres of activities independent from the control of the executive power
(Constitutional Court rulings of 14 January 2002, 5 February 2002, 20 February 2008 and 20 March
2008).
It needs to be noted that academic autonomy and institutional autonomy of schools of higher
education are inseparably interrelated, i.e. without academic autonomy one may not guarantee
institutional autonomy—the self-government of a school of higher education, while without
institutional autonomy one would not ensure academic autonomy, which stems inter alia from the
constitutional freedom of science and research. In its decision of 28 October 2009 the Constitutional
Court held that the constitutional concept of freedom of science, research and teaching implies the
professional independency of the scientific community, which is inseparable from self-government
of schools of higher education, which is one of essential conditions for implementation of autonomy
of schools of higher education; in order to ensure the constitutional implementation of the principle
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of academic freedom and the public interests that conditions are created in schools of higher
education to offer all-round education of the personality, and that schools of higher education enjoy
freedom of teaching, of scientific research and creative activities, the institutions of governance that
carry out the functions of self-government of the school of higher education must be consolidated in
the governance structure of schools of higher education. Only in this way one would guarantee the
imperative of autonomy of schools of higher education, which stems from the Constitution.
Thus, the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40
of the Constitution implies self-government of the academic community (scientific community) of
these schools, which is implemented inter alia through governance institutions of a particular
school of higher education which represent the said community of that school.
It needs to be noted that self-government of academic community of schools of higher
education is to be related inter alia to democratic principles of governance. In the context of the
autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the
Constitution the said principles include inter alia the direct participation of the academic
community, and its decisive influence, in the formation of the governance institution (institutions)
of the school of higher education that is (are) vested with the greatest powers, as well as the
limitation of the number of terms of offices of members of the other governance, control and
supervision institutions of the school of higher education and the number of terms of offices of the
persons discharging functions of one-person institutions or holding the office of the head of a
collegial institution. It needs to be emphasised that, while establishing the governance and
organisational structure of schools of higher education, inter alia while regulating the
reorganisation of that structure, the legislator should heed the democratic principles of governance
and create no preconditions for their violation. The legal regulation that is not in line with these
principles could create preconditions inter alia for the state to unreasonably interfere with the
governance of schools of higher education and/or to deny self-government of the academic
community of schools of higher education and, thus, to violate the autonomy of schools of higher
education guaranteed in Paragraph 3 of Article 40 of the Constitution.
7. The autonomy of schools of higher education is inseparable from the purpose of schools
of higher education and the purpose of higher education (Constitutional Court decision of 28
October 2009). In its ruling of 5 February 2002 the Constitutional Court noted that the system of
higher education ensures the development of science and culture, social sphere and economy. The
purpose of higher education is to create, accumulate and disseminate knowledge of science and
cultural values, to educate the personality and society. Therefore, the society is concerned with
creating proper conditions for institutions of higher education to offer all-round education of the
personality and to enjoy freedom of teaching, scientific research and creative activities.
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Accordingly, schools of higher education must respond to changes of social needs and adjust their
activities with the interests of society. Consequently, the principle of autonomy of schools of higher
education must be coordinated with the principle of responsibility and accountability to society,
other constitutional values, with the duty of schools of higher education to observe the Constitution
and laws, with the interaction and harmonisation of interests of schools of higher education and
society.
The variety of purposes of higher education determines the fact that there may be different
types of schools of higher education; while taking account of this, different limits of autonomy may
be established by laws for different types of schools of higher education (taking account of whether
they are universities or colleges, whether the founder is the state or other subjects, as well as of
other conditions) (Constitutional Court ruling of 10 July 1996). Therefore, the provision of
Paragraph 3 of Article 40 of the Constitution may not be construed as prohibiting from establishing,
by laws, different limits of autonomy for different types of schools of higher education; laws may
provide for different regulation of relations of governance, as well as those of self-government, of
schools of higher education (Constitutional Court ruling of 5 February 2002 and decision of 28
October 2009). As the Constitutional Court noted in its ruling of 20 March 2008, the rights enjoyed
by schools of higher education may be differentiated (by heeding the Constitution) according to
various important criteria, inter alia according to the fact as to what status of these schools of higher
education is (i.e. whether they are universities or not), what level of higher education is provided by
them to persons studying therein, what study programmes they implement, what their scientific
potential is, etc. Thus, it needs to be noted that the provision of Paragraph 3 of Article 40 of the
Constitution does not prohibit from differentiating, while taking account of various important
criteria, the legal status of schools of higher education of different types, nor the rights and limits of
autonomy of schools of higher education of the same type.
In the constitutional justice case at issue it has been mentioned that, while heeding the
autonomy of schools of higher education, the legislator has broad discretion to choose and regulate
a concrete model of the organisation of science and studies, which meets best the needs of
development of the progress of the state and society in a particulate period of time. Thus, the
autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the
Constitution does not deny the right of the legislator to regulate activities of schools of higher
education, inter alia, to establish, by taking account of the interests of society and its changing
needs, various types of institutions of science and studies, different limits of autonomy of these
institutions, and the bases of their organisational and governance structure. While not denying the
autonomy of schools of higher education, inter alia the self-government thereof based on the
democratic principles of governance, the legislator may establish various models of the governance
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structure of schools of higher education, inter alia provide for one institution directly representing
the academic community and implementing self-government of that community, which would be
empowered to decide on all the most important questions relating to both the academic and
institutional autonomy of the school of higher education, or several such institutions, which would
decide on the most important governance questions relating to academic autonomy and institutional
autonomy separately, as well as an institution of control and supervision, which would be composed
not only of, or not of, members of the academic community, and which in the course of adopting
decisions of governance of the school of higher education could perform the advisory functions as
well.
7.1. In the constitutional justice case at issue it also needs to be noted that the constitutional
guarantee of autonomy of schools of higher education implies that the legislator is obliged to
provide for special legal regulation, on the basis of which the greater part of the legal regulation of
the said relations should be composed by local legal regulation established by schools of higher
education themselves (Constitutional Court ruling of 20 March 2008 and decision of 28 October
2009). Therefore, the general legal regulation established by laws and applicable to all the schools
of higher education should not be too much detailed and should not limit the right of schools of
higher education, stemming from the principle of their autonomy, to regulate their activities by
means of local legal acts.
7.2. It needs to be mentioned that in the Magna Charta Universitatum universities are
defined as centres of culture, education and scientific research, which are building up the foundation
for the cultural, scientific and technical development so essential for the future of mankind; it is also
noted therein that a university is the trustee of the European humanist tradition; its constant care is
to attain universal knowledge; to fulfil its vocation it transcends geographical and political frontiers,
and affirms the vital need for different cultures to know and influence each other. As mentioned,
historically, the idea of the autonomy of the school of higher education came into being in the
Middle Ages, when universities originated as establishments of science and teaching; some
universities have centuries-long traditions and their activities are characterised by the symbiosis of
the humanities, social sciences, natural sciences, mathematics (and more often than not also
medicine).
It has been mentioned that the provision of Paragraph 3 of Article 40 of the Constitution
does not prohibit from differentiating, while taking account of various important criteria, the legal
status of schools of higher education of different types, nor the rights and limits of autonomy of
schools of higher education of the same type. While taking account of this, in the context of the
constitutional justice case at issue it needs to be noted that, while differentiating, according to
various important criteria, the status of schools of higher education, one must take account of inter
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alia the historical traditions and established traditions of self-government based on democratic
principles of governance that are peculiar to a concrete school of higher education, as well as the
nurturance of continuity of these traditions. The said inter alia means that, under Paragraph 3 of
Article 40 of the Constitution, in certain cases one may, with respect to concrete schools of higher
education, establish special norms defining the rights, limits of autonomy, and the organisational
and governance structure of these schools, which will differ from those established by the general
legal regulation provided for by laws with respect to all the schools of higher education.
8. As mentioned, the legislator has the right to regulate the activities of schools of higher
education, inter alia to establish various bases of their organisational and governance structure;
when implementing this right, it must heed the Constitution, inter alia not deny the autonomy of
schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution.
In the constitutional justice case at issue it needs to be noted that the constitutional concept
of autonomy of schools of higher education is disclosed and developed in the provisions of the
official constitutional doctrine of the Constitutional Court. As the Constitutional Court noted in its
decision of 20 September 2005, the provisions of the Constitution—its norms and principles—are
construed in the acts of the Constitutional Court. In these acts, the official constitutional doctrine is
created and developed. All law-making and law-applying subjects, including courts, must pay heed
to the official constitutional doctrine when they apply the Constitution, they may not interpret the
provisions of the Constitution differently from their construction in the acts of the Constitutional
Court. Otherwise, the constitutional principle that only the Constitutional Court enjoys powers to
construe the Constitution officially would be violated, the supremacy of the Constitution would be
disregarded, and preconditions would be created for appearance of inconsistencies in the legal
system.
It needs to be mentioned that while adopting new, amending and supplementing already
adopted laws and other legal acts, the state institutions that pass them are bound by the concept of
the provisions of the Constitution and other legal arguments set forth in the reasoning part of the
Constitutional Court ruling (Constitutional Court rulings of 30 May 2003 and 19 January 2005,
decision of 20 September 2005, and ruling of 28 March 2006). The legislator, while passing new or
amending and supplementing the valid laws, may not disregard inter alia the concept of the
provisions of the Constitution and other legal arguments which are set forth in officially published
and effective rulings of the Constitutional Court (Constitutional Court ruling of 19 January 2005).
It also needs to be noted that provisions of the official constitutional doctrine are binding on
the Constitutional Court itself. As the Constitutional Court has held more than once, the legal
position of the Constitutional Court (ratio decidendi) in the corresponding constitutional justice
cases has the significance of the precedent (Constitutional Court rulings of 22 October 2007 and 9
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February 2010); the Constitutional Court is bound by the precedents that it itself has created (in
previous constitutional justice cases) and by the official constitutional doctrine that it itself has
formed, which substantiates those precedents (Constitutional Court ruling of 28 March 2006,
decisions of 8 August 2006 and 21 November 2006, rulings of 22 October 2007 and 24 October
2007, decisions of 13 November 2007, 6 December 2007 and 1 February 2008, ruling of 20
February 2008).
9. In the context of the constitutional justice case at issue one needs to mention the official
constitutional doctrinal provisions formulated in the Constitutional Court decision of 28 October
2009, which develop the constitutional concept of autonomy of schools of higher education as the
right inter alia to independently determine the organisational and governance structure of these
schools:
– the administrative structure of a school of higher education in the broad meaning is
understood to be a system of certain single-person and/or collegial institutions that adopt decisions
on issues of governance of the school of higher education, that perform the functions of
administration and control (for example, rector, vice-rectors, senate, council, administration, etc.);
according to their purpose these institutions perform different functions;
– the self-governance of schools of higher education must be implemented through the
institutions of schools of higher education, the procedure for forming which should not be the one
that would not enable the academic community of the school of higher education to influence
adoption of decisions on administration of the school of higher education; the institutions of
governance of schools of higher education that implement the functions of self-government of the
school of higher education must be formed by the schools of higher education themselves, after they
establish, on the bases of laws, in their by-laws or statutes the ways and procedure of forming these
institutions;
– it would be impossible to ensure the autonomy of schools of higher education, inter alia
the constitutional principle of academic freedom, if schools of higher education did not enjoy
financial independence, i.e. if their governance institutions that implement the functions of self-
government of the school of higher education had no possibility to adopt (on the basis of laws)
decisions on the use of financial funds and other property for performing their mission; the function
of adopting decisions concerning the use of funds and other property based on laws is also to be
attributed inter alia to functions of the governance institutions of schools of higher education that
implement functions of self-government of the school of higher education;
– in order to enable the state to implement its obligation to supervise the activity of
educational establishments, as well as to ensure the compatibility of the principle of autonomy of
schools of higher education with the principle of responsibility and accountability to society, to
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guarantee the quality of studies and development of scientific research, in the governance structure
of the school of higher education, as a rule, one must provide for an institution which performs the
functions of control and supervision and the purpose of which is to ensure the responsibility of the
school of higher education and its accountability to society, but which, however, is not directly
related to the implementation of the principle of academic freedom;
– one may not establish any such legal regulation where the institution that performs the
functions of control and supervision and the purpose of which is to ensure responsibility of the
school of higher education and its accountability to society, apart from its functions of control and
supervision would also perform the functions of governance of the school of higher education,
which are assigned to institutions of governance of schools of higher education, which are usually
formed from members of the academic community of the school of higher education and which
perform the functions of self-government of the school of higher education;
– while not denying the principle of autonomy of schools of higher education, the legislator
may establish, by laws, the procedure and ways of forming those institutions of the governance
structure of the school of higher education that perform the functions of control and supervision and
the purpose of which is to ensure the responsibility of the school of higher education and its
accountability to society;
– the institution that performs the functions of control and supervision and the purpose of
which is to ensure the responsibility of the school of higher education and its accountability to
society may be formed not only from members of the academic community of the school of higher
education—inter alia representatives of institutions of the executive power of the state may be
appointed thereto, as well.
10. It has been mentioned that the Constitutional Court will, first of all, inter alia investigate
whether Paragraph 2 of Article 20 of the Law on Science and Studies is not in conflict with
Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the
rule of law.
10.1. It has been mentioned that, under the overall legal regulation laid down in Paragraph 2
of Article 20 of the Law on Science and Studies:
– the council of a state school of higher education is a governance body of that school of
higher education which has the greatest powers: most of its functions are related to the adoption of
strategic and other most important decisions of governance of the school of higher education; inter
alia the said decisions include the most important decisions concerning the use of financial funds
and other assets for the purpose of implementing the mission of the school of higher education;
– the academic community has no decisive influence in the formation of the council, nor
does it when the council adopts strategic and other most important decisions of governance of the
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school of higher education, inter alia the most important decisions concerning the use of financial
funds and other assets for the purpose of implementing the mission of the school of higher
education; thus, the council of a state school of higher education is not an institution implementing
self-government of the academic community, even though it performs the main governance
functions related to self-government of the school of higher education;
– besides the functions of governance of the state school of higher education related to the
adoption of strategic and other most important decisions of governance of the school of higher
education, the council also performs the control and supervision functions related to responsibility
of the school of higher education and its accountability to the public.
10.2. As mentioned, the autonomy of schools of higher education guaranteed in Paragraph 3
of Article 40 of the Constitution implies self-government of the academic community (scientific
community) of these schools, which is inter alia implemented through the governance institutions
of a particular school of higher education that represent the said community of that school; such
self-government is to be linked to democratic principles of governance, inter alia to the direct
participation of the academic community, and its decisive influence, in the formation of the
governance institution (institutions) of the school of higher education that is (are) vested with the
greatest powers; while establishing the governance and organisational structure of schools of higher
education, the legislator should heed the democratic principles of governance and create no
preconditions for their violation.
It has also been mentioned that self-governance of schools of higher education must be
implemented through their institutions, the procedure for forming which may not be such that
would not enable the academic community of the school of higher education to influence the
adoption of decisions on administration of the school of higher education; it would be impossible to
ensure the autonomy of schools of higher education, inter alia the constitutional principle of
academic freedom, if schools of higher education did not enjoy financial independence, i.e. if their
governance institutions that implement the functions of self-government of the school of higher
education had no possibility to adopt (on the basis of laws) decisions on the use of financial funds
and other property for the purpose of implementing their mission.
It has also been mentioned that in the governance structure of a school of higher education
one must, as a rule, provide for such an institution that performs the functions of control and
supervision and the purpose of which is to ensure the responsibility of the school of higher
education and its accountability to society; one may not establish any such legal regulation where
the said institution, apart from its functions of control and supervision, would also perform the
functions of governance of the school of higher education, which are assigned to the governance
institutions of schools of higher education which are usually formed from members of the academic
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community of the school of higher education and which perform the functions of self-government
of the school of higher education.
10.3. Thus, the said overall legal regulation laid down in Paragraph 2 of Article 20 of the
Law on Science and Studies, under which the council of a state school of higher education, in the
formation of which the academic community has no decisive influence and which is not an
institution implementing self-government of the school of higher education, is assigned the
functions typical of self-government of schools of higher education, violates the autonomy of
schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.
It needs to be noted that the functions of governance provided for in Paragraph 2 of Article
20 of the Law on Science and Studies per se would not contradict the Constitution if they were
assigned to an institution that directly represents the academic community and implements self-
government of that community. It also needs to be noted that neither would Paragraph 3 of Article
40 of the Constitution be violated by such legal regulation, under which such a council of a state
school of higher education, the procedure for forming which is set in Paragraph 3 of Article 20 of
the Law on Science and Studies, would perform only the control and supervision functions related
to responsibility of the school of higher education and its accountability to society, as well as
advisory functions.
11. Taking account of the arguments set forth, one is to draw a conclusion that Items 1 and 2
of Paragraph 2 of Article 20 of the Law on Science and Studies, Item 3 of the same paragraph, to
the extent that it provides that the council of a state school of higher education approves plans for
reorganisation of the structure of the school of higher education presented by the rector (director),
Item 4, to the extent that it provides that the council of a state school of higher education sets the
procedure for managing, using and disposing of funds (also funds allocated for work remuneration
of the school’s leadership and other employees) and assets of the school of higher education and
approves key decisions related thereto, also Items 5, 6, 7 and 8, Item 9, to the extent that it provides
that the council of a state school of higher education approves an annual statement of revenue and
expenditure of the school of higher education and a report on the execution of this statement
presented by the rector (director), Item 10, to the extent that it provides that the council of a state
school of higher education approves an annual report on the activities of the school of higher
education presented by the rector (director), Item 13, as well as Item 15, to the extent that it
provides that the council of a state school of higher education performs other functions of
governance of the school of higher education prescribed in its statute and other legal acts, are in
conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state
under the rule of law.
12. It has been mentioned that the Constitutional Court inter alia will investigate whether
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Paragraph 3 of Article 20 of the Law on Science and Studies is not in conflict with Paragraph 3 of
Article 40 of the Constitution and the constitutional principle of a state under the rule of law.
12.1. It has been mentioned that self-governance of schools of higher education must be
implemented through their institutions the procedure for forming which may not be such that would
not enable the academic community of the school of higher education to influence the adoption of
decisions on administration of the school of higher education; the institutions of governance of
schools of higher education that implement the functions of self-government of the school of higher
education must be formed by the schools of higher education themselves, after they establish, on the
basis of laws, in their by-laws or statutes the ways and procedure for forming these institutions.
It has also been mentioned that, while not denying the principle of autonomy of schools of
higher education, the legislator may establish, by laws, the procedure and ways of forming such
institutions of the governance structure of the school of higher education that perform the functions
of control and supervision and the purpose of which is to ensure the responsibility of the school of
higher education and its accountability to society; the institution that performs the functions of
control and supervision and the purpose of which is to ensure the responsibility of the school of
higher education and its accountability to society may be formed not only from members of the
academic community of the school of higher education—inter alia representatives of institutions of
the executive power of the state may be appointed thereto, as well.
It has also been mentioned that, under the overall legal regulation laid down in Paragraph 2
of Article 20 of the Law on Science and Studies, the council of a state school of higher education is
a governance body of that school of higher education which has the greatest powers. While
summing up the legal regulation laid down in Paragraph 3 of Article 20 of the Law on Science and
Studies, it has also been mentioned that the academic community of a state school of higher
education has no decisive influence in the formation of the council of that school of higher
education; in the formation of the council of a state school of higher education a decisive influence
is wielded by the Minster of Education and Science; strategic and other most important decisions of
governance of the state school of higher education may be adopted by the council without the assent
of the council members directly appointed by the academic community.
12.2. Thus, the procedure for forming the council of a state school of higher education,
which is set in Paragraph 3 of Article 20 of the Law on Science and Studies, would be in conflict
with the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the
Constitution if the council were assigned the functions typical of self-government of schools of
higher education.
However, it needs to be noted that in its decision of 8 August 2006 and in its rulings of 21
September 2006 and 20 March 2008 the Constitutional Court held that such legal situations are also
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possible where the elimination of the provisions conflicting with provisions of legal acts of higher
power, inter alia the Constitution, by means of a Constitutional Court ruling from the legal system,
with respect to application of law, virtually amounts to changing the overall legal regulation, i.e. the
establishment of a different, gapless overall legal regulation.
Once it has been held in the constitutional justice case at issue that the provisions of
Paragraph 2 of Article 20 of the Law on Science and Studies, to the extent that they provide for the
governance functions of the council of a state school of higher education, are in conflict with
Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the
rule of law, the elimination of these provisions from the legal system, with respect to application of
law, virtually amounts to the change of the overall legal regulation and the establishment of thus far
different overall legal regulation: the council of a state school of higher education, the procedure for
forming which is set in Paragraph 3 of Article 20 of the Law on Science, may continue to perform
the control and supervision functions related to responsibility of the school of higher education and
its accountability to society and provided for in Paragraph 2 of Article 20 of this law, as well as
advisory functions. Such, as amended by this Constitutional Court ruling, overall legal regulation
established in Paragraph 3 of Article 20 of the Law on Science is in line with Paragraph 3 of Article
40 of the Constitution and the constitutional principle of a state under the rule of law.
12.3. Taking account of the arguments set forth, one is to draw a conclusion that there is no
legal ground to maintain that Paragraph 3 of Article 20 of the Law on Science and Studies per se is
in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a
state under the rule of law.
12.4. In this context it needs to be noted that the regulation of the procedure for the
formation of the council of a state school of higher education as a body of control and supervision
should create legal preconditions to appoint as members of this body inter alia the representatives
of institutions of the executive power of the state, also the persons connected with the school of
higher education and concerned with its successful activities in the course of implementation of its
aims and mission (for example, representatives of organisations of benefactors, social partners or
the alumni of the school of higher education).
13. It has been mentioned that from the arguments of the petitioner it is clear that the
petitioner has also had doubts as regards the constitutionality of other aforementioned provisions of
Article 20, as well as Articles 19, 21 and 22, of the Law on Science and Studies, which relate to the
provisions of Paragraph 2 of Article 20 that regulate the functions of the council of a state school of
higher education. Therefore, the Constitutional Court will further investigate whether the provision
of Paragraph 1 of Article 20 of the Law on Science, whereby the council is a governance body of a
state school of higher education, also the provisions of Paragraphs 1 and 2 of Article 19 of this law,
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to the extent that these paragraphs consolidate the council as a collegial governance body of a state
university or state college, the provision of Paragraph 1 of Article 21, whereby the senate (academic
council) of a state school of higher education is the governance body of academic affairs of the
school of higher education, the provisions of Paragraphs 2 and 3 of the same article, which regulate
the functions of the university senate and the academic council of a college, the provisions of
Paragraph 2 of Article 22, which regulate the functions of the rector (director), the provisions of
Paragraphs 3, 4 and 7 of the same article concerning the procedure for electing, appointing and
dismissing the rector (director), as well as the provisions of Paragraph 9 relating to the
accountability of the rector (director), are not in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
14. It has been mentioned that, under Paragraph 1 of Article 20 of the Law on Science and
Studies, the council is a governance body of a state school of higher education, and that Paragraphs
1 and 2 of Article 19 of this law inter alia provide that the council is a collegial governance body of
a state university or state college.
In the constitutional justice case at issue it has been held that such overall legal regulation,
laid down in Paragraph 2 of Article 20 of the Law on Science and Studies, under which the council
of a state school of higher education, in the formation of which the academic community has no
decisive influence and which is not an institution implementing self-government of the school of
higher education, is assigned the functions typical of self-government of schools of higher
education, violates the autonomy of schools of higher education entrenched in Paragraph 3 of
Article 40 of the Constitution. While applying the same arguments, it is also to be held that
Paragraph 1 of Article 19 of the Law on Science and Studies, to the extent that it consolidates the
council as a collegial governance body of a state university, Paragraph 2 of Article 19, to the extent
that it consolidates the council as a collegial governance body of a state college, as well as
Paragraph 1 of Article 20 thereof, are in conflict with Paragraph 3 of Article 40 of the Constitution
and the constitutional principle of a state under the rule of law.
15. It has been mentioned that Paragraph 1 of Article 21 of the Law on Science and Studies
prescribes that the senate (academic council) of a state school of higher education is the governance
body of academic affairs of the school of higher education, and that Paragraphs 2 and 3 of this
article establish the functions of the university senate and those of the academic council of a
college.
15.1. It has been mentioned that the autonomy of schools of higher education guaranteed in
Paragraph 3 of Article 40 of the Constitution implies self-government of the academic community
(scientific community) of these schools, which is to be related inter alia to democratic principles of
governance; in the context of the autonomy of schools of higher education guaranteed in Paragraph
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3 of Article 40 of the Constitution these principles include inter alia the direct participation of the
academic community, and its decisive influence, in the formation of the governance institution
(institutions) of the school of higher education that is (are) vested with the greatest powers.
It has also been mentioned that it would be impossible to ensure autonomy of schools of
higher education, inter alia the constitutional principle of academic freedom, if schools of higher
education did not enjoy financial independence, i.e. if their governance institutions that implement
the functions of self-government of the school of higher education had no possibility to adopt (on
the basis of laws) decisions on the use of financial funds and other property for the purpose of
implementing their mission.
15.2. It has been mentioned that, under the legal regulation laid down in the Law on Science
and Studies, the senate (academic council) of a state school of higher education is a collegial
governance body which directly represents the academic community of the school of higher
education and is the sole such body implementing self-government of the academic community.
It has also been mentioned that the senate (academic council) does not participate, or
participates only in an advisory capacity, in the adoption of strategic and other most important
decisions of governance of the state school of higher education, the adoption of which, under
Paragraph 2 of Article 20 of the Law on Science and Studies, is ascribed to the council. The said
decisions include inter alia the most important decisions concerning the use of financial funds and
other assets for the purpose of implementing the mission of the school of higher education.
It has also been mentioned that the academic community has no decisive influence in the
formation of the council, nor does it when the council adopts strategic and other most important
decisions of governance of the school of higher education, inter alia the most important decisions
concerning the use of financial funds and other assets for the purpose of implementing the mission
of the school of higher education; the academic community of a state school of higher education has
no decisive influence on decisions of the council; the council of a state school of higher education is
not an institution implementing self-government of the academic community.
15.3. It has been mentioned that the provision of Paragraph 3 of Article 40 of the
Constitution may not be construed as prohibiting from establishing, by laws, different limits of
autonomy for different types of schools of higher education; laws may provide for different
regulation of relations of governance, as well as those of self-government, of schools of higher
education; while not denying the autonomy of schools of higher education, inter alia their self-
government based on democratic principles of governance, the legislator may establish various
models of the governance structure of schools of higher education.
It has been mentioned that the functions of governance provided for in Paragraph 2 of
Article 20 of the Law on Science and Studies per se would not contradict the Constitution if these
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functions were assigned to an institution that directly represents the academic community and
implements self-government of that community. It has also been mentioned that such legal
regulation under which the said functions would be performed by the senate (academic council) of a
state school of higher education, which, as mentioned, is a collegial governance body which directly
represents the academic community and is the sole such body implementing self-government of the
academic community, would not be in conflict with the Constitution.
Thus, if the legislator has chosen such a model of governance structure of a state school of
higher education under which the senate (academic council) is a collegial governance body which
directly represents the academic community and is the sole such body implementing self-
government of that community, then such legal regulation under which the competence of the
senate (academic council) is confined only to academic affairs and the senate (academic council)
does not participate, or participates only in an advisory capacity, in adopting strategic and other
most important decisions of governance of the state school of higher education, inter alia the most
important decisions concerning the use of financial funds and other assets for the purpose of
implementing the mission of the school of higher education, is incompatible with the autonomy of
schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.
15.3.1. Taking account of the arguments set forth, one is to draw the following conclusions:
– Paragraph 1 of Article 21 of the Law on Science and Studies, to the extent that, after the
legislator has chosen such a model of governance structure of a state school of higher education
under which the senate (academic council) is a collegial governance body which directly represents
the academic community and is the sole such body implementing self-government of that
community, this paragraph provides that the senate (academic council) of a state school of higher
education is a governance body of only academic affairs, is in conflict with Paragraph 3 of Article
40 of the Constitution and the constitutional principle of a state under the rule of law;
– Item 1 of Paragraph 2 of Article 21 of the Law on Science and Studies, to the extent that,
after the legislator has chosen such a model of governance structure of a state school of higher
education under which the senate (academic council) is a collegial governance body which directly
represents the academic community and is the sole such body implementing self-government of that
community, this item prescribes that the senate of a state university presents proposals to the rector
regarding the funding of programmes of studies, scientific research and experimental (cultural,
social) development, art programmes, and reorganisation of the university structure, which is
necessary for implementation of those programmes, is in conflict with Paragraph 3 of Article 40 of
the Constitution and the constitutional principle of a state under the rule of law;
– Item 1 of Paragraph 3 of Article 21 of the Law on Science and Studies, to the extent that,
after the legislator has chosen such a model of governance structure of a state school of higher
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education under which the senate (academic council) is a collegial governance body which directly
represents the academic community and is the sole such body implementing self-government of that
community, this item prescribes that the academic council of a state college presents proposals to
the director regarding the funding of study programmes and reorganisation of the college structure,
which is necessary for implementation of those programmes, is in conflict with Paragraph 3 of
Article 40 of the Constitution and the constitutional principle of a state under the rule of law.
15.3.2. In the constitutional justice case at issue it has been held that Item 6 of Paragraph 2
of Article 20 of the Law on Science and Studies, which prescribes that the council of a state school
of higher education sets the principles for selection and assessment of employees of the school of
higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution and the
constitutional principle of a state under the rule of law.
While taking account of this, it also needs to be held that Item 4 of Paragraph 2 of Article 21
of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of
governance structure of a state school of higher education under which the senate (academic
council) is a collegial governance body which directly represents the academic community and is
the sole such body implementing self-government of that community, this item prescribes that the
senate of a state university, while approving the qualification requirements for positions of teaching
staff members and scientific staff members and laying down the procedure for performance
evaluation of teaching staff members and scientific staff members and for organisation of a
competition to fill a position, must observe the principles for selection and assessment of university
employees set by the council, as well as Item 4 of Paragraph 3 of Article 21 of the Law on Science
and Studies, to the extent that, after the legislator has chosen such a model of governance structure
of a state school of higher education under which the senate (academic council) is a collegial
governance body which directly represents the academic community and is the sole such body
implementing self-government of that community, this item prescribes that the academic council of
a state college, while approving the qualification requirements for positions of teaching staff
members and scientific staff members and laying down the procedure for performance evaluation of
teaching staff members and scientific staff members and for organisation of a competition to fill a
position, must observe the principles for selection and assessment of college employees set by the
council, are also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional
principle of a state under the rule of law.
15.4. It has been mentioned that, if the legislator has chosen such a model of governance
structure of a state school of higher education under which the senate (academic council) is a
collegial governance body which directly represents the academic community and is the sole such
body implementing self-government of that community, then such legal regulation under which the
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competence of the senate (academic council) is confined only to academic affairs and the senate
(academic council) does not participate, or participates only in an advisory capacity, in adopting
strategic and other most important decisions of governance of the state school of higher education,
inter alia the most important decisions concerning the use of financial funds and other assets for the
purpose of implementing the mission of the school of higher education, is incompatible with the
autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the
Constitution.
It has also been mentioned that the functions of governance provided for in Paragraph 2 of
Article 20 of the Law on Science and Studies per se would not contradict the Constitution if these
functions were assigned to an institution that directly represents the academic community and
implements self-government of that community.
15.4.1. Taking account of the arguments set forth, one is to draw a conclusion that
Paragraph 2 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator
has chosen such a model of governance structure of a state school of higher education under which
the senate (academic council) is a collegial governance body which directly represents the academic
community and is the sole such body implementing self-government of that community, this
paragraph does not establish that the senate of a state university adopts key strategic and other most
important decisions of governance of the university, inter alia the most important decisions
concerning the use of financial funds and other assets for the purpose of implementing the mission
of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution
and the constitutional principle of a state under the rule of law.
15.4.2. Taking account of the arguments set forth, one is to draw a conclusion that
Paragraph 3 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator
has chosen such a model of governance structure of a state school of higher education under which
the senate (academic council) is a collegial governance body which directly represents the academic
community and is the sole such body implementing self-government of that community, this
paragraph does not establish that the academic council of a state college adopts key strategic and
other most important decisions of governance of the college, inter alia the most important decisions
concerning the use of financial funds and other assets for the purpose of implementing the mission
of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution
and the constitutional principle of a state under the rule of law.
16. It has been mentioned that Paragraph 2 of Article 22 of the Law on Science and Studies
lays down the functions of the rector (director), that provisions of Paragraphs 3, 4 and 7 of this
article relate to the procedure for electing, appointing and dismissing the rector (director), and that
provisions of Paragraph 9 relate to the accountability of the rector (director).
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16.1. Item 5 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia
prescribes that the rector (director) of a state school of higher education submits to the council for
approval the study cost and the rates of fees that are not directly related to the implementation of a
study programme.
In the constitutional justice case at issue it has been held that Item 7 of Paragraph 2 of
Article 20 of the Law on Science and Studies, wherein it is established that the council of a state
school of higher education, on the recommendation of the rector (director), sets the study cost and
the rates of fees that are not directly related to the implementation of a study programme, is in
conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state
under the rule of law. While taking account of this, it also needs to be held that Item 5 of Paragraph
2 of Article 22 of the Law on Science and Studies, to the extent that it prescribes that the rector
(director) of a state school of higher education submits to the council for approval the study cost
and the rates of fees that are not directly related to the implementation of a study programme, is also
in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a
state under the rule of law.
16.2. Item 7 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia
prescribes that the rector (director) of a state school of higher education submits to the council for
approval an annual report on the activities of the school of higher education, an annual statement of
revenue and expenditure and a report on the execution of this statement.
In the constitutional justice case at issue it has been held that Item 9 of Paragraph 2 of
Article 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a
state school of higher education approves an annual statement of revenue and expenditure of the
school of higher education and a report on the execution of this statement presented by the rector
(director), is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional
principle of a state under the rule of law. While taking account of this, it also needs to be held that
Item 7 of Paragraph 2 of Article 22 of the Law on Science and Studies, to the extent that it
prescribes that the rector (director) of a state school of higher education submits to the council for
approval an annual statement of revenue and expenditure of the school of higher education and a
report on the execution of this statement, is also in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
16.3. Item 8 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia
provides that the rector (director) of a state school of higher education acquaints the senate
(academic council) with an annual report on the activities of the school of higher education. In this
context it needs to be noted that, under Item 10 of Paragraph 2 of Article 20 of the Law on Science
and Studies, an annual report on the activities of the school of higher education is approved by the
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council.
In the constitutional justice case at issue it has been held that Item 10 of Paragraph 2 of
Article of 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a
state school of higher education approves an annual report on the activities of the school of higher
education presented by the rector (director), is in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law. In the constitutional
justice case at issue it has also been held that Paragraph 2 of Article 21 of the Law on Science and
Studies, to the extent that it does not establish that the senate of a state university adopts the key
strategic and other most important decisions of governance of the university, inter alia approves an
annual report on the activities of the university, as well as Paragraph 3 of Article 21 of the Law on
Science and Studies, to the extent that it does not establish that the academic council of a state
college adopts key strategic and other most important decisions of governance of the college, inter
alia approves an annual report on the activities of the college, are also in conflict with Paragraph 3
of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.
While taking account of this, it also needs to be held that Item 8 of Paragraph 2 of Article 22
of the Law on Science and Studies, to the extent that it prescribes that the rector (director) of a state
school of higher education acquaints the senate (academic council) with an annual report on the
activities of the school of higher education, is also in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
16.4. Item 9 of Paragraph 2 of Article 22 of the Law on Science and Studies provides that
the rector (director) of a state school of higher education submits to the council for approval a
strategic action plan of the school of higher education and plans for reorganisation of the structure
of the school of higher education.
In the constitutional justice case at issue it has been held that Item 1 of Paragraph 2 of
Article of 20 of the Law on Science and Studies, which inter alia prescribes that the council of a
state school of higher education approves a strategic action plan presented by the rector (director),
as well as Item 3 of the same paragraph, to the extent that it prescribes that the council approves
plans for reorganisation of the structure of the school of higher education presented by the rector
(director), are in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional
principle of a state under the rule of law. While taking account of this, it also needs to be held that
Item 9 of Paragraph 2 of Article 22 of the Law on Science and Studies is also in conflict with
Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the
rule of law.
16.5. It has been mentioned that Paragraphs 3, 4 and 7 of Article 22 of the Law on Science
and Studies establish the procedure for the election, appointment to office and dismissal from office
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of the rector (director) of a state school of higher education.
Under Paragraph 3 of Article 22 of the Law on Science and Studies, the rector (director) is
elected by an open competition, appointed and dismissed by the council. Under Paragraph 4 of this
article, the council announces an open competition to fill a position of the rector (director); the
rector (director) is considered to be elected if at least three-fifths of all the council members vote for
him. Under Paragraph 7 of the same article, the chairman of the council or any other person
authorised by the council signs in the name of the school of higher education an employment
contract with the elected rector (director) for the duration of his term of office.
In the constitutional justice case at issue it has been held that Item 5 of Paragraph 2 of
Article 20 of the Law on Science and Studies, wherein it is prescribed that the council of a state
school of higher education sets the procedure for organising election of the rector (director) of the
school of higher education through open competition, and elects, appoints to the office and
dismisses from it the rector (director) of the school of higher education, is in conflict with
Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the
rule of law.
While taking account of this, it also needs to be held that Paragraphs 3, 4 and 7 of Article 22
of the Law on Science and Studies are also in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
16.6. It has been mentioned that Paragraph 9 of Article 22 of the Law on Science and
Studies relates to the accountability of the rector (director) of the school of higher education. This
paragraph provides that if an annual report on the activities of the school of higher education or an
annual report on the execution of the statement of revenue and expenditure presented by the rector
(director) is not approved by a majority of the council members at a meeting of the council, the
rector (director) may be dismissed from office in accordance with the procedure laid down by legal
acts.
In the constitutional justice case at issue it has been held that Item 9 of Paragraph 2 of
Article of 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a
state school of higher education approves a report on the execution of a statement of revenue and
expenditure of the school of higher education presented by the rector (director), as well as Item 10
of this paragraph, to the extent that it prescribes that the council of a state school of higher
education approves an annual report on the activities of the school of higher education presented by
the rector (director), are in conflict with Paragraph 3 of Article 40 of the Constitution and the
constitutional principle of a state under the rule of law. While taking account of this, it needs to be
held that Paragraph 9 of Article 22 of the Law on Science and Studies, to the extent that it provides
that the rector (director) may be dismissed from office in accordance with the procedure laid down
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by legal acts if an annual report on the activities of the school of higher education or an annual
report on the execution of the statement of revenue and expenditure presented by the rector
(director) is not approved by a majority of the council members at a meeting of the council, is also
in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a
state under the rule of law.
VIII
On the compliance of Paragraph 5 of Article 95 of the Law on Science and Studies with
Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under
the rule of law.
1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 5 of
Article 95 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 48 of the
Constitution and the constitutional principle of a state under the rule of law.
2. Paragraph 5 of Article 95 of the Law on Science and Studies provides:
“Paragraphs 2 and 12 of Article 20, Paragraphs 2 and 3 of Article 21, Paragraphs 2 and 7 of
Article 22 of this Law shall be applied to the governance bodies of those state schools of higher
education whose legal form is a budgetary establishment, where such bodies are formed in
accordance with the procedure laid down by this Law. The governance bodies of a state school of
higher education, whose legal form is a budgetary establishment, elected or formed before the entry
into force of this Law shall perform their duties in accordance with the procedure laid down by the
statute of the school of higher education, inasmuch as it is in compliance with this part of the
paragraph, until the expiry of the term of office set at the moment the said bodies were formed, but
not longer than until the reorganisation of the state school of higher education into a public
establishment, with the exception of state colleges in which the governance bodies were formed not
earlier than the year 2007, or until the formation (election) of new governance bodies, or until 31
December 2011. Members who are appointed by scientists, teaching staff, administration and other
employees to the first councils of state schools of higher education set up in accordance with the
procedure laid down by this Law shall be appointed by way of election in accordance with the
procedure laid down by the Ministry of Education and Science. Upon the entry into force of this
Law, the rector (director) of a state school of higher education shall be elected (appointed) only by
that council of the state school of higher education which has been set up in accordance with the
procedure laid down by this Law. Where there is no council of a state school of higher education set
up in accordance with the procedure laid down by this Law, the powers of the rector (director) of
the state school of higher education shall be extended until the election of a new rector (director) of
the state higher education institution, but not longer than for six month.”
3. Thus, the provisions of Paragraph 5 of Article 95 of the Law on Science and Studies are
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related to the reorganisation of the state schools of higher education, whose legal form is a
budgetary establishment, into public establishments—the only legal form of state school of higher
education under Paragraph 4 of Article 6 of the Law on Science and Studies, in particular—to the
formation of new bodies of governance established in the Law on Science and Studies in
reorganising state schools of higher education into public establishments and to the termination of
the powers of the bodies of governance (formed under the legal regulation valid prior to the entry
into force of the Law on Science and Studies) of state schools of higher education, whose legal form
was a budgetary establishment. It needs to be noted that, under the legal regulation established in
the Law on Science and Studies, not only the legal form of state schools of higher education, but
also the organisational and governance structure thereof, inter alia the powers of collegial bodies of
governance, are changed. Taking account of the overall legal regulation established in the Law on
Science and Studies, such reorganisation of the organisational and governance structure of schools
of higher education is an essential one.
3.1. Paragraph 5 of Article 95 of the Law on Science and Studies inter alia provides that the
governance bodies of a state school of higher education, whose legal form is a budgetary
establishment, elected or formed before the entry into force of this law shall perform their duties
either until the expiry of the term of office set at the moment the said bodies were formed, or until
the reorganisation of the state school of higher education into a public establishment, if it has been
reorganised before the expiry of the term of office of its bodies of governance (with the exception
of state colleges in which the governance bodies were formed not earlier than the year 2007), or
until the formation (election) of new governance bodies, or until 31 December 2011.
Thus, under Paragraph 5 of Article 95 of the Law on Science and Studies, there exist two
grounds for terminating, by law, the powers of the bodies of governance, elected or formed prior to
the entry into force of this law, of a state school of higher education whose legal form is a budgetary
establishment, before the expiry of their term of office established at the time of forming thereof:
– if the state school of higher education was reorganised before the expiry of the term of
office of its bodies of governance (with the exception of state colleges in which the governance
bodies were formed not earlier than the year 2007);
– if the term of office of its bodies of governance has not expired, till 31 December 2011, on
other grounds established in Paragraph 5 of Article 95 of the Law on Science and Studies.
In this context it needs to be mentioned that, under Paragraph 8 of Article 93 of the Law on
Science and Studies, state schools of higher education must be reorganised from budgetary
establishments into public establishments until 31 December 2011. Thus, the first of the aforesaid
grounds, which is the termination, by law, of the powers of the bodies of governance (elected or
formed under the legal regulation valid prior to the entry into force of this law) of a state school of
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higher education whose legal form is a budgetary establishment, i.e. reorganisation of a state school
of higher education into a public establishment, provided it is reorganised before the expiry of the
term of office of its bodies of governance, is related to reorganisation of the state school of higher
education into a public establishment within the time period established in Paragraph 8 of Article 93
of the Law on Science and Studies. The second aforesaid ground, which is termination, on 31
December 2011, by law, of the powers of the bodies of governance (elected or formed under the
legal regulation valid prior to the entry into force of this law) of a state school of higher education
whose legal form is a budgetary establishment, would be applied in case the state school of higher
education has not been reorganised into a public establishment within the time period established in
Paragraph 8 of Article 93 of the law on Science and Studies.
3.2. In addition, Paragraph 5 of Article 95 of the Law on Science and Studies provides that,
upon the entry into force of this law, the rector (director) of a state school of higher education shall
be elected (appointed) only by that council of the state school of higher education which has been
set up in accordance with the procedure laid down by this law, and where there is no such council,
the powers of the rector (director) of the state school of higher education shall be extended until the
election of a new rector (director) of the state higher education institution, but not longer than for
six month.
4. The group of Members of the Seimas, a petitioner, is substantiating its doubts regarding
the compliance of Paragraph 5 of Article 95 of the Law on Science and Studies with the
Constitution by the fact that the final date, 31 December 2011, of forming the bodies of governance
of schools of higher education subsequent to the Law on Science and Studies and reorganisation of
schools of higher education into public establishments may not be applied to the bodies of
governance (inter alia rectors) of schools of higher education that had been appointed to office and
working under employment contracts until the end of their term of office. For example, the end of
the term of office of rectors in various Lithuanian universities does not coincide with the date
established in this law, since the said term of office takes a longer time, therefore, the persons
admitted to work under employment contracts for a 5-year term of office before the entry into fore
of the Law on Science and Studies should work till the end of their term of office. In the opinion of
the petitioner, the legal regulation established in Paragraph 5 of Article 95 of the Law on Science
and Studies, where the rector is dismissed before the end of his term of office, is in conflict with
Paragraph 1 of 48 Article of the Constitution and the constitutional principle of a state under the
rule of law. The petitioner has substantiated its arguments by the official constitutional doctrine in
which inter alia the content of the constitutional principle of a state under the rule of law, that of the
imperatives of protection of legitimate expectation, legal certainty and legal security are disclosed.
Thus, from the arguments of the petitioner, it is clear that it is doubting as regards the
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constitutionality of Paragraph 5 of Article 95 of the Law on Science and Studies insofar as it is
established therein that the powers of the bodies of governance, elected or formed before the entry
into force of this law, of a state school of higher education, whose legal form is a budgetary
establishment, are terminated on 31 December 2011, if such powers have not expired on other
grounds established in this paragraph.
5. It has been mentioned that the petitioner has doubts regarding the compliance of
Paragraph 5 of Article 95 of the Law on Science and Studies inter alia with the constitutional
principle of a state under the rule of law.
5.1. The Constitutional Court has held more than once that the constitutional principle of a
state under the rule of law is a universal principle, upon which the entire legal system of Lithuania
and the Constitution of the Republic of Lithuania itself are based, that the constitutional principle of
a state under the rule of law is to be construed inseparably from the striving for an open, just, and
harmonious civil society and state under the rule of law, which is declared in the Preamble to the
Constitution, and that the content of the aforementioned constitutional principle reveals itself in
various provisions of the Constitution.
In the constitutional justice case at issue it needs to be noted that the content of the
constitutional principle of a state under the rule of law inter alia is to be disclosed by applying the
principle of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the
Constitution.
5.2. In the constitutional justice case at issue it has been mentioned that, historically, the
idea of the autonomy of the school of higher education came into being in the Middle Ages, when
universities originated as establishments of science and studies; the autonomy meant that the
university, to a certain extent, was independent from the state, was striving to dissociate itself from
the influence of political power, to create an independent system of regulation of internal activities
within the school of higher education. The purpose of such dissociation from the state power was to
safeguard the freedom of science, research and teaching, to protect researchers and professors from
political influence (Constitutional Court ruling of 27 June 1994). It has also been mentioned that,
traditionally, the autonomy of the school of higher education is conceived as the right to
independently determine and establish in the regulations or statute the organisational and
governance structure, relations with other partners, the procedure of research and studies, study
programmes, the procedure of student enrolment, to solve other related questions, to use the
property given over by the state and other acquired property, to possess the territory, buildings and
other property allotted for the needs of research and studies, and to have the guarantee of
inviolability of the territory, buildings, and other property meant for scientific and study matters.
For this purpose, the school of higher education is guaranteed the institutional autonomy, i.e. a
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certain status, which means that there are certain spheres of activities independent from the control
of the executive power (Constitutional Court rulings of 14 January 2002, 5 February 2002, 20
February 2008 and 20 March 2008).
5.3. In this context it needs to be mentioned that in the Magna Charta Universitatum it is
noted that the university is an autonomous institution; to meet the needs of the world around it, its
research and teaching must be morally and intellectually independent of all political authority or
economic power.
5.4. In the constitutional justice case at issue it was noted that the autonomy of schools of
higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies self-
government of the academic community (scientific community) implemented inter alia through the
institutions of governance of the school of higher education, which represent this community; self-
government of the academic community of schools of higher education is to be related inter alia to
the democratic principles of governance; in the context of the autonomy of schools of higher
education guaranteed in Paragraph 3 of Article 40 of the Constitution, these principles include inter
alia direct participation of the academic community and its decisive influence in forming the
governance institution(s) of the school of higher education having the biggest powers; such
principles also include limitation of the number of terms of office of members of other institutions
of governance, control and supervision of the school of higher education, as well as those of the
persons discharging the functions of one-person institutions or the duties of heads of collegial
institutions.
In the constitutional justice case at issue it has also been emphasised that, while establishing
the organisational and governance structure of schools of higher education, inter alia regulating
reorganisation thereof, the legislator should heed the democratic principles of governance and not
create preconditions for violating them. The legal regulation that is not in line with these principles
could create preconditions inter alia for the state to unreasonably interfere with the governance of
schools of higher education and/or to deny self-government of the academic community of schools
of higher education and, thus, to violate the autonomy of schools of higher education guaranteed in
Paragraph 3 of Article 40 of the Constitution.
5.5. In this context it needs to be noted that, while heeding the aforementioned democratic
principles of governance, the reorganisation of the organisational and governance structure of
schools of higher education must be regulated in a way not denying the decisive influence of the
academic community in forming the governance institution(s) of the school of higher education
having the biggest powers and in adopting the most important decisions of governance of the school
of higher education, and in a way whereby the powers of the governance institutions directly
representing the academic community, which were formed under the legal regulation valid prior to
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the reorganisation and which are implementing self-government of the academic community, would
not be discontinued in violation of the Constitution.
It also needs to be mentioned that, while regulating and carrying out the reorganisation of
the organisational and governance structure of schools of higher education, one may not create
preconditions for disregarding inter alia the limitation of the number of terms of office of members
of institutions of governance, control and supervision of the school of higher education, as well as
those of the persons discharging the functions of one-person institutions or the duties of heads of
collegial institutions.
5.6. The Constitutional Court has held more than once that the constitutional principle of a
state under the rule of law is especially capacious; it comprises a range of various interrelated
imperatives. The constitutional principle of a state under the rule of law must be followed both in
law-making and implementation of law (Constitutional Court rulings of 6 December 2000, 13
December 2004, 16 January 2006, and 13 August 2007).
The Constitutional Court has held more than once that inseparable elements of the
constitutional principle of a state under the rule of law are the protection of legitimate expectations,
legal certainty and legal security. The constitutional principles of protection of legitimate
expectations, legal certainty and legal security imply the obligation of the state to secure the
certainty and stability of the legal regulation, to protect the rights of persons, to respect the
legitimate interests and legitimate expectations. These principles inter alia imply that the state must
fulfil all its undertaken obligations to the person. If the protection of legitimate expectations, legal
certainty and legal security were not secured, the trust of the person in the state and law would not
be guaranteed.
Thus, along with the other requirements, the principle of a state under the rule of law, which
is entrenched in the Constitution, implies a duty of the state to guarantee certainty and stability of
legal regulation as well as protection of legitimate expectations (Constitutional Court ruling of 24
January 2003).
5.7. The Constitutional Court has also held more than once that the essence of the
constitutional principle of a state under the rule of law is the rule of law; the constitutional
imperative of the rule of law means that the freedom of state power is limited by law, which must
be obeyed by all the entities of legal relations, including the law-making entities; the discretion of
all the law-making entities is limited by the supreme law—the Constitution.
In this context it needs to be noted that, in its rulings of 11 May 1999 and 24 January 2003,
the Constitutional Court held that in a democratic state under the rule of law the officials and
institutions must follow law. Carrying out the functions which are important to society and the state,
the officials must not face any threat if they fulfil their duties without violations of laws.
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In the context of the constitutional justice case at issue it also needs to be noted that these
provisions of the official constitutional doctrine are applicable mutatis mutandis also to the
governance bodies of state schools of higher education, since, as mentioned, the autonomy of
schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution inter alia
means that the legal regulation may not create preconditions inter alia for the state to unreasonably
interfere with the governance of schools of higher education and/or to deny self-government of the
academic community of schools of higher education.
While taking account of this, it also needs to be noted that the legislator, while
implementing the constitutional powers to establish the length of powers (and grounds for
expiration thereof) of bodies of governance of a state school of higher education, is bound by the
Constitution, thus, also by the principle of a state under the rule of law implying legal certainty,
legal stability, protection of legitimate expectations, also by the prohibition emerging from
Paragraph 3 of Article 40 of the Constitution to restrict self-government of schools of higher
education, and to violate the continuity of the governance bodies of schools of higher education
which are implementing this self-government. Therefore, under the Constitution, the legislator may
establish only such grounds for termination of powers of the governance bodies (and members
thereof) of schools of higher education before the expiry of the term of office thereof due to which
they generally cannot continue to hold office (inter alia due to such legal fact like the age
established by law, change of the place of work, liquidation of the school of higher education or an
essential reorganisation of the organisational and governance structure thereof). It needs to be noted
that this requirement is applicable mutatis mutandis to members of the academic community of
schools of higher education (teachers, scientific workers and other researchers).
6. It has been mentioned that the autonomy of schools of higher education guaranteed in
Paragraph 3 of Article 40 of the Constitution inter alia means that the legal regulation may not
create preconditions inter alia for the state to unreasonably interfere with the governance of schools
of higher education and/or to deny self-government of the academic community of schools of
higher education. It has also been mentioned that, under the Constitution, the legislator may
establish only such grounds for termination of powers of the governance bodies (and members
thereof) of schools of higher education before the expiry of the term of office thereof due to which
they generally cannot continue to hold office, inter alia due to an essential reorganisation of the
organisational and governance structure of schools of higher education.
It has also been mentioned that, under Paragraph 5 of Article 95 of the Law on Science and
Studies, the powers of the bodies of governance, elected or formed before the entry into force of
this law, of a state school of higher education, whose legal form is a budgetary establishment, are
terminated by law on 31 December 2011 before the expiry of their term of office established at the
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moment they were formed, if such powers have not expired on other grounds established in this
paragraph. It has also been mentioned that the provisions of Paragraph 5 of Article 95 of the Law on
Science and Studies are related to reorganisation of state schools of higher education, whose legal
form is a budgetary establishment, into public establishments; they are also related to such
reorganisation of their organisational and governance structure, inter alia of powers of collegial
governance bodies, which is an essential one. Thus, the ground, established in Paragraph 5 of
Article 95 of the Law on Science and Studies, for termination, on 31 December 2001, of the powers
of governance bodies of the state school of higher education whose legal form is a budgetary
establishment, if such powers have not expired on other grounds established in this paragraph, per
se would not be in conflict with the Constitution, if the essential reorganisation (related to the said
ground) of the organisational and governance structure of schools of higher education were also in
line with the requirements arising from the Constitution.
6.1. In this context it needs to be noted that, as mentioned, while regulating the
organisational and governance structure of schools of higher education, inter alia reorganisation
thereof, the legislator should heed the democratic principles of governance and not create
preconditions for violating them; the legal regulation that is not in line with these principles could
create preconditions inter alia for the state to unreasonably interfere with the governance of schools
of higher education and/or to deny self-government of the academic community of schools of
higher education and, thus, to violate the autonomy of schools of higher education guaranteed in
Paragraph 3 of Article 40 of the Constitution; while heeding the democratic principles of
governance, the reorganisation of the organisational and governance structure of schools of higher
education must be regulated in a way not denying the decisive influence of the academic
community in forming the governance institution(s) of the school of higher education having the
biggest powers and in adopting the most important decisions of governance of the school of higher
education.
6.2. In the constitutional justice case at issue it has been held that the overall legal regulation
established in Paragraph 2 of Article 20 of the Law on Science and Studies, whereby the functions
characteristic of self-government of a school of higher education are commissioned to the council of
a state school of higher education in the course of forming which the academic community does not
have a decisive influence and which is not an institution implementing self-government of the
school of higher education, violates the autonomy of schools of higher education entrenched in
Paragraph 3 of Article 40 of the Constitution. While taking account of this, the essential
reorganisation of the organisational and governance structure of state schools of higher education is
not in line with the requirements arising from the Constitution. Therefore, the ground (established in
Paragraph 5 of Article 95 of the Law on Science and Studies and related to the said reorganisation)
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for termination, on 31 December 2001, of the powers of governance bodies, elected or formed
before the entry into force of this law, of the state school of higher education whose legal form is a
budgetary establishment, if such powers have not expired on other grounds established in this
paragraph, is also in conflict with the Constitution.
6.3. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 5
of Article 95 of the Law on Science and Studies insofar as it is established therein that the powers
of the bodies of governance, elected or formed before the entry into force of this law, of a state
school of higher education whose legal form is a budgetary establishment, are terminated on 31
December 2011, if such powers have not expired on other grounds established in this paragraph, is
in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a
state under the rule of law.
7. It has been mentioned that Paragraph 5 of Article 95 of the law on Science and Studies
provides that, upon the entry into force of this law, the rector (director) of a state school of higher
education shall be elected (appointed) only by that council of the state school of higher education
which has been set up in accordance with the procedure laid down by this law, and where there is
no such council, the powers of the rector (director) of the state school of higher education shall be
extended until the election of a new rector (director) of the state higher education institution, but not
longer than for six month.
In the constitutional justice case at issue it was held that Item 5 of Paragraph 2 of Article 20
of the Law on Science and Studies, wherein it is provided that the council of a state school of higher
education elects the rector (director) of the school of higher education, appoints him to the office
and dismisses from it is in conflict with Paragraph 3 of Article 40 of the Constitution and the
constitutional principle of a state under the rule of law. While taking account of this, it also needs to
be held that Paragraph 5 of Article 95 of the Law on Science and Studies insofar as it provides that,
upon the entry into force of the Law on Science and Studies, the rector (director) of a state school of
higher education shall be elected (appointed) only by that council of the state school of higher
education which has been set up in accordance with the procedure laid down by this law, and where
there is no such council, the powers of the rector (director) of the state school of higher education
shall be extended until the election of a new rector (director) of the state higher education
institution, but not longer than for six month, is also in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 5 of
Article 95 of the Law on Science and Studies, insofar as it is established therein that the powers of
the bodies of governance, elected or formed before the entry into force of this law, of a state school
of higher education, whose legal form is a budgetary establishment, are terminated on 31 December
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2011, if such powers have not expired on other grounds established in this paragraph, also insofar as
it provides that, upon the entry into force of the Law on Science and Studies, the rector (director) of
a state school of higher education shall be elected (appointed) only by that council of the state
school of higher education which has been set up in accordance with the procedure laid down by
this law, and where there is no such council, the powers of the rector (director) of the state school of
higher education shall be extended until the election of a new rector (director) of the state higher
education institution, but not longer than for six month, is in conflict with Paragraph 3 of Article 40
of the Constitution and the constitutional principle of a state under the rule of law.
Having held this, the Constitutional Court will not further investigate whether Paragraph 5
of Article 95 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 48 of
the Constitution.
IX
On the compliance of Article 96 of the Law on Science and Studies with the
constitutional principles of a state under the rule of law, protection of legitimate expectations,
legal certainty and legal security, as well as on the compliance of Paragraph 4 of this article
with Paragraph 3 of Article 40 of the Constitution.
1. The group of Members of the Seimas, a petitioner, is doubting whether Article 96 of the
Law on Science and Studies is not in conflict with the constitutional principles of a state under the
rule of law, protection of legitimate expectations, legal certainty and legal security and whether
Paragraph 4 of this article is not in conflict with Paragraph 3 of Article 40 of the Constitution.
2. Article 96 of the Law on Science and Studies prescribes:
“1. State schools of higher education shall be reorganised from budgetary establishments
into public establishments pursuant to the provisions of the Civil Code.
2. The Government shall take a decision regarding the investment in state schools of higher
education of the assets belonging to the State by the right of ownership. When reorganising state
schools of higher education into public establishments, immovable property may not be invested in
such institutions.
3. After the reorganisation of a state school of higher education into a public establishment,
all the rights and duties which that state school of higher education acquired when it was a
budgetary establishment shall be transferred to it.
4. Within twelve months of the entry into force of this Law, state universities shall apply to
the Ministry of Education and Science concerning the setting-up of the council of a school of higher
education provided for in this Law and shall submit the members nominated to this council by the
school of higher education.”
3. Thus, in Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies the procedure
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for reorganising state schools of higher education from budgetary establishments into public
establishments is established.
It needs to be noted that these provisions of the Law on Science and Studies are related to
Paragraph 4 of Article 6 of the same law wherein the only legal form of a state school of higher
education—a public establishment—is established, whereas, under Paragraph 9 (wording of 30 June
2005) of Article 5 of the Republic of Lithuania Law on Higher Education valid until the entry into
force of the Law on Science and Studies, a state school of higher education used to be defined as a
public legal person functioning as a budgetary or public establishment and having a special status
established by the Constitution of the Republic of Lithuania and this law.
Paragraph 1 of Article 96 of the Law on Science and Studies has established a general norm
whereby the provisions of the Civil Code are applied for the reorganisation of state schools of
higher education from budgetary establishments into public establishments. From the applicable
provisions of the Civil Code one is to mention the following: the provision of Paragraph 1 of Article
2.104 “Reorganisation of Legal Persons“ of the Civil Code defining reorganisation of a legal person
as an alteration of the legal form of a legal person whereby a legal person of a new legal form
becomes the successor to all rights and liabilities duties of the reorganised legal person; the
provision of Paragraph 5 of the same article providing that also laws regulating individual legal
forms of legal persons may establish a specific mode for the reorganisation of legal persons; the
provision of Paragraph 1 of Article 2.105 “Mandatory Reorganisation of Legal Persons” whereby
laws may provide for circumstances under which a legal person must alter its legal form; and the
provision of Paragraph 2 of the same article that, where within the time limit established by the law,
which may not be shorter than nine months, members of a legal person fail to pass a resolution on
the alteration of the legal person’s legal form, it shall be considered that the legal form of the legal
person has been altered and the legal person acts according to the documents of incorporation
inasmuch as they do not infringe laws regulating activities of legal persons having the legal form
into which the said legal person had to be altered.
Thus, the provision of Paragraph 1 of Article 96 of the Law on Science and Studies together
with the provision of Paragraph 8 of Article 93 of this law wherein there is an obligation to
reorganise sate schools of higher education from budgetary establishments into public
establishments till 31 December 2011, is a provision for a mandatory reorganisation of the legal
persons—state schools of higher education.
In this context it needs to be mentioned that the Law on Science and Studies (with the
exception of certain articles thereof) came into force on 12 May 2009. Thus, a term longer than 19
months was provided for the reorganisation of state schools of higher education, whose legal form
is a budgetary establishment, into public establishments.
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The provisions of Paragraphs 2 and 3 of Article 96 of the Law on Science and Studies
provide for special norms related to certain aspects of the reorganisation of state schools of higher
education into public establishments.
4. It needs to be noted that Paragraph 4 of Article 96 of the Law on Science and Studies is
related not to the reorganisation of state schools of higher education into public establishments, but
rather to the formation of the councils (established under the legal regulation of the Law on Science
and Studies) of state universities: it entrenched the obligation for state universities to apply, within
twelve months of the entry into force of this law, to the Ministry of Education and Science
concerning the setting-up of the council of a school of higher education provided for in this law and
to submit the members nominated to this council by the school of higher education. It has been
mentioned that the Law on Science and Studies (with the exception of certain articles thereof) came
into force on 12 May 2009. Thus, under Paragraph 4 of Article 96 of the Law on Science and
Studies, state universities were under obligation to apply, till 12 May 2010, to the Ministry of
Education and Science concerning the setting-up of the council of a school of higher education
provided for in this law and to submit the members nominated to this council by the school of
higher education.
5. The group of Members of the Seimas, a petitioner, has substantiated its doubts regarding
the compliance of Article 96 of the Law on Science and Studies by the official constitutional
doctrine in which inter alia the content of the constitutional principle of a state under the rule of
law, that of the imperatives of protection of legitimate expectation, legal certainty and legal security
are disclosed.
6. As mentioned, in the constitutional justice case at issue the content of the constitutional
principle of a state under the rule of law inter alia is to be disclosed by applying the principle of
autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the
Constitution. It has also been mentioned that the protection of legitimate expectations, legal
certainty and legal security are inseparable elements of the principle of a state under the rule of law.
7. It has been mentioned that in Paragraphs 1, 2, 3 of Article 96 of the Law on Science and
Studies the procedure for reorganising state schools of higher education from budgetary
establishments into public establishments is established and that these paragraphs are related to
Paragraph 4 of Article 6 of the Law on Science and Studies wherein the only legal form of a state
school of higher education—a public establishment—is established. In the constitutional justice
case at issue it has also been mentioned that the establishment of the legal form for the state school
of higher education as a public legal person per se does not deny the freedom of scientific and
educational activity of the school of higher education and self-government of the academic
community, i.e. the academic and institutional autonomy of schools of higher education.
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In the constitutional justice case at issue it was held that Paragraph 4 of Article 6 of the Law
on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution. Thus,
one is also to hold that there is no ground to assess, in a different manner, Paragraphs 1, 2, 3 of
Article 96 of the Law on Science and Studies in which the reorganisation of state schools of higher
education from budgetary establishments into public establishments is established.
It has been mentioned that a term longer than 19 months was provided for the reorganisation
of state schools of higher education, whose legal form is a budgetary establishment, into public
establishments. Thus, there is also no ground for asserting that the legal regulation established in
Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies violates the imperatives of
protection of legitimate expectation, legal certainty and legal security, and other imperatives of the
constitutional principle of a state under the rule of law.
8. Taking account of the arguments set forth it needs to be held that Paragraphs 1, 2, 3 of
Article 96 of the Law on Science and Studies are not in conflict with the constitutional principle of
a state under the rule of law.
9. It has been mentioned that that Paragraph 4 of Article 96 of the Law on Science and
Studies is related to the formation of the councils (established under the legal regulation of the Law
on Science and Studies) of state universities. It has also been mentioned that, under Paragraph 4 of
Article 96 of the Law on Science and Studies, state universities were under obligation to apply, till
12 May 2010, to the Ministry of Education and Science concerning the setting-up of the council of a
school of higher education provided for in this law and to submit the members nominated to this
council by the school of higher education. Thus, the relations regulated in Paragraph 4 (which is
disputed by the petitioner) of Article 96 of the Law on Science and Studies have ended and this
provision of the law may no longer be applied, even though it has not been recognised invalid.
9.1. Under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment
of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal
proceedings.
As it has been held by the Constitutional Court more than once, the formula “shall be the
grounds <...> to dismiss the instituted legal proceedings” is to be construed as establishing the right
of the Constitutional Court, in cases, when not courts, but other subjects specified in Article 106 of
the Constitution have applied to the Constitutional Court, to dismiss the instituted legal proceedings
upon taking account of the circumstances of the case (inter alia Constitutional Court rulings of 19
January 2005 and 28 March 2006, as well as decisions of 31 May 2006, 29 December 2006, 28 May
2007, 25 February 2008 and 14 December 2009); gradually, after the Constitutional Court had
gained corresponding experience in considering constitutional justice cases, also such construction
in the Constitutional Court jurisprudence came into being, where in cases when not courts, but other
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subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, and
when the disputed legal act (part thereof) is no longer valid—it has been recognised as no longer
valid (it was abolished or amended) or its validity expired—the Constitutional Court, while paying
heed to the circumstances of the considered case, has the powers to dismiss the instituted legal
proceedings, however, it does not have to dismiss the instituted legal proceedings in every case
when the disputed legal act (part thereof) is no longer valid—it has been recognised as no longer
valid (it was abolished or amended) or its validity expired (Constitutional Court ruling of 28 March
2006, decision of 8 August 2006).
It needs to be noted that the jurisprudence of the Constitutional Court equated to invalid
legal acts (parts thereof) also such legal acts (parts thereof), which, even though formally valid
when the corresponding constitutional justice cases were investigated, however, at that moment
they could no longer be applied because one had to apply certain legal acts (parts thereof) that were
passed later and/or those of greater power, which regulated the corresponding relations differently
than the disputed legal acts (parts thereof) (Constitutional Court ruling of 28 March 2006, decisions
of 8 August 2006 and 13 November 2007). In the context of the constitutional justice case at issue it
needs to be noted that also the legal acts (parts thereof) applied on a temporary basis, the term of the
application whereof and the relations regulated by which have ended at the time of consideration of
the constitutional justice case, even though these acts (parts thereof) have not officially been
recognised as invalid, may be equated to invalid legal acts (parts thereof).
9.2. Thus, it needs to be noted that in cases, when not courts, but other subjects (inter alia a
group of not less than 1/5 of the Members of the Seimas) specified in Article 106 of the
Constitution have applied to the Constitutional Court, and the disputed legal act (part thereof) is to
be equated to legal acts (parts thereof) that are no longer valid, since the established term of
application thereof is applied on a temporary basis and the relations regulated by it have ended, the
Constitutional Court has the right to dismiss the instituted legal proceedings, however, it does not
have to do so in every situation. While deciding whether to dismiss the instituted legal proceedings,
the Constitutional Court must take account of the circumstances of the case considered by it.
In this context, the significant circumstances which must be taken into account by the
Constitutional Court, are, as mentioned, the fact that the relations regulated in disputed Paragraph 4
of Article 96 of the Law on Science and Studies have ended and the fact that this provision of the
law may no longer be applied, even though it has not been recognised invalid; it has also been
mentioned that, once it has been held in the constitutional justice case at issue that the provisions of
Paragraph 2 of Article 20 of the Law on Science and Studies, to the extent that they provide for the
governance functions of the council of a state school of higher education, are in conflict with
Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the
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rule of law, the elimination of these provisions from the legal system, with respect to application of
law, virtually amounts to the change of the overall legal regulation and the establishment of thus far
different overall legal regulation: the council of a state school of higher education, the procedure for
forming which is set in Paragraph 3 of Article 20 of the Law on Science, may continue to perform
the control and supervision functions related to responsibility of the school of higher education and
its accountability to society and provided for in Paragraph 2 of Article 20 of this law, as well as
advisory functions. Thus, while applying the legal regulation established in the Law on Science and
Studies, inter alia Paragraph 4 of Article 96 of the Law on Science and Studies, the new overall
legal regulation, which has undergone changes due to this Constitutional Court ruling, is to be
applied to the formed councils of schools of higher education.
Consequently, while taking account of the circumstances of the constitutional justice case at
issue, it needs to be held that in the part of the case related to the relations regulated in Paragraph 4
of Article 96 of the Law on Science and Studies the matter of dispute has virtually disappeared. In
this context it needs to be mentioned that the Constitutional Court has already invoked the provision
whereby the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the
instituted legal proceedings while holding that in the case considered by it the matter of dispute had
virtually disappeared (since by then a new legal regulation, but not the disputed one, was being
applied) (inter alia the Constitutional Court ruling of 28 March 2006).
10. Taking account of the arguments set forth, the part of the constitutional justice case at
issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to
investigate whether Paragraph 4 of Article 96 of the Law on Science and Studies is not in conflict
with Paragraph 3 of Article 40 of the Constitution 40 and with the constitutional principles of a state
under the rule of law, protection of legitimate expectations, legal certainty and legal security, is to
be dismissed.
X
On the compliance of Article 94 of the Law on Science and Studies with the
constitutional principles of a state under the rule of law, protection of legitimate expectations,
legal certainty and legal security, as well as on the compliance of Paragraph 5 of this article
with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.
1. The group of Members of the Seimas, a petitioner, is doubting whether Article 94 of the
Law on Science and Studies is not in conflict with the constitutional principles of a state under the
rule of law, protection of legitimate expectations, legal certainty and legal security and whether
Paragraph 5 of this article is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of
Article 41 of the Constitution.
2. Article 94 of the Law on Science and Studies prescribes:
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“1. Paragraph 2 of Article 67 and Paragraph 2 of Article 69 of this Law shall enter into force
on 1 January 2010.
2. Items 1 and 2 of Paragraph 1 of Article 69, Paragraphs 6, 7, 8, 10, 11, 12 and 14 of
Article 70, Articles 71, 72 and Paragraphs 1, 2, 3, 4 and 5 of Article 76 of this Law shall not be
applied to persons who were accepted to schools of higher education before the entry into force of
this Law.
3. State budget funds designated to fund studies of the persons accepted to state schools of
higher education before the entry into force of this Law shall be appropriated in accordance with the
procedure laid down by the Government, taking account of the number of student places, fixed
pursuant to the procedure laid down by legal acts before the entry into force of this Law, where the
studies in state schools of higher education of the students accepted to the said student places are
fully or partly covered with state budget funds.
4. Students of undergraduate, integrated studies and studies of the second cycle of all forms
of state schools of higher education, accepted to state schools of higher education before the entry
into force of this Law, with the exception of the students specified in Paragraphs 8 and 9 of this
Article, if their studying does not meet the criteria of good studying as defined in Paragraph 5 of
this Article, shall each semester pay a study fee to a higher education institution in the amount of
four base social benefits.
5. Free education shall be secured for students of state schools of higher education with a
good academic record, accepted to the state higher education institutions before the entry into force
of this Law, with the exception of the students specified in Paragraphs 8 and 9 of this Article.
Students who are good at their studies shall be students who do not have academic failures and
whose average of the evaluation of study subjects within a semester is not less than eight on a ten-
point grading scale in accordance with the system of evaluation of study results approved by the
Government or an institution authorised by it.
6. Students who were accepted to state schools of higher education before the entry into
force of this Law shall be struck off the register of students of the school of higher education for
poor progress in accordance with the procedure laid down by the school of higher education. The
following persons, accepted to state schools of higher education before the entry into force of this
Law, who study in the same study programme of the same year of studies (except the persons
referred to in Items 1-3 of Paragraph 8 of this Article) shall qualify to fill vacancies according to the
progress and in the order of priority:
1) students of the same study form;
2) students of other study forms.
7. In the case when it is impossible to fill vacancies in accordance with the procedure laid
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down in Paragraph 6 of this Article, state budget funds designated for funding of these free student
places may be used for funding the studies of students of the same year of studies who were
accepted to state higher education institutions before the entry into force of this Law and who study
according to the study programmes of at least equivalent cost.
8. The following persons accepted to a state school of higher education shall pay the study
cost, fixed by the state school of higher education, for studies in the state school of higher
education:
1) persons studying according to a study programme of the same cycle or a lower cycle
which they have completed in the state school of higher education, if they paid the full study cost
for not more than half of the credits of the study programme, with the exception of the cases
provided for by the Government;
2) persons who simultaneously study according to two or more study programmes, if their
studies are fully or partly financed with the state budget funds according to at least one of these
study programmes (they themselves pay for the second or other study programmes);
3) foreigners, if the international treaties of the Republic of Lithuania or other legal acts do
not provide otherwise;
4) persons who have failed to be accepted to the student places where the studies are fully or
partly financed with state budget funds.
9. The following persons accepted to state schools of higher education before the entry into
force of this Law shall pay the study cost, proportionate to the volume of a study subject, for studies
in that state school of higher education:
1) persons who do not engage in sequential studies;
2) persons who repeat separate subjects of a sequential study programme.
10. Students who were accepted to state schools of higher education before the entry into
force of this Law may receive state loans or state-subsidised loans to pay the study fees referred to
in Paragraph 4 of this Article. The Government shall lay down the procedure for granting,
administering and repaying these loans.
11. Paragraph 2 of Article 75 of this Law shall apply only to students of state schools of
higher education in 2009. State budget funds designated for payment of incentive scholarships and
other support for students of state schools of higher education accepted to those state schools of
higher education before the entry into force of this Law shall be granted in accordance with the
procedure laid down by the Government.”
3. While having doubts about the constitutionality of the provisions of Article 94 of the Law
on Science and Studies, the petitioner has presented the doctrinal provisions of the Constitutional
Court regarding the requirements for the legislator implied by the constitutional principle of a state
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under the rule of law. While disputing Paragraph 5 of this article, it is invoking the doctrinal
provision of the Constitutional Court whereby the criteria which must be met by citizens in order to
be regarded as ones being good at their studies must be established only by law.
Thus, from the arguments of the petitioner it is clear that it is disputing the provision
“Students who are good at their studies shall be students who do not have academic failures and
whose average of the evaluation of study subjects within a semester is not less than eight on a ten-
point grading scale in accordance with the system of evaluation of study results approved by the
Government or an institution authorised by it” of Paragraph 5 of Article 94 of the Law on Science
and Studies insofar as it is established therein that the criterion of learning well is the average of the
evaluation of study subjects within a semester is not less than eight on a ten-point grading scale in
accordance with the system of evaluation of study results approved by the Government or an
institution authorised by it.
4. The disputed provision of Paragraph 5 of Article 94 of the Law on Science and Studies
inter alia indicates the criterion of learning well—the average of the evaluation of study subjects
within a semester is not less than eight on a ten-point grading scale. It needs to be noted that,
traditionally, on a ten-point grading scale of academic results applied in establishments of
education, science and studies the evaluation “eight” means a good level of knowledge and
capabilities.
The disputed provision of Paragraph 5 of Article 94 of the Law on Science and Studies inter
alia indicates that the system of evaluation of study results approved by the Government or an
institution authorised by it is to be applied to the ten-point grading scale.
It needs to be noted that the provisions of Paragraph 5 of Article 94 of the Law on Science
and Studies are applied on a temporary basis, since they are related to the entry into force and
application of the provisions of Chapter VII of this law, regulating inter alia funding from the state
budget the studies of the students who are good at their studies at state schools of higher education.
The purpose of the provisions of Paragraph 5 of Article 94 of the Law on Science and Studies is to
guarantee the free-of-charge education for the students who are good at their studies at state schools
of higher education who were accepted to these schools before the entry into force of this law.
Therefore, in Paragraph 5 of Article 94 of the Law on Science and Studies the same criteria of
learning well are established as those established in Paragraph 1 (wording of 26 June 2008) of
Article 60 of the Law on Higher Education (in the latter paragraph it was established that students
good at their studies are those students who have no failed examinations or credits and whose
average of subjects assessment during a semester is at least “eight” on the 10-point assessment scale
according to the system of assessment study results approved by the Government or an institution
authorised by it). Thus, the provisions of Paragraph 5 of Article 94 of the Law on Science and
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Studies are applied only to the persons accepted to state schools of higher education before the entry
into force of this law, while seeking to established, pursuant to the criteria applied before the entry
into force of this law, who of these persons should be deemed as students good at their studies
whose studies are covered from the state budget.
5. It needs to be noted that, in its ruling of 20 March 2008, while construing the provision of
Paragraph 3 of Article 41 of the Constitution that citizens who are good at their studies shall be
guaranteed education at state schools of higher education free of charge, the Constitutional Court
held that the Constitution does not define expressis verbis as to which citizens are to be regarded as
those who are good at their studies. The content of the notion “citizen who is good at his studies” is
revealed in the official constitutional doctrine: a citizen who is good at his studies is to be regarded
the one who “is good at his studies, i.e. his learning meets the established criteria of learning well”
(Constitutional Court ruling of 14 January 2002); the criteria enabling to establish which students
can be said to demonstrate good academic results and which would, consequently, as prescribed by
the Constitution, have the right that their education in state higher schools be financed by the state,
should be established by law (Constitutional Court ruling of 7 June 2007). These criteria must be
known in advance, they must be clear and transparent, they cannot deviate not only from the
constitutional concept of good learning, but also from such concept of good learning, which arises
from the social experience of society and which does not deny the meaning of the word “good” that
is understood by everyone and is generally recognised.
6. It has been mentioned that the disputed provision of Paragraph 5 of Article 94 of the Law
on Science and Studies indicates the criterion of learning well—the average of the evaluation of
study subjects within a semester is not less than eight on a ten-point grading scale—traditionally
means a good level of knowledge and capabilities. Thus, this criterion does not deviate from such
concept of good learning, which arises from the social experience of society and which does not
deny the meaning of the word “good” that is understood by everyone and is generally recognised;
whereas the fact that the system of evaluation of study results approved by the Government or an
institution authorised by it is to be applied to the ten-point grading scale may not be understood as
the powers granted to the Government or an institution authorised by it to establish an essentially
different criterion of learning well.
7. It has been mentioned that the criteria enabling to establish which students can be said to
demonstrate good academic results and which would, consequently, as prescribed by the
Constitution, have the right that their education in state higher schools be financed by the state,
should be established by law. It has been held that the criterion of learning well specified in
Paragraph 5 of Article 94 of the Law on Science and Studies—the average of the evaluation of
study subjects within a semester is not less than eight on a ten-point grading scale in accordance
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with the system of evaluation of study results approved by the Government or an institution
authorised by it—meets the aforesaid requirement. Thus, there are no grounds to assert that such
legal regulation denies the autonomy of schools of higher education guaranteed in Paragraph 3 of
Article 40 of the Constitution and the provisions of Paragraph 3 of Article 41 thereof.
8. Taking account of the arguments set forth one is to conclude that Paragraph 5 of Article
94 of the Law on Science and Studies insofar as it is established therein that the criterion of learning
well is the average of the evaluation of study subjects within a semester is not less than eight on a
ten-point grading scale in accordance with the system of evaluation of study results approved by the
Government or an institution authorised by it is not in conflict with Paragraph 3 of Article 40 and
Paragraph 3 of Article 41 of the Constitution and with the constitutional principle of a state under
the rule of law.
XI
On the compliance of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90
and Paragraph 3 of Article 91 of the Law on Science and Studies with Paragraph 3 of Article
40 of the Constitution and the constitutional principle of a state under the rule of law.
1. The group of Members of the Seimas, a petitioner, has doubted whether Item 3 of
Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of Article 91 of the Law on
Science and Studies are not in conflict with Paragraph 3 of Article 40 of the Constitution and the
constitutional principle of a state under the rule of law.
2. Item 3 of Paragraph 2 of Article 86 of the Law on Science and Studies prescribes:
“The main purposes of a state scientific institute shall be as follows:
<...>
3) together with schools of higher education to train scientists, to help to train specialists, to
ensure the scientific competence of international level.”
Paragraph 4 of Article 90 of the Law on Science and Studies provides:
“Two-thirds of members of the council of a university scientific institute shall be members
of the council elected by scientists of the university scientific institute and one-third of members of
the council shall be members of the council appointed by the university senate. The Government
may fix another proportion of members of the council of a university scientific institute elected by
scientists of the university scientific institute and members of the council of the university scientific
institute appointed by the university senate, moreover, the Government may also determine the
procedure in compliance with which representatives of the interested institutions, establishments
and organisations are included in the council of the university scientific institute.”
Paragraph 3 of Article 91 of the Law on Science and Studies provides:
“A director of a university scientific institute shall be elected by the commission from
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among scientists by secret ballot in an open competition for a term of office not exceeding five
years and for not more than two terms of office in succession; this commission shall comprise an
equal number of representatives of the council of the university scientific institute and the university
senate, and one representative of the Ministry of Education and Science. The Ministry of Education
and Science shall lay down the procedure for holding a competition and setting up the commission.
The university rector shall conclude a fixed-term employment contract with the elected director of
the university scientific institute.”
3. It needs to be noted that Articles 86, 90, 91 of the Law on Science and Studies, which
contain the provisions disputed by the petitioner, are in Chapter IX “Regulation of Activities of
Research Institutions During the Transitional Period” of the same law.
Paragraph 4 of Article 95 of the Law on Science and Studies provides that Chapter IX of
this law shall be valid until 1 January 2010. Thus, as from then the provisions (disputed by the
petitioner) of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of
Article 91 of the Law on Science and Studies have been no longer valid.
4. It has been mentioned that, under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to
dismiss the instituted legal proceedings.
It has been mentioned that, as it has been held by the Constitutional Court more than once,
the formula “shall be the grounds <...> to dismiss the instituted legal proceedings” is to be
construed as establishing the right of the Constitutional Court, in cases, when not courts, but other
subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, to
dismiss the instituted legal proceedings upon taking account of the circumstances of the case (inter
alia Constitutional Court ruling of 19 January 2005, ruling of 28 March 2006, as well as decisions
of 31 May 2006, 29 December 2006, 28 May 2007, 25 February 2008 and 14 December 2009);
gradually, after the Constitutional Court had gained corresponding experience in considering
constitutional justice cases, also such construction in the Constitutional Court jurisprudence came
into being, where in cases when not courts, but other subjects specified in Article 106 of the
Constitution have applied to the Constitutional Court, and when the disputed legal act (part thereof)
is no longer valid—it has been recognised as no longer valid (it was abolished or amended) or its
validity expired—the Constitutional Court, while paying heed to the circumstances of the
considered case, has the powers to dismiss the instituted legal proceedings, however, it does not
have to dismiss the instituted legal proceedings in every case when the disputed legal act (part
thereof) is no longer valid—it has been recognised as no longer valid (it was abolished or amended)
or its validity expired (Constitutional Court ruling of 28 March 2006, decision of 8 August 2006).
Thus, in the jurisprudence of the Constitutional Court, the rule that the annulment of the
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disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings is
applied to all legal acts that are no longer valid, inter alia to those whose validity has ended; it is
also inter alia understood not as a duty of the Constitutional Court, but as its right in cases, when
not courts, but other subjects (inter alia a group of not less than 1/5 of the Members of the Seimas)
specified in Article 106 of the Constitution have applied to the Constitutional Court, to dismiss the
instituted legal proceedings upon taking account of the circumstances of the case.
5. In the context of the constitutional justice case at issue it needs to be noted that the
provisions (disputed by the petitioner) of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article
90 and Paragraph 3 of Article 90 of the Law on Science and Studies used to regulate the activity of
scientific research establishments, inter alia state scientific institutes and university scientific
institutes, during the transitional period, i.e. until their reorganisation while applying the groups and
types of institutions of science and studies established in the new legal regulation entrenched in the
Law on Science and Studies, inter alia while reorganising them into state scientific research
institutes or including them into the organisational and governance structure of universities. Under
Paragraph 4 of Article 93 of the Law on Science and Studies, the Government had to arrange the
reorganisation of scientific research establishments till 1 January 2010.
Thus, while taking account of the circumstances of the constitutional justice case at issue, it
needs to be held that in the part of the case related to the reorganisation of scientific research
establishments, inter alia state scientific institutes and university scientific institutes, and regulation
of their activity during the transitional period, the matter of dispute has virtually disappeared, since
the reorganisation of these establishments is over, the provisions of Chapter IX of the Law on
Science and Studies that used to regulate their activity during the transitional period are no longer
applied, and the new legal regulation established in the Law on Science and Studies is applied to the
reorganised establishments of science and studies; it has been mentioned that the Constitutional
Court has previously invoked the provision whereby the annulment of the disputed legal act shall be
grounds to adopt a decision to dismiss the instituted legal proceedings while holding that in the case
considered by it the matter of dispute had virtually disappeared (since by then a new legal
regulation, but not the disputed one, was being applied).
6. Taking account of the arguments set forth, the part of the constitutional justice case at
issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to
investigate whether Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3
of Article 91 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 40 of
the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.
XII
On the compliance of Paragraphs 2, 4, 6, 8 of Article 93 of the Law on Science and
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Studies with the constitutional principles of a state under the rule of law, protection of
legitimate expectations and legal security.
1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraphs 2, 4,
6, 8 of Article 93 of the Law on Science and Studies are not in conflict with the constitutional
principles of a state under the rule of law, protection of legitimate expectations and legal security.
2. It has been mentioned that the Constitutional Court has held more than once that the
protection of legitimate expectations, legal certainty and legal security are inseparable elements of
the constitutional principle of a state under the rule of law.
3. The petitioner, while seeking to substantiate its doubts regarding the compliance of
Paragraphs 2, 4, 6, 8 of Article 93 of the Law on Science and Studies with the Constitution, has
presented the doctrinal provisions formulated by the Constitutional Court regarding the
requirements for the legislator implied by the constitutional principle of a state under the rule of
law. In the opinion of the petitioner, there emerge doubts regarding the constitutionality of these
provisions of Article 93 of the Law on Science and Studies also because these provisions are related
to the reorganisation of state schools of higher education and scientific research establishments.
According to the petitioner, such reorganisation is in conflict with the principle of autonomy of
schools of higher education entrenched in the Constitution.
4. It needs to be noted that all provisions of Article 93 of the Law on Science and Studies
regulate the implementation of this law.
5. Paragraph 2 of Article 93 of the Law on Science and Studies provides:
“Upon entry into force of this Law, universities may not accept persons to college studies
and colleges may not accept persons to university studies.”
5.1. The provision of Paragraph 2 of Article 93 of the Law on Science and Studies, which is
being disputed by the petitioner, is to be related to the implementation of other provisions of this
law, inter alia to Paragraph 1 of Article 6 of the Law on Science and Studies wherein two types of
schools of higher education—universities and colleges—are established, as well as to the provision
of Paragraph 1 of Article 8 of this law whereby the university shall carry out university studies
(these studies, under Item 1 of Paragraph 2 of the same article, must inter alia provide persons with
university higher education based on scientific research and corresponding to the modern level of
knowledge and technologies), to the provision of Paragraph 1 of Article 9 thereof whereby the
college shall carry out college studies (these studies, under Item 1 of Paragraph 2 of the same
article, must inter alia provide persons with the college higher education which satisfies the needs
of the State, society and economy of Lithuania, and conforms to the level of science and latest
technologies). In this context it also needs to be mentioned that, under Paragraph 3 of Article 8 of
the Law on Science and Studies, higher requirements are raised to the teaching staff of universities
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(more than half of the teaching staff of a university must be scientists and/or established artists) than
the requirements for the teaching staff of colleges established in Paragraph 3 of Article 9 of this law
(more than a half of the teaching staff of a college must have at least three-year practical work
experience in the sphere of a subject they teach).
Thus, the provision of Paragraph 2 of Article 93 of the Law on Science and Studies seeks to
ensure the uniform and quality level of university higher education provided by universities and
also the essential different, but uniform and quality level of collegiate higher education provided by
colleges.
5.2. The provision of Paragraph 2 of Article 93 of the Law on Science and Studies, which is
being disputed by the petitioner, is also to be related to certain provisions of the Law on Higher
Education which used to be in force prior to the Law on Science and Studies. Paragraph 1 of Article
6 of the Law on Higher Education inter alia used to provide that a university shall be a school of
higher education, where university studies prevail and the majority of students comprise those
studying according to university study programmes, whereas Paragraph 4 of this article used to
provide that universities may teach students in accordance with non-university study programmes as
well. Paragraph 1 of Article 7 (wording of 18 July 2006) of the Law on Higher Education inter alia
used to provide that a college shall be a school of higher education, where non-university studies
prevail and the majority of students are those studying in accordance with non-university study
programmes. Paragraph 4 of the same article used to provide that college study programmes may
include study programmes (modules) co-ordinated with universities and corresponding to university
undergraduate studies; a college may be given the right to organise the undergraduate university
studies of some subject area in accordance with the procedure established by the Government; in
this event, not less than half of the amount of study programmes must be taught by scientists and/or
distinguished artists. Paragraph 7 of this article used to provide that a college may conclude
contracts with universities concerning general studies and research programmes, exchange of
teachers, etc.
Thus, under the legal regulation established in the Law on Higher Education, universities
were allowed to carry out collegiate studies, whereas colleges were allowed to carry out the studies
corresponding to university basic studies, provided not less than half of the amount of study
programmes were taught by scientists and/or distinguished artists. It needs to be noted that, under
the legal regulation established in the Law on Science and Studies, universities lost the opportunity
to carry out collegiate studies, meanwhile colleges—studies corresponding to university basic
studies.
It also needs to be noted that, under Paragraph 10 of Article 93 of the Law on Science and
Studies, schools of higher education shall create conditions to complete the studies for persons who
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were accepted to the schools of higher education before the entry into force of this law. Thus, in this
context the provision of Paragraph 2 of Article 93 of the Law on Science and Studies is to be
construed that upon the entry into force of the Law on Science and Studies admission to collegiate
studies in universities and that to university studies in colleges may not be conducted, however, the
persons accepted to such studies before the entry into force of this law are given an opportunity to
finish them.
5.3. In the constitutional justice case at issue it has been mentioned that the Constitutional
Court has held more than once that the constitutional principle of a state under the rule of law is a
universal principle, upon which the entire legal system of Lithuania and the Constitution itself are
based; the content of the principle of a state under the rule of law reveals itself in various provisions
of the Constitution; the essence of the constitutional principle of a state under the rule of law is the
rule of law; the constitutional imperative of the rule of law means that the freedom of state power is
limited by law, which must be obeyed by all the entities of legal relations, including the law-making
entities; the discretion of all the law-making entities is limited by the supreme law—the
Constitution; all the legal acts and decisions of all the state and municipal institutions and officials
must be in compliance with and not contradicting to the Constitution; the constitutional principle of
a state under the rule of law must be followed both in law-making and implementation of law; the
compliance of each institute of law with the Constitution must be evaluated according to how this
institute is in compliance with the constitutional principles of a state under the rule of law.
It has also been mentioned that in the constitutional justice case at issue the content of the
constitutional principle of a state under the rule of law inter alia is to be disclosed by applying the
principle of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the
Constitution.
5.4. In the constitutional justice case at issue it has been noted that the right of the state to
establish the quality requirements for higher education per se does not deny the autonomy of
schools of higher education; however, when this right is being implemented, one must heed the
imperatives emerging from Constitution, inter alia the constitutional principles of proportionality
and reasonableness, the principle lex non cogit ad impossibilia etc.; the provision of the official
constitutional doctrine that autonomy of schools of higher education include their right to
independently determine the study programmes is to be construed in the context of the
constitutional obligation of the state to supervise the activity of educational establishments and the
constitutional obligation to secure that the level of provided higher education, which is marked by
corresponding qualification degrees, would comply with certain uniform standards of the quality of
higher education.
In the constitutional justice case at issue it was also noted that, while heeding autonomy of
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schools of higher education, the legislator has broad discretion to choose and regulate a concrete
model of organising science and studies, which would meet best the needs of development of the
progress of the state and society in a particulate period of time. However, having chosen a concrete
model for organising science and studies, the legislator must ensure uniform standards of higher
education rendered by institutions of science and studies, inter alia those of training of scientists
and specialists.
In the constitutional justice case at issue it has also been noted that the variety of purposes of
higher education determines the fact that there may be various types of schools of higher education;
while taking account of this, laws may establish different limits of autonomy for different types of
schools of higher education (while taking account of whether they are universities or colleges,
whether the founders are the state or other subjects, and while taking into consideration other
conditions); the rights exercised by schools of higher education may be (while heeding the
Constitution) differentiated according to various important criteria, inter alia according to the status
of these schools of higher education (whether they are universities or not), the level of higher
education provided to the persons who are studying therein, the programme of studies conducted by
them, the scientific potential thereof etc.
Thus, it needs to be held that, under the Constitution, the legislator has the right to establish
such a model for organising science and studies whereby only two types of schools of higher
education—universities and colleges—would carry out studies; having chosen such a model, the
legislator must also differentiate the quality requirements of higher university education and higher
collegiate education and create legal preconditions to secure the uniform quality of higher
university education and higher collegiate education.
5.5. In this context it needs to be noted some universities also have centuries-long traditions
and their activities are characterised by the symbiosis of the humanities, social sciences, natural
sciences, mathematics (and more often than not also medicine), therefore, they keep a balance
among humanities, social sciences, and natural sciences, whereas this fact is influential on studies in
various specialities.
The Constitutional Court has also noted more than once the differences in the higher
education provided by universities and the (special) higher education provided by other schools of
higher education, which are not universities: not only abundance of knowledge but also versatility
and fundamentality of the latter are characteristic of university education (Constitutional Court
ruling of 10 July 1996); the persons who have university education acquire supplementary and
universal knowledge which is necessary when adopting crucial decisions in various spheres of life
(Constitutional Court rulings of 10 July 1996, 20 February 2008); university education is essentially
different from special higher education (Constitutional Court ruling of 10 July 1996). In the context
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of the constitutional justice case at issue it needs to be noted that higher university education is
essentially different from higher collegiate education.
5.6. In this context it also needs to be mentioned that in the constitutional justice case at
issue it has been held that the autonomy of schools of higher education is not denied by the legal
regulation established in Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on
Science and Studies differentiating the requirements for the teaching staff of universities and
colleges, but by such legal regulation one is seeking to secure the quality of education provided by
schools of higher education.
5.7. It has been mentioned that, under the Constitution, the legislator has the right to
establish such a model for organising science and studies whereby only two types of schools of
higher education—universities and colleges—would carry out studies; having chosen such a model,
the legislator must also differentiate the quality requirements of higher university education and
higher collegiate education and create legal preconditions to secure the uniform quality of higher
university education and higher collegiate education; higher university education is essentially
different from higher collegiate education.
It has also been mentioned that the provision of Paragraph 2 of Article 93 of the Law on
Science and Studies seeks to ensure the uniform and quality level of university higher education
provided by universities and also the essential different, but uniform and quality level of collegiate
higher education provided by colleges.
Thus, such legal regulation established in Paragraph 2 of Article 93 of the Law on Science
and Studies does not deny the autonomy of schools of higher education.
5.8. It has been mentioned that the protection of legitimate expectations, legal certainty and
legal security are inseparable elements of the principle of a state under the rule of law. It has also
been mentioned that the provision of Paragraph 2 of Article 93 of the Law on Science and Studies is
to be construed that upon the entry into force of the Law on Science and Studies admission to
collegiate studies in universities and that to university studies in colleges may not be conducted,
however, the persons accepted to such studies before the entry into force of this law are given an
opportunity to finish them.
Thus, there is no ground for asserting that the legal regulation established in Paragraph 2 of
Article 96 of the Law on Science and Studies violates the imperatives of protection of legitimate
expectation, legal certainty and legal security, and other imperatives of the constitutional principle
of a state under the rule of law.
5.9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2
of Article 93 of the Law on Science and Studies is not in conflict with the constitutional principle of
a state under the rule of law.
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6. Paragraph 4 of Article 93 of the Law on Science and Studies provides:
“The Government or an institution authorised by it shall arrange the reorganisation of
scientific research establishments until 1 January 2010.”
Paragraph 6 of Article 93 of the Law on Science and Studies provides:
“Until 1 January 2010 universities together with state scientific institutes or university
scientific institutes shall have the right to carry out doctoral studies.”
6.1. It needs to be noted that the provisions of Paragraphs 4 and 6 of Article 93 of the Law
on Science and Studies are related to the reorganisation of scientific research establishments, inter
alia state scientific institutes and university scientific institutes, while applying the groups and types
of institutions of science and studies established in the new legal regulation entrenched in the Law
on Science and Studies, inter alia while reorganising them into state scientific research institutes or
including them into the organisational and governance structure of universities.
The following time period for such reorganisation of scientific research establishments is
established in Paragraph 4 of Article 93 of the Law on Science and Studies: the Government or an
institution authorised by it had to arrange the reorganisation of scientific research establishments
until 1 January 2010, whereas Paragraph 6 of Article 93 of the same law provides that until the
reorganisation of scientific research establishments (until 1 January 2010) universities together with
state scientific institutes or university scientific institutes had the right to carry out doctoral studies.
In this context it needs to be noted that all provisions (Articles 84–92) of the chapter of the
Law on Science and Studies that used to regulate the activity of scientific research establishments,
inter alia state scientific institutes and university scientific institutes during the transitional period,
were valid till 1 January 2010 (Paragraph 4 of Article 95 of the Law on Science and Studies).
Thus, the relations regulated in Paragraphs 4 and 6 (which are disputed by the petitioner) of
Article 93 of the Law on Science and Studies have ended and these provisions of the law may no
longer be applied, even though they have not been recognised as invalid; the new legal regulation
established in the Law on Science and Studies is applied to the reorganised scientific research
establishments.
6.2. It has been mentioned that, under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to
dismiss the instituted legal proceedings. It has also been mentioned that, in the jurisprudence of the
Constitutional Court, the rule that the annulment of the disputed legal act shall be grounds to adopt
a decision to dismiss the instituted legal proceedings is applied to all legal acts that are no longer
valid; in the jurisprudence of the Constitutional Court this rule is also inter alia understood not as a
duty of the Constitutional Court, but as its right in cases, when not courts, but other subjects (inter
alia a group of not less than 1/5 of the Members of the Seimas) specified in Article 106 of the
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Constitution have applied to the Constitutional Court, to dismiss the instituted legal proceedings
upon taking account of the circumstances of the case.
It has also been mentioned that the jurisprudence of the Constitutional Court equated to
invalid legal acts (parts thereof) also such legal acts (parts thereof), which, even though formally
valid when the corresponding constitutional justice cases were investigated, however, at that
moment they could no longer be applied because one had to apply certain legal acts (parts thereof)
that were passed later and/or those of greater power, which regulated the corresponding relations
differently than the disputed legal acts (parts thereof); in the context of the constitutional justice
case at issue it needs to be noted that also the legal acts (parts thereof) applied on a temporary basis,
the term of the application whereof and the relations regulated by which have ended at the time of
consideration of the constitutional justice case, even though these acts (parts thereof) have not
officially been recognised as invalid, may be equated to invalid legal acts (parts thereof).
6.3. It has been mentioned that the relations regulated in Paragraphs 4 and 6 (which are
disputed by the petitioner) of Article 93 of the Law on Science and Studies have ended and these
provisions of the law may no longer be applied, even though they have not been recognised as
invalid; the new legal regulation established in the Law on Science and Studies is applied to the
reorganised scientific research establishments.
Thus, while taking account of the circumstances of the constitutional justice case at issue, it
needs to be held that in the part of the case related to the relations regulated in Paragraphs 4 and 6
of Article 93 of the Law on Science and Studies the matter of dispute has virtually disappeared. In
the constitutional justice case at issue it has been mentioned that the Constitutional Court has
previously invoked the provision whereby the annulment of the disputed legal act shall be grounds
to adopt a decision to dismiss the instituted legal proceedings while holding that in the case
considered by it the matter of dispute had virtually disappeared (since by then a new legal
regulation, but not the disputed one, was being applied).
6.4. Taking account of the arguments set forth, the part of the constitutional justice case at
issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to
investigate whether Paragraphs 4 and 6 of Article 93 of the Law on Science and Studies are not in
conflict with the constitutional principles of a state under the rule of law, protection of legitimate
expectations, legal certainty and legal security, is to be dismissed.
7. Paragraph 8 of Article 93 of the Law on Science and Studies provides:
“State schools of higher education must be reorganised from budgetary establishments into
public establishments until 31 December 2011”.
7.1. Thus, Paragraph 8 of Article 93 of the Law on Science and Studies provides for the time
period within which state schools of higher education must be reorganised from budgetary
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establishments into public establishments—it must be done until 31 December 2011. This provision
is first of all related to Paragraph 4 of Article 6 of the Law on Science and Studies, wherein the sole
legal form of a state school of higher education—a public establishment—is set (as mentioned,
under Paragraph 1 of Article 2 of the Law on Public Establishments, a public establishment shall be
a non-profit public legal person of limited civil liability founded according to this law and other
laws, the aim of which is to satisfy public interests by carrying out the educational, training and
scientific, cultural, health care, environmental protection, sports development, social or legal aid
provision as well as other activities useful to the public), whereas, under Paragraph 9 (wording of
30 June 2005) of Article 5 of the Law on Higher Education valid until the entry into force of the
Law on Science and Studies, a state school of higher education used to be defined as a public legal
person functioning as a budgetary or public establishment and having a special status established by
the Constitution and this law.
In this context it needs to be noted that, as mentioned, the Law on Science and Studies (with
the exception of certain articles thereof) came into force on 12 May 2009. Thus, a term longer than
19 months was provided in Paragraph 8 of Article 93 of the Law on Science and Studies for the
reorganisation of state schools of higher education, whose legal form is a budgetary establishment,
into public establishments.
7.2. As mentioned, in the constitutional justice case at issue the content of the constitutional
principle of a state under the rule of law inter alia is to be disclosed by applying the principle of
autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the
Constitution.
In the constitutional justice case at issue it has also been mentioned that the establishment of
the legal form for the state school of higher education as a public legal person per se does not deny
the freedom of scientific and educational activity of the school of higher education and self-
government of the academic community, i.e. the academic and institutional autonomy of schools of
higher education; the legal form of a state school of higher education as a public legal person must
be in line with the purpose of the school, which is to satisfy public interests, in a non-profit manner,
while carrying out the educational, training, scientific and cultural activity.
In the constitutional justice case at issue it has also been mentioned that that the protection
of legitimate expectations, legal certainty and legal security are inseparable elements of the
principle of a state under the rule of law.
7.3. In the constitutional justice case at issue it has been held that the only legal form of a
state school of higher education as a public legal person—a public establishment—established in
Paragraph 4 of Article 6 of the Law on Science and Studies, is brought in line with the aim of the
state school of higher education to satisfy public interests, in a non-profit manner, by carrying out
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the educational, training, scientific, and cultural activities; while taking account of this, in the
constitutional justice case at issue it was also held that Paragraph 4 of Article 6 of the Law on
Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the
constitutional principle of a state under the rule of law. There are no grounds to differently assess
Paragraph 8 of Article 93 of the Law on Science and Studies, wherein the term of implementation
of Paragraph 4 of Article 6 of the this law is established.
It has been mentioned that a term longer than 19 months was provided in Paragraph 8 of
Article 93 of the Law on Science and Studies for the reorganisation of state schools of higher
education, whose legal form is a budgetary establishment, into public establishments. Thus, there is
also no ground for asserting that such legal regulation violates the imperatives of protection of
legitimate expectation, legal certainty and legal security, and other imperatives of the constitutional
principle of a state under the rule of law.
7.4. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 8
of Article 93 of the Law on Science and Studies is not in conflict with the constitutional principle of
a state under the rule of law.
XIII
On the compliance of Paragraph 1 of Article 70 of the Law on Science and Studies with
Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.
1. The Supreme Administrative Court of Lithuania, a petitioner, has had doubts as to
whether Paragraph 1 of Article 70 of the Law on Science and Studies is not in conflict with
Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.
From the arguments of the petitioner it is clear that the petitioner is disputing the compliance
of Paragraph 1 of Article 70 of the Law on Science and Studies not with the entire Paragraph 3 of
Article 41 of the Constitution, but only with the provision “Citizens who are good at their studies
shall be guaranteed education at state schools of higher education free of charge” of this paragraph.
2. Paragraph 1 of Article 70 of the Law on Science and Studies provides:
“The priority to state-funded student places pursuant to study programmes of the first cycle
and integrated study programmes shall belong to enrolling persons according to their capabilities,
which are determined by taking into account the results of matura examinations and studying, other
results as well as special capabilities. A queue of persons who have completed a secondary
education programme with the best results shall be determined in accordance with the procedure
laid down by the Ministry of Education and Science.”
3. Thus, the disputed, by the petitioner, Paragraph 1 of Article 70 of the Law on Science and
Studies establishes the right of priority to enrol for state-funded student places pursuant to study
programmes of the first cycle and integrated study programmes, by taking into account the results
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of matura examinations and studying, other results as well as special capabilities of enrolling
persons. Priority, as a rule, means the precedence (a preceding position) in terms of implementing a
certain right.
3.1. It needs to be noted that provisions of Paragraph 1 of Article 70 of the Law on Science
and Studies are inseparable and should not be construed literally. The determining of “a queue of
persons who have completed a secondary education programme with the best results”, which is
referred to in this paragraph, is not an end in itself, and in the context of the notion “the priority to
state-funded student places pursuant to study programmes of the first cycle and integrated study
programmes” it should be understood that the said queue is just a queue (queues) of persons who
have completed a secondary education programme with the best results and who enrol for state-
funded student places pursuant to certain study programmes of the first cycle and integrated study
programmes (of certain fields) in schools of higher education; according to this queue (queues),
which determines (determine) the priority to enrol for state-funded student places pursuant to the
corresponding study programmes (of a corresponding field), the admission of enrolling persons to
the said student places takes place.
3.2. Paragraph 1 of Article 70 of the Law on Science and Studies regulates the following
two aspects of the right of priority to enrol for state-funded student places pursuant to study
programmes of the first cycle and integrated study programmes.
3.2.1. First, Paragraph 1 of Article 70 of the Law on Science and Studies sets the criteria that
are taken into account when assessing the capabilities on the basis of which one determines a queue
of priority of persons who enrol for state-funded student places pursuant to study programmes of
the first cycle and integrated study programmes in schools of higher education (a queue of persons
who have completed a secondary education programme with the best results and who enrol for
state-funded student places pursuant to study programmes of the first cycle and integrated study
programmes in schools of higher education)—the results of matura examinations and studying,
other results as well as special capabilities of enrolling persons.
While taking account of the fact that, as mentioned, a queue of persons who have completed
a secondary education programme with the best results, which is referred to in Paragraph 1 of
Article 70 of the Law on Science and Studies, may not be understood only as the sole queue for all
study programmes of the first cycle and integrated study programmes without taking account of the
area and field of studies, it needs to be noted that, under the legal regulation laid down in Paragraph
1 of Article 70 of the Law on Science and Studies, the capabilities on the basis of which one
determines a queue of priority of persons who enrol for state-funded student places pursuant to
study programmes of the first cycle and integrated study programmes in schools of higher education
should be related to the study programmes (fields) chosen by enrolling persons.
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3.2.2. Second, the Ministry of Education and Science is commissioned, while taking account
of the criteria established in Paragraph 1 of Article 70 of the Law on Science and Studies—the
results of matura examinations and studying, other results as well as special capabilities related to
the study area and field chosen by enrolling persons, to set the procedure for determining a queue of
persons who have completed a secondary education programme with the best results (inter alia for
assessing the meaning of these criteria), whereby the right of priority to enrol for state-funded
student places pursuant to study programmes of the first cycle and integrated study programmes is
implemented.
It needs to be noted that during the admission to state-funded student places pursuant to
study programmes of the first cycle and integrated study programmes in schools of higher education
it is obligatory to follow a queue of persons who have completed a secondary education programme
with the best results, which is determined in accordance with the procedure set by the Ministry of
Education and Science and whereby the right of priority to enrol for the said student places is
implemented, otherwise the essence of the right of priority to enrol for state-funded student places
pursuant to study programmes of the first cycle and integrated study programmes, which is
provided for by the law, would be denied.
3.3. In the context of the constitutional justice case at issue it also needs to be noted that the
legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and Studies is related
with Paragraph 1 of Article 52 “Admission to schools of higher education” of this law, wherein it is
established that persons having at least the secondary education are admitted by way of competition
to study programmes of the first cycle and integrated study programmes in a school of higher
education, taking account of learning results, entrance examinations or other criteria set by the
school of higher education; a list of competitive subjects according to study fields and the principles
of composition of a competitive grade, a lowest passing entrance grade and other criteria are, upon
the evaluation by a students’ representation, set by schools of higher education and announced by
them not later than two years prior to the beginning of an appropriate academic year.
Thus, under Paragraph 1 of Article 52 of the Law on Science and Studies, the conditions of
admission to study programmes of the first cycle and integrated study programmes of schools of
higher education, inter alia the majority of the criteria and the weighted value of these criteria for
determining a queue of enrolling persons, are set by schools of higher education themselves. The
aforesaid paragraph refers to the following two main criteria, which must be taken into account
during the admission to study programmes of the first cycle and integrated study programmes:
results of studying and of entrance examinations of the enrolling persons; other criteria, inter alia a
list of competitive subjects according to study fields, the principles of composition of a competitive
grade, and a lowest passing entrance grade may be set by schools of higher education themselves.
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It needs to be noted that, while engaging in mutual cooperation, schools of higher education,
under Paragraph 1 of Article 52 of the Law on Science and Studies, may establish a common
procedure for admission to studies pursuant to study programmes of the first cycle and integrated
study programmes.
It also needs to be noted that, under Paragraph 1 of Article 52 of the Law on Science and
Studies, the conditions of admission to study programmes of the first cycle and integrated study
programmes of schools of higher education, inter alia the criteria that are taken into account during
the admission to these studies, must be known to enrolling persons in advance—not later than two
years prior to the beginning of an appropriate academic year.
3.4. One needs to note the differences between the legal regulation laid down in Paragraph 1
of Article 70 and that of Paragraph 1 of Article 52 of the Law on Science and Studies.
First, Paragraph 1 of Article 52 of the Law on Science and Studies regulates the conditions
of admission to all student places of studies of the first cycle and integrated studies in schools of
higher education, i.e. the conditions of admission to both state-funded and non-state-funded student
places; Paragraph 1 of Article 70 lays down the criteria by taking account of which, in accordance
with the procedure set by the Ministry of Education and Science, one establishes a queue of persons
who have completed a secondary education programme with the best results, which determines the
priority to enrol for state-funded student places pursuant to study programmes of the first cycle and
integrated study programmes and constitutes a mandatory condition of admission to these student
places.
Second, in the law there are differences between the criteria that must be taken into account
when establishing the conditions of admission to all student places of studies of the first cycle and
integrated studies in schools of higher education and the criteria for determining, when admitting to
state-funded student places pursuant to study programmes of the first cycle and integrated study
programmes, a queue of persons who have completed a secondary education programme with the
best results: Paragraph 1 of Article 52 of the Law on Science and Studies provides that, when
establishing the conditions of admission to all student places of studies of the first cycle and
integrated studies in schools of higher education, account is taken of learning results, entrance
examinations and other criteria laid down by a school of higher education, whereas Paragraph 1 of
Article 70 of this law provides that, when admitting to state-funded student places pursuant to study
programmes of the first cycle and integrated study programmes, a queue of persons who have
completed a secondary education programme with the best results is determined by taking into
account the results of matura examinations and studying, other results as well as special
capabilities.
Third, the Law on Science and Studies regulates in a different manner the announcement of
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the conditions of admission to study programmes of the first cycle and integrated study programmes
of schools of higher education and the announcement of the procedure for determining, when
admitting to state-funded student places pursuant to study programmes of the first cycle and
integrated study programmes, a queue of persons who have completed a secondary education
programme with the best results: it has been mentioned that, under Paragraph 1 of Article 52 of the
Law on Science and Studies, the procedure for admission to study programmes of the first cycle and
integrated study programmes of schools of higher education, inter alia the criteria that are taken
into account during the admission to these studies, must be known to enrolling persons in advance
—not later than two years prior to the beginning of an appropriate academic year, whereas
Paragraph 1 of Article 70 of the Law on Science and Studies does not establish any time limit as to
when one must announce the procedure for determining, when admitting to state-funded student
places pursuant to study programmes of the first cycle and integrated study programmes, a queue of
persons who have completed a secondary education programme with the best results.
3.5. While summing up the legal regulation laid down in Paragraph 1 of Article 70 of the
Law on Science and Studies, inter alia in the context of provisions of Paragraph 1 of Article 52 of
this law it needs to be noted that:
– this legal regulation lays down the main criteria that must be taken into account in
determining, when admitting to state-funded student places pursuant to study programmes of the
first cycle and integrated study programmes, a queue of persons who have completed a secondary
education programme with the best results; the Ministry of Education and Science is commissioned
to determine the meaning (weighted value) of these criteria; the said criteria partly differ from those
established in Paragraph 1 of Article 52 of the Law on Science and Studies, which regulates the
admission to all student places of studies of the first cycle and integrated studies in schools of
higher education;
– the said legal regulation creates legal preconditions for the emergence of such a situation
where schools of higher education, while determining, under Paragraph 1 of Article 52 of the Law
on Science and Studies, the conditions of admission to study programmes of the first cycle and
integrated study programmes, inter alia to state-funded student places, will announce in advance
certain criteria of admission to these studies (which may not necessarily coincide with the criteria
specified in Paragraph 1 of Article 70 of the Law on Science and Studies) and the meaning
(weighted value) of these criteria, whereas the Ministry of Education and Science will later on set a
different procedure for determining, when admitting to state-funded student places pursuant to
study programmes of the first cycle and integrated study programmes, a queue of persons who have
completed a secondary education programme with the best results, inter alia a different meaning
(weighted value) of the same criteria;
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– the Ministry of Education and Science has the powers to set not a recommended, but
obligatory to all schools of higher education procedure for determining a queue of persons who
have completed a secondary education programme with the best results, which determines the
admission to state-funded student places pursuant to study programmes of the first cycle and
integrated study programmes; therefore, in those cases where the criteria of admission to study
programmes of the first cycle and integrated study programmes established by a school of higher
education would differ from those established in Paragraph 1 of Article 70 of the Law on Science
and Studies, or the Ministry of Education and Science would establish a different meaning
(weighted value) of the same criteria of the procedure for determining, when admitting to state-
funded student places pursuant to study programmes of the first cycle and integrated study
programmes, a queue of persons who have completed a secondary education programme with the
best results, then, when admitting to state-funded student places, one should follow the criteria laid
down in Paragraph 1 of Article 70 of the Law on Science and Studies and the meaning (weighted
value) of these criteria established by the Ministry of Education and Science;
– the legal regulation in question creates legal preconditions inter alia for the emergence of
such a situation that the persons who have, according to the criteria established by a school of
higher education, enrolled in studies pursuant to study programmes of the first cycle and integrated
study programmes with the best results would not be admitted to state-funded student places of
these studies, as a queue of persons who have completed a secondary education programme with the
best results, when admitting to these student places, would be determined on the basis of different
criteria and a different meaning (weighted value) of these criteria based on the procedure set by the
Ministry of Education and Science;
– as Paragraph 1 of Article 70 of the Law on Science and Studies does not establish any time
limit as to when one must announce the procedure for determining, when admitting to state-funded
student places pursuant to study programmes of the first cycle and integrated study programmes, a
queue of persons who have completed a secondary education programme with the best results, legal
preconditions are created for the emergence of such a situation where the conditions of admission to
the said student places in schools of higher education would be neither known in advance nor clear,
as well as such a situation where the conditions of admission to studies pursuant to study
programmes of the first cycle and integrated study programmes that are established by schools of
higher education and announced in advance (not later than two years prior to the beginning of an
appropriate academic year) would differ from the conditions of admission to such state-funded
studies that are established by the Ministry of Education and Science and announced later;
– by establishing, not later than two years prior to the beginning of an appropriate academic
year, the criteria of admission to studies pursuant to study programmes of the first cycle and
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integrated study programmes, schools of higher education cannot envisage as to how these criteria
will be combined with the criteria for determining a queue of persons who have completed a
secondary education programme with the best results and the meaning of these criteria (weighted
value) established by the Ministry of Education and Science for an appropriate academic year;
therefore, by establishing in advance the criteria of admission to studies pursuant to study
programmes of the first cycle and integrated study programmes, schools of higher education cannot
reasonably expect that they will be able to claim the number of student places of state-funded
studies pursuant to study programmes of the first cycle and integrated study programmes that meets
their capacity.
3.6. Thus, the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science
and Studies creates legal preconditions for the Ministry of Education and Science to establish such
conditions of enrolment for state-funded student places pursuant to study programmes of the first
cycle and integrated study programmes in schools of higher education that are neither known in
advance nor clear, also such conditions that would differ from the conditions of admission to studies
pursuant to study programmes of the first cycle and integrated study programmes that are
established by schools of higher education and announced in advance (within the time period set in
Paragraph 1 of Article 52 of the Law on Science and Studies—not later than two years prior to the
beginning of an appropriate academic year); thus, legal preconditions are also created for the
emergence of such situations where the legal regulation laid down by the Ministry of Education and
Science regarding the priority to state-funded student places pursuant to study programmes of the
first cycle and integrated study programmes and the legal regulation of admission to studies laid
down by schools of higher education are not mutually compatible, even though the subject matter of
their regulation, insofar as it is related to the admission to state-funded student places pursuant to
study programmes of the first cycle and integrated study programmes, coincides.
4. The petitioner, while substantiating its doubts as regards the compliance of Paragraph 1 of
Article 70 of the Law on Science and Studies with the provision “Citizens who are good at their
studies shall be guaranteed education at state schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution, indicates that such legal regulation when a law does
not provide for any essential conditions for implementing the right to education free of charge,
which is guaranteed in the Constitution, inter alia any criteria enabling to establish which persons
are to be regarded as being good at their studies, is in conflict with the Constitution.
While substantiating its doubts as regards the compliance of Paragraph 1 of Article 70 of the
Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution, the petitioner notes
that, under the disputed legal regulation, such a situation is possible where, after a school of higher
education implements the right, guaranteed by the Constitution, to set independently the procedure
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for the admission to studies of the first cycle and integrated studies, the persons who have enrolled
according to that procedure with the best results may be not admitted to the student places pursuant
to study programmes of the first cycle and integrated study programmes that are financed by funds
from the state budget if the criteria of admission to the said studies established by the corresponding
school of higher education differ from the principles and criteria for determining a queue of persons
who have completed a secondary education programme with the best results. Thus, such legal
regulation creates preconditions to maintain that state schools of higher education, while seeking to
receive state funding for the preparation of specialists of certain areas (fields), must establish such
criteria of admission to studies and the meaning of these criteria that would virtually not differ from
the criteria for determining a queue of persons who have completed a secondary education
programme with the best results and the meaning of these criteria that are established by the
Ministry of Education and Science.
5. It has been mentioned that the petitioner is disputing the compliance of Paragraph 1 of
Article 70 of the Law on Science and Studies with the provision “Citizens who are good at their
studies shall be guaranteed education at state schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution.
5.1. In this context it needs to be noted that the constitutional provision that higher education
is available to everyone according to his abilities means that both state schools of higher education
and the non-state schools of higher education established according to the procedure prescribed by
law, as well as the whole system of establishments of higher education, must be accessible to every
person; this provision also means that those who seek higher education may not be subjected to the
requirements that are based on the criteria other than their abilities (Constitutional Court ruling of
14 January 2002).
However, while construing the said provision, one may not deny another constitutional
provision whereby citizens who are good at their studies are guaranteed education at state schools
of higher education free of charge. In its ruling of 14 January 2002 the Constitutional Court noted
that there has to be a balance between the legitimate interests of a person and the needs of both the
society and the state; the financial possibilities of the state (including possibilities to fund higher
education) are not and cannot be unlimited; the constitutional provisions that higher education is
available to everyone according to their individual abilities may not be construed as imposing a
duty on the state to ensure funding of any striving for higher education of anyone capable of
seeking it, without proper consideration of the needs and possibilities of society and the state.
As it has been held by the Constitutional Court more than once, the possibilities of the state
to finance higher education are and must be related to the interest of society and the state—their
need—to have specialists of various areas who have acquired higher education (Constitutional
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Court ruling of 14 January 2002). Thus, a duty falls upon the state to establish the demand for
specialists of various areas (fields) by taking account of not only the existing demand for such
specialists, but also of the demand for such specialists in the future, and to allocate the necessary
funds in order to prepare these specialists; the state obligations, which are announced in advance, to
finance the preparation of a certain number of specialists are in conformity with the need of society
and the state to have specialists of certain areas (fields) with higher education, as well as with the
capabilities of society and the state to finance their preparation (Constitutional Court ruling of 20
March 2008).
5.2. It needs to be noted that the establishment of the criteria enabling to determine which
persons are regarded as being good at their studies and which, consequently, as prescribed by the
Constitution, have the right that their education at state schools of higher education be financed by
the state, is directly related to the guarantee of the implementation of the right of a human being
(i.e. a citizen who is good at his studies at a state school of higher education) to seek to acquire
higher education at a state school of higher education free of charge. In this context it needs to be
mentioned that in its rulings of 13 December 2004 and 5 May 2007, the Constitutional Court held
that “according to the Constitution, the legal regulation related to defining the content of human
rights and freedoms or consolidating the guarantees of their implementation may be established
only by means of a law”. The said inter alia means that the criteria enabling to establish which
persons are regarded as being good at their studies, and which, consequently, as prescribed by the
Constitution, have the right that their education at state schools of higher education be financed by
the state, are to be established by law (Constitutional Court rulings of 14 January 2002, 7 June 2007
and 20 March 2008).
5.3. It also needs to be noted that the provision “Citizens who are good at their studies shall
be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of
Article 41 of the Constitution is to be construed inter alia in the context of the constitutional
principle of a state under the rule of law, as this principle, as mentioned, is a universal principle
upon which the entire legal system of Lithuania and the Constitution itself are based.
One of the essential elements of the principle of a state under the rule of law, which is
consolidated in the Constitution, is legal clarity, which implies certain obligatory requirements for a
legal regulation: it must be clear and harmonious, legal norms must be formulated precisely and
they may not contain any ambiguities (Constitutional Court rulings of 30 May 2003, 26 January
2004, 24 December 2008 and 22 June 2009, as well as decision of 20 April 2010); along with the
other requirements, the principle of a state under the rule of law, which is entrenched in the
Constitution, also implies a duty of the state to guarantee the certainty and stability of legal
regulation as well as the protection of legitimate expectations (Constitutional Court ruling of 24
141
January 2003).
The Constitutional Court has also held more than once that the constitutional principle of a
state under the rule of law implies the requirements for the legislator to establish such legal
regulation that would inter alia provide subjects of legal relations with an opportunity to be aware
of what is required of them by law, so that they could orientate their behaviour according to the
requirements of law, also that legal norms would be established in advance, the legal regulation laid
down in laws and other legal acts would be clear, understandable and consistent, and legal acts
would contain no provisions simultaneously regulating the same public relations in a different
manner.
5.4. In the context of the constitutional justice case at issue it needs to be noted that in the
context of the constitutional principle of a state under the rule of law the provision “Citizens who
are good at their studies shall be guaranteed education at state schools of higher education free of
charge” of Paragraph 3 of Article 41 of the Constitution inter alia implies the requirements for the
legislator to lay down such legal regulation that the conditions of enrolment for state-funded student
places in schools of higher education, inter alia the criteria of admission to studies and the meaning
of these criteria, would be clear, consistent and announced in advance, in order that persons seeking
higher education free of charge could be aware in advance of what will be required of them, so that
they would be able to efficiently implement their constitutional right in question.
6. In this Constitutional Court ruling it has been noted more than once that in the
jurisprudence of the Constitutional Court it has been held that, traditionally, the autonomy of a
school of higher education is conceived as the right of a school of higher education to independently
determine and establish in the regulations or statute its organisational and governance structure, its
relations with other partners, the procedure for research and studies, study programmes, the
procedure for admission of students, and to resolve other related questions, as well as that there are
certain spheres of activities that are independent of the control of the executive power
(Constitutional Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008
and 20 March 2008).
6.1. It has been mentioned that the interests of schools of higher education and those of
society must be coordinated; autonomy of schools of higher education must be combined with their
duty to observe the Constitution and laws, as well as with their responsibility and accountability to
society; autonomy of schools of higher education does not mean that the activities of such schools
may not be subject to state control; quite to the contrary, these activities, since they are related to
inter alia the implementation of constitutional human rights and freedoms, as well as to the use of
funds of the state budget, must be subject to regulation and supervision.
It has also been mentioned that Paragraph 4 of Article 40 of the Constitution consolidates
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not only the right, but also the duty of the state to supervise the activities of establishments of
teaching and education; the supervision of the activities of establishments of teaching and education
also involves the supervision and control of the observance of the Constitution and laws.
6.2. In the context of the constitutional justice case at issue it needs to be noted that the right
of schools of higher education to set the procedure for admission of students, inter alia the
conditions of their admission (the criteria and the meaning (weighted value) of these criteria), is one
of the essential elements of autonomy of schools of higher education. The state, inter alia the
institutions of the executive power thereof, in regulating and supervising the implementation of the
said right, may exercise no essential influence over the independent implementation of that right
provided that the constitutional human rights and freedoms, inter alia the constitutional rights of
citizens, who are good at their studies at state schools of higher education, to education free of
charge, are not violated.
6.3. In the constitutional justice case at issue it has been mentioned that the constitutional
guarantee of autonomy of schools of higher education implies that the legislator is obliged to
provide for a special legal regulation on the basis of which a local legal regulation—laid down by
schools of higher education themselves—must constitute the greatest part of the legal regulation of
these relations; therefore, the general legal regulation laid down by laws in respect of all schools of
higher education should not be too detailed and should not limit the right of schools of higher
education, stemming from the principle of their autonomy, to regulate their activities by means of
local legal acts.
6.4. It has been mentioned that the constitutional principle of a state under the rule of law
implies that a legal regulation is subject to certain obligatory requirements, inter alia that legal acts
may contain no provisions simultaneously regulating the same public relations in a different
manner. The said inter alia implies a requirement that the implementation of the constitutional right
to education free of charge in state schools of higher education, inter alia the conditions of
admission to state-funded student places in schools of higher education, be not simultaneously
regulated in a different manner.
6.5. Thus, in the context of the constitutional justice case at issue it needs to be noted that,
while taking account of the imperative of coordination of interests of schools of higher education
and those of society, in the context of the constitutional principle of a state under the rule of law the
guarantee of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of
the Constitution implies inter alia the fact that the legal regulation established by the state must
create preconditions to combine the legal regulation laid down by state institutions supervising the
execution of the policy on higher education and the legal regulation laid down by schools of higher
education regarding the conditions of admission of persons to state-funded student places in schools
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of higher education.
7. It has been mentioned that the legal regulation laid down in Paragraph 1 of Article 70 of
the Law on Science and Studies creates legal preconditions for the Ministry of Education and
Science to establish such conditions of enrolment for state-funded student places pursuant to study
programmes of the first cycle and integrated study programmes in schools of higher education:
– that are neither known in advance nor clear; it needs to be noted that inter alia no time
limit is set for the preannouncement of these conditions;
– that would differ from the conditions of admission to studies pursuant to study
programmes of the first cycle and integrated study programmes that are established by schools of
higher education and announced in advance (within the time limit set in Paragraph 1 of Article 52
of the Law on Science and Studies—not later than two years prior to the beginning of an
appropriate academic year); thus, legal preconditions are also created for the emergence of such a
situation that the legal regulation laid down by the Ministry of Education and Science regarding the
priority to state-funded student places pursuant to study programmes of the first cycle and
integrated study programmes and the legal regulation of admission to studies laid down by schools
of higher education are not mutually compatible, even though the subject matter of their regulation,
insofar as it is related to the admission to state-funded student places pursuant to study programmes
of the first cycle and integrated study programmes, coincides.
It has also been mentioned that in the context of the constitutional principle of a state under
the rule of law the provision “Citizens who are good at their studies shall be guaranteed education at
state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution
inter alia implies the requirements for the legislator to lay down such legal regulation under which
the conditions of enrolment for state-funded student places in schools of higher education, inter alia
the criteria of admission to studies and the meaning of these criteria, would be clear, consistent and
announced in advance, in order that persons seeking higher education free of charge could be aware
in advance of what will be required of them, so that they would be able to efficiently implement
their constitutional right in question.
It has also been mentioned that, while taking into account the imperative of coordination of
interests of schools of higher education and those of society, in the context of the constitutional
principle of a state under the rule of law the guarantee of autonomy of schools of higher education,
entrenched in Paragraph 3 of Article 40 of the Constitution, implies the fact that the legal regulation
established by the state must create preconditions to combine the legal regulation laid down by state
institutions supervising the execution of the policy on higher education and the legal regulation laid
down by schools of higher education regarding the conditions of admission of persons to state-
funded student places in schools of higher education.
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Thus, the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and
Studies, which creates legal preconditions for the Ministry of Education and Science to establish
such conditions of enrolment for state-funded student places pursuant to study programmes of the
first cycle and integrated study programmes in schools of higher education that would be neither
known in advance nor clear, and which would differ from the conditions of admission to studies
pursuant to study programmes of the first cycle and integrated study programmes that are
established by schools of higher education and announced in advance, is not in line with the
requirements stemming from Paragraph 3 of Article 40 and the provision “Citizens who are good at
their studies shall be guaranteed education at state schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution and from the constitutional principle of a state under
the rule of law.
8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 of
Article 70 of the Law on Science and Studies, to the extent that this paragraph does not establish,
for the Ministry of Education and Science, any time limit for the preannouncement of the procedure
for determining a queue of persons who have completed a secondary education programme with the
best results, which would be sufficient for the efficient implementation of the constitutional right to
education at state schools of higher education free of charge, also to the extent that this paragraph
does not establish a duty for the Ministry of Education and Science and schools of higher education
to coordinate the conditions of admission to state-funded student places pursuant to study
programmes of the first cycle and integrated study programmes, is in conflict with Paragraph 3 of
Article 40 and the provision “Citizens who are good at their studies shall be guaranteed education at
state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution
and the constitutional principle of a state under the rule of law.
XIV
On the compliance of Paragraphs 2, 5, 7, 11 of Article 70 and Paragraph 4 of Article 76
of the Law on Science and Studies with Paragraph 3 of Article 41 of the Constitution and the
constitutional principle of a state under the rule of law.
1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraphs 2, 5,
7, 11 of Article 70 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article
41 of the Constitution and the constitutional principle of a state under the rule of law.
2. Article 70 “Payment of study costs in student places funded by the State” of the Law on
Science and Studies provides:
“1. The priority to state-funded student places pursuant to study programmes of the first
cycle and integrated study programmes shall belong to enrolling persons according to their
capabilities which are determined by taking into account the results of matura examinations,
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studying, other results as well as special capabilities. A queue of persons who have completed a
secondary education programme with the best results shall be determined by the Ministry of
Education and Science.
2. State-funded student places according to study programmes of the first cycle and
integrated study programmes shall be allocated to schools of higher education in accordance with
the choice between schools of higher education made by enrolling persons who have completed the
secondary education programme with the best results, without exceeding state funding established
for each study area. Distribution of funding for study fields shall be established by the Government,
taking into account the needs of the national economic, social and cultural development and
financial possibilities of the State.
3. A preliminary number of state-funded student places of the first cycle and integrated
studies in each study area or a set of study fields shall be announced by the Ministry of Education
and Science not later than by 16 February of each year.
4. Only those persons whose study results are not lower than the minimum rates fixed by the
Ministry of Education and Science may put in for state-funded student places of the first cycle and
integrated study programmes.
5. The final number of state-funded student places of the first cycle and integrated studies to
which students are admitted as well as their distribution among schools of higher education and
study areas shall be approved by the Ministry of Education and Science after the results of
admission to schools of higher education are made known and study agreements are signed.
6. The number, approved by the Ministry of Education and Science, of student places of a
permanent-form in a school of higher education, when the studies by students admitted to the said
student places are covered with the state budget funds pursuant to the provisions of this Article,
shall remain during the whole set period of studies, and the number of student places of an
extended-form in a school of higher education, when the studies by students admitted to the said
student places are covered with the state budget funds, shall remain during a period which lasts one-
and-a-half time longer than a study period established for the appropriate studies of a permanent
form, with the exception of the cases provided for in Paragraph 8 of this Article. In the cases when a
person is excluded from a school of higher education, loses the state funding or terminates studies
and when a state-funded student place is not occupied in accordance with the procedure laid down
in Paragraph 14 of this Article, state funding for a student place shall remain for a school of higher
education until the end of a budgetary year.
7. A person whose studies of the first cycle or integrated studies are funded by the State
shall, after the first two years of studies and in the case of extended studies—after the completion of
half of the study programme, lose state funding for studies if the mean of the results of his studies
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during an appropriate period is more than 20 percentage points lower than the mean of the results of
studies of an appropriate study programme and form by students of the same year of studies of the
school of higher education during an appropriate period. A person who loses state funding must pay
for his studies the study cost fixed by a school of higher education and his state-funded student
place shall be occupied by a person whose study results in a student place which is not funded by
the State are the best.
8. A person whose studies are funded by the State in accordance with the procedure laid
down by the Government shall have the right to change a study programme within the same study
area, without losing the remaining part of state funding of the studies, where such part does not
exceed the standard study cost of that study programme.
9. The number of state-funded student places of the second cycle, doctoral studies and
studies which do not award a degree shall be fixed each year prior to 11 March according to
concrete study fields by the Government, taking account of national economic, social and cultural
development needs as well as financial possibilities of the State. Student places of studies of the
second cycle and studies which do not award a degree shall be distributed among universities by the
Ministry of Education and Science according to the results of their scientific (artistic) activities
and/or the choice by those enrolling into study programmes of the first cycle and integrated study
programmes according to a study or scientific field. Doctoral student places shall be distributed for
institutions of science and studies by the Ministry of Education and Science in accordance with the
results of scientific (artistic) activities and doctoral studies.
10. The state shall fund the study cost of persons studying in state-funded student places in
accordance with the procedure laid down in Article 76 of this Law.
11. State budget funds to cover the study cost in state-funded student places shall be
allocated in accordance with the procedure laid down by the Government.
12. In the cases and pursuant to the procedure laid down by the Government, persons who
studied in state-funded student places, who have been excluded from a school of higher education
or have terminated their studies, must return into the state budget the funds (or part thereof)
intended to cover the study cost in state-funded student places.
13. The Ministry of Education and Science shall lay down the procedure for competing of
persons, who have acquired education in the institutions of foreign countries, for state-funded
student places.
14. After having excluded from a school of higher education a person who studied in a state-
funded student place or after he himself terminates studies (with the exception of the cases provided
for in Paragraph 8 of this Article), a person who studies in the same study programme of the same
year of studies in the student place which is not funded by the State may be transferred to the said
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state-funded student place in the manner prescribed by the school of higher education (with the
exception of the person referred to in Article 72 of this Law).”
3. While substantiating its doubts regarding all disputed provisions of Article 70 of the Law
on Science and Studies, the petitioner has referred to the provisions of the official constitutional
doctrine, which were formulated by the Constitutional Court when it was construing the provision
of Paragraph 3 of Article 41 of the Constitution which guarantees free-of-charge education in state
schools of higher education to the citizens who are good at their studies. Thus, from the arguments
of the petitioner it is clear that it is disputing the compliance of Paragraphs 2, 5, 7, 11 of Article 70
of the Law on Science and Studies with not entire Paragraph 3 of Article 41 of the Constitution but
only with the provision “Citizens who are good at their studies shall be guaranteed education at
State schools of higher education free of charge” of the said paragraph.
4. From the arguments of the petitioner it is also clear that they are essentially the same as
regards the disputing the interrelated provisions of Paragraphs 2 and 5 of Article 70 of the Law on
Science and Studies. While taking account of this fact, the Constitutional Court will first of all
investigate whether the provisions of Paragraphs 2 and 5 of Article 70 of the Law on Science and
Studies are not in conflict with the provision “Citizens who are good at their studies shall be
guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article
41 of the Constitution and the constitutional principle of a state under the rule of law.
4.1. It has been mentioned that Paragraph 2 of Article 70 of the Law on Science and Studies
provides:
“State-funded student places according to study programmes of the first cycle and integrated
study programmes shall be allocated to schools of higher education in accordance with the choice
between schools of higher education made by enrolling persons who have completed the secondary
education programme with the best results, without exceeding state funding established for each
study area. Distribution of funding for study fields shall be established by the Government, taking
into account the needs of the national economic, social and cultural development and financial
possibilities of the State.”
It has also been mentioned that Paragraph 5 of Article 70 of the Law on Science and Studies
provides:
“The final number of state-funded student places of the first cycle and integrated studies to
which students are admitted as well as their distribution among schools of higher education and
study areas shall be approved by the Ministry of Education and Science after the results of
admission to schools of higher education are made known and study agreements are signed.”
4.2. Thus, Paragraph 2 of Article 70 of the Law on Science and Studies has established two
general criteria for distribution of state-funded student places according to study programmes of the
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first cycle and integrated study programmes among schools of higher education. The first criterion
in the distribution of these places is the choice between schools of higher education made by
enrolling persons who have completed the secondary education programme with the best results,
whereas the second criterion is the limits of state funding provided for each study field (under
Paragraph 24 of Article 4 of the Law on Science and Studies, “study areas” are humanitarian,
social, physical, biomedical, technology sciences and arts). No other criteria for distribution of
state-funded student places according to study programmes of the first cycle and integrated study
programmes among schools of higher education have been established either in Paragraph 2 of
Article 70 of the Law on Science and Studies or in other provisions of this law.
The disputed Paragraph 2 of Article 70 of the Law on Science and Studies also provides that
distribution of state funding for study fields, thus, also the limits of state funding provided for every
study field, are established by the Government, taking into account the needs of the national
economic, social and cultural development and financial possibilities of the state.
Thus, under Paragraph 2 of Article 70 of the Law on Science and Studies, state-funded
student places according to study programmes of the first cycle and integrated study programmes
among schools of higher education are distributed among schools of higher education in an equal
manner, i.e. under the same criteria (the choice between schools of higher education made by
enrolling persons who have completed the secondary education programme with the best results and
the state funding established for each study area) state-funded student places may be distributed
among both state and non-state schools of higher education. Paragraph 2 of Article 70 of the Law
on Science and Studies does not establish that in the course of distribution of state-funded student
places the state schools of higher education chosen by persons who have completed the secondary
education programme with the best results will have the priority.
4.3. Paragraph 2 of Article 70 of the Law on Science and Studies is related to Paragraph 5 of
the same article; the latter paragraph regulates the establishment of the final number of state-funded
student places of the first cycle and integrated studies to which students are admitted as well as their
distribution among schools of higher education and study areas.
4.3.1. Paragraph 5 of Article 70 of the Law on Science and Studies is also to be construed
while taking account of Paragraph 3 of the same article; the latter paragraph regulates the
establishment of a preliminary number of state-funded student places of the first cycle and
integrated studies in each study area or a set of study fields: this number is announced by the
Ministry of Education and Science not later than by 16 February of each year. A preliminary
number of state-funded student places of the first cycle and integrated studies in each study area or
a set of study fields is established prior to students’ acceptance to such studies, i.e. when the choice
between schools of higher education made by enrolling persons is still unknown. While establishing
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a preliminary number of state-funded student places of the first cycle and integrated studies in each
study area or a set of study fields, one takes account of the aforesaid second criterion, established in
Paragraph 2 of Article 70 of the Law on Science and Studies, for distribution of state-funded
student places according to study programmes of the first cycle and integrated study programmes
among schools of higher education—state funding established by established by the Government,
taking into account the needs of the national economic, social and cultural development and
financial possibilities of the state.
Thus, Paragraph 3 of Article 70 of the Law on Science and Studies essentially regulates the
requisition by state for schools of higher education to prepare specialists of corresponding areas
(fields): while taking into account the needs of the national economic, social and cultural
development and financial possibilities of the state, a preliminary number of state-funded student
places of the first cycle and integrated studies in each study area or a set of study fields is
established. It needs to be noted that a preliminary number of state-funded student places of the first
cycle and integrated studies in schools of higher education is a general one for all schools of higher
education, i.e. preliminary numbers of state-funded student places of the first cycle and integrated
studies are not established separately for state and non-state schools of higher education.
4.3.2. Under disputed Paragraph 5 of Article 70 of the Law on Higher Education, it is the
Ministry of Education and Science that is empowered to establish the final number of state-funded
student places of the first cycle and integrated studies to which students are admitted as well as their
distribution among schools of higher education and study areas. The said ministry does so after the
results of admission to schools of higher education are made known and study agreements are
signed.
Thus, the final number of state-funded student places of the first cycle and integrated studies
to which students are admitted as well as their distribution among schools of higher education and
study areas is established by specifying and segmenting among schools of higher education a
preliminary number of state-funded student places of the first cycle and integrated studies in each
study area or a set of study fields; the preliminary number is established under Paragraph 3 of
Article 70 of the Law on Science and Studies. It is done while taking account of the said first
criterion, established in Paragraph 2 of Article 70 of the Law on Science and Studies, for
distribution of state-funded student places according to study programmes of the first cycle and
integrated study programmes among schools of higher education—the choice between schools of
higher education made by enrolling persons who have completed the secondary education
programme with the best results, which becomes known after the results of admission to schools of
higher education are made known and study agreements are signed.
It needs to be noted that, under Paragraph 5 of Article 70 of the Law on Higher Education,
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while establishing the final number of state-funded student places of the first cycle and integrated
studies to which students are admitted as well as their distribution among schools of higher
education and study areas, one separately does not take account of the fact whether enrolling
persons who have completed the secondary education programme with the best results have chosen
state or non-state schools of higher education.
4.4. Doubting the constitutionality of Paragraphs 2 and 5 of Article 70 of the Law on
Science and Studies, the petitioner maintains that, under the jurisprudence of the Constitutional
Court, free-of-charge education is guaranteed only to those citizens that are good at their studies,
who are studying by requisition of the state in order to satisfy the state established demand for
specialists (whose number is announced in advance) of corresponding areas (fields); the state must
establish the demand for specialists of corresponding areas (fields) and submit a corresponding
requisition to state schools of higher education, whereas, upon assessing the needs of society and
the state and the financial capabilities of the state, in cases when specialists of certain areas (fields)
cannot be prepared in state schools of higher education due to objective circumstances, the state
must submit such a requisition to non-state schools of higher education.
Thus, from the arguments of the petitioner it is clear that it is disputing something
amounting to legislative omission: the fact that Paragraphs 2 and 5 (disputed by the petitioner) of
Article 70 of the Law on Science and Studies does not establish the rule (mentioned by the
petitioner) of the priority for state schools of higher education made in the requisition by the state
when the distribution of state-funded student places of the first cycle studies and integrated studies
is regulated, i.e. the fact that non-state schools of higher education may receive such state-funded
student places only in cases when specialists of certain areas (fields) cannot be prepared in state
schools of higher education due to objective circumstances, even though such a rule, under the
Constitution, should have been established by the legislator namely in the provisions disputed by
the petitioner.
4.5. In the constitutional justice case at issue it needs to be noted that the Constitutional
Court has held that a legal gap, inter alia legislative omission, always means that the legal
regulation of corresponding social relations is established neither explicitly, nor implicitly, neither
in a concrete legal act (part thereof), nor any other legal acts at all, even though there exists a need
for the legal regulation of these social relations, while the said legal regulation, in case of legislative
omission, must be established precisely in that legal act (precisely in that part thereof), since this is
required by a certain legal act of higher power, inter alia the Constitution itself (Constitutional
Court decisions of 8 August 2006, 5 November 2008, rulings of 2 March 2009, 22 June 2009, 11
December 2009, 29 September 2010, 29 November 2010 and 7 July 2011).
4.6. It has been mentioned that the petitioner is disputing the compliance of Paragraphs 2
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and 5 of Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who
are good at their studies shall be guaranteed education at State schools of higher education free of
charge” of Paragraph 3 of Article 41 of the Constitution.
4.6.1. In the constitutional justice case at issue it has also been mentioned that the legal
position of the Constitutional Court (ratio decidendi) in corresponding constitutional justice cases
has the significance of the precedent; the Constitutional Court is bound by the precedents that it
itself has created in previous constitutional justice cases and by the official constitutional doctrine
that it itself has formed, which substantiates those precedents.
4.6.2. It has been mentioned that, while construing the constitutional provision that higher
education shall be accessible to everyone according to his individual abilities, one may not deny
another constitutional provision that citizens who are good at their studies shall be guaranteed
education at state schools of higher education free of charge. In its ruling of 14 January 2002 the
Constitutional Court noted that there has to be a balance between the legitimate interests of a person
and the needs of both the society and the state; the financial possibilities of the state (including
possibilities to fund higher education) are not and cannot be unlimited; the constitutional provisions
that higher education shall be available to everyone according to their individual abilities cannot be
construed as imposing a duty on the state to ensure funding of any higher education for anyone
capable of seeking it without proper consideration of the needs and possibilities of the society and
the state.
4.6.3. It needs to be noted that the provision “Citizens who are good at their studies shall be
guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article
41 of the Constitution implies the right of citizens who are good at their studies namely in state
schools of higher education to receive higher education free of charge and it implies the
corresponding duty of the state to provide for the funds in the state budget necessary to guarantee
free-of-charge education for citizens who are good at their studies namely at state schools of higher
education.
In addition, the Constitution guarantees higher education covered by state funds not to all
citizens who are good at their studies in state schools of higher education, no matter under what
conditions they were admitted to such schools (i.e. not to all those citizens who are good at their
studies, who, however, in the course of admittance to a corresponding state school of higher
education were not admitted to the places whose number announced in advance conforms to the
obligation of the state to fund the preparation of a certain number of specialists, and who were
admitted to study at the state school of higher education at their own expense), but only to those
who are prepared in order to satisfy the state established demand for specialists of corresponding
areas (fields); it is namely for financing of their studies that one has to provide the necessary funds
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in the state budget (Constitutional Court ruling of 20 March 2008).
On the other hand, the Constitution does not contain a prohibition for the state to undertake
higher financial obligations, in accordance with its possibilities, to citizens learning at schools of
higher education (Constitutional Court ruling of 14 January 2002).
4.6.4. It also needs to be noted that the possibility for the state to undertake higher financial
obligations than those emerging from the provision “Citizens who are good at their studies shall be
guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article
41 of the Constitution with regard to citizens learning at schools of higher education inter alia
means the right of the state to guarantee free-of-charge education in some cases to citizens learning
in non-state schools of higher education, i.e. to those citizens who, under Paragraph 3 of Article 41
of the Constitution, do not enjoy the right to free-of-charge higher education and whose studies do
not have to be financed by the state.
In its decision of 18 December 2009 the Constitutional Court held that it is impossible to
construe the Constitution, inter alia Paragraph 3 of Article 41 thereof, as meaning that, purportedly,
subsequent to a requisition of the state, specialists of corresponding areas (fields) cannot be
prepared in non-state schools of higher education by means of funds of the state budget. Also such
situations are possible, where specialists of corresponding areas (fields) cannot be prepared in state
schools of higher education due to objective circumstances (for instance, situations are possible,
when state schools of higher education do not possess special training facilities, etc., in order to
prepare the specialists of certain areas (fields) which are necessary for the state). Alongside, it needs
to be noted that in such cases the state requisition submitted to a non-state school of higher
education for preparation of specialists of certain areas (fields) by funds from the state budget must
be grounded on a balanced assessment of the needs of society and of the state and that of financial
capabilities of the state and it may not be in conflict with inter alia the constitutional imperative of
social harmony. In such cases the state, while submitting the requisition to non-state schools of
higher education, must guarantee that the expenses of learning (studies) of such specialists will be
covered by state funds, in cases their learning will meet the criteria of good learning established by
law.
Thus, funds from the state budget must be allocated to state schools of higher education,
inter alia the funds necessary in order that the free-of-charge education would be guaranteed to the
citizens who are learning at state schools of higher education, who are prepared in order to meet the
demand of specialists of corresponding areas (fields), which is established by the state, and whose
learning complies with the criteria of good learning established by the law; upon assessing the
needs of society and the state and the financial capabilities of the state, in cases when specialists of
certain areas (fields) cannot be prepared in state schools of higher education due to objective
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circumstances, they may be prepared also in non-state schools of higher education upon requisition
of the state and from funds of the state budget; in such a case the state must guarantee that the
expenses of learning (studies) of such specialists will be covered by state funds, in cases the
learning of the said individuals will meet the criteria of good learning established by law
(Constitutional Court decision of 18 December 2009).
Consequently, whatever model of higher education funding is chosen, the legislator must
heed the requirement, emerging from the provision “Citizens who are good at their studies shall be
guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article
41 of the Constitution, that upon assessing the needs of society and the state and the financial
capabilities of the state, the state must establish the demand for specialists of corresponding areas
(fields) and submit a requisition, first of all, to state schools of higher education, to prepare such
specialists, and only in cases when specialists of certain areas (fields) cannot be prepared in state
schools of higher education due to objective circumstances, such a requisition may be submitted to
non-state schools of higher education as well.
4.6.5. In the context of the constitutional justice case at issue it also needs to be mentioned
that in its ruling of 20 March 2008 the Constitutional Court held:
– the state which, under the Constitution, has a duty to support science, secure accessibility
of higher education, guarantee higher education in state schools of higher education to citizens who
are good at their studies free of charge, who are prepared by meeting the established demand of
specialists of corresponding areas (fields), may choose and establish in laws various models of
financing of higher education; while doing so, the legislator is bound by the constitutional
obligations of the state, as well as financial capabilities of the state which, as mentioned, are not
limitless; the law may not establish any such model of financing of higher education, which would
not be based upon a balanced assessment of the needs of society and the state and the financial
capabilities of the state, where the state would clearly obviously be unable to implement such a
model; the establishment of such a model would be in conflict inter alia with the constitutional
imperative of social harmony and would not allow the state to perform its various other obligations;
– the constitutional provision that the state shall supervise the activities of establishments of
teaching, the constitutional imperative of coordination of the interests of schools of higher
education and those of society, the constitutional obligation of the state to secure the efficiency of
the system of higher education imply also a duty of the state to adopt the corresponding decisions
linked with financing higher education in state schools of higher education by assessing whether
higher education is provided in these schools of higher education according to confirmed
programmes of studies, also, upon assessment of the quality of these programmes and that of their
execution, and upon assessment of the possibilities of schools of higher education to prepare a
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certain number of good quality specialists of corresponding areas (fields); one must also assess
whether there are necessary conditions in state schools of higher education to provide the higher
education which meets the standards established by the state to the persons whose studies are
financed by the state budget funds, as well as to persons who study at their own expense;
– while establishing a model of financing higher education and regulating, by means of legal
acts, the relations linked thereto, one must take account of the fact that, the higher education, which
would meet the quality standards established by the state, can be provided by the schools of higher
education that have teachers of high qualification, the indispensable training facilities, the necessary
infrastructure etc.; under the Constitution, the rights enjoyed by schools of higher education may be
differentiated (by heeding the Constitution) inter alia according to the status of these schools of
higher education (whether they are universities or not), the level of higher education provided by
them to the persons who are studying therein, the programme of studies conducted by them, the
scientific potential thereof etc.; thus, when account is taken of all this, funding of state schools of
higher education from the state budget can also be different, and, in certain respects it must be
different; there is not any provision of the Constitution which could be construed as implying
egalitarianism in this area.
4.7. It has been mentioned that Paragraph 2 (disputed by the petitioner) of Article 70 of the
Law on Science and Studies has established two general criteria for distribution of state-funded
student places according to study programmes of the first cycle and integrated study programmes
among schools of higher education: the choice between schools of higher education made by
enrolling persons who have completed the secondary education programme with the best results and
the limits of state funding provided for each study field; Paragraph 2 of Article 70 of the Law on
Science and Studies does not establish that in the course of distribution of state-funded student
places the state schools of higher education chosen by persons who have completed the secondary
education programme with the best results will have the priority. Thus, Paragraph 2 of Article 70 of
the Law on Science and Studies does not establish, either, that state-funded student places chosen
by persons who have completed the secondary education programme with the best results may be
received by non-state schools of higher education only in cases when specialists of certain areas
(fields) cannot be prepared in state schools of higher education due to objective circumstances. No
other criteria for distribution of state-funded student places according to study programmes of the
first cycle and integrated study programmes among schools of higher education have been
established either in Paragraph 2 of Article 70 of the Law on Science and Studies or in other
provisions of this law.
It has been mentioned that whatever model of higher education funding is chosen, the
legislator must heed the requirement, emerging from the provision “Citizens who are good at their
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studies shall be guaranteed education at State schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution, that upon assessing the needs of society and the state
and the financial capabilities of the state, the state must establish the demand for specialists of
corresponding areas (fields) and submit a requisition, first of all, to state schools of higher
education, to prepare such specialists, and only in cases when specialists of certain areas (fields)
cannot be prepared in state schools of higher education due to objective circumstances, such a
requisition may be submitted to non-state schools of higher education as well.
Thus, the legal regulation whereby Paragraph 2 of Article 70 of the Law on Science and
Studies does not establish that, in the course of distribution, among schools of higher education, of
state-funded student places in the study programmes of the first cycle and integrated studies, one
must take account of the capabilities of state schools of higher education to satisfy the state
established demand for specialists of corresponding areas (fields) and that it does not establish that
state-funded student places chosen by persons who have completed the secondary education
programme with the best results may be received by non-state schools of higher education only in
cases when specialists of certain areas (fields) cannot be prepared in state schools of higher
education due to objective circumstances, is not in line with the requirement, emerging from the
provision “Citizens who are good at their studies shall be guaranteed education at State schools of
higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, that upon
assessing the needs of society and the state and the financial capabilities of the state, the state must
establish the demand for specialists of corresponding areas (fields) and submit a requisition, first of
all, to state schools of higher education, to prepare such specialists, and only in cases when
specialists of certain areas (fields) cannot be prepared in state schools of higher education due to
objective circumstances, such a requisition may be submitted to non-state schools of higher
education as well.
4.8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2
of Article 70 of the Law on Science and Studies, to the extent that it does not establish that, in the
course of distribution, among schools of higher education, of state-funded student places in the
study programmes of the first cycle and integrated studies, one must take account of the capabilities
of state schools of higher education to satisfy the state established demand for specialists of
corresponding areas (fields) and that it does not establish that state-funded student places chosen by
persons who have completed the secondary education programme with the best results may be
received by non-state schools of higher education only in cases when specialists of certain areas
(fields) cannot be prepared in state schools of higher education due to objective circumstances, is in
conflict with the provision “Citizens who are good at their studies shall be guaranteed education at
State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution
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and the constitutional principle of a state under the rule of law.
4.9. It has been mentioned that from the arguments of the petitioner it is clear that it is
disputing something that inter alia in Paragraph 5 of Article 70 of the Law on Science and Studies
would amount to legislative omission, i.e. the fact that Paragraph 5 (disputed by the petitioner) of
Article 70 of the Law on Science and Studies does not establish the rule of the priority for state
schools of higher education made in the requisition by the state when the final distribution, among
schools of higher education, of state-funded student places of the first cycle studies and integrated
studies is regulated.
4.9.1. It has been mentioned that, under Paragraph 5 of Article 70 of the Law on Higher
Education, while establishing the final number of state-funded student places of the first cycle and
integrated studies to which students are admitted as well as their distribution among schools of
higher education and study areas, one separately does not take account of the fact whether enrolling
persons who have completed the secondary education programme with the best results have chosen
state or non-state schools of higher education; thus, under such legal regulation, no priority is given
to the state schools of higher education chosen by persons who have completed the secondary
education programme with the best results.
It has also been mentioned that the legislator must heed the requirement, emerging from the
provision “Citizens who are good at their studies shall be guaranteed education at State schools of
higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, that upon
assessing the needs of society and the state and the financial capabilities of the state, the state must
establish the demand for specialists of corresponding areas (fields) and submit a requisition, first of
all, to state schools of higher education, to prepare such specialists, and only in cases when
specialists of certain areas (fields) cannot be prepared in state schools of higher education due to
objective circumstances, such a requisition may be submitted to non-state schools of higher
education as well.
4.9.2. When one is deciding whether Paragraph 5 of Article 70 of the Law on Science and
Studies, in the aspect that, while establishing the final number of state-funded student places of the
first cycle and integrated studies to which students are admitted as well as their distribution among
schools of higher education and study areas, one separately does not take account of the fact
whether enrolling persons who have completed the secondary education programme with the best
results have chosen state or non-state schools of higher education, is not in conflict with the
provision “Citizens who are good at their studies shall be guaranteed education at State schools of
higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, it is necessary to
take account of the fact that Paragraph 5 of Article 70 of the Law on Science and Studies is related
to Paragraph 2 of the same article, wherein the general criteria for distribution, among schools of
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higher education, of state-funded student places in the study programmes of the first cycle and
integrated studies. It implies that, while establishing, under Paragraph 5 of Article 70 of the Law on
Higher Education, the final number of state-funded student places of the first cycle and integrated
studies to which students are admitted as well as their distribution among schools of higher
education and study areas, one must take account of the general criteria (established in Paragraph 2
of the same article) for distribution, among schools of higher education, of state-funded student
places in the study programmes of the first cycle and integrated studies.
In the constitutional justice case at issue it has been held that Paragraph 2 of Article 70 of
the Law on Science and Studies, to the extent that it does not establish that, in the course of
distribution, among schools of higher education, of state-funded student places in the study
programmes of the first cycle and integrated studies, one must take account of the capabilities of
state schools of higher education to satisfy the state established demand for specialists of
corresponding areas (fields) and that it does not establish that state-funded student places chosen by
persons who have completed the secondary education programme with the best results may be
received by non-state schools of higher education only in cases when specialists of certain areas
(fields) cannot be prepared in state schools of higher education due to objective circumstances, is in
conflict with the provision “Citizens who are good at their studies shall be guaranteed education at
State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution
and the constitutional principle of a state under the rule of law.
In view of the aforesaid, there are not any arguments allowing to assert that, in the aspect
specified by the petitioner, there is legislative omission in Paragraph 5 of Article 70 of the Law on
Science and Studies as well, i.e. that this paragraph must provide that, while establishing the final
number of state-funded student places of the first cycle and integrated studies to which students are
admitted as well as their distribution among schools of higher education and study areas, one has to
take account of the fact whether enrolling persons who have completed the secondary education
programme with the best results have chosen state or non-state schools of higher education.
It needs to be noted that also such legal regulation, established in Paragraph 5 of Article 70
of the Law on Science and Studies, would not be in conflict with the Constitution, whereby the final
number of state-funded student places of the first cycle and integrated studies to which students are
admitted as well as their distribution among schools of higher education and study areas is approved
by the Ministry of Education and Science, after the results of admission to schools of higher
education are made known and study agreements are signed, provided Paragraph 2 of the same
article established that, in the course of distribution, among schools of higher education, of state-
funded student places in the study programmes of the first cycle and integrated studies, one must
take account of the capabilities of state schools of higher education to satisfy the state established
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demand for specialists of corresponding areas (fields), and also one must take account of the fact
that state-funded student places chosen by persons who have completed the secondary education
programme with the best results may be received by non-state schools of higher education only in
cases when specialists of certain areas (fields) cannot be prepared in state schools of higher
education due to objective circumstances.
4.10. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph
5 of Article 70 of the Law on Science and Studies is not in conflict with the provision “Citizens
who are good at their studies shall be guaranteed education at State schools of higher education free
of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state
under the rule of law.
5. It has been mentioned that the group of Members of the Seimas, a petitioner, has doubted
whether Paragraph 7 of Article 70 of the Law on Science and Studies is not in conflict with the
provision “Citizens who are good at their studies shall be guaranteed education at State schools of
higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the
constitutional principle of a state under the rule of law.
5.1. As mentioned, Paragraph 7 of Article 70 of the Law on Science and Studies provides:
“A person whose studies of the first cycle or integrated studies are funded by the State shall,
after the first two years of studies and in the case of extended studies—after the completion of half
of the study programme, lose state funding for studies if the mean of the results of his studies during
an appropriate period is more than 20 percentage points lower than the mean of the results of
studies of an appropriate study programme and form by students of the same year of studies of the
school of higher education during an appropriate period. A person who loses state funding must pay
for his studies the study cost fixed by a school of higher education and his state-funded student
place shall be occupied by a person whose study results in a student place which is not funded by
the State are the best.”
5.2. Thus, Paragraph 7 of Article 70 of the Law on Science and Studies has provided for the
procedure for assessment of the learning results of a person whose studies of the first cycle or
integrated studies are funded by the state in order to establish whether he continues to meet the
criteria of good learning established in this paragraph so that his studies could further be funded by
the state. Having established that the person no longer meets the criteria of good learning (if the
mean of the results of his studies during an appropriate period is more than 20 percentage points
lower than the mean of the results of studies of an appropriate study programme and form by
students of the same year of studies of the school of higher education during an appropriate period),
he loses state funding for studies and his state-funded student place is occupied by a person whose
study results in a student place which is not funded by the state are the best.
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5.2.1. Paragraph 7 of Article 70 of the Law on Science and Studies has provided for the time
period of assessment of the learning results of a person whose studies of the first cycle or integrated
studies are funded by the state in order to establish whether he continues to meet the criteria of good
learning established in this paragraph so that his studies could further be funded by the state—this
time period is two years of studies or half of the study programme in case of extended studies. The
said time period encompasses more than one period of academic learning (as a rule, a semester),
after which the basic checking of the knowledge of persons studying in schools of higher education
is conducted (as a rule, by means of taking examinations or credit tests in the studied subjects).
5.2.2. It needs to be noted that Paragraph 14 of Article 70 of the Law on Science and Studies
provides for a possibility for a person whose studies are funded by the state to lose state funding for
his studies earlier than during the period of assessment of learning results established in Paragraph 7
of this paragraph, i.e., when a person studying in a state-funded student place is excluded from a
school of higher education or terminates his studies (in such cases a person who studies in the same
study programme of the same year of studies in the student place which is not funded by the state
may be transferred to the said state-funded student place in the manner prescribed by the school of
higher education). However, this possibility is not to be related only to the assessment of the
learning results of the person during an academic period of learning, after which the basic checking
of the knowledge of persons studying in schools of higher education is conducted in order to
establish whether they meet the criteria of good learning so that the funding of their studies would
continue. The said possibility also depends upon negative results of learning of another person, who
studies in the same study programme of the same year of studies in the student place which is
funded by the state, or upon other circumstances determining exclusion of the said person from the
school of higher education or upon his resolve to terminate his studies.
Thus, Paragraph 14 of Article 70 of the Law on Science and Studies has not established any
other time period for assessment of learning results than the one established in Paragraph 7 of the
same article, which is designed to establish whether the persons whose studies of the first cycle or
integrated studies are funded by the state meet the criteria of good learning.
5.2.3. It also needs to be noted that Article 71 of the Law on Science and Studies provides
that part of the persons in the student places of the first cycle or integrated studies, which are not
funded by the state, who finished with the best results the first two academic years (in the case of
extended studies—half of a study programme) and the remaining academic years, may be
compensated for the study cost paid for the studies during an appropriate period; it is also
established therein that the overall number of persons for whom the study cost is compensated shall
not exceed 10 per cent of the number of persons who, in that academic year, finished studies of the
first two academic years (in the case of extended studies—half of a study programme) or the
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remaining academic years in the state-funded student places of studies of the first cycle or
integrated studies. Thus, Article 71 of the Law on Science and Studies has provided for a possibility
to compensate, part of the persons in the student places of the first cycle or integrated studies, which
are not funded by the state, who study with the best results, for part or entire study costs paid, i.e.
this article regulates relations of different character than those regulated in Article 70 “Payment of
study costs in student places funded by the State” of the Law on Science and Studies.
5.3. The doubts of the petitioner regarding the constitutionality of Paragraph 7 of Article 70
of the Law on Science and Studies are substantiated by the provisions of the official constitutional
doctrine whereby the results of learning of the citizens who study in state schools of higher
education subsequent to the requisition by the state (i.e. in order to meet the demand of specialists
of corresponding areas (fields), which is established by the state) must be assessed on a regular
basis after checking the knowledge of the studied subjects after each period of academic learning;
the citizens who were admitted in state schools of higher education to study subsequent to the
requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas
(fields), which is established by the state) must be guaranteed the education free of charge till the
first basic checking of the knowledge of the subjects studied by them.
Thus, it is clear from the arguments of the petitioner that it has doubted the constitutionality
of Paragraph 7 of Article 70 of the Law on Science and Studies only insofar as it provides for the
time period of assessment of the learning results of a person whose studies of the first cycle or
integrated studies are funded by the state in order to establish whether he continues to meet the
criteria of good learning established in this paragraph so that his studies could further be funded by
the state—this time period is two years of studies or half of the study programme in case of
extended studies.
5.4. It has been mentioned that the petitioner is disputing the compliance of Paragraph 7 of
Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who are good
at their studies shall be guaranteed education at State schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution.
5.4.1. As mentioned, in its ruling of 20 March 2008, the Constitutional Court held that it is
impossible to construe the constitutional provision whereby citizens who are good at their studies
shall be guaranteed education at state schools of higher education free of charge, as meaning that,
purportedly, the Constitution guarantees higher education covered by state funds to all citizens who
are good at their studies in state schools of higher education, no matter under what conditions they
were admitted to such schools, i.e. also to those citizens who are good at their studies, who,
however, in the course of admittance to a corresponding state school of higher education were not
admitted to the places whose number announced in advance conforms to the obligation of the state
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to fund the preparation of a certain number of specialists, and who were admitted to study at the
state school of higher education at their own expense; the Constitution guarantees higher education
covered by state funds not to all citizens who are good at their studies in state schools of higher
education, but only to those who are prepared in order to meet the demand of specialists of
corresponding areas (fields), which is established by the state; if learning of these citizens does not
correspond to the criteria of good learning established by law, the state does not have to finance
their studies.
It needs to be noted that the citizens who are good at their studies in state schools of higher
education and who study in state schools of higher education subsequent to the requisition by the
state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is
established by the state) must be guaranteed the education free of charge as long as their learning
corresponds to the criteria of good learning established by law; alongside, it needs to be noted that
the citizens who were admitted in state schools of higher education to study subsequent to the
requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas
(fields), which is established by the state) must be guaranteed the education free of charge till the
first basic checking of the knowledge of the subjects studied by them (Constitutional Court decision
of 18 December 2009).
5.4.2. As it was mentioned by the Constitutional Court in its decision of 18 December 2009,
the procedure (established in the state school of higher education) of assessment of the knowledge
acquired in the state school of higher education must inter alia be such so that on the grounds of
this procedure it would be possible to assess whether the results of learning of the citizens studying
in state schools of higher education subsequent to the requisition of the state (i.e. those who are
prepared in order to meet the demand of specialists of corresponding areas (fields), which is
established by the state) correspond to the criteria of good learning established by law.
The Constitutional Court has also held that the assessment of the results of learning of the
citizens who study in state schools of higher education subsequent to the requisition by the state (i.e.
in order to meet the demand of specialists of corresponding areas (fields), which is established by
the state) must be conducted on a regular basis after checking the knowledge of the studied subjects
after each period of academic learning (Constitutional Court decisions of 18 December 2009 and 19
March 2010).
In this context it needs to be mentioned that the Constitutional Court has noted that the
knowledge of the individuals who learn at state schools of higher education must be assessed on a
regular basis, within the corresponding periods of learning at these schools; legal acts can name
these periods in a varied manner; as a rule, basic checking of the knowledge of the individuals who
study in Lithuanian state schools of higher education as regards the studied subjects is regularly
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conducted after each period of academic learning—semester (Constitutional Court decision of 18
December 2009).
5.4.3. Thus, in the context of the constitutional justice case at issue it needs to be noted that
the legal regulation, whereby in order to establish whether the study results of a person, whose
studies are funded by the state, meet the criteria of good learning his study results are assessed
irregularly, i.e. not after each period of academic learning, after which the basic checking of the
knowledge of studied subjects of persons studying in schools of higher education is conducted,
would not be in conformity with the provision of Paragraph 3 of Article 41 of the Constitution 41
that citizens who are good at their studies shall be guaranteed education at state schools of higher
education free of charge.
5.5. It has been mentioned that Paragraph 7 of Article 70 of the Law on Science and Studies
has provided for the time period of assessment of the learning results of a person whose studies of
the first cycle or integrated studies are funded by the state in order to establish whether he continues
to meet the criteria of good learning established in this paragraph so that his studies could further be
funded by the state—this time period is two years of studies or half of the study programme in case
of extended studies; this time period encompasses more than one period of academic learning (as a
rule, a semester), after which the basic checking of the knowledge of persons studying in schools of
higher education is conducted.
It has also been mentioned that the legal regulation, whereby in order to establish whether
the study results of a person, whose studies are funded by the state, meet the criteria of good
learning, his study results are assessed irregularly, i.e. not after each period of academic learning,
after which the basic checking of the knowledge of studied subjects of persons studying in schools
of higher education is conducted, would not be in conformity with the provision of Paragraph 3 of
Article 41 of the Constitution that citizens who are good at their studies shall be guaranteed
education at state schools of higher education free of charge.
5.6. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 7
of Article 70 of the Law on Science and Studies, insofar as it provides for the time period of
assessment of the learning results of a person whose studies of the first cycle or integrated studies
are funded by the state in order to establish whether he continues to meet the criteria of good
learning established in this paragraph so that his studies could further be funded by the state—this
time period is two years of studies or half of the study programme in case of extended studies, is in
conflict the provision “Citizens who are good at their studies shall be guaranteed education at State
schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the
constitutional principle of a state under the rule of law.
6. It has been mentioned that the group of Members of the Seimas, a petitioner, has doubted
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whether Paragraph 11 of Article 70 of the Law on Science and Studies is not in conflict with the
provision “Citizens who are good at their studies shall be guaranteed education at State schools of
higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the
constitutional principle of a state under the rule of law.
6.1. As mentioned, Paragraph 11 of Article 70 of the Law on Science and Studies provides:
“State budget funds to cover the study cost in state-funded student places shall be allocated
in accordance with the procedure laid down by the Government.“
6.2. Thus, under Paragraph 11 of Article 70 of the Law on Science and Studies, the
Government is empowered to establish the procedure for allocation of state funds to cover the study
cost in state-funded student places.
6.2.1. The disputed Paragraph 11 of Article 70 of the Law on Science and Studies is related
to Paragraphs 2, 5, 9 of this article.
As mentioned, Paragraph 2 of Article 70 of the Law on Science and Studies establishes the
general criteria (inter alia the choice between schools of higher education made by enrolling
persons who have completed the secondary education programme with the best results) for
distribution of state-funded student places according to study programmes of the first cycle and
integrated study programmes among schools of higher education, whereas Paragraph 5 thereof
regulates the establishment of the final number of state-funded student places of the first cycle and
integrated studies in each study area or a set of study fields and the distribution of such student
places among schools of higher education and study areas; the final number of state-funded student
places in the first cycle and integrated studies as well as their distribution among schools of higher
education and study areas and the distribution of such student places among schools of higher
education and study areas is established by specifying and segmenting among schools of higher
education a preliminary number of state-funded student places of the first cycle and integrated
studies in each study area or a set of study fields (which is announced under procedure established
in Paragraph 3 of Article 70 of the Law on Science and Studies) in accordance with the choice
between schools of higher education made by enrolling persons who have completed the secondary
education programme with the best results.
Paragraph 9 of Article 70 of the Law on Science and Studies has entrenched the procedure
for establishment of the number of state-funded student places of the second cycle, doctoral studies
and studies which do not award a degree, to which students are admitted, according to concrete
study fields, and for distribution of such student places among schools of higher education.
Thus, Paragraph 11 of Article 70 of the Law on Science and Studies empowers the
Government to establish the procedure for allocation of state budget funds to cover the study cost in
state-funded student places in cases when, in accordance with the criteria established in Paragraph 2
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and under procedure established in Paragraph 5 of this article, the final number of state-funded
student places of the first cycle and integrated studies to which students are admitted as well as their
distribution among schools of higher education and study areas are established and, under procedure
established in Paragraph 9 of the same article, the number of state-funded student places of the
second cycle, doctoral studies and studies which do not award a degree, according to concrete study
fields and the distribution of such places among schools of higher education, are established.
6.2.2. The disputed Paragraph 11 of Article 70 of the Law on Science and Studies is also
related to Paragraph 10 of the same article wherein it is established that the state shall fund the
study cost of persons studying in state-funded student places in accordance with the procedure laid
down in Article 76 of the Law on Science and Studies. The said Article 76 regulates inter alia the
establishment of the standard study cost of an appropriate study field or a set of study programmes.
Under Paragraph 4 of Article 76 of the Law on Science and Studies, the standard study cost of an
appropriate study field or a set of study programmes shall be calculated in accordance with the
procedure laid down by the Government, where such study cost shall comprise all the expenses of
studies specified in Paragraph 3 of this article (funds necessary for carrying out studies—for wages
and salaries of teaching staff members, research staff members and other employees related to
studies, to purchase goods and services related to studies, to give incentives to students). Paragraph
4 of Article 76 also provides that in the cases where the study cost fixed by a school of higher
education exceeds the standard study cost, the standard study cost shall be paid with the state
budget funds.
Thus, Paragraph 11 of Article 70 of the Law on Science and Studies empowers the
Government to establish the procedure for allocation of state budget funds to cover the study cost in
state-funded student places in cases insofar as the standard study cost calculated under procedure
established by the Government is paid with the state budget funds, also insofar as the said procedure
for allocation of state budget funds to cover the study cost in state-funded student places is related
to allocation of state budget funds to cover the standard study cost for those schools of higher
education to which state-funded student places were distributed under procedure established in 2, 3,
5, 9 of Article 70 of the Law on Science and Studies (inter alia by taking account of the choice
between schools of higher education made by enrolling persons who have completed the secondary
education programme with the best results).
6.2.3. In this context it needs to be mentioned that state budget funds are allocated to schools
of higher education not only in order to pay for state-funded student places. Under Item 1 Paragraph
1 of Article 67 of the Law on Science and Studies, funds of the basic financing of the state budget
are allocated to state schools of higher education; these funds are allocated for research,
experimental (social, cultural) development and the expansion of artistic activities, administration
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and economy as well as other needs (Paragraph 1 of Article 68 of the Law on Science and Studies).
Paragraph 2 of Article 67 of the same law inter alia provides that state budget appropriations for
each state university shall be allocated under a separate line; state colleges shall be funded with the
state budget appropriations allocated for the state institutions or establishments which perform the
functions of their founder.
6.3. The doubts of the petitioner regarding the constitutionality of Paragraph 11 of Article 70
of the Law on Science and Studies are substantiated by the fact that, according to the petitioner, the
provision of the official constitutional doctrine that in the state budget funds must be provided for
each school of higher education individually, alongside means that it is necessary to provide for the
funds in the state budget for each school of higher education individually for covering all expenses
of the citizens who are good at their studies in such a school and who are learning subsequent to
requisition by the state.
6.4. It has been mentioned that the petitioner is doubting the compliance of Paragraph 11 of
Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who are good
at their studies shall be guaranteed education at State schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution.
6.4.1. In its ruling of 14 January 2002 the Constitutional Court noted that Paragraph 3 of
Article 41 of the Constitution establishes the right of every citizen with a good academic progress in
a state higher school to free higher education; this right presumes that funds must be provided out of
the state budget to guarantee higher education free of charge to citizens who demonstrate good
academic progress in state higher schools.
In its ruling of 14 January 2002 the Constitutional Court also noted that the fact that, under
the Constitution, the system of higher education establishments, including state schools of higher
education, must be accessible to every human being according to his abilities, that citizens who are
good at their studies shall be guaranteed education at state schools of higher education free of
charge, also that the autonomy of schools of higher education is entrenched in the Constitution,
implies that state schools of higher education must be allocated funds so that they can discharge
their functions. These funds must be provided for in the state budget. An essential guarantee of
autonomy of state schools of higher education is such legal regulation when the law on the state
budget provides not only for the allocation of money for the higher education, but also for the funds
for each state school of higher education. While providing for state budget funds for state higher
schools, the needs of the society and the state ensured by these schools, their existing and future
programs, also their way of ensuring adherence to the set teaching standards, the correspondence of
the content and level of teaching to the qualification recognised by the state, state obligations to
these schools etc. should be considered.
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6.4.2. In its ruling of 20 March 2008, the Constitutional Court noted that the state budget
funds allocated to schools of higher education also encompass the funds for financing the studies of
the citizens studying in state schools of higher education, who are good at their studies; the
Constitution guarantees higher education covered by state funds not to all citizens who are good at
their studies in state schools of higher education, no matter under what conditions they were
admitted to such schools, but only to those who are prepared in order to meet the demand of
specialists of corresponding areas (fields), which is established by the state; it is namely for
financing of their studies that one has to provide the necessary funds in the state budget.
It has been mentioned that, in its ruling of 20 March 2008, the Constitutional Court also
emphasised that the state which, under the Constitution, has a duty to support science, secure
accessibility of higher education, guarantee higher education in state schools of higher education to
citizens who are good at their studies free of charge, who are prepared by meeting the established
demand of specialists of corresponding areas (fields), may choose and establish in laws various
models of financing of higher education. While doing so, the legislator is bound by the
constitutional obligations of the state, as well as financial capabilities of the state which, as
mentioned, are not limitless. The law may not establish any such model of financing of higher
education, which would not be based upon a balanced assessment of the needs of society and the
state and the financial capabilities of the state, where the state would clearly obviously be unable to
implement such a model; the establishment of such a model would be in conflict inter alia with the
constitutional imperative of social harmony and would not allow the state to perform its various
other obligations.
6.4.3. It needs to be noted that, as it was held by the Constitutional Court in its ruling of 20
March 2008, the Government has the powers to prepare a draft State Budget (Item 4 of Article 94 of
the Constitution); the State Budget is approved by the Seimas (Item 14 of Article 67 of the
Constitution); the Seimas does so by passing a law (Paragraph 1 of Article 131 of the Constitution).
In this context it also needs to be noted that, under Item 4 of Article 94 of the Constitution,
the Government also enjoys the powers execute the State Budget and submit to the Seimas a report
on the execution of the budget.
6.4.4. Thus, in the context of the constitutional justice case at issue it needs to be noted that,
from the provision “Citizens who are good at their studies shall be guaranteed education at State
schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution there
emerges a requirement to provide for funds in the state budget to state schools of higher education
for funding the studies of the citizens who are good at their studies and who are prepared in order to
satisfy the state-established demand for specialists of corresponding areas (fields). However, the
state may choose and entrench various models of funding of higher education in laws; such a model
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must be based upon a balanced assessment of the needs of society and the state and the financial
capabilities of the state, but there must be no such model where the state would clearly be unable to
implement it.
It also needs to be noted that the provision “Citizens who are good at their studies shall be
guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article
41 of the Constitution does not imply a requirement for the legislator to establish only such a model
of funding of higher education, where all state budget funds meant for schools of higher education
would be assigned to the state budget appropriations allocated individually to every state school of
higher education; funds must be provided individually for in the state budget for each state school
of higher education necessary in order to implement the purposes and the mission of that school of
higher education. Thus, the legislator may also choose such a model, where certain state budget
appropriations would be provided for higher education in general, inter alia for funding the studies
of citizens who are good at their studies and who are prepared to satisfy the state-established
demand for specialists of corresponding areas (fields); during the budget year, the Government,
which is responsible for execution of the state budget, may distribute these appropriations to
schools of higher education under established procedure, while taking account of inter alia the
choice between schools of higher education made by enrolling persons.
6.5. It has been mentioned that Paragraph 11 of Article 70 of the Law on Science and
Studies empowers the Government to establish the procedure for allocation of state budget funds to
cover the study cost in state-funded student places in cases insofar as the standard study cost
calculated under procedure established by the Government is paid with the state budget funds, also
insofar as the said procedure for allocation of state budget funds to cover the study cost in state-
funded student places is related to allocation of state budget funds to cover the standard study cost
for those schools of higher education to which state-funded student places were distributed, inter
alia by taking account of the choice between schools of higher education made by enrolling persons
who have completed the secondary education programme with the best results.
It has also been mentioned that the model of funding of higher education chosen by the state
must be based upon a balanced assessment of the needs of society and the state and the financial
capabilities of the state, but there must be no such model where the state would clearly be unable to
implement it; the provision “Citizens who are good at their studies shall be guaranteed education at
State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution
does not imply a requirement for the legislator to establish only such a model of funding of higher
education, where all state budget funds meant for schools of higher education would be assigned to
the state budget appropriations allocated individually to every state school of higher education; the
legislator may also choose such a model, where certain state budget appropriations may be provided
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for higher education in general, inter alia for funding the studies of citizens who are good at their
studies and who are prepared to satisfy the state-established demand for specialists of corresponding
areas (fields); during the budget year, the Government, which is responsible for execution of the
state budget, may distribute these appropriations to schools of higher education under established
procedure, while taking account of inter alia the choice between schools of higher education made
by enrolling persons.
Thus, after the legislator has chosen such a model of funding of higher education, where
inter alia the state budget funds for funding the studies of citizens who are good at their studies and
who are prepared to satisfy the state-established demand for specialists of corresponding areas
(fields) are allocated to state schools of higher education by taking account inter alia of the choice
between schools of higher education made by enrolling persons, it would be impossible to
implement such a model, if it were demanded that these funds be assigned to the state budget
appropriations allocated individually to every state school of higher education. Therefore, there are
no grounds to maintain that such a model of funding of higher education, inasmuch as it is related to
the powers granted to the Government to establish the procedure for allocation of state budget funds
to cover the study cost in state-funded student places, would not be grounded on a balanced
assessment of the needs of society and of the state and that of financial capabilities of the state.
6.6. Taking account of the arguments set forth, one is to draw a conclusion that of Paragraph
11 of Article 70 of the Law on Science and Studies is not in conflict with the provision “Citizens
who are good at their studies shall be guaranteed education at State schools of higher education free
of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state
under the rule of law.
7. The group of Members of the Seimas, a petitioner, has doubted the compliance of
Paragraph 4 of Article 76 of the Law on Science and Studies with Paragraph 3 of Article 41 of the
Constitution and the constitutional principle of a state under the rule of law.
7.1. From the arguments of the petitioner it is clear that it is disputing the compliance of the
provision “In the cases where the study cost fixed by a school of higher education exceeds the
standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph
4 of Article 76 of the Law on Science and Studies with the provision “Citizens who are good at
their studies shall be guaranteed education at State schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the
rule of law.
7.2. Paragraph 4 of Article 76 of the Law on Science and Studies provides:
“The standard study cost of an appropriate study field or a set of study programmes shall be
calculated in accordance with the procedure laid down by the Government, where such study cost
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shall comprise all the expenses specified in Paragraph 3 of this Article. Standard study costs of
students admitted to a school of higher education in a corresponding year shall be each year
approved by the Ministry of Education and Science before 15 January. In the cases where the study
cost fixed by a school of higher education does not exceed the standard study cost, the study cost set
by a school of higher education shall be paid with the state budget funds. In the cases where the
study cost fixed by a school of higher education exceeds the standard study cost, the standard study
cost shall be paid with the state budget funds.”
7.3. The provision “In the cases where the study cost fixed by a school of higher education
exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of
Paragraph 4 of Article 76 of the Law on Science and Studies is related to other provisions of this
article.
7.3.1. Under Paragraph 1 of Article 76 of the Law on Science and Studies, the study cost
shall be fixed by a school of higher education. Thus, also in the situations where a person studies in
a state-funded student place, the cost of his studies is established by the school of higher education.
It needs to be noted that the study cost in higher education institutions shall be fixed taking
into consideration the studies-related expenses specified in Paragraph 3 of Article 76 (Paragraph 2
of Article 76 of the Law on Science and Studies). These expenses include the funds necessary for
carrying out studies, i.e. for wages and salaries of teaching staff members, research staff members
and other employees related to studies, to purchase goods and services related to studies and to give
incentives to students.
7.3.2. It also needs to be noted that, under Paragraph 4 of Article 76 of the Law on Science
and Studies, the standard study cost of an appropriate study field or a set of study programmes is
calculated in accordance with the procedure laid down by the Government, where such study cost
shall comprise all the expenses specified in Paragraph 3 of this article, i.e. funds necessary for
carrying out studies (i.e. for wages and salaries of teaching staff members, research staff members
and other employees related to studies, to purchase goods and services related to studies, to give
incentives to students).
Thus, the notion “standard study cost” employed in the provision (disputed by the petitioner)
of Paragraph 4 of Article 76 of the Law on Science and Studies is to be construed as meaning also
such cost which is in conformity with the sum of the funds necessary to carry out the studies in an
appropriate study field or a set of study programmes.
Paragraph 4 of Article 76 of the Law on Science and Studies provides that the state budget
funds shall cover the study cost of the persons studying in state-funded student places, which is
fixed by a school of higher education, in case this cost does not exceed the standard study cost, or
the state budget funds shall cover the standard study cost, in case the study cost fixed by a school of
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higher education exceeds the standard study cost.
7.3.3. The provision “In the cases where the study cost fixed by a school of higher education
exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of
Paragraph 4 of Article 76 of the Law on Science and Studies is to be construed together with the
provision of Paragraph 5 of the same article whereby persons who study in state-funded student
places of state schools of higher education shall not have to pay to a school of higher education any
fees related to the implementation of a study programme, with the exception of the cases referred to
in Paragraph 2 of Article 72 of this law. The aforesaid Paragraph 2 of Article 72 provides that the
persons who study according to informal education programmes and the persons who repeatedly
study individual subjects of a study programme shall pay for studies the study costs proportionate to
the volume of a subject (modules).
Thus, under the overall legal regulation established in Article 76 of the Law on Science and
Studies, even in the cases where the study cost established by a school of higher education exceeds
the standard study cost and it is only the standard study cost is covered with state budget funds, the
state school of higher education may not establish any fees to be paid by persons studying in state-
funded student places in order to cover the difference between the study cost established by the
school of higher education and the standard study cost.
7.4. The doubts of the petitioner regarding the compliance of the provision “In the cases
where the study cost fixed by a school of higher education exceeds the standard study cost, the
standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76 of the
Law on Science and Studies with the Constitution are substantiated by the provision of the official
constitutional doctrine whereby higher education tuition of citizens who are students at state higher
schools and demonstrate good academic results cannot be imposed on these persons themselves in
whatever form.
7.5. It has been mentioned that the petitioner is disputing the compliance of the provision
“In the cases where the study cost fixed by a school of higher education exceeds the standard study
cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76
of the Law on Science and Studies inter alia with the provision “Citizens who are good at their
studies shall be guaranteed education at State schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution.
7.5.1. In its ruling of 14 January 2002 and decision of 18 December 2009, the Constitutional
Court held that the constitutional provision that citizens who demonstrate good academic results
shall be guaranteed education free of charge in state higher schools means that a citizen who
demonstrated good academic results has the right that his education in a state higher school be
financed by the state.
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It needs to be noted that, pursuant to Paragraph 3 of Article 41 of the Constitution, higher
education tuition of citizens who are students at state higher schools and demonstrate good
academic results cannot be imposed on these persons themselves in whatever form; higher
education of citizens who are students at state higher schools and demonstrate good academic
results is financed by the state (Constitutional Court ruling of 14 January 2002 and decision of 18
December 2009).
7.5.2. In this context it needs to be mentioned that, in its ruling of 20 March 2008, the
Constitutional Court noted that planning of funds for state schools of higher education in the budget
is inseparable from reasonable and fair computation of expenses of studies, i.e. the computation of
how much funds are necessary for arranging of good quality studies in those schools of higher
education and maintenance of the proper level of scientific activity; the expenses of studies (also
those in state schools of higher education) are determined by various factors; in different schools of
higher education the expenses of studies even of the same area (field) and of the same quality can
be different; the state, while taking account of the position of schools of higher education, enjoys
the powers to establish the composition of expenses of studies in state schools of higher education;
by means of state legal acts rational, clear, transparent and reasonable criteria may and must be
established, which would allow state schools of higher education to compute realistic expenses of
studies conducted in them according to areas (fields), cycles, and forms of studies, so that financing
of these studies from the state budget would correspond to its purpose, i.e. that it would permit to
secure good quality preparation of specialists of various areas (fields).
It needs to be emphasised that the powers to establish the said costs of studies are enjoyed
by state schools of higher education; these costs must be rationally reasoned, they may not create
any preconditions to violate the constitutional principle of accessibility of higher education
according to one’s abilities, the imperatives (entrenched in the Constitution) of social harmony and
justice, they may not increase the social gulf; from the viewpoint of the Constitution, it would be
unjustifiable to establish such costs for studies, which would create preconditions to cover also such
expenses by means of studying persons, which are not necessary so that corresponding persons who
pay for their studies would acquire good quality higher education, i.e. which are not necessary for
arrangement of good quality studies in those schools of higher education and maintenance of the
proper level of scientific activity (Constitutional Court ruling of 20 March 2008).
7.5.3. In the context of the constitutional justice case at issue it needs to be noted that the
computed realistic expenses of studies are an important guideline in establishing the cost of studies,
which has to be paid by the persons who were not admitted to the places, the number of which
announced in advance corresponds to the established obligation of the state to finance the
preparation of a certain number of specialists, but were admitted to studies in a corresponding state
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school of higher education at their own expense.
It needs to be emphasised that there are no legal arguments which would allow to maintain
that, purportedly, the cost that must be paid by such students for their studies, must in all cases be
the same as the cost that has to be paid by the persons, who are prepared by satisfying the need
(established by the state) for specialists of various areas (fields), if their learning does not
correspond to the criteria of good learning established by law (Constitutional Court ruling of 20
March 2008).
Thus, there are no legal arguments permitting to maintain that the study costs to be paid by
the persons studying in non-state-funded student places may not be different from the study costs of
the persons studying in state-funded student places.
7.6. It has been mentioned that, pursuant to Paragraph 3 of Article 41 of the Constitution,
higher education tuition of citizens who are students at state higher schools and demonstrate good
academic results cannot be imposed on these persons themselves in whatever form.
It has also been mentioned that, under the overall legal regulation established in Article 76
of the Law on Science and Studies, even in the cases where the study cost established by a school of
higher education exceeds the standard study cost and it is only the standard study cost that is
covered with state budget funds, the state school of higher education may not establish any fees to
be paid by persons studying in state-funded student places in order to cover the difference between
the study cost established by the school of higher education and the standard study cost.
7.7. Also, there are no grounds to maintain that the standard study cost provided for in
Article 76 of the Law on Science and Studies, which is paid to the school of higher education with
state funds in cases where the study cost fixed by a school of higher education exceeds the standard
study cost, is calculated on the grounds of irrational, unclear, non-transparent and unreasonable
criteria.
7.8. Taking account of the arguments set forth, one is to draw a conclusion that the provision
“In the cases where the study cost fixed by a school of higher education exceeds the standard study
cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76
of the Law on Science and Studies is not in conflict with the provision “Citizens who are good at
their studies shall be guaranteed education at State schools of higher education free of charge” of
Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the
rule of law.
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1. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the
Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the
Republic, act (or part thereof) of the Government may not be applied from the day of official
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promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is
in conflict with the Constitution.
2. The fact that it has been held in this ruling of the Constitutional Court that the overall
legal regulation laid down in Paragraph 2 of Article 20 of the Law on Science and Studies, under
which the council of a state school of higher education, in the formation of which the academic
community has no decisive influence and which is not an institution implementing self-governance
of the school of higher education, is assigned the functions typical of self-governance of schools of
higher education, is in conflict with the autonomy of schools of higher education entrenched in
Paragraph 3 of Article 40 of the Constitution, does not in any way mean that only upon these
grounds one may question the decisions, inter alia the principal decisions concerning the use of
financial funds and other assets for the purpose of implementing the mission of the school of higher
education and decisions related to appointment of a rector (director) to office, made by the councils
of state schools of higher education that were formed pursuant to the legal regulation established in
the Law on Science and Studies prior to the official publishing of this ruling of the Constitutional
Court.
The fact that it has been held in this ruling of the Constitutional Court that Paragraph 3 of
Article 20 of the Law on Science and Studies is not in conflict with the Constitution means that the
councils of state schools of higher education formed according to the procedure established in
Paragraph 3 of Article 20 of the Law on Science and Studies may continue to discharge their
functions entrenched in those provisions of Paragraph 2 of Article 20 of this law, which were not
recognised as being in conflict with the Constitution.
3. In the constitutional justice case at issue it has been held that Paragraph 5 of Article 95 of
the Law on Science and Studies, insofar as it is established therein that the powers of the bodies of
governance, elected or formed before the entry into force of this law, of a state school of higher
education, whose legal form is a budgetary establishment, are terminated on 31 December 2011, if
such powers have not expired on other grounds established in this paragraph, also insofar as it
provides that, upon the entry into force of the Law on Science and Studies, the rector (director) of a
state school of higher education shall be elected (appointed) only by that council of the state school
of higher education which has been set up in accordance with the procedure laid down by this law,
and where there is no such council, the powers of the rector (director) of the state school of higher
education shall be extended until the election of a new rector (director) of the state higher education
institution, but not longer than for six month, is in conflict with Paragraph 3 of Article 40 of the
Constitution and the constitutional principle of a state under the rule of law.
In view of the aforesaid, the governance bodies (inter alia rectors (directors)) of state
schools of higher education elected or formed prior to the entry into force of this law, even if they
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were reorganised into public establishments within the time period established in Paragraph 8 of
Article 93 of the Law on Science and Studies, may continue to discharge their functions (inasmuch
as the said functions are in line with the Constitution, inter alia with the autonomy of schools of
higher education guaranteed in Paragraph 3 of Article 40 thereof) until the end of the term of office
for which they were formed or appointed, when new corresponding governance bodies will be
formed or appointed pursuant to laws and other legal acts not conflicting with the Constitution.
4. After the official publishing of this Constitutional Court ruling, from the day of its official
publishing, the provisions of the articles (paragraphs and items thereof) of the Law on Science and
Studies which have been recognised to be in conflict with the Constitution by this Constitutional
Court ruling may not be applied. Thus, there will be a certain vacuum in the legal regulation related
inter alia to governance of state schools of higher education.
It is clear that such a situation is permissible only for a very short time; a duty arises for the
legislator to fill the existing vacuum in the legal regulation, otherwise the governance of state
schools of higher education can be disturbed.
The aforesaid vacuum in the legal regulation may be removed completely only after the
Seimas makes corresponding amendments of and/or supplements to the Law on Science and
Studies, while heeding the autonomy of schools of higher education guaranteed in Paragraph 3 of
Article 40 of the Constitution and heeding other provisions of the Constitution (inter alia by taking
account of the construction thereof presented in this ruling of the Constitutional Court and other
acts of the Constitutional Court). Should more time be necessary, the Seimas has a duty to establish,
by law, a provisional legal regulation whereby, while taking account of the construction of
Paragraph 3 of Article 40 of the Constitution presented in this ruling of the Constitutional Court, the
basics of the organisational and governance structure of schools of higher education would be
established by laws.
5. Paragraph 1 of Article 6 of the Constitution prescribes that the Constitution is an integral
and directly applicable act.
Under Paragraph 3 of Article 40 of the Constitution, schools of higher education enjoy a
special status—autonomy is guaranteed to them. One of essential conditions for implementation of
the autonomy of schools of higher education is self-governance of schools of higher education,
which is implemented through self-governance institutions directly formed by academic
communities and due to this these institutions represent the said academic communities directly,
also, this autonomy is implemented through other institutions, discharging the functions of
governance of schools of higher education, formed or appointed by the aforesaid self-governance
institutions. As it has been mentioned more than once in this ruling of the Constitutional Court, the
autonomy of the school of higher education is conceived inter alia as the right to independently
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determine and establish in the regulations or statute the organisational and governance structure,
relations with other partners, the procedure of research and studies, study programmes and the
procedure of student enrolment, to solve other related questions; the procedure for forming the
institutions implementing self-governance of schools of higher education should not be the one that
would not enable the academic community of the school of higher education to influence adoption
of decisions on administration of the school of higher education. Thus, from Paragraph 3 of Article
40 of the Constitution emerges inter alia the right of collegial institutions, directly representing
academic communities of schools of higher education and implementing their self-governance, to
independently decide on strategic and other most important questions of governance of schools of
higher education.
Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and
Articles 1, 53, 54, 55, 56 and 69 of the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following
ruling:
1. To recognise that the provision “The Lithuanian policy on science and studies guarantees
<...> conditions for the best of them to do scientific work” of the Preamble to the Republic of
Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios,
2009, No. 54-2140, 61, 101), the provision “A state school of higher education shall be a public
legal person functioning as a public establishment, possessing the autonomy guaranteed by the
Constitution of the Republic of Lithuania, and the special status defined by this and other laws” of
Paragraph 4 of Article 6, Paragraph 1 of Article 8 inasmuch as it is established therein that the name
of a school of higher education of the university type must contain the word “university” or
“academy”, or “seminary”, Paragraph 3 of Article 8, Paragraph 3 of Article 9, Item 4 of Paragraph 1
of Article 11, Paragraph 2 of Article 17, Paragraph 3 of Article 20, Article 39, the provision “On
completion of theological study programmes of the second cycle persons may, after consultation
with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2
of Article 48 to the extent that it prescribes that a degree of licentiate in theology may be awarded
after consultation with the Catholic Church hierarchy, Paragraph 4 of Article 53, Paragraph 3 of
Article 66, Paragraphs 5 and 11 of Article 70, provision “In the cases where the study cost fixed by
a school of higher education exceeds the standard study cost, the standard study cost shall be paid
with the state budget funds” of Paragraph 4 of Article 76, Paragraphs 2 and 8 of Article 93,
Paragraph 5 of Article 94 insofar as it is established therein that the criterion of learning well is the
average of the evaluation of study subjects within a semester is not less than eight on a ten-point
grading scale in accordance with the system of evaluation of study results approved by the
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Government or an institution authorised by it, and Paragraphs 1, 2, 3 of Article 96 of the same law
are not in conflict with the Constitution of the Republic of Lithuania.
2. To recognise that Item 2 of Paragraph 3 of Article 7 of the Republic of Lithuania Law on
Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it does not establish a duty of non-state schools of higher education
to account to society for the use of funds of the state budget allocated to them is in conflict with
Paragraph 1 of Article 29 and Paragraph 2 of Article 128 of the Constitution of the Republic of
Lithuania.
3. To recognise that Item 2 of Paragraph 2 of Article 11 of the Republic of Lithuania Law on
Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) the extent that it does not establish a duty of non-state scientific research institutes to
account to society for the use of funds of the state budget allocated to them is in conflict with
Paragraph 1 of Article 29 and Paragraph 2 of Article 128 of the Constitution of the Republic of
Lithuania.
4. To recognise that Paragraph 1 of Article 19 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101) to the extent that it consolidates the council as a collegial governance body of a state university
is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
5. To recognise that Paragraph 2 of Article 19 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101) to the extent that it consolidates the council as a collegial governance body of a state college is
in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
6. To recognise that Paragraph 1 of Article 20 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania
and the constitutional principle of a state under the rule of law.
7. To recognise that Item 1 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on
Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
8. To recognise that Item 2 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on
Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
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Lithuania and the constitutional principle of a state under the rule of law.
9. To recognise that Item 3 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on
Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it provides that the council of a state school of higher education
approves plans for reorganisation of the structure of the school of higher education presented by the
rector (director) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
10. To recognise that Item 4 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it provides that the council of a state school of higher education
sets the procedure for managing, using and disposing of funds (also funds allocated for work
remuneration of the school’s leadership and other employees) and assets of the school of higher
education and approves key decisions related thereto is in conflict with Paragraph 3 of Article 40 of
the Constitution of the Republic of Lithuania and the constitutional principle of a state under the
rule of law.
11. To recognise that Item 5 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
12. To recognise that Item 6 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
13. To recognise that Item 7 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
14. To recognise that Item 8 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
15. To recognise that Item 9 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it provides that the council of a state school of higher education
approves an annual statement of revenue and expenditure of the school of higher education and a
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report on the execution of this statement presented by the rector (director) is in conflict with
Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law.
16. To recognise that Item 10 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it provides that the council of a state school of higher education
approves an annual report on the activities of the school of higher education presented by the rector
(director) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
17. To recognise that Item 13 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
18. To recognise that Item 15 of Paragraph 2 of Article 20 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it provides that the council of a state school of higher education
performs other functions of governance of the school of higher education prescribed in its statute
and other legal acts is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic
of Lithuania and the constitutional principle of a state under the rule of law.
19. To recognise that Paragraph 1 of Article 21 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101), to the extent that, after the legislator has chosen such a model of governance structure of a
state school of higher education under which the senate (academic council) is a collegial
governance body which directly represents the academic community and is the sole such body
implementing self-government of that community, this paragraph provides that the senate
(academic council) of a state school of higher education is a governance body of only academic
affairs, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania
and the constitutional principle of a state under the rule of law.
20. To recognise that Paragraph 2 of Article 21 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101), to the extent that, after the legislator has chosen such a model of governance structure of a
state school of higher education under which the senate (academic council) is a collegial
governance body which directly represents the academic community and is the sole such body
implementing self-government of that community, this paragraph does not establish that the senate
of a state university adopts key strategic and other most important decisions of governance of the
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university, inter alia the most important decisions concerning the use of financial funds and other
assets for the purpose of implementing the mission of the school of higher education, is in conflict
with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
21. To recognise that Item 1 of Paragraph 2 of Article 21 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance
structure of a state school of higher education under which the senate (academic council) is a
collegial governance body which directly represents the academic community and is the sole such
body implementing self-government of that community, this item prescribes that the senate of a
state university presents proposals to the rector regarding the funding of programmes of studies,
scientific research and experimental (cultural, social) development, art programmes, and
reorganisation of the university structure, which is necessary for implementation of those
programmes, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
22. To recognise that Item 4 of Paragraph 2 of Article 21 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance
structure of a state school of higher education under which the senate (academic council) is a
collegial governance body which directly represents the academic community and is the sole such
body implementing self-government of that community, this item prescribes that the senate of a
state university, while approving the qualification requirements for positions of teaching staff
members and scientific staff members and laying down the procedure for performance evaluation of
teaching staff members and scientific staff members and for organisation of a competition to fill a
position, must observe the principles for selection and assessment of university employees set by
the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
23. To recognise that Paragraph 3 of Article 21 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101), to the extent that, after the legislator has chosen such a model of governance structure of a
state school of higher education under which the senate (academic council) is a collegial
governance body which directly represents the academic community and is the sole such body
implementing self-government of that community, this paragraph does not establish that the
academic council of a state college adopts key strategic and other most important decisions of
governance of the college, inter alia the most important decisions concerning the use of financial
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funds and other assets for the purpose of implementing the mission of the school of higher
education, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
24. To recognise that Item 1 of Paragraph 3 of Article 21 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance
structure of a state school of higher education under which the senate (academic council) is a
collegial governance body which directly represents the academic community and is the sole such
body implementing self-government of that community, this item prescribes that the academic
council of a state college presents proposals to the director regarding the funding of study
programmes and reorganisation of the college structure, which is necessary for implementation of
those programmes, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic
of Lithuania and the constitutional principle of a state under the rule of law.
25. To recognise that Item 4 of Paragraph 3 of Article 21 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance
structure of a state school of higher education under which the senate (academic council) is a
collegial governance body which directly represents the academic community and is the sole such
body implementing self-government of that community, this item prescribes that the academic
council of a state college, while approving the qualification requirements for positions of teaching
staff members and scientific staff members and laying down the procedure for performance
evaluation of teaching staff members and scientific staff members and for organisation of a
competition to fill a position, must observe the principles for selection and assessment of college
employees set by the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the
Republic of Lithuania and the constitutional principle of a state under the rule of law.
26. To recognise that Item 5 of Paragraph 2 of Article 22 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher
education submits to the council for approval the study cost and the rates of fees that are not directly
related to the implementation of a study programme is in conflict with Paragraph 3 of Article 40 of
the Constitution of the Republic of Lithuania and the constitutional principle of a state under the
rule of law.
27. To recognise that Item 7 of Paragraph 2 of Article 22 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher
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education submits to the council for approval an annual statement of revenue and expenditure of the
school of higher education and a report on the execution of this statement is in conflict with
Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law.
28. To recognise that Item 8 of Paragraph 2 of Article 22 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher
education acquaints the senate (academic council) with an annual report on the activities of the
school of higher education is in conflict with Paragraph 3 of Article 40 of the Constitution of the
Republic of Lithuania and the constitutional principle of a state under the rule of law.
29. To recognise that Item 9 of Paragraph 2 of Article 22 of the Republic of Lithuania Law
on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-
2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the rule of law.
30. To recognise that Paragraph 3 of Article 22 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania
and the constitutional principle of a state under the rule of law.
31. To recognise that Paragraph 4 of Article 22 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania
and the constitutional principle of a state under the rule of law.
32. To recognise that Paragraph 7 of Article 22 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania
and the constitutional principle of a state under the rule of law.
33. To recognise that Paragraph 9 of Article 22 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101), to the extent that it provides that the rector (director) may be dismissed from office in
accordance with the procedure laid down by legal acts if an annual report on the activities of the
school of higher education or an annual report on the execution of the statement of revenue and
expenditure presented by the rector (director) is not approved by a majority of the council members
at a meeting of the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the
Republic of Lithuania and the constitutional principle of a state under the rule of law.
34. To recognise that Paragraph 2 of Article 69 of the Republic of Lithuania Law on Science
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and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101) is in conflict with Paragraph 1 of Article 29, Paragraph 3 of Article 41 of the Constitution of
the Republic of Lithuania and the constitutional principle of a state under the rule of law.
35. To recognise that Paragraph 1 of Article 70 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101), to the extent that this paragraph does not establish, for the Ministry of Education and Science,
any time limit for the preannouncement of the procedure for determining a queue of persons who
have completed a secondary education programme with the best results, which would be sufficient
for the efficient implementation of the constitutional right to education at state schools of higher
education free of charge, also to the extent that this paragraph does not establish a duty for the
Ministry of Education and Science and schools of higher education to coordinate the conditions of
admission to state-funded student places pursuant to study programmes of the first cycle and
integrated study programmes, is in conflict with Paragraph 3 of Article 40, the provision “Citizens
who are good at their studies shall be guaranteed education at state schools of higher education free
of charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
36. To recognise that Paragraph 2 of Article 70 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101), to the extent that it does not establish that, in the course of distribution, among schools of
higher education, of state-funded student places in the study programmes of the first cycle and
integrated studies, one must take account of the capabilities of state schools of higher education to
satisfy the state established demand for specialists of corresponding areas (fields) and that it does
not establish that state-funded student places chosen by persons who have completed the secondary
education programme with the best results may be received by non-state schools of higher
education only in cases when specialists of certain areas (fields) cannot be prepared in state schools
of higher education due to objective circumstances, is in conflict with the provision “Citizens who
are good at their studies shall be guaranteed education at state schools of higher education free of
charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
37. To recognise that Paragraph 7 of Article 70 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101), insofar as it provides for the time period of assessment of the learning results of a person
whose studies of the first cycle or integrated studies are funded by the state in order to establish
whether he continues to meet the criteria of good learning established in this paragraph so that his
studies could further be funded by the state—this time period is two years of studies or half of the
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study programme in case of extended studies, is in conflict with the provision “Citizens who are
good at their studies shall be guaranteed education at state schools of higher education free of
charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
38. To recognise that Paragraph 5 of Article 95 of the Republic of Lithuania Law on Science
and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,
101), insofar as it is established therein that the powers of the bodies of governance, elected or
formed before the entry into force of this law, of a state school of higher education, whose legal
form is a budgetary establishment, are terminated on 31 December 2011, if such powers have not
expired on other grounds established in this paragraph, also insofar as it provides that, upon the
entry into force of the Law on Science and Studies, the rector (director) of a state school of higher
education shall be elected (appointed) only by that council of the state school of higher education
which has been set up in accordance with the procedure laid down by this law, and where there is
no such council, the powers of the rector (director) of the state school of higher education shall be
extended until the election of a new rector (director) of the state higher education institution, but not
longer than for six month, is in conflict with Paragraph 3 of Article 40 of the Constitution of the
Republic of Lithuania and the constitutional principle of a state under the rule of law.
39. To dismiss the part of the case subsequent to the petition of a group of Members of the
Seimas of the Republic of Lithuania, a petitioner, requesting to investigate whether Item 3 of
Paragraph 2 of Article 86, Paragraph 4 of Article 90, Paragraph 3 of Article 91, Paragraphs 4 and 6
of Article 93 and Paragraph 4 of Article 96 of the Republic of Lithuania Law on Science and
Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101)
are not in conflict with the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not subject to appeal.
The ruling is promulgated in the name of the Republic of Lithuania.
Justices of the Constitutional Court: Egidijus Bieliūnas
Toma Birmontienė
Pranas Kuconis
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis
Dainius Žalimas
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