Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Item 5 of Article 1, Parts 3
and 4 of Article 10, Part 1 of Article 15, Article
20, Item 2 of Article 21, Part 2 of Article 32,
Parts 2, 3 and 4 of Article 34, Items 2 and 5 of
Article 35, Item 2 of Article 37 and Items 2 and 3
of Article 38 of the Republic of Lithuania Law on
Education with the Constitution of the Republic of
Lithuania
Vilnius, 13 June 2000
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis,
Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and
Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner Vytenis Povilas
Andriukaitis, Justinas Karosas, Petras Papovas and Gintaras
Šileikis, all they are members of the Seimas of the Republic of
Lithuania,
the representatives of the party concerned Arimantas
Juvencijus Raškinis, a member of the Seimas of the Republic of
Lithuania, and Jadvyga Andriuškevičiūtė, a senior consultant to
the Law Department of the Office of the Seimas of the Republic
of Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 9 May
2000, in its public hearing conducted the investigation of Case
No. 23/98 subsequent to the petition submitted to the Court by
the petitioner-a group of members of the Seimas of the Republic
of Lithuania-requesting to investigate if Item 5 of Article 1,
Parts 3 and 4 of Article 10, Part 1 of Article 15, Article 20,
Item 2 of Article 21, Part 2 of Article 32, Parts 2, 3 and 4 of
Article 34, Items 2 and 5 of Article 35, Item 2 of Article 37
and Items 2 and 3 of Article 38 of the Republic of Lithuania
Law on Education are in conformity with the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
1. On 2 July 1998, the Seimas passed the Republic of
Lithuania Law on the Amendment of the Law on Education
(Official Gazette Valstybės žinios, 1998, No. 67-1940). By
Article 1 thereof the Republic of Lithuania Law on Education
(hereinafter referred to as the Law) was amended and set forth
in a new wording.
2. The petitioner-the group of Seimas members-requests to
investigate the compliance of
Item 5 of Article 1 of the Law with Parts 1, 2 and 3 of
Article 26, Part 1 of Article 40 and Parts 1, 2, 5 and 7 of
Article 43 of the Constitution;
Part 3 of Article 10 of the Law with Part 1 of Article 40,
Part 2 of Article 41, and Parts 1 and 2 of Article 120 of the
Constitution;
Part 4 of Article 10 of the Law with Part 2 of Article 26,
Part 2 of Article 29, Part 1 of Article 40 and Parts 3 and 7 of
Article 43 of the Constitution;
Part 1 of Article 15 of the Law with Part 2 of Article 38,
and Parts 1 and 3 of Article 39 of the Constitution;
Article 20 of the Law with Parts 1, 2, 3 and 5 of Article
26, Part 2 of Article 29, Part 1 of Article 40 and Part 7 of
Article 43 of the Constitution;
Item 2 of Article 21 of the Law with Part 1 of Article 40
of the Constitution;
Part 2 of Article 32 of the Law with Part 1 of Article 25,
Parts 1, 2 and 3 of Article 26 and Part 1 of Article 40 of the
Constitution;
Parts 2 and 3 of Article 34 of the Law with Part 4 of
Article 40 of the Constitution;
Part 4 of Article 34 of the Law with Part 1 of Article 40,
Part 2 of Article 41 and Part 2 of Article 120 of the
Constitution;
Items 2 and 5 of Article 35 of the Law with Part 2 of
Article 120 of the Constitution;
Item 2 of Article 37 and Items 2 and 3 of Article 38 of
the Law with Part 2 of Article 120 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
1. Item 5 of Article 1 of the Law provides that one of the
major goals of the educational system of Lithuania shall be "to
guarantee the same rights and conditions for members of
traditional religions as for all the residents to bring up
their children in educational establishments according to their
convictions".
The petitioner points out that it is established in Parts
1, 2 and 3 of Article 26 of the Constitution that freedom of
thought, conscience, and religion shall not be restricted, that
every person shall have the right to freely choose any religion
or faith and, either individually or with others, in public or
in private, to manifest his or her religion or faith in
worship, observance, practice or teaching, and that no person
may coerce another person or be subject to coercion to adopt or
profess any religion or faith. The petitioner maintains that
thereby the freedom of conscience of individuals is established
and an opportunity for people holding different views to live
in an open and harmonious civil society, as well as
implementation of fundamental human rights and freedoms, is
guaranteed.
Part 7 of Article 43 of the Constitution provides that
there shall not be a state religion in Lithuania, Part 1 of
Article 40 of the Constitution provides that state and local
government establishments of teaching and education shall be
secular; at the request of parents, they shall offer classes in
religious instruction. According to the petitioner, this means
that the educational system of Lithuania is a secular one, it
is open to all views, is based upon humanism, tolerance, and
values of the Lithuanian and world culture.
Under Part 1 of Article 43 of the Constitution, the state
shall recognise traditional Lithuanian churches and religious
organisations, as well as other churches and religious
organisations provided that they have a basis in society and
their teaching and rituals do not contradict morality or the
law. In the opinion of the petitioner, it means that in
Lithuania churches are: 1) traditional churches recognised by
the state; 2) other churches which have a basis in society and
whose teaching and rituals do not contradict morality or the
law. Part 5 of Article 43 of the Constitution provides that the
status of churches and other religious organisations in the
State shall be established by agreement or by law. According to
the petitioner, no church is granted any exceptional rights.
The petitioner points out that by the established legal
regulation in Item 5 of Article 1 of the Law the system of
education is obligated to guarantee the same rights and
conditions as for all the residents only for members of
traditional religions to bring up their children in educational
establishments according to their convictions but not for
members of other religious organisations. Furthermore, such
regulation makes an impression that other (i.e.
non-traditional) religious associations are discriminated. On
the other hand, the system of education is secular. Under Part
1 of Article 40 of the Constitution, it must ensure the right
of parents but not that of religious associations so that at
their request their children be offered classes in religious
instruction. This right of parents is a specific right of an
individual. Meanwhile, Item 5 of Article 1 of the Law provides
for a goal of the educational system to ensure the rights of
religious associations. However, traditional churches and
religious shall function freely according to their canons and
statutes, as well as the laws, and they have the rights of
legal persons (Parts 2, 4 and 5 of Article 43 of the
Constitution). Therefore, according to the petitioner, churches
and religious organisations may not take over the right of
parents, which is guaranteed by the Constitution, so that at
their request their children might be offered classes in
religious instruction.
Taking account of these motives, the petitioner draws a
conclusion that Item 5 of Article 1 of the Law conflicts with
Parts 1, 2 and 3 of Article 26, Part 1 of Article 40 and Parts
1, 2, 5 and 7 of Article 43 of the Constitution.
2. Part 3 of Article 10 of the Law provides that local
government educational establishments providing with
elementary, basic and secondary education shall be founded,
reorganised and closed down by local government councils
subject to a written consent of the Ministry of Education and
Science, while educational establishments providing with
nursery schooling, extra instruction and adult informal
education-subject to a written consent of county governors. The
petitioner considers such legal regulation to be
unconstitutional due to the following reasons.
Article 120 of the Constitution provides that the state
shall support local governments, and that local governments
shall act freely and independently within the limits of their
competence which shall be established by the Constitution and
laws. The petitioner points out that thereby discretion of
local governments is ensured, as well as their right to be
founders of establishments of teaching and education. A matter
of discretion of local governments in the area of education is
kindergartens, elementary schools, various centres of
education, teaching and upbringing of children.
Part 1 of Article 40 and Part 2 of Article 41 of the
Constitution mention state and local government establishments
of teaching and education. The petitioner maintains that it is
not by accident that the notion "state" is used in the
Constitution: it proves the existence of discretion of local
governments in the area of education.
The petitioner also maintains that the limits set down in
Part 3 of Article 10 of the Law may be established for the
implementation of the competence delegated by the state but not
for that of discretion of local governments, meanwhile the
established legal regulation restricts the discretion of local
governments.
Taking account of these motives, the petitioner concludes
that Part 3 of Article 10 of the Law conflicts with Part 1 of
Article 40, Part 2 of Article 41 and Parts 1 and 2 of Article
120 of the Constitution.
3. Part 4 of Article 10 of the Law provides: "Educational
establishments may be founded on the basis of an agreement of
several co-founders. At the request of parents, on the basis of
an agreement, state or local government educational
establishments (classes, groups) may be co-founded with a
state-recognised traditional religious association on the
initiative of the said association, local government council or
a state institution. The procedure of foundation,
reorganisation or closing down of these educational
establishments, coordinated with state-recognised traditional
religious associations, shall be established by the Government
or its authorised institution."
Part 7 of Article 43 of the Constitution provides that
there shall not be a state religion in Lithuania. Part 3
thereof stipulates that churches and religious organisations
shall freely proclaim the teaching of their faith, perform the
rituals of their belief, and have houses of prayer, charity
institutions, and educational institutions for the training of
priests of their faith, while Part 5 thereof provides that the
status of churches and other religious organisations in the
state shall be established by agreement or by law. According to
the petitioner, these constitutional provisions mean that
Lithuania is a secular state. In a secular state the situation
of churches and other religious organisations must be
established by agreement or by law because they are separated
from the state.
It is provided in Part 1 of Article 40 of the Constitution
that state and local government establishments of teaching and
education shall be secular; at the request of parents, they
shall offer classes in religious instruction. According to the
petitioner, in a democratic state, where churches and religious
organisations are separated from the state, the educational
system is open for people holding various views. Taxpayers are
of various religious and secular views, and secular schools are
maintained by the funds of all these persons. If part of state
funds were allocated to joint state and traditional church or
religious association educational establishments, then the
feelings of the taxpayers who confess non-traditional religions
are who do not confess any religion would definitely be hurt.
Besides, the Preamble to the Constitution contains the strife
of the People for an open, just, and harmonious civil society
and law-governed state. Therefore there is not any conscious
attempt in the Constitution to provide that churches and
religious organisations may, together with the state, found
confessional or secular establishments of teaching and
education for children under 16 years of age. It is provided in
Part 2 of Article 40 of the Constitution that non-governmental
teaching and educational institutions may be established
according to the procedure established by law. Part 6 of
Article 10 of the Law also guarantees the right to legal and
natural persons to establish non-governmental educational
establishments. The petitioner is of the opinion that
non-governmental teaching and educational establishments may
also be confessional.
Part 2 of Article 26 of the Constitution provides that
every person shall have the right to freely choose any religion
or faith and, either individually or with others, in public or
in private, to manifest his or her religion or faith in
worship, observance, practice or teaching. Due to this, in the
opinion of the petitioner, classes in religious instruction may
be provided only at the request of parents but never at the
request of churches or religious organisations.
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 (Part 2 of Article 29 of the
Constitution). Meanwhile, under Part 4 of Article 10 of the
Law, the right to found state or local government educational
establishments (classes, groups) on the basis of an agreement
is granted only to state-recognised traditional religious
associations. In Lithuania other religious associations and
organisations operate as well and they have support in society,
however, they are not granted such a right. Thus the Law grants
a privilege to traditional religious associations.
Taking account of these motives, the petitioner draws a
conclusion that Part 4 of Article 10 of the Law conflicts with
Part 2 of Article 26, Part 2 of Article 29, Part 1 of Article
40 and Parts 3, 5 and 7 of Article 43 of the Constitution.
4. Part 1 of Article 15 of the Law provides that
instruction at state and local government pre-school
establishments (with the exception of child care institutions)
as well as establishments of additional education shall be paid
in part.
Part 2 of Article 38 of the Constitution provides that
family, motherhood, fatherhood, and childhood shall be under
the care and protection of the state. Part 1 of Article 39 of
the Constitution provides that the state shall take care of
families bringing up children at home, and shall render them
support in the manner established by law, Part 3 thereof
provides that children who are under age shall be protected by
law, while Part 2 of Article 41 stipulates that education at
state and local government schools of general education,
vocational schools, and schools of further education shall be
free of charge. On the grounds of the said constitutional
provisions, the petitioner asserts that education for persons
who are under 16 years of age must be free of charge. Education
starts at pre-school establishments. Upbringing of children is
a constituent part of education. In case a child is brought up
and educated at home, he is given support. Taking care of and
protecting childhood, the state, which must guarantee that
education at state and local government schools of general
education, vocational schools and schools of further education
be free of charge, also must guarantee that pre-school
education be free of charge. In the opinion of the petitioner,
it does not mean that in state or local government pre-school
establishments may not be any services to be paid for in part.
It is education that must be free of charge.
Taking account of these motives the petitioner draws a
conclusion that Part 1 of Article 15 of the Law conflicts with
Part 2 of Article 38 and Parts 1 and 3 of Article 39 of the
Constitution.
5. Part 1 of Article 20 of the Law provides that at the
request of parents (legal guardians), individuals authorised by
church dignitaries shall give religious instruction (of the
confessions recognised by the state as traditional) at state
and local government educational establishments. Part 2 of the
same article prescribes that children under state and local
government care shall be given religious instruction conforming
to the traditional religion professed by their family or
relatives.
Parts 1, 2 and 5 of Article 26 of the Constitution
establish the freedom of thought, conscience and religion, the
right of every person to freely choose any religion or faith
and, either individually or with others, in public or in
private, to manifest his or her religion or faith in worship,
observance, practice or teaching, and the right of parents and
legal guardians to take care in an unrestricted manner of the
religious and moral education of their children in conformity
with their own convictions. The petitioner is of the opinion
that due to this Part 1 of Article 40 of the Constitution
establishes the right of parents so that at their request state
and local government establishments of teaching and education
would offer classes in religious instruction. Part 3 of Article
26 of the Constitution provides that no person may coerce
another person or be subject to coercion to adopt or profess
any religion or faith, while Part 2 of Article 29 of the
Constitution stipulates 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. Part 1 of
Article 40 of the Constitution reads: "State and local
government establishments of teaching and education shall be
secular. At the request of parents, they shall offer classes in
religious instruction." Part 7 of Article 43 of the
Constitution stipulates that there shall not be a state
religion in Lithuania. According to the petitioner, the
aforesaid provisions guarantee equal rights to all persons to
give religious instruction to their children according to the
religion professed by their family, while the religions of
traditional religious communities or associations are not
singled out.
In the opinion of the petitioner, by the legal regulation
established in Parts 1 and 2 of Article 20 of the Law, unequal
conditions are created for children from non-traditional
religious communities or parents professing non-traditional
faiths, as under the Law, at the request of parents children
are given religious instruction regarding the matters of faith
of traditional confessions only. By such legal regulation the
rights of citizens professing other faiths are violated.
Taking account of the motives set forth, the petitioner
draws a conclusion that Parts 1 and 2 of Article 20 of the Law
conflict with Parts 1, 2, 3 and 5 of Article 26, Part 2 of
Article 29, Part 1 of Article 40 and Part 7 of Article 43 of
the Constitution.
6. Part 3 of Article 20 of the Law provides: "For those
who do not attend classes of religious instruction, that time
shall be given over to the teaching of ethics."
Part 7 of Article 43 of the Constitution provides that
there shall not be a state religion in Lithuania. Besides,
under Part 1 of Article 40 of the Constitution, religious
instruction is not compulsory but given at the request of
parents.
The petitioner is of the opinion that the teaching of
ethics instead of religious classes as provided for in Part 3
of Article 20 of the Law presupposes a view that in Lithuania
instruction of faiths of traditional confessions is compulsory
in secular schools. As under the Constitution, religion
instruction is given not on a compulsory basis but at the
request of parents, thus it may not be included into compulsory
syllabi of instruction of secular schools.
The petitioner also points out that instruction of ethics
may not be an alternative to the compulsory religious
instruction. If ethics is included into compulsory syllabi of
instruction of secular schools, its classes must be attended by
all pupils irrespective of the fact whether they attend
religious classes or not.
Taking account of these motives, as well as those
concerning Parts 1 and 2 of Article 20 of the Law, the
petitioner draws a conclusion that Part 3 of Article 20 of the
Law conflicts with Parts 1, 2, 3 and 5 of Article 26, Part 2 of
Article 29, Part 1 of Article 40 and Part 7 of Article 43 of
the Constitution.
7. Part 4 of Article 20 of the Law provides that in the
educational establishments of two co-founders (the state or
local government and a state-recognised traditional religious
association), at the request of parents (or legal guardians),
instead of religious classes pupils may attend ethics classes
or those of religion of other traditional confessions. The
petitioner maintains that such legal regulation conflicts with
the Constitution for the same reasons due to which, in his
opinion, Parts 1, 2 and 3 of Article 20 of the Law are
unconstitutional.
The petitioner concludes that Part 4 of Article 20 of the
Law conflicts with Parts 1, 2, 3 and 5 of Article 26, Part 2 of
Article 29, Part 1 of Article 40 and Part 7 of Article 43 of
the Constitution.
8. Item 2 of Article 21 of the Law provides that pupils
shall have the right from the age of 15 to take an independent
decision on whether they are going to take religious
instruction.
State and local government establishments of teaching and
education are secular. They, at the request of parents, offer
classes in religious instruction (Part 1 of Article 40 of the
Constitution). The petitioner is of the opinion that in case of
the absence of parents' request, in a secular school pupils may
not be demanded to decide on, nor their right or obligation may
be established concerning their religious instruction.
Taking account of this motive, the petitioner draws a
conclusion that Item 2 of Article 21 of the Law conflicts with
Part 1 of Article 40 of the Constitution.
9. Part 2 of Article 32 of the Law provides that the
regulations of state and local government educational
establishments which are co-founded with state-recognised
traditional religious associations must be approved by both
co-founders, that for the staff of educational establishment
the religious association shall set the requirements of world
outlook formation as well as requirements for the staff of this
establishment connected with education, and that the
certification of the heads of the educational establishments
and teachers shall be organised by both co-founders (according
to their competence).
Part 1 of Article 25, Parts 1, 2 and 3 of Article 26 and
Part 1 of Article 40 of the Constitution guarantee the freedom
of conscience of individuals and secularity of schools. In the
opinion of the petitioner, the legal regulation established in
Part 2 of Article 32 of the Law conflicts with the freedom of
conscience of individuals and secularity of schools.
Taking account of these motives, the petitioner draws a
conclusion that Part 2 of Article 32 of the Law conflicts with
Part 1 of Article 25, Parts 1, 2 and 3 of Article 26 and Part 1
of Article 40 of the Constitution.
10. Part 2 of Article 34 of the Law provides that the
activities of educational establishments shall be supervised by
their co-founders under the procedure set down by the Common
Regulations for Supervision of Educational Establishments. Part
3 of the same article provides that the implementation of
general policy of education shall be supervised by the Ministry
of Education and Science and county governors according to the
regulations approved by the Ministry of Education and Science.
Part 4 of Article 40 of the Constitution provides: "The
State shall supervise the activities of establishments of
teaching and education." In the opinion of the petitioner, it
means that the state supervises not only implementation of
general policy of education but also all activities of
establishments of teaching and education.
Under Part 3 of Article 34 of the Law, the State
Inspectorate of Education is commissioned with supervision of
general policy of education. On the other hand, founders of
educational establishments may be the state, local governments,
and other natural or legal persons. Therefore, in the opinion
of the petitioner, the founders may not supervise the
activities of educational establishments.
Taking account of these motives, the petitioner draws a
conclusion that Parts 2 and 3 of Article 34 of the Law conflict
with Part 4 of Article 40 of the Constitution.
11. Part 4 of Article 34 of the Law provides: "In cases
when the Education Inspectorate of the Administration of the
County Governor establishes that a local government does not
discharge the functions of education attributed to it by laws,
that it does not ensure the necessary conditions for the
activities of the educational establishment that is within its
jurisdiction, the county governor shall draw up a proposal for
the representative of the Government in the county regarding
transfer of the functions of the founder of the educational
establishment to the administration of the county governor.
Resolution concerning transfer of the functions of the founder
of the educational establishment to the county shall be adopted
by the Government."
Part 1 of Article 40 of the Constitution points out "state
and local government establishments of teaching and education",
Part 2 of Article 41-"state and local government schools of
general education, vocational schools and schools of further
education". Part 2 of Article 120 of the Constitution provides
that local governments shall act freely and independently
within the limits of their competence which shall be
established by the Constitution and laws. This constitutional
provision establishes independence of local governments.
The petitioner points out that foundation of local
government establishments of education and teaching is to be
attributed to the discretion of local governments. Part 4 of
Article 34 of the Law delegates the right to the Government to
deprive the local government of the functions of the founder
and transfer them to the administration of the county governor.
The fact that it is possible that the state supervises
activities of local government establishments of education and
teaching, and that it is possible to impose administrative
penalties on them does not mean, however, that it is permitted
to deprive local governments of the right to be founders of
these establishments.
Taking account of these motives, the petitioner draws a
conclusion that Part 4 of Article 34 of the Law conflicts with
Part 1 of Article 40, Part 2 of Article 41 and Part 2 of
Article 120 of the Constitution.
12. The petitioner points out that Items 2 and 5 of
Article 35 of the Law provide that the Ministry of Education
and Science shall approve the foundation, reorganisation and
closing down of educational establishments and coordinate the
activity of subdivisions of education of administrations of
local governments. Meanwhile, it is established in Part 2 of
Article 120 of the Constitution that local governments shall
act freely and independently within the limits of their
competence which shall be established by the Constitution and
laws. The petitioner is of the opinion that it means that no
additional approval of their decisions is necessary. Under Part
4 of Article 119 of the Constitution, local government councils
shall form executive bodies which are accountable to them for
the direct implementation of the laws of the Republic of
Lithuania and the decisions of the Government and the local
government council. Thus, according to the petitioner,
independent decisions of local government councils are
implemented directly by executive bodies which are accountable
to them.
Taking account of these motives, the petitioner draws a
conclusion that Items 2 and 5 of Article 35 of the Law conflict
with Part 2 of Article 120 of the Constitution.
13. Article 37 of the Law defines the competence of the
county governor, while Article 38-the competence of local
governments in the area of education. Item 2 of Article 37 of
the Law provides that the county governor "shall give an
approval in writing to the foundation, reorganisation and
closure of non-governmental and local government pre-school,
additional education and informal adult educational
establishments", Item 2 of Article 38 of the Law stipulates
that the local government shall, "upon a written consent of the
county governor, found, reorganise and close down pre-school
educational establishments, educational establishments of
additional education and adult informal educational
establishments" and that it shall "appoint and dismiss heads of
those educational establishments"; Item 3 of Article 38
provides that the local government shall "upon a written
consent of the Ministry of Education and Science, found,
reorganise and close down elementary, basic and secondary
schools of general education of all types", "appoint and
dismiss heads of those educational establishments".
According to the petitioner, for the same reasons due to
which the discretion of local governments is violated by Items
2 and 5 of Article 35 of the Law, the same could be said about
Item 2 of Article 37 and Items 2 and 3 of Article 38 of the
Law.
Taking account of these motives, the petitioner draws a
conclusion that Item 2 of Article 37 and Items 2 and 3 of
Article 38 of the Law conflict with Part 2 of Article 120 of
the Constitution.
14. In the course of the preparation of the case for the
court hearing, additional explanations of the representatives
of the petitioner V. P. Andriukaitis, J. Karosas, and P.
Papovas were also received.
III
In the course of the preparation of the case for judicial
investigation, the representatives of the party concerned A. J.
Raškinis and J. Andriuškevičiūtė presented their written
explanations regarding the arguments of the petitioner.
1. In the course of the investigation of the compliance
with the Constitution of the disputed provisions of the Law
challenged in the petition of the petitioner, which regulate
religious instruction and participation of state-recognised
traditional religious communities and associations in founding
state and local government educational establishments, one has
to take into consideration the Republic of Lithuania Law on
Religious Communities and Associations.
2. Part 1 of Article 43 of the Constitution provides that
the state shall recognise traditional Lithuanian churches and
religious organisations, as well as other churches and
religious organisations provided that they have a basis in
society and their teaching and rituals do not contradict
morality or the law. Article 5 of the Law on Religious
Communities and Associations provides that the state recognises
nine traditional religious communities and associations
existing in Lithuania, which comprise part of the historical,
spiritual and social heritage of Lithuania.
It is provided in Article 9 of the Law on Religious
Communities and Associations that religion of traditional and
other state-recognised religious communities and associations
may be taught in state educational establishments upon request
by parents (legal guardians, care-takers), and that the
procedure of religious instruction in state establishments of
teaching and education is regulated by laws on education.
It is established in the Preamble to the Law on Education
that this law shall establish the foundations governing the
structure, activities and management of educational
establishments (with the exception of the establishments of
higher education) of the Republic of Lithuania. Under Article 2
of the Law, the educational system shall comprise pre-school
education, general education of children and young people,
vocational and further education, higher education, and
education of adults provided at the educational establishments
of the following type: establishments of pre-school education,
schools of general education, vocational schools, enterprises,
schools of further education, establishments of higher
education, establishments of additional and informal education.
In the opinion of the representatives of the party concerned,
it means that the educational system is comprised not only of
state and local government establishments of teaching and
education but also other establishments of upbringing, teaching
and education which operate under procedure established by law.
Item 5 of Article 1 of the disputed Law provides that one of
the major goals of the educational system of Lithuania shall be
to guarantee the same rights and conditions for members of
traditional religions as for all the residents to bring up
their children in educational establishments according to their
convictions.
The representatives of the party concerned maintain that
the Constitution does not mention the educational system, hence
its secularity either. The notion of secularity is to be
interpreted as something not belonging to the clergy. A secular
state is one where state institutions are not connected with
any religious authority, however it cooperates with religious
communities and takes account of their views; it is also
different from an atheistic state (where it is attempted to
remove any influence of religion on public life), and from a
neutral state (where representatives of religions are
prohibited to exert any influence on public life, but there is
no fight against religion), as well as from a state where one
national religion is favoured (in such a state the chief
officials belong to the national religion, the state maintains
houses of prayer and religious institutions, in state schools
religious festivals and religious instruction are compulsory).
In the opinion of the representatives of the party
concerned, construing the provisions of Articles 26, 29 and 38
of the Constitution in a systematic manner, one may presuppose
that the state, ensuring care and protection of families and
guaranteeing the right of parents to take care of religious and
moral education of their children in an unrestricted manner, is
obligated to ensure that parents who are indifferentists or
holding certain religious beliefs might make use of equal
support of the state. In a secular school the state must
guarantee actual pluralism of convictions, create equal
preconditions of parents who are indifferentists or holding
certain religious convictions to make use of equal support of
the state in educating their children according to their world
outlook.
When the Constitution defines the relation between the
state and religion, traditional churches and religious
organisations are singled out from among the others. Under Part
5 of Article 43 of the Constitution, the status of churches and
other religious organisations in the state shall be established
by agreement or by law. Disputed Item 5 of Article 1 of the Law
mentions the guarantee of the same rights and conditions for
members of traditional religious associations as for all the
other residents. The representatives of the party concerned are
of the opinion that the Law does not contain any norms
restricting the freedom of thought, religion or conscience,
while the provisions of the Law defining participation of
traditional churches and religious organisations in founding
educational establishments and in their activities are not in
conflict with the Constitution but merely delimit
implementation of the provisions of the Constitution.
3. Under Part 4 of Article 10 of the Law, at the request
of parents, on the basis of an agreement, state or local
government educational establishments (classes, groups) may be
co-founded with a state-recognised traditional religious
association on the initiative of the said association, the
local government council or a state institution. The way of the
implementation of parents' request to provide their children
with religious education is not established in the
Constitution. Therefore the disputed provision particularises
the right of parents entrenched in the Constitution and does
not hinder parents professing religions which have support in
society to request that their children be given religious
instruction.
4. Under Part 4 of Article 20 of the Law, in the
educational establishments of two co-founders (the state or
local government and a state-recognised traditional religious
association), at the request of parents, instead of classes on
religion pupils may attend ethics classes or those on other
traditional religion. Thereby equal opportunities are created
for pupils both attending classes on religion and not attending
them to gain additional knowledge.
5. In the opinion of the representatives of the party
concerned, Item 2 of Article 21 of the Law providing for the
right of pupils who are of 15 years of age to decide
independently on their religious instruction is to be assessed
as their right to decide by themselves whether to attend
religious classes irrespective of the will of their parents.
This provision was formulated while taking account of Articles
13 and 14 of the Republic of Lithuania Civil Code under which
minors who reached 15 years of age may independently exercise
some of their rights. A pupil of 15 years of age may not only
stop attending religious classes but also start attending them.
The establishment of such a right is in conformity with Part 1
of Article 40 of the Constitution.
6. The provisions of the Law regulating the procedure of
founding state and local government educational establishments
and the powers of the Ministry of Education and Science and the
county governor to found these establishments and supervise
their activity are construed by the representatives of the
party concerned on the basis of the legal regulation
established in the Republic of Lithuania Law on Local
Self-Government and on the Governing of the County, the
doctrine of the Constitutional Court and the provisions of the
European Charter of Local Self-Government.
7. The representatives of the party concerned emphasise
that under Article 2 of the Law on Local Self-Government,
self-government shall be implemented on the basis of principle
of coordination of the interests of the local government and
the state. They also draw one's attention to the fact that in
its ruling of 18 February 1998 the Constitutional Court held
that "self-government presupposes certain freedom and autonomy
of activities, as well as independence from state authority
institutions. Such freedom, however, is not limitless, while
the autonomy does not mean that one may ignore state interests.
Therefore the principle of coordination of interests of local
governments and those of the state is of utmost importance.
There are cases when this is expressed by the state supporting
local governments in all ways and forms, or when joint actions
are coordinated when significant social objectives are being
sought, or when the state supervises local government
activities in the form prescribed by the law". Further the
Constitutional Court ruling points out that "in the countries
of continental law system the administrative supervision of
self-government activities have been formed and are dominating.
It means that local governments are supervised by the executive
power of the state, i.e. its certain institutions". The
representatives of the party concerned conclude that the
provision of Part 3 of Article 10 of the Law that local
government educational establishments providing with elementary
and secondary education shall be founded, reorganised and
closed down by local government councils subject to a written
consent of the Ministry of Education and Science, while
educational establishments providing with nursery schooling,
extra instruction and adult informal education-subject to a
written consent of county governors, is in compliance with the
Constitution.
The representatives of the party concerned point out that
under Item 1 of Article 5 of the law on the Governing of the
County, one of the tasks of the county governor is to implement
state policy in the sphere of education, while under Item 3 of
Article 7 of the same law, the county governor supervises the
implementation of state general education, cultural and social
policy. Economic conditions, transport infrastructure, as well
as other objective reasons, make one search for ways to decide
the issues of foundation and use of educational establishments.
The procedure of foundation of educational establishments
provided for in the Law permits to coordinate and harmonise
actions of several local governments in deciding whether a
certain educational establishment is necessary. In the course
of coordination of the interests of local governments and the
state, opportunities are created to implement a certain state
policy and to bring educational services closer to the people.
8. Substantiating the compliance with the Constitution of
the disputed provisions of the Law regulating the powers of the
Ministry of Education and Science and the county governor to
supervise state and local government educational
establishments, the representatives of the party concerned have
presented the following arguments.
Part 4 of Article 40 of the Constitution provides: "The
State shall supervise the activities of establishments of
teaching and education." This constitutional provision mentions
only one of the functions of the state and is repeated in Part
1 of Article 34 of the Law. On the grounds of the
Constitutional Court ruling of 18 February 1998, the
representatives of the party concerned maintain that local
administration is fulfilment of state administration (i.e. the
executive power) functions in particular localities, i.e.
respective administrative units. The functions of the local
administration are, as a rule, performed by officials appointed
by the central authority or institutions formed by the said
officials which generally act in the name or on the
instructions (authorisation) of the central authority. It was
necessary to provide for in the Law as to what state
institution is to supervise the activity of establishments of
teaching and education. Disputed Part 3 of Article 34 of the
Law commissioned the Ministry of Education and Science and
county governors to supervise the implementation of the state
education policy according to the regulations approved by the
Ministry of Education and Science. Thus the function of local
administration is implemented by supervising state policy
carried out in particular localities.
9. In the opinion of the representatives of the party
concerned, Part 2 of Article 34 of the Law is also in
conformity with the Constitution. The founder of an educational
establishment must ensure that curricula be carried out, take
care of the educational establishment, allocate funds to it. It
would not be able to discharge these functions if he did not
have the right to supervise the activity of this establishment.
The founders of educational establishments organise and
supervise the activities of educational establishments under
the procedure provided in the common regulations for
supervision of educational establishments.
10. The representatives of the party concerned maintain
that Part 4 of Article 34 of the Law grants the right to the
Government to transfer the functions of the founder of an
educational establishment to the administration of the county
governor only in exceptional cases pointed out in the Law, i.e.
when the local government does not discharge the functions of
education attributed to it by laws, and when it does not ensure
the necessary conditions for the activity of the educational
establishment that is under its jurisdiction. Such regulation
creates preconditions to ensure continuity of the teaching
process so that in cases when the functions of education were
not carried out, the process of teaching would not suffer.
11. Concerning the compliance of the disputed provisions
of Items 2 and 5 of Article 35 of the Law with Part 2 of
Article 120 of the Constitution, the representatives of the
party concerned present the following counter-arguments. The
petitioner, challenging the conformity of the said provisions
with the Constitution, bases himself on the statement of Part 2
of Article 120 of the Constitution that local governments shall
"act freely and independently", but he disregards the fact that
under the Constitution local governments shall act "within the
limits of their competence which shall be established by the
Constitution and laws". The representatives of the party
concerned note that, according to the European Charter of Local
Self-Government, institutions of local self-government enjoy as
many rights and powers as it is established in laws.
12. Concerning the compliance of Part 1 of Article 15 of
the Law with Part 2 of Article 38, Part 1 of Article 39 and
Part 2 of Article 41 of the Constitution, the representatives
of the party concerned present the following counter-arguments.
Part 1 of Article 15 of the Law provides that instruction
at state and local government pre-school establishments (with
the exception of child care institutions) as well as
establishments of additional education shall be paid in part.
Under the Law, parents cover only part of the expenses. The
representatives of the party concerned draw one's attention to
the fact that the petitioners also agree that in state or local
government pre-school establishments services to be paid for in
part may be rendered, and that they recognise that the state
has not financial opportunities to guarantee pre-school
education free of charge yet.
The representatives of the party concerned contend that
Part 1 of Article 15 of the Law indicates one of the ways of
support of families by the state: the state covers expenses of
state and local government pre-school establishments in part.
Besides, Part 1 of Article 39 of the Constitution provides that
the state shall take care of families bringing up children at
home, and shall render them support in the manner established
by law, but it does not mention pre-school educational
establishments.
Part 2 of Article 41 of the Constitution enumerates
educational establishments where education must be guaranteed
free of charge. They are: state and local government schools of
general education, state and local government vocational and
further education schools. Pre-school establishments are not
mentioned therein.
13. On the grounds of the arguments set forth, the
representatives of the party concerned maintain that not a
single provision disputed by the petitioner conflicts with the
Constitution.
14. To his arguments the representative of the party
concerned A. J. Raškinis also adjoined papers of the
Association of Teachers of Lithuanian Catholic Schools and the
Association of Lithuanian Catholic Parents.
IV
In the course of the preparation of the case for the court
hearing, explanation concerning the arguments of the petitioner
were received from the Seimas Education, Science and Culture
Committee, the Ministry of Education and Science, the
Catechetics Department of Pedagogical Faculty of Klaipėda
University, the Lithuanian Catholic Academy of Science, the
Constitutional Law Department of the Public Administration
Faculty of the Law Academy of Lithuania, the Pedagogical
Institute, the Pedagogics Department of the Pedagogical Faculty
of Šiauliai University, the Catholic Faith Department of the
Faculty of History of Vilnius Pedagogical University, the
Pedagogics Department of Vilnius Pedagogical University, the
Dean's Office of the Faculty of Catholic Theology of the
University of Vytautas the Great. There are appendices to the
paper of the Seimas Education, Science and Culture
Committee-"Constitutionality of Amendments of the Law on
Education" by the Seimas member A. J. Raškinis and the
statement of 3 March 1998 of the Conference of Bishops of
Lithuania, and there are individual opinions of Assoc. Prof. M.
Barkauskaitė, Assoc. Prof. E. Martišauskienė and the assistant
I. Uždavinienė adjoined to the paper of the Pedagogics
Department of Vilnius Pedagogical University.
In the course of the preparation of the case for the court
hearing, the explanations concerning the arguments of the
petitioners were received from the institutions.
The explanations concerning the arguments of the
petitioner were also received from Assoc. Prof. Dr. G.
Babachinaitė, the Head of the Criminology Department of the Law
Faculty of the Law Academy of Lithuania, Assoc. Prof. Dr. A.
Bučinskas, the Dean of the Faculty of Social Sciences of
Klaipėda University, Dr. K. Dubnikas who is a senior assistant
at the Department of Logic and History of Philosophy of the
Faculty of Philosophy of Vilnius University, Dr. A. Gazarianas,
Director of the Research Centre for Investigation of Problems
of Self-government, Prof. Habil. Dr. L. Jovaiša, Assoc. Prof.
Dr. A. Kulakauskas who works at the Institute of International
Relations and Political Science of Vilnius University, Habil.
Dr. M. Lukšienė, Assoc. Prof. Dr. G. Mažeikis, the Head of the
Department of Philosophy of the Humanities Faculty of Šiauliai
University, A. Navickas, a lecturer at the Centre for Studies
and Research of Religion at Vilnius University, P. Plumpa, an
advisor to the Division of Culture, Education and Science of
the Office of the Government of the Republic of Lithuania for
questions of religions, Prof. d. h. c. T. Remeikis, Assoc.
Prof. Dr. K. Stoškus who works at the Faculty of Philosophy of
Vilnius University, Assoc. Prof. Dr. L. Šabajevaitė who works
at the Department of Political Science of the Faculty of
Philosophy of Vilnius University, Habil. Dr. V. Zaborskaitė,
and Assoc. Prof. Dr. R. Želvys, the Head of the Education
Department of the Faculty of Philosophy of Vilnius University.
V
In the court hearing the representatives of the petitioner
and those of the party concerned virtually reiterated the
arguments set down in writing.
The Constitutional Court
holds that:
I
On the compliance of Item 5 of Article 1 of the Law with
Parts 1, 2, and 3 of Article 26, Part 1 of Article 40 and Parts
1, 2, 5 and 7 of Article 43 of the Constitution.
1. Article 1 of the Law provides:
"The major goals of the educational system shall be:
<...> 5) to guarantee the same rights and conditions for
members of traditional religions as for all the residents to
bring up their children in educational establishments according
to their convictions."
2. The Constitution shall be an integral and directly
applicable statute (Part 1 of Article 6 of the Constitution).
It is impossible to interpret the norms set forth in the
articles (parts thereof) of the Constitution which were pointed
out by the petitioner by keeping them separate from other norms
of the Constitution. The constitutional norms regulating the
relations between the state and the churches and religious
organisations in the sphere of education are set down in
various articles (parts thereof) of the Constitution. The
systematic method of construction will also be applied in the
course of the investigation of the compliance of Item 5 of
Article 1 of the Law which was disputed by the petitioner with
the articles (parts thereof) of the Constitution which were
pointed out by the petitioner.
It also needs to be noted that the Constitutional Court,
after it has decided that the disputed act (part thereof)
conflicts with the articles (parts thereof) of the Constitution
which have not been pointed out by the petitioner, is empowered
to state so.
3. Article 26 of the Constitution provides:
"Freedom of thought, conscience, and religion shall not be
restricted.
Every person shall have the right to freely choose any
religion or faith and, either individually or with others, in
public or in private, to manifest his or her religion or faith
in worship, observance, practice or teaching.
No person may coerce another person or be subject to
coercion to adopt or profess any religion or faith.
A person's freedom to profess and propagate his or her
religion or faith may be subject only to those limitations
prescribed by law and only when such restrictions are necessary
to protect the safety of society, public order, a person's
health or morals, or the fundamental rights and freedoms of
others.
Parents and legal guardians shall not be restricted in
matters of taking care of the religious and moral education of
their children in conformity with their own convictions."
Article 40 of the Constitution provides:
"State and local government establishments of teaching and
education shall be secular. At the request of parents, they
shall offer classes in religious instruction.
Non-governmental teaching and educational institutions may
be established according to the procedure established by law.
Institutions of higher learning shall be granted autonomy.
The State shall supervise the activities of establishments
of teaching and education."
Article 43 of the Constitution provides:
"The State shall recognise traditional Lithuanian churches
and religious organisations, as well as other churches and
religious organisations provided that they have a basis in
society and their teaching and rituals do not contradict
morality or the law.
Churches and religious organisations recognised by the
State shall have the rights of legal persons.
Churches and religious organisations shall freely proclaim
the teaching of their faith, perform the rituals of their
belief, and have houses of prayer, charity institutions, and
educational institutions for the training of priests of their
faith.
Churches and religious organisations shall function freely
according to their canons and statutes.
The status of churches and other religious organisations
in the State shall be established by agreement or by law.
The teachings proclaimed by churches and other religious
organisations, other religious activities, and houses of prayer
may not be used for purposes which contradict the Constitution
and the law.
There shall not be a State religion in Lithuania."
4. One of fundamental freedoms of individuals is
entrenched in Part 1 of Article 26 of the Constitution: freedom
of thought, conscience and religion shall not be restricted.
This freedom guarantees an opportunity for people holding
various views to live in an open, just and harmonious civil
society. Not only is this freedom a self-contained value of
democracy but also an important guarantee that the other
constitutional human rights and freedoms would be implemented
in an all-sufficient manner.
Interpreting the provisions of Article 26 of the
Constitution in a systematic manner, one is to note that the
freedom of thought, conscience and religion is inseparable from
the other human rights and freedoms entrenched in the
Constitution: the right to have one's own convictions and
freely express them, freedom to seek, obtain and disseminate
information and ideas (Parts 1 and 2 of Article 25), the right
to freely form societies and associations, the right not to be
subjected to belong to any society or association by force
(Parts 1 and 2 of Article 35), the right of parents to bring up
their children to be honest individuals and loyal citizens
(Part 6 of Article 38), the freedom of culture, science,
research and teaching (Part 1 of Article 42), as well as the
other human rights and freedoms enshrined in the Constitution.
The freedom of thought, conscience and religion is also
inseparable from the principles established in the
Constitution: the equality of persons, prohibition to grant
privileges, non-discrimination (Parts 1 and 2 of Article 29),
recognition by the state of marriages registered in church
(Part 4 of Article 38), secularity of state and local
government establishments of teaching and education (Part 1 of
Article 40), recognition by the state of traditional Lithuanian
churches and religious organisations and other churches and
religious organisations provided that they conform to the
criteria provided for in the Constitution (Part 1 of Article
43), freedom of religious activity (Part 3 of Article 43),
freedom of internal functioning of churches and religious
organisations (Part 4 of Article 43), absence of a state
religion (Part 7 of Article 43). The aforesaid freedom is also
inseparable from the universal constitutional principle of the
law-governed state and the strife for an open, just, and
harmonious civil society as well as other constitutional
principles.
5. By its content Article 26 of the Constitution is linked
with the freedom of convictions and their expression
established in Article 25 of the Constitution and the common
criteria of restriction on the use of the rights and freedoms
by persons as established in Articles 27 and 28 of the
Constitution.
According to its content, in democratic states under the
rule of law the freedom of thought, conscience and religion is
recognised as a more particular expression of a broader human
freedom to have one's convictions and freely express them.
Convictions are a broad and diverse constitutional notion,
including political, economic convictions, religious feelings,
cultural disposition, ethical and esthetical views etc.
The freedom to have convictions means that an individual
is free to form his own convictions, to choose world-view
values, he is protected from any coercion, it is not permitted
to exert control on his convictions. The duty of state
institutions is to ensure and protect this freedom of
individuals. The content of convictions is a private matter of
the individual.
The right of free expression of convictions is inseparable
from the freedom to have them. The freedom of expression of
convictions is an opportunity to express one's thoughts, views
and convictions orally, in writing, in symbols and other ways
and means of dissemination of information in an unhampered
manner. Alongside, the freedom of expression of convictions
includes the freedom not to disclose one's convictions and not
be subjected to disclose them by force.
The freedom of convictions and their expression
establishes ideological, cultural and political pluralism. No
views or ideology may be promulgated as mandatory and thrust on
an individual, i.e. the person who freely forms and expresses
his own views and who is a member of an open, democratic, civil
society. This is an inborn human freedom. The state must be
neutral in matters of convictions, it does not have any right
to establish a mandatory system of views.
The freedom to have convictions may not be restricted in
any way, while the freedom to express convictions may be
restricted under the procedure provided for by the law and only
in cases when it is necessary to protect the values pointed out
in Part 3 of Article 25 of the Constitution, i.e., the health,
honour and dignity, private life and morals of the person, or
the constitutional order. The freedom of expression of
convictions may also be temporarily restricted during martial
law or a state of emergency (Article 145 of the Constitution).
The validity of restrictions of a fundamental right or freedom
should be assessed by the criteria of common sense and those of
evident necessity, it must be in compliance with the concept
and requirements of justice and the possibilities and
conditions of its restriction established in the Constitution
(Constitutional Court ruling of 13 February 1997). Any
restriction of fundamental rights and freedoms is to be linked
with the rational relation guaranteeing that by the limitations
the essence of respective human right be not violated.
The freedom of thought, conscience and religion becomes a
matter of legal regulation only to the extent that an
individual expresses his thoughts or religion in his actions.
As long as he has a religion or faith, this is an inviolable
sphere of his private life. This state may not be restricted in
any way (Constitutional Court conclusion of 24 January 1995).
In this respect the freedom of religion is an absolute freedom
of individuals. The right of an individual not to disclose his
approach concerning matters of faith or non-believing is
uncontested either.
It is from this aspect that the formula "freedom shall not
be restricted" employed in Part 1 of Article 26 of the
Constitution is particularised in Parts 2, 3 and 4 of the same
article. The state has a duty to ensure that no one encroach
upon the spiritual matters of an individual, i.e., that no one
impair his inborn right to choose a religion acceptable to him
or not to choose any, to change his chosen religion or abandon
it. The state may not establish mandatory requirements that a
person indicate his faith or his approach as regards matters of
religion. On the other hand, the state has a duty to ensure
that a believer or a non-believer, either alone or with others,
make use of the freedom of thought, conscience and religion
guaranteed to him in a way that the rights and freedoms of
other persons would not be violated: under Article 28 of the
Constitution, while exercising their rights and freedoms,
persons must observe the Constitution and the laws, and must
not impair the rights and freedoms of other people, while it is
stipulated in Article 27 of the Constitution that a person's
convictions, professed religion or faith may justify neither
the commission of a crime nor the violation of law.
In Part 2 of Article 25 of the Constitution an important
condition for the freedom of convictions and their expression
is established: individuals must not be hindered from seeking,
obtaining, or disseminating information or ideas. On the other
hand, the provision of Part 3 of Article 26 of the Constitution
that no person may coerce another person or be subject to
coercion to adopt or profess any religion or faith, means that
no religious or materialistic ideas may be forced on an
individual against his will. The right of parents to take care
of the religious education of their children and wards in
conformity with their own convictions as guaranteed in Part 5
of Article 25 of the Constitution is not to be held as such
constraint. Under Part 2 of Article 26 of the Constitution, an
individual is free to choose the religion or faith which is
acceptable to the person who chooses it, alongside, he has the
right not to choose any religion or faith.
6. It is established in Part 1 of Article 43 of the
Constitution, that the state shall recognise traditional
Lithuanian churches and religious organisations, as well as
other churches and religious organisations provided that they
have a basis in society and their teaching and rituals do not
contradict morality or the law.
The constitutional provision that the state shall
recognise traditional Lithuanian churches and religious
organisations presupposes the fact that the legislator may, in
certain cases, name certain religious organisations as
traditional in Lithuania. Naming of churches and religious
organisations as traditional is a special way of their
recognition by the state.
The constitutional establishment of the institute of
recognition of churches and religious organisations as
traditional means that such recognition by the state is
irrevocable. Tradition is neither created nor abolished by an
act of the will of the legislator. Naming of churches and
religious organisations as traditional is not an act of their
establishment as traditional organisations but an act stating
both their tradition and the status of their relations with
society,which does not depend on the willpower of the legislator.
Such an act reflects the development and the situation of the
religious culture in society. It needs to be noted that the
provision of Part 1 of Article 43 of the Constitution
providing for the presence of traditional Lithuanian churches
and religious organisations is the constitutional basis upon
which a different status of traditional churches and
organisations may be established if compared with other
churches and religious organisations. It means that, without
limiting the rights guaranteed for all churches and religious
organisations, additional rights for traditional churches and
religious organisations may also be ensured by law which are
not enjoyed by the churches and organisations which are not
traditional.
7. Part 7 of Article 43 of the Constitution establishes
the principle of the absence of a state religion in Lithuania.
This constitutional norm and the norm providing that there are
traditional churches and religious organisations in Lithuania,
mean that the tradition of religion is not to be identified
with its belonging to the state system: churches and religious
organisations do not interfere with the activity of the state,
its institutions and that of its officials, they do not form
state policy, while the state does not interfere with the
internal affairs of churches and religious organisations; they
function freely according to their canons and statutes (Part 4
of Article 43 of the Constitution).
Construing the norm set down in Part 7 of Article 43 of
the Constitution that there shall not be a state religion in
Lithuania, that of Part 4 of the same article that churches and
religious organisations shall function freely according to
their canons and statutes, that of Part 1 of Article 40 that
state and local government 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 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. This principle, along with the freedom of
convictions, thought, religion and conscience which is
established in the Constitution, together with the
constitutional principle of equality of all persons and the
other constitutional provisions, determine neutrality of the
state in matters of world view and religion.
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. It needs to be noted that
the neutrality and secularity of the state may not serve as the
grounds to discriminate the believers, to restrict their rights
and freedoms. Secularity of the state also presupposes
non-interference with the internal life of churches and
religious organisations by the state.
8. Part 1 of Article 40 of the Constitution provides that
state and local government establishments of teaching and
education shall be secular. This constitutional provision
presupposes 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
formula "secular" employed in Article 40 of the Constitution
means that the Constitution establishes a presumption that
teaching in state and local government establishments of
teaching and education should be of secular content.
9. Part 1 of Article 40 of the Constitution provides that
at the request of parents, state and local government
establishments of teaching and education shall offer classes in
religious instruction. This provision presupposes that: 1)
religious instruction is given at the request of parents
(taking account of the norm of Part 5 of Article 26 of the
Constitution, such a request may also be expressed by the legal
guardians of a child); 2) state and local government
establishments of teaching and education have a duty to
guarantee that, in case there is the request of parents,
classes in religious instruction be offered; 3) religious
instruction must be organised in such a way that secularity of
state and local government establishments of teaching and
education would not be denied.
The requirement of Part 1 of Article 40 of the
Constitution to offer classes in religious instruction at the
request of parents expresses the principle of positive
declaration. It is the constitutional right of parents to
express a request that their children be given religious
instruction, also by indicating as to what particular religion
is requested to be taught.
10. As mentioned, the goal for the educational system is
established in Item 5 of Article 5 of the Law "to guarantee the
same rights and conditions for members of traditional religions
as for all the residents to bring up their children in
educational establishments according to their convictions". In
the opinion of the petitioner, Item 5 of Article 1 of the Law
conflicts with Parts 1, 2 and 3 of Article 26 of the
Constitution.
By the legal regulation established in disputed Item 5 of
Article 1 of the Law, the right of members of traditional
religious associations to bring up their children in
educational establishments according to their convictions is
emphasised.
To bring up their children, to take care of their
religious and moral education according to their convictions is
the constitutional right of all parents. According to the
disputed norm, the parents who belong to traditional religious
associations are not granted any additional rights which the
other parents do not possess. It is established therein that
the same rights and conditions must be crated for these parents
to bring up their children in educational establishments
according to their convictions as for all the other residents.
The norm of Item 5 of Article 1 of the Law neither
regulates nor assesses the contents of religious doctrines, it
does not restrict the inborn human right to choose a religion
or faith or to abandon it, to profess it, either individually
or with others, in private or in public, to manifest his
religion or faith in worship, observance, practice or teaching.
Nor does the legal regulation established in the disputed norm
create legal preconditions to coerce any person or be subject
to coercion to adopt or profess any religion or faith.
As by Item 5 of Article 1 of the Law not any additional
rights in the educational system are established to parents
belonging to traditional religious associations which are not
enjoyed by other parents, thus there are not any grounds to
assert that the opportunities of parents to implement the
inborn freedom of thought, religion and conscience depend on
whether they belong to traditional religious associations.
On the grounds of the arguments set forth one is to
conclude that Item 5 of Article 1 of the Law is in compliance
with Parts 1, 2 and 3 of Article 26 of the Constitution.
11. According to the petitioner, Item 5 of Article 1 of
the Law conflicts with Part 1 of Article 40 of the Constitution
wherein it is established that state and local government
establishments of teaching and education shall be secular and
that at the request of parents, they shall offer classes in
religious instruction.
It has been held in this Constitutional Court ruling, that
in the disputed legal norm not any additional rights in the
educational system are established to parents belonging to
traditional religious associations which are not enjoyed by
other parents. It needs to be noted that by the disputed legal
regulation the secular character of state and local government
establishments of teaching and education is not changed.
On the grounds of the arguments set forth, it is to be
concluded that Item 5 of Article 1 of the Law is in compliance
with Part 1 of Article 40 of the Constitution.
12. In the opinion of the petitioner, disputed Item 5 of
Article 1 of the Law conflicts with Part 1 of Article 43 of the
Constitution wherein it is established that the State shall
recognise traditional Lithuanian churches and religious
organisations, as well as other churches and religious
organisations provided that they have a basis in society and
their teaching and rituals do not contradict morality or the
law.
As held in this ruling, singling out of members of
traditional religious associations in the disputed norm is in
compliance with Parts 1, 2 and 3 of Article 26 of the
Constitution. On the grounds of the same arguments it is to be
concluded that Item 5 of Article 1 of the Law is also in
compliance with Part 1 of Article 43 of the Constitution.
13. According to the petitioner, Item 5 of Article 1 of
the Law conflicts with Part 2 of Article 43 of the Constitution
establishing that churches and religious organisations
recognised by the State shall have the rights of legal persons.
It needs to be noted that the disputed norm does not
regulate the relations linked with acquisition, possession or
loss of the rights of a legal person. Item 5 of Article 1 of
the Law regulates relations of different nature, i.e. those
linked with education of children of traditional religious
associations and those of all residents in educational
establishments according to their convictions.
On the grounds of the arguments set forth it is to be
concluded that Item 5 of Article 1 of the Law is in compliance
with Part 2 of Article 43 of the Constitution.
14. The petitioner is of the opinion that Item 5 of
Article 1 of the Law conflicts with Part 5 of Article 43 of the
Constitution establishing that the status of churches and other
religious organisations in the state shall be established by
agreement or by law.
The disputed norm does not regulate the relations linked
with conclusion, implementation or termination of agreements
between the state and the churches or other religious
organisations, it does not deny the right of churches or
religious organisations to conclude such agreements, or to
establish their status in the state by agreement or by law.
On the grounds of the arguments set forth it is to be
concluded that Item 5 of Article 1 of the Law is in compliance
with Part 5 of Article 43 of the Constitution.
15. In the opinion of the petitioner, Item 5 of Article 1
of the Law conflicts with Part 7 of Article 43 of the
Constitution establishing that there shall not be a state
religion in Lithuania.
In the disputed norm of Item 5 of Article 1 of the Law not
any religion is named as a state religion. The mere fact that
the Law singles out traditional religious associations does not
mean that corresponding religions are state religions.
On the grounds of the arguments set forth one is to
conclude that Item 5 of Article 1 of the Law is in compliance
with Part 7 of Article 43 of the Constitution.
II
On the compliance of Part 4 of Article 10 of the Law with
Part 2 of Article 26, Part 2 of Article 29, Part 1 of Article
40 and Parts 3, 5 and 7 of Article 43 of the Constitution.
1. Part 4 of Article 10 of the Law provides: "Educational
establishments may be founded on the basis of an agreement of
several co-founders. At the request of parents, on the basis of
an agreement, state or local government educational
establishments (classes, groups) may be co-founded with a
state-recognised traditional religion association on the
initiative of the said association, local government council or
a state institution. The procedure of foundation,
reorganisation or closing down of these educational
establishments, coordinated with state-recognised traditional
religious associations, shall be established by the Government
or its authorised institution."
Part 1 of Article 40 of the Constitution provides: "State
and local government establishments of teaching and education
shall be secular. At the request of parents, they shall offer
classes in religious instruction."
One is not to draw a conclusion from the provision of Part
1 of Article 40 of the Constitution providing for the presence
of state and local government establishments of teaching and
education, that several co-founders of state or local
government establishments of teaching and education are
prohibited and that the state and local governments (their
institutions) are not permitted to be one of the co-founders of
such establishments of teaching and education. Under Part 4 of
Article 10 of the Law, the educational establishments that
state or local government institutions found together with
state-recognised traditional religious associations are state
(local government) schools. Under Part 1 of Article 40 of the
Constitution, these jointly founded educational establishments
are secular.
It needs to be noted that by the norm entrenched in Part 1
of Article 40 of the Constitution it is guaranteed that at the
request of parents, state and local government establishments
of teaching and education offer classes in religious
instruction. Part 4 of Article 10 of the Law does not provide
that state and local government establishments of teaching and
education shall not offer classes in religious instruction nor
that religious instruction is given not at the request of
parents.
It is provided in disputed Part 4 of Article 10 of the Law
that at the request of parents, in state or local government
educational establishments classes or groups may be co-founded
with a state-recognised traditional religion association. Under
Part 1 of Article 2 of the Law, classes or groups are not
educational establishments. They are constituent parts of
educational establishments. Classes and groups are not founded
independently of respective educational establishments; their
foundation is a matter of internal organisational work of
establishments of teaching and education. It needs to be noted,
however, that under Part 1 of Article 40 of the Constitution,
state and local government establishments of teaching and
education shall be secular, therefore all their constituent
parts-classes, groups etc.-must be secular as well. These
classes, groups may not be founded or formed in any other way
on the basis of religion, faith or religious instruction.
Otherwise the secular character of state and local government
establishments of teaching and education would be denied and
the constitutional principle of separateness between the state
and the church would be violated. On the grounds of religion,
groups may be formed to receive religious instruction only,
however under the Constitution, on such a basis classes, groups
etc. may not be founded or formed in any other way to receive
instruction in secular subjects in state or local government
establishments of teaching and education. Meanwhile, Part 4 of
Article 10 of the Law to the extent that in state or local
government educational establishments their constituent parts
(classes, groups) may be co-founded with state-recognised
traditional religious associations in order not only to give
religious instruction but also teach secular subjects creates
legal preconditions to change the secular character of state
and local government establishments of teaching and education.
Therefore Part 4 of Article 10 of the Law to the aforesaid
extent conflicts with Part 1 of Article 40 of the Constitution.
Under Part 4 of Article 10 of the Law, the Government or
its authorised institution may establish the procedure of
foundation, reorganisation or closing down of the said
educational establishments (classes, groups) only upon
coordination with state-recognised traditional religious
associations. Thus the implementation of the powers established
by the Law depends on the will of religious organisations, too.
This violates the constitutional principle of separateness of
the state and the church and creates legal preconditions to
change the secular character of state and local government
establishments of teaching and education. Therefore the
provision of Part 4 of Article 10 of the Law "coordinated with
state-recognised traditional religious associations" conflicts
with Part 1 of Article 40 of the Constitution.
3. Part 2 of Article 26 of the Constitution provides:
"Every person shall have the right to freely choose any
religion or faith and, either individually or with others, in
public or in private, to manifest his or her religion or faith
in worship, observance, practice or teaching."
It needs to be noted that by disputed norm of Part 4 of
Article 10 of the Law relations of different kind are
regulated, i.e. those linked with the establishment,
reorganisation or closing down of educational establishments on
the basis of an agreement between the state (local government)
and a state-recognised traditional religion association.
Therefore there are not any grounds to assert that the legal
regulation established in Part 4 of Article 10 of the Law
violates the right of an individual to freely choose any
religion or faith and, either individually or with others, in
public or in private, to manifest his or her religion or faith
in worship, observance, practice or teaching.
On the grounds of these motives, one is to draw a
conclusion that Part 4 of Article 10 of the Law is in
compliance with Part 2 of Article 26 of the Constitution.
4. Part 2 of Article 29 of the Constitution provides: "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."
It needs to be noted that it is permitted to establish
different status for various churches and religious
organisations in the state only pursuant to the criteria which
are pointed out in the Constitution. The provision of Part 1 of
Article 43 of the Constitution that there are traditional
Lithuanian churches and religious organisations is the
constitutional basis upon which one may establish a different
status of traditional churches and religious organisations in
the sate than that of other churches or religious
organisations. Therefore the fact that the right to be one of
the co-founders of state or local government educational
establishments is granted to traditional religious associations
in Part 4 of Article 10 of the Law but this right has not been
granted for other state-recognised churches and religious
organisations does not give grounds to assert that by the
disputed legal regulation the equality of persons established
in Article 29 of the Constitution is violated.
On the grounds of the arguments set forth, one is to
conclude that Part 4 of Article 10 of the Law is in compliance
with Part 2 of Article 29 of the Constitution.
5. Part 3 of Article 43 of the Constitution provides:
"Churches and religious organisations shall freely proclaim the
teaching of their faith, perform the rituals of their belief,
and have houses of prayer, charity institutions, and
educational institutions for the training of priests of their
faith."
It needs to be noted that Part 3 of Article 43 of the
Constitution is designated to guarantee the independence of
churches and religious organisations, to protect them against
interference of state and local government institutions, their
officials and other establishments with the activity of
churches and religious organisations.
The Constitutional Court emphasises that the provisions of
Part 3 of Article 43 of the Constitution may not be construed
as comprising a final list of the rights of churches and
religious organisations. The rights of churches and religious
organisations are also established in other provisions of the
Constitution. The legislator is entitled, without violating the
Constitution, to establish such rights for churches and
religious organisations which are not expressly mentioned in
the Constitution.
Part 4 of Article 10 of the Law regulates relations linked
with foundation of educational establishments (classes, groups)
on the basis of an agreement together with state-recognised
traditional religious associations, as well as relations linked
with the establishment of the procedure for founding of these
establishments (classes, groups). Part 3 of Article 43 of the
Constitution regulates relations of a different nature.
On the grounds of the arguments set forth, it is to be
concluded that Part 4 of Article 10 of the Law is in compliance
with Part 3 of Article 43 of the Constitution.
6. Part 5 of Article 43 of the Constitution provides: "The
status of churches and other religious organisations in the
State shall be established by agreement or by law."
Disputed norm of Part 4 of Article 10 of the Law does not
regulate the relations linked with conclusion, implementation
or termination of agreements between the state and the churches
and other religious organisations, nor does it deny the right
for any churches or other religious organisations to conclude
such agreements or to establish their status in the state by
agreement or by law. Therefore there are no grounds to assert
that Part 4 of Article 10 of the Law conflicts with Part 5 of
Article 43 of the Constitution.
7. Part 7 of Article 43 of the Constitution provides:
"There shall not be a State religion in Lithuania." This
constitutional provision means that it is not permitted to
declare any religion as a state religion by law.
It needs to be noted that the disputed norm of Part 4 of
Article 10 of the Law does not establish any state religion.
The mere fact that traditional religious associations are
singled out from other churches or religious associations does
not mean that one or several religions are granted the status
of a state religion and that thereby the constitutional
principle of absence of a state religion is violated.
On the grounds of the arguments set forth it is to be
concluded that Part 4 of Article 10 of the Law is in compliance
with Part 7 of Article 43 of the Constitution.
III
On the compliance of Part 2 of Article 32 of the Law with
Part 1 of Article 25, Parts 1, 2 and 3 of Article 26 and Part 1
of Article 40 of the Constitution and that of Item 2 of Part 2
of Article 32 of the Law with Part 1 of Article 42 of the
Constitution.
1. Part 2 of Article 32 of the Law provides:
"The regulations of state and local government educational
establishments which are co-founded with state-recognised
traditional religious associations, which must be in conformity
with this Law and other laws, must be approved by both
co-founders. In these regulations of educational establishments
it must be provided that:
1) heads of the educational establishments shall be
appointed and dismissed by respective state and local
government institutions on the recommendation of the religious
association;
2) the religious association shall set the requirements of
world outlook formation and those for the staff of the
educational establishment connected with education;
3) the certification of the heads and teachers of the
educational establishment shall be organised by both
co-founders (according to their competence)."
In the opinion of the petitioner, this part of the said
article conflicts with Part 1 of Article 25, Parts 1, 2 and 3
of Article 26 and Part 1 of Article 40 of the Constitution.
2. Part 1 of Article 25 of the Constitution provides:
"Individuals shall have the right to have their own convictions
and freely express them."
2.1. Under the Constitution, state and local government
establishments of teaching and education are secular. In these
establishments no requirements may be set to the teachers and
other employees which are connected with their convictions.
Neither state or local government 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. The
Constitutional Court emphasises that otherwise the norm of Part
1 of Article 42 of the Constitution whereby culture, science,
research and teaching shall be unrestricted, which was not
pointed out by the petitioner, would also be denied.
It needs to be noted that the formula "the staff of the
educational establishment connected with education" employed in
Item 2 of Part 2 of Article 32 of the Law is worded in such a
way that it might be interpreted as including not only teachers
of religion but also all the rest of the employees of
respective establishments whose functions or activities might
exert influence on pupils' education, i.e. on their teaching,
upbringing, instruction etc.
However, according to the constitutional concept of
convictions and freedom of their expression, an individual is
free to choose world-look values. Thus the disputed norm is
formulated in a legally deficient manner.
The provision of Item 2 of Part 2 of Article 32 of the Law
that the regulations of state and local government educational
establishments which are co-founded with state-recognised
traditional religious associations must provide that the
religious association shall set the requirements of world
outlook formation for the staff of the educational
establishment connected with education presupposes the fact
that the religious community is entitled to interfere with the
convictions of the employees, to exert influence on them, to
find out their view on religion, faith, believing or
non-believing. This is not in line with the constitutional
concept of the freedom of convictions and their expression as
well as the norm of Part 1 of Article 42 of the Constitution
that culture, science, research and teaching shall be
unrestricted.
On the grounds of the motives set forth, one is to
conclude that the provision of Item 2 of Part 2 of Article 32
of the Law conflicts with Part 1 of Article 25 and Part 1 of
Article 42 of the Constitution.
2.2. The provision of Item 1 of Part 2 of Article 32 of
the Law whereby heads of the educational establishments shall
be appointed and dismissed by respective state and local
government institutions on the recommendation of the religious
association presupposes the fact that the said state and local
government institutions provided there is not the
recommendation of the religious association, may not appoint
the head of the educational establishment. It means that
decisions of state and local government institutions are
dependent on the will of traditional churches and religious
organisations. Such a recommendation which is provided for in
the disputed item of the Law is not line with the
constitutional principle of separateness of the state and the
church.
On the grounds of the arguments set forth it is to be
concluded that the provision of Item 1 of Part 2 of Article 32
of the Law providing that in order to appoint and dismiss heads
of state and local government educational establishments a
recommendation of the religious association is necessary
conflicts with Part 1 of Article 25 of the Constitution.
2.3. The compliance of Item 3 of Part 2 of Article 32 of
the Law providing that the certification of the heads and
teachers of the educational establishment shall be organised by
both co-founders (according to their competence) with Part 1 of
Article 25 of the Constitution is also to be investigated,
while taking account of the provision of Item 2 of Part 2 of
Article 32 of the Law that the regulations of state and local
government educational establishments which are co-founded with
state-recognised traditional religious associations must
provide that the religious association shall set the
requirements of world outlook formation and the requirements
for the staff of the educational establishment connected with
education. These requirements are linked with convictions of
the employees of the educational establishment, their view on
respective religion or faith. It has already been held in this
ruling, that the provision of Item 1 of Part 2 of Article 32 of
the Law establishing that in order to appoint and dismiss heads
of state and local government educational establishments a
recommendation of the religious association is necessary, and
Item 2 of the same part of the said article conflict with Part
1 of Article 25 of the Constitution. On the grounds of the same
arguments one is to conclude that Item 3 of Part 2 of Article
32 of the Law is also in conflict with Part 1 of Article 25 of
the Constitution.
3. Parts 1, 2 and 3 of Article 26 of the Constitution
provide:
"Freedom of thought, conscience, and religion shall not be
restricted.
Every person shall have the right to freely choose any
religion or faith and, either individually or with others, in
public or in private, to manifest his or her religion or faith
in worship, observance, practice or teaching.
No person may coerce another person or be subject to
coercion to adopt or profess any religion or faith."
As held in the present ruling, the provision of Item 1 of
Part 2 of Article 32 of the Law establishing that in order to
appoint and dismiss heads of state and local government
educational establishments a recommendation of the religious
association is necessary, and that Items 2 and 3 of Part 2 of
the same article conflict with Part 1 of Article 25 of the
Constitution. On the grounds of the same arguments one is to
conclude that the said provision as well as Items 2 and 3 of
Part 2 of the same article also conflict with Parts 1 and 2 of
Article 26 of the Constitution.
The compliance of disputed Items 1, 2 and 3 of Part 2 of
Article 32 of the Law with Part 3 of Article 26 of the
Constitution is to be assessed in a different manner. The legal
norms established in the said items do not create legal
preconditions to coerce persons to adopt or profess any
religion or faith, therefore Items 1, 2 and 3 of Part 2 of
Article 32 of the Law are in compliance with Part 3 of Article
26 of the Constitution.
4. Part 1 of Article 40 of the Constitution provides:
"State and local government establishments of teaching and
education shall be secular. At the request of parents, they
shall offer classes in religious instruction."
4.1. The norm of Part 2 of Article 32 of the Law that the
regulations of state and local government educational
establishments which are co-founded with state-recognised
traditional religious associations must be approved by both
co-founders means that the state and local governments (their
institutions) may not approve the regulations of the aforesaid
state and local government educational establishments in case
they are not approved by another co-founder-the
state-recognised religious community. Thus the opportunities of
state institutions to implement the powers attributed to them
by the Law depend on the will of the religious organisations.
By such legal regulation the constitutional principle of
separateness of the state and the church is violated, legal
preconditions are created for state-recognised traditional
religious associations which are co-founders of the educational
establishment to interfere with management of state and local
government establishments of teaching and education and with
the supervision of their activity, as well as change the
secular character of state and local government establishments
of teaching and education.
4.2. Part 1 of Article 40 of the Constitution establishes
the principle of secularity of state and local government
establishments of teaching and education. Among other things,
this principle means that state and local government secular
establishments of teaching and education are tolerant, open and
accessible to people of all faiths, as well as the members of
society who are non-believers; the content of world-view
education in these establishments is secular; in the course of
teaching of secular subjects not any religion nor faith is
implanted in pupils. No requirements connected with their
convictions may be set for teachers or other employees of
secular educational establishments (save teachers of religion).
Thus churches and religious organisastions may not set any
requirements connected with their convictions or faith for
teachers or other employees of secular educational
establishments (save teachers of religion). It is only state
and local government institutions that are permitted to manage,
organise and supervise activities of state and local government
educational establishments but never churches or religious
organisations.
By the legal regulation established in Items 1, 2 and 3 of
Part 2 of Article 32 of the Law, the constitutional principle
of separatness of the state and the church is violated, it is
permitted by it that a state-recognised traditional religious
association which is a co-founder of an educational
establishment interfere with the management and supervision of
state and local government establishments of teaching and
education, and change the secular character of state and local
government establishments of teaching and education. On the
grounds of the arguments set forth it is to be concluded that
Part 2 of Article 32 of the Law conflicts with Part 1 of
Article 40 of the Constitution.
IV
On the compliance of Article 20 of the Law with Parts 1,
2, 3 and 5 of Article 26, Part 2 of Article 29, Part 1 of
Article 40 and Part 7 of Article 43 of the Constitution.
1. Article 20 of the Law provides:
"At the request of parents (legal guardians), individuals
authorised by church dignitaries shall give religious
instruction (of the confessions recognised by the state as
traditional) at state and local government educational
establishments.
Children under state and local government care shall be
given religious instruction conforming to the traditional
religion professed by their family or relatives.
For those who do not attend classes of religious
instruction, that time shall be given over to the teaching of
ethics.
In the educational establishments of two co-founders (the
state or local government and a state-recognised traditional
religious association), at the request of parents (or legal
guardians), instead of religious classes pupils may attend
ethics classes or those of religion of other traditional
confessions."
2. Part 2 of Article 29 of the Constitution provides: "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."
It has already been held in this ruling that the provision
of Part 1 of Article 43 of the Constitution providing for the
presence of traditional Lithuanian churches and religious
organisations is the constitutional basis on which a different
status of traditional churches and organisations may be
established if compared with other churches and religious
organisations. Therefore the fact that the disputed norm
singles out the religious instruction of traditional churches
and religious organisations and that it does not indicate
religious instruction of other state-recognised churches and
religious organisations, does not give grounds to assert that
the disputed legal regulation violates the principle of
equality of persons established in Article 29 of the
Constitution.
It is also important that Parts 3 and 4 of Article 20 of
the Law establish the right and duty for all the pupils who do
not attend classes in religious instruction to attend ethics
classes, and there is not any formal distinction of their group
according to the criteria pointed out in Part 2 of Article 29
of the Constitution.
On the grounds of the arguments set forth, one is to
conclude that Article 20 of the Law is in compliance with Part
2 of Article 29 of the Constitution.
3. Part 5 of Article 26 of the Constitution provides:
"Parents and legal guardians shall not be restricted in matters
of taking care of the religious and moral education of their
children in conformity with their own convictions."
As mentioned, under Part 1 of Article 40 of the
Constitution, children's parents (legal guardians) are entitled
to request that state or local government educational
establishments offer the pupils classes in religious
instruction, and to indicate as to what religion their child be
taught. The provisions of Part 1 of Article 20 of the Law that
state and local government educational establishments offer
classes in religious instruction and that they are offered at
the request of parents (legal guardians) are in compliance with
Part 5 of Article 26 of the Constitution.
3.1. Under the Constitution, at the request of parents
pupils in state and local government establishments of teaching
must not be taught a religion chosen at random but that pointed
out by parents. From this a duty appears for state and local
government educational establishments to ensure that pupils be
taught a particular religion requested by their parents. The
provision of Part 1 of Article 20 of the Law that religious
instruction is given by the persons authorised by the spiritual
authorities of state-recognised traditional religious
associations is to be assessed as a guarantee that the pupils
will be taught that particular religion which is requested by
parents. Therefore this provision of Part 1 of Article 20 of
the Law is in compliance with Part 5 of Article 26 of the
Constitution.
3.2. As already held in this ruling, the provision of Part
1 of Article 43 of the Constitution providing for the presence
of traditional Lithuanian churches and religious organisations
is the constitutional basis on which a different status of
traditional churches and organisations may be established if
compared with other churches and religious organisations.
Alongside, it needs to be noted that the fact that the disputed
norms single out the religious instruction of traditional
churches and religious organisations and that it does not
mention religious instruction of other state-recognised
churches and religious organisations, does not mean in itself
that by this legal regulation Part 2 of Article 29 of the
Constitution is violated. Nor the equal rights of parents and
legal guardians to take care of the religious and moral
education of their children and wards in an unrestricted manner
in conformity with their own convictions established in Part 5
of Article 26 of the Constitution are infringed.
3.3. The provisions of Part 3 of Article 20 of the Law
that for those who do not attend classes of religious
instruction, that time shall be given over to the teaching of
ethics and that ethics is taught at the same time as classes in
religious instruction take place, are designated for regulation
of organisation of educational process in educational
establishments.
The disputed provisions do not violate the equal rights of
parents and legal guardians to take care of the religious and
moral education of their children and wards in an unrestricted
manner in conformity with their own convictions established in
Part 5 of Article 26 of the Constitution.
4. Parts 1, 2 and 3 of Article 26 of the Constitution
provides:
"Freedom of thought, conscience, and religion shall not be
restricted.
Every person shall have the right to freely choose any
religion or faith and, either individually or with others, in
public or in private, to manifest his or her religion or faith
in worship, observance, practice or teaching.
No person may coerce another person or be subject to
coercion to adopt or profess any religion or faith."
The legal regulation established in disputed Parts 1, 3
and 4 of Article 20 of the Law does not restrict the freedom of
thought, conscience, and religion, nor the right of an
individual freely to choose any religion or faith and, either
individually or with others, in public or in private, to
manifest his or her religion or faith in worship, observance,
practice or teaching. Nor by such legal regulation legal
preconditions are created to anyone to coerce another person or
be subject to coercion to adopt or profess any religion or
faith.
On the grounds of the arguments set forth it is to be
concluded that Parts 1, 3 and 4 of Article 20 of the Law are in
compliance with Parts 1, 2 and 3 of Article 26 of the
Constitution.
5. As mentioned, Part 1 of Article 40 of the Constitution
provides: "State and local government establishments of
teaching and education shall be secular. At the request of
parents, they shall offer classes in religious instruction."
5.1. The provisions of Part 1 of Article 20 of the Law
that state and local government educational establishments
offer classes in religious instruction, that classes in
religious instruction are offered at the request of parents
(legal guardians) and that religious instruction is given by
persons authorised by spiritual authorities of respective
religious confessions do not deny the constitutional concept of
freedom of thought, conscience and religion nor the
constitutional principle of secularity of state and local
government establishments of teaching and education. Therefore,
one is to conclude that these provisions are in compliance with
Part 1 of Article 40 of the Constitution.
5.2. As already held in this ruling, the fact that Article
20 of the Law singles out the religious instruction of
traditional churches and religious organisations and that it
does not mention religious instruction of other
state-recognised churches and religious organisations, does not
give grounds to assert that by the disputed legal regulation
the principle of equality of all persons entrenched in Article
29 of the Constitution is violated. On the grounds of the same
arguments it is to be concluded that by the established legal
regulation Part 1 of Article 40 of the Constitution is not
violated, either.
5.3. As mentioned, the provisions of Part 3 of Article 20
of the Law that for those who do not attend classes of
religious instruction, that time shall be given over to the
teaching of ethics and that ethics is taught at the same time
as classes in religious instruction take place, are designated
for regulation of organisation of educational process in
educational establishments.
Under the constitutional principle of positive
declaration, parents may express their request that state and
local government establishments of teaching and education
should offer classes in religious instruction, but they are not
obligated to express their request that classes in ethics
should be given, i.e. the subject provided for by the Law for
the pupils who do not attend religious classes. In state and
local government educational establishments co-founded with
state-recognised traditional religious associations, as well as
in all state and local government establishments of teaching
and education, pupils may be given religious instruction in
case there is a request of their parents (legal guardians).
Therefore, the formula of Part 4 of Article 20 of the Law "at
the request of parents (or legal guardians), <...> pupils may
attend ethics classes" is not to be interpreted as establishing
an exception to the constitutional principle of positive
declaration. The provision of Part 4 of Article 20 of the Law
that in the educational establishments of two co-founders (the
state or local government and a state-recognised traditional
religious association), at the request of parents (or legal
guardians), instead of religious classes pupils may attend
ethics classes is worded improperly. However, this shortcoming
does not give reason to assert that by the established legal
regulation the provisions of Part 1 of Article 40 of the
Constitution are violated.
6. Part 7 of Article 43 of the Constitution provides:
"There shall not be a State religion in Lithuania."
It needs to be noted that the disputed norms of Article 20
of the Law do not establish any state religion. The mere fact
that traditional religious associations are pointed out does
not mean that respective religions are granted the status of a
state religion and that thereby the constitutional principle of
absence of a state religion is violated.
On the grounds of the arguments set forth one is to
conclude that Article 20 of the Law is in compliance with Part
7 of Article 43 of the Constitution.
7. In certain cases provided for in the laws, the state or
local governments (their institutions) discharge the functions
of the legal guardian of the child.
Part 2 of Article 20 of the Law provides that children
under state and local government care shall be given religious
instruction conforming to the traditional religion professed by
their family or relatives. As already held in this ruling, Part
2 of Article 20 of the Law is in compliance with Part 2 of
Article 29 and Part 7 of Article 43 of the Constitution.
7.1. Part 5 of Article 26 of the Constitution provides
that parents and legal guardians shall not be restricted in
matters of taking care of the religious and moral education of
their children in conformity with their own convictions. The
formulas "parents and legal guardians" and "in conformity with
their own convictions" presuppose the fact that Article 26 of
the Constitution establishes the rights of parents and legal
guardians, i.e. natural persons, but not those of the
institutions which in cases provided for in laws discharge the
functions of the care of the child. Therefore the formula
"parents and legal guardians" of Part 5 of Article 26 of the
Constitution does not include the state, local governments, nor
state and local government institutions, which may not have any
convictions (including religious or moral ones).
Part 2 of Article 20 of the Law regulates relations of a
different nature, i.e. those linked with religious instruction
of the pupils who are under the care of the state or local
governments.
On the grounds of the arguments set forth one is to
conclude that Part 2 of Article 20 of the Law is in compliance
with Part 5 of Article 26 of the Constitution.
7.2. The state and local governments, in cases provided
for in laws, while discharging the functions of the care of
children (pupils), have a duty to guarantee that they receive
education in state or local government establishments of
teaching and education. Under Part 1 of Article 40 of the
Constitution, these establishments are secular.
The norm of Part 2 of Article 20 of the Law that children
under state and local government care shall be given religious
instruction conforming to the traditional religion professed by
their family or relatives means that in cases when the
children, before they were placed in these child care
institutions, had been given respective religious instruction
at the request of their parents, then they are taught the same
religion at the child care institution.
It needs to be noted that Paragraph 1 of Article 14 of the
United Nations Convention on the Rights of the Child, which was
ratified by the Republic of Lithuania Law "On the Ratification
of the United Nations Convention on the Rights of the Child"
and which is a constituent part of the legal system of
Lithuania, provides that States Parties shall respect the right
of the child to freedom of thought, conscience and religion.
Therefore if the establishment of teaching or education knows
about the religion of traditional churches or religious
organisations professed in the family of the child, the child,
while taking account of his interests, may be taught this
religion. If the establishment of teaching or education does
not know about the religion of traditional churches or
religious organisations professed in the family of the child,
account is taken of the request of the child himself. The child
may not be coerced to adopt or profess any religion or faith,
nor his constitutional freedom of thought, conscience and
religion may be restricted. If interpreted in such a manner,
the provisions of Part 2 of Article 20 of the Law are in
compliance with the Constitution.
On the grounds of the arguments set forth one is to
conclude that Part 2 of Article 20 of the Law is in compliance
with Parts 1, 2 and 3 of Article 26 and Part 1 of Article 40 of
the Constitution.
V
On the compliance of Item 2 of Article 21 of the Law with
Part 1 of Article 40 of the Constitution.
1. Article 21 of the Law provides:
"Pupils shall have the right:
<...> 2) from the age of 15 to take an independent
decision on whether they are going to take religious
instruction."
2. As mentioned, Part 1 of Article 40 of the Constitution
provides: "State and local government establishments of
teaching and education shall be secular. At the request of
parents, they shall offer classes in religious instruction."
3. Under Part 6 of Article 38 of the Constitution, parents
have the right and duty to bring up their children to be honest
individuals and loyal citizens, as well as to support them
until they come of age, while under Part 5 of Article 26 of the
Constitution, parents and legal guardians shall not be
restricted in matters of taking care of the religious and moral
education of their children in conformity with their own
convictions. These provisions, together with the norm of Part 1
of Article 40 of the Constitution that at the request of
parents, state and local government establishments of teaching
and education shall offer classes in religious instruction,
presuppose the fact that it is the constitutional right of
parents (legal guardians) to request that a secular
establishment of teaching and education offer classes in
religious instruction.
Under Article 1 of the Convention on the Rights of the
Child, a child means every human being below the age of
eighteen years unless, under the law applicable to the child,
majority is attained earlier. Under the Republic of Lithuania
Law on Fundamentals of Protection of the Rights of the Child, a
child is a human being below the age of 18 years, unless
otherwise established by laws. Thus, in individual laws another
limit of age may be established upon reaching which a person
acquires a special legal capacity.
The provision of Item 2 of Article 21 of the Law means
that a person, after he has reached 15 years, acquires a
special legal capacity in the sphere particularly mentioned by
the Law, i.e. in making a decision as for his religious
instruction. From that moment to request whether the pupil is
to be given religious instruction is already the right of the
pupil but not that of his parents (legal guardians).
On the grounds of the arguments set forth, one is to
conclude that Item 2 of Article 21 of the Law is in compliance
with Part 1 of Article 40 of the Constitution.
VI
On the compliance of Part 1 of Article 15 of the Law with
Part 2 of Article 38 and Parts 1 and 3 of Article 39 of the
Constitution.
1. Part 1 of Article 15 of the Law provides: "Instruction
at state and local government schools of general education,
vocational schools and those of further education of the
Republic of Lithuania shall be free. Instruction at state and
local government pre-school establishments (with the exception
of child care institutions) as well as establishments of
additional education shall be paid in part."
Taking account of the arguments of the petitioner, the
Constitutional Court will investigate whether the provision of
Part 1 of Article 15 of the Law that instruction at state and
local government pre-school establishments (with the exception
of child care institutions) as well as establishments of
additional education shall be paid in part.
2. Part 2 of Article 38 of the Constitution provides:
"Family, motherhood, fatherhood, and childhood shall be under
the care and protection of the State." Part 1 of Article 39 of
the Constitution provides: "The State shall take care of
families bringing up children at home, and shall render them
support in the manner established by law." Part 2 of Article 41
of the Constitution provides: "Education at State and local
government schools of general education, vocational schools and
schools of further education shall be free of charge."
2.1. Construing the said constitutional norms in a
systematic manner, it needs to be noted that Part 2 of Article
38, Part 1 of Article 39 and Part 2 of Article 41 of the
Constitution are to be linked with Part 1 of Article 38 thereof
establishing that the family shall be the basis of society and
the state. The provisions of Parts 1 and 2 of Article 38 of the
Constitution mean the obligation of the state to establish such
legal regulation by laws and other legal acts which might
ensure that the family, as well as motherhood, fatherhood and
childhood would be fostered and protected in all ways possible
as constitutional values.
Part 1 of Article 41 of the Constitution provides that
education shall be compulsory for persons under the age of 16,
while Part 2 thereof provides that education at state and local
government schools of general education, vocational schools and
schools of further education shall be free of charge. These
constitutional norms mean that the state (its institutions)
have a duty to ensure that all persons under the age of 16 have
real opportunities to acquire free education in state and local
government schools of general education, vocational schools and
schools of further education and that learning in these
establishments be equally accessible to everyone.
Teaching is a constituent part of education. Education is
a diverse process determined by many factors: influence of the
family, activities of teachers and establishments of teaching
and education, social and family values, social, demographic,
economic, political and cultural processes taking place in
society, financial, organisational and infra-structural
opportunities of the state, etc. The purposefulness, quality
and diversity of education must be guaranteed not only by state
and local government establishments of teaching and education
which are pointed out in the Constitution but also by parents
(legal guardians) who have the constitutional right to take
care of the religious and moral education of their children
(wards) in conformity with their own convictions and who have
the constitutional duty to bring them up to be honest
individuals and loyal citizens, as well as to support them
until they come of age. Implementing these constitutional
rights and freedoms, parents (legal guardians) may not refuse
to cover part of the expenses for the education of their
children.
2.2. Under Article 8 of the Law, those who wish shall be
provided additional training at various types of educational
establishments: art, sports, language, engineering and other
schools, courses and societies. Thus, additional education is
linked, first of all, not with general, vocational or further
education which is free under the Constitution nor with syllabi
(curricula) prepared and approved (confirmed) by competent
state and local government institutions or by state and local
government establishments of teaching and education but with
the wish of pupils (or that of their parents or legal
guardians). Therefore the provision that instruction at
establishments of additional education shall be paid in part is
reasonable. This part of the expenses for education may be
borne by the state, but it is not obligated to do so. On the
other hand, this provision does not mean that state and local
government institutions, taking account of the needs of society
(residents) and state (local government) financial and
organisational opportunities, may not establish and maintain or
support in any other way state (local government)
establishments of additional education.
The provision of Part 1 of Article 15 of the Law that
instruction at child care institutions shall be free is also
reasonable. If it were otherwise, the state would not fulfil
its duty established in Part 2 of Article 38 of the
Constitution to take care of childhood nor would it guarantee
that the children under the care of the state and local
governments be brought up in a proper way.
On the grounds of the arguments set forth one is to
conclude that Part 1 of Article 15 of the Law is in compliance
with Part 2 of Article 38 of the Constitution.
2.3. Part 1 of Article 39 of the Constitution provides:
"The State shall take care of families bringing up children at
home, and shall render them support in the manner established
by law." It needs to be noted that the norm of Part 1 of
Article 15 of the Law regulates relations linked not with
taking care of and upbringing children at home but their
teaching and education in state and local government pre-school
institutions, as well as establishments of additional
education. Therefore, a conclusion is to be drawn that Part 1
of Article 15 of the Law is in compliance with Part 1 of
Article 39 of the Constitution.
4. Part 3 of Article 39 of the Constitution provides:
"Children who are under age shall be protected by law."
This provision of the Constitution means that sufficient
and effective protection must be guaranteed for the rights and
legitimate interests of children who are under age, as well as
that the legislator and other state institutions regulating the
legal situation of children who are under age and regulating
other relations must pay heed to the rights and legitimate
interests of children who are under age.
As already held in this ruling, Part 1 of Article 15 of
the Law is in compliance with Part 2 of Article 38 and Part 1
of Article 39 of the Constitution. On the grounds of the same
arguments it is to be concluded that Part 1 of Article 15 of
the Law is also in compliance with Part 3 of Article 39 of the
Constitution.
VII
On the compliance of Part 3 of Article 10 of the Law with
Part 1 of Article 40, Part 2 of Article 41 and Parts 1 and 2 of
Article 120 of the Constitution.
1. Part 3 of Article 10 of the Law provides: "Local
government educational establishments providing with
elementary, basic and secondary education shall be founded,
reorganised and closed down by local government councils
subject to a written consent of the Ministry of Education and
Science, while educational establishments providing with
nursery schooling, extra instruction and adult informal
education-subject to a written consent of county governors."
2. Part 1 of Article 40 of the Constitution provides:
"State and local government establishments of teaching and
education shall be secular. At the request of parents, they
shall offer classes in religious instruction." Part 2 of
Article 41 of the Constitution stipulates: "Education at State
and local government schools of general education, vocational
schools and schools of further education shall be free of
charge." Part 1 of Article 120 of the Constitution provides:
"The State shall support local governments", while Part 2
thereof stipulates: "local governments shall act freely and
independently within the limits of their competence which shall
be established by the Constitution and laws".
3. The Constitutional Court will investigate the
compliance of Part 3 of Article 10 of the Law with Part 1 of
Article 40 and Part 2 of Article 41 of the Constitution from
the aspect pointed out by the petitioner, i.e. to the extent
that the said articles of the Constitution provide for the
presence of local government establishments of teaching and
education (schools of general education, vocational schools and
those of further education).
4. The norm of Part 2 of Article 120 of the Constitution
that local governments shall act freely and independently may
not be kept separate from the provision established in the same
part of the same article that the freedom and independence of
local governments are bound by the competence established by
the Constitution and laws. Under Part 3 of Article 119 of the
Constitution, the procedure for the organisation and activities
of self-government institutions shall be established by law.
The constitutional provision that local governments shall
act freely and independently within the limits of their
competence which shall be established by the Constitution and
laws is in line with the European Charter of Local Self
Government.
5. The formula "local government establishments of
teaching and education" of Part 1 of Article 40 of the
Constitution, and the formula "local government schools of
general education, vocational schools and schools of further
education", while taking account of the norm of Part 2 of
Article 120 of the Constitution, mean that they must be
establishments of teaching and education linked with local
governments by ties of dependence. This, among other things,
presupposes the right of local governments (their institutions)
to found, reorganise, close down establishments of teaching and
education, and to posses other rights and duties linked with
their foundation, reorganisation and closing down.
However, this right of local governments is not
unrestricted. The aforesaid formulas of Part 1 of Article 40
and Part 2 of Article 41 of the Constitution, while taking
account of the norm of Part 2 of Article 120 of the
Constitution, presupposes the right of the legislator to
establish the procedure for foundation, reorganisation and
closing down of the said local government establishments, as
well as to regulate their activities and other relations linked
with these establishments. It is important that by respective
laws the right of local governments itself to found,
reorganise, close down establishments of teaching and
education, and to posses other rights and duties linked with
their foundation, reorganisation and closing down would not be
denied.
6. Part 3 of Article 10 of the Law establishes the
procedure for foundation, reorganisation and closing down of
local government establishments of teaching and education, i.e.
it regulates relations between local governments and state
institutions of the executive (Ministry of Education and
Science and county governors) concerning foundation,
reorganisation and closing down of these establishments.
Under Part 2 of Article 120 of the Constitution, the
freedom and independence of activities of local governments are
bound by their competence defined by the Constitution and laws.
As mentioned, this constitutional provision presupposes
competence of the legislator to establish the procedure for
foundation, reorganisation and closing down of local government
establishments of teaching and education. Therefore, one is to
draw a conclusion that Part 3 of Article 10 of the Law is in
compliance with Part 2 of Article 120 of the Constitution.
7. The provision of Part 1 of Article 120 of the
Constitution that the state shall support local governments
establishes the duty for the state to support local governments
and that for the legislator not to restrict legitimate
initiative of local governments and not to impede their lawful
activities.
The compliance of Part 3 of Article 10 of the Law with
Part 1 of Article 120 of the Constitution is to be investigated
by taking account of its relation with Part 2 of Article 120 of
the Constitution.
As held in the present ruling, Part 3 of Article 10 of the
Law is in compliance with Part 2 of Article 120 of the
Constitution. On the grounds of the same arguments, it is to be
concluded that it is also in compliance with Part 1 of Article
120 of the Constitution.
8. The assumption that Part 3 of Article 10 of the Law
conflicts with Part 1 of Article 40 and Part 2 of Article 41 of
the Constitution is groundless as the character of local
government establishments of teaching and education founded,
reorganised and closed down by local government councils
subject to a written consent of the Ministry of Education and
Science and county governors remains the same. They continue to
be local government establishments of teaching and education:
they are linked with local governments with ties of dependence,
local governments are their founders.
On the grounds of the arguments set forth, one is to
conclude that Part 3 of Article 10 of the Law is in compliance
with Part 1 of Article 40 and Part 2 of Article 41 of the
Constitution.
VIII
On the compliance of Item 2 of Article 35, Item 2 of
Article 37 and Items 2 and 3 of Article 38 of the Law with Part
2 of Article 120 of the Constitution.
1. Item 2 of Article 35 of the Law provides:
"The Ministry of Education and Science:
<...> 2) shall approve in writing the foundation,
reorganisation and closing down of state and non-public
educational establishments (with the exception of those of
informal education) which are not under its control, and the
foundation, reorganisation and closing down of local government
educational establishments providing elementary, basic and
secondary education".
2. Item 2 of Article 37 of the Law provides:
"The county governor:
<...> 2) shall give an approval in writing to the
foundation, reorganisation and closure of non-governmental and
local government pre-school, additional education and informal
adult educational establishments".
Items 2 and 3 of Article 38 of the Law provide:
"The local government shall:
<...> 2) upon a written consent of the county governor,
found, reorganise and close down pre-school educational
establishments, educational establishments of additional
education and adult informal educational establishments. It
shall appoint and dismiss heads of those educational
establishments;
3) upon a written consent of the Ministry of Education and
Science, found, reorganise and close down elementary, basic and
secondary schools of general education of all types. It shall
appoint and dismiss heads of those educational establishments".
4. The petitioner does not dispute the provision of Item 2
of Article 38 of the Law that the local government shall
appoint and dismiss heads of pre-school educational
establishments, educational establishments of additional
education and adult informal educational establishments nor
that of Item 3 of the same article that the local government
shall appoint and dismiss heads of elementary, basic and
secondary schools of general education of all types. Taking
account of the arguments of the petitioner, the Constitutional
Court will investigate whether the provision of Item 2 of
Article 38 of the Law that the local government shall, upon a
written consent of the county governor, found, reorganise and
close down pre-school educational establishments, educational
establishments of additional education and adult informal
educational establishments and whether the provision of Item 3
of the same article that the local government shall, upon a
written consent of the Ministry of Education and Science,
found, reorganise and close down elementary, basic and
secondary schools of general education of all types, with the
Constitution.
5. As mentioned, under Part 2 of Article 120 of the
Constitution, the freedom and independence of local government
activities are bound by their competence defined by the
Constitution and laws. This constitutional provision
presupposes competence of the legislator to establish the
procedure for foundation, reorganisation and closing down of
local government establishments of teaching and education.
Therefore one is to conclude that Item 2 of Article 35, Item 2
of Article 37 and Items 2 and 3 of Article 38 of the Law to the
said extent are in compliance with Part 2 of Article 120 of the
Constitution.
IX
On the compliance of Item 5 of Article 35 of the Law with
Part 2 of Article 120 of the Constitution.
1. Item 5 of Article 35 of the Law provides:
"The Ministry of Education and Science:
<...> 5) shall coordinate the activity of subdivisions of
education of administrations of county governors and those of
local governments, establish qualification requirements for
heads, inspectors and specialists of these subdivisions,
prepare and submit to the Government to approve the regulations
for public competition for holding this office".
2. Under Part 3 of Article 119 of the Constitution, the
procedure for the organisation and activities of
self-government institutions shall be established by law, while
under Part 2 of Article 120 of the Constitution, local
governments shall act freely and independently within the
limits of their competence which shall be established by the
Constitution and laws. The fact that Item 5 of Article 35 of
the Law mentions local government subdivisions of education
virtually means that it is established by the Law that in
administrations of local governments there must be subdivisions
responsible for the activity of respective local governments in
the area of education.
The interests of local governments and those of the state
must be coordinated. The principle of coordination of interests
of local governments and those of the state manifests itself
not only when the state supports local governments in all ways
and forms, or when the state supervises local government
activities in the form prescribed by the law, but also when
joint actions are coordinated when significant social
objectives are being sought (Constitutional Court ruling of 18
February 1998).
The coordination of activities of subdivisions of
education of administrations of county governors and those of
local governments as established in the Law does not deny the
constitutional concept of self-government. Such coordination is
an important condition in order to ensure the same state
education policy and supervision of its implementation by
establishing the same standards of education and learning, by
guaranteeing the compliance of the content and level of
instruction and teaching with the qualification recognised by
the state, by ensuring the constitutional right to education
and learning.
The provisions of Item 5 of Article 35 of the Law that the
Ministry of Education and Science shall establish qualification
requirements for heads, inspectors and specialists of these
subdivisions, prepare and submit to the Government to approve
the regulations for public competition for holding this office
are also to be linked with an opportunity to coordinate the
activity of subdivisions of education of administrations of
county governors and those of local governments. These
provisions of the Law are not to be assessed as violating
either the norms of Part 2 of Article 120 of the Constitution
or the freedom and independence of local governments acting
within the limits of their competence established by the
Constitution and laws.
It needs to be noted that the establishment of equal
requirements for heads, inspectors and specialists of
subdivisions of education for their participation in the public
competition for holding this office guarantees the right of all
citizens to have an equal opportunity to serve in a state
office of the Republic of Lithuania, to participate in the
government of their state as established in Part 1 of Article
33 of the Constitution, as well as their constitutional right
to participate in the activities of institutions of local
governments.
On the grounds of the arguments set forth, one is to
conclude that Item 5 of Article 35 of the Law is in compliance
with Part 2 of Article 120 of the Constitution.
X
On the compliance of Parts 2 and 3 of Article 34 of the
Law with Part 4 of Article 40 of the Constitution and that of
Part 2 of Article 34 of the Law with Part 1 of Article 40 of
the Constitution.
1. Part 2 of Article 34 of the Law provides: "The
activities of educational establishments shall be supervised by
their co-founders under the procedure set down by the Common
Regulations for Supervision of Educational Establishments",
while Part 3 of the same article provides: "The implementation
of general policy of education shall be supervised by the
Ministry of Education and Science and county governors
according to the regulations approved by the Ministry of
Education and Science".
2. Part 4 of Article 40 of the Constitution provides: "The
State shall supervise the activities of establishments of
teaching and education."
Part 4 of Article 40 of the Constitution establishes not
only the right but also the duty of the state to supervise the
activities of establishments of teaching and education.
Supervision of activities of establishments of teaching
and education includes the supervision of control how the
Constitution and laws are observed. Here the state (its
institutions) may resort to various ways and forms of control
established by laws.
3. 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.
Under the Constitution, the legislator is entitled to
establish which state institution (or institutions) must
supervise the implementation of the state education policy and
what competent institution of the executive must approve the
regulations for such supervision. Therefore the provision of
Part 3 of Article 34 of the Law that the implementation of
general policy of education shall be supervised by the Ministry
of Education and Science and county governors according to the
regulations approved by the Ministry of Education and Science
is in compliance with Part 4 of Article 40 of the Constitution.
4. The legal regulation established in Part 2 of Article
34 of the Law does not mean that the state refuses the
supervision of establishments of teaching and education, and
that it commissions the co-founders of these establishments and
no one else to conduct this supervision. Supervision of
establishments of teaching and education is a constitutional
duty of the state. The Constitution is a directly applicable
statute (Part 1 of Article 6 of the Constitution), thus even
though the Law does not establish expressis verbis that state
shall supervise activities of educational establishments , this
constitutional right of the state does not disappear. Various
state institutions conduct administrative and other supervision
of establishments of teaching and education under the
competence ascribed to them by laws.
The norm of the Law that the activities of educational
establishments shall be supervised by their co-founders under
the procedure set down by the Common Regulations for
Supervision of Educational Establishments is a blanket one. It
is impossible to decide from it as for the content of the legal
regulation established in the said regulations. It needs to be
noted that these regulations may not be in conflict with the
Constitution nor laws.
On the grounds of the arguments set forth, it is to be
concluded that Part 2 of Article 34 of the Law is in compliance
with Part 4 of Article 40 of the Constitution.
5. Under the Law, state and local government
establishments of teaching and education may be co-founded with
state-recognised traditional religious associations. As already
held in the present ruling, under the principle of secularity
of state and local government establishments of teaching and
education established in Part 1 of Article 40 of the
Constitution, it is only state and local government
institutions that are permitted to organise management of state
and local government establishments of teaching and education,
and to supervise their activities, but never churches or
religious organisations.
The norm of Part 2 of Article 34 of the Law that the
activities of educational establishments shall be supervised by
their co-founders under the procedure set down by the Common
Regulations for Supervision of Educational Establishments
presupposes the fact that the right is granted to
state-recognised traditional religious associations to
supervise not only how religion is taught in state and local
government establishments of teaching and education but also
all activities of these establishments which, under the
Constitution, are secular. By such legal regulation the
constitutional principle of separateness of the state and the
church is violated, state-recognised religious associations
which are co-founders of respective educational establishments
are permitted to interfere with management of state and local
government establishments of teaching and education, as well as
with supervision of their activities, and to change the secular
character of state and local government establishments of
teaching and education.
On the grounds of these arguments, one is to conclude that
Part 2 of Article 34 of the Law to the extent that the right is
granted to state-recognised traditional religious associations
to supervise not only how respective religion is taught in
state and local government establishments of teaching and
education but also all activities of these establishments
conflicts with Part 1 of Article 40 of the Constitution.
XI
On the compliance of Part 4 of Article 34 of the Law with
Part 1 of Article 40, Part 2 of Article 41 and Part 2 of
Article 120 of the Constitution.
1. Part 4 of Article 34 of the Law provides: "In cases
when the Education Inspectorate of the Administration of the
County Governor establishes that a local government does not
discharge the functions of education attributed to it by laws,
that it does not ensure the necessary conditions for the
activities of the educational establishment that is within its
jurisdiction, the county governor shall draw up a proposal for
the representative of the Government in the county regarding
transfer of the functions of the founder of the educational
establishment to the administration of the county governor.
Resolution concerning transfer of the functions of the founder
of the educational establishment to the county shall be adopted
by the Government."
2. Part 1 of Article 40 of the Constitution provides:
"State and local government establishments of teaching and
education shall be secular. At the request of parents, they
shall offer classes in religious instruction", while Part 2 of
Article 41 stipulates: "Education at State and local government
schools of general education, vocational schools and schools of
further education shall be free of charge". Part 2 of Article
120 of the Constitution provides: "Local governments shall act
freely and independently within the limits of their competence
which shall be established by the Constitution and laws."
3. As mentioned, under Part 4 of Article 40 of the
Constitution, the state shall supervise the activities of
establishments of teaching and education.
As already held in this ruling, the legislator is entitled
to establish which institution (institutions) of the executive
must supervise the activities of establishments of teaching and
education within the limits of the competence ascribed to it by
laws.
Part 4 of Article 34 of the Law provides that, while
supervising the activities of establishments of teaching and
education, administration of county governors (their
inspectorates of education) must have the right to establish
and state that respective local government does not discharge
the functions of education ascribed to it by laws and that it
does not guarantee the necessary conditions for the activities
of the establishment of education which is under its
jurisdiction.
4. Part 2 of Article 123 of the Constitution provides that
representatives shall be appointed by the Government to
supervise that the Constitution and the laws are observed, and
that the decisions of the Government are implemented by local
governments. Article 124 of the Constitution points out that
deeds and actions of local government councils as well as of
their executive bodies and officers which violate the rights of
citizens and organisations may be appealed against in court.
Part 4 of Article 123 of the Constitution provides that in
cases and according to procedures provided by law, the Seimas
may introduce direct administration on local government
territory. Thus in the Constitution various forms and ways are
provided for by which institutions of state authority, their
officials (including county governors and representatives of
the Government), as well as citizens and organisations, may
react in cases when a local government does not discharge the
functions of education ascribed to it by laws and when it does
not guarantee the necessary conditions for the activities of an
establishment of education which is under its jurisdiction.
The right of institutions of state authority and their
officials to resort to all measures provided for in laws in
order to remove the established violations, to insure, within
the limits of their competence, that self-government
institutions and local government educational establishments
acted lawfully and effectively is uncontested one; this right
may be grounded on responsibility of said institutions for
organisation of state administration in the territory of a
respective local government. Therefore there are not any
grounds to assert that the provision of Part 4 of Article 34 of
the Law that the inspectorate of education of the county
governor has the right to establish and state that a local
government does not discharge the functions of education
ascribed to it by law and that it does not guarantee the
necessary conditions for the activities of an establishment of
education which is under its jurisdiction are in conflict with
the norms of the Constitution pointed out by the petitioner.
Under Part 4 of Article 34 of the Law, a local government
may lose the rights of the founder of the educational
establishment. It needs to be noted that the Law establishes
the bases in the presence of which a question may be raised for
transfer of the functions of the founder of the local
government educational establishment. It also provides for the
procedure of solution of these questions. Transfer of the
functions of the founder is only a reaction of institutions of
state authority when the local government does not discharge
the duties attributed to it by law, i.e. when it does not
discharge the functions of education ascribed to it by law and
when it does not guarantee the necessary conditions for the
activities of the establishment of education which is under its
jurisdiction.
In the context of the case at issue, a fact is also
important that under Article 122 of the Constitution, local
government councils shall have the right to appeal to court
regarding the violation of their rights. The disputed norms of
the Law do not deny the competence of local governments which
is established by the Constitution, nor the guarantees of
judicial protection of local governments provided for in the
Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
1. To recognise that Item 5 of Article 1, Part 3 of
Article 10, Part 1 of Article 15, Article 20, Item 2 of Article
21, Parts 3 and 4 of Article 34, Items 2 and 5 of Article 35,
Item 2 of Article 37 and the provision of Item 2 of Article 38
that the local government shall upon a written consent of the
county governor, found, reorganise and close down pre-school
educational establishments, educational establishments of
additional education and adult informal educational
establishments, and the provision of Item 3 of Article 38 of
the Republic of Lithuania Law on Education that the local
government shall upon a written consent of the Ministry of
Education and Science, found, reorganise and close down
elementary, basic and secondary schools of general education of
all types, are in compliance with the Constitution of the
Republic of Lithuania.
2. To recognise that Item 4 of Article 10 of the Republic
of Lithuania Law on Education to the extent that in state or
local government educational establishments classes or groups
may be co-founded with state-recognised traditional religious
associations, as well as the provision of Part 4 of Article 10
"coordinated with state-recognised traditional religious
associations" conflict with Part 1 of Article 40 of the
Constitution of the Republic of Lithuania.
3. To recognise that the provision of Item 1 of Part 2 of
Article 32 of the Republic of Lithuania Law on Education
providing that in order to appoint and dismiss heads of state
and local government educational establishments a
recommendation of the traditional religious association is
necessary, and Items 2 and 3 of Part 2 of Article 32 of the
same law conflict with Part 1 of Article 25, Parts 1 and 2 of
Article 26 and Part 1 of Article 40 of the Constitution of the
Republic of Lithuania.
4. To recognise that Item 2 of Part 2 of Article 32 of the
Republic of Lithuania Law on Education conflicts with Part 1 of
Article 25, Parts 1 and 2 of Article 26, Part 1 of Article 40
and Part 2 of Article 42 of the Constitution of the Republic of
Lithuania.
5. To recognise that Part 2 of Article 32 of the Republic
of Lithuania Law on Education conflicts with Part 1 of Article
40 of the Constitution of the Republic of Lithuania.
6. To recognise that Part 2 of Article 34 of the Republic
of Lithuania Law on Education to the extent that the right is
granted to state-recognised traditional religious associations
to supervise not only how religion is taught in state and local
government establishments of teaching and education but also
all activities of these establishments conflicts with Part 1 of
Article 40 of the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.