Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 5 OF ARTICLE 8,
PARAGRAPH 3 OF ARTICLE 9, PARAGRAPH 3, ITEMS 10,
11 AND 12 OF PARAGRAPH 5 OF ARTICLE 22, ITEMS 1, 2
AND 5 OF PARAGRAPH 1, PARAGRAPHS 2 AND 7 OF
ARTICLE 24, PARAGRAPH 4 OF ARTICLE 42, ARTICLE 60,
PARAGRAPH 1 OF ARTICLE 61, PARAGRAPH 1 OF ARTICLE
62 AND PARAGRAPHS 1 AND 2 OF ARTICLE 65 OF THE
REPUBLIC OF LITHUANIA LAW ON HIGHER EDUCATION WITH
THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
5 February 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, 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-a group of members
of the Seimas of the Republic of Lithuania-Aloyzas Sakalas and
Stanislovas Buškevičius, both are Seimas members,
the representatives of the party concerned-the Seimas of
the Republic of Lithuania-Alfonsas Ramonas, a senior consultant
to the Seimas Committee on Education, Science and Culture, and
Audronė Ožiūnienė, a consultant to the Legal Department of the
Office of the Seimas,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on
22 January 2002 in its public hearing conducted the
investigation of Case No. 18/2000 subsequent to the petition of
the petitioner-a group of members of the Seimas of the Republic
of Lithuania-requesting to determine whether Paragraph 5 of
Article 8, the first sentence of Paragraph 3 of Article 9, the
second sentence of Paragraph 3, Items 10, 11 and 12 of
Paragraph 5 of Article 22, Items 1, 2 and 5 of Paragraph 1,
Paragraphs 2 and 7 of Article 24, the second sentence of
Paragraph 4 of Article 42 of the Republic of Lithuania Law on
Higher Education were in compliance with Article 40 of the
Constitution of the Republic of Lithuania, whether the second
sentence of Paragraph 3 of Article 22, Paragraph 2 of Article
60, Paragraph 1 of Article 61, Paragraph 1 of Article 62 and
Paragraphs 1 and 2 of Article 65 of the same law were in
compliance with Article 29 of the Constitution of the Republic
of Lithuania, and whether Article 60 of the same law was in
compliance with Article 41 of the Constitution of the Republic
of Lithuania.
The Constitutional Court
has established:
I
On 21 March 2000, the Seimas of the Republic of Lithuania
enacted the Republic of Lithuania Law on Higher Education
(Official Gazette Valstybės žinios, 2000, No. 27-715;
hereinafter also referred to as the Law) which subsequently was
amended and supplemented.
The petitioner-a group of Seimas members-requests to
determine whether certain provisions of the law are in
compliance with Articles 29, 40 and 41 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
1. In the opinion of the petitioner, the functions of the
state university council and the state college council as
established in Items 1, 2 and 5 of Paragraph 1 of Article 24 of
the Law restrain the rights of self-government of the school of
higher learning in the areas of scientific and educational
activities. They also restrict the autonomy guarantees set in
Article 40 of the Constitution and in the laws passed
previously (e.g. Paragraphs 1 and 2 of Article 16 of the
Republic of Lithuania Law on Science and Studies (Official
Gazette Valstybės žinios, 1991, No. 7-191)). Therefore the
petitioner doubts as to the compliance of Items 10, 11, 12 of
Paragraph 5 of Article 22 and Items 1, 2, 5, and 7 of Paragraph
1 of Article 24 of the Law with Article 40 of the Constitution.
2. According to the petitioner, the autonomy of schools of
higher learning in the areas of scientific and educational
activities, which is entrenched in Article 40 of the
Constitution, must be of the same level for all schools of
higher learning irrespective of their type (universities or
colleges), their founders (the state or not the state) etc.
However, in the opinion of the petitioner, if one compares the
rights of schools of higher learning established in Paragraphs
2 and 3 of Article 9 of the Law, it is clear that the provision
of Paragraph 3 of Article 9 of the Law that beside the rights
specified in Paragraph 2 of this Article, universities shall
have the rights provided for in Paragraph 2 of Article 9 of the
Law means that the level of the autonomy of universities is
higher than that of other schools of higher learning. The
petitioner also notes that the autonomy of non-state schools of
higher learning is practically not restricted by the Law since
under the Law the procedure of administration of non-state
schools of higher learning (both universities and colleges) is
established by their statutes, while Paragraph 5 of Article 8
of the Law provides that the statute of a school of higher
learning not belonging to the state shall be adopted in a
manner prescribed by its founder. The petitioner doubts as to
the compliance of Paragraph 5 of Article 8, the first sentence
of Paragraph 3 of Article 9, Paragraph 2 of Article 24 and the
first sentence of Paragraph 4 of Article 42 of the Law with
Article 40 of the Constitution.
3. According to the petitioner, by the second sentence of
Paragraph 3 of Article 22 of the Law wherein it is established
that the rector and the chairman of the senate may not be the
same person, the autonomy of a state university only is
restricted. In the opinion of the petitioner, there are doubts
as to the compliance of the second sentence of Paragraph 3 of
Article 22 of the Law with Articles 29 and 40 of the
Constitution.
4. The petitioner maintains that the provisions of
Paragraph 2 of Article 60 and Paragraph 1 of Article 61 of the
Law treat the students learning in a state school of higher
learning in a varied manner. Some students have to conclude
tripartite agreements (Paragraph 2 of Article 60 of the Law),
while other students-bilateral agreements (Paragraph 1 of
Article 61 of the Law). The content of both above agreements
may be different as the content of the former is established by
the Government, while the standard form of the latter is
approved by the Ministry of Education and Science (hereinafter
also referred to as the Ministry). Therefore, in the opinion of
the petitioner, the students studying in state schools of
higher learning are not equal before the law, therefore doubts
arise as to the compliance of Paragraph 2 of Article 60 and
Paragraph 1 of Article 61 of the Law with Article 29 of the
Constitution.
5. The petitioner notes that Paragraphs 1 and 2 of Article
65 of the Law provide for the procedure of repayment of loan
for part of the students only (i.e. persons who studied
occupying a place funded by the state, but have failed to meet
the requirements of the semester study programme within the
required limit of time), however, in connection with the
students who study at their own expense, such a procedure may
be quite different, while the Government is permitted to
establish the latter procedure. In the opinion of the
petitioner, the students studying in state schools of higher
learning are not equal before the law, therefore doubts arise
as to the compliance of Paragraphs 1 and 2 of Article 65 of the
Law with Article 29 of the Constitution.
6. In the opinion of the petitioner, admission to a state
school of higher learning, which is, under Paragraph 3 of
Article 47 and Paragraph 1 of Article 61 of the Law, determined
by the results of secondary school graduation examinations,
does not mean that everyone has an equal opportunity to attain
higher education according to their individual abilities as
established in Paragraph 3 of Article 41 of the Constitution.
In the opinion of the petitioner, the accessibility of higher
education for everyone according to one's abilities is largely
determined, after one has already been admitted to a school of
higher learning, by one's material living and conditions of
studies, which, in their turn, are determined by the source of
covering of the cost of studies: the students whose costs of
studies are covered by all taxpayers in the state have a better
access to higher education if compared to those who have to pay
for their studies by themselves. The petitioner underlines that
even though Paragraph 4 of Article 60 of the Law provides for
an opportunity to designate by tender a state study loan to
cover the cost of studies to students studying at their own
expense to pay for their studies, however, unlike those
studying in places funded by the state, the students who study
at their own expense must repay the loan irrespective of
whether they learn well or badly in a state school of higher
learning (Paragraphs 3 and 4 of Article 60 of the Law). Thus,
in this case those who study in places funded by the state are
in an advantageous position: if they learn well, they are
excused from repayment of the loan (Paragraph 3 of Article 60
of the Law), but if those who study at their own expense learn
well, they must compete for a state loan among themselves only
(Paragraph 4 of Article 60 of the Law), and even if they win
the competition, they are not excused from repayment of the
loan.
The provisions of the Law guarantee the education in a
state school of higher learning free of charge for the citizens
with good academic results, but only for those whose academic
results were better in secondary school, but this is not
applied for the citizens whose academic results in secondary
school were worse. The provision of Paragraph 3 of Article 41
of the Constitution is applicable to all citizens who have good
academic results in state schools of higher learning,
therefore, in the opinion of the petitioner, doubts arise as to
the compliance of Article 60 of the Law with Article 41 of the
Constitution.
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the party concerned-the
Seimas-A. Ramonas, a senior advisor to the Seimas Committee on
Education, Science and Culture.
1.1. In the opinion of the representative of the party
concerned, the functions of the state university council as
established in Items 1 and 2 of Paragraph 1 of Article 24 of
the Law create pre-conditions to state an opinion of the state
and society as regards the determination of the strategy of the
university and its contribution to the economic, social and
cultural development of the state (Item 6 of Paragraph 1 of
Article 24 of the Law). The representative of the party
concerned noted that the Law does not point out when the senate
must take account of the council conclusions or proposals
concerning the said issues. Items 10, 11 and 12 of Paragraph 5
of Article 22 of the Law do not indicate it either: they merely
contain a provision that the senate must receive conclusions of
the university council prior to consideration of issues or
approving decisions which are important not only for the
university but also the society and the state.
A. Ramonas noted that under Item 5 of Paragraph 1 of
Article 24 of the Law, the council shall consider and prepare
conclusions regarding annual reports of the rector, annual
income and expenditure estimates and their implementation
accounts, while under the provisions of Paragraph 7 of the same
article, if the senate does not approve of the council's
conclusions and proposals concerning annual income and
expenditure estimates and their implementation accounts, the
council shall consider them repeatedly and, if it adopts the
same decision again, such a decision shall become mandatory to
the senate. Thereby the principle of accountability of the
school of higher learning for the state and society as regards
the funds used is established. However, the council has not
been granted the powers so that it would be capable of
restricting the university's scientific or educational freedom.
The council makes considerations, assessments, proposals, draws
conclusions (the senate does not have to take account of them),
and, as one's last shift, it may propose to the Ministry the
initiation of auditing of the economic and financial activities
of a school of higher learning (Item 7 of Paragraph 1 of
Article 24 of the Law).
According to A. Ramonas, there are no grounds to assert
that there are any doubts as to the compliance of Items 10, 11
and 12 of Paragraph 5 of Article 22 and Items 1, 2, 5 and 7 of
Paragraph 1 of Article 24 of the Law with Article 40 of the
Constitution.
1.2. The representative of the party concerned noted that
the example given by the petitioner that the level of the
autonomy of universities is higher than that of other schools
of higher learning providing with university study programmes
(e.g. academies), which have not been granted the status of a
university under Paragraph 1 of Article 6 of the Law, is
imprecise. Quite on the contrary, there are only two types of
schools of higher learning: universities and colleges
(Paragraph 1 of Article 5 of the Law), while the college name
may not include words "university" and "academy" (Paragraph 1
of Article 7 of the Law); thus, there may not be any academy
not enjoying the university status.
According to A. Ramonas, the Law provides for differences
between the state college academic council and the university
senate, however they are necessary because of two reasons: (1)
in colleges there are not enough scientists (and there will not
be enough of them in the nearest future) who would be able
independently to approve the study programmes, to select the
areas of the studies or scientific activities, and to grant the
qualification degrees recognised by the state; (2) it is
important to preserve more state regulation but not
self-government in colleges so that it would be possible more
promptly to react to the changing needs for specialists (for
particular areas of activities).
A. Ramonas noted that it is no one else but the founder
that may establish the procedure of administration of a private
school of higher learning. Therefore the Law regulates the
founding and activities of non-state schools of higher learning
only in that the Government issues licences to them (Paragraph
2 of Article 15 of the Law) and that the quality of studies are
assessed in the said schools of higher learning (Paragraphs 2
and 3 of Article 16 of the Law). Besides, the statutes of
non-state schools of higher learning must contain the clauses
regulating their activities (these clauses must be the same as
in the statutes of state schools of higher learning) (Article 8
of the Law), with the only difference that the statutes of
non-state schools of higher learning are adopted in a manner
prescribed by their founders but not the state.
In the opinion of A. Ramonas, there should be no doubts as
regards the compliance of Paragraph 5 of Article 8, the first
sentence of Paragraph 3 of Article 9, Paragraph 2 of Article 24
and the second sentence of Paragraph 4 of Article 42 of the Law
with Article 40 of the Constitution.
1.3. According to the representative of the party
concerned, the motive of the request of the petitioner that the
second sentence of Paragraph 3 of Article 22 of the Law is in
conflict with Article 29 of the Constitution due to the fact
that the chairman of the senate is prohibited from being the
rector of the university at the same time is groundless as it
is not important whether the person holds the office of the
chairman of the senate or that of the rector of the university
only, or both of the chairman of the senate and the rector of
the university at the same time. In every case the person is
equal before the law, the court and other state institutions
and officers alike.
1.4. A. Ramonas explained that for the students, whose
costs of studies are covered by all state taxpayers, higher
education is more easily accessible if compared to those who
have to pay for the studies themselves. The accessibility of
higher education according to one's abilities, after one has
been admitted to a school of higher learning, are largely
determined by the material circumstances of the student's life
and studies, which, in their turn, depend on the source of
covering of the cost of studies. Article 60 of the Law not only
raises doubts as regards its compliance with the Constitution
but it also increases social inequality. The representative of
the party concerned pointed out that the petitioner was right
in underlying that even though Paragraph 4 of Article 60 of the
Law provides for an opportunity to designate a state study loan
by tender to cover the cost of studies to students studying at
their own expense to pay for their studies, however, unlike
those studying in places funded by the state, the students who
study at their own expense must repay the loan although they
learn well in a state school of higher learning. According to
A. Ramonas, the conclusion formulated in the petition of the
petitioner that Paragraph 3 of Article 60 of the Law restricts
the area of application of the provision of Paragraph 3 of
Article 41 of the Constitution is correct.
2. In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from the representative of the party concerned-the Seimas-A.
Ožiūnienė, a consultant to the Legal Department of the Office
of the Seimas.
2.1. A. Ožiūnienė pointed out that the autonomy of schools
of higher learning is relative. Their autonomy is to be
combined with their responsibility and accountability before
the state and society in order to evade self-isolation of
schools of higher learning. It is for this purpose that the Law
provides for formation of the councils of universities and
colleges. The representative of the party concerned paid
attention to the fact that Paragraph 2 of Article 21 of the Law
provides that the said councils are public supervision and care
bodies of state schools of higher learning. The councils draw
up conclusions, submit proposals concerning the activity of the
institutions of self-government and administration of schools
of higher learning, they assess how the school of higher
learning carries out its tasks, utilises its property and the
funds allocated by the state and those received by other means,
etc. They help the schools of higher learning to maintain
contacts with the society and to react to their needs at the
same time.
A. Ožiūnienė maintains that when academic issues are being
solved by the senate or the academic council, in reality the
council may be influential up to the limit so that the
principle of academic freedom would not be violated.
A. Ožiūnienė drew a conclusion that the provisions of
Items 10, 11 and 12 of Paragraph 5 of Article 22 and those of
Items 1, 2, and 5 of Paragraph 1 and Paragraph 7 of Article 24
of the Law are in compliance with Article 40 of the
Constitution.
2.2. The representative of the party concerned explained
that the provision of Article 40 of the Constitution that
institutions of higher learning shall be granted autonomy does
not obligate the legislature to apply the same extent of
autonomy to all schools of higher learning.
In the opinion of A. Ožiūnienė, the notions "university"
and "college" as presented in Articles 6 and 7 of the Law
reveal an essential difference between these two types of
schools of higher learning, the aims of these schools of higher
learning, the level of preparation of specialists etc. The
legislature, while taking account of the special status of
universities, granted an additional right to universities to
select study forms and subject areas, research, professional
artistic activities, to approve study programmes conforming to
the guidelines for a subject area (Paragraph 3 of Article 9 of
the Law), and to the senates of universities to approve the
study programmes (college study programmes are approved by the
Ministry on the advice of the college academic council)
(Paragraph 4 of Article 42 of the Law).
The representative of the representative of the party
concerned noted that the procedure of adoption of the statutes
of schools of higher learning is not related to the realisation
of autonomy of schools of higher learning. Establishment of the
procedure of adoption, amendment and supplementation of the
statutes of non-state schools of higher learning is within the
prerogative of their founders.
Taking account of the motives set forth, A. Ožiūnienė
asserts that Paragraph 5 of Article 8, Paragraph 3 of Article
9, Paragraph 2 of Article 24 and Paragraph 4 of Article 42 of
the Law are in compliance with Article 40 of the Constitution.
2.3. The representative of the party concerned underlined
that the provision of Paragraph 1 of Article 29 of the
Constitution that all persons shall be equal before the law,
the court, and other state institutions and officers virtually
means a prohibition of discrimination. Differentiated legal
regulation applied to persons who are in different situations
is not considered to be discrimination. According to A.
Ožiūnienė, the prohibition for the chairman of the senate of
the university to be the rector of the university at the same
time is not to be considered to be discriminatory against the
person and conflicting with the constitutional principle of
equality of persons.
2.4. The provision of Paragraph 2 of Article 60 of the Law
that a student accepted in a state-funded place shall form a
tripartite agreement with the school of higher learning and the
Lithuanian State Fund for Science and Studies of Lithuania and
Paragraph 1 of Article 61 of the Law which provides that with
the students who not having secured the state-funded places by
the procedure of selective competition agree to pay for their
studies agreements shall be concluded the procedure of drawing
up and standard form whereof shall be approved by the Ministry
and which shall be registered with the State Fund for Science
and Studies of Lithuania, are not discriminating and in
conflict with the principle of equality of all persons before
the law. A. Ožiūnienė is of the opinion that there are not any
grounds to treat these provisions of the Law as granting
advantages to certain students if compared to the other
students: the disputed norms of the Law are not related to the
principle established in Paragraph 1 of Article 29 of the
Constitution and are in conformity with it.
The representative of the party concerned draws an
analogous conclusion as to the compliance of Paragraphs 1 and 2
of Article 65 of the Law with Paragraph 1 of Article 29 of the
Constitution.
2.5. A. Ožiūnienė emphasised that, while implementing the
provision of Paragraph 3 of Article 41 of the Constitution,
Article 47 of the Law provides that persons who have completed,
as a minimum, their secondary education may be accepted into a
school of higher learning. Persons shall be accepted, by way of
an open competition, to the places in schools of higher
learning financed by the state. The grounds of this competition
consist of the results of secondary school graduation
examinations of not more than four subjects taught. No more
than two examinations or tests may be organised by schools of
higher learning for identification of special abilities. Thus
the right to acquire higher education is related with the
abilities and knowledge of individuals. Alongside, Paragraph 7
of Article 5 of the Law points out a duty of schools of higher
learning as one of their main functions to offer equal
opportunities to all permanent residents of the Republic of
Lithuania to acquire higher education in accordance with their
abilities and knowledge. Besides, attention ought to be paid to
the fact that Paragraph 2 of Article 47 of the Law provides for
an opportunity for applicants to submit applications to enrol
in several schools of higher learning, thus the opportunities
of individuals to attain higher education are increased. On the
other hand, according to standard contracts, state schools of
higher learning may accept a number of students, designated in
the agreement between the Ministry and the higher learning
establishment for sequential studies, who not having secured
the state-funded places by the procedure of selective
competition, agree to pay for their studies. However, this
opportunity does not violate the rights of those willing to
secure the state-funded places: individuals are admitted into
state schools of higher learning according to their abilities
while taking part in the competition for the state-funded
places.
Article 60 of the Law provides that a nominal,
corresponding to the cost of studies state loan, shall be given
to cover the period of studies for students accepted to
state-funded places. A student accepted in a state-funded place
concludes an agreement of the standard form with the school of
higher learning, by which the conditions of state loan issuance
and repayment are established. The Law provides for an
opportunity for the students studying at their own expense to
be placed in state-funded places: if the student without
serious cause failed to implement the requirements of the
semester programme of study for two consecutive semesters, the
school of higher learning removes his name from the list of the
students listed in places funded by the state. If in a school
of higher learning there appears a vacant state-funded place in
a certain programme of studies, individuals who study there at
their own expense within the framework of the same programme
have the right to be placed in the said place by way of a
competition.
A. Ožiūnienė noted that the content of the notion
"suitable academic progress" is not revealed in Paragraph 3 of
Article 41 of the Constitution. The constitutional norm only
underlines that the citizen must have suitable academic
results. The legislature has not particularised in laws as to
what is meant by a citizen with suitable academic results,
therefore there appear conditions for varied interpretation and
application of this notion.
The representative of the party concerned draws a
conclusion that there are no grounds to assert that Article 60
of the Law conflicts with Paragraph 3 of Article 40 of the
Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from V. Vadapalas, Director General of the European
Law Department under the Government of the Republic of
Lithuania, A. Monkevičius, Minister of Education and Science of
the Republic of Lithuania, P. Koverovas, Vice-Minister of
Justice and J. Liaučius, State Controller of the Republic of
Lithuania, as well as a written opinion from the Committee on
Legal Issues of the Conference of Rectors of Lithuanian
Universities.
V
At the Constitutional Court hearing, the representatives
of the petitioner-a group of Seimas members-A. Sakalas and S.
Buškevičius virtually reiterated the arguments set forth in
their petition.
At the Constitutional Court hearing, the representatives
of the party concerned-the Seimas-A. Ramonas and A. Ožiūnienė
virtually reiterated the arguments set forth in their written
explanations presented to the Constitutional Court.
The Constitutional Court
holds that:
I
1. The petitioner-a group of Seimas members-requests to
determine whether Paragraph 5 of Article 8, the provision of
Paragraph 3 of Article 9 that beside the rights specified in
Paragraph 2 of Article 9 of the Law universities shall have the
rights provided for in Paragraph 3 of Article 9 of the Law, the
provision of Paragraph 3 of Article 22 that the rector and the
chairman of the senate may not be the same person, Items 10, 11
and 12 of Paragraph 5 of Article 22, Items 1, 2 and 5 of
Paragraph 1, Paragraphs 2 and 7 of Article 24, the provision
"college study programmes shall be approved by the Ministry on
the advice of the college academic council" of Paragraph 4 of
Article 42 of the Law are in compliance with Article 40 of the
Constitution, whether the provision of Paragraph 3 of Article
22 that the rector and the chairman of the senate may not be
the same person, Paragraph 2 of Article 60, Paragraph 1 of
Article 61, Paragraph 1 of Article 62 and Paragraphs 1 and 2 of
Article 65 of the Law are in compliance with Article 29 of the
Constitution, and whether Article 60 of the Law is in
compliance with Article 41 of the Constitution.
It is clear from the arguments provided by the petitioner
that the group of Seimas members doubts as to the compliance of
the said provisions of the Law with not entire Articles 29, 40
and 41 of the Constitution, but only with Paragraph 1 of
Article 29, Paragraph 3 of Article 40 and Paragraph 3 of
Article 41 of the Constitution.
2. On 25 January 2001, the Seimas enacted the Republic of
Lithuania Law on the Amendment and Supplement of Articles 5, 9,
11, 15, 34, 40, 51, 54, 56, 59, 67 of the Law on Higher
Education (Official Gazette Valstybės žinios, 2001, No. 16-496)
which amended Item 3 of Paragraph 3 of Article 9 of the Law.
The disputed provision of Paragraph 3 of Article 9 of the Law
that beside the rights specified in Paragraph 2 of Article 9 of
the Law universities shall have the rights provided for in
Paragraph 3 of Article 9 of the Law, was not amended.
3. On 21 December 2001, the Seimas enacted the Republic of
Lithuania Law on the Amendment and Supplement of Article 2, the
Title of Chapter II, Articles 14, 15, 17, 27, 28, 29, 37, 39,
41, 47, 48, 54, 56, 57, 58, 59, 60, 61, 62, 63, 66, 67 and
Abolishment of Articles 18, 64, 65, 68 of the Law on Higher
Education (Official Gazette Valstybės žinios, 2002, No. 3-75)
which amended disputed Articles 60, 61 and 62 and abolished
Article 65 of the Law. Subsequent to the amendment of the Law
the disputed provisions of the Law were no longer in force,
therefore, conforming to Paragraph 4 of Article 69 of the Law
on the Constitutional Court, the case is to be dismissed as to
the request of the petitioner to determine whether Paragraph 2
of Article 60, Paragraph 1 of Article 61, Paragraph 1 of
Article 62 and Paragraphs 1 and 2 of Article 65 of the Law are
in compliance with Paragraph 1 of Article 29 of the
Constitution, and whether Article 60 of the Law is in
compliance with Paragraph 3 of Article 41 of the Constitution.
4. The Constitutional Court, taking into consideration the
above arguments and subsequent to the petition of the
petitioner, will consider whether Paragraph 5 of Article 8, the
provision of Paragraph 3 of Article 9 that beside the rights
specified in Paragraph 2 of Article 9 of the Law universities
shall have the rights provided for in Paragraph 3 of Article 9
of the Law, the provision of Paragraph 3 that the rector and
the chairman of the senate may not be the same person, Items
10, 11 and 12 of Paragraph 5 of Article 22, Items 1, 2 and 5 of
Paragraph 1, Paragraphs 2 and 7 of Article 24, the provision
"college study programmes shall be approved by the Ministry on
the advice of the college academic council" of Paragraph 4 of
Article 42 of the Law are in compliance with Paragraph 3 of
Article 40 of the Constitution, and whether the provision of
Paragraph 3 of Article 22 of the Law that the rector and the
chairman of the senate may not be the same person is in
compliance with Paragraph 1 of Article 29 of the Constitution.
II
1. Paragraph 3 of Article 40 of the Constitution provides
that "institutions of higher learning shall be granted
autonomy".
Revealing the content of the concept of autonomy provided
for in Paragraph 3 of Article 40 of the Constitution, it should
be noted that "traditionally, the autonomy of the institution
of higher learning is conceived as the right to independently
determine and establish in the regulations or statute the
organisational and governmental structure, relations with other
partners, the order of research and studies, academic syllabus,
the order of student enrolment, to resolve other related
questions, to use the property given over by the state as well
as newly acquired, to possess the territory and buildings as
well as other property, allotted for the needs of research and
studies, to have the guarantee of inviolability. For this
purpose, the institution of higher learning is guaranteed the
institutional autonomy, i. e. certain status, which means that
there are certain spheres of activities, independent from the
control of the executive power" (Constitutional Court ruling of
27 June 1994).
2. The system of higher education ensures the development
of science and culture, social sphere and economy. The purpose
of higher education is to create, accumulate and disseminate
knowledge of science and cultural values, to educate the
personality and society. Therefore the society is concerned
with creating due conditions for institutions of higher
education in order to ensure all-round education of the
personality, freedom of teaching, scientific research and
creative activities. Accordingly, institutions of higher
education have to react to changes of social needs and
coordinate their activities with the interests of society.
Therefore, the principle of autonomy of institutions of higher
education must be coordinated with the principle of
responsibility and accountability before society, other
constitutional values, with the duty of institutions of higher
education to observe the Constitution and laws, with the
interaction and coordination of interests of institutions of
higher education and society. The Great Charter of Universities
(Magna Charta Universitatum, 18 September 1988) has
established, that "the purpose of universities to provide the
young generation with the knowledge in modern world means that
they must serve the whole society". It is noteworthy that "the
right of the state to regulate external affairs of the
institution of higher learning does not contradict the autonomy
unless it impairs the freedom of research and teaching in the
institution of higher education" (Constitutional Court ruling
of 27 June 1994).
3. Paragraph 3 of Article 40 of the Constitution specifies
that institutions of higher learning are granted autonomy.
Diversity of goals of higher education determines the fact that
there may be a variety of types of schools of higher learning.
In its ruling of 10 July 1996, the Constitutional Court noted
that universities differ from other institutions of higher
education in the nature of studies, goals, level of preparation
of specialists etc. Taking into consideration the fact that
there may be a variety of types of schools of higher learning,
laws may provide for autonomy of different scope to different
types of schools of higher learning (depending on whether they
are universities or colleges, whether founded by the state or
other entities, and on other conditions); laws may regulate
administration and self-government of schools of higher
learning in a different manner.
The provision of Paragraph 3 of Article 40 of the
Constitution may not be construed as prohibiting to establish
by laws different limits of autonomy of schools of higher
learning. In themselves, different establishment by laws of the
administration forms of schools of higher learning of various
types and also of the schools of higher learning founded by
various founders (the state and not the state), also that of
the institutions of their administration, of the procedure of
formation and of the functions and powers of the latter, do not
deny the constitutional principle of autonomy of institutions
of higher learning.
III
On the compliance of Paragraph 5 of Article 8, the
provision of Paragraph 3 of Article 9 that beside the rights
specified in Paragraph 2 of Article 9 of the Law universities
shall have the rights provided for in Paragraph 3 of Article 9
of the Law, the provision of Paragraph 3 of Article 22 that the
rector and the chairman of the senate may not be the same
person, Items 10, 11 and 12 of Paragraph 5 of the same article,
Items 1, 2 and 5 of Paragraph 1, Paragraphs 2 and 7 of Article
24, and the provision "college study programmes shall be
approved by the Ministry on the advice of the college academic
council" of Paragraph 4 of Article 42 of the Law with Paragraph
3 of Article 40 of the Constitution.
1. It is established in Paragraph 5 of Article 8 of the
Law: "The statute of a school of higher learning not belonging
to the State shall be adopted in a manner prescribed by its
founder, and amended in a manner prescribed by the statute. The
statute of a school of higher learning not belonging to the
State shall be registered by the Ministry".
It is established in the first sentence of Paragraph 3 of
Article 9 of the Law: "Beside the rights specified in Paragraph
2 of this Article, universities shall have the following
right:".
It is established in the second sentence of Paragraph 3 of
Article 22 of the Law: "The rector and the chairman of the
senate may not be the same person."
It is established in Items 10, 11 and 12 of Paragraph 2 of
Article 22 of the Law:
"The senate shall exercise the following functions: <...>
10) consider the university's developmental long-term plan
project and, upon receipt of the conclusion of the university
council, approve it and present it to the Ministry together
with the said conclusion of the university council;
11) consider a draft agreement with the Ministry and, upon
receipt of the conclusion of the university council, present it
to the Ministry together with the said conclusion of the
university council;
12) consider annual rector's reports, annual income and
expenditure estimates and, upon receipt of the conclusion of
the university council, approve them."
It is established in Items 1, 2 and 5 of Paragraph 1,
Paragraphs 2 and 7 of the Law:
"1. The State university council and the State college
council (hereinafter referred to as the council) shall:
1) prepare conclusions concerning the projects of a
long-term plan of the school of higher learning development and
an agreement of a school of higher learning with the Ministry;
2) present recommendations on study programmes, programmes
related to research and the development thereof, as well as on
structural changes necessary for the implementation of such
programmes; <...>
5) consider and prepare conclusions regarding annual
reports of the rector (college director), annual income and
expenditure forecasts and a report on whether those forecasts
have been met/on the actual figures.
2. The college council shall elect a college director.
<...>
7. If the senate (academic council) does not approve of
the council's conclusions and proposals concerning annual
income and expenditure estimates and their implementation
accounts, the council shall consider them repeatedly and, if it
adopts the same decision again, such decision shall become
mandatory to the senate (academic council)."
It is established in the second sentence of Paragraph 4 of
Article 42 of the Law: "College study programmes shall be
approved by the Ministry on the advice of the college academic
council".
2. The petitioner is of the opinion that the autonomy of
institutions of higher education in their educational and
scientific activities provided for in Paragraph 3 of Article 40
of the Constitution must be of the same level for all
institutions of higher education irrespective of their types
(universities or colleges), founders (the state or not the
state) etc.
The petitioner doubts as to the compliance of Paragraph 5
of Article 8 establishing the procedure of adoption, amendment
and registration of the statute of a school of higher learning
not belonging to the state, the provision of Paragraph 3 of
Article 9 that beside the rights specified in Paragraph 2 of
Article 9 of the Law universities shall have the rights
provided for in Paragraph 3 of Article 9 of the Law, Paragraph
2 of Article 24 and the provision "college study programmes
shall be approved by the Ministry on the advice of the college
academic council" of Paragraph 4 of Article 42 of the Law with
Paragraph 3 of Article 40 of the Constitution.
The petitioner assumes that the functions of the
university senate set forth in Items 10, 11 and 12 of Paragraph
5 of Article 22 of the Law, the functions of the state
university council and state college council set forth in Items
1, 2 and 5 of Paragraph 1 of Article 24 narrows self-government
rights of institutions of higher education in the sphere of
education and scientific activities, as well as the guarantees
of autonomy, established in Paragraph 3 in Article 40 of the
Constitution. The petitioner doubts as to the compliance of
Items 10, 11 and 12 of Paragraph 5 of Article 22 and Items 1, 2
and 5 of Paragraph 1 and Paragraph 7 of Article 24 with
Paragraph 3 of Article 40 of the Constitution.
The petitioner doubts as to the compliance of the
provision of Paragraph 3 of Article 22 of the Law that the
rector and the chairman of the senate may not be the same
person with Paragraph 3 of Article 40 of the Constitution.
3. It has been mentioned that universities differ from
other types of schools of higher learning according to the
nature of studies, purposes of schools of higher learning, the
level of preparation of specialists etc. Taking account of a
special role of universities in the process of the development
of society, of their importance to social life, the Law, in
addition to the rights enjoyed by all types of schools of
higher learning, grants extra rights to universities: the right
to select study forms and subject areas, research, professional
artistic activities; to approve study programmes conforming to
the guidelines for a subject area; to award research degrees,
qualifications, academic titles (Paragraph 3 of Article 9 of
the Law). The Senate of Vilnius University, unlike academic
councils of state colleges, is entitled to choose the rector
(Item 3 of Paragraph 5 of Article 22 of the Law) and to approve
the study programme (Paragraph 4 of Article 42 of the Law).
Under the Constitution, non-state schools of higher
learning may be founded as well (Paragraph 2 of Article 40 of
the Constitution). Paragraph 5 of Article 8 of the Law provides
that "the statute of a school of higher learning not belonging
to the State shall be adopted in a manner prescribed by its
founder, and amended in a manner prescribed by the statute. The
statute of a school of higher learning not belonging to the
State shall be registered by the Ministry".
It has already been held in this Ruling of the
Constitutional Court that in themselves, different
establishment by laws of the administration forms of schools of
higher learning of various types and also of the schools of
higher learning founded by various founders (the state and not
the state), also that of the institutions of their
administration, of the procedure of formation and of the
functions and powers of the latter, do not deny the
constitutional principle of autonomy of institutions of higher
learning.
Taking account of the arguments set forth, one is to
conclude that Paragraph 5 of Article 8, the provision of
Paragraph 3 of Article 9 that beside the rights specified in
Paragraph 2 of Article 9 of the Law universities shall have the
rights provided for in Paragraph 3 of Article 9 of the Law,
Paragraph 2 of Article 24, and the provision "college study
programmes shall be approved by the Ministry on the advice of
the college academic council" of Paragraph 4 of Article 42 of
the Law are in compliance with Paragraph 3 of Article 40 of the
Constitution.
4. Paragraph 2 of Article 21 of the Law provides that the
public supervision and care body of a state university shall be
the university council, and the public supervision and care
body of a state college shall be the college council. Under
Paragraphs 4 and 5 of Article 24 of the Law, the council shall
be formed for a period of 4 years from not less than 9, but not
more than 21 members. The council shall be formed from three
parts: one-third of the council members is appointed by the
senate (academic council) in a manner prescribed by the
statute, another third of the council members (not the
employees of the school of higher learning) representing the
spheres of science, culture, art and economy, local
self-government institutions or public authorities, is
appointed by the Minister; the remaining third of the council
members is appointed by consensus between the rector (college
director) and the Minister. The rector (college director) and
at least one representative of students elected by the
students' government organisation, and if there is no such
organisation-by the general meeting (conference) of students
must be among the members appointed by the senate (academic
council) of a school of higher learning. The Minister shall, by
his order, announce the composition of the council and, taking
into consideration the recommendation of the rector (college
director), appoint its chairman. The person working in that
school of higher learning may not be the council chairman. The
Seimas and the Government members, civil servants of political
(personal) confidence may not be council members.
The members of councils of state schools of higher
learning are appointed by the Minister of Education and Science
together with self-government institutions of state schools of
higher learning (the senate (academic council) and the rector
(college director)). Thus the institutions of the executive
(Minister of Education and Science) and self-government
institutions of state schools of higher learning enjoy the same
rights in the formation of the councils. Under Paragraph 4 of
Article 24 of the Law, the Minister is prohibited from not
announcing the composition of the councils formed under
procedure established by the law. The councils of state schools
of higher learning are public supervision and care bodies.
It has been mentioned in this Ruling of the Constitutional
Court that the principle of autonomy of institutions of higher
education must be coordinated with the principle of
responsibility and accountability before society. For this
purpose the councils assess as to how the state school of
higher learning performs its tasks, utilises its property and
the funds allocated to it by the state, how it performs the
other functions established by the Law. The councils help the
schools of higher learning to maintain ties with society and to
react to social needs.
It needs to be noted that from the legal point of view
most of the powers established for the councils are of
recommendatory nature except the case when the council adopts
the same conclusions and proposals concerning annual income and
expenditure estimates after considering them repeatedly
(Paragraph 7 of Article 24 of the Law).
Under Items 10 and 11 of Paragraph 5 of Article 22 of the
Law, the university senate shall approve a draft university's
developmental long-term plan and present a draft agreement with
the Ministry to the Ministry. The provisions of the Law that
the university senate approves a draft university's
developmental long-term plan only upon receipt of the
conclusion of the university council and that the university
senate presents a draft agreement with the Ministry to the
Ministry only upon receipt of the conclusion of the university
council are to be assessed as establishing certain procedural
requirements which are necessary to be performed before the
senate makes decisions. While deciding if the requirements
established in the Law do not violate the principle of autonomy
of schools of higher learning, the fact is of essential
importance that the conclusions of the council do not bind the
senate as to the adoption of decisions in the above issues. The
decisions adopted by the council to present recommendations on
study programmes, programmes related to research and the
development thereof, as well as on structural changes necessary
for the implementation of such programmes (Item 2 of Paragraph
1 of Article 24 of the Law) are of recommendatory nature.
Chapter VIII of the Law provides for allocation of state
budget funds to state schools of higher education. For the
purpose of implementation of their functions, state schools of
higher learning are allocated state funds provided for in the
state budget,
The school of higher learning which receives funds from
the state budget must account for proper use of the received
funds, while it is within the discretion of the legislature to
establish by law as regards the manner and way of control of
the use of the funds.
Paragraph 1 of Article 134 of the Constitution provides
that state control shall supervise the lawfulness of the
possession and utilisation of state property and the execution
of the state budget, however, this does not mean that the
legislature does not have a right to establish other forms of
supervision, too.
Taking account of the arguments set forth, one is to draw
a conclusion that Items 10, 11 and 12 of Paragraph 5 of Article
22 and Items 1, 2, 5 and 7 of Paragraph 1 of Article 24 of the
Law are in compliance with Paragraph 3 of Article 40 of the
Constitution.
5. The petitioner doubts if the provision of Paragraph 3
of Article 22 of the Law that the rector and the chairman of
the senate may not be the same person is in conformity with
Paragraph 3 of Article 40 of the Constitution.
It has already been held in this Ruling of the
Constitutional Court that, depending on the type of the school
of higher learning and other circumstances, the laws may
establish varied composition procedure of self-government
institutions of schools of higher learning. In other words, the
provision of Paragraph 3 of Article 40 of the Constitution may
not be construed as not permitting to establish by laws
different limits of autonomy of schools of higher learning and
to regulate in a varied manner the activities of
self-government institutions of schools of higher learning as
well as relations of their formation. The fact that Paragraph 3
of Article 22 of the Law provides for the procedure that the
rector and the chairman of the senate may not be the same
person does not deny the principle of autonomy of schools of
higher learning enshrined in the Constitution.
Taking account of the arguments set forth, one is to
conclude that the provision of Paragraph 3 of Article 22 of the
Law that the rector and the chairman of the senate may not be
the same person is in compliance with Paragraph 3 of Article 40
of the Constitution.
IV
On the compliance of the provision of Paragraph 3 of
Article 22 of the Law that the rector and the chairman of the
senate may not be the same person with Paragraph 1 of Article
29 of the Constitution.
The petitioner doubts if the provision of Paragraph 3 of
Article 22 of the Law that the rector and the chairman of the
senate may not be the same person is in conformity with
Paragraph 1 of Article 29 of the Constitution.
Paragraph 1 of Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officers."
It has already been held in this Ruling of the
Constitutional Court that, under the provision of Paragraph 3
of Article 40 of the Constitution whereby institutions of
higher learning shall be granted autonomy, it is not prohibited
to establish by laws different limits of autonomy of schools of
higher learning and to regulate in a varied manner the
activities of self-government institutions of schools of higher
learning as well as relation of their formation. The disputed
provision of Paragraph 3 of Article 22 of the Law treats all
relations of self-government of state universities in the same
manner nor does it contain any provisions whereby the principle
of equality of all persons before the law, the court, and other
state institutions and officers might be violated.
Taking account of the aforementioned motives, one is to
conclude that the provision of Paragraph 3 of Article 22 of the
Law that the rector and the chairman of the senate may not be
the same person is in compliance with Paragraph 1 of Article 29
of 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 of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Paragraph 5 of Article 8, Paragraph 3
of Article 9, Paragraph 3, Items 10, 11 and 12 of Paragraph 5
of Article 22, Items 1, 2 and 5 of Paragraph 1, Paragraphs 2
and 7 of Article 24, and Paragraph 4 of Article 42 of the
Republic of Lithuania Law on Higher Education are in compliance
with the Constitution of the Republic of Lithuania.
2. To dismiss the initiated legal proceedings as regards
the compliance of Paragraph 2 of Article 60, Paragraph 1 of
Article 61, Paragraph 1 of Article 62 and Paragraphs 1 and 2 of
Article 65 of the Republic of Lithuania Law on Higher Education
with Paragraph 1 of Article 29 of the Constitution of the
Republic of Lithuania, as well as that of Article 60 of the
Republic of Lithuania Law on Higher Education with Paragraph 3
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.