Case No. 28/07-29/07
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 4 (WORDING OF 22 APRIL 2003),
PARAGRAPH 5 (WORDING OF 30 JUNE 2005) OF ARTICLE 47 (WORDING OF
18 JULY 2006), ARTICLE 57 (WORDING OF 18 JULY 2006), PARAGRAPH 3
(WORDING OF 22 APRIL 2003), PARAGRAPH 4 (WORDING OF 30 JUNE 2005)
OF ARTICLE 58 (WORDING OF 30 JUNE 2005), PARAGRAPH 1 (WORDING OF
22 APRIL 2003) OF ARTICLE 60, AND PARAGRAPH 1 (WORDING OF 22
APRIL 2003) OF ARTICLE 61 OF THE REPUBLIC OF LITHUANIA LAW ON
HIGHER EDUCATION WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA, AS WELL AS ON THE DISMISSING OF THE PART OF THE CASE
SUBSEQUENT TO THE PETITION OF THE PRESIDENT OF THE REPUBLIC OF
LITHUANIA, THE PETITIONER, WHICH WAS SET FORTH IN HIS DECREE NO.
1K-1138 "ON APPLYING TO THE CONSTITUTIONAL COURT OF THE REPUBLIC
OF LITHUANIA" OF 22 OCTOBER 2007, REQUESTING TO INVESTIGATE
WHETHER ITEMS 3 AND 14 OF THE METHODS OF ESTABLISHING THE NEEDS
OF FUNDS FROM THE STATE BUDGET OF THE REPUBLIC OF LITHUANIA AND
ASSIGNING THEM TO INSTITUTIONS OF SCIENCE AND STUDIES APPROVED BY
RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO.
1272 "ON APPROVING THE METHODS OF ESTABLISHING THE NEEDS OF FUNDS
FROM THE STATE BUDGET OF THE REPUBLIC OF LITHUANIA AND ASSIGNING
THEM TO INSTITUTIONS OF SCIENCE AND STUDIES" OF 11 OCTOBER 2004
(WORDING OF 5 OCTOBER 2006) ARE NOT IN CONFLICT WITH PARAGRAPH 3
OF ARTICLE 40 AND PARAGRAPH 3 OF ARTICLE 41 OF THE CONSTITUTION
OF THE REPUBLIC OF LITHUANIA
20 March 2008
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the President of
the Republic of Lithuania, a petitioner, who were Aušra
Rauličkytė and Milda Vainiutė, advisors to the President of the
Republic (representing the President of the Republic of
Lithuania, a petitioner, in the part of the case subsequent to
petition No. 1B-36/2007 submitted by the said petitioner),
in the presence of the representative of a group of Members
of the Seimas of the Republic of Lithuania, a petitioner, who was
Gintaras Steponavičius, a Member of the Seimas (representing a
group of Members of the Seimas of the Republic of Lithuania, a
petitioner, in the part of the case subsequent to petition No.
1B-37/2007 submitted by the said petitioner),
in the presence of the representative of the Government of
the Republic of Lithuania, a party concerned, who was Tomas
Daukantas, Head of the Legal Division of the Ministry of
Education and Science of the Republic of Lithuania (representing
the Government of the Republic of Lithuania, a party concerned,
in the part of the case subsequent to petition No. 1B-36/2007
submitted by the President of the Republic of Lithuania, a
petitioner),
in the presence of the representative of the Seimas of the
Republic of Lithuania, a party concerned, who was Vydas Gedvilas,
Deputy Speaker of the Seimas of the Republic of Lithuania
(representing the Seimas of the Republic of Lithuania, a party
concerned, in the part of the case subsequent to petition No. 1B-
37/2007 submitted by a group of Members of the Seimas of the
Republic of Lithuania, a petitioner),
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 15 March 2008 heard case No. 28/07-29/07subsequent to
the following:
1) the petition of the President of the Republic of
Lithuania, a petitioner, which was set forth in his Decree No.
1K-1138 "On Applying to the Constitutional Court of the Republic
of Lithuania" of 22 October 2007, requesting to investigate
whether Items 3 and 14 of the Methods of Establishing the Needs
of Funds from the State Budget of the Republic of Lithuania and
Assigning Them to Institutions of Science and Studies approved by
Resolution of the Government of the Republic of Lithuania No.
1272 "On Approving the Methods of Establishing the Needs of Funds
from the State Budget of the Republic of Lithuania and Assigning
Them to Institutions of Science and Studies" of 11 October 2004
(wording of 5 October 2006) are not in conflict with Paragraph 3
of Article 40 and Paragraph 3 of Article 41 of the Constitution
of the Republic of Lithuania (petition No. 1B-36/2007);
2) the petition of a group of Members of the Seimas of the
Republic of Lithuania, consisting of Gintaras Steponavičius,
Petras Auštrevičius, Kęstutis Glaveckas, Eligijus Masiulis,
Vytautas Grubliauskas, Dalia Teišerskytė, Algis Kašėta, Audrius
Endzinas, Raimundas Palaitis, Jonas Čekuolis, Algirdas
Monkevičius, Vaclovas Karbauskis, Nijolė Steiblienė, Alvydas
Sadeckas, Henrikas Žukauskas, Vaclavas Stankevičius, Algis
Čaplikas, Andrius Kubilius, Jurgis Razma, Vilija Aleknaitė
Abramikienė, Vincė Vaidevutė Margevičienė, Vida Marija
Čigriejienė, Rasa Juknevičienė, Julius Dautartas, Audronius
Ažubalis, Egidijus Vareikis, Saulius Pečeliūnas, Edmundas
Pupinis, Donatas Jankauskas, and Rimantas Dagys, a petitioner,
requesting to investigate whether Paragraph 4 of Article 47 and
Paragraph 4 of Article 58 of the Republic of Lithuania Law on
Higher Education are not in conflict with Paragraph 3 of Article
40, Paragraph 3 of Article 41, and Paragraph 5 of Article 46 of
the Constitution of the Republic of Lithuania; whether Paragraph
5 of Article 47 and Paragraph 1 of Article 61 of the Republic of
Lithuania Law on Higher Education are not in conflict with
Paragraph 1 of Article 29, Paragraph 3 of Article 40, Paragraph 3
of Article 41, and Paragraph 5 of Article 46 of the Constitution
of the Republic of Lithuania; whether the Republic of Lithuania
Law on Higher Education, inter alia Article 57 of this law, to
the extent that, according to the petitioner, it does not
establish the principles of distribution of funds of the State
Budget among schools of higher education, while the establishment
of these principles is commissioned to the Government of the
Republic of Lithuania, is not in conflict with Paragraph 3 of
Article 40 of the Constitution of the Republic of Lithuania and
the constitutional principles of a state under the rule of law
and separation of powers; whether Paragraphs 3, 4, and 6 of
Article 58 of the Republic of Lithuania Law on Higher Education
are not in conflict with Paragraph 1 of Article 29 and Paragraph
4 of Article 46 of the Constitution of the Republic of Lithuania
(petition No. 1B-37/2007).
By the Constitutional Court Decision "On joining petitions
into one case" of 14 November 2007, petition No. 1B-36/2007
submitted by the President of the Republic, a petitioner (case
No. 28/07) and petition No. 1B-37/2007 submitted by a group of
Members of the Seimas, a petitioner (case No. 29/07) were joined
into one case and it was given reference No. 28/07-29/07.
The Constitutional Court
has established:
I
1. On 22 October 2007, the President of the Republic, a
petitioner, issued Decree No. 1K-1138 "On Applying to the
Constitutional Court of the Republic of Lithuania" (hereinafter
also referred to as Decree of the President of the Republic No.
1K-1138 of 22 October 2007), in which a petition is set forth,
requesting that the Constitutional Court investigate whether
Items 3 and 14 of the Methods of Establishing the Needs of Funds
from the State Budget of the Republic of Lithuania and Assigning
Them to Institutions of Science and Studies (hereinafter referred
to as the Methods) approved by Government Resolution No. 1272 "On
Approving the Methods of Establishing the Needs of Funds from the
State Budget of the Republic of Lithuania and Assigning Them to
Institutions of Science and Studies" of 11 October 2004 (wording
of 5 October 2006; hereinafter also referred to as Government
Resolution No. 1272 of 11 October 2004) are not in conflict with
Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the
Constitution. This petition of the petition was received at the
Constitutional Court on 22 October 2007. By its Decision "On
accepting the petition of a petitioner" of 23 October 2007, the
Constitutional Court accepted this petition of the President of
the Republic, a petitioner. The announcement of the President of
the Constitutional Court about the acceptance of the petition of
the President of the Republic, a petitioner, was officially
published in the official gazette "Valstybės žinios" on 25
October 2007. Under Paragraph 4 of Article 106 of the
Constitution, and Paragraph 2 of Article 26 of the Law on the
Constitutional Court, the validity of Items 3 and 14 of the
Methods approved by Government Resolution No. 1272 of 11 October
2004 (wording of 5 October 2006) is suspended until the ruling of
the Constitutional Court concerning this case is published.
2. A group of Members of the Seimas, a petitioner, applied
to the Constitutional Court with a petition requesting to
investigate whether: Paragraph 4 of Article 47 and Paragraph 4 of
Article 58 of the Law on Higher Education (hereinafter also
referred to as the Law) are not in conflict with Paragraph 3 of
Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article
46 of the Constitution; whether Paragraph 5 of Article 47 and
Paragraph 1 of Article 61 of the Law on Higher Education are not
in conflict with Paragraph 1 of Article 29, Paragraph 3 of
Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article
46 of the Constitution; whether the Law on Higher Education,
inter alia Article 57 of this law, to the extent that, according
to the petitioner, it does not establish the principles of
distribution of funds of the State Budget among schools of higher
education, while the establishment of these principles is
commissioned to the Government, is not in conflict with Paragraph
3 of Article 40 of the Constitution and the constitutional
principles of a state under the rule of law and separation of
powers; whether Paragraphs 3, 4, and 6 of Article 58 of the Law
on Higher Education are not in conflict with Paragraph 1 of
Article 29 and Paragraph 4 of Article 46 of the Constitution.
This petition of the group of Seimas members, a petitioner, was
received at the Constitutional Court on 5 November 2007.
II
1. The petition of the President of the Republic, a
petitioner, is substantiated by the following arguments.
1.1. The provision of the Constitution which consolidates
the right of the citizens who are good at their studies to
acquire higher education free of charge obligates the state to
establish clear criteria and a procedure, according to which the
necessary funds would be allocated in order that the citizens who
are good at their studies would acquire higher education, also to
guarantee that one allocates funds as much as it is
"realistically necessary" in order to acquire higher education.
Since, as it is maintained by the President of the Republic, a
petitioner, it is the Government that establishes the number of
students who are financed, either fully or in part, by the funds
of the State Budget, while the funds allocated to institutions of
studies are computed on the grounds of the price of studies of
one student, then, in the opinion of the petitioner, the State
Budget should provide for precisely the amount of the funds that
are necessary for the payment for the studies of students who are
financed, either fully or in part, by the funds of the State
Budget and whose admittance number is established by the
Government. However, Item 14 of the Methods does not consolidate
such a requirement, however, it entrenches the principle whereby
funds of the State Budget are distributed among schools of higher
education in proportion to the need for the funds, which is
computed by means of the Methods; due to this, less funds could
be allocated to institutions of studies from the State Budget
than it is necessary in order to pay for the studies of the
number (which is established by the Government) of the students
who are financed, either fully or in part, by the funds of the
State Budget. In the opinion of the petitioner, such legal
regulation violates the constitutional right of the citizens, who
are good at their studies, to acquire higher education free of
charge, which is consolidated in Paragraph 3 of Article 41 of the
Constitution; also, the constitutional duty of the state to
allocate state schools of higher education as much funds as it is
necessary in order to guarantee higher education to the citizens,
who are good at their studies, free of charge, is not discharged;
in the opinion of the petitioner, upon establishment of such
legal regulation, the autonomy of schools of higher education
entrenched in Paragraph 3 of Article 40 of the Constitution is
violated.
1.2. According to the President of the Republic of
Lithuania, the petitioner, the criteria of computation of the
funds allocated for studies, which are established in Item 3 of
the Methods, are not enough that in the course of computation of
the funds allocated to individual institutions of studies it
would be possible to take account of the fact how the
corresponding institutions of studies secure the adherence to
established standards of teaching, and of the fact how the
content and level of education and teaching therein conform to
the qualification recognised by the state; the established
criteria do not permit to differentiate, according to the level
of quality of studies, the amount of funds necessary to finance
the programmes executed by institutions of studies, and this
virtually distorts the right (which is entrenched in the
Constitution) of the citizens who are good at their studies to
acquire higher education, and violates the right of autonomy of
schools of higher education.
2. The petition of a group of Members of the Seimas, a
petitioner, is substantiated by the following arguments.
2.1. Paragraph 4 of Article 47 of the Law on Higher
Education consolidates the right of the Government to establish
the permissible total maximum number of students admitted to
schools of higher education. In the opinion of the group of
Members of the Seimas, a petitioner, this prevents state schools
of higher education from admitting those persons, who seek to
acquire higher education not at the expense of the state, while
this is in conflict with Paragraph 3 of Article 41 of the
Constitution, according to which (as it was construed by the
Constitutional Court ruling of 14 January 2002) it is not
permitted to establish any such legal regulation whereby a state
school of higher education is obstructed or even prohibited from
admitting persons, who seek to acquire higher education not at
the expense of the state, providing the state school of higher
education has such possibilities. If the activity of state
schools of higher education is limited in the absence of any
reasonable interest of society, the right of autonomy of schools
of higher education is violated and the interest of the consumers
to acquire higher education by their own funds is unreasonably
limited.
2.2. Paragraph 5 of Article 47 and Paragraph 1 of Article 61
of the Law establish the legal regulation whereby persons, save
those specified in these paragraphs, who agree to pay the full
price of studies, may not be admitted to state schools of higher
education to study at their own expense. In the opinion of the
group of Members of the Seimas, a petitioner, such limitation is
in conflict with Paragraph 3 of Article 41 of the Constitution,
whereby, as mentioned, it is not permitted to establish any such
legal regulation whereby a state school of higher education is
obstructed or even prohibited from admitting persons, who seek to
acquire higher education not at the expense of the state,
providing the state school of higher education has such
possibilities. In addition, according to the petitioner, due to
such legal regulation there is not any opportunity to study
according to a programme of full-time studies of the first stage,
in case these are the first and the only studies for which the
full price is paid, although the persons studying according to
the study programme of the same or lower stage which they have
completed at a state school of higher education, if they paid the
full price for not more than half of the credits of the completed
study programme (Item 1 of Paragraph 1 of Article 61 of the Law),
as well as persons who simultaneously study according to two or
more study programmes of the same level, if their studies
according to at least one of these study programmes are fully or
partly paid with the state budgetary funds (Item 2 of Paragraph 1
of Article 61 of the Law) enjoy such opportunity; the fact that
different opportunities to acquire higher education by one's own
funds were unreasonably established, when account is taken of the
education acquired before or education which is being acquired at
that time, violates the principle of equality of persons
entrenched in Article 29 of the Constitution.
2.3. According to the group of Members of the Seimas, a
petitioner, after Article 57 of the Law consolidated the right of
the Government to confirm the Methods and upon mentioning several
constituent parts thereof, the principled rules whereby funds are
distributed among state schools of higher education remained
undefined; the Government was given almost absolute freedom to
establish the principles following which the funds are
distributed among the schools. However, higher education is a
constitutional institute and, in addition, the Constitution
guarantees the right of autonomy of schools of higher education;
when the rules for state financing of schools of higher education
are established by means of something other than laws, there is
too much indefiniteness, which increases the dependence of
schools of higher education on state institutions and conjuncture
decisions. Therefore (among other things, by heeding the
constitutional principles of a state under the rule of law and
separation of powers, as well as the rules of hierarchy of legal
acts), the principles of distribution of funds among state
schools of higher education should be established not in
substatutory legal acts, but in a law; substatutory legal acts
should only detail the provisions of laws and the procedure of
their implementation.
2.4. Under Paragraph 4 of Article 58 of the Law, the study
price for citizens may not exceed the study expenses. In the
opinion of the group of Members of the Seimas, the petitioner,
thus the state undertook not only the regulation of allocation of
funds necessary for the students who are good at their studies,
but also the financing of studies of the students who study at
their own expense. It violates the right of autonomy of schools
of higher education, which is guaranteed in Article 40 of the
Constitution, since such limitation of autonomy of schools of
higher education should be substantiated by clear arguments of
public expediency and necessity, meanwhile, there are no
sufficient arguments substantiating the limitation of
opportunities to provide study services by state schools of
higher education and to earn additional income, and the
limitation of opportunities to provide studies of higher level,
which are thus more expensive. Therefore, the limitation of the
right of state schools of higher education to independently
establish the price of studies for which provision of study
services would be cost-efficient, decreases or even abolishes
opportunities and incentives to provide study services for a fee
and violates Paragraph 3 of Article 41 of the Constitution, as
well as Paragraph 5 of Article 46 thereof whereby the state has a
duty to defend the interest of consumers.
2.5. Paragraphs 3, 4 and 6 of Article 58 of the Law
consolidate a different procedure for establishing the price of
studies in schools of higher education: in state schools of
higher education it is established according to centralised
rules, while in non-state schools it is determined by free
agreement. In the opinion of the group of Members of the Seimas,
it limits the opportunities of state schools of higher education
to compete with non-state schools of higher education under equal
conditions for persons who are prepared to pay the full price of
studies themselves, and it violates the principle of equality of
all persons entrenched in Paragraph 1 of Article 29 of the
Constitution, as well as the principle of fair competition
entrenched in Paragraph 4 of Article 46 thereof.
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 Government, a party concerned, who
was T. Daukantas, in which it is maintained that Items 3 and 14
of the Methods are not in conflict with the Constitution. The
position of T. Daukantas, the representative of the Government, a
party concerned, is substantiated by the following arguments.
1.1. The law consolidates the duty of the Government to
confirm the Methods and points out as to what funds must be
provided in the Methods. The Methods enable to properly compute
the need of the funds to be allocated to schools of higher
education and to establish the principles by following which, by
taking account of the financial capacities of the state, the
State Budget funds provided for studies are distributed. The Law
specifies as to which funds must be counted in study expenses,
but it does not specify how they should be distributed.
Therefore, in the opinion of the representative of the
Government, a party concerned, the Government has the right to
decide how to compute the need of funds and which methods to
apply in distributing these funds among corresponding areas; the
Government can also establish the rule of proportionate
distribution of funds among schools of higher education, which
does not at all deny an opportunity to provide allocation of as
much funds in the State Budget in order to finance these schools
as it is necessary in order to pay for the studies of the number
(which is established by the Government) of the students who are
financed, either fully or in part, by the funds of the State
Budget; when such rule is followed, it is possible to ensure the
right equal to all persons to properly financed higher education.
1.2. The criteria (computation of study expenses according
to the trend, stage and form of the studies) established in Item
3 of the Methods are in conformity to the criteria established in
the Law on Higher Education. For instance, Article 54 of the Law
provides that state budgetary funds appropriated for a school of
higher education must be linked with the appropriate programmes
and the results of assessment of school of higher education
activities. The criteria established in Item 3 if the Methods are
linked with quality requirements, since in schools of higher
education sequential studies are executed under the studies
programmes which are included in the Register of Study and
Training Programmes and the quality of which is periodically
assessed. The Ministry of Education and Science is empowered to
organise and coordinate accreditation of programmes of studies of
higher education so that the adherence to educational standards
would be secured and only such programmes of studies would be
financed, which are in conformity to the standards of education.
According to T. Daukantas, if the programmes of studies that were
registered and positively assessed under established procedure
were financed in a different manner, the quality of studies would
deteriorate, and there would not be any conditions to acquire
higher education of good quality. The allocation of the State
Budget funds (which is provided for in the Law) according to the
results of assessment of the activity of the school of higher
education is also implemented. For instance, the Methods provide
that the amount of allocated funds of the State Budget depends on
the scientific and artistic activities executed by the schools of
higher education. Thus, the funds for studies can be computed
according to various criteria, which are in conformity to the
provisions of the Law, however, these criteria have to allow to
properly compute the need for study funds, which corresponds to
real expenses for the studies; according to the representative of
the representative of the Government, a party concerned, the
criteria established in Item 3 of the Methods are precisely the
ones permitting to do so.
2. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the Member of the Seimas V. Gedvilas, the representative of
the Seimas, a party concerned, wherein it is maintained that the
disputed provisions of Articles 47, 57, 58, and 61 of the Law are
not in conflict with the Constitution. The position of the
representative of the Seimas, a party concerned, is substantiated
by the following arguments.
2.1. The autonomy of schools of higher education entrenched
in the Constitution implies independence of certain spheres of
activity of schools of higher education from the control by the
executive, however, this autonomy is relative and must be
coordinated with the principle of responsibility and
accountability to the state and society, and with the duty of
schools of higher education to observe the Constitution and laws.
The purpose of founding a school of higher education is not
autonomy as such, but rather the striving to meet the needs of
society in the sphere of education. Autonomy is only a means
assisting a school of higher education to attain the objectives
raised to it in the sphere of science and education.
While regulating the conditions of activity of state schools
of higher education, the legislator should properly secure the
interest of the entire society and those who are studying so that
the conditions of studies arranged in state schools of higher
education, as well as the acquired professional qualification,
would meet all established requirements. When the states
establishes the total maximum number of students admitted to
schools of higher education, not only the need of society to have
specialist of various areas with higher education, which is
determined by state educational and occupational policy, is
consolidated, but also the legitimate interest and expectation of
the persons who were admitted to their studies, whereby the
studies will meet all quality requirements, would be guaranteed.
While assessing the doubts of the petitioner whether when
the state establishes the total maximum number of students
admitted to schools of higher education the interests of
consumers are not violated, the representative of the Seimas, a
party concerned, noted that the interests of consumers are not
absolute ones, that there should be a balance between the
legitimate interests of a human being and the interests and
capabilities of society and the state, i.e. the interest of a
human being, who implements his right to higher education, has to
be coordinated with the capabilities of the state to ensure
higher education, and with the interests of other people to
acquire higher education.
2.2. According to the representative of the Seimas, a party
concerned, Items 1 and 2 of Paragraph 1 of Article 61 of the Law
on Higher Education are not in conflict with Paragraph 1 of
Article 29 of the Constitution and the principle of autonomy of
schools of higher education, since the persons who are already
with higher education, are enrolled to schools of higher
education under equal conditions as the persons who do not have
higher education of a corresponding stage of studies. The
provision of the law prohibiting to seek to acquire a second
higher education of the same stage of studies at a place of
studies financed by the state grants more opportunities to the
persons, who do not have higher education yet, to enrol to places
financed by the state.
2.3. The most important principles of the institute of
higher education, inter alia the principles of financing schools
of higher education, are established in the Law on Higher
Educationin Articles 54 and 57 of this law.
The funds for the studies can be computed by means of
variously formulated criteria, which are in conformity to the
provisions of the Law on Higher Education, however, on the
grounds of the established criteria it should be possible to
properly compute the need for study funds so that it would
correspond to real expenses for the studies. In the opinion of
the representative of the Seimas, a party concerned, the
computation of financing of higher education is overly detailed
and it would be a complex matter to regulate it by means of laws,
therefore, taking account of the principle of separation of
powers and the doctrine of the Constitutional Court, the Law on
Higher Education quite reasonably regulates only the general
principles of financing of schools of higher education, while the
Government is commissioned only with detailing them.
2.4. Article 9 of the Law on Higher Education, while
implementing the Constitutional Court ruling of 27 June 1994,
regulates autonomy of schools of higher education, which includes
the academic, administrative, economic and financial activities.
However, neither the said Constitutional Court ruling, nor
Article 9 of the Law on Higher Education provides that a state
school of higher education enjoys an autonomous right to
establish the price of studies to the persons who study at their
own expense.
According to the representative of the Seimas, a party
concerned, the legislator sought, by means of the provision of
Paragraph 4 of Article 58 of the Law on Higher Education whereby
the state shall regulate the price of studies, to protect the
students who are unable, because of their abilities, to enrol to
the places financed by the state. The quality of studies of the
student who pays for the studies himself must be the same as that
of a student who is financed by the state, therefore the expenses
of the students who pay for their studies cannot be bigger than
those of the students financed from the State Budget. While
regulating the size of the price of studies, which would have to
be paid by the persons who study at their own expense, protects
the interests of these persons (consumers).
2.5. According to the representative of the Seimas, a party
concerned, regulation of state and non-state schools of higher
education, which is conducted by the state, may not be identical
in both cases; the regulation of state schools of higher
education in the area of finance is more detailed, the funds are
allocated from the State Budget, while as regards the price of
studies and resources of funds in non-state schools of higher
education, it is made by free agreement between these schools of
higher education and their students. Such legal regulation cannot
be assessed as creating conditions for violation of the
principles of equality of persons or freedom of fair competition.
IV
In the course of the preparation of the case for the
judicial consideration, written explanations were received from
J. Lionginas, Chairman of the Seimas Committee of Budget and
Finance, V. Domarkas, Chairman of the Seimas Committee on
Education, Science and Culture, Prof. Habil. Dr. E. Butkus,
Chairman of the Science Council of Lithuania, Acad. B. Juodka,
Rector of Vilnius University, Prof. Habil. Dr. R. Ginevičius,
Rector of Vilnius Gediminas Technical University, Prof. A.
Pumputis, Rector of Mykolas Romeris University, Prof. A. Ramonas,
Vice-Rector (Science and Art) of Klaipėda University, Prof.
Habil. Dr. R. Žaliūnas, Rector of Kaunas University of Medicine,
Prof. Habil. Dr. H. Žilinskas, Rector of the Lithuanian
Veterinarian Academy, Prof. Dr. J. Antanavičius, Vice-Rector of
the Lithuanian Academy of Music and Theatre, E. Stumbrys,
Director of the Centre for Quality Assessment in Higher
Education, N. Kikutienė, President of the Lithuanian Colleges'
Directors' Conference, and I. Vareikytė, President of the
National Union of Student Representations of Lithuania.
V
1. At the Constitutional Court hearing, the representatives
of the President of the Republic, a petitioner, who were A.
Rauličkytė and M. Vainiutė, virtually reiterated the arguments
set forth in the petition of the President of the Republic, a
petitioner, and also presented additional explanations.
2. At the Constitutional Court hearing, the representative
of the group of Members of the Seimas, a petitioner, who was G.
Steponavičius, as well as G. Damijonaitis, virtually reiterated
the arguments set forth in the petition of the group of Members
of the Seimas, a petitioner, and also presented additional
explanations.
3. At the Constitutional Court hearing, the representative
of the Government, a party concerned, who was T. Daukantas,
virtually reiterated the arguments set forth in the written
explanations and also presented additional explanations.
4. At the Constitutional Court hearing, the representative
of the Seimas, a party concerned, who was V. Gedvilas, virtually
reiterated the arguments set forth in the written explanations.
The Constitutional Court
holds that:
I
1. On 21 March 2000, the Seimas adopted the Law on Higher
Education, which came into force on 1 September 2000 (save the
exception specified in the Law). Under Paragraph 1 of Article 1
of the Law, the purpose of the law was to establish the system of
studies, after which a person is recognised as having acquired
higher education in the Republic of Lithuania; the principles for
acquisition of professional qualifications, qualification and
research degrees in schools of higher education; the "autonomy
limits" of schools of higher education and limits of state
regulation of their activities; the rights and duties of the
school of higher education teachers and research workers, and
students; legal grounds for the founding, reorganisation and
liquidation of schools of higher education in the Republic of
Lithuania; the basic requirements for schools of higher education
and study programmes; the evaluation and registration of study
programmes; and the principles of financing of schools of higher
education and studies.
2. The Law on Higher Education was amended and/or
supplemented more than once; it was done the last time by the
Republic of Lithuania Law on Amending and Supplementing the Law
on Higher Education and the Law on Science and Studies, which was
adopted by the Seimas on 18 July 2006 and which came into force
on 1 January 2007.
3. A group of Members of the Seimas, a petitioner, requests
to investigate whether Paragraph 4 of Article 47 and Paragraph 4
of Article 58 of the Law on Higher Education are not in conflict
with Paragraph 3 of Article 40, Paragraph 3 of Article 41, and
Paragraph 5 of Article 46 of the Constitution; whether Paragraph
5 of Article 47 and Paragraph 1 of Article 61 of the Law are not
in conflict with Paragraph 1 of Article 29, Paragraph 3 of
Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article
46 of the Constitution; whether the Law, inter alia Article 57 of
this law, to the extent that, according to the petitioner, it
does not establish the principles of distribution of funds of the
State Budget among schools of higher education, while the
establishment of these principles is commissioned to the
Government, is not in conflict with Paragraph 3 of Article 40 of
the Constitution and the constitutional principles of a state
under the rule of law and separation of powers; whether
Paragraphs 3, 4, and 6 of Article 58 of the Law are not in
conflict with Paragraph 1 of Article 29 and Paragraph 4 of
Article 46 of the Constitution.
4. It is specified in the petition of the group of Members
of the Seimas, a petitioner, that the disputed provisions of the
Law are set forth in the wording of 18 July 2006; it is clear
from the arguments of the petition that it is requested to
investigate whether Paragraph 4 (wording of 22 April 2003),
Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of
18 July 2006), Article 57 (wording of 18 July 2006) (to the
specified extent), Paragraph 3 (wording of 22 April 2003),
Paragraph 4 (wording of 30 June 2005), Paragraph 6 (wording of 22
April 2003) of Article 58 (wording of 30 June 2005), and
Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law
are not in conflict with the Constitution.
5. Article 47 (wording of 18 July 2008) of the Law inter
alia provides:
- Paragraph 4 (wording of 22 April 2003): "The total maximum
number of students admitted to schools of higher education
according to study stages, forms and type of financing shall be
annually approved by the Government prior to 1 March, taking into
consideration the demand of specialists, quality of training of
specialists by a concrete school of higher education, as well as
to funds of the state budget appropriated to schools of higher
education."
- Paragraph 5 (wording of 30 June 2005): "Persons who agree
to pay the full price of studies, may be accepted to part-time or
extramural studies of all stages and full-time residency studies,
and, prior to 2005-2006, to full-time studies of the second
stage."
6. Article 57 (wording of 18 July 2006) of the Law provides:
"1. Demand of the State budgetary funds for a State school
of higher education shall be determined in accordance with the
Methods of Establishing the Needs of Funds from the State Budget
of the Republic of Lithuania and Assigning Them to Institutions
of Science and Studies. These methods shall be approved by the
Government, upon having heard the proposals of the Science
Council of Lithuania, Lithuanian Universities Rectors' Conference
(Conferences), the Directors' Conference (Conferences) of
Lithuanian Colleges, and the Union (Unions) of Representations of
the Lithuanian Students.
2. The methods must provide for the following funds for:
1) studies;
2) development of research and artistic creative work;
3) administration and economy;
4) keeping-up of objects entered into the Register of
Immovable Cultural Properties of the Republic of Lithuania and
lists of cultural properties of Lithuania.
3. Funds for studies shall be appropriated on the basis of
study expenses determined according to the methods (according to
subject areas, study stages and forms)."
7. Article 58 (wording of 30 June 2005) of the Law inter
alia provides:
- Paragraph 3 (wording of 22 April 2003): "The price of
studies at a State school of higher education shall be indicated
in the rules for admission to the school of higher education
which are coordinated in the manner defined in Paragraph 2 of
Article 47 of this Law";
- Paragraph 4 (wording of 30 June 2005): "The study price
indicated in Paragraph 3 of this Article for citizens of the
Republic of Lithuania and other member states of the European
Union may not be higher than the study price determined in the
manner prescribed in Paragraphs 1 and 2 of this Article."
- Paragraph 6 (wording of 22 April 2003): "The price of
studies at a school of higher education not belonging to the
State shall be determined by agreement."
In this context it needs to be mentioned that Paragraph 2
(wording of 22 April 2003) of Article 47 (wording of 18 July
2006) of the Law, to which reference is made in Paragraph 3
(wording of 22 April 2003) of Article 58 (wording of 30 June
2005) of the Law, provides that "Rules of admission to a school
of higher education shall be established by the school of higher
education itself. The said rules must be co-ordinated with the
Ministry [i.e. the Ministry of Education and Science] in the
manner prescribed by the Government", that "the conditions for
admission to undergraduate and integrated studies concerning
competitive subjects according to subject areas and principles of
formation of a competitive grade shall be co-ordinated in the
manner prescribed by the Government and announced at least 2
years prior to the beginning of enrolment", and that "applicants
shall have the right to submit an application to enrol in several
schools of higher education"; Paragraphs 1 and 2 (wording of 22
April 2005) of Article 58 (wording of 30 June 2005) of the Law,
to which reference is made in Paragraph 4 (wording of 30 June
2005) of this article, provide that "the expenses of studies in a
state school of higher education (according to a subject area,
study stage and form) shall be determined in compliance with the
methods referred to in Article 57 of this Law" (Paragraph 1),
also that "the expenses of studies shall include the funds
required for organising studies and maintaining the scientific
level thereof" (Paragraph 2), and these are "funds to cover the
salaries of the school of higher education teachers, scientific
workers and other workers related to studies of the school of
higher education, as well as the State Social Insurance
contributions" (Item 1 of Paragraph 2); "funds to cover expenses
of a school of higher education, in connection with studies and
goods and services needed to maintain the scientific level
thereof" (Item 2 of Paragraph 2); and "funds for organising
student cultural, sports and social activities" (Item 3 of
Paragraph 2).
8. Paragraph 1 (wording of 22 April 2003) of Article 61 of
the Law provides:
"The following shall pay the full price for studies at a
State school of higher education:
1) persons studying according to the study programme of the
same or lower stage which they have completed at a state school
of higher education, if they paid the full price for not more
than half of the credits of the completed study programme, except
the cases set out by the Government;
2) persons who simultaneously study according to two or more
study programmes of the same level, if their studies according to
at least one of these study programmes are fully or partly paid
with the State budgetary funds (they pay for the second and other
study programmes);
3) foreign nationals, unless international treaties or other
legal acts of the Republic of Lithuania provide otherwise;
4) persons admitted to study in the manner laid down in
Paragraph 5 of Article 47 of this Law."
9. On 11 October 2004, the Government adopted Resolution No.
1272 "On Approving the Methods of Establishing the Needs of Funds
from the State Budget of the Republic of Lithuania and Assigning
Them to Institutions of Science and Studies" whereby it approved
the Methods of Establishing the Needs of Funds from the State
Budget of the Republic of Lithuania and Assigning Them to
Institutions of Science and Studies. This resolution of the
Government came into force on 15 October 2004.
10. It is specified in the preamble to Government Resolution
No. 1272 of 11 October 2004 that the Methods were approved by
following inter alia Articles 57 and 58 of the Law, i.e. those
articles of the law the compliance of the legal regulation
established in which with the Constitution is disputed by the
group of Members of the Seimas, a petitioner.
11. Government Resolution No. 1272 of 11 October 2004 was
amended by Government Resolution No. 974 "On Amending Resolution
of the Government of the Republic of Lithuania No. 1272 'On
Approving the Methods of Establishing the Needs of Funds from the
State Budget of the Republic of Lithuania and Assigning Them to
Institutions of Science and Studies' of 11 October 2004" of 5
October 2006, which came into force on 12 October 2006.
12. The President of the Republic, a petitioner, requests to
investigate whether Items 3 and 14 of the Methods (wording of 5
October 2006) are not in conflict with Paragraph 3 of Article 40
and Paragraph 3 of Article 41 of the Constitution.
13. Item 3 of the Methods (wording of 5 October 2006)
provides:
"Funds for the studies shall be computed by taking account
of the following:
3.1. the type of the programme of studies;
3.2. the area, trend of studies, or a group thereof <
>;
3.3. the form of studies."
14. Item 14 of the Methods (wording of 5 October 2006)
provides: "The funds for studies shall be distributed among
institutions of science and studies (done separately among
colleges and among other institutions of science and studies) in
proportion to the need for funds of studies of each institution
of science and studies, which is computed by means of the
Methods."
15. Government Resolution No. 1272 of 11 October 2004
(wording of 5 October 2006) was amended by Government Resolution
No. 975 "On Amending Resolution of the Government of the Republic
of Lithuania No. 1272 'On Approving the Methods of Establishing
the Needs of Funds from the State Budget of the Republic of
Lithuania and Assigning Them to Institutions of Science and
Studies' of 11 October 2004" of 11 September 2007, which came
into force on 23 September 2007, however, the items of the
Methods disputed by the President of the Republic, a petitioner,
were not amended.
II
1. The legal regulation disputed in the constitutional
justice case at issue is designed for establishment of the number
of students admitted to state schools of higher education, for
the right of state schools of higher education to admit to study
those who pay for their studies themselves, for computation of
the expenses of studies, for computation of the State Budget
funds needed by state schools of higher education, and for
establishment of the amount of the price of studies in state and
non-state schools of higher education.
2. In the opinion of the group of Members of the Seimas, a
petitioner, the articles (parts thereof) of the Law, which are
disputed by the petitioner, violate the requirements (which are
entrenched in the Constitution) of accessibility of higher
education according to one's abilities; guarantee of higher
education at state schools of higher education for citizens, who
are good at their studies, free of charge; autonomy of schools of
higher education; equal rights of persons; freedom of fair
competition; defence of interests of consumers; as well as the
constitutional principles of a state under the rule of law and
separation of powers.
3. In the opinion of the President of the Republic, a
petitioner, the items of the Methods disputed by him violate the
requirements (which are entrenched in the Constitution) of
accessibility of higher education according to one's abilities;
guarantee of higher education at state schools of higher
education for citizens, who are good at their studies, free of
charge; and autonomy of schools of higher education.
4. Paragraph 1 of Article 40 of the Constitution expressis
verbis mentions state schools of higher education; Paragraph 2 of
Article 40 of the Constitution provides that "non-state
establishments of teaching <
> may be founded according to the
procedure established by law; Paragraph 4 of Article 40 of the
Constitution provides that "the State shall supervise the
activities of establishments of teaching"; Paragraph 3 of Article
41 of the Constitution provides that "higher education shall be
accessible to everyone according to his individual abilities.
Citizens who are good at their studies shall be guaranteed
education at State schools of higher education free of charge";
Paragraph 2 of Article 42 of the Constitution provides that "the
State shall support <
> science". These provisions of the
Constitution imply a duty of the state to establish a system of
state schools of higher education and to support state schools of
higher education. Under the Constitution, the state also has a
duty to define, by means of a law, the procedure of founding of
non-state schools of higher education.
5. The state forms and executes the higher education policy
which should conform to the public interest and needs of society.
This policy includes inter alia establishment of strategic areas
(trends) of development of higher education, choosing a model of
financing higher education that corresponds to state needs and
capabilities, establishment of the demand of specialists of
various areas (trends), and establishment of measures allowing to
secure the quality of studies. Under the Constitution, inter alia
Paragraph 3 of Article 41 thereof, the state has to undertake
obligations to finance the preparation of a certain number of
specialists. Such obligationsit goes without saying, they must
be announced in advanceare in conformity to the need of society
and the state to have a certain number of specialists of certain
areas (trends) with higher education, as well as the capabilities
of society and the state to finance their preparation.
6. While forming and executing the policy of higher
education, the state must pay heed to interests of schools of
higher educationof both state and non-state schools of higher
educationsince higher education, and, science in general, can
foster and be developed only without state petty administration
of scientific activity and teaching. In this context, it needs to
be noted that, under Paragraph 1 of Article 42 of the
Constitution, culture, science and research, and teaching shall
be free. However, it needs to be emphasised that the funds
allocated by the state to schools of higher education must be
used efficiently and heeding requirements of legal acts.
7. It happened to be so that state schools of higher
education dominate in the system of higher education of
Lithuania; for instance, higher education in a great many of
areas (trends) is provided only in state schools of higher
education; practically, only state schools of higher education
provide university higher education, it is in state schools of
higher education where most students are learning, and it is the
scientists working in state schools of higher education who
create most of scientific works.
8. Under Paragraph 3 of Article 41 of the Constitution,
every human being has the right to higher education which is
accessible according to his individual abilities. The
Constitutional Court has held that this constitutional human
right is an important condition for implementation of his various
rights and legitimate expectations and implies a duty of the
state to create preconditions for implementation of this right
(Constitutional Court rulings of 14 January 2002, 7 June 2007,
and 20 February 2008). Thus, both state schools of higher
education and non-state schools of higher education established
under procedure established by law must be accessible to each
human being according to his abilities. While ensuring the
accessibility of higher education according to one's abilities,
it is necessary to heed the imperatives consolidated in Article
29 of the Constitution whereby all persons shall be equal before
the law, the court, and other state institutions and officials,
and that the rights of the human being may not be restricted, nor
may he be granted any privileges on the ground of gender, race,
nationality, language, origin, social status, belief,
convictions, or views.
However, it needs to be emphasised that the accessibility of
higher education to everyone according to his abilities does not
at all mean that higher education is universally compulsory, nor
does it mean that it is required to establish any such standards
of higher education which would worsen the quality of higher
education.
9. Funds of the State Budget must be allocated to state
schools of higher education. Under commissioning of the state,
specialists of certain areas (trends) may also be prepared in
non-state schools of higher education by funds of the State
Budget. In addition, it is permitted to support citizens, who
study in schools of higher education of other states, by funds of
the State Budget.
In this context, it needs to be mentioned that, as it was
held by the Constitutional Court, under the Constitution, the
state must create a system of support for the persons who seek to
acquire higher education that every person who learns at a school
of higher education, and to whom the support is necessary, would
have a possibility to get a state loan necessary for his studies
(Constitutional Court ruling of 7 June 2007). Such system of
support of the persons who seek to acquire higher education must
also secure the possibilities that the persons, who learn in
schools of higher education, who meet constitutionally reasonable
criteria and who need support, receive support of other character
(grants, allowances etc.). The state can establish various forms
of individual granting of state loans to persons studying in
state schools of higher education, as well as those of support of
these persons, and it enjoys broad discretion in this area.
However, it needs to be emphasised that the system of granted
loans and support must secure the accessibility to higher
education according to one's abilities; the constitutional
principles of non-discrimination, clarity and transparency must
be heeded. The system of loans to those studying in state schools
of higher education and support of those studying in schools of
higher education should be efficient and reliable.
10. The Constitutional requirement to secure accessibility
to higher education according to one's abilities does not mean
that it must be done only by state funds. The Constitutional
Court ruling of 14 January 2002 held: the constitutional
provisions that higher education shall be available to everyone
according to their individual abilities cannot be interpreted as
imposing a duty on the state to ensure funding of any higher
education for anyone capable of seeking it without proper
consideration of the needs and possibilities of the society and
the state; this provision cannot be interpreted in a way that
would deny an individual's constitutional right to seek higher
education according to his abilities even when the state does not
finance his education because that would exceed the needs and
possibilities of the society and the state; the need of the
society and the state to have graduate specialists in various
areas and the possibility to finance only a certain number of
specialists cannot be an obstacle for a person to seek higher
education according to his abilities not at the expense of the
state both in state and non-state schools of higher education
even when this exceeds the needs and possibilities of the society
and the state. In the same Constitutional Court ruling it was
also held that if a state higher school is able to provide higher
education in accordance with the requirements set by the state
not only to the persons whose studies are financed by the state
but also to those who seek higher education in a state higher
school not at the expense of the state, then the legal regulation
obstructing or even prohibiting a state higher school to admit
these persons to that higher school cannot be established.
However (especially due to the fact that, as mentioned, in
Lithuania state schools of higher education are dominant), it
needs to be emphasised that the right of state schools of higher
education, which stems from the Constitution, to provide higher
education also to the persons who seek education at their own
expense (providing the school of higher education has
possibilities to provide the higher education conforming to the
quality standards established by the state), cannot create
preconditions in any cases to worsen the quality of studies in
state schools of higher education, inter alia to deteriorate the
conditions to the persons who seek to acquire higher education by
state funds.
11. As mentioned, under Paragraph 3 of Article 41 of the
Constitution, the state has a duty to guarantee the citizens, who
a good at their studies, higher education in state schools of
higher education free of charge.
The Constitution does not define expressis verbis as to
which citizens are to be regarded as those who are good at their
studies. The content of the notion "citizen who is good at his
studies" is revealed in the official constitutional doctrine: a
citizen who is good at his studies is to be regarded the one who
"is good at his studies, i.e. his learning meets the established
criteria of learning well" (Constitutional Court ruling of 14
January 2002); the criteria enabling to establish which students
can be said to demonstrate good academic results and which would,
consequently, as prescribed by the Constitution, have the right
that their education in state higher schools be financed by the
state, should be established by law (Constitutional Court ruling
of 7 June 2007). These criteria must be known in advance, they
must be clear and transparent, they cannot deviate not only from
the constitutional concept of good learning, but also from such
concept of good learning, which arises from the social experience
of society and which does not deny the meaning of the word "good"
that is understood by everyone and is generally recognised. In
the context of the constitutional justice case at issue it needs
to be emphasised that the criteria which are established by a law
and according to which persons funded by the state are regarded
as those who are good at their studies cannot be formal;
moreover, it is not permitted to establish in advance a number of
citizens who are allegedly "good at their studies", either an
absolute or relative size, i.e. a quota, since it is impossible
in advance to predict precisely how many students will actually
be learning well, and how many of them will not. The
establishment of such quotas would completely distort the
constitutional concept of good learning. On the one hand, there
can actually be more citizens, who are good at their studies,
than it is provided for by establishing a quota a priori,
therefore, some citizens, whose learning, as it is generally
recognised, is doubtlessly regarded as good, would remain outside
of the quota; in such cases the state would not discharge its
constitutional duty to finance the studies of all students who
learn well in state schools of higher education. On the other
hand, there can actually be fewer citizens, who are good at their
studies, than it is provided for by establishing a quota a
priori, still, one would have to fund the studies of such
citizens studying in state schools of higher education, who were
covered by the said quota accidentally, whose learning, as it is
generally recognised, is doubtlessly regarded as good; in such
cases state funds would be used in a manner, which is
constitutionally unreasonable and unfair from the social
standpoint.
12. It needs to be specially emphasised that it is
impossible to construe the constitutional provision whereby
citizens who are good at their studies shall be guaranteed
education at state schools of higher education free of charge, as
meaning that, purportedly, the Constitution guarantees higher
education covered by state funds to all citizens who are good at
their studies in state schools of higher education, no matter
under what conditions they were admitted to such schools, i.e.
also to those citizens who are good at their studies, who,
however, in the course of admittance to a corresponding state
school of higher education were not admitted to the places whose
number announced in advance conforms to the obligation of the
state to fund the preparation of a certain number of specialists,
and who were admitted to study at the state school of higher
education at their own expense. The said provision of the
Constitution is to be construed as consolidating a duty of the
state to guarantee higher education funded from the State Budget
only to those citizens who are good at their studies in state
schools of higher education, who are prepared in order to meet
the demand of specialists of corresponding areas (trends), which
is established by the state. As mentioned, support of higher
education is to be regulated by legal acts in such a manner, so
that the expenses of studies of citizens who are good at their
studies in state schools of higher education, who are prepared in
order to meet the established demand of specialists of
corresponding areas (trends), by no means would fall upon these
persons.
13. As mentioned, under Paragraph 3 of Article 40 of the
Constitution, schools of higher education shall be granted
autonomy. This provision means that autonomy is guaranteed both
to state and non-state schools of higher education.
It has been held in the jurisprudence of the Constitutional
Court that, traditionally, the autonomy of a school of higher
education is conceived as the right to independently determine
and establish in the regulations or statute its organisational
and governmental structure, its relations with other partners,
the procedure of research and studies, academic syllabi, the
procedure of students' enrolment, to resolve other related
questions, as well as that there are certain spheres of
activities, independent from the control of the executive power
(Constitutional Court rulings of 27 June 1994, 14 January 2002, 5
February 2002, and 20 February 2008). It was also held that the
society is concerned with creating due conditions for
institutions of higher education in order to ensure all-round
education of the personality, and that schools of higher
education enjoy freedom of teaching, of scientific research and
creative activities (Constitutional Court ruling of 5 February
2002). On the other hand, the interests of schools of higher
education and those of society must be coordinated; the principle
of autonomy of schools of higher education must be coordinated
with their duty to observe the Constitution and laws, with their
responsibility and accountability before society (Constitutional
Court ruling of 5 February 2002). Schools of higher education
must act while complying the Constitution and law; making use of
the autonomy which is guaranteed to schools of higher education
by the Constitution may not create any preconditions to abuse the
said autonomy.
Granting of autonomy to schools of higher education does not
relieve the state from its constitutional duty to secure the
efficiency of the system of higher education. Therefore, the
autonomy of schools of higher education does not mean that the
activity of such schools cannot be subject to state control;
quite to the contrary, this activity, since it is related inter
alia with the implementation of human rights and freedoms, as
well as with the use of funds of the State Budget, must be
subject to regulation and supervision; it stems from the
provision of Paragraph 4 of Article 40 of the Constitution
whereby the state shall supervise the activities of
establishments of teaching and education. However, the right of
the state to regulate external relations of schools of higher
education may not limit the scientific and educational activity
of schools of higher education (Constitutional Court rulings of
27 June 1994, 5 February 2002 and 20 February 2008).
It also needs to be mentioned that the autonomy of schools
of higher education entrenched in the Constitution does not at
all imply that corresponding powers may be granted to all schools
of higher education; quite to the contrary, the rights enjoyed by
schools of higher education may be differentiated (by heeding the
Constitution) according to various important criteria, inter alia
according to the fact as to what status of these schools of
higher education is (i.e. whether they are universities or not),
what level of higher education is provided by them to the persons
that learn in them, what syllabi they implement, what their
scientific potential is, etc. (Constitutional Court decision of 1
February 2008 and ruling of 20 February 2008).
14. In the context of the constitutional justice case at
issue it needs to be noted that the constitutional provision that
the state shall supervise the activities of establishments of
teaching, the constitutional imperative of coordination of the
interests of schools of higher education and those of society,
the constitutional obligation of the sate to secure the
efficiency of the system of higher education imply also a duty of
the state to adopt the corresponding decisions linked with
financing higher education in state schools of higher education
by assessing whether higher education is provided in these
schools of higher education according to confirmed programmes of
studies, also, upon assessment of the quality of these programmes
and that of their execution, and upon assessment of the
possibilities of schools of higher education to prepare a certain
number of good quality specialists of corresponding areas
(trends); one must also assess whether there are necessary
conditions in state schools of higher education to provide the
higher education which meets the standards established by the
state to the persons whose studies are financed by the State
Budget funds, as well as to persons who study at their own
expense.
15. In this context it needs to be mentioned that, as it was
held in the Constitutional Court ruling of 20 February 2008, the
arising from the Constitution guarantee of recognition of the
higher education (profession) provided by legally operating
schools of higher education implies the powers of respective
state institutions to control the quality of higher education and
secure that the level of the provided higher education, which is
denoted by various qualification degrees, would meet certain
uniform standards of quality of higher educationboth general
standards and those concretising them, those defining the
requirements for certain trends of studies; such standards must
be established by the state institutions which, within their
competence, form the policy of higher education, organise and
execute the supervision of activities of schools of higher
education.
In order that schools of higher education would be able to
perform their constitutional obligationto provide higher
education, which meets the standards established by the stateit
is especially important that teachers of high qualifications work
in them. This condition of good quality higher education is
inseparable not only from freedom of science, research, and
teaching, which is entrenched in the Constitution, but also from
the existing infrastructure of higher education and state
investment into this infrastructure, from the structure of
schools of higher education (which should not be regulated by
state legal acts so that this would stop the dynamism of
scientific and pedagogical activity and the mobility of teachers
and scientists), as well as from corresponding social guarantees
to teachers, inter alia from establishment of the remuneration,
which corresponds to the social function (protected by the
Constitution) of this profession, secures dignified life, where
one can devote all his working time to pedagogical and scientific
activity, and which enables increasing one's qualification.
Teaching and scientific activity are a special activity which
requires creativity; such activity is not similar to other types
of professional activities and it is impossible to liken it to
those other types of activities. Studies do not mean only work in
lecture rooms, therefore, the work of teachers in preparing
qualified specialists by no means is linked only with the time
spent with those studying in lecture rooms etc.; a very important
part of the qualitative, thus, creative, work time of a teacher
of a school of higher education is given for preparation for
classes with the students, for guiding the students in their
independent studies, for heading scientific activities, for
professional communication with other scientists and researchers
etc., i.e. for the activities which are often conducted outside
the premises of a school of higher education, and, sometimes,
such activities cannot be conducted in these premises (all the
more so that, as it is generally known, in Lithuania teachers in
schools of higher education do not have individual premises for
work). This specificity of teachers of schools of higher
education determines that fact that the account of their work-
load cannot be based upon the mere formal criterion as the time
spent in a lecture room or in the premises of a school of higher
education in general. The account of the work-load of teachers of
schools of higher education must be regulated by legal acts so
that the said specificity of their work would be heeded; the
constitutional guarantee of autonomy of schools of higher
education implies that the legislator must provide for special
legal regulation, while the greater part of the legal regulation
of the said relations should be composed by local legal
regulation established by schools of higher education, which must
be bases on the legal regulation established by the legislator.
Schools of higher education must be guaranteed opportunities to
prepare qualified specialists, otherwise the value of higher
education acquired in schools of higher education of Lithuania is
diminished.
16. So that they would perform their functions, state
schools of higher education must be allocated not only funds of
the State Budget, but also transferred corresponding state-owned
property.
The Constitutional Court has held that from the Constitution
(inter alia the provision of Paragraph 2 of Article 128 thereof
that the procedure for the possession, use and disposal of state
property shall be established by law) follows the requirement to
treasure state-owned property, not to waste it and manage it
rationally; under the Constitution, laws must protect the rights
of all owners, thus including the right of ownership of the state
as the organisation of the entire society; it is not permitted to
establish such legal regulation according to which the property
that belongs to the state by right of ownership would be
possessed, used or disposed of in such a manner so that the
interests or needs of only one social group or individual persons
are satisfied and that this property does not serve the public
interest, the need of society, and the welfare of the nation, or
that this property belonging to the state by right of ownership
would be transferred as ownership to other subjects in order to
satisfy the interests or needs of only one social group or
individual persons, if this does not comply with the need of
society, the public interest, or does not serve the welfare of
the Nation (Constitutional Court rulings of 30 September 2003, 8
July 2005, and 5 July 2007).
Thus, under the Constitution, the state, while having a duty
to supervise the activity of establishments of teaching, must
also supervise whether the state-owned property transferred to
state schools of higher education is possessed, used and disposed
of wile heeding the public interest and needs of society.
17. It has been mentioned that state schools of higher
education must be allocated state funds so that they could
perform their functions; these funds must be provided for in a
state budget. The Constitutional Court has held that the
essential guarantee of the autonomy of state higher schools is
such legal regulation when the state budget law provides not only
for allocations for higher education but also funds for each
state higher school; also that, while providing for state budget
funds for state higher schools, the needs of the society and the
state ensured by these schools, their existing and future
programs, also their way of ensuring adherence to the set
teaching standards, the correspondence of the content and level
of teaching to the qualification recognised by the state, state
obligations to these schools etc. should be considered
(Constitutional Court ruling of 14 January 2002).
18. It has also been mentioned that state schools of higher
education can provide higher education which conforms to the
standards established by the state also to persons, who study at
their own expense, provided the corresponding state school of
higher education has such possibilities. Thus, those studying in
schools of higher education are also to be treated as consumers
of higher education services. While providing higher education to
persons studying at their own expense, state schools of higher
education compete with one another and with non-state schools of
higher education.
From the provision "the State shall supervise the activities
of establishments of teaching" of Paragraph 4 of Article 40 of
the Constitution, the provision "the law <
> shall protect
freedom of fair competition" of Paragraph 4 of Article 46
thereof, and the provision "the State shall defend the interests
of the consumer" of Paragraph 5 of the same article, a duty
arises to the state, when it regulates the relations linked with
the school of higher education, to establish such legal
regulation, which would not distort fair competition, also to
consolidate various measures of protection of consumers of higher
education services. When corresponding relations are regulated by
legal acts, it is necessary to heed the fact that, as mentioned,
funds of the State Budget are allocated to state schools of
higher education, and certain property belonging to the state by
right of ownership is transferred to them.
19. Under the Constitution, the Government has the powers to
prepare a draft State Budget (Item 4 of Article 94 of the
Constitution); the State Budget is approved by the Seimas (Item
14 of Article 67 of the Constitution). The Seimas does so by
passing a law (Paragraph 1 of Article 131 of the Constitution).
The Constitutional Court has held that: while preparing a
draft State Budget, the Government must take account of the
existing economic and social situation, the needs and
possibilities of the society and the state, the available and
potential financial resources as well as state liabilities, as
well as other important factors; the state possibilities to
finance higher education are not limitless; the state
possibilities to finance higher education are and must be linked
with the interest of society and the statethe need to have
specialists of various areas with higher education
(Constitutional Court rulings of 14 January 2002 and 11 July
2002). Thus, a duty falls upon the state to establish the demand
of specialists of various areas (trends) by taking account of not
only the existing demand of such specialists, but also of the
demand of such specialists in the future, and to allocate the
necessary funds in order to prepare such specialists. It has been
held in this Constitutional Court ruling that the state
obligations, which are announced in advance, to finance the
preparation of a certain number of specialists are in conformity
to the need of society and the state to have a certain number of
specialists of certain areas (trends) with higher education, as
well as the capabilities of society and the state to finance
their preparation.
20. The State Budget funds allocated to schools of higher
education also encompass the funds for financing the studies of
the citizens studying in state schools of higher education, who
are good at their studies. However, it needs to be noted that, as
it has been held in this Constitutional Court ruling, the
Constitution guarantees higher education covered by state funds
not to all citizens who are good at their studies in state
schools of higher education, no matter under what conditions they
were admitted to such schools (i.e. not to all those citizens who
are good at their studies, who, however, were not admitted to the
places whose number announced in advance conforms to the
obligation of the state to fund the preparation of a certain
number of specialists, and who were admitted to learn at the
state school of higher education at their own expense), but only
to those citizens who are good at their studies in state schools
of higher education, who are prepared in order to meet the demand
of specialists of corresponding areas (trends), which is
established by the state. It is namely for financing of their
studies that one has to provide the necessary funds in the State
Budget. If learning of these citizens does not correspond to the
criteria of good learning established by law, the state does not
have to finance their studies.
21. The state which, under the Constitution, has a duty to
support science, secure accessibility of higher education,
guarantee higher education in state schools of higher education
to citizens who are good at their studies free of charge, who are
prepared by meeting the established demand of specialists of
corresponding areas (trends), may choose and establish in laws
various models of financing of higher education. While doing so,
the legislator is bound by the constitutional obligations of the
state, as well as financial capabilities of the state which, as
mentioned, are not limitless. The law may not establish any such
model of financing of higher education, which would not be based
upon a balanced assessment of the needs of society and the state
and the financial capabilities of the state, where the state
would clearly obviously be unable to implement such model; the
establishment of such model would be in conflict inter alia with
the constitutional imperative of social harmony and would not
allow the state to perform its various other obligations.
Therefore, while establishing a model of financing higher
education and regulating, by means of legal acts, the relations
linked thereto, one must take account of the fact that, the
higher education, which would meet the quality standards
established by the state can be provided by the schools of higher
education that have teachers of high qualification, the
indispensable training facilities, the necessary infrastructure
etc. It has been mentioned that, under the Constitution, the
rights enjoyed by schools of higher education may be
differentiated (by heeding the Constitution) inter alia according
to the fact as to what status of these schools of higher
education is (i.e. whether they are universities or not), what
level of higher education is provided by them to the persons that
learn in them, what syllabi they implement, what their scientific
potential is, etc. Thus, when account is taken of all this,
funding of state schools of higher education from the State
Budget can also be different, and, in certain respects it must be
different. There is not any provision of the Constitution which
could be construed as implying egalitarianism in this area.
22. Planning of funds for state schools of higher education
in the budget is inseparable from reasonable and fair computation
of expenses of studies, i.e. the computation of how much funds
are necessary for arranging of good quality studies in those
schools of higher education and maintenance of the proper level
of scientific activity. The expenses of studies (also those in
state schools of higher education) are determined by various
factors; in different schools of higher education the expenses of
studies even of the same area (trend) and of the same quality can
be different. Doubtless to say, the state, while taking account
of the position of schools of higher education, enjoys the powers
to establish the composition of expenses of studies in state
schools of higher education; by means of state legal acts
rational, clear, transparent and reasonable criteria may and must
be established, which would allow state schools of higher
education to compute realistic expenses of studies conducted in
them according to areas (trends), stages, and forms of studies,
so that financing of these studies from the State Budget would
correspond to its purpose, i.e. that it would permit to secure
good quality preparation of specialists of various areas
(trends). Therefore, the computation of expenses of studies
cannot be pressed on the schools of higher education. Such legal
regulation which creates preconditions to ignore the position of
schools of higher education, which is grounded on rational
arguments, as regards realistic expenses of studies conducted in
them, would doubtlessly violate the autonomy of schools of higher
education that is guaranteed by the Constitution, as well as
other values entrenched in, and defended and protected by the
Constitution, inter alia the right of a human being to seek good
quality higher education. While submitting a requisition to a
school of higher education to admit a certain number of students,
the state must guarantee that the State Budget will provide for
corresponding funds and these state funds will cover their
expenses of studies, of course, providing their learning will
correspond to the criteria of good learning established by law.
23. In the context of the constitutional justice case at
issue it needs to be emphasised that the computed realistic
expenses of studies are an important guideline in establishing
the price of studies, which has to be paid by the persons for
studies in state schools of higher education, who are prepared by
satisfying the need (established by the state) for specialists of
various areas (trends), if their learning does not correspond to
the criteria of good learning established by law (since, as
mentioned, although the funds necessary for their studies should
be provided for in the State Budget, if learning of these
citizens does not correspond to the criteria of good learning
established by law, the state will not have to finance their
studies).
The said expenses of studies are also an important guideline
in establishing the price of studies, which has to be paid by the
persons who were not admitted to the places, the number of which
announced in advance corresponds to the established obligation of
the state to finance the preparation of a certain number of
specialists, but were admitted to studies in a corresponding
state school of higher education at their own expense. There are
no legal arguments which would allow to maintain that,
purportedly, the price that must be paid by such students for
their studies, must in all cases be the same as the price that
has to be paid by the persons, who are prepared by satisfying the
need (established by the state) for specialists of various areas
(trends), if their learning does not correspond to the criteria
of good learning established by law. As mentioned, teaching of
such students depends on the possibilities of the school of
higher education to provide good quality higher education without
creating any preconditions to deteriorate the quality of studies
in state schools of higher education, inter alia by giving less
attention to the persons who seek to acquire higher education by
state funds; thus, due to creation of corresponding possibilities
there may also appear additional expenses, and if the state
submits a requisition to admit less students than schools of
higher education are capable of preparing, the expenses for
studies may decrease. Thus, the discussed prices of studies could
not necessarily be the same.
24. It needs to be emphasised that the powers to establish
the said prices of studies are enjoyed by state schools of higher
education. In addition, it needs to be emphasised that these
prices must be rationally reasoned, they may not create any
preconditions to violate the constitutional principle of
accessibility of higher education according to one's abilities,
the imperatives (entrenched in the Constitution) of social
harmony and justice, they may not increase the social gulf. From
the viewpoint of the Constitution, it would be unjustifiable to
establish such prices for studies, which would create
preconditions to cover also such expenses by means of studying
persons, which are not necessary so that corresponding persons
who pay for their studies would acquire good quality higher
education, i.e. which are not necessary for arrangement of good
quality studies in those schools of higher education and
maintenance of the proper level of scientific activity.
III
On the compliance of Paragraph 4 (wording of 22 April 2003)
of Article 47 (wording of 18 July 2006) of the Law with Paragraph
3 of Article 40, Paragraph 3 of Article 41 and Paragraph 5 of
Article 46 of the Constitution.
1. Paragraph 4 (wording of 22 April 2003) of Article 47
(wording of 18 July 2006) (which regulates admittance to state
schools of higher education) of the Law provides: "The total
maximum number of students admitted to schools of higher
education according to study stages, forms and type of financing
shall be annually approved by the Government prior to 1 March,
taking into consideration the demand of specialists, quality of
training of specialists by a concrete school of higher education,
as well as to funds of the state budget appropriated to schools
of higher education."
2. In the opinion of a group of Members of the Seimas, a
petitioner, the right of the state to establish the permissible
total maximum number of students (who pay the full price of
studies) admitted to schools of higher education limits the
activity of state schools of higher education in the absence of
any reasonable interest of society and violates their right of
autonomy, and, thus, unreasonably limits the interest of the
consumers to acquire higher education by their own funds.
3. While deciding subsequent to the petition of the group of
Members of the Seimas, the petitioner, whether Paragraph 4
(wording of 22 April 2003) of Article 47 (wording of 18 July
2006) of the Law is not in conflict with Paragraph 3 of Article
40, and Paragraph 3 of Article 41 of the Constitution, it needs
to be held that the disputed provision consolidates the powers of
the Government to establish the total maximum number of students,
who are admitted to studies of all forms of each stage (also,
one-stage studies) of each programme; while doing so, the
Government must take into consideration "the demand of
specialists, quality of training of specialists by a concrete
school of higher education, as well as to funds of the state
budget appropriated to schools of higher education".
The "total maximum number of students admitted to schools of
higher education" mentioned in Paragraph 4 (wording of 22 April
2003) of Article 47 (wording of 18 July 2006) of the Law
encompasses also those students, the financing of whose studies
the state has obligated itself to cover (however, only if they
are good at their studies), and those students, who seek to
acquire higher education in a state school of higher education
not by state funds, but at their own expense. Thus, the
Government is empowered to establish (to instruct state schools
of higher education) not only how many students must be admitted
to state schools of higher education (according to areas
(trends), stages and forms of studies) by meeting the established
demand of specialists of corresponding areas (trends), i.e. to
submit a corresponding state requisition (which must be
guaranteed by providing for funds in the State Budget in order to
pay the expenses of their studies, providing the learning of
these citizens corresponds to the criteria of good learning
established by law), but also to establish, at its discretion
(regardless of the real capabilities of schools of higher
education to provide higher education, which conforms to the same
quality standards established by the state, not only to the
persons whose studies are financed by the state itself, but also
to those who seek to acquire higher education in a state school
of higher education at their own expense), how many students must
be admitted (according to areas (trends), stages and forms of
studies) to state schools of higher education, who seek to study
in corresponding state schools of higher education at their own
expense.
4. It has been held that it is not permitted to establish
any such legal regulation whereby a state school of higher
education is obstructed or even prohibited from admitting
persons, who seek to acquire higher education not at the expense
of the state, providing the state school of higher education has
the capabilities to provide higher education, which conforms to
the same quality standards established by the state, not only to
the persons whose studies are financed by the state itself, but
also to those who seek to acquire higher education in a state
school of higher education at their own expense.
5. Thus, the powers of the Government to establish the total
maximum number of students, who are admitted to studies of all
forms of each stage (also, one-stage studies) of each programme,
which are consolidated in Paragraph 4 (wording of 22 April 2003)
of Article 47 (wording of 18 July 2006) of the Law, create
preconditions for unreasonable limitation of the accessibility of
higher education according to one's abilities, which is
entrenched in the Constitution, and also limit the autonomy of
schools of higher education that is guaranteed by the
Constitution.
6. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 4 (wording of 22 April 2003) of
Article 47 (wording of 18 July 2006) of the Law is in conflict
with Paragraph 3 of Article 40, and Paragraph 3 (the provision
that higher education shall be accessible to everyone according
to his individual abilities) of Article 41 of the Constitution.
7. Having drawn this conclusion, the Constitutional Court
will no longer investigate in this constitutional justice case
whether Paragraph 4 (wording of 22 April 2003) of Article 47
(wording of 18 July 2006) of the Law is not in conflict with
Paragraph 5 of Article 46 of the Constitution.
IV
On the compliance of Paragraph 5 (wording of 30 June 2005)
of Article 47 (wording of 18 July 2006) and Paragraph 1 (wording
of 22 April 2003) of Article 61 of the Law with Paragraph 1 of
Article 29, Paragraph 3 of Article 40, Paragraph 3 of Article 41
and Paragraph 5 of Article 46 of the Constitution.
1. Paragraph 5 (wording of 30 June 2005) of Article 47
(wording of 18 July 2006) (which, as mentioned, regulates
admittance to state schools of higher education) of the Law
provides: "Persons who agree to pay the full price of studies,
may be accepted to part-time or extramural studies of all stages
and full-time residency studies, and, prior to 2005-2006, to
full-time studies of the second stage."
2. Paragraph 1 (wording of 22 April 2003) of Article 61
(which regulates admittance to paid studies in state schools of
higher education) of the Law provides:
"1. The following shall pay the full price for studies at a
State school of higher education:
1) persons studying according to the study programme of the
same or lower stage which they have completed at a State school
of higher education, if they paid the full price for not more
than half of the credits of the completed study programme, except
the cases set out by the Government;
2) persons who simultaneously study according to two or more
study programmes of the same level, if their studies according to
at least one of these study programmes are fully or partly paid
with the State budgetary funds (they pay for the second and other
study programmes);
3) foreign nationals, unless international treaties or other
legal acts of the Republic of Lithuania provide otherwise;
4) persons admitted to study in the manner laid down in
Paragraph 5 of Article 47 of this Law."
3. In the opinion of the group of Members of the Seimas, a
petitioner, the fact that the persons who are willing to pay the
full price of their studies may not be admitted to state schools
of higher education at their own expense does not allow state
schools of higher education, providing they have such
capabilities, to admit the persons who seek to acquire higher
education by non-state funds; in addition, different
opportunities to acquire higher education by one's own funds were
established unreasonably, in violation of the constitutional
principle of equality of persons.
4. While deciding subsequent to the petition of the group of
Members of the Seimas, a petitioner, whether Paragraph 5 (wording
of 30 June 2005) of Article 47 (wording of 18 July 2006) of the
Law is not in conflict with Paragraph 3 of Article 40 and
Paragraph 3 of Article 41 of the Constitution, it needs to be
held that this paragraph has established a final list of the
forms and stages of studies, according to which persons may be
admitted to studies who are willing to pay the full price of
studies; however, this list does not encompass all existing forms
and stages of studies, and it means that it is not permitted that
the persons who seek to acquire higher education in a state
school of higher education by non-state funds be admitted to
studies of such forms and stages, which are not specified in the
said list, even if the school of higher education has
capabilities to provide them with higher education that meets the
quality standards established by the state.
5. Thus, the legal regulation established in Paragraph 5
(wording of 30 June 2005) of Article 47 (wording of 18 July 2006)
of the Law unreasonably limits the accessibility of higher
education according to one's abilities, which is entrenched in
the Constitution, and also limits the autonomy of schools of
higher education that is guaranteed by the Constitution.
6. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 5 (wording of 30 June 2005) of
Article 47 (wording of 18 July 2006) of the Law to the extent
that it does not provide that the persons who are willing to pay
the full price of studies may be admitted also to the studies of
the forms and stages that are not specified in this list
presented in this paragraph (providing the school of higher
education has capabilities to provide them with higher education
that meets the quality standards established by the state), is in
conflict with Paragraph 3 of Article 40 and Paragraph 3 (the
provision that higher education shall be accessible to everyone
according to his individual abilities) of Article 41 of the
Constitution.
7. Having drawn this conclusion, the Constitutional Court
will no longer investigate in this constitutional justice case
whether Paragraph 4 (wording of 30 June 2005) of Article 47
(wording of 18 July 2006) of the Law is not in conflict with
Paragraph 1 of Article 29 and Paragraph 5 of Article 46 of the
Constitution.
8. While deciding subsequent to the petition of the group of
Members of the Seimas, a petitioner, whether Paragraph 1 (wording
of 22 April 2003) of Article 61 of the Law is not in conflict
with Paragraph 1 of Article 29, Paragraph 3 of Article 40,
Paragraph 3 of Article 41 and Paragraph 5 of Article 46 of the
Constitution, it needs to be noted that Paragraph 1 (wording of
22 April 2003) of Article 61 of the Law provides what persons
must pay the full price of studies in state schools of higher
education.
8.1. In this context it needs to be noted that the
provisions of Paragraph 1 (wording of 22 April 2003) of Article
61 of the Law, which entrench what persons must pay the full
price of studies in state schools of higher education are
inseparable from the provisions of the Law, which entrench as to
whose studies are financed by the state, thus, also from the
provisions of the Law, which define which citizens are to be
regarded as being good at their studies in state schools of
higher education.
8.1.1. Paragraph 1 (wording of 22 April 2003) of Article 60
of the Law inter alia provides that "students, who are regarded
as those who are good at their studies, shall be 30 per cent of
students of every study programme of each semester, except the
students referred to in Article 61 of this Law, who are selected
each semester according to the best study results (in the first
study semesteraccording to the enrolment results)".
Thus, a quota of those who are good at their studies is
established a priori.
8.1.2. It has been held in this Constitutional Court ruling
that the criteria which are established by a law and according to
which persons funded by the state are regarded as those who are
good at their studies cannot be formal; moreover, it is not
permitted to establish in advance a number of citizens who are
allegedly "good at their studies", either an absolute or relative
size, i.e. a quota, since it is impossible to predict precisely
in advance how many students will actually be learning well, and
how many of them will not; the establishment of such quotas would
completely distort the constitutional concept of good learning.
8.1.3. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 1 (wording of 22 April 2003) of
Article 60 of the Law to the extent that it establishes a quota
(expressed in percentage) of students who are good at their
studies is in conflict with Paragraph 3 (the provision that
citizens who are good at their studies shall be guaranteed
education at state schools of higher education free of charge) of
Article 41 of the Constitution.
8.2. The clause "full price for studies" of disputed
Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law
is to be construed while taking account of the official
constitutional doctrinal provisions set forth in this
Constitutional Court ruling, inter alia of the fact that, as it
has been mentioned: the price of studies which has to be paid by
the persons who in the course of enrolment to a corresponding
state school of higher education have not been admitted to the
places, the number of which that was announced in advance
corresponds to the obligation of the state to finance the
preparation of a certain number of specialists, and who have been
admitted to study in a corresponding state school of higher
education at their own expense, can be different from the price,
which has to be paid by the persons who are prepared in state
schools of higher education in order to meet the demand
(established by the sate) of specialists of corresponding areas
(trends), providing their learning does not correspond to the
criteria of good learning established by law; the said prices of
studies established by state schools of higher education must be
rationally reasoned, they may not create any preconditions to
violate the constitutional principle of accessibility of higher
education according to one's abilities, the imperatives
(entrenched in the Constitution) of social harmony and justice,
they may not increase the social gulf; no preconditions should be
created to cover also such expenses by means of studying persons,
which are not necessary so that corresponding persons who pay for
their studies would acquire good quality higher education.
8.3. The clause "except the cases set out by the Government"
of disputed Paragraph 1 (wording of 22 April 2003) of Article 61
of the Law may not be interpreted as granting the right to the
Government to establish also such cases, which do not stem from
the Law, where persons studying according to the study programme
of the same or lower stage, whose programme they have completed
at a state school of higher education, if they paid the full
price for not more than half of the credits of the completed
study programme, do not pay the full price of studies; the clause
"or other legal acts" of Item 3 of the same paragraph is not to
be construed as including such substatutory legal acts, the legal
regulation established wherein is not based upon international
treaties of the Republic of Lithuania and/or laws.
8.4. In addition, it needs to be held that it is also
rational and reasonable that, under Item 2 of Paragraph 1
(wording of 22 April 2003) of Article 61 of the Law, persons who
simultaneously study according to two or more study programmes of
the same level, if their studies according to at least one of
these study programmes are fully or partly paid with the state
budgetary funds, pay the full price for studies, when one takes
account of the fact that, as mentioned, the capabilities of the
state to finance higher education are not limitless.
8.5. In Item 4 of Paragraph 1 (wording of 22 April 2003) of
Article 61 of the Law reference is made to Paragraph 5 (wording
of 30 June 2005) of Article 47 (wording of 18 July 2006) of the
Law, which, to the extent that it does not provide that the
persons who are willing to pay the full price of studies may be
admitted also to the studies of the forms and stages that are not
specified in the list presented in this paragraph (providing the
school of higher education has capabilities to provide them with
higher education that meets the quality standards established by
the state), was recognised in this Constitutional Court ruling as
being in conflict with Paragraph 3 of Article 40 and Paragraph 3
(the provision that higher education shall be accessible to
everyone according to his individual abilities) of Article 41 of
the Constitution.
In its decision of 8 August 2006 and in its ruling of 21
September 2006, the Constitutional Court held that legal
situations are also possible, where elimination of the provisions
conflicting with provisions of legal acts of higher power, inter
alia the Constitution, by means of the Constitutional Court
ruling from the legal system, with respect to application of law
virtually amounts to changing the overall legal regulation, i.e.
the establishment of a different, gapless overall legal
regulation.
It needs to be held that after it was recognised that
Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of
18 July 2006) of the Law is in conflict (to the specified extent)
with Paragraph 3 of Article 40 and Paragraph 3 (the provision
that higher education shall be accessible to everyone according
to his individual abilities) of Article 41 of the Constitution,
there are no longer any legal grounds to assert that the legal
regulation established in Item 4 of Paragraph 1 (wording of 23
April 2003) of Article 61 of the Law unreasonably limits the
accessibility of higher education according to one's abilities,
which is entrenched in the Constitution, and the autonomy of
schools of higher education guaranteed by the Constitution.
8.6. Alongside, it needs to be held that the entire legal
regulation established in Paragraph 1 (wording of 23 April 2003)
of Article 61 of the Law does not violate the accessibility of
higher education according to one's abilities, which is
entrenched in the Constitution, and the autonomy of schools of
higher education guaranteed by the Constitution.
9. Having held this, one is also to hold that the legal
regulation established in Paragraph 1 (wording of 23 April 2003)
of Article 61 of the Law does not create any preconditions to
violate either the interests of persons, who study at state
schools of higher education, as consumers of higher education
services, or the constitutional principle of equal rights of
persons.
10. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 1 (wording of 23 April 2003) of
Article 61 of the Law is not in conflict with Paragraph 3 of
Article 40, Paragraph 3 (the provision that higher education
shall be accessible to everyone according to his individual
abilities) of Article 41 and Paragraph 5 of Article 46 of the
Constitution.
V
On the compliance of the Law on Higher Education, inter alia
Article 57 (wording of 18 July 2006) of this law, to the extent
that, according to the petitioner, it does not establish the
principles of distribution of funds of the State Budget among
schools of higher education, while the establishment of these
principles is commissioned to the Government with Paragraph 3 of
Article 40 of the Constitution and the constitutional principles
of a state under the rule of law and separation of powers.
1. Article 57 (wording of 18 July 2006) of the Law, which
regulates the relations linked with the Methods, provides:
"1. Demand of the State budgetary funds for a State higher
education establishment shall be determined in accordance with
the methods for determining demand for the State budgetary funds
and appropriating such funds to institutions of science and
studies. These methods shall be approved by the Government, upon
having heard the proposals of the Science Council of Lithuania,
Lithuanian Universities Rectors' Conference (Conferences), the
Directors' Conference (Conferences) of Lithuanian Colleges, and
the Union (Unions) of Representations of the Lithuanian Students.
2. The methods must provide for the following funds for:
1) studies;
2) development of research and artistic creative work;
3) administration and economy;
4) keeping-up of objects entered into the Register of
Immovable Cultural Properties of the Republic of Lithuania and
lists of cultural properties of Lithuania.
3. Funds for studies shall be appropriated on the basis of
study expenses determined according to the methods (according to
subject areas, study stages and forms)."
2. According to the group of Members of the Seimas, a
petitioner, the Law (inter alia Article 57 (wording of 18 July
2006) thereof) does not establish the principles of distribution
of funds of the State Budget among schools of higher education,
while the establishment of these principles is commissioned to
the Government; in the opinion of the petitioner, upon
consolidating the right of the Government to confirm the Methods
and upon mentioning several constituent parts thereof, the
principled rules whereby funds are distributed among state
schools of higher education remained undefined, while the
Government almost absolutely freely establishes the principles
following which the funds are distributed among the schools; when
the rules for state financing of schools of higher education are
established by means of something other than laws, there is too
much indefiniteness, which increases the dependence of schools of
higher education on state institutions and conjuncture decisions.
3. It has been held in this Constitutional Court ruling that
the state, while taking account of the position of schools of
higher education, enjoys the powers to establish the composition
of expenses of studies in state schools of higher education; by
means of state legal acts rational, clear, transparent and
reasonable criteria may and must be established, which would
allow state schools of higher education to compute realistic
expenses of studies conducted in them according to areas
(trends), stages, and forms of studies, so that financing of
these studies from the State Budget would correspond to its
purpose, i.e. that it would permit to secure good quality
preparation of specialists of various areas (trends). It has also
been held that, while submitting a requisition to a school of
higher education to admit a certain number of students, the state
must guarantee that the State Budget will provide for
corresponding funds and these state funds will cover their
expenses of studies, of course, providing their learning will
correspond to the criteria of good learning established by law.
4. It has been mentioned that, under the Constitution, the
Government enjoys the powers to prepare a draft State Budget. The
Methods specified in Article 57 (wording of 18 July 2006) of the
Law should regulate the relations linked with precisely this
stage of the budget process. It is obvious that the Seimas, while
approving the State Budget by means of a law, can amend the
articles of a draft State Budget proposed by the Government,
including those articles wherein it is established how much funds
are allocated to state schools of higher education.
5. On the other hand, both the Government, when it prepares
a draft State Budget, and the Seimas, when it approves the State
Budget by means of a law, must heed the Constitution and laws,
and provide for such expenditures for state schools of higher
education in the State Budget, which would secure that these
schools properly discharge their functionprovision of good
quality higher education.
6. In this context it needs to be noted that the Law, inter
alia Article 57 (wording of 18 July 2006), as well as Article 54
(wording of 22 April 2003), Article 56 (wording of 22 April
2003), and Article 58 (wording of 30 June 2005), contains various
provisions which must be taken account of in the course of the
preparation of a draft State Budget and providing for funds to
state schools of higher education. There are such provisions in
other laws as well. The Government, while executing laws, while
concretising and detailing their provisions within its
competence, may not establish any such legal regulation that
would compete with the legal regulation established in laws.
7. It needs to be emphasised that the petition of the group
of Members of eth Seimas, a petitioner, does not specify as to
what are any other principles which, in the opinion of the
petitioner, should be consolidated in the Law, inter alia in
Article 57 (wording of 18 July 2006) thereof, so that there would
not be any "indefiniteness, which increases the dependence of
schools of higher education on state institutions and conjuncture
decisions". At the Constitutional Court hearing the
representative of the group of Members of the Seimas, a
petitioner, did not indicate this, either.
8. Therefore there are not any legal arguments which would
allow to assert that Article 57 (wording of 18 July 2006) of the
Law to the extent that it does not establish the principles
(which have not been specified by the group of Members of the
Seimas, a petitioner) of distribution of funds of the State
Budget among schools of higher education, is in conflict with
Paragraph 3 of Article 40 of the Constitution and the
constitutional principles of a state under the rule of law and
separation of powers.
9. Having held this, the Constitutional Court will no longer
investigate in this constitutional justice case whether other
provisions of the Law to the same extent are not in conflict with
Paragraph 3 of Article 40 of the Constitution and the
constitutional principles of a state under the rule of law and
separation of powers.
VI
On the compliance of Paragraph 4 (wording of 30 June 2005)
of Article 58 (wording of 30 June 2005) of the Law on Higher
Education with Paragraph 1 of Article 29, Paragraph 3 of Article
40, Paragraph 3 of Article 41 and Paragraphs 4 and 5 of Article
46 of the Constitution, as well as on the compliance of
Paragraphs 3 and 6 (wording of 22 April 2003) of Article 58 of
the Law with Paragraph 1 of Article 29 and Paragraph 4 of Article
46 of the Constitution.
1. Article 58 (wording of 30 June 2005) of the Law, which
regulates the expenses and price of studies, inter alia provides:
- Paragraph 3 (wording of 22 April 2003): "The price of
studies at a State higher education establishment shall be
indicated in the rules for admission to the school of higher
education, which are coordinated in the manner defined in
Paragraph 2 of Article 47 of this Law";
- Paragraph 4 (wording of 30 June 2005): "The study price
indicated in Paragraph 3 of this Article for citizens of the
Republic of Lithuania and other member states of the European
Union may not be higher than the study expenses determined in the
manner prescribed in Paragraphs 1 and 2 of this Article";
- Paragraph 6 (wording of 22 April 2003): "The price of
studies at a higher education establishment not belonging to the
State shall be determined by agreement".
The quoted provisions make reference to Paragraph 2 (wording
of 22 April 2003) of Article 47 (wording of 18 July 2006), and
Paragraphs 1 and 2 (wording of 22 April 2003) of Article 58
(wording of 30 June 2005) of the Law. It has been mentioned that
Paragraph 2 (wording of 22 April 2003) of Article 47 (wording of
18 July 2006) of the Law provides that "Rules of admission to a
school of higher education shall be established by the school of
higher education itself. The said rules must be co-ordinated with
the Ministry [i.e. the Ministry of Education and Science] in the
manner prescribed by the Government", that "the conditions for
admission to undergraduate and integrated studies concerning
competitive subjects according to subject areas and principles of
formation of a competitive grade shall be co-ordinated in the
manner prescribed by the Government and announced at least 2
years prior to the beginning of enrolment", and that "applicants
shall have the right to submit an application to enrol in several
schools of higher education"; Paragraphs 1 and 2 (wording of 22
April 2005) of Article 58 (wording of 30 June 2005) of the Law
provide that "the expenses of studies in a state school of higher
education (according to a subject area, study stage and form)
shall be determined in compliance with the methods referred to in
Article 57 of this Law" (Paragraph 1), also that "the expenses of
studies shall include the funds required for organising studies
and maintaining the scientific level thereof" (Paragraph 2), and
these are "funds to cover the salaries of the school of higher
education teachers, scientific workers, and other workers related
to studies of the school of higher education, as well as the
State Social Insurance contributions" (Item 1 of Paragraph 2);
"funds to cover expenses of a school of higher education, in
connection with studies and goods and services needed to maintain
the scientific level thereof" (Item 2 of Paragraph 2); and "funds
for organising student cultural, sports and social activities"
(Item 3 of Paragraph 2).
2. In the opinion of the group of Members of the Seimas, a
petitioner, the fact that to citizens, the price of studies may
not be higher than the expenses of studies, means that the state,
in violation of the right of autonomy of schools of higher
education, which is guaranteed by the Constitution, as well as in
violation of the interests of consumers, undertook the regulation
of the allocation of the funds necessary not only for the studies
of students who are good at their studies, but also financing of
studies of the students who study at their own expense, thus
diminishing or even denying the opportunities and incentives for
state schools of higher education to provide services of studies
for a fee; in addition, the fact that the price of studies is
established in state schools of higher education according to
centralised rules, while in non-state schools they are
established by a free agreement, limits the possibilities of
state schools of higher education to compete under equal
conditions with non-state schools of higher education for
persons, who are prepared to pay the full price of studies, and
it violates the constitutional principle of equality of all
persons.
3. It needs to be noted that, although the group of Members
of the Seimas, a petitioner, requests to investigate also the
compliance of Paragraph 6 (wording of 22 April 2003) of Article
58 (wording of 30 June 2005) of the Law with the Constitution, it
is clear form the arguments of the petition that the principled
provision entrenched in this paragraph whereby the price of
studies must be established by agreement, which is designed to
non-state schools of higher education, does not rise doubts to
the petitioner; the essence of the arguments of the petitioner is
that the same principled provision should be established with
regard to state schools of higher education.
Taking account of this, in this constitutional justice case
the Constitutional Court will not investigate the compliance of
Paragraph 6 (wording of 22 April 2003) of Article 58 (wording of
30 June 2005) of the Law with the Constitution.
4. While deciding, subsequent to the petition of the group
of Members of the Seimas, a petitioner, whether Paragraph 3
(wording of 22 April 2003) of Article 58 (wording of 30 June
2005) of the Law is not in conflict with the Constitution, one is
to hold that the legal regulation entrenched therein inter alia
means that the rules for admission to state schools of higher
education must indicate the price of studies which will have to
be paid by the persons whose studies in the state school of
higher education will not be financed by the state.
The fact that the said rules must indicate the price of the
studies in a corresponding state school of higher education is
reasonable and understandable of its own accord.
5. The reference to Paragraph 2 (wording of 22 April 2003)
of Article 47 (wording of 18 July 2006) of the Law, which is in
this paragraph, and according to which the rules for admission to
a school of higher education are established by the school of
higher education itself, by coordinating the rules with the
Ministry of Education and Science in the manner prescribed by the
Government.
5.1. In this context it needs to be noted that the
coordination of the rules for admission to a corresponding state
school of higher education with the Ministry of Science and
Education is not unreasonable, since such rules must inevitably
contain provisions, which in one way or another are related with
obligations of the state (as well as with financial obligations,
inter alia those linked with formation of the State Budget) for a
corresponding state school of higher education and the persons
who study in that school. One is also to note that the group of
Members of the Seimas, a petitioner, does not dispute the
compliance of Paragraph 2 (wording of 22 April 2003) of Article
47 (wording of 18 July 2006) of the Law with the Constitution and
the legal regulation established in the said paragraph is not the
matter of investigation in the constitutional justice case at
tissue.
5.2. When Paragraph 3 (wording of 22 April 2003) of Article
58 (wording of 30 June 2005) and Paragraph 2 (wording of 22 April
2003) of Article 47 (wording of 18 July 2006) of the Law are
assessed in a systemic manner, it needs to be held that state
schools of higher education are under obligation also to
coordinate the price of studies in those schools of higher
education with the Ministry of Education and Science, i.e. to
coordinate how much the students whose studies are not financed
by the state will have to pay for their studies. Thus,
preconditions have been created for the Ministry of Education and
Science to impose also such expenses of studies upon the schools
of higher education, which would not be covered by tuition fees
paid by the persons whose studies are not financed by the state.
Such legal regulation disregards the imperative which stems
from the Constitution that it is state schools of higher
education (whose autonomy is guaranteed by the Constitution)
which have the powers to establish the realistic and rational
price of studies, both the price to be paid by the persons who in
the course of admittance to a corresponding state school of
higher education were not admitted to the places whose number
announced in advance conforms to the obligation of the state to
fund the preparation of a certain number of specialists, and who
were admitted to study at the state school of higher education at
their own expense, and the price to be paid by the persons who
are prepared in state schools of higher education in order to
meet the demand of specialists of corresponding areas (trends),
which is established by the state, provided the learning of these
citizens does not correspond to the criteria of good learning
established by law.
5.3. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 3 (wording of 22 April 2003) of
Article 58 (wording of 30 June 2005) of the Law to the extent
that it establishes a duty of state schools of higher education
to coordinate the price of studies in those schools of higher
education with the Ministry of Education and Science, i.e. to
coordinate how much the students whose studies are not financed
by the state will have to pay for their studies is in conflict
with Paragraph 3 of Article 40 of the Constitution.
6. Having held this, in this constitutional justice case the
Constitutional Court will no longer investigate whether Paragraph
3 (wording of 22 April 2003) of Article 58 (wording of 30 June
2005) of the Law is not in conflict with Paragraph 1 of Article
29 and Paragraph 4 of Article 46 of the Constitution.
7. While deciding, subsequent to the petition of the group
of Members of the Seimas, a petitioner, whether Paragraph 4
(wording of 30 June 2005) of Article 58 (wording of 30 June 2005)
of the Law is not in conflict with Paragraph 3 of Article 43 of
the Constitution, one is to note that the legal regulation
entrenched in the said paragraph inter alia means that the price
of studies to be paid by corresponding persons who study in state
schools of higher education and whose studies are not financed by
the state, may not be bigger than the expenses of studies in the
state school of higher education (according to the trend, stage
and form of studies) established according to the Methods
approved by the Government in which the funds necessary for
arrangement of studies and maintenance of their level, the funds
for remuneration for work and for state social insurance of
teachers of schools of higher education, their scientific workers
and other employees who are linked with studies, the funds for
the expenses of the school of higher education linked with goods
and services necessary for studies and maintenance of their
scientific level, as well as the funds necessary of arrangement
of students' cultural, sport and social activities, are counted
in the expenses of studies.
7.1. Such legal regulation, as well as the legal regulation
(to the corresponding extent) established in Paragraph 3 (wording
of 22 April 2003) of Article 58 (wording of 30 June 2005) of the
Law, also disregards the imperative which stems from the
Constitution whereby it is state schools of higher education
(whose autonomy is guaranteed by the Constitution) which have the
powers to establish the realistic and rational price of studies,
both the price to be paid by the persons who in the course of
admittance to a corresponding state school of higher education
were not admitted to the places whose number announced in advance
conforms to the obligation of the state to fund the preparation
of a certain number of specialists, and who were admitted to
study at the state school of higher education at their own
expense, and the price to be paid by the persons who are prepared
in state schools of higher education in order to meet the demand
of specialists of corresponding areas (trends), which is
established by the state, provided the learning of these citizens
does not correspond to the criteria of good learning established
by law.
7.2. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 4 (wording of 30 June 2005) of
Article 58 (wording of 30 June 2005) of the Law is in conflict
with Paragraph 3 of Article 40 of the Constitution.
8. Having held this, in this constitutional justice case the
Constitutional Court will no longer investigate whether Paragraph
4 (wording of 30 June 2005) of Article 58 (wording of 30 June
2005) of the Law is not in conflict with Paragraph 1 of Article
29, Paragraph 3 of Article 41 and Paragraphs 4 and 5 of Article
46 of the Constitution.
VII
On the compliance of Items 3 and 14 of the Methods of
Establishing the Needs of Funds from the State Budget of the
Republic of Lithuania and Assigning Them to Institutions of
Science and Studies (wording of 5 October 2006) approved by
Government Resolution No. 1272 "On Approving the Methods of
Establishing the Needs of Funds from the State Budget of the
Republic of Lithuania and Assigning Them to Institutions of
Science and Studies" of 11 October 2004 (wording of 5 October
2006) with Paragraph 3 of Article 40 and Paragraph 3 of Article
41 of the Constitution.
1. Item 3 of the Methods (wording of 5 October 2006)
provides:
"Funds for the studies shall be computed by taking account
of the following:
3.1. the type of the programme of studies;
3.2. the area, trend of studies, or a group thereof <
>;
3.3. the form of studies."
2. Item 14 of the Methods (wording of 5 October 2006)
provides: "The funds for studies shall be distributed among
institutions of science and studies (done separately among
colleges and among other institutions of science and studies) in
proportion to the need for funds of studies of each institution
of science and studies, which is computed by means of the
Methods."
3. In the opinion of the President of the Republic, a
petitioner, Item 14 of the Methods (wording of 5 October 2006)
does not entrench a requirement to provide for precisely as much
funds to schools of higher education in the State Budget as is
needed to pay, either fully or in part, for the studies of the
students who are financed by funds of the State Budget and whose
admittance number is established by the Government, however, it
entrenches the principle whereby funds of the State Budget are
distributed among schools of higher education in proportion to
the need of funds, which is computed by means of the Methods,
therefore, due to this institutions of studies may be allocated
less funds from the State Budget than it is necessary to pay,
either fully or in part, for the studies of the students who are
financed by funds of the State Budget and whose admittance number
is established by the Government; the criteria of computing the
funds allocated for studies, which are established in Item 3 of
the Methods (wording of 5 October 2006) are insufficient so that
in the course of the computation the funds allocated to
individual institutions of studies it could be possible to take
account of the fact how established standards of teaching are
followed in corresponding institutions of studies, and of how the
content and level of teaching and instruction corresponds to the
qualification recognised by the state, while the established
criteria do not allow to differentiate the amount of funds
necessary to finance the programmes executed by institutions of
studies according to the level of the quality of studies.
4. The Methods (wording of 5 October 2006) establish the
rules for computation of the need of funds of the State Budget
and distribution thereof among state schools of higher education.
5. It needs to be noted that Items 3 and 14 of the Methods
(wording of 5 October 2006), which are disputed by the President
of the Republic, a petitioner, are linked with other items of the
Methods; for instance, Item 3 wherein the criteria of computation
of the funds allocated for studies is related with Item 4 wherein
constituent parts of the expenses of studies are established,
while Item 14 wherein the rule of proportionate distribution of
funds among schools of higher education is established is related
to Item 13 which consolidates the procedure for establishment of
the sum of funds distributed among schools of higher education.
Thus, the legal regulation established in Items 3 and 14 of the
Methods (wording of 5 October 2006) is to be assessed in a
systemic manner and in the context of the entire legal regulation
established in the Methods (wording of 5 October 2006).
6. The Preamble to Government resolution No. 1272 of 11
October 2004 points out that the Methods are approved by
following inter alia Articles 57 and 58 of the Law. Thus, the
Methods are to implement the provisions of the Law upon which
they are based.
7. One of the articles of the Law following which the
Methods were approved has been recognised in this Constitutional
Court ruling as being in conflict (to the corresponding extent)
with the Constitution, namely: Paragraph 3 (wording of 22 April
2003) of Article 58 (wording of 30 June 2005) of the Law to the
extent that it establishes a duty of state schools of higher
education to coordinate the price of studies in those schools of
higher education with the Ministry of Education and Science, i.e.
to coordinate how much the students whose studies are not
financed by the state will have to pay for their studies, as well
as Paragraph 4 (wording of 30 June 2005) of the same article were
recognised as being in conflict with Paragraph 3 of Article 40 of
the Constitution. This Constitutional Court ruling has also
recognised also some other provisions of the Law as being in
conflict with the Constitution. Due to this the legal regulation
established by the Law is to be corrected.
The overall legal regulation established in the Methods
(wording of 5 October 2006), which was adopted while following
inter alia Article 58 of the Law, will have to be corrected as
well.
8. Under such circumstances Items 3 and 14 of the Methods
(wording of 5 October 2006) acquire a different content,
therefore the investigation into their constitutionality becomes
meaningless. It needs to be held that in this part of the case
there is no longer any matter of investigation.
9. The absence of the matter of investigation in the
petition of the petitioner means that the petition is not within
the jurisdiction of the Constitutional Court (Constitutional
Court decisions of 6 May 2003, 13 May 2003, ruling of 13 May
2004, decision of 8 August 2006, and ruling of 20 December 2007).
Item 2 of Paragraph 1 of Article 69 of the Law on the
Constitutional Court provides that, by a decision, the
Constitutional Court shall refuse to consider petitions to
investigate the compliance of a legal act with the Constitution,
if the consideration of the petition does not fall under the
jurisdiction of the Constitutional Court.
It has been expressis verbis stated in the jurisprudence of
the Constitutional Court that the absence of the matter of
investigation in a case regarding the petition of the petitioner
is the grounds for dismissal of the case (Constitutional Court
ruling of 25 January 2001, decision of 6 May 2003, ruling of 20
December 2007).
10. Paragraph 2 of Article 80 (which regulates refusal to
examine an inquiry in the Constitutional Court) of the Law on the
Constitutional Court provides that, if in the course of the
consideration of the inquiry the matter under consideration
ceases to exist, the Constitutional Court shall dismiss the
instituted legal proceedings on the grounds thereof.
This provision of the Law on the Constitutional Court is
mutatis mutandis applicable to the consideration of requests to
investigate the compliance of a legal act with the Constitution
(with the other legal act of a higher legal power) and adoption
of respective decisions (Constitutional Court rulings of 21
September 2006, 6 September 2007, decision of 13 November 2007,
ruling of 20 December 2007).
According to Item 3 of Article 69 of the Law on the
Constitutional Court, in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the hearing
of the Constitutional Court, a decision to dismiss the case shall
be adopted.
11. Taking account of the arguments set forth, the part of
this constitutional justice case regarding the petition of the
President of the Republic, a petitioner, requesting to
investigate the compliance of Items 3 and 14 of the Methods
(wording of 5 October 2006) approved by Government resolution No.
1272 of 11 October 2004 (wording of 5 October 2006) with
Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the
Constitution is to be dismissed.
VIII
Under Paragraph 1 of Article 107 of the Constitution, a law
(or part thereof) of the Republic of Lithuania or other act (or
part thereof) of the Seimas, act of the President of the
Republic, act (or part thereof) of the Government may not be
applied from the day of official promulgation of the decision of
the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution.
After this Constitutional Court ruling is officially
promulgated, the articles (paragraphs thereof) of the Law on
Higher Education which have been recognised by this
Constitutional Court ruling as being in conflict with the
Constitution will not be allowed to be applied.
Thus, certain relations linked with inter alia with
accessibility of higher education according to one's abilities,
with guaranteeing of higher education to citizens who are good at
their studies in state schools of higher education free of charge
will remain unregulated after the official promulgation of this
Constitutional Court ruling.
The aforesaid relations are linked with the constitutional
right of a human being to seek higher education, i.e. both with
the rights of the persons who are studying in state schools of
higher education at present and with the rights of the persons
who will be admitted to schools of higher education. Therefore, a
duty arises to the legislator promptly to fill the existing
vacuum of legal regulation and immediately to amend the legal
regulation established in the Law on Higher Education so that it
would be in compliance with the constitutional concept of the
right to seek higher education as presented in this
Constitutional Court ruling.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, 56 69, and
Paragraph 2 of Article 80 of the Law on the Constitutional Court
of the Republic of Lithuania, the Constitutional Court of the
Republic of Lithuania has passed the following
ruling:
1. To recognise that Paragraph 4 (wording of 22 April 2003;
Official Gazette Valstybės žinios, 2003, No. 47-2058) of Article
47 (wording of 18 July 2006) of the Republic of Lithuania Law of
Higher Education is in conflict with Paragraph 3 of Article 40
and Paragraph 3 of Article 41 of the Constitution of the Republic
of Lithuania.
2. To recognise that Paragraph 5 (wording of 30 July 2005;
Official Gazette Valstybės žinios, 2005, No. 85-3136) of Article
47 (wording of 18 July 2006) of the Republic of Lithuania Law on
Higher Education to the extent that it does not provide that the
persons who are willing to pay the full price of studies may be
admitted also to the studies of the forms and stages that are not
specified in this list (providing the school of higher education
has capabilities to provide them with higher education that meets
the quality standards established by the state), is in conflict
with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of
the Constitution of the Republic of Lithuania.
3. To recognise that Article 57 (wording of 18 July 2006;
Official Gazette Valstybės žinios, 2006, No. 87-3395) of the
Republic of Lithuania Law on Higher Education to the extent that
it does not establish the principles (which have not been
specified by the group of Members of the Seimas, a petitioner) of
distribution of funds of the State Budget among schools of higher
education is not in conflict with the Constitution of the
Republic of Lithuania.
4. To recognise that Paragraph 3 (wording of 22 April 2003;
Official Gazette Valstybės žinios, 2003, No. 47-2058) of Article
58 (wording of 30 June 2005) of the Republic of Lithuania Law on
Higher Education to the extent that it establishes a duty of
state schools of higher education to coordinate the price of
studies in those schools of higher education with the Ministry of
Education and Science, i.e. to coordinate how much the students
whose studies are not financed by the state will have to pay for
their studies, as well as Paragraph 4 (wording of 30 June 2005;
Official Gazette Valstybės žinios, 2005, No. 85-3136) of the same
article, is in conflict with Paragraph 3 of Article 40 of the
Constitution of the Republic of Lithuania.
5. To recognise that Paragraph 1 (wording of 22 April 2003;
Official Gazette Valstybės žinios, 2003, No. 47-2058) of Article
60 of the Republic of Lithuania Law on Higher Education to the
extent that it establishes a quota (expressed in percentage) of
students who are good at their studies is in conflict with
Paragraph 3 of Article 41 of the Constitution of the Republic of
Lithuania.
6. To recognise that Paragraph 1 (wording of 23 April 2003;
Official Gazette Valstybės žinios, 2003, No. 47-2058) of Article
61 of the Republic of Lithuania Law on Higher Education is not in
conflict with the Constitution of the Republic of Lithuania.
7. To dismiss the part of the case regarding the petition of
the President of the Republic of Lithuania, a petitioner, which
was set forth in his Decree No. 1K-1138 "On Applying to the
Constitutional Court of the Republic of Lithuania" of 22 October
2007, requesting to investigate whether Items 3 and 14 of the
Methods of Establishing the Needs of Funds from the State Budget
of the Republic of Lithuania and Assigning Them to Institutions
of Science and Studies (wording of 5 October 2006; Official
Gazette Valstybės žinios, 2006, No. 108-4114) approved by
Resolution of the Government of the Republic of Lithuania No.
1272 "On Approving the Methods of Establishing the Needs of Funds
from the State Budget of the Republic of Lithuania and Assigning
Them to Institutions of Science and Studies" of 11 October 2004
(wording of 5 October 2006) are not in conflict with Paragraph 3
of Article 40 and Paragraph 3 of Article 41 of the Constitution
of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis