Case No. 28/07-29/07
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE CONSTRUCTION OF THE PROVISION OF ITEM 13 OF
CHAPTER II OF THE REASONING PART OF THE RULING OF THE
CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 20
MARCH 2008
28 October 2009
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas
and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
pursuant to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, on 20 October 2009, in a
public Court hearing considered the petition of Vydas Gedvilas, a
Member of the Seimas of the Republic of Lithuania, the
petitioner, requesting to construe the provision "<
> 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 <
>" of
Item 13 of Chapter II of the reasoning part of the ruling of the
Constitutional Court of the Republic of Lithuania of 20 March
2008.
The Constitutional Court
has established:
1. On 20 March 2008, the Constitutional Court in
constitutional justice case No. 28/07-29/07 adopted the 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 the 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" (Official Gazette
Valstybės žinios, 2008, No. 34-1224, correction Official Gazette
Valstybės žinios, 2008, No. 44; hereinafter referred to as the
Constitutional Court ruling of 20 March 2008).
2. It was recognised in the Constitutional Court ruling of
20 March 2008 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 on 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.
- 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.
- 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.
- 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.
- 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.
- 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.
3. The Constitutional Court is requested to construe whether
the provision "<
> 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 <
>" of Item 13 of Chapter II of the
reasoning part of the ruling of the Constitutional Court of 20
March 2008 means that it is solely the community of a school of
higher education that forms administrative bodies of the school
of higher education from members of its community, or that they
may be formed also by the institutions of executive power by
appointing its representatives to the administrative bodies of
the school of higher education, as well as whether this notion of
autonomy means that the state may not establish and consolidate
by laws or other legal acts the organisational and administrative
structure of a state school of higher education, as well as
methods and procedure of forming these structures.
4. The petition to construe the provision of the ruling of
the Constitutional Court of 20 March 2008 was submitted by V. M.
Čigriejienė and V. Gedvilas, who are Members of the Seimas. V.
Gedvilas, a member of the Seimas, was a representative of the
Seimas, the party concerned, in the constitutional justice case
in which the ruling of the Constitutional Court of 20 March 2008
was adopted, the provision of which is requested to be construed.
Thus, according to Article 31 of the Law on the Constitutional
Court, V. Gedvilas has the right to apply to the Constitutional
Court with a request to construe the provision of the ruling of
20 March 2008. Therefore the petition submitted by V. M.
Čigriejienė and V. Gedvilas, Members of the Seimas, was accepted
at the Constitutional Court as a petition of V. Gedvilas, a
Member of the Seimas and the representative of the Seimas,
requesting to construe the provision of the Constitutional Court
ruling of 20 March 2008.
The Constitutional Court
holds that:
I
1. The powers of the Constitutional Court to officially
construe its own rulings are entrenched in the Law on the
Constitutional Court (Article 61). The Constitutional Court has
held in its acts more than once that it enjoys powers to construe
its other final acts as well.
2. Paragraph 1 of Article 61 of the Law on the
Constitutional Court provides that a ruling of the Constitutional
Court may be officially construed by the Constitutional Court at
the request of the parties to the case, of other institutions or
persons to whom it was sent, or on its own initiative.
3. A decision concerning construction of a Constitutional
Court ruling shall be adopted at a Constitutional Court sitting
as a separate document (Paragraph 2 of Article 61 of the Law on
the Constitutional Court).
4. In its acts the Constitutional Court has held more than
once that the purpose of the institute of construction of
Constitutional Court rulings and other final acts is to reveal
the contents and meaning of corresponding Constitutional Court
rulings or other final acts more broadly and in more detail if it
is necessary in order to ensure proper execution of that
Constitutional Court ruling or other final act so that this
Constitutional Court ruling or other final would be followed.
5. The Constitutional Court has held more than once that a
ruling of the Constitutional Court is integral; its resolving
part is based upon the arguments of the part of reasoning; while
construing its ruling, the Constitutional Court is bound both by
the content of the part of resolution and that of reasoning of
its ruling; the decision adopted concerning construction of a
Constitutional Court ruling is inseparable from the
Constitutional Court ruling.
6. Under Paragraph 3 of Article 61 of the Law on the
Constitutional Court, the Constitutional Court must construe its
ruling without changing its content.
The Constitutional Court has held more than once that this
provision of Paragraph 3 of Article 61 of the Law on the
Constitutional Court means, among other things, that while
construing its ruling, the Constitutional Court cannot construe
its content so that the meaning of its provisions, inter alia the
notional entirety of the elements constituting the content of the
ruling, the arguments and reasons upon which that Constitutional
Court ruling is based, is changed, also that the Constitutional
Court may not construe what was not investigated in that
constitutional justice case, subsequent to which the construed
ruling was adopted, either. The Constitutional Court also held
more than once that the consideration of a petition requesting to
construe a Constitutional Court ruling or its other final act
does not imply a new constitutional justice case.
In this context it needs to be noted that, as it has been
held by the Constitutional Court more than once, the formula
"shall be final and not subject to appeal" of Paragraph 2 of
Article 107 of the Constitution, which provides that the
decisions of the Constitutional Court on issues ascribed to its
competence by the Constitution shall be final and not subject to
appeal, also means that the Constitutional Court rulings,
conclusions and decisions by which a constitutional justice case
is finished, i.e. final acts of the Constitutional Court, are
obligatory to all state institutions, courts, all enterprises,
establishments and organisations, as well as officials and
citizens, including the Constitutional Court itself: final acts
of the Constitutional Court are obligatory to the Constitutional
Court itself, they restrict the Constitutional Court in the
aspect that it may not change them or review them if there are no
constitutional grounds for that.
Therefore in the official construction (subsequent to a
petition of the persons that participated in the case, other
institutions and individuals, to whom the Constitutional Court
ruling was sent, also on the initiative of the Constitutional
Court itself) of rulings and other final acts of the
Constitutional Court, the constitutional doctrine is not
corrected. The correction of the official constitutional doctrine
(which, undoubtedly, must always have a constitutional basis and
be explicitly reasoned in a respective act of the Constitutional
Court) is to be related with the consideration of new
constitutional justice cases and creation of new Constitutional
Court precedents therein, but not with official construction of
provisions of the Constitutional Court rulings and other final
acts (Constitutional Court decisions of 6 December 2007, 1
February 2008, 4 July 2008, and 15 January 2009).
7. It is also to be noted that the uniformity and continuity
of the official constitutional doctrine implies a necessity to
construe each construed provision of a Constitutional Court
ruling or its other final act by taking account of the entire
official constitutional doctrinal context, also of other
provisions (explicit and implicit) of the Constitution, which are
related with the provision (provisions) of the Constitution in
the course of construction of which in a Constitutional Court
ruling or its other final act the corresponding official
constitutional doctrine was formulated. As already held by the
Constitutional Court more than once, no official constitutional
doctrinal provision of a Constitutional Court ruling or its other
final act may be construed in isolation, by ignoring its meaning
and systemic links with the other official constitutional
doctrinal provisions set forth in that Constitutional Court
ruling or its other final act, in other Constitutional Court
acts, as well as with other provisions (explicit and implicit) of
the Constitution (Constitutional Court decisions of 4 July 2008,
15 January 2009, and 15 May 2009).
II
1. The Constitutional Court is requested to construe whether
the provision "<
> 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 <
>" of Item 13 of Chapter II of the
reasoning part of the ruling of the Constitutional Court of 20
March 2008 means that it is solely the community of a school of
higher education that forms administrative bodies of the school
of higher education from members of its community, or that they
may be formed also by the institutions of executive power by
appointing its representatives to the administrative bodies of
the school of higher education, as well as whether this notion of
autonomy means that the state may not establish and consolidate
by laws or other legal acts the organisational and administrative
structure of a state school of higher education, as well as
methods and procedure of forming these structures.
2. The provision of the Constitutional Court ruling of 20
March 2008, the construction of which is requested by the
petitioner, constitutes a part of the text of Item 13 of Chapter
II of the reasoning part of the Constitutional Court ruling of 20
March 2008, in which one inter alia held:
"<
> 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)."
3. The Constitutional Court construed the said provisions in
the ruling of 20 March 2008 when it interpreted inter alia
Paragraph 3 of Article 40 of the Constitution.
Paragraph 3 of Article 40 of the Constitution provides:
"Schools of higher education shall be granted autonomy."
4. It has been mentioned that provisions of the
Constitutional Court ruling must be construed by taking account
of the entire official doctrinal context, also of other
provisions (explicit and implicit) of the Constitution, which are
related with the provision (provisions) of the Constitution in
the course of construction of which in a Constitutional Court
ruling or its other final act the corresponding official
constitutional doctrine was formulated; no official
constitutional doctrinal provision of a Constitutional Court
ruling may be construed by ignoring its meaning and systemic
links with the other official constitutional doctrinal
provisions, as well as with other provisions of the Constitution.
5. The official constitutional doctrine of the autonomy of
schools of higher education was developed not only in the
Constitutional Court ruling of 20 March 2008, but in other acts
of the Constitutional Court as well, therefore the provision of
the Constitutional Court of 20 March 2008 is to be construed
inter alia by taking account of the entire official
constitutional doctrinal context.
6. The autonomy of schools of higher education is to be
construed without separating it from the purpose of the schools
of higher education and higher education, as well. The
Constitutional Court has held that the purpose of higher
education is to create, accumulate and disseminate knowledge of
science and cultural values, to educate the personality and
society. Therefore the society is concerned with creating due
conditions for institutions of higher education in order to
ensure all-round education of the personality, freedom of
teaching, scientific research and creative activities.
Accordingly, institutions of higher education have to react to
changes of social needs and coordinate their activities with the
interests of society. Therefore, the principle of autonomy of
institutions of higher education must be coordinated with the
principle of responsibility and accountability before society,
other constitutional values, with the duty of institutions of
higher education to observe the Constitution and laws, with the
interaction and coordination of interests of institutions of
higher education and society (Constitutional Court ruling of 5
February 2002). Moreover, even the Great Charter of Universities
(Magna Charta Universitatum, 18 September 1988) has established
that "the purpose of universities to provide the young generation
with the knowledge in modern world means that they must serve the
whole society". That "in order the university could meet the
needs of modern world, its research and scientific activity must
be morally and intellectually independent from any political,
ideological and economic authority" (the Underlying Principles,
Article 1). This presupposes a particular status of the
university in the state and society (Constitutional Court ruling
of 27 June 1994).
7. It is to be noted that the provision of the
Constitutional Court ruling of 20 March 2008, the construction of
the part of which is requested by the petitioner, presented a
traditional notion of the autonomy of schools of higher
education.
In its ruling of 27 June 1994 the Constitutional Court held
that "historically, the idea of the autonomy of the institution
of higher learning came into being in the Middle Ages, when
universities originated as establishments of science and studies.
The autonomy meant that the university, to a certain extent, was
independent from the state, striving to dissociate itself from
the influence of political power, to create an independent system
of regulation of internal activities within the institution of
higher education. The purpose of such dissociation from the state
power was to safeguard the freedom of science, research and
teaching, to protect researchers and professors from political
influence. The developments of the academic autonomy has always
been predetermined by the understanding that science and teaching
may normally exist and induce progress only when they are free
and independent. Thus appeared the principle of academic freedom,
which expressed the striving to protect the researchers' and
teachers' freedom of scientific thought and its expression from
outward influence".
Thus neither the autonomy of schools of higher education nor
academic freedom are an end in themselves; they are closely
related with each other.
8. The Constitutional Court has held that, under the
Constitution, schools of higher education (both state and non-
state ones) not only make use of their autonomy, but also they
discharge an important social functionthey provide higher
education; it is impossible that the autonomy of schools of
higher education is not linked with their mission to prepare
specialists of various spheres who have acquired higher
education, who meet the requirements of society and the state,
thus, with big responsibility of schools of higher education for
the quality of higher education (Constitutional Court ruling of 1
February 2008).
Thus, the mission of schools of higher education to prepare
specialists who have acquired higher education, who meet the
requirements of society and the state, implies the responsibility
of schools of higher education for providing good quality
education that meets requirements of society and the state to the
learners.
9. It has been mentioned that the Constitutional Court is
requested to construe whether the provision "<
> 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 <
>" of
Item 13 of Chapter II of the reasoning part of the Constitutional
Court ruling of 20 March 2008 means that it is solely the
community of a school of higher education that forms
administrative bodies of the school of higher education from
members of its community, or that they may be formed also by the
institutions of executive power by appointing its representatives
to the administrative bodies of the school of higher education,
as well as whether this notion of autonomy means that the state
may not establish and consolidate by laws or other legal acts the
organisational and administrative structure of a state school of
higher education, as well as methods and procedure of forming
these structures.
10. Thus, in the context of this constitutional justice case
at issue one should examine first of all the concept of
organisational and administrative structure of a school of higher
education.
The organisational structure of the school of higher
education comprises the units of the school of higher education
in which studies are organised and scientific research is
performed (for example, faculties, their affiliates, institutes,
departments, laboratories, etc.).
The administrative structure of the school of higher
education in the broad meaning is understood to be a system of
certain single-person and/or collegial institutions that adopt
decisions on issues of governance of the school of higher
education that perform functions of administration and control
(for example, rector, vice-rectors, senate, council,
administration, etc.). According to their purpose these
institutions perform different functions.
11. The Constitutional Court has held that laws may regulate
administration and self-government of schools of higher learning
in a different manner; in themselves, different establishment by
laws of the administration forms of schools of higher learning of
various types and also of (state and non-state) schools of higher
learning founded by various founders, also that of the
institutions of their administration, of the procedure of
formation and of the functions and powers of the latter, do not
deny the constitutional principle of autonomy of institutions of
higher learning (Constitutional Court ruling of 5 February 2002).
The Constitutional Court has also held that 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 based on the legal regulation established by the legislator
(Constitutional Court ruling of 20 March 2008).
It is to be held that, under the Constitution, the
legislator, while not denying the principle of autonomy of
schools of higher education, may establish by laws the bases of
organisational and administrative structure of schools of higher
education.
12. The concept of autonomy of schools of higher education
is to be construed inter alia within the context of the principle
of the constitutional principle of academic freedom.
12.1. The principle of academic freedom or freedom of
science, research and teaching is consolidated in Paragraph 1 of
Article 42 of the Constitution, which reads: "Culture, science
and research, and teaching shall be free".
The Constitutional Court has held that the constitutional
concept of the freedom of science and research is very ample, it
comprises various aspects of science and research. The
constitutional freedom of science and research means inter alia
that every person has the right to freely decide by himself
whether to engage in science and research, including the right to
freely choose the sphere of scientific research and methods of
investigating particular subjects, to form his scientific world-
view. According to the Constitution, no scientific views may be
thrust upon a person, he may not be forced to choose a certain
sphere of scientific research or not permitted to choose it (save
the exceptions stemming from the Constitution), he may not be
forced to perform certain scientific research or be prohibited
from performing certain scientific research (save the exceptions
stemming from the Constitution), and to publish or not to publish
results of the performed scientific research. This is a matter of
the discretion of the person and his free choice (Constitutional
Court ruling of 5 May 2007).
Science and research may not be made a political or
ideological issue, where the scientist may not be forced to
accept any scientific views and values, where scientists or
researchers may not be discriminated on the basis of the fact
that the sphere or subject area of their scientific research is
not in line with someone's political or ideological views. A
different interpretation of the concept of the constitutional
freedom of science and research would mean that, purportedly, one
permits to deviate also from the constitutional imperatives or
democracy, an open, just and harmonious civil society, and to
create conditions for violating various values, inter alia human
rights and freedoms, which are entrenched in, and protected and
defended by the Constitution (Constitutional Court ruling of 5
May 2007).
12.2. The constitutional notion of freedom of science and
research implies the professional independency of the scientific
community (as well as communities representing certain scientific
subject areas), as a community united by a scientific view and
professional interests, from state institutions, their
independent instutionalisation and self-government, as well as
free communication with scientific communities of other countries
(inter alia scientific and educational institutions)
(Constitutional Court ruling of 5 May 2007).
It is to be held that in order to ensure the constitutional
implementation of the principle of academic freedom and public
interests that conditions are created in the schools of higher
education to ensure all-round education of the personality, and
that schools of higher education enjoy freedom of teaching, of
scientific research and creative activities, the institutions of
administration that carry out the functions of self-
administration of the school of higher education must be
consolidated in the administrative structure of schools of higher
education. Only in this way one would guarantee the imperative of
autonomy of schools of higher education that stems from the
Constitution.
12.3. Alongside it should be noted that the Constitutional
Court has held that the fact that the Constitution establishes
the autonomy of higher schools allows to make a presumption that
to perform their functions state higher schools need to be
allotted state funds. These funds have to be provided for in the
state budget. 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 high school (Constitutional Court ruling of
14 January 2002).
It is to be held that it would not be possible to ensure
autonomy of schools of higher education, inter alia the
constitutional principle of academic freedom, if schools of
higher education did not enjoy financial independence, i.e. if
their administrative institutions that implement functions of
self-governance of the school of higher education had no
possibility to adopt (on the basis of laws) decisions on the use
of funds and other property for performing their mission.
Therefore, the function of adopting decisions based on laws
concerning the use of funds and other property, which is
necessary for carrying out the mission of the school of higher
education, is to be allocated inter alia to the functions of the
administrative institutions of schools of higher education that
implement the function of self-governance of the school of higher
education.
12.4. Taking account of the fact that, as already mentioned,
the constitutional notion of freedom of science, research and
teaching implies the professional independence of scientific
community, which is inseparable from the self-governance of
schools of higher education, which constitutes one of the
fundamental conditions of implementation of autonomy of a school
of higher education, it is to be noted that self-governance must
be implemented through the institutions of schools of higher
education, the procedure of forming which should no be the one
which will not enable the academic community of the school of
higher education to influence adoption of decisions on
administration of the school of higher education. For this reason
the institutions of administration of schools of higher education
that implement functions of self-government of the school of
higher education must be formed by the schools of higher
education themselves, after they establish on the bases of laws
in their by-laws or statutes the ways and procedure of forming
these institutions. Only in this way one would guarantee the
constitutional implementation of the principle of academic
freedom. Alongside, one would ensure the imperative of autonomy
of schools of higher education that stems from the Constitution.
It is to be noted that usually these institutions of schools
of higher education are formed from members of their academic
community. Autonomy of schools of higher education implies the
right of schools of higher education to provide that not only
members of academic community of the particular school of higher
education could become members of such institution.
13. Alongside it should be noted that the Constitutional
Court has held more than once that autonomy of schools of higher
education is inseparable from responsibility and accountability
before society; interests of schools of higher education and
society must be coordinated.
13.1. The principle of autonomy of institutions of higher
education must be coordinated with the principle of
responsibility and accountability before society, other
constitutional values, with the duty of institutions of higher
education to observe the Constitution and laws, with the
interaction and coordination of interests of institutions of
higher education and society (Constitutional Court ruling of 5
February 2002).
13.2. Autonomy of schools of higher education does not mean
that the activity of such schools cannot be regulated by the
state. 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
20 February 2008, and 20 March 2008).
13.3. The right of the state to regulate external affairs of
the institution of higher learning does not contradict the
autonomy unless it impairs the freedom of research and teaching
in the institution of higher education (Constitutional Court
rulings of 27 June 1994 and 5 February 2007).
13.4. The Constitutional Court has already held that when
allocating funds for financing the schools of higher education
the state has the right to know how these funds shall be used.
The school of higher learning which receives funds from the state
budget must account for proper use of the received funds, while
it is within the discretion of the legislator to establish by law
as regards the manner and way of control of the use of funds
(Constitutional Court ruling of 5 February 2002).
14. Having taken into account the aforementioned facts it is
to be held that in order to enable the state to implement its
obligation to supervise the activity of educational
establishments, as well as to ensure coordination of the
principle of autonomy of schools of higher education with the
principle of responsibility and accountability before society, to
guarantee the quality of studies and development of scientific
research, in the administrative structure of the school of higher
education, as a rule, one must provide for an institution, which
performs functions of control and supervisions and the purpose of
which is to ensure responsibility and accountability of the
school of higher education before society, but which, however, is
not directly related to implementation of the principle of
academic freedom. In this context it is to be noted that such an
institution, which performs functions of control and supervision
and the purpose of which is to ensure responsibility and
accountability of the school of higher education before society,
may be formed not only from members of academic community of the
particular school of higher educationinter alia representatives
of institutions of the executive power of the state may be
appointed to it as well.
It is to be held that the legislator, while not denying the
principle of autonomy of schools of higher education, may
establish by laws the ways and procedure of forming the
institutions (which perform functions of control and supervisions
and the purpose of which is to ensure responsibility and
accountability of the school of higher education before society)
within the structure of administration of schools of higher
education.
In this context it is to be noted that one may not establish
any such legal regulation where the institution, which performs
functions of control and supervisions and the purpose of which is
to ensure responsibility and accountability of the school of
higher education before society, apart of the functions of
control and supervision would also perform the functions of
administration of the school of higher education, which are, as
already mentioned, assigned to the institutions of administration
of schools of higher education, which are usually formed from
members of the academic community of the school of higher
education and which perform the functions of self-government of
the school of higher education.
15. Having taken account of the arguments set forth, a
conclusion is to be made that the provision "<
> 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 <
>" of
Item 13 of Chapter II of the reasoning part of the ruling of the
Constitutional Court of 20 March 2008 inter alia means that:
- according to the Constitution, the legislator, while not
denying the principle of autonomy of schools of higher education,
may establish by laws the bases of organisational and
administrative structure of schools of higher education;
- administrative institutions of schools of higher education
that perform functions of self-governance of the school of higher
education are formed by the schools of higher education
themselves; the ways and procedure of forming such institutions
are established, according to the bases that are entrenched in
laws, by the schools of higher education in their by-laws or
statutes;
- representatives of the institutions of the executive power
of the state may be appointed to the institutions of schools of
higher education which perform functions of control and
supervision and the purpose of which is to ensure responsibility
and accountability of the school of higher education before
society; the ways and procedure of forming such institutions may
be established by laws, while not denying the principle of
autonomy of schools of higher education, by the legislator.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 1 and 61 of the Republic of
Lithuania Law on the Constitutional Court, the Constitutional
Court of the Republic of Lithuania has passed the following
decision:
To construe that the provision "<
> 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 <
>" of Item 13 of
Chapter II of the reasoning part of the ruling of the
Constitutional Court of the Republic of Lithuania (Official
Gazette Valstybės žinios, 2008, No. 34-1224, correction Official
Gazette Valstybės žinios, 2008, No. 44) of 20 March 2008 inter
alia means that:
- according to the Constitution, the legislator, while not
denying the principle of autonomy of schools of higher education,
may establish by laws the bases of organisational and
administrative structure of schools of higher education;
- administrative institutions of schools of higher education
that perform functions of self-governance of the school of higher
education are formed by the schools of higher education
themselves; the ways and procedure of forming such institutions
are established, according to the bases that are entrenched in
laws, by the schools of higher education in their by-laws or
statutes;
- representatives of the institutions of the executive power
of the state may be appointed to the institutions of schools of
higher education which perform functions of control and
supervision and the purpose of which is to ensure responsibility
and accountability of the school of higher education before
society; the ways and procedure of forming such institutions may
be established by laws, while not denying the principle of
autonomy of schools of higher education, by the legislator.
This decision of the Constitutional Court is final and not
subject to appeal.
The decision is promulgated in the name of Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis