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On the Law on Science and Studies

Case No. 13/2010-140/2010

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE PROVISIONS OF THE REPUBLIC OF LITHUANIA LAW ON SCIENCE AND STUDIES (WORDING OF 30 APRIL 2009) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

22 December 2011
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representatives of a group of Members of the Seimas of the Republic of Lithuania, a petitioner, who were Vytenis Povilas Andriukaitis, Vydas Gedvilas and Julius Sabatauskas, Members of the Seimas,

the representatives of the Seimas of the Republic of Lithuania, the party concerned, who were Valentinas Stundys, Chairman of the Committee on Education, Science and Culture of the Seimas, Mantas Adomėnas, a Member of the Seimas, Audrius Skaistys, an Adviser at the Office of the Education, Science and Culture Committee of the Office of the Seimas, Gytautas Damijonaitis, an Adviser to the Minister of Education and Science of the Republic of Lithuania, and Tomas Daukantas, Head of the Law Division of the Ministry of Education and Science of the Republic of Lithuania,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 17, 21 and 23 November 2011, heard constitutional justice case No. 13/2010-140/2010 subsequent to:

1) a petition of the group of Members of the Seimas of the Republic of Lithuania, a petitioner, requesting to investigate whether:

the provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do scientific work” of the Preamble to the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 2 of Article 25, Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

the provision “A state school of higher education shall be a public legal person functioning as a public establishment, possessing the autonomy guaranteed by the Constitution of the Republic of Lithuania, and the special status defined by this and other laws” of Paragraph 4 of Article 6, Paragraphs 1 and 3 of Article 8, Paragraph 3 of Article 9, Articles 19, 20, 21 and 22 (save Paragraph 8 of Article 22), Paragraph 4 of Article 53, Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90, and Paragraph 3 of Article 91 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) are not in conflict with Paragraphs 1 and 4 of Article 46 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and equality of persons;

Item 4 of Paragraph 1 of Article 11 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Paragraph 2 of Article 17 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Article 39 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 3 of Article 40 and Paragraph 1 of Article 42 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Paragraph 2 of Article 48 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraphs 1 and 3 of Article 40, Paragraph 1 of Article 42 and Paragraphs 3 and 7 of Article 43 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Paragraph 3 of Article 66 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Article 18, Paragraph 1 of Article 25, Paragraphs 1, 2 and 3 of Article 26, and Paragraphs 3 and 7 of Article 43 of the Constitution of the Republic of Lithuania;

Paragraph 2 of Article 69 and Paragraph 4 of Article 76 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Paragraphs 2, 5, 7 and 11 of Article 70 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Paragraphs 2, 4, 6 and 8 of Article 93 (“Implementation of the Law”), Article 94 (“Entry into Force and Application of the Provisions of Chapter VII of the Law”) and Article 96 (“Reorganisation of State Schools of Higher Education from Budgetary Establishments into Public Establishments”) of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) are not in conflict with the constitutional principles of a state under the rule of law, legitimate expectations, legal certainty and legal security, as well as whether Paragraph 4 of Article 96 of this law is not in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania;

Paragraph 5 of Article 94 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Paragraph 5 of Article 95 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-3/2010);

2) a petition of the Supreme Administrative Court of Lithuania, a petitioner, requesting to investigate whether Paragraph 1 of Article 70 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania (petition No. 1B-153/2010).

By the Constitutional Court decision of 14 October 2011 the petitions of the petitioners were joined into one case and it was given reference No. 13/2010-140/2010.

The Constitutional Court

has established:

I

1. The petition (No. 1B-3/2010) of the group of Members of the Seimas, a petitioner, is substantiated by the following arguments.

1.1. As a result of the fact that a subject has been allocated the funds from the state budget, a duty should arise for such a subject to inform society of its financial, economic and scientific activities as well as the use of its funds; therefore, a non-state school of higher education and a non-state institute of scientific research, which would receive the funds of the state budget or the funds of the state financed programmes, should also be obliged to account to society for their financial, economic and scientific activities as well as the use of their funds—at least to the extent the said funds have been used.

1.2. One may not set for educationists and other employees any requirements connected with their convictions. The neutrality and secularity of the state may not serve as the grounds to discriminate against the believers, to restrict their rights and freedoms; secularity of the state also presupposes the non-interference of the state in the internal life of churches and religious organisations. In secular state schools of higher education studies in theology and the scientific degree of licentiate in theology are accessible to persons holding different religious convictions and views and are not to be linked to any concrete religion. Recognising a scientific organisation as an organisation of confessors of exclusively one religion violates the constitutional principles of a state under the rule of law and equality of persons, while institutionalising a scientific organisation on the grounds of a confession violates the constitutional principle of a state under the rule of law.

1.3. The petition of the group of Members of the Seimas, a petitioner, is essentially substantiated by the provisions of the official constitutional doctrine, which construe the autonomy and funding of schools of higher education and the criteria enabling to establish which persons are regarded as being good at their studies. In the opinion of the petitioner, the most important constitutional doctrinal provisions substantiating its petition are the following:

according to the Constitution, the legislator, while not denying the principle of autonomy of schools of higher education, may establish by means of laws the bases of organisational and governance structure of schools of higher education;

governance institutions of schools of higher education, which implement the functions of self-government of the school of higher education, are formed by the schools of higher education themselves; the ways and procedure of forming such institutions are established, according to the bases that are entrenched in laws, by the schools of higher education in their regulations or statutes;

as a rule, the said institutions of schools of higher education are formed from members of their academic community; autonomy of schools of higher education implies the right of schools of higher education to provide that not only members of academic community of the particular school of higher education could become members of such institution;

representatives of institutions of the executive power of the state may be appointed to the institutions of schools of higher education that perform functions of control and supervision and the purpose of which is to ensure the responsibility and accountability of the school of higher education to the public; the manner and procedure for forming such institutions may be established by the legislator by means of laws, while not denying the principle of autonomy of schools of higher education;

the autonomy of schools of higher education entrenched in the Constitution implies that state schools of higher education must be, for the purpose of performing their functions, allotted state funds; these funds must be provided for in the state budget; an essential guarantee of autonomy of state schools of higher education is such legal regulation when the law on the state budget provides not only for the allocation of money for the higher education, but also for the funds for each state school of higher education;

free-of-charge education is guaranteed at state schools of higher education to the citizens who study subsequent to the requisition by the state in order to meet the demand of specialists of corresponding areas (fields), which is established by the state, providing their learning corresponds to the criteria of good learning established by law;

the criteria enabling to establish which students are good at their studies and which would, consequently, as prescribed by the Constitution, have the right that their education in state schools of higher education would be financed by the state, must be established only by law;

higher education tuition of citizens who are good at their studies cannot be imposed on these persons themselves in whatever form;

the assessment of the results of learning (according to the criteria of good learning established by law) of citizens who study in state schools of higher education subsequent to the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) must be conducted on a regular basis after checking the knowledge of the studied subjects after each period of academic learning;

the citizens who were admitted in state schools of higher education to study subsequent to the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) must be guaranteed the education free of charge till the first basic checking of the knowledge of the subjects studied by them;

the Constitution does not contain a prohibition for the state to undertake, in accordance with its possibilities, higher financial obligations to students of schools of higher education; the undertaking of higher financial obligations than implied in the constitutional provision stipulating that citizens who are good at their studies shall be guaranteed education free of charge in state schools of higher education should not deny the striving for a just and harmonious society enshrined in the Constitution;

upon assessing the needs of society and the state and the financial capabilities of the state, in cases when specialists of particular areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, they may be prepared also in non-state schools of higher education upon requisition of the state and from funds of the state budget; in such a case the state must guarantee that the expenses of learning (studies) of such specialists will be covered by state funds, provided that the learning of the said individuals meets the criteria of good learning established by law.

2. The petition (No. 1B-153/2010) of the Supreme Administrative Court of Lithuania, a petitioner, is substantiated by the following arguments.

2.1. By granting, in Paragraph 1 of Article 70 of the Law on Science and Studies, the Ministry of Education and Science the powers to determine the procedure for setting up the queue of persons who have completed a secondary education programme with the best results, the legislator has entrenched only a model rather than final list of the criteria which are to be taken into account when establishing the priority right to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes. The constitutional doctrine formulated by the Constitutional Court regarding the construction of Paragraph 3 of Article 41 of the Constitution consolidates the provision that the criteria enabling to establish which students are regarded as being good at their studies and which would, consequently, as prescribed by the Constitution, have the right that their education in state schools of higher education would be financed by the state, should be established by law. In the opinion of the petitioner, such regulation when a law does not provide for an essential condition for implementing the right to free-of-charge education guaranteed in the Constitution, inter alia the criteria enabling to establish which students are to be regarded as being good at their studies in terms of Paragraph 3 of Article 41 of the Constitution, and when a law does not respectively commission the Ministry of Education and Science to establish the said criteria, is in conflict with Paragraph 3 of Article 41 of the Constitution.

2.2. Once the legislator chooses such a model of financing of studies from funds of the state budget under which it commissions the Ministry of Education and Science to determine the procedure for setting up a queue of persons who have completed a secondary education programme with the best results, and at the same time does not establish in the law any clear criteria for setting up such a queue, nor the meaning of these criteria, a situation is possible that, after a school of higher education implements, as guaranteed by the Constitution, the right to set up independently the procedure for admission to study programmes of the first cycle and integrated study programmes, inter alia the criteria for admission to studies and the meaning of these criteria, the persons who have enrolled according to that established order with the best (better) results may be not admitted to state-funded student places in study programmes of the first cycle and integrated study programmes where the criteria established by the corresponding higher school will differ from the principles and criteria established for the procedure for setting up a queue of persons who have completed a secondary education programme with the best results. Thus, such a chosen model of financing of studies in state schools of higher education from funds of the state budget creates preconditions to maintain that state schools of higher education, while having a possibility of admitting to studies and preparing as many specialists as necessary in order to meet the demand of specialists of corresponding areas (fields), which is established by the state, and while seeking to receive funding for preparing these specialists, must establish such criteria of admission to studies and the meaning of these criteria that would not, in essence, differ from the criteria established by the Ministry of Education and Science for setting up a queue of persons who have completed a secondary education programme with the best results, as well as from the meaning of these criteria, however, such regulation, in the opinion of the petitioner, is in conflict with Paragraph 3 of Article 40 of the Constitution.

II

1. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representatives of the Seimas, the party concerned, who were M. Adomėnas, a Member of the Seimas, and A. Skaistys, an Adviser at the Office of the Education, Science and Culture Committee of the Office of the Seimas, wherein it is maintained that the disputed provisions of the Law on Science and Studies are not in conflict with the Constitution. The position of the representatives of the party concerned, M. Adomėnas and A. Skaistys, has been substantiated by the following arguments.

1.1. The preamble of a law is not an obligatory part of the structure of a legal act; it does not belong to the normative part of a law and does not create any legal consequences characteristic of norms of law; in the preamble one indicates the objectives of and the reasons for the issuance of the legal act, as well as the political will of the subject who has passed that legal act. Thus, the provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do scientific work” of the Preamble to the Law on Science and Studies does not, in itself, create any relations of a discriminatory nature, and the striving to ensure conditions for the best ones to do scientific work is not elaborated on in the normative part of the law so that it would violate the right to freely choose a job or business, which is guaranteed in the Constitution. The aim to ensure conditions for the best ones to do scientific work, which is pursued within the Lithuanian policy on science and studies, is a positive one, as it is based on a legal presumption that the best ones, while conducting scientific work, will efficiently contribute to the improvement of the quality of science and studies, and in order that the profession of a scientist would be more prestigious, one must create favourable financial and professional conditions, the career motivation system and similar preconditions, which may not be of a discriminatory nature.

1.2. The provision of Paragraph 3 of Article 40 of the Constitution guarantees the autonomy of schools of higher education. In the official constitutional doctrine, which construes the concept of autonomy of schools of higher education, it is noted that the legislator, while not denying the principle of autonomy of schools of higher education, may establish the bases of the organisational and governance structure of schools of higher education, that governance institutions of schools of higher education, which perform the functions of self-government of the school of higher education, are formed by the schools of higher education themselves, and that representatives of institutions of the executive power of the state may be appointed to the institutions of schools of higher education that perform the functions of control and supervision.

Schools of higher education are directly connected with the state and the processes taking place therein and in the whole Europe, therefore the concept of the autonomy granted to schools of higher education may not imply the ignorance about or the dissociation from the said processes to such an extent that it would be impossible to amend the legal regulation and that such legal regulation would always remain the same, without taking account of the indicators of a demographic and social situation. The autonomy of schools of higher education means that the state institutions do not regulate the inner life of schools of higher education in a petty manner, and that schools of higher education are provided with the means to efficiently respond to the changes taking place in society, the state and the world.

1.3. In the official constitutional doctrine, which construes the concept of autonomy of schools of higher education, it is noted that that governance institutions of schools of higher education, which implement the functions of self-government of the school of higher education, are formed by the schools of higher education themselves. Article 19 of the Law on Science and Studies provides for the following system of institutions of a school of higher education: the collegial governance bodies—the council and the senate, and a one-person governance body—the rector.

Namely the system of institutions of a school of higher education, entrenched in Article 19 of the Law on Science and Studies, ensures the autonomy of a school of higher education. Under the Law on Science and Studies, when forming the aforesaid system of institutions of a state school of higher education, the decisive word belongs to the community of the school of higher education itself. The community of a school of higher education, exclusively, forms the senate of the school of higher education and elects half of the members of the council of the school of higher education; one member of the council is appointed by common agreement (i.e. that member may not be appointed against the will of the community of the school of higher education), while the other members of the council are proposed by legal and natural persons from the persons who do not belong to the staff and students of the school of higher education—these latter members of the council are approved by the Minister of Education and Science. The rector is elected by the council. Under the quorum requirements established in the Law on Science and Studies, while electing the rector and deciding the other most important questions ascribed to the competence of the council, the academic community has a decisive vote, as without the assent of the members of the council who have been elected by the academic community the said decisions may not be adopted. Such a system is a guarantee of self-government and institutional balance in the governance of a school of higher education.

Thus, the system of interaction of institutions of a state school of higher education, which is established in the Law on Science and Studies, guarantees the essential participation of the university community in the course of implementation of self-government of the school of higher education and ensures the transparency of the university’s activity as well as its accountability to the public.

1.4. When assessing the compliance of Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies with the Constitution, one should note the official constitutional doctrinal provisions, formulated in the Constitutional Court ruling of 20 March 2008, that “while forming and executing the policy of higher education, the state must pay heed to interests of schools of higher education—of both state and non-state schools of higher education—since higher education, as well as, science in general, can foster and be developed only without the state’s petty administration of scientific activity and teaching. <...> However, it needs to be emphasised that funds allocated by the state to schools of higher education must be used efficiently, by heeding the requirements of legal acts”. It needs to be noted that in its ruling of 5 February 2002 the Constitutional Court held that “A school of higher education which receives funds from the state budget must account for proper use of the received funds, while it is within the discretion of the legislator to establish by law the manner and means of control of the use of the funds”.

While using the freedom of discretion, the legislator has established different legal regulation with respect to state and non-state institutions of science and studies regarding the information provided for founders of these institutions and the public about the financial, economic and scientific activity, the use of funds, and the findings of external quality assessment and accreditation of study programmes in these institutions. By establishing different legal regulation, the legislator does not deny the fact of control of the use of state budget funds as established in accordance with the procedure set out in other laws.

1.5. According to the mission and objectives of an institute of scientific research, formulated by the legislator, an institute of scientific research is not an institution of science and studies which prepares scientists and specialists, since for the preparation of scientists and specialists university studies are necessary, which may be provided not by any type of institution, but only by schools of higher education—universities, certain part of teachers whereof are scientists or established artists. Under the Law on Science and Studies, persons at doctoral studies are not employees, but students; therefore, for their preparation one needs not only a corpus of scientific research, but also the corresponding studies as well as the teachers who conduct doctoral studies.

1.6. The Centre for Quality Assessment in Higher Education is a non-typical budgetary establishment, its activity has obvious specificity, due to which this establishment must be independent. Seeking to ensure the best representation possible of public interests, the state also has the right to involve, in the governance of an institution established by the state, the persons delegated by non-state organisations. The Lithuanian Confederation of Industrialists, the Lithuanian Chamber of Trade, Industry and Crafts, and the association “The Knowledge Economy Forum” join, on the basis of associated membership, representatives of the labour market and representatives of science into associations; in addition, these organisations have the reputation of trusted partners who conduct expert assessment of institutions of education and science. Taking account of the functions discharged by the Board of the Centre for Quality Assessment in Higher Education, it is not possible to maintain that the board may influence the activity of the Centre for Quality Assessment in Higher Education so that the prohibition against monopolisation of production and the market or freedom of fair competition would be violated. On the contrary, the involvement of non-state organisations in the governance of the Centre for Quality Assessment in Higher Education is in conformity with the European good practice principles as well as with one of the objectives of the Law on Science and Studies—to guarantee the quality of science and studies.

1.7. In assessing the constitutionality of Article 39 of the Law on Science and Studies, which regulates the unity of science (arts) and studies, it needs to be noted that the Seimas, as an institution forming the policy on higher education, has used its constitutional right to establish, by law, certain standards of higher education. Science, by its nature, is international, therefore, it is sought that Lithuanian schools of higher education would conform to the provisions of the European research and higher education area, set out in the Magna Charta Universitatum, inter alia the provisions consolidated therein, under which “teaching and research in universities must be inseparable if their tuition is not to lag behind changing needs, the demands of society, and advances in scientific knowledge” and “recruitment of teachers, and regulation of their status, must obey the principle that research is inseparable from teaching”.

1.8. The academic degree of licentiate in theology has been awarded in Lithuania (Kaunas Vytautas Magnus University) as far back as from 1928. The licentiate is an academic qualification degree of the second cycle, which is awarded to graduates of a school of higher education who have completed continuing (graduate) studies (analogous to a master’s degree). The degree of licentiate in theology is not directly and exceptionally linked to the training of the clergy, it is, both under the Republic of Lithuania laws and canon law, also awarded to the laity and indicates not the preparation to hold the office of a clergyman, but a special competence of a respective level. The legitimisation of the title of a concrete degree should not be treated as a violation of autonomy of a school of higher education, which then would be in conflict with the Constitution.

1.9. The Lithuanian Catholic Academy of Sciences is the oldest academic organisation in Lithuania; it is the only institution that evidently attests to the continuity of non-institutional activity of scientists, which was fostered in the pre-war independent state of Lithuania, among Lithuanian émigrés, and in the restored Republic of Lithuania. As a result of historical circumstances, a very small number of scientific unions in Lithuania have the tradition of long-term activity. Paragraph 3 of Article 66 of the Law on Science and Studies conveys the attitude of the Seimas towards the recognition, continuity and nurturance of Lithuanian academic traditions, towards the assurance of quality of scientific research and studies of all the areas and types and the assurance of the continuity of activity of the Lithuanian Catholic Academy of Sciences. These provisions express the striving to involve, more fully, the community of scientists in the processes of the formation of the policy on science and studies, and to encourage them to act more actively.

1.10. By consolidating in Paragraph 2 of Article 69 of the Law on Science and Studies that “State budget funds for studies shall not be appropriated for the branches of foreign schools of higher education established in the Republic of Lithuania”, the Seimas has resolved to limit, by law, additional financial liabilities and to create no possibilities for the branches of foreign schools of higher education established in the Republic of Lithuania to acquire legitimate expectations to receive the state budget funds allocated for the training (studies) of specialists of separate areas (fields). However, under Paragraph 1 of Article 73 of the Law on Science and Studies, as regards funding of target studies from funds of the state budget, the branches of foreign schools of higher education established in the Republic of Lithuania may, by way of competition, compete alongside state and non-state schools of higher education, as well.

2. In the constitutional justice case at issue written explanations were also received from the representatives of the Seimas, the party concerned, who were G. Damijonaitis, an Adviser to the Minister of Education and Science, and T. Daukantas, Head of the Law Division of the Ministry of Education and Science, wherein it is maintained that the disputed provisions of the Law on Science and Studies are not in conflict with the Constitution. The position of G. Damijonaitis and T. Daukantas, the representatives of the party concerned, has been substantiated by the following arguments.

2.1. The comparative study on university autonomy across 26 European countries published by the European University Association in 2011 shows that European universities themselves regard autonomy as a relative quality which is realised to a certain extent. This study has also indicated that Lithuanian schools of higher education are lacking most in academic autonomy, whereas in terms of governance and finances, their situation, both de facto and de jure, meets the average of Europe, or they have been even found to enjoy a more extensive than medium level of autonomy. In addition, the said study maintains that external members are involved in making the most important decisions of university governing bodies in most of the European universities. It needs to be noted that the experience of the activity of Lithuanian state schools of higher education in the period of several years also shows that the new governance system does not weaken autonomy, but, on the contrary, it provides schools of higher education with more opportunities and intellectual capacity to build their future in the conditions of dynamic changes and assume responsibility for it. The said exhaustive study carried out by the authoritative institutions unambiguously confirms that models of the governance of schools of higher education in Europe are very various and changeable, and that the concept of autonomy is being modified, as both the public itself and the perception in society of the mission of universities are also changing.

In almost all European countries institutions of higher education are undergoing reformation for the purpose of creating new models of institutional governance. All institutions of higher education in Europe have an executive body, generally the rector’s office, which is governed by the rector, president or vice-rector—the executive manager of an institution. Most institutions of higher education have a collegial academic body, generally called the senate, academic council or academic board, which is responsible for education and research services provided by the institution. There is a tendency in Europe to form advisory or supervisory bodies, which supervise or control work, educational and financial activity, and which, for the most part or totally, are formed from external stakeholders. In approximately one third of the states a supervisory body is at the same time a decision-making body.

2.2. The Law on Science and Studies lays down such a model of funding of studies under which the state, after assessing the demands in chosen study areas, finances the quality studies of the students who have passed corresponding examinations with the best results. This model of financing is in line with the fundamental constitutional value—the right of a person to choose responsibly, other important values and principles (those of non-discrimination, fair competition, consumer rights, anti-monopolisation), and the following important goals of the state: to educate responsible individuals capable of building their future and assuming responsibility for it, to fund transparently institutions of science and studies, and to ensure competitiveness, modernisation, efficiency of the institutions funded by the state, as well as the quality and accessibility of education, flexibility of the education system, and response to demands.

The state, while applying the system of the study basket, satisfies the demand of the public and the state to have, in accordance with the available financial possibilities, specialists of certain areas (fields) who have received higher education. The Government of the Republic of Lithuania allocates all the funds for studies according to study areas (humanities, social, physical, biomedical and technological sciences, and arts).

2.3. Paragraph 1 of Article 70 of the Law on Science and Studies does not consolidate that persons included in a queue of persons who have completed a secondary education programme with the best results, as determined in accordance with the procedure established by the Ministry of Education and Science, must be granted state funding, however, the said paragraph provides that such persons, who are included in a queue of persons who have completed a secondary education programme with the best results, are given priority to receive state funding. Thus, funding for studies from the state budget may be allocated only for the person included in a queue of persons who have completed a secondary education programme with the best results, and who meets a list of competitive subjects according to study fields and the principles of composition of a competitive grade, set by a school of higher education in accordance with Paragraph 1 of Article 52 of the Law on Science and Studies, as well as a lowest passing entrance grade and other criteria assessed by the students’ representation.

Prior to the entry into force of the Law on Science and Studies, state-funded student places used to be distributed during the same year when the respective admission took place, but the distribution of state-funded student places and the establishment of admission conditions for enrolling persons were two separate processes. The Law on Science and Studies has consolidated a possibility that the criteria of the formation of a queue of persons who have completed a secondary education programme with the best results could differ from the admission conditions set by schools of higher education themselves. Still there is also a possibility, which has been realised in Lithuania, for the Ministry of Education and Science to choose, on the basis of the criteria for determining the aforementioned queue, the admission conditions fixed by schools of higher education. In Lithuania schools of higher education have managed to agree on common admission conditions. If they had failed to reach such an agreement, the criteria for determining a queue of persons who have completed a secondary education programme with the best results would have substantially differed from the admission conditions of separate schools of higher education.

2.4. The recommendations by the Supervisor for Academic Ethics and Procedures reveal that there exists a standard of academic ethics and procedures which is acceptable at the national level. This standard means that the existence of common norms of academic ethics is being recognised, therefore, no such situation is possible where a scientist, after moving from one institution of science and studies to another, would be obliged to follow different standards of academic ethics. A common standard of academic ethics and procedures is important not only to institutions of science and studies, but also to expert institutions, which are commissioned to assess the quality of scientific activity.

III

In the course of the preparation of the case for the Constitutional Court hearing, as regards certain issues of this constitutional justice case, written explanations were received from Assoc. Prof. Dr. Benas Ulevičius, Dean of the Faculty of Catholic Theology of Vytautas Magnus University, Deividas Kriaučiūnas, Director General of the European Law Department under the Ministry of Justice of the Republic of Lithuania, and Gintaras Steponavičius, Minister of Education and Science of the Republic of Lithuania.

IV

1. At the Constitutional Court hearing, the representatives of a group of Members of the Seimas, a petitioner, who were the Members of the Seimas—V. P. Andriukaitis, V. Gedvilas and J. Sabatauskas, reiterated the arguments set forth in the petition of the petitioner and answered the questions.

2. V. Stundys, Chairman of the Committee on Education, Science and Culture of the Seimas, a representative of the Seimas, the party concerned, while submitting his explanations on the compliance of the Law on Science and Studies with the Constitution, asserted that the disputed provisions are not in conflict with the Constitution and substantiated his position by the following arguments.

The Law on Science and Studies was drafted while taking account of several important principles: state funds are following the student (student’s basket); the right of a school of higher education to establish the number of students to be admitted; increase in accessibility of studies by ensuring an effective loan system, by partial coverage of tuition fees, and by establishing students’ social grants. The Law on Science and Studies has developed the content and notion of autonomy of a school of higher education: autonomy of schools of higher education includes freedom to establish, by themselves, programmes of studies and content thereof, fields of scientific activities, their internal structure, staff policy, as well as the right to dispose of the property that was acquired by them or was entrusted by the state. Thus, the Law on Science and Studies has established a special legal status of schools of higher education.

The Law on Science and Studies also seeks to achieve that the activity of schools of higher education would be that of quality and that the schools themselves would be accountable to society. The responsibility is related to assessment from outside, funding the higher education according to the results, competition among schools of higher education and participation of social partners in governance of such schools. This law has entrenched the reformed councils of schools of higher education, these councils were granted the status of a strategic institution. The institution of the supervisor of academic ethics and procedures is designated for securing the quality of science and studies. Under this law, scientific activity is funded by applying the principle of competition, the activity of societies and associations uniting scientists and students is promoted, such societies and associations are drawn in the formation of the policy of science and studies.

By establishing a new procedure for formation the council of a state school of higher education, one was attempting to make a balance in the proportion of its members appointed from outside and from inside, and to define more precisely as to who can be a member of the council of a state school of higher education. While seeking to diminish the possibility to violate autonomy of schools of higher education as much as possible and to prevent politicians from participating in the activity of the councils of a school of higher education, one has established clear criteria as well as requirements for a member of the council of a school of higher education—he may not be a state servant of political confidence. It was also sought to achieve that the Minister of Education and Science would not exert a decisive influence but that he would have only an opportunity to choose from the members submitted by the independent Council of Higher Education.

Since the concept of one’s being good at his studies often depends upon a lot of circumstances, especially upon the culture of assessment in a school of higher education, upon the nature of the programme of studies, it is rather difficult to compare as to what one’s being good at his studies is, and what one’s being good at his studies according to separate programmes of studies is. Therefore, the Law on Science and Studies has entrenched rotation—after two years of studies the state funding is reassessed in essence: if the mean of the results of the studies during an appropriate period is more than 20 per cent lower than the mean of the results of studies of an appropriate study programme or course, the studying person loses his state-funded student place and the one who is studying at his own expense may aspire to such a place. In addition, while seeking to secure the accessibility of studies, it was established that up to 10 per cent of the students who are good at their studies and whose student places are not funded by the state, may aspire to be compensated for the fee paid for their tuition.

3. The representatives of the Seimas, the party concerned, who were M. Adomėnas, a Member of the Seimas, and A. Skaistys, an Adviser at the Office of the Education, Science and Culture Committee of the Office of the Seimas, reiterated the arguments set forth in their written explanations, as well as answered the questions and gave additional explanations.

3.1. In its rulings the Constitutional Court has entrenched a traditional concept of autonomy of schools of higher education, however, the tradition may be subject to change—in the European higher education area such traditional autonomy is being reinterpreted by ensuring the compliance of the higher education system with the interests of society. Autonomy of schools of higher education must help seek to achieve that higher education would be that of quality and that schools of higher education would be accountable to society: the state acts with regard of schools of higher education both as the authority from which the academic community is independent, and as the founder to which schools of higher education are accountable. The requirement for autonomy of schools of higher education is not an end in itself, its purpose is to implement the public mission of schools of higher education. It is noteworthy that the Law on Science and Studies seeks to implement transparent mechanisms of accountability to society without violating academic freedom at the same time.

3.2. The council of a state university is a governance institution through which society expresses its interest which can be expressed so only in democratic states. Under the Law on Science and Studies, the principles of formation of the council of a state university and the mechanism of its functioning ensure inviolability of autonomy of a school of higher education and non-interference with the life and activities of the academic community. The Law on Science and Studies also allows to form active councils of state universities; the mechanism of adoption of decisions by these councils is a transparent one.

3.3. In order to ensure the control and supervision of schools of higher education, the Law on Science and Studies has strengthened the functions of the Centre for Quality Assessment in Higher Education and entrenched the institution of the supervisor of academic ethics and procedures, whose recommendations regarding the ethics provisions may not be deemed mandatory for the schools of higher education.

3.4. In the area of the social relations in higher education and studies, the public and private sectors must be adjusted. While taking account of the world tendency where the boundaries between public and private higher education are disappearing, it is noteworthy that, in Lithuania, in the area of higher education and studies, there could be, along with the state sector, a private sector in higher education, which is more dynamic, which often meets concrete interests more efficiently, and which reorients faster. Under the Law on Science and Studies, it is persons who are funded, but not institutions of science and studies, thus, the non-state sector is funded insofar as it is related with the choice by the students, i.e. with the implementation of a constitutional value—freedom of choice by the person. Thus, the Law on Science and Studies promotes competition in higher education and seeks to implement the standards of highest quality. It is important to note that the accessibility of higher education to everyone according to his individual abilities does not mean at all that higher education must be universal and that the standards diminishing the quality of higher education should be established.

4. The representatives of the Seimas, the party concerned, who were G. Damijonaitis, an Adviser to the Minister of Education and Science, and T. Daukantas, Head of the Law Division of the Ministry of Education and Science, reiterated the arguments set forth in their written explanations and answered the questions.

The Constitutional Court

holds that:

I

On the compliance of the provision “The Lithuanian policy on higher education and research guarantees <…> favourable conditions for the best of them to do scientific work” of the Preamble to the Law on Science and Studies with Paragraph 2 of Article 25 of the Constitution, on the compliance of the same provision as well as Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies with Paragraph 1 of Article 42, Paragraph 1 of Article 46, Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, on the compliance of Paragraph 3 of Article 8, Paragraph 3 of Article 9, Article 39, and Paragraph 4 of Article 53 of the same law with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law, and on the compliance of Article 39 of the same law with Paragraph 1 of Article 42 of the Constitution.

1. A group of Members of the Seimas, a petitioner, has doubted whether the provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do scientific work” of the Preamble to the Law on Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 2 of Article 25, Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

1.1. The petitioner has substantiated its doubts regarding the provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do scientific work” of the Preamble to the Law on Science and Studies by the fact that, according to the petitioner, scientific work can be done by those who feel calling for such an activity, who meet the qualification requirements needed for scientific work, but not only by those who can be recognised best to do scientific work.

1.2. The provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do scientific work”, which is being disputed by the petitioner, is entrenched in the Preamble to the Law on Science and Studies; in the Preamble inter alia the purposes of the law are established. It needs to be noted that the provisions of the preamble to this law are of programmatic nature, in their context other provisions of this law are construed.

Thus, the provision (disputed by the petitioner) of the Preamble to the Law on Science and Studies expresses the aspiration of the legislator to create the conditions where scientific work is done by the persons best fit for such work, i.e. to create, by the legal regulation established in the law, favourable conditions for the persons best fit for scientific work to choose this work, also, to establish such requirements for screening which would allow to select those best fit to do this work. This provision must be related first of all with the other provision “The Lithuanian policy on science and studies guarantees the quality of science and studies” of the Preamble to the Law on Science and Studies. The quality of science and studies would not be guaranteed if the conditions to do scientific work were guaranteed to every person wishing to do this work regardless of his abilities; the best quality of preparation of science and studies, inter alia the quality of preparation of specialists and scientists, is possible only if the persons best fit for scientific work are selected under procedure established by legal acts. The provision disputed by the petitioner is also to be construed inter alia in the context of Item 2 of Paragraph 3 of Article 53 of the Law on Science and Studies, in which the equal rights of the academic community to take part in competitions, as well as Articles 58 and 59, in which the minimal qualification requirements are established for the persons willing to work in the positions of teachers of schools of higher education and scientific workers. When this provision is construed in this way, one is to draw a conclusion that namely those persons who best meet the established qualification requirements for doing scientific work are recognised as best fit to do scientific work and, due to this, under procedure established by legal acts, they are selected or appointed to corresponding positions.

1.3. The provisions (specified by the petitioner) of the Constitution with which, according to the petitioner, the provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do scientific work” of the Preamble to the Law on Science and Studies is in conflict, are interrelated. In Paragraph 1 of Article 42 of the Constitution the principle of academic freedom, or freedom of science, research and teaching, is entrenched; the constitutional freedom of science and research also inter alia means that every person has the right to freely decide by himself whether to engage in science and research, including the right to freely choose the sphere of scientific research and methods of investigating particular subjects, to form his scientific world-view (Constitutional Court decision of 28 October 2009). The constitutional freedom of each human being to choose a job or business also implies the right to freely choose a profession and acquire it (Constitutional Court ruling of 20 February 2008). Therefore, this freedom entrenched in Paragraph 1 of Article 48 of the Constitution includes the human right to freely decide himself whether to engage in science and research. On the other hand, the opportunity to freely choose a job or business guaranteed in Paragraph 1 of Article 48 of the Constitution is related to the provision of Paragraph 1 of Article 46 of the Constitution in which freedom of economic activity and initiative of a person is entrenched (Constitutional Court ruling of 4 March 1999); freedom of economic activity and initiative of a person implies his freedom to choose a job or business.

Paragraph 1 of Article 42 of the Constitution is also related to Paragraphs 1 and 2 of Article 25 of the Constitution. In its ruling of 5 May 2007, the Constitutional Court held that the constitutional freedom of science and research is inseparable from the freedom of having one’s own convictions and expressing them, which is entrenched in Article 25 of the Constitution and which implies among other things the freedom of a person to form his own convictions and to choose values of world-view (Paragraph 1 of Article 25 of the Constitution), and from freedom of information consolidated in the same article of the Constitution, which means that a person may not be hindered from seeking, receiving and imparting information and ideas (Paragraph 2 of Article 25 of the Constitution).

1.4. The provision of Paragraph 1 of Article 42 of the Constitution must be construed inter alia while taking account of the provision of Paragraph 3 of Article 41 of the Constitution which entrenches the right of a human being to seek higher education according to his individual abilities (Constitutional Court ruling of 20 February 2008).

In its ruling of 14 January 2002, the Constitutional Court inter alia held: “There has to be a balance between the legitimate interests of a person and the needs of both the society and the state. The financial possibilities of the state (including possibilities to fund higher education) are not and cannot be unlimited. The constitutional provisions that higher education shall be available to everyone according to their individual abilities cannot be interpreted as imposing a duty on the state to ensure funding of any higher education for anyone capable of seeking it without proper consideration of the needs and possibilities of the society and the state. The constitutional provisions that higher education shall be available to everyone according to their individual abilities cannot be interpreted in a way that would deny an individual’s constitutional right to seek higher education according to his abilities even when the state does not finance his education because that would exceed the needs and possibilities of the society and the state. The need of the society and the state to have graduate specialists in various areas and the possibility to finance only a certain number of specialists cannot be an obstacle for a person to seek higher education according to his abilities not at the expense of the state even when this exceeds the needs and possibilities of the society and the state.”

It needs to be noted that these provisions of the official constitutional doctrine are to be applied mutatis mutandis in construing Paragraph 1 of Article 42 of the Constitution. It is not allowed to construe the constitutional freedom of science and research as the one where the state must, without taking account of the needs and possibilities of society and the state, guarantee the conditions do scientific work for all persons willing to do such work; on the other hand, the needs and possibilities of society and the state are not an obstacle for every human being willing to do scientific work, to engage in science and research without state support.

1.5. Taking account of the arguments set forth, one is to draw a conclusion that the provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do scientific work” of the Preamble to the Law on Science and Studies is not in conflict with Paragraph 2 of Article 25, Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

2. A group of Members of the Seimas, a petitioner, has doubted whether Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

2.1. Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies prescribes:

1. A scientific research institute shall have the right:

<...>

4) in conjunction with universities and in accordance with the procedure laid down by this Law, to train scientists, to help in training specialists.”

2.2. The doubts of the petitioner regarding the conflict of Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies with the Constitution are substantiated by the arguments whereby a scientific research institute has the right to train scientists and specialists not only in conjunction with universities, but also independently or in conjunction with other scientific research institutes of Lithuania or with scientific research institutes of other states.

2.3. It needs to be noted that the provisions of Paragraph 1 of Article 42 of the Constitution, in which inter alia freedom of science and research is entrenched, is related with Paragraph 3 of Article 40 of the Constitution, in which autonomy of schools of higher education is guaranteed: the constitutional concept of freedom of science and research implies the professional independency of the scientific community, which is inseparable from self-government of schools of higher education, which is one of essential conditions for implementation of autonomy of schools of higher education (Constitutional Court decision of 28 October 2009). Thus, autonomy of schools of higher education inter alia encompasses academic autonomy.

In its ruling of 27 June 1994, the Constitutional Court held that the development of the academic autonomy had always been determined by the understanding that science and teaching may normally exist and induce progress only when they are free and independent. Thus appeared the principle of academic freedom, which expressed the striving to protect the researchers’ and teachers’ freedom of scientific thought and its expression from outward influence.

In this context it needs to be noted that the right of the state to regulate external affairs of the school of higher education does not contradict the autonomy unless it impairs the freedom of scientific and pedagogic activity of the school of higher education (Constitutional Court ruling of 27 June 1994 and decision 28 October 2009).

2.4. It also needs to be noted that the provision of the official constitutional doctrine that autonomy of schools of higher education (which is granted to them under Paragraph 3 of Article 40 of the Constitution) includes their right to independently establish their study programmes, is to be construed in the context of the constitutional obligation of the state to supervise the activity of educational establishments and the constitutional obligation to secure that the level of provided higher education, which is marked by corresponding qualification degrees, would comply with certain uniform standards of the quality of higher education (Constitutional Court ruling of 20 February 2008).

It also needs to be noted that, in its rulings of 20 February 2008 and 20 March 2008, the Constitutional Court held that the arising from the Constitution guarantee of recognition of the higher education (profession) provided by legally operating schools of higher education implies the powers of respective state institutions to control the quality of higher education and secure that the level of the provided higher education, which is denoted by various qualification degrees, would meet certain uniform standards of quality of higher education—both general standards and those concretising them, those defining the requirements for certain areas of studies. Such standards must be established by the state institutions which, within their competence, form the higher education policy, and organise and implement the supervision of the activity of schools of higher education.

These provisions of the official constitutional doctrine are applicable mutatis mutandis also to the legal regulation of activities of scientific research institutes, inter alia state scientific research institutes.

2.5. In the context of the constitutional justice case at issue it needs to be noted that, under the Constitution, while heeding autonomy of schools of higher education, the legislator has broad discretion to choose and regulate a concrete model of organising science and studies, which meets best the needs of development of the progress of the state and society in a particulate period of time. However, having chosen a concrete model, the legislator must ensure uniform standards of higher education rendered by institutions of science and studies, inter alia those of training of scientists and specialists. It also needs to be noted that the Constitution, inter alia Paragraph 3 of Article 40 thereof, explicitly mentions only schools of higher education, however, it does not mean that the legislator may not provide for other institutions of science and studies, inter alia scientific research institutes, whose academic community is also guaranteed freedom science and research, i.e. an essential element of academic autonomy, entrenched in Paragraph 1 of Article 42 of the Constitution.

2.6. Under Paragraph 13 of Article 4 of the Law on Science and Studies, a scientific research institute means an establishment the main activity of which is scientific research and experimental (social, cultural) development.

Thus, the purpose of a scientific research institute is not conducting studies, but its main activity is scientific research and experimental (social, cultural) development, meanwhile, the competence of a school of higher education also encompasses conducting studies and scientific research (Paragraph 3 of Article 6, Paragraph 1 of Article 8, Paragraph 1 of Article 9, and Article 35 of the Law on Science and Studies). Therefore, the differences in the legal regulation of the status (inter alia the rights and purposes) of a scientific research institutes and a school of higher education are objectively justifiable.

It needs to be noted that, according to the purposes of a scientific research institute, which have been formulated to it by the legislator, a scientific research institute is not an establishment of science and studies training scientists and specialists, since in order to train scientists and specialists studies are necessary, which may be conducted only by schools of higher education. “Studies” means studying done by a person, who has completed at least his secondary education, in a higher education institution according to a certain study programme or when preparing a dissertation (Paragraph 20 of Article 4 of the Law on Science and Studies).

Thus, the notion of studies encompasses the first and second cycles of studies (professional bachelor’s, bachelor’s degree studies, and master’s degree studies), specified in Items 1 and 2 of Paragraph 2 of Article 46 of the Law on Science and Studies, during which specialists are trained, i.e. upon completing such studies, one is awarded the necessary professional qualification or the scientific knowledge and analytical capabilities necessary for performing respective work are acquired (Paragraphs 1 and 2 of Article 48 of the Law on Science and Studies), as well as the third cycle of studies specified in Item 3 of Paragraph 2 of Article 46 of the Law on Science and Studies, i.e. the doctoral studies the purpose of which is to prepare scientists who would be able to independently conduct research and experimental (social, cultural) development work, and to solve scientific problems (Paragraph 5 of Article 48 of the Law on Science and Studies). Carrying out studies is one of the objectives of a university and a college (Item 1 of Paragraph 2 of Article 8, Item 1 Paragraph 2 of Article 9 of the Law on Science and Studies), whereas training scientists is one of the objectives of a university (Item 2 of Paragraph 2 of Article 8 of the Law on Science and Studies). Thus, only universities and colleges can organise and carry out the studies necessary for training specialists, whereas only universities can organise and carry out the doctoral studies.

2.7. It needs to be noted that with regard to schools of higher education and scientific research institutes inter alia Article 53 of the Law on Science and Studies is applicable, in which the academic community of institutions of science and studies and the academic freedom guaranteed to it are defined. Under Paragraph 1 of this article, the academic community shall consist of students, the teaching staff, scientific workers, other researchers, and professors emeritus of institutions of science and studies.

Thus, academic freedom, which is inter alia defined in Paragraph 2 of Article 53 of the Law on Science and Studies, which encompasses freedom of thought, freedom of expression, freedom to choose methods of and access to research (artistic) and pedagogical activities, which is in conformity with the accepted principles of ethics, protection against restrictions and sanctions for making public the results of one’s research, and for the manifestation of one’s beliefs, with the exception of the cases when the published information is a state or official secret and/or is in violation of laws of the Republic of Lithuania, is guaranteed to members of the academic community of scientific research institutes as well as members of the academic community of schools of higher education; these members are also guaranteed the rights of academic community (the rights of creative and intellectual work, equal rights to take part in competitions, objective and open reviewing of scientific works) specified in Paragraph 3 of the same article.

2.8. Summing up the legal regulation of institutions of science and studies, which is established in the Law on Science and Studies, it needs to be held that the legislator has chosen the model of organising science and studies whereby inter alia:

there are two groups of institutions of science and studies: schools of higher education and scientific research institutes (Article 5 of the Law on Science and Studies);

the differences of the legal regulation of the status, inter alia the rights and objectives, of these two groups are objectively justified, since they are related with different purpose of schools of higher education and scientific research institutes: carrying out studies and scientific research are ascribed to the competence of schools of higher education; the main activity of scientific research institutes is not carrying out studies, but scientific research and experimental (social, cultural) development;

studies are a component part of training scientists and specialists;

the academic communities of both groups of institutions of science and studies are guaranteed inter alia freedom of science and research, which is an essential element of academic autonomy.

2.9. It has been mentioned that, under the Constitution, while heeding autonomy of schools of higher education, the legislator has broad discretion to choose and regulate a concrete model of organising science and studies, which meets best the needs of development of the progress of the state and society in a particulate period of time; having chosen a concrete model, the legislator must ensure uniform standards of higher education rendered by institutions of science and studies, inter alia those of training of scientists and specialists.

It has also been mentioned that, in the Law on Science and Studies, the legislator established the model of organising science and studies whereby studies are a component part of training scientists and specialists and there are two groups of institutions of science and studies: schools of higher education and scientific research institutes; carrying out studies and scientific research are ascribed to the competence of schools of higher education, whereas the main activity of scientific research institutes is not carrying out studies, but scientific research and experimental (social, cultural) development. It has also been mentioned that the academic communities of both groups of institutions of science and studies are guaranteed inter alia freedom of science and research, which is an essential element of academic autonomy.

Thus, one is to draw a conclusion that if the legislator chose such a model of organisation of science and studies, in which scientific research institutes, which do not organise and carry out studies, are allowed to train scientists and specialists without schools of higher education, one would create no preconditions for ensuring the uniform standards of higher education provided by institutions of science and studies, inter alia those of training scientists and specialists.

2.10. Taking account of the arguments set forth, one is to draw a conclusion that Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 42 of the Constitution.

2.11. It needs to be noted that the other provisions of the Constitution specified by the petitioner, i.e. the provisions with which, according to the petitioner, the provision of Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies is in conflict, are related with Paragraph 1 of Article 42 of the Constitution, in which the principle of academic freedom, or freedom of science, research, and teaching, is entrenched. As mentioned, the freedom of each human being to choose a job or business, which is entrenched in Paragraph 1 of Article 48 of the Constitution, also implies the right to freely choose a profession and acquire it; this freedom includes the human right to freely decide himself whether to engage in science and research; the opportunity to freely choose a job or business guaranteed in Paragraph 1 of Article 48 of the Constitution is related to the provision of Paragraph 1 of Article 46 of the Constitution in which freedom of economic activity and initiative of a person is entrenched: freedom of economic activity and initiative of a person implies his freedom to choose a job or business.

While taking account of this, one is to draw a conclusion that Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies is also not in conflict with Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the Constitution as well as with the constitutional principle of a state under the rule of law.

3. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 3 of Article 8, Paragraph 3 of Article 9 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

3.1. Paragraph 2 of Article 8 of the Law on Science and Studies provides:

More than half of the teaching staff of a university must be scientists and/or established artists.”

Paragraph 3 of Article 9 of the Law on Science and Studies provides:

More than a half of the teaching staff of a college must have at least three-year practical work experience in the sphere of a subject they teach. The qualification in the sphere of a taught subject must be improved in accordance with the procedure laid down by the college. Subjects which must be taught at colleges by the teaching staff members with a scientific degree shall be determined by descriptions of a study field, a set of study fields or a study area.”

3.2. In Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Education and Science the same requirements are established for the teaching staff of schools of higher education: in Paragraph 3 of Article 8—to the teaching staff of all universities, whereas in Paragraph 3 of Article 9—to the teaching staff of all colleges. “Teachers” means persons who educate and teach students and learners in a higher education institution (Paragraph 7 of Article 4 of the Law on Science and Studies). Thus, the requirements established in Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Science and Studies are related to the quality of education and teaching in a school of higher education.

Scientist” means a researcher who has a scientific degree (Paragraph 12 of Article 4 of the Law on Science and Studies). “Established artist” means a creator or a performer of artistic works whose creative activities are defined by the works which are especially significant for art and culture and have been implemented in Lithuania or/and abroad, gained a wide recognition of the public and art specialists, acknowledged with prestigious international or national prizes and other high awards, or/and who has educated distinguished artists and meets the requirements set by a higher education institution in which he seeks to hold or already holds a position (Paragraph 17 of Article 4 of the Law on Science and Studies). Thus, the disputed provision of Paragraph 3 of Article 8 of the Law on Science and Studies is the uniform requirement for the quality of the teaching staff of all universities: more than half of the teachers, who educate and teach students and learners in universities, must be researchers with a scientific degree and/or creators or performers of artistic works whose creative activities are defined by the works which are especially significant for art and culture and/or who have educated distinguished artists.

The uniform requirement for the quality of the teaching staff of colleges is at least three-year practical work experience in the sphere of a subject they teach. This requirement must be met by more than half of the teaching staff of colleges.

3.3. The petitioner is maintaining that the legal regulation established in Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Science and Studies violates autonomy of schools of higher education and the Constitutional principle of a state under the rule of law.

3.4. It has been mentioned that autonomy of schools of higher education (which is granted to them under Paragraph 3 of Article 40 of the Constitution) is to be construed in the context of the constitutional obligation of the state to supervise the activity of educational establishments and the constitutional obligation to secure that the level of provided higher education, which is marked by corresponding qualification degrees, would comply with certain uniform standards of the quality of higher education. It has also been mentioned that the arising from the Constitution guarantee of recognition of the higher education (profession) provided by legally operating schools of higher education implies the powers of respective state institutions to control the quality of higher education and secure that the level of the provided higher education, which is denoted by various qualification degrees, would meet certain uniform standards of quality of higher education—both general standards and those concretising them, i.e. those defining the requirements for certain areas of studies. Such standards must be established by the state institutions which, within their competence, form the higher education policy, and organise and implement the supervision of the activity of schools of higher education.

In its ruling of 13 June 2000, the Constitutional Court noted that supervision of activities of establishments of teaching and education includes the supervision of control how the Constitution and laws are observed; for this purpose, the state (its institutions) may resort to various ways and forms of control established by laws. By the state supervision of activities of establishments of teaching and education equal observance of the standards of education and learning is ensured, and the compliance of contents and level of education and teaching with the qualification recognised by the state is guaranteed.

Thus, under the Constitution, the right of the state to establish the quality requirements for higher education, inter alia those related with the qualification of teachers, does not deny per se autonomy of schools of higher education, however, in the course of implementing this right one must heed the imperatives arising from the Constitution, inter alia the constitutional principles of proportionality and reasonableness, and the principle lex non cogit ad impossibilia (it is not allowed that legal acts demand impossible things).

3.5. It has been mentioned that in Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Science and Studies certain uniform quality standards for higher education—requirements for university and college teachers—are established. It has also been mentioned that, under the Constitution, the right of the state to establish the quality requirements for higher education, inter alia those related with the qualification of teachers, does not deny per se autonomy of schools of higher education. Thus, the legal regulation of Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Science and Studies does not deny autonomy of schools of higher education (inter alia academic autonomy implying freedom of scientific and pedagogical activity), but it seeks to secure the quality of higher education provided by schools of higher education. In addition, there are no grounds to assert that the disputed legal regulation violates the imperatives arising from the Constitution, inter alia the constitutional principles of proportionality and reasonableness as well as the principle lex non cogit ad impossibilia.

3.6. Taking account of the arguments set forth it needs to be held that Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

4. The group of Members of the Seimas, a petitioner, has doubted whether Article 39 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40, Paragraph 1 of Article 42 of the Constitution and the constitutional principle of a state under the rule of law.

4.1. Article 39 of the Law on Science and Studies prescribes:

1. Higher education institutions must ensure the unity of scientific (artistic) activities and studies.

2. The unity of scientific (artistic) activities and studies at universities shall be ensured by the participation of teaching staff and students in scientific research and experimental (social, cultural) development (artistic activities), participation of scientific (art) workers in the study process, conveyance of scientific knowledge and scientific (artistic) work skills in study programmes of the second cycle and doctoral studies, commissioned scientific and experimental (social, cultural) development (artistic) works carried out at universities for business, non-state and public sector. Conducting of studies of the second cycle shall be related to the results of scientific (artistic) activities carried out at a university. Scientific research (artistic) activities shall be mandatory for students of the third cycle.

3. The unity of higher education and research at colleges shall be ensured through a close contact with the practice—participation of teaching staff and students in applied scientific research and experimental (social, cultural) development works commissioned by business, industrial and other organisations, at regional development projects, in consulting activities.”

4.2. Article 39 of the Law on Science and Studies establishes and regulates the principle of unity of scientific (artistic) activities and studies in schools of higher education. In universities the implementation of this principle is ensured by the participation of teaching staff and students in scientific research and experimental (social, cultural) development (artistic activities), participation of scientific (art) workers in the study process, by conveying scientific knowledge and scientific (artistic) work skills in study programmes of the second cycle and doctoral studies, by carrying out commissioned scientific research and experimental (social, cultural) development (artistic) works carried out at universities for business, non-state and public sector, also, this principle is ensured by relating the conduct of studies of the second cycle to the results of scientific (artistic) activities carried out at a university, and by carrying out, in a mandatory manner, scientific research (artistic) activities by students of the third cycle. At colleges this principle is ensured through a close contact with the practice—participation of teaching staff and students in applied scientific research and experimental (social, cultural) development works commissioned by business, industrial and other organisations, at regional development projects, and in consulting activities. Thus, while participating in scientific (artistic) activities and in the study process, teachers of schools of higher education can apply their theoretical knowledge in practice and impart this knowledge to students, whereas students can gain the theoretical and practical knowledge necessary for the sought professional qualification.

4.3. In this context it needs to be noted that the principle of science and teaching is entrenched in the Magna Charta Universitatum. It proclaims that teaching and research in universities must be inseparable if their tuition is not to lag behind changing needs, the demands of society, and advances in scientific knowledge. The same charter points out that recruitment of teachers, and regulation of their status, must obey the principle that research is inseparable from teaching.

4.4. Thus, Article 39 of the Law on Science and Studies, wherein the principle of unity of science (art) and studies is entrenched and implementation thereof is regulated, is designed for ensuring the tight link between the scientific research work and the teaching process, which is one of the preconditions for guaranteeing the quality of higher education. Such a link is necessary so that the education provided by schools of higher education would be in conformity with changing needs of progressive development of the state and society.

4.5. The petitioner has substantiated its doubts regarding the compliance of Article 39 of the Law on Science and Studies by inter alia the provisions of the official constitutional doctrine formulated in the Constitutional Court ruling of 5 May 2007 whereby, under the Constitution, no scientific views may be thrust upon a person, he may not be forced to choose a certain sphere of scientific research or not be permitted to choose it (save the exceptions stemming from the Constitution), he may not be forced to perform certain scientific research or be prohibited from performing certain scientific research (save the exceptions stemming from the Constitution), and to publish or not to publish results of the performed scientific research; this is a matter of the discretion of the person and his free choice.

4.6. Paragraph 3 of Article 40 of the Constitution provides: “Schools of higher education shall be granted autonomy.” It has been mentioned that this provision is related to the provision of Paragraph 1 of Article 42 of the Constitution in which freedom of science and research is entrenched. The autonomy of schools of higher education inter alia encompasses academic autonomy.

It has also been mentioned that autonomy of schools of higher education is to be construed in the context of the constitutional obligation of the state to supervise the activity of educational establishments and the constitutional obligation to secure that the level of provided higher education, which is marked by corresponding qualification degrees, would comply with certain uniform standards of the quality of higher education; the arising from the Constitution guarantee of recognition of the higher education (profession) provided by legally operating schools of higher education implies the powers of respective state institutions to control the quality of higher education and secure that the level of the provided higher education, which is denoted by various qualification degrees, would meet certain uniform standards of quality of higher education—both general standards and those concretising them, i.e. those defining the requirements for certain areas of studies. Such standards must be established by the state institutions which, within their competence, form the higher education policy, and organise and implement the supervision of the activity of schools of higher education.

It needs to be noted that also the legislator must create preconditions to ensure the quality of higher education. In its ruling of 20 February 2008, the Constitutional Court held that the standards of quality of higher education which must be met by a person aspiring to hold a certain position or to be engaged in a certain professional activity must be established by the law.

In this context it also needs to be noted that, in its ruling of 20 March 2008, the Constitutional Court held that teaching and scientific activity are a special activity which requires creativity; such activity is not similar to other types of professional activities and it is impossible to liken it to those other types of activities. Studies do not mean only work in lecture rooms; a very important part of the qualitative, thus, creative, work time of a teacher of a school of higher education is given for preparation for classes with the students, for guiding the students in their independent studies, for heading scientific activities, for professional communication with other scientists and researchers etc.

4.7. It has been mentioned that Article 39 of the Law on Science and Studies, wherein the principle of unity of science (art) and studies is entrenched and implementation thereof is regulated, is designed for ensuring the tight link between the scientific research work and the teaching process, which is one of the preconditions for guaranteeing the quality of higher education; such a link is necessary so that the education provided by schools of higher education would be in conformity with changing needs of progressive development of the state and society.

Thus, by such legal regulation the legislator implements the powers granted to it by the Constitution to create preconditions to ensure the quality of higher education, inter alia to guarantee that the level of higher education provided by schools of higher education, marked by corresponding qualification degrees, will meet certain uniform standards of higher education. Without establishing and implementing the principle of unity of scientific (artistic) activity and studies, one would not ensure the necessary standards of higher education, i.e. schools of higher education would not prepare specialists who meet the standards of higher education applied to those wishing to take a certain position or engage in a certain professional activity, also, one would not reach the other objectives of schools of higher education established in Paragraph 2 of Article 8 of the Law on Science and Studies (inter alia objectives of the university to carry out studies which provide to a person the university higher education and a higher education qualification based on scientific research and corresponding to the modern level of knowledge and technologies, develop a thoroughly educated, ethically responsible, creative and entrepreneurial person, to develop society receptive to education, sciences, arts and culture, which is able to effectively make use of science and compete in the market of high technologies, products and services), and Paragraph 2 of Article 9 thereof (inter alia objectives of colleges to carry out studies which provide to a person the college higher education and a higher education qualification satisfying the needs of the State, society and economy of Lithuania, and conform to the level of science and latest technologies, to create conditions for persons to improve their acquired knowledge and skills, to develop society receptive to education and culture, which is able to work under the conditions of rapid technology change). Alongside, the provisions of Article 39 of the Law on Science and Studies do not thrust upon anyone any scientific views, they do not force anyone to choose a certain sphere of scientific research or prohibit from choosing it, they do not force anyone to perform certain scientific research or prohibit from performing certain scientific research, they do not violate autonomy of schools of higher education.

4.8. Taking account of the arguments set forth, one is to draw a conclusion that Article 39 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40, Paragraph 1 of Article 42 of the Constitution and the constitutional principle of a state under the rule of law.

5. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 4 of Article 53 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

5.1. Paragraph 4 of Article 53 of the Law on Science and Studies provides:

The academic community shall make use of the academic freedom and acts in compliance with the Code of Academic Ethics, which is prepared and approved by science and studies institutions in accordance with the recommendations of the supervisor of academic ethics and procedures.”

Thus, the Code of Academic Ethics, in compliance with which the academic community acts, is prepared and approved in accordance with the recommendations of the supervisor of academic ethics and procedures. Article 18 of the Law on Science and Studies provides that the supervisor of academic ethics and procedures shall be a state official who examines complaints and initiates investigation regarding the violation of academic ethics and procedures (Paragraph 1), and that the Seimas shall appoint the supervisor for the term of five years on the recommendation of the Research Council of Lithuania (Paragraph 2).

While discharging his functions, the supervisor of academic ethics and procedures has the right inter alia to inform institutions of science and studies and the Ministry of Education and Science about the persons who have violated the academic ethics and procedures, to recommend the institutions of science and studies to revoke the decision taken on the basis of the documents regulating the academic ethics and procedures, to recommend to an employee to refuse participating in an ongoing project of research and experimental (social, cultural) development, to inform an institution responsible for a specific sphere about the persons (authors) who have suffered from violations of the academic ethics, to make public the cases about the violation of academic ethics and procedures (Paragraph 12 of Article 18 of the Law on Science and Studies). Thus, while implementing these powers, the supervisor of academic ethics and procedures contributes to the improvement of standards of academic ethics and, alongside, to the quality of higher education. In this context it needs to be mentioned that, under Sub-item 6 of Item 12 of the Regulations for the Service of the Supervisor of Academic Ethics and Procedures, approved by Seimas Resolution No. XI-1583 “On Founding the Service of the Supervisor of Academic Ethics and Procedures of the Republic of Lithuania and on Approving the Regulations for the Service of the Supervisor of Academic Ethics and Procedures of the Republic of Lithuania” of 15 September 2011 (which was adopted while invoking Paragraph 14 of Article 18 of the Law on Science and Studies), one of the tasks is the supervisor of academic ethics and procedures is contribution to the quality of science and studies while fostering the principles of academic responsibility and ethical scientific practices, while applying preventive measures against plagiarism, illegal copying or other illegal use of results of intellectual property created by other persons, as well as against forging, falsifying or manipulating scientific research data.

While summing up the legal regulation established in Paragraph 4 of Article 53 of the Law on Science and Studies, it needs to be noted that recommendations of the supervisor of academic ethics and procedures regarding the Code of Academic Ethics prepared and approved by the institution of science and studies reveals what is the recommended standard acceptable to the academic community of all institutions of science and studies. While taking account of the recommendations of the supervisor of academic ethics and procedures, as well as of the specificity of activity of a respective academic community and of the traditions of good academic practice, each institution of science and studies (a school of higher education or an institute of scientific research) prepares and approves its code of academic ethics.

5.2. The doubts of the petitioner regarding the compliance of Paragraph 4 of Article 53 of the Law on Science and Studies with the Constitution are substantiated by the fact that, according to the petitioner, the supervisor of academic ethics and procedures, while being a state official appointed by the Seimas, has a possibility to violate autonomy of schools of higher education, when he is submitting recommendations regarding the Code of Academic Ethics.

5.3. The autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies academic and institutional autonomy. In its ruling of 27 June 1994, the Constitutional Court, while construing the provision of Paragraph 3 of Article 40 of the Constitution, whereby schools of higher education shall be granted autonomy, held that, historically, the idea of the autonomy of the school of higher education came into being in the Middle Ages, when universities originated as establishments of science and studies. The autonomy meant that the university, to a certain extent, was independent from the state, was striving to dissociate itself from the influence of political power, to create an independent system of regulation of internal activities within the school of higher education. The purpose of such dissociation from the state power was to safeguard the freedom of science, research and teaching, to protect researchers and professors from political influence. The development of the academic autonomy has always been determined by the understanding that science and teaching may normally exist and induce progress only when they are free and independent. Thus appeared the principle of academic freedom, which expressed the striving to protect the researchers’ and teachers’ freedom of scientific thought and its expression from outward influence. Traditionally, the autonomy of the school of higher education is conceived as the right to independently determine and establish in the regulations or statute the organisational and governance structure, relations with other partners, the procedure of research and studies, study programmes and the procedure of student enrolment, to solve other related questions, to use the property given over by the state and other acquired property, to possess the territory, buildings and other property allotted for the needs of research and studies, and to have the guarantee of inviolability. For this purpose, the school of higher education is guaranteed the institutional autonomy, i.e. a certain status, which means that there are certain spheres of activities independent from the control of the executive power (Constitutional Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008, 20 March 2008, decision of 28 October 2009).

On the other hand, the interests of schools of higher education and those of society must be adjusted; autonomy of schools of higher education must be coordinated with their duty to observe the Constitution and laws and with responsibility and accountability to society (Constitutional Court rulings of 5 February 2002 and 20 March 2008). Granting autonomy to schools of higher education does not relieve the state from its constitutional obligation to secure the efficiency of the system of higher education; therefore, autonomy of schools of higher education does not mean that the activity of such schools cannot be subject to state control; quite to the contrary, this activity, since it is related inter alia with the implementation of human rights and freedoms, as well as with the use of funds of the state budget, must be subject to regulation and supervision; such a conclusion follows also from the provision of Paragraph 4 of Article 40 of the Constitution whereby the state shall supervise the activities of establishments of teaching and education; however, the right of the state to regulate external relations of schools of higher education may not limit the freedom of scientific and educational activity of schools of higher education (Constitutional Court rulings of 27 June 1994, 5 February 2002, 20 February 2008, and 20 March 2008, decision of 28 October 2009).

In the constitutional justice case at issue it has been mentioned that supervision of activities of establishments of teaching and education includes the supervision of control how the Constitution and laws are observed; for this purpose, the state (its institutions) may resort to various ways and forms of control established by laws. By the state supervision of activities of establishments of teaching and education equal observance of the standards of education and learning is ensured, and the compliance of contents and level of education and teaching with the qualification recognised by the state is guaranteed (Constitutional Court ruling of 13 June 2000).

In the constitutional justice case at issue it has also been held that the right of the state to establish the quality requirements for higher education per se does not deny the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution. It needs to be noted that the quality of higher education is related inter alia to heeding the norms of academic ethics while pursuing activities of science and studies. Therefore, while seeking to ensure inter alia the quality of higher education, the state may establish recommended standards of academic ethics and procedures.

5.4. It has been mentioned that the recommendations of the supervisor of academic ethics and procedures mentioned in Paragraph 4 of Article 53 of the Law on Science and Studies, whereby institutions of science and studies prepare and approve their codes of academic ethics, disclose the recommended standard acceptable to the academic community of all institutions of science and studies; in addition, while taking account of the recommendations of the supervisor of academic ethics and procedures, of the specificity of activity of the academic community and of the traditions of good academic practice, each institution of science and studies (a school of higher education or an institute of scientific research) prepares and approves its code of academic ethics.

It has also been mentioned that the right of the state to establish the quality requirements for higher education, inter alia those related with the heeding the norms of academic ethics, per se does not deny autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution; while seeking to ensure inter alia the quality of higher education, the state may establish recommendable standards of academic ethics and procedures.

5.5. Taking account of the arguments set forth it needs to be held that Paragraph 4 of Article 53 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

II

On the compliance of the provision of Paragraph 4 of Article 6 and Paragraph 1 of Article 8 of the Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether the provision “A state school of higher education shall be a public legal person functioning as a public establishment, possessing the autonomy guaranteed by the Constitution of the Republic of Lithuania, and the special status defined by this and other laws” of Paragraph 4 of Article 6 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

The group of Members of the Seimas, a petitioner, has also doubted whether Paragraph 1 of Article 8 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

Paragraph 1 of Article 8 of the Law on Science and Studies provides:

The university shall carry out university studies, conduct scientific research, experimental (social, cultural) development and/or develop high-level professional art. The name of a school of higher education carrying out this activity must contain the word ‘university’ or ‘academy’, or ‘seminary’.”

It needs to be mentioned that the university is one of the two types of schools of higher education (Paragraph 1 of Article 6 of the Law on Science and Studies). Thus, it is clear from the arguments of the petitioner that it is disputing the provision of Paragraph 1 of Article 8 of the Law on Science and Studies inasmuch as it is established therein that the name of a school of higher education of the university type must contain the word “university” or “academy”, or “seminary”.

2. The provision (which is being disputed by the petitioner) of Paragraph 4 of Article 6 of the Law on Science and Studies has entrenched the sole legal form of a state school of higher education as a public legal person, which is a public establishment.

Under Paragraph 1 of Article 2 of the Republic of Lithuania Law on Public Establishments, a public establishment shall be a non-profit public legal person of limited civil liability founded according to this law and other laws, the aim of which is to satisfy public interests by carrying out the educational, training and scientific, cultural, health care, environmental protection, sports development, social or legal aid provision as well as other activities useful to the public. In this context it needs to be noted that a state school of higher education, whose founder is the state, satisfies the public interests while carrying out the educational, training, scientific and cultural activities (under Paragraph 3 of Article 6 of the Law on Science and Studies, the state school of higher education shall organize and carry out studies, award higher education qualifications, conduct scientific research, pursue experimental (social, cultural) development and/or artistic activity, apply results of the research and experimental (social, cultural) development, accumulate scientific knowledge, develop creative activity and culture, foster values and traditions of the academic community).

Alongside, Paragraph 4 of Article 6 of the Law on Science and Studies prescribes that the state school of higher education possesses the autonomy guaranteed by the Constitution of the Republic of Lithuania, and the special status defined by this and other laws. Thus the legislator has recognised the autonomy (guaranteed by the Constitution) to the state school of higher education and established the special legal status related to such autonomy; this legal status is concretised in other provisions of the Law on Science and Studies, inter alia in the ones regulating the peculiarities of the governance of the school of higher education and those of the science (art) and studies’ activity, which are necessary to ensure the institutional and academic autonomy of the state school of higher education.

3. The provision (disputed by the petitioner) of Paragraph 1 of Article 8 of the Law on Science and Studies provides that the name of a school of higher education of the university type must contain the word “university” or “academy”, or “seminary”. Paragraph 1 of Article 8 of the Law on Science and Studies also provides that the university shall carry out university studies, conduct scientific research, experimental (social, cultural) development and/or develop high-level professional art.

4. The doubts of the petitioner regarding the provision of Paragraph 4 of Article 6 of the Law on Science and Studies are substantiated by the fact that, according to the petitioner, while regulating all state schools of higher education only as public establishments, the legislator could negate the variety of schools of higher education. The petitioner has also paid attention to the fact that as regards institutes, this law has provided even two types of state scientific institutes—budgetary establishments or public establishments.

5. The doubts of the petitioner regarding the disputed provision of Paragraph 1 of Article 8 of the Law on Science and Studies are substantiated by the fact that the limitation of the names of the schools of higher education conducting the activities of a university only to three possible variants may be in conflict with the principle of autonomy of schools of higher education, since the schools conducting the activities of a university are not allowed to choose other names; in addition, the legislator may oblige to change a traditional name of the university.

6. As mentioned, in its ruling of 27 June 1994, the Constitutional Court construed the provision of Paragraph 3 of Article 40 of the Constitution and stated that, traditionally, the autonomy of the school of higher education is conceived as the right to independently determine and establish in the regulations or statute the organisational and governmental structure, relations with other partners, the order of research and studies, academic syllabus, the order of student enrolment, to resolve other related questions, to use the property given over by the state as well as newly acquired, to possess the territory and buildings as well as other property, allotted for the needs of research and studies, to have the guarantee of inviolability. For this purpose, the school of higher education is guaranteed the institutional autonomy, i.e. a certain status, which means that there are certain spheres of activities independent from the control of the executive power (Constitutional Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008, 20 March 2008, decision of 28 October 2009).

7. It needs to be noted that Paragraph 3 of Article 40 of the Constitution must be construed while taking account of inter alia Paragraph 4 of Article 40 of the Constitution, in which it is established that “The State shall supervise the activities of establishments of teaching and education”. Autonomy of schools of higher education does not mean that the activity of such schools cannot be subject to state control; quite to the contrary, this activity, since it is related inter alia with the implementation of human rights and freedoms, as well as with the use of funds of the state budget, must be subject to regulation and supervision; it follows also from the provision of Paragraph 4 of Article 40 of the Constitution whereby the state shall supervise the activities of establishments of teaching and education. However, the right of the state to regulate external relations of schools of higher education may not limit the freedom of scientific and educational activity of schools of higher education (Constitutional Court rulings of 27 June 1994, 5 February 2002 and 20 February 2008, decision of 28 October 2009).

In this context it needs to be noted that, under the Constitution, the establishment of the legal form for the state school of higher education as a public legal person and the establishment of mandatory words in names of the schools of higher education of the university type per se do not deny the freedom of scientific and educational activity of the school of higher education and self-government of the academic community, i.e. the academic and institutional autonomy of schools of higher education. The legislator enjoys the discretion to establish the legal form of a state school of higher education and the words mandatory in the name of a school of higher education. However, the legal form of a state school of higher education as a public legal person must be in line with the purpose of the school, which is to satisfy public interests, in a non-profit manner, while carrying out the educational, training, scientific and cultural activity. On the other hand, the words specified in a mandatory manner in the names of schools of higher education must be in line with the type of the school of higher education and with the level and specificity of the studies and scientific research and those of the higher education provided by such a school.

8. It has been mentioned that, under Paragraph 4 of Article 6 of the Law on Science and Studies, the legislator established the only form of a state school of higher education as a public legal person—a state school of higher education must function as a public establishment (i.e. a non-profit public legal person of limited civil liability, the aim of which is to satisfy public interests inter alia by carrying out the educational, training and scientific, and cultural activities); alongside, the autonomy (guaranteed by the Constitution) is recognised to the state school of higher education and the special legal status related to such autonomy is established; this legal status is concretised in other provisions of the Law on Science and Studies, inter alia in the ones regulating the peculiarities of the governance of the school of higher education and those of the science (art) and studies’ activity, which are necessary to ensure the institutional and academic autonomy of the state school of higher education. It has also been mentioned that Paragraph 1 of Article 8 of the Law on Science and Studies provides that the name of a school of higher education of the university type must contain the word “university” or “academy”, or “seminary”; the university shall carry out university studies, conduct scientific research, experimental (social, cultural) development and/or develop high-level professional art.

It has also been mentioned that, under the Constitution, the establishment of the legal form for the state school of higher education as a public legal person and the establishment of mandatory words in names of the schools of higher education of the university type per se do not deny the freedom of scientific and educational activity of the school of higher education and self-government of the academic community, i.e. the academic and institutional autonomy of schools of higher education; the legal form of a state school of higher education as a public legal person must be in line with the purpose of the school, which is to satisfy public interests, in a non-profit manner, while carrying out the educational, training, scientific and cultural activity, whereas the words specified in a mandatory manner in the names of schools of higher education must be in line with the type of the school of higher education and with the level and specificity of the studies and scientific research and those of the higher education provided by such a school.

8.1. The only legal form of a state school of higher education as a public legal person—a public establishment—established in Paragraph 4 of Article 6 of the Law on Science and Studies, is in line with the aim of the state school of higher education to satisfy public interests, in a non-profit manner, by carrying out the educational, training, scientific, and cultural activities. Thus, having established such a legal form of a state school of higher education autonomy of schools of higher education is not denied.

8.2. The requirement established in Paragraph 1 of Article 8 of the Law on Science and Studies to indicate the word “university” or “academy”, or “seminary” is in line with the type of this school of higher education and the level and specificity of the university studies and scientific research and with the level and specificity of the higher education provided by such a school. Thus, having established such mandatory words in the names of university type schools of higher education one does not deny the autonomy of schools of higher education.

9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 4 of Article 6 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law, also that Paragraph 1 of Article 8 of the Law on Science and Studies inasmuch as it is established therein that the name of a school of higher education of the university type must contain the word “university” or “academy”, or “seminary” is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

III

On the compliance of Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies with Paragraphs 1 and 4 of Article 46 of the Constitution and the constitutional principles of a state under the rule of law and equality of persons.

1. The group of Members of the Seimas, a petitioner, has doubted whether Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies are not in conflict with Paragraphs 1 and 4 of Article 46 of the Constitution and the constitutional principles of a state under the rule of law and equality of persons.

2. Item 2 of Paragraph 3 of Article 7 of the Law on Science and Studies prescribes:

A school of higher education must:

<...>

2) inform the founders, members of the legal person, and the public about quality assurance measures in studies and scientific activities, and in case of state schools of higher education—also about their financial, economic and scientific activities and the use of funds; the results of external quality evaluation and accreditation of their study programmes.”

Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies prescribes:

A scientific institute must:

<...>

2) inform the founder (members of the legal person) and the public about the quality assurance measures in scientific activity, and in case of a state research institute—also inform about its financial, economic activities and the use of funds.”

3. In this context it needs to be noted that Paragraph 1 of Article 67 of the Law on Science and Studies provides for a possibility to allocate state budget funds to institutions of science and studies. Such funds can be allocated to both state and non-state institutions of higher education (schools of higher education and scientific research institutes). Funds of the basic financing of the state budget and funds of state investment programmes as well as of state investment projects may be allocated only to state institutions of science and studies (Items 1 and 3 of Paragraph 1 of Article 67 of the Law on Science and Studies). Funds of the state budget for studies, financing of scientific research from the state budget on a programme and competition basis and funds of state foundations may be allocated to both state and non-state institutions of science and studies (Items 2, 5 and 6 of Paragraph 1 of Article 67 of the Law on Science and Studies).

4. Thus, Item 2 of Paragraph 3 of Article 7 of the Law on Science and Studies has established different duties of state and non-state schools of higher education related to information about their activity and use of the funds. All (state and non-state) schools of higher education must inform the founder, members of the legal person, and the public about the quality assurance measures in studies and scientific activity, the results of external quality evaluation and accreditation of their study programmes. State schools of higher education also must inform their founder and the public about their financial, economic and scientific activities and the use of funds, whereas non-state schools of higher education do not have such a duty even in cases when they are allocated funds form the state budget.

A similar legal regulation regarding scientific research institutes is established in Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies. All (state and non-state) institutes of scientific research must inform their founders (members of the legal person) and the public about the quality assurance measures in scientific activity. State institutes of scientific research also must inform their founder (members of the legal person) and the public about their financial, economic activities and the use of funds, whereas non-state institutes of scientific research do not have such a duty even in cases when they are allocated funds form the state budget.

5. The doubts of the petitioner regarding the compliance of Item 2 of Paragraph 2 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies with the Constitution are substantiated by the fact that, in the opinion of the petitioner, a duty should arise for such a subject to inform society of its financial, economic and scientific activities as well as the use of its funds, because the subject has been allocated funds of the state, therefore, a non-state school of higher education and a non-state scientific research institute, which receive the funds of the state budget or the funds of the state financed programmes, should also be obliged to account to society for their financial, economic and scientific activities as well as the use of their funds—at least to the extent the said funds have been used.

6. It needs to be noted that from the provision “the State shall supervise the activities of establishments of teaching” of Paragraph 4 of Article 40 of the Constitution, the provision “the law <…> shall protect freedom of fair competition” of Paragraph 4 of Article 46 thereof, and the provision “the State shall defend the interests of the consumer” of Paragraph 5 of the same article, a duty arises to the state when it regulates the relations linked with the school of higher education, to establish such legal regulation, which would not distort fair competition, also to consolidate various measures of protection of consumers of higher education services (Constitutional Court ruling of 20 March 2008).

In the constitutional justice case at issue it has been mentioned that the interests of schools of higher education and society must be adjusted; autonomy of schools of higher education must be coordinated with their duty to observe the Constitution and laws and with responsibility and accountability to society (Constitutional Court ruling of 5 February 2002). Schools of higher education must act in compliance with the Constitution and law; making use of the autonomy guaranteed to them by the Constitution by no means may create preconditions for abuse of such autonomy.

7. In its ruling of 5 February 2002, the Constitutional Court held that, although Paragraph 1 of Article 134 of the Constitution provides that the State Control shall supervise the lawfulness of the possession and use of state property and the execution of the State Budget, however, this does not mean that the legislature does not have a right to establish other forms of supervision, too. After it has allocated funds for financing the schools of higher education, the state has the right to know how these funds are used (Constitutional Court decision of 28 October 2009).

A school of higher education which receives funds from the state budget must account for proper use of the received funds, while it is within the discretion of the legislator to establish by law the manner and means of control of the use of the funds (Constitutional Court ruling of 5 February 2002, decision of 28 October 2009). These provisions of the constitutional doctrine are applicable also to the legal regulation related to allocation of funds of the state budget to scientific research institutes.

In this context it needs to be noted that, while co-ordinating autonomy of schools of higher education with their responsibility and accountability for society, the legislator has a duty to establish the legal regulation whereby all (state and non-state) schools of higher education and all state and non-state scientific research institutes should inform society of the use of the funds of the state budget allocated to them.

8. In Paragraph 1 of Article 29 of the Constitution the principle of equality of rights of persons is entrenched. The Constitutional Court has held more than once that the constitutional principle of equality of persons must be followed in the course of both enactment of laws and their application; the constitutional principle of equality of persons before the law means an innate human right to be treated equally with the others (Constitutional Court rulings of 3 February 2010, 22 March 2010, decision of 20 April 2010, rulings of 29 June 2010, 14 February 2011) and obliges to legally assess the homogenous facts in the same manner and prohibits to arbitrarily assess the facts, which are the same in essence, in a different manner (Constitutional Court decision of 20 April 2010, rulings of 29 June 2010, 14 February 2011).

The Constitutional Court has held more than once that the constitutional principle of equality of all persons before the law would be violated when a certain group of people to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified; while assessing whether an established different legal regulation is a grounded one, particular legal circumstances must be taken into account; first of all, differences of the legal situation of subjects and objects to which different legal regulation is applied must be considered (Constitutional Court ruling of 8 June 2009, decision of 20 April 2010, rulings of 29 June 2010, 14 February 2011).

9. It needs to be noted that the constitutional grounds of the possession, use and disposal of state property are entrenched in inter alia Paragraph 2 of Article 128 of the Constitution, wherein it is established that the procedure for the possession, use and disposal of state property shall be established by law.

The provisions of Paragraph 2 of Article 128 of the Constitution are inseparable from other provisions of the Constitution, inter alia the provisions that citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge (Paragraph 3 of Article 41 of the Constitution), the state shall support science (Paragraph 2 of Article 42 of the Constitution).

From the Constitution, inter alia Paragraph 2 of Article 128 thereof, follows the requirement to treasure state-owned property, not to waste it and manage it rationally (Constitutional Court rulings of 30 September 2003, 5 July 2007, and 20 March 2008). It needs to be noted that Paragraph 2 of Article 128 of the Constitution inter alia implies the requirement to establish the legal regulation which would ensure proper use of the funds of the state budget allocated to institutions of science and studies. Thus, the legislator, while regulating the allocation and use of funds of the state budget to institutions of science and studies, must establish the duty of all institutions of science and studies to account for the use of the funds of the state budget allocated to them.

10. While assessing the legal regulation established in Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies, it needs to be noted that state schools of higher education and state scientific research institutes, if compared to non-state schools of higher education and non-state scientific research institutes, are treated in a different manner, even though there are not any differences of such nature and extent with respect to their accountability for the use of funds of the state budget allocated to them so that such different treatment would be objectively justifiable, therefore, the disputed provisions violate the constitutional principle of equality of all persons before the law.

It has been mentioned that, while co-ordinating autonomy of schools of higher education with their responsibility and accountability for society, the legislator has a duty to establish the legal regulation whereby all (state and non-state) schools of higher education and all (state and non-state scientific research institutes) should inform society of the use of the funds of the state budget allocated to them; this duty inter alia arises from Paragraph 2 of Article 128 of the Constitution.

It has also been mentioned that Item 2 of Paragraph 3 of Article 7 of the Law on Science and Studies established no such duty for non-state schools of higher education, whereas Item 2 of Paragraph 2 of Article 11 thereof established no such duty for non-state scientific research institute.

11. Taking account of the arguments set forth it needs to be held that Item 2 of Paragraph 3 of Article 7 of the Law on Science and Studies to the extent that it does not establish a duty of non-state schools of higher education to account to society for the use of funds of the state budget allocated to them, and, Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies to the extent that it does not establish a duty of non-state scientific research institutes to account to society for the use of funds of the state budget allocated to them, are in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 128 of the Constitution.

Having held this, the Constitutional Court will not further investigate whether Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies are not in conflict with Paragraphs 1 and 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

IV

On the compliance of Paragraph 2 of Article 17 of the Law on Science and Studies with Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 2 of Article 17 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

2. Paragraph 2 of Article 17 of the Law on Science and Studies provides:

A collegial body of governance of the Centre for Quality Assessment in Higher Education shall be the Council of the Centre for Quality Assessment in Higher Education, which consists of 11 members. They shall be appointed for the term of six years by: the Seimas, on the recommendation of the Committee on Education, Science and Culture, the Government, the Minister of Education and Science, the Research Council of Lithuania together with the Lithuanian Academy of Sciences, the senates of universities, the academic councils of colleges, unions of student representations of schools of higher education of Lithuania, the Lithuanian Council of Culture and Art, the Lithuanian Confederation of Industrialists, the Lithuanian Chamber of Commerce, Industry and Crafts, the Knowledge Economy Forum. The composition of the Council of the Centre for Quality Assessment in Higher Education shall be announced by the Minister of Education and Science. The Council of the Centre for Quality Assessment in Higher Education shall draw up and approve its own rules of procedure.”

3. Thus, the disputed Paragraph 2 of Article 17 of the Law on Science and Studies inter alia established the procedure for forming the Council of the Centre for Quality Assessment in Higher Education, a collegial body of the Centre for Quality Assessment in Higher Education. The legislator established that the following subjects appoint one member each to the Council of the Centre for Quality Assessment in Higher Education: the Seimas, on the recommendation of the Committee on Education, Science and Culture, the Government, the Minister of Education and Science, the Research Council of Lithuania together with the Lithuanian Academy of Sciences, the senates of universities, the academic councils of colleges, unions of student representations of schools of higher education of Lithuania, the Lithuanian Council of Culture and Art, the Lithuanian Confederation of Industrialists, the Lithuanian Chamber of Commerce, Industry and Crafts, the Knowledge Economy Forum.

It needs to be noted that one of the main tasks of the Centre for Quality Assessment in Higher Education is to encourage the quality of activities of schools of higher education through an external assessment and accreditation of institutions and study programmes (Item 1 of Paragraph 1 of Article 17 of the Law on Science and Studies). Thus, the legislator granted the competence to the Centre for Quality Assessment in Higher Education to contribute to improvement of quality of activity of schools of higher education, to supervise and assess activity of schools of higher education in the quality aspect, to implement the policy of supervision of quality of higher education. The Centre for Quality Assessment in Higher Education is to be regarded as an institution supervising the implementation of the state education policy.

4. The petitioner, while requesting to investigate the compliance of the Law on Science and Studies with the Constitution, is doubting whether a collegial body of governance of the Centre for Quality Assessment in Higher Education, as a state budgetary establishment, may also be formed from non-governmental, public organisations and those representing the interests of private persons, and it also points out that due to the disputed legal regulation there has emerged such an unreasonable situation where, by the will of the state, a certain concrete non-governmental subject is granted the right and duty to appoint members of the Centre for Quality Assessment in Higher Education, whereas the other subject is not granted such a right and duty.

5. In the constitutional justice case at issue it has been mentioned that the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies academic and institutional autonomy. In the jurisprudence of the Constitutional Court it has been held that, traditionally, the autonomy of a school of higher education is conceived as the right to independently determine and establish in the regulations or statute its organisational and governance structure, its relations with other partners, the procedure of research and studies, academic syllabi, the procedure of students’ enrolment, to resolve other related questions, as well as that there are certain spheres of activities, independent from the control of the executive power (Constitutional Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008 and 20 March 2008). It was also held that the society is concerned with creating due conditions for institutions of higher education in order to ensure all-round education of the personality, and that schools of higher education enjoy freedom of teaching, of scientific research and creative activities (Constitutional Court rulings of 5 February 2002 and 20 March 2008). On the other hand, the interests of schools of higher education and those of society must be adjusted; autonomy of schools of higher education must be coordinated with their duty to observe the Constitution and laws and with responsibility and accountability to society (Constitutional Court ruling of 5 February 2002). Schools of higher education must act in compliance with the Constitution and law; making use of the autonomy guaranteed to them by the Constitution by no means may create preconditions for abuse of such autonomy.

6. It has also been mentioned that the Constitutional Court has held more than once that granting of autonomy to schools of higher education does not relieve the state from its constitutional duty to secure the efficiency of the system of higher education. Therefore, autonomy of schools of higher education does not mean that the activity of such schools cannot be subject to state control; quite to the contrary, this activity, since it is related inter alia with the implementation of human rights and freedoms, as well as with the use of funds of the state budget, must be subject to regulation and supervision; it follows also from the provision of Paragraph 4 of Article 40 of the Constitution whereby the state shall supervise the activities of establishments of teaching and education. However, the right of the state to regulate external relations of schools of higher education may not limit the freedom of scientific and educational activity of schools of higher education (Constitutional Court rulings of 27 June 1994, 5 February 2002, 20 February 2008, and 20 March 2008).

7. It needs to be noted that Paragraph 4 of Article 40 of the Constitution has entrenched not only the right, but also the duty of the state to supervise the activities of establishments of teaching and education.

In the constitutional justice case at issue it has been mentioned that supervision of activities of establishments of teaching and education includes the supervision of control how the Constitution and laws are observed; as regards this matter, the state (its institutions) may resort to various ways and forms of control established by laws. By the state supervision of activities of establishments of teaching and education equal observance of the standards of education and learning is ensured, and the compliance of contents and level of education and teaching with the qualification recognised by the state is guaranteed (Constitutional Court ruling of 13 June 2000).

It also needs to be noted that the legislator enjoys broad discretion to establish the procedure for forming collegiate bodies of governance of institutions supervising the state education policy, inter alia to establish the subjects appointing members of these bodies. However, while establishing this procedure, the legislator must take account of the purposes of the institution supervising the state education policy, and of the concernment, grounded on the public interest, of the subjects appointing members of its collegiate body of governance to form and implement the state education policy.

8. It has been mentioned that the disputed Paragraph 2 of Article 17 of the Law on Science and Studies inter alia established the procedure for forming the Council of the Centre for Quality Assessment in Higher Education, a collegial body of governance thereof. Seven members of the Council of the Centre for Quality Assessment in Higher Education are appointed by one concrete subject (the Seimas, the Government, the Minister of Education and Science, the Lithuanian Council of Culture and Art, the Lithuanian Confederation of Industrialists, the Lithuanian Chamber of Commerce, Industry and Crafts, the Knowledge Economy Forum), while four members are appointed jointly by several subjects (the Research Council of Lithuania together with the Lithuanian Academy of Sciences, the senates of universities, the academic councils of colleges, unions of student representations of schools of higher education of Lithuania).

It has also been mentioned that the legislator enjoys broad discretion to establish the procedure for forming collegiate bodies of governance of institutions supervising the state education policy, inter alia to establish the subjects appointing members of these bodies; while establishing this procedure, the legislator must take account of the purposes of the institution supervising the state education policy, and of the concernment, grounded on the public interest, of the subjects appointing members of its collegiate body of governance to form and implement the state education policy. There are grounds to maintain that the subjects established in Paragraph 2 of Article 17 of the Law on Science and Studies have the concernment, grounded on the public interest, regarding the quality of carrying out the studies in higher education and that they could be represented at the Council of the Centre for Quality Assessment in Higher Education.

9. In this context it needs to be noted that, while implementing its discretion to establish the procedure for forming collegiate bodies of governance of institutions supervising the state education policy, inter alia to establish the subjects appointing members of these bodies, the legislator may also provide for other subjects which have the concernment, grounded on the public interest, regarding the quality of carrying out the studies in higher education, and which would be granted the right to appoint members of the Council of the Centre for Quality Assessment in Higher Education.

10. In this context it also needs to be noted that, while implementing the social responsibility falling upon them, the subjects which are established by the legislator and have the right to appoint members of the Council of the Centre for Quality Assessment in Higher Education, should implement this right so that preconditions would be created for the Council of the Centre for Quality Assessment in Higher Education to discharge its functions properly; inter alia it means that members of the Council of the Centre for Quality Assessment in Higher Education should be persons of impeccable reputation, whose education and qualification would create preconditions for ensuring qualified, efficient and responsible activity of this institution.

11. Taking account of the arguments set forth it needs to be held that by means of the legal regulation established in Paragraph 2 of Article 17 of the Law on Science and Studies the legislator properly implemented the discretion arising from Paragraph 4 of Article 40 of the Constitution to establish the procedure for forming collegiate bodies of governance of institutions supervising the state education policy, inter alia to establish the subjects appointing members of these bodies.

It needs to be noted that the implementation of such discretion of the legislator is not related with the legal regulation of production, the market or fair competition, the right of citizens to participate in the governance of their state as well as the right to enter on equal terms in the state service, the right to freely form societies, political parties and associations, i.e. Paragraph 2 of Article 17 of the Law on Science and Studies regulates the relations of different character than those regulated in Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution. Therefore, there are no arguments for maintaining that by means of the legal regulation established in Paragraph 2 of Article 17 of the Law on Science and Studies the legislator has created preconditions for violating the imperatives stemming from Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution.

12. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 of Article 17 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution.

V

On the compliance of Paragraph 2 of Article 48 of the Law on Science and Studies with Paragraphs 1, 3 of Article 40, Paragraph 1 of Article 42, and Paragraphs 3, 7 of Article 43 of the Constitution and the constitutional principle of a state under the rule of law, and on the compliance of Paragraph 3 of Article 66 of the same law with Article 18, Paragraph 1 of Article 25, Paragraphs 1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the Constitution.

1. The group of Members of the Seimas, a petitioner, has had doubts as to whether Paragraph 2 of Article 48 of the Law on Science and Studies is not in conflict with Paragraphs 1, 3 of Article 40, Paragraph 1 of Article 42, and Paragraphs 3, 7 of Article 43 of the Constitution and the constitutional principle of a state under the rule of law.

1.1. Paragraph 2 of Article 48 of the Law on Science and Studies provides:

Master’s degree study programmes shall be designed for preparation for independent scientific (artistic) work or any other work the performance of which requires scientific knowledge and analytical competence. Master’s degree studies shall be conducted in universities in which scientific (artistic) activities corresponding to the study field are carried out. On completion of master’s degree study programmes persons shall be awarded a master’s degree of an appropriate study field. On completion of theological study programmes of the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology.”

1.2. The petitioner, while substantiating its doubts, indicates that one may not set for educationists and other employees any requirements connected with their convictions; in secular state schools of higher education, studies in theology and a scientific degree of licentiate in theology should be accessible to persons holding different religious convictions and views and are not to be linked to any concrete religion. Therefore, the petitioner has had doubts as to whether the requirement to consult with the Catholic Church hierarchy before awarding a degree of licentiate in theology to a person who has completed a theological study programme of the second cycle is in compliance with the Constitution.

Thus, from the arguments set forth by the petitioner it is clear that the petitioner has had doubts as regards the constitutionality of not the entire Paragraph 2 of Article 48 of the Law on Science and Studies, but as regards the compliance, with the Constitution, of only the provision “On completion of theological study programmes of the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2 of Article 48 of the Law on Science and Studies, to the extent that it prescribes that a degree of licentiate in theology may be awarded after consultation with the Catholic Church hierarchy.

1.3. The disputed provision “On completion of theological study programmes of the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2 of Article 48 of the Law on Science and Studies regulates the awarding of a degree of licentiate in theology.

1.3.1. It needs to be noted that the provision disputed by the petitioner is set forth in Paragraph 2 of Article 48 of the Law on Science and Studies, which regulates the requirements for programmes of studies of the second cycle—master’s studies—in schools of higher education. The paragraph in question inter alia provides that on completion of master’s degree study programmes persons are awarded a master’s degree of an appropriate study field.

In this context it needs to be mentioned that, under Paragraph 2 of Article 46 of the Law on Science and Studies, studies may be of three cycles: the first cycle—professional bachelor’s and bachelor’s degree studies, the second cycle—master’s degree studies, and the third cycle—doctoral studies. Thus, Paragraph 2 of Article 48 of the Law on Science and Studies, first of all, establishes a general norm, which obligates to award a master’s degree of an appropriate study field to all the persons who have completed studies of the second cycle (master’s degree studies).

The provision of Paragraph 2 of Article 48 of the Law on Science and Studies, which is being disputed by the petitioner, provides that on completion of theological study programmes of the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology. In this way the legislator provides for a possibility for persons who have completed specific—theological—studies of the second cycle to be awarded a specific degree. Thus, the legal regulation laid down in Paragraph 2 of Article 48 of the Law on Science and Studies specifies a possibility of organising specific (licentiate) theological studies, which are an equivalent of master’s degree studies; on completion of these studies persons may be awarded a specific degree of licentiate in theology, which is an equivalent of a master’s degree. From the material of the constitutional justice case at issue it is clear that the minimum requirements, with regard to the volume of a study programme and duration of studies, for a licentiate theological programme are the same as the maximum requirements for the volume of a master’s degree study programmes, which are established in Paragraph 6 of Article 47 of the Law on Science and Studies.

The provision of Paragraph 2 of Article 48 of the Law on Science and Studies, which is being disputed by the petitioner, provides that on completion of theological study programmes of the second cycle persons may be awarded a degree of licentiate in theology only after consultation with the Catholic Church hierarchy. Paragraph 2 of Article 48 of the Law on Science and Studies does not explicitly establish that on completion of the said programmes a person is awarded another degree confirming the education he has acquired where the awarding of a degree of licentiate in theology to that person is not consulted with the Catholic Church hierarchy. However, from the aforementioned general norm of Paragraph 2 of Article 48 of the Law on Science and Studies, which obligates to award a master’s degree of an appropriate study field to all the persons who have completed studies of the second cycle (master’s degree studies), a conclusion is to be drawn that in the cases where the awarding of a degree of licentiate in theology to persons, who have completed theological study programmes of the second cycle, is not consulted with the Catholic Church hierarchy, such persons must be awarded a master’s degree of an appropriate field.

1.3.2. From the material of the constitutional justice case at issue it is clear that a degree of licentiate in theology has centuries-old traditions and that up till the present it has been awarded in schools of higher education that function in various countries and enjoy recognition from the Catholic Church. The licentiate (licentiatus) in theology, referred to in Paragraph 2 of Article 48 of the Law on Science and Studies, is a specific degree of university studies of the second cycle, which confirms a special competence of an appropriate level recognised by the Catholic Church in the area of studies in Catholic theology and which is necessary when one seeks to further continue Catholic theological studies (i.e. doctoral studies) in universities and faculties recognised by the Catholic Church, also when one seeks to take up a certain church office.

It needs to be noted that a degree of licentiate in theology is not directly and exceptionally linked to the training of the clergy and it does not indicate the preparation to hold the office of a clergyman, nor a possibility of being appointed to a church office; this degree may be also awarded to the laity. It also needs to be noted that a degree of licentiate in theology does not automatically grant the right to lecture in a school of higher education or to teach the Catholic religion. Persons holding a degree of licentiate in theology may become clergymen, or they may be appointed to a church office in accordance with the procedure established in canon law, or to an educational office—in accordance with the procedure established in the legal acts of the Republic of Lithuania, provided that they meet the qualification and other requirements set for such offices.

1.3.3. In this context one needs to mention the Agreement between the Republic of Lithuania and the Holy See on Cooperation in Education and Culture of 5 May 2000, in the Preamble of which it is indicated that the Republic of Lithuania has concluded this agreement acting in accordance with its Constitution, while the Holy See—acting in accordance with the documents of the Second Vatican Council, particularly its declaration Gravissimum educationis, as well as the norms of canon law.

Taking account of the whole legal regulation of the Agreement between the Republic of Lithuania and the Holy See on Cooperation in Education and Culture, one is to draw a conclusion that provisions of the said agreement are based on the presumption of compatibility of the Constitution and canon law. In the context of the constitutional justice case at issue this inter alia means that schools of higher education of the Republic of Lithuania, which have recognition from the Catholic Church, conduct theological studies and award corresponding degrees to persons successfully completing these studies without violating the Constitution.

Article 5 of the aforesaid agreement provides that the Catholic Church may organise courses and engage in spiritual-religious education in universities and other establishments of higher education in agreement with the administration of these institutions. Article 7 of the agreement prescribes that the authorised institutions of the contracting parties, each within its competence, shall ensure that the contents and methods of teaching the Catholic religion comply with the requirements established by the Catholic Church and the Republic of Lithuania; professional qualifications of teachers of the Catholic religion shall be assessed and their work shall be supervised in accordance with the procedure prescribed by the legal acts of the Republic of Lithuania with the joint participation of the representatives of the Conference of Lithuanian Bishops.

It also needs to be mentioned that Article 3 of the agreement provides that the qualifying certificate for teaching the Catholic religion shall be granted in accordance with the procedure prescribed by the legal acts of the Republic of Lithuania with due regard to the norms of the Conference of Lithuanian Bishops; teachers of the Catholic religion must have the written authorisation (missio canonica) of the local bishop and such authorisation constitutes an indispensable part of the qualification requirements for the profession; from the moment when the authorisation is withdrawn, a teacher loses the right to teach the Catholic religion.

1.4. In its ruling of 13 December 2000, the Constitutional Court held the following:

Paragraph 1 of Article 40 of the Constitution provides that state and municipal establishments of teaching and education shall be secular; this constitutional provision implies a requirement that these establishments be tolerant, open and accessible to people of all religions, as well as those members of society who are non-believers;

the fact that the State of Lithuania and its institutions are neutral as regards the matters of world view and religion, means disconnection of the purpose, functions and activities of the areas of the state and religion, those of the state and the churches and religious organisations; the neutrality and secularity of the state may not serve as the grounds to discriminate against the believers, to restrict their rights and freedoms;

while construing the norm set down in Paragraph 7 of Article 43 of the Constitution that there shall not be a state religion in Lithuania, that of Paragraph 4 of the same article that churches and religious organisations shall function freely according to their canons and statutes, also that of Paragraph 1 of Article 40 that state and municipal establishments of teaching and education shall be secular, as well as other constitutional provisions, in a systematic manner, one is to draw a conclusion that the principle of separateness of the state and the church is established in the Constitution; the constitutional principle of separateness of the state and the church is the basis of the secularity of the State of Lithuania, its institutions and their activities; the constitutional principle of separateness of the state and the church, along with the freedom of convictions, thought, religion and conscience, which is established in the Constitution, together with the constitutional principle of equality of persons and the other constitutional provisions, determine the neutrality of the state in matters of world view and religion;

under the Constitution, state and municipal establishments of teaching and education are secular; in these establishments no requirements may be set to educationists and other employees which are connected with their convictions; neither state or municipal institutions, nor parents at whose request classes in religious instruction are offered, nor teachers of religion, nor traditional churches or religious organisations, nor any other state-recognised churches or religious organisations may set such requirements; otherwise the norm of Paragraph 1 of Article 42 of the Constitution, whereby culture, science, research, and teaching are free, would also be denied.

1.5. In the context of the constitutional justice case at issue the provisions of Paragraph 1 of Article 40 of the Constitution, whereby state and municipal establishments of teaching and education are secular, and the provisions of Paragraph 1 of Article 42 of the Constitution, which establish that culture, science, research, and teaching are free, are to be related to the provision “Higher education shall be accessible to everyone according to his individual abilities” of Paragraph 3 of Article 41 of the Constitution. While construing this provision in its ruling of 14 January 2002, the Constitutional Court noted that the constitutional provision that higher education is available to everyone according to his abilities means that both state and non-state higher schools established according to the procedure prescribed by law, as well as the entire system of higher education establishments, have to be accessible to every person. This provision also means that those who seek higher education cannot be subjected to requirements that are based on criteria other than their abilities. The said provision is closely related to the principle of equality of individuals enshrined in Article 29 of the Constitution, to the provision contained in Paragraph 2 thereof that a person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.

Thus, from the aforementioned provision of Paragraph 3 of Article 41 of the Constitution a requirement arises to award an appropriate degree confirming the acquired education and qualification to a person who has successfully completed a study programme of higher education; the Constitution would be violated by such legal regulation under which a situation would be possible where a person who has successfully completed a study programme would not be awarded an appropriate degree. In the context of Paragraph 1 of Article 40 and Paragraph 1 of Article 42 of the Constitution, the aforesaid requirement inter alia also means that one is not permitted to lay down any such legal regulation under which a person who has successfully completed a theological study programme of the second cycle would not be awarded any degree confirming the acquired education where the awarding of a degree would not be consulted with the Catholic Church hierarchy.

1.6. It has been mentioned that from the legal regulation established in Paragraph 2 of Article 48 of the Law on Science and Studies it is clear that a degree of licentiate in theology is a specific equivalent of a master’s degree, which is, after consultation with the Catholic Church hierarchy, awarded to persons who have completed theological study programmes of the second cycle. It has also been mentioned that from the aforesaid general norm of Paragraph 2 of Article 48 of the Law on Science and Studies, which obligates to award a master’s degree of an appropriate study field to all the persons who have completed studies of the second cycle (master’s degree studies), a conclusion is to be drawn that in the cases where the awarding of a degree of licentiate in theology to persons who have completed theological study programmes of the second cycle is not consulted with the Catholic Church hierarchy such persons must be awarded a master’s degree of an appropriate field.

It has also been mentioned that from the provision of Paragraph 3 of Article 41 of the Constitution a requirement arises to award an appropriate degree confirming the acquired education and qualification to a person who has successfully completed a study programme of higher education; the Constitution would be violated by such legal regulation under which a situation would be possible where a person who has successfully completed a study programme would not be awarded an appropriate degree. In the context of Paragraph 1 of Article 40 and Paragraph 1 of Article 42 of the Constitution, the aforesaid requirement inter alia also means that one is not permitted to lay down any such legal regulation under which a person who has successfully completed a theological study programme of the second cycle would not be awarded any degree confirming the acquired education where the awarding of a degree would not be consulted with the Catholic Church hierarchy.

Thus, only when the provisions of Paragraph 2 of Article 48 of the Law on Science and Studies are construed in such a way that, as mentioned, in the cases where the awarding of a degree of licentiate in theology to persons who have completed theological study programmes of the second cycle is not consulted with the Catholic Church hierarchy, these persons must be awarded a master’s degree of an appropriate field, one may draw a conclusion that no preconditions are created for emerging of such a situation when a person who has successfully completed a study programme would not be awarded an appropriate degree, i.e. only when construed in this way, the disputed provision “On completion of theological study programmes of the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2 of Article 48 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 40, Paragraph 3 of Article 41, Paragraph 1 of Article 42 of the Constitution and the constitutional principle of a state under the rule of law.

1.7. In the constitutional justice case at issue it has been mentioned that Paragraph 3 of Article 40 of the Constitution, which guarantees the autonomy of schools of higher education, is related to the provision of Paragraph 1 of Article 42 of the Constitution, which consolidates the freedom of science and research. The autonomy of schools of higher education inter alia encompasses academic autonomy. Therefore, having held that the provision “On completion of theological study programmes of the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2 of Article 48 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 42 of the Constitution, one also needs to held that this provision (which is being disputed by the petitioner) is not in conflict with Paragraph 3 of Article 40 of the Constitution.

1.8. It needs to be noted that the provision of Paragraph 2 of Article 48 of the Law on Science and Studies, which is being disputed by the petitioner, regulates the relations of other nature than those that are regulated under Paragraph 3 of Article 43 of the Constitution, wherein it is established that churches and religious organisations are free to proclaim their teaching, perform their practices, and have houses of prayer, charity establishments, and schools for the training of the clergy, as well as than those that are regulated under Paragraph 7 of Article 43 of the Constitution, wherein it is established that there shall not be a state religion in Lithuania. Therefore, there are no grounds due to which it would be possible to maintain that by the legal regulation laid down in Paragraph 2 of Article 48 of the Law on Science and Studies the legislator has created preconditions to violate the freedom of activity of churches and religious organisations provided for in Paragraph 3 of Article 43 of the Constitution, nor the provision of Paragraph 7 of the same article that there shall not be a state religion in Lithuania.

1.9. Taking account of the arguments set forth, one is to draw a conclusion that the provision “On completion of theological study programmes of the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2 of Article 48 of the Law on Science and Studies, to the extent that it prescribes that a degree of licentiate in theology may be awarded after consultation with the Catholic Church hierarchy, is not in conflict with Paragraphs 1, 3 of Article 40, Paragraph 3 of Article 41, Paragraph 1 of Article 42, and Paragraphs 3, 7 of Article 43 of the Constitution and the constitutional principle of a state under the rule of law.

2. The group of Members of the Seimas, a petitioner, has had doubts as to whether Paragraph 3 of Article 66 of the Law on Science and Studies is not in conflict with Article 18, Paragraph 1 of Article 25, Paragraphs 1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the Constitution.

2.1. Paragraph 3 of Article 66 of the Law on Science and Studies provides:

The Lithuanian Catholic Academy of Sciences shall join together the most prominent catholic-oriented Lithuanian scientists, Lithuanian scientists living abroad and foreign scientists who, because of their activities, are connected with Lithuania. The Lithuanian Catholic Academy of Sciences shall act in compliance with its statutes.”

Thus, Paragraph 3 of Article 66 of the Law on Science and Studies defines the Lithuanian Catholic Academy of Sciences as an organisation of scientists, which joins the most prominent catholic-oriented Lithuanian scientists, Lithuanian scientists living abroad and foreign scientists who, because of their activities, are connected with Lithuania. This organisation acts in compliance with its statutes, which are registered in accordance with the procedure laid down in the laws of the Republic of Lithuania.

From the material of the constitutional justice case at issue it is clear that the Lithuanian Catholic Academy of Sciences is the oldest Lithuanian non-governmental academic organisation, which was established nine decades ago (in 1922). The legislator refers to the Lithuanian Catholic Academy of Sciences in Paragraph 3 of Article 66 of the Law on Science and Studies, regarding it as part of the historical heritage and traditions of Lithuanian science.

It needs to be noted that Article 66 of the Law on Science and Studies is designated for the establishment of the bases of the activity of organisations of students, teaching staff members, scientists and other researchers. The said implies that the legal bases of the activity of the Lithuanian Catholic Academy of Sciences are established by the same laws of the Republic of Lithuania as the ones that regulate the activity of other organisations of students, teaching staff members, scientists and other researchers. Inter alia the activity of the Lithuanian Catholic Academy of Sciences, as well as the activity of other organisations of students, teaching staff members, scientists and other researchers, is regulated in Paragraph 4 of Article 66 of the Law on Science and Studies, wherein it is provided that the said organisations may, in accordance with the procedure laid down by the Research Council of Lithuania, receive state budgetary funds for activities related to the objectives of the system of science and studies.

Consequently, under Paragraph 3 of Article 66 of the Law on Science and Studies, the Lithuanian Catholic Academy of Sciences is not granted any privileges or special legal status, if compared to other organisations of students, teaching staff members, scientists and other researchers, nor may the same paragraph be construed as granting any such privileges or special legal status.

2.2. Although the petitioner requests investigation into the compliance of Paragraph 3 of Article 66 of the Law on Science and Studies with Article 18, Paragraph 1 of Article 25, Paragraphs 1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the Constitution, from the arguments of the petitioner it is clear that it has had doubts as to the compliance of the disputed provision with the constitutional principle of a state under the rule of law, insofar as this principle is related to the constitutional principle of equality of persons. The petitioner points out that, by recognising a scientific organisation as an organisation of confessors of exclusively one religion violates the constitutional principles of a state under the rule of law and equality of persons; institutionalising a scientific organisation on the grounds of a confession, in the opinion of the petitioner, violates the constitutional principle of a state under the rule of law, as well.

Taking account of the said, the Constitutional Court will investigate whether Paragraph 3 of Article 66 of the Law on Science and Studies is not in conflict with the constitutional principle of a state under the rule of law, insofar as this principle is related to the constitutional principle of equality of persons.

2.3. The constitutional principle of a state under the rule of law is especially capacious; it comprises a range of various interrelated imperatives. The principle of equality of persons, which is entrenched in Article 29 of the Constitution, is inseparable from the constitutional principle of a state under the rule of law, which is a universal principle upon which the entire Lithuanian legal system and the Constitution itself are based.

The Constitutional Court has held that the constitutional principle of equality of rights of persons in itself does not deny an opportunity to establish diverse, differentiated legal regulation by means of legislation with respect to certain persons which belong to different categories, if there exist differences between these persons of such character, which objectively justify such differentiated regulation. Differentiated legal regulation, when it is applied to certain groups of persons which are distinguished by the same signs, and in case it strives for positive and socially meaningful goals, or if the establishment of certain limitations or conditions is linked with peculiarities of regulated social relations, in itself is not to be regarded as discrimination (Constitutional Court rulings of 11 November 1998, 13 May 2005, 31 May 2006, 2 March 2009, 29 April 2009, and decision of 20 April 2010).

The Constitutional Court has held more than once that the constitutional principle of equality of all persons before the law would be violated when a certain group of persons to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified. While assessing whether an established different legal regulation is a grounded one, concrete legal circumstances must be taken into account. First of all, differences of the legal situation of subjects and objects, to which the corresponding different legal regulation is applied, must be considered (Constitutional Court rulings of 28 February 1996, 13 November 1997, 4 July 2003, 24 December 2008, 2 March 2009, 8 June 2009, and decision of 20 April 2010). The compliance of a concrete legal norm with Article 29 of the Constitution may be assessed only by taking into account all significant circumstances (Constitutional Court rulings of 4 July 2003, 24 December 2008, 2 March 2009, and 8 June 2009).

2.4. It has been mentioned that the constitutional principle of equality of all persons before the law would be violated when a certain group of persons, to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified.

It has also been mentioned that Paragraph 3 of Article 66 of the Law on Science and Studies refers to the Lithuanian Catholic Academy of Sciences, by taking into consideration the fact that the Lithuanian Catholic Academy of Sciences is regarded as part of the historical heritage and traditions of Lithuanian science; the legal bases of the activity of the Lithuanian Catholic Academy of Sciences are established by the same laws of the Republic of Lithuania that regulate the activity of other organisations of students, teaching staff members, scientists and other researchers. It has also been mentioned that, under Paragraph 3 of Article 66 of the Law on Science and Studies, the Lithuanian Catholic Academy of Sciences is not granted any privileges or special legal status, if compared to other organisations of students, teaching staff members, scientists and other researchers, nor may the same Paragraph 3 of Article 66 be construed as granting any such privileges or special legal status.

It needs to be noted that, under the Constitution, the legislator may not lay down any such legal regulation under which the Lithuanian Catholic Academy of Sciences would be granted any privileges or special legal status, if compared to other organisations of students, teaching staff members, scientists and other researchers.

2.5. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 3 of Article 66 of the Law on Science and Studies is not in conflict with the constitutional principle of a state under the rule of law.

VI

On the compliance of Paragraph 2 of Article 69 of the Law on Science and Studies with Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 2 of Article 69 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

2. Paragraph 2 of Article 69 of the Law on Science and Studies provides:

State budget funds for studies shall not be appropriated for branches of foreign schools of higher education established in the Republic of Lithuania.”

3. Thus, under the legal regulation (disputed by the petitioner) established in Paragraph 2 of Article 69 of the Law on Science and Studies, appropriation of state budget funds for branches of foreign schools of higher education established in the Republic of Lithuania is prohibited.

3.1. Under Paragraph 1 of Article 2.53 of the Civil Code of the Republic of Lithuania, the branch office of a legal person shall be its structural unit, which has its registered office and performs all or part of the legal person’s functions. In this context the notion “branch of a foreign school of higher education established in the Republic of Lithuania” employed in Paragraph 2 of Article 69 of the Law on Science and Studies should be understood as a structural unit of a school of higher education, which is established and has its seat abroad, where the said unit is founded and has its seat in the Republic of Lithuania and carries out all functions (or part thereof) of the said school of higher education.

3.2. It needs to be noted that, under Paragraph 2 of Article 6 of the Law on Science and Studies, schools of higher education may be state and non-state ones; under Paragraph 4 of the same article, a state school of higher education shall be a public legal person functioning as a public establishment, possessing the autonomy guaranteed by the Constitution, and the special status defined by this and other law, whereas a non-state school of higher education shall be a public legal person functioning as a public establishment or a private legal person.

It also needs to be noted that, under Paragraphs 3 and 4 of Article 27 of the Law on Science and Studies, either the Seimas or the Government are founders of schools of higher education (the Seimas shall establish a state university upon the recommendation of the Government, whereas a state college shall be established by the Government upon the recommendation of the Ministry of Education and Science). Under Paragraph 5 of Article 27 of the Law on Science and Studies, a non-state school of higher education may be established by natural or legal persons, with the exception of state and municipal institutions and establishments, as well as by branches, located in Lithuania, of enterprises established in Member States of the European Union or other states which signed the Agreement on the European Economic Area.

Thus, in the context of the legal regulation established in the Law on Science and Studies, branches of foreign schools of higher education established in the Republic of Lithuania are virtually equalled to non-state schools of higher education.

3.3. The provision (disputed by the petitioner) of Paragraph 2 of Article 69 of the Law on Science and Studies is first of all related to the provision of Item 2 of Paragraph 1 of Article 67 of this law wherein a possibility is provided to allocate state budge funds to all (i.e. both state and non-state) institutions of science and studies. Thus, Paragraph 2 of Article 69 of the Law on Science and Studies has established a special norm with regard to the norm of Item 2 of Paragraph 1 of Article 67, since the norm of Paragraph 2 of Article 69 contains a special prohibition to allocate state budget funds to branches of foreign schools of higher education established in the Republic of Lithuania; in this way the said branches are singled out from among non-state schools of higher education.

3.4. The provision (disputed by the petitioner) of Paragraph 2 of Article 69 of the Law on Science and Studies is related to Paragraph 1 of the same article, wherein it is established:

State budget funds for studies shall be appropriated for:

1) covering the study cost in student places which are funded by the state;

2) compensating, in the manner prescribed by Article 71 of this Law, the study costs paid by the students who achieved the best results of studies in the student places which are not funded by the state;

3) target funding of studies;

4) state loans or state-supported loans;

5) social scholarships and other support.”

The allocation of the state budget funds for studies provided for in Paragraph 1 of Article 69 of the Law on Science and Studies is regulated in Articles 70, 71, 73, 74, 75 of this law. In this context it needs to be noted that, under Paragraph 2 of Article 69 of the Law on Science and Studies, appropriation of state budget funds for branches of foreign schools of higher education established in the Republic of Lithuania is prohibited. Therefore, this prohibition may not be understood as a prohibition to allocate state budget funds for studies to the persons who are studying in branches of foreign schools of higher education established in the Republic of Lithuania, i.e. the state budget funds for studies provided for in Items 2, 4, 5 of Paragraph 1 of Article 69 of the Law on Science and Studies. While taking account of this, the said persons may be allocated state budget funds under Article 71 of the Law on Science and Studies, which regulates compensation of the costs paid for studies, under Article 74 thereof, which regulates allocation of state loans and state supported loans to students of schools of higher education, and under Article 75 thereof, which regulates allocation of scholarships and other support from state budget funds to students.

Article 70 of the Law on Science and Studies regulates payment of study costs in student places funded by the state, i.e. distribution of student places funded by the state among schools of higher education (both state and non-state ones) and the procedure for payment for such student places by state budget funds. It needs to be noted that, under the same article, the state budget funds for payment of the study costs in student places funded by the state are allocated not directly to the persons studying in student places funded by the state, but to the schools of higher education so that they continue to keep such distributed student places funded by the state. Such funds are allocated under procedure established by the Government, after distribution of state-funded student places among schools of higher education within study programmes of the first cycle and integrated study programmes, without exceeding the state funding established by the Government for each area of studies and upon approval, by the Ministry of Education and Science, the final number of state-funded student places of the first cycle and integrated studies, after the results of admission to higher education institutions are made known and study agreements are signed, also upon establishment, by the Government, the number of state-funded student places of the second cycle, doctoral studies and studies which do not award a degree in concrete fields of studies (Paragraphs 2, 5, 9, 11 of Article 70 of the Law on Science and Studies).

Article 73 of the Law on Science and Studies regulates targeted funding of studies; Paragraph 1 thereof inter alia provides that, in accordance with the procedure laid down by the Ministry of Education and Science, state budget funds may, by way of competition, be appropriated to institutions (both state and non-state ones) of science and studies for the implementation of study programmes, taking into consideration the most urgent needs of the economic, social and cultural development of the state, if the said needs may not be satisfied in other ways laid down in this law.

Thus, the prohibition, established in Paragraph 2 of Article 69 of the Law on Science and Studies, to allocate state budget funds for studies to branches of foreign schools of higher education established in the Republic of Lithuania means a prohibition to allocate, for studies, the state budget funds mentioned in Items 1, 3 of Paragraph 1 of the same article, i.e. state budget funds for covering the study costs in student places which are funded by the state under Article 70 of the Law on Science and Studies and state budget funds for target funding of studies under article 73 of the same law.

3.5. While summing up the legal regulation (which is being disputed by the petitioner) established in Paragraph 2 of Article 69 of the Law on Science and Studies, it needs to be noted that the prohibition to allocate state budget funds for studies to branches of foreign schools of higher education established in the Republic of Lithuania also means that state-funded student places may not be distributed among branches of foreign schools of higher education established in the Republic of Lithuania, nor may target funding of studies be allocated to such branches. Thus, if compared with other, inter alia non-state schools of higher education, one has established less favourable conditions for activity with respect to branches of foreign schools of higher education established in the Republic of Lithuania. Such limitations upon activities of branches of foreign schools of higher education established in the Republic of Lithuania are substantiated by a single criterion—the location of the main activity and of the seat of the school of higher education—i.e. the legal regulation established less favourable conditions for activity with respect to branches of foreign schools of higher education established in the Republic of Lithuania only because of the fact that such branches are established by foreign but not Lithuanian state and non-state schools of higher education.

4. In the context of the constitutional justice case at issue it needs to be noted that the legal regulation of branches of foreign schools of higher education is related to the main principles of EU law, inter alia to the principle of non-discrimination and to the main freedoms.

4.1. Under Article 150 of the Constitution, the Constitutional Act of the Republic of Lithuania “On Membership of the Republic of Lithuania in the European Union” is a constituent part of the Constitution. Article 2 of the said act provides that the norms of the European Union law shall be a constituent part of the legal system of the Republic of Lithuania; where it concerns the founding Treaties of the European Union, the norms of the European Union law shall be applied directly, while in the event of collision of legal norms, they shall have supremacy over the laws and other legal acts of the Republic of Lithuania.

In this context it needs to be mentioned that the Constitutional Court has noted more than once that the jurisprudence of the Court of Justice of the European Union (hereinafter referred to as the ECJ) as a source of construction of law is also important to construction and application of Lithuanian law (Constitutional Court rulings of 21 December 2006, 15 May 2007, 4 December 2008 and 27 March 2009).

4.2. Even though under Paragraph 1 of Article 165 of the Treaty on the Functioning of the European Union (hereinafter referred to as TFEU) the European Union fully respects the responsibility of the Member States for the content of teaching and the organisation of education systems, in this area the Member States must comply with other provisions of EU law, especially those pertaining to the principle of non-discrimination on grounds of nationality, which is entrenched in Article 18 of the TFEU, as well as with the provisions consolidating the main freedoms, inter alia the provisions of Articles 49–55 of the TFEU regulating freedom of establishment.

Under the first section of Article 49 of the TFEU, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited; such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Article 54 of the TFEU provides that companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall be treated in the same way as natural persons who are nationals of Member States; this provision is applied to companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making. Thus, profit-making schools of higher education may also make use of freedom of establishment.

The ECJ has held in its jurisprudence more than once that freedom of establishment entails, in accordance with Article 54 of the TFEU, for companies formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, branch or agency (the 21 September 1999 judgment in Saint‑Gobain ZN, C‑307/97, ECR I‑6161, paragraph 35; the 12 September 2006 judgment in Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, ECR I‑7995, paragraph 41; the 13 March 2007 judgment in Test Claimants in the Thin Cap Group Litigation, C‑524/04, ECR I‑2107, paragraph 36). Thus, freedom of establishment includes the right of companies, inter alia that of profit-making schools of higher education, to establish their branches within the territories of Member States of the European Union (EU) and the prohibition to limit this right if there is no justifying reason within EU law.

In this context the ECJ has noted that it is not allowed to resort to any such national measures, which, even though applied without discrimination on grounds of nationality, are liable to hamper or to render less attractive the exercise, by Community nationals, of fundamental freedoms; the limitation is allowed only if such a measure pursued a legitimate objective compatible with the Treaty establishing the European Community (at present—the TFEU) or if it is justified by imperative requirements in the general interest, and provided corresponding national legal acts are suitable for securing the attainment of the objective which they pursue and if they do not go beyond what is necessary in order to attain it (the 31 March 1993 judgment in Kraus, C-19/92, ECR I-1663, paragraph 32; the 30 November 1995 judgment in Gebhard, C‑55/94, ECR I‑4165, paragraph 37; the 9 March 1999 judgment in Centros, C-212/97, ECR I-1459, paragraph 34). Thus, EU law expressively prohibits the measures limiting freedom of establishment (inter alia the right of companies to establish their branches), discriminating on the grounds of citizenship and hampering or rendering less attractive the exercise of this right.

4.3. It needs to be noted that, under Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, pp. 36–68), which inter alia regulates freedom of establishment of providers supplying services, Member States must not establish discriminatory requirements based directly or indirectly on nationality or, in the case of companies, the location of the registered office (Item 1 of Article 14). Inter alia different conditions of activity, related to the requirement to the seat of a provider supplying services, are attributed to indirect discrimination. Thus, under the said directive, the establishment of less favourable conditions for companies supplying services, inter alia for profit-making schools of higher education conducting studies, only on the grounds of the location of their seat is per se to be regarded as a prohibited discriminatory limitation.

5. While substantiating its doubts regarding the compliance of Paragraph 2 of Article 69 of the Law on Science and Studies with the Constitution, while invoking the official constitutional doctrine, the petitioner is asserting that, having assessed the needs of society and the state and the capabilities of the state, in cases when state schools of higher education cannot prepare specialists of some areas due to objective reasons, then such specialists, under commissioning by the state, must also be prepared in non-state schools of higher education, including branches of foreign schools of higher education.

6. The petitioner is disputing the compliance of Paragraph 2 of Article 69 of the Law on Science and Studies with inter alia Paragraph 3 of Article 41 of the Constitution which inter alia provides that persons who are good at their studies shall be guaranteed education at state schools of higher education free of charge.

It needs to be noted that, while construing the state duty to fund state schools of higher education from the state budget, in its ruling of 20 March 2008 the Constitutional Court held that, under commissioning of the state, specialists of certain areas (fields) may also be prepared in non-state schools of higher education by funds of the state budget; in addition, it is permitted to support citizens, who study in schools of higher education of other states, by funds of the state budget.

Thus, upon assessing the needs of society and the state and the capabilities of the state, in cases when specialists of certain areas cannot be prepared in state schools of higher education due to objective reasons, they may be prepared, upon requisition of the state, also in foreign schools of higher education, including branches of foreign schools of higher education established in the Republic of Lithuania.

7. The petitioner is disputing the compliance of Paragraph 2 of Article 69 of the Law on Science and Studies inter alia with the constitutional principle of a state under the rule of law.

As mentioned in the constitutional justice case at issue, the constitutional principle of a state under the rule of law is especially capacious; it comprises a range of various interrelated imperatives. The principle of equality of persons, which is entrenched in Paragraph 1 of Article 29 of the Constitution, is inseparable from the constitutional principle of a state under the rule of law, which is a universal principle upon which the entire Lithuanian legal system and the Constitution itself are based.

Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before the law, the court, and other state institutions and officials. This provision enshrines formal equality of all persons. The constitutional principle of equality of all persons before the law requires that in law the main rights and duties be established equally to all (Constitutional Court rulings of 30 June 2000, 24 December 2008, and 2 March 2009).

In the constitutional justice case at issue it has been mentioned that the constitutional principle of equality of rights of persons in itself does not deny an opportunity to establish diverse and differentiated legal regulation by means of legislation with respect to certain persons who belong to different categories, if there exist differences between these persons of such a character that objectively justify such differentiated regulation. Differentiated legal regulation, when it is applied to certain groups of persons which are distinguished by the same signs, and in case it is striving for positive and socially meaningful goals, or if the establishment of certain limitations or conditions is linked with the peculiarities of regulated social relations, in itself is not to be regarded as discrimination. However, the constitutional principle of equality of all persons before the law would be violated when a certain group of persons, to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified.

It has also been mentioned that, while assessing whether an established different legal regulation is a grounded one, particular legal circumstances must be taken into account. First of all, differences of the legal situation of subjects and objects to which different legal regulation is applied must be assessed. The compliance of a concrete legal norm with Article 29 of the Constitution may be assessed only by taking into account all significant circumstances.

8. It has been mentioned that the principle of equality of persons, which is entrenched in Paragraph 1 of Article 29 of the Constitution, is inseparable from the constitutional principle of a state under the rule of law, which is a universal principle upon which the entire Lithuanian legal system and the Constitution itself are based; the constitutional principle of equality of all persons before the law would be violated when a certain group of persons to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified; while assessing whether an established different legal regulation is a grounded one, particular legal circumstances must be taken into account: first of all, differences of the legal situation of subjects and objects to which different legal regulation is applied must be assessed.

It has also been mentioned that the branches of foreign schools of higher education established in the Republic of Lithuania, which are specified in Paragraph 2 of Article 69 of the Law on Science and Studies, in the context of the legal regulation established in this law, are virtually equalled to non-state schools of higher education. It has also been mentioned that Paragraph 2 of Article 69 of the Law on Science and Studies contains a prohibition to allocate state budget funds for studies to branches of foreign schools of higher education established in the Republic of Lithuania; alongside, such legal regulation means that state-funded student places may not be distributed among branches of foreign schools of higher education established in the Republic of Lithuania, nor may target funding of studies be allocated to such branches. Thus, if compared with other non-state schools of higher education and persons studying therein, one has established less favourable conditions for activity with respect to branches of foreign schools of higher education established in the Republic of Lithuania and persons studying in such branches. Such limitations upon activities of branches of foreign schools of higher education established in the Republic of Lithuania are substantiated by a single criterion—the location of the main activity and of the seat of the school of higher education—i.e. such legal regulation has established less favourable conditions for activity with respect to branches of foreign schools of higher education established in the Republic of Lithuania only because of the fact that such branches are established by foreign schools of higher education.

It needs to be noted that in the context of the constitutional principle of equality of all persons before the law such differentiated legal regulation of branches of foreign schools of higher education established in the Republic of Lithuania is to be regarded as discriminatory, since the criterion substantiating it (the location of the main activity and seat of the school of higher education) may not be objectively justified, especially when establishing differentiated legal regulation with respect to branches of schools of higher education established in the Republic of Lithuania, which have their seat in other Member States of the European Union. While establishing limitations upon the activity of science and studies only according to the location of the main activity and seat of the school of higher education, one is not seeking any objectives corresponding to the public interest. It needs to be emphasised that the mere fact that the activity of science and studies is carried out by the branch of a foreign school of higher education may not serve as grounds for an assumption that the higher education provided by it is of lesser quality than that provided by Lithuanian schools of higher education.

Thus, one is to draw a conclusion that Paragraph 2 of Article 69 of the Law on Science and Studies is in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

9. It has been mentioned that, while construing Paragraph 3 of Article 41 of the Constitution, the Constitutional Court held that, under commissioning of the state, specialists of certain areas (fields) may also be prepared in non-state schools of higher education by funds of the state budget; in addition, it is permitted to support citizens, who study in schools of higher education of other states, by funds of the state budget. It has also been mentioned that, upon assessing the needs of society and the state and the capabilities of the state, in cases when specialists of certain areas cannot be prepared in state schools of higher education due to objective reasons, they may be prepared, upon requisition of the state, also in foreign schools of higher education, including branches of foreign schools of higher education established in the Republic of Lithuania.

It has also been mentioned that Paragraph 2 of Article 69 of the Law on Science and Studies contains a prohibition to allocate state budget funds for studies to branches of foreign schools of higher education established in the Republic of Lithuania; alongside, such legal regulation means that state-funded student places may not be distributed among branches of foreign schools of higher education established in the Republic of Lithuania, nor may target funding of studies be allocated to such branches. Therefore, under the legal regulation established in Paragraph 2 of Article 69 of the Law on Science and Studies, the state is prohibited from presenting a commissioning, upon assessing the needs of society and the state and the capabilities of the state, to train specialists of separate areas in branches of foreign schools of higher education established in the Republic of Lithuania even in the cases when such specialists cannot be trained in state schools of higher education.

Thus, one is to draw a conclusion that Paragraph 2 of Article 69 of the Law on Science and Studies is in conflict with Paragraph 3 of Article 41 of the Constitution.

10. Summing it up, it needs to be held that Paragraph 2 of Article 69 of the Law on Science and Studies is in conflict with Paragraph 1 of Article 29 and Paragraph 3 of Article 41 of the Constitution and with the constitutional principle of a state under the rule of law.

VII

On the compliance of Articles 19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has had doubts as to whether Articles 19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

1.1. Article 19 “Bodies of schools of higher education” of the Law on Science and Studies prescribes:

1. A state university must have the collegial governance bodies—the council and the senate, and a one-person governance body—the rector.

2. A state college must have the collegial governance bodies—the council and the academic council, and a one-person governance body—the director.

3. Governance of a non-state school of higher education shall be regulated by the founding documents of this school of higher education.”

1.2. Article 20 “Council of a state school of higher education” of the Law on Science and Studies prescribes:

1. A governance body of a state school of higher education shall be the council.

2. The council shall perform the following functions:

1) approve the vision and mission of the school of higher education, a strategic action plan presented by the rector (director);

2) upon hearing the opinion of the senate (academic council), submit amendments of the university statute to the Seimas (amendments of the college statute—to the Government) for approval;

3) consider and approve plans for reorganisation of the structure of the school of higher education presented by the rector (director);

4) set the procedure for managing, using and disposing of funds (also funds allocated for work remuneration of the school’s leadership and other employees) and assets of the school of higher education, consider and approve key decisions related thereto;

5) set the procedure for organising election of the rector (director) of the school of higher education through open competition; elect, appoint to the office and dismiss from it the rector (director) of the school of higher education;

6) set the principles for selection and assessment of employees of the school of higher education;

7) on the recommendation of the rector (director) set the study cost and the rates of fees that are not directly related to the implementation of a study programme;

8) set a general number of student places, taking into account the possibilities of quality assurance in studies and scientific activities;

9) approve an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement presented by the rector (director); may initiate an audit of economic and financial activities of the school of higher education;

10) approve an annual report on the activities of the school of higher education presented by the rector (director), evaluate the compliance of the activities with the strategic plan, the achieved results and their impact;

11) ensure the accountability and relation of the school of higher education with the public and its founders, each year inform the public about the results of the implementation of the strategic action plan of the school of higher education;

12) attend to support for the school of higher education;

13) upon hearing the opinion of the senate (academic council), approve plans for reorganisation or liquidation of the school of higher education and submit them to the Seimas (the Government) for approval;

14) prepare an annual report on its activities and submit it: in case of state universities—to the Seimas, and in case of state colleges—to the Government;

15) perform the functions prescribed in the statute of the school of higher education and other legal acts.

3. The council shall consist of 9 or 11 members. The statute of the school of higher education shall set an exact number of the council members. In accordance with the procedure laid down by the statute of the school of higher education, one member of the council shall be appointed by the representation of students, and in the absence of such—a general meeting (conference) of students; two members, or if the council consists of 11 members, three members shall be appointed by the teaching staff and the scientific staff; one member—by the administration and other employees; one council member shall be appointed by the Minister of Education and Science together with the senate (academic council) of the school of higher education; four members, or if the council consists of 11 members, five members shall be proposed by legal and natural persons from the persons who do not belong to the staff and students of the school of higher education—these members of the council shall be appointed and recalled by the Minister of Education and Science on the recommendation of the Council of Higher Education, upon hearing the opinion of the council of the school of higher education. The Minister of Education and Science shall publicly announce the composition of the council.

4. A person may be a member of the council if he is of good repute, held or holds a position of responsibility in the sphere of education, science, culture, public activity or business (this requirement shall not apply to a representative of students) and has knowledge and competence enabling him to seek the objectives of the school of higher education and to fulfil the mission of the school of higher education. The same person may serve on the council only for two consecutive terms of the council.

5. The President of the Republic, Members of the Seimas and the Government, as well as public servants of political (personal) confidence may not be members of the council.

6. The term of office of a member of the council shall be five years. Not later than a month before the expiry of the term of office of a council member the Minister of Education and Science shall announce a composition of a newly formed council.

7. When commencing the duties of his office, a member of the council shall, at a meeting of the council, in the manner prescribed by the statute of the school of higher education, sign a commitment to follow the interests of the school of higher education and the public and to fulfil in good faith the functions set out by this law.

8. The council shall elect the chairman of the council from among its members and recall him by a majority of votes cast by all members of the council. A person belonging to the staff of the school of higher education or a student may not be the chairman of the council.

9. The council shall approve its rules of procedure. The council shall take decisions by a majority of votes cast by the council members attending the meeting. A meeting of the council shall be valid if it is attended by at least two thirds of the members of the council.

10. The rector (director) of the school of higher education may attend meetings of the council in an advisory capacity.

11. If a member of the council fails to properly perform the duties set out by the statute of the school of higher education, the rules of procedure of the council or the commitment referred to in Paragraph 7 of this Article, or fails to sign the commitment referred to in Paragraph 7 of this Article, the chairman of the council shall have the right to address the person who appointed the said member with a request to recall the appointed member of the council.

12. If the powers of the member of the council are terminated before the expiry of his term of office, a new member of the council shall be appointed in accordance with the procedure laid down in Paragraph 3 of this Article by the person who appointed the member of the council whose powers are terminated. The new member of the council shall commence his duties after the Minister of Education and Science announces his appointment and the member of the council signs a commitment specified in Paragraph 7 of this Article.

13. Members of the council may be remunerated for the activities during the tenure with the funds of the school of higher education. The procedure for paying payments shall be laid down in the statute of the school of higher education.

14. The rector (director) shall ensure organisational conditions necessary for the activities of the council.”

1.3. Article 21 “Senate (academic council) of a state school of higher education” of the Law on Science and Studies prescribes:

1. The senate (academic council) of a state school of higher education shall be the governance body of academic affairs of that school of higher education.

2. The university senate shall execute the following functions:

1) approve programmes of studies, scientific research and experimental (social, cultural) development, art programmes, and present proposals to the rector regarding the funding of these programmes and reorganisation of the university structure which is necessary for implementation of those programmes, evaluate the results of conducted research as well as the quality and level of all scientific and artistic activities of the university;

2) define a procedure of studies; approve internal rules of the university;

3) approve an internal system of quality assurance in studies and control its implementation;

4) in compliance with the established principles for selection and evaluation of university employees, approve the qualification requirements for positions of teaching staff members and scientific staff members, lay down the procedure for performance evaluation of teaching staff members and scientific staff members and for organisation of a competition to fill a position;

5) in accordance with the procedure laid down by the university statute, convene meetings (conferences) of the academic community of the university to discuss important issues concerning activities of the university;

6) in accordance with the procedure laid down by the university statute, bestow university’s honorary degrees and other titles;

7) perform other functions prescribed by legal acts and the university statute.

3. The academic council of a college shall perform the following functions:

1) approve study programmes and present proposals to the director regarding the funding of these programmes and reorganisation of the college structure which is necessary for implementation of those programmes, evaluate the results of conducted research as well as the quality and level of applied scientific and artistic activities of the college;

2) define a procedure of studies; approve internal rules of the college;

3) approve an internal system of quality assurance in studies and control its implementation;

4) in compliance with the established principles for selection and evaluation of college employees, approve the qualification requirements for positions of teaching staff members and scientific staff members, lay down the procedure for performance evaluation of teaching staff members and scientific staff members and for organisation of a competition to fill a position;

5) in accordance with the procedure laid down by the college statute, convene meetings (conferences) of the academic community of the college to discuss important issues concerning activities of the college;

6) in accordance with the procedure laid down by the college statute, bestow college’s honorary degrees;

7) perform other functions prescribed by legal acts and the college statute.

4. A senate (academic council) shall be set up in accordance with the procedure laid down in the statute of the school of higher education for a period not exceeding five years.

5. Members of the academic community of the university (college), members of the administration of the university who pass into the senate (academic council) based on their position, as well as scientists, teaching staff members and established artists of other institutions of science and studies may be members of the senate (academic council). Representatives appointed by students must comprise not less than 20 per cent of the members of the senate (academic council). Representatives of students shall be appointed to the senate (academic council) by a student representation; if there is no such representation—by a general meeting (conference) of the students. Persons holding the position of professor and chief scientific staff member must comprise not less than 20 per cent of the members of the senate. Persons holding the position of associate professor and senior scientific staff member must comprise not less than 20 per cent of the members of the senate (academic council). Persons who are members of the senate (academic council) based on their position must comprise not more than 10 per cent of the members of the senate (academic council). Employees of other institutions of science and studies may also be members of the senate (academic council) based on their position. The rector (director) of the school of higher education shall also be a member of the senate (academic council) based on his position.

6. Activities of the senate (academic council) shall be regulated by the rules of procedure of the senate (academic council) as approved by the senate (academic council) of the school of higher education.

7. The rector (director) of the school of higher education may not be chairman of the senate (academic council).

8. The senate (academic council) shall, in accordance with the procedure laid down by the statute of the school of higher education, inform the community of the school of higher education about its decisions and shall account for its activities to the said community once a year.”

1.4. Article 22 “Rector (director) of a state school of higher education” of the Law on Science and Studies prescribes:

1. The rector (director) of a school of higher education shall be a one-person governance body of the school of higher education, shall act in the name of the said institution and represent it.

2. The rector (director) shall execute the following functions:

1) head a school of higher education, organise its activities, ensuring the implementation of a strategic action plan;

2) issue orders;

3) recruit and dismiss employees of the school of higher education;

4) admit and exclude students in accordance with the procedure laid down by the statute of the school of higher education;

5) upon evaluation of proposals of the student representation, submit to the council for approval the study cost and the rates of fees that are not directly related to the implementation of a study programme;

6) be responsible for financial activities of the school of higher education, proper management, use and disposal of funds and assets;

7) submit to the council for approval and publicly announce an annual report on the activities of the school of higher education, an annual statement of revenue and expenditure and a report on the execution of this statement;

8) acquaint the senate (academic council) with an annual report on the activities of the school of higher education and submit it to the Ministry of Education and Science;

9) submit to the council for approval a strategic plan for activities of the school of higher education and plans for reorganisation of the structure of the school of higher education;

10) perform other functions prescribed in legal acts and the statute of the school of higher education.

3. The rector (director) shall be elected by an open competition, appointed and dismissed by the council.

4. The council shall announce an open competition to fill a position of the rector (director). The rector (director) shall be considered to be elected if at least three-fifths of all the council members vote for him.

5. The rector may be a person who has a scientific degree or is an established artist, who has the experience in pedagogy and management.

6. The director may be a person who has the experience in pedagogy and management.

7. The chairman of the council or any other person authorised by the council shall sign in the name of the school of higher education an employment contract with the elected rector (director) for the duration of his term of office.

8. The term of office of the rector (director) shall be five years. The same person may be elected rector (director) of the same school of higher education for not more than two terms of office in succession and not earlier than after the lapse of five years since the end of the last term of office, if the last term of office was consecutively second.

9. If an annual report on the activities of the school of higher education or an annual report on the implementation of the statement of revenue and expenditure presented by the rector (director) of the school of higher education is not approved by a majority of the council members at a meeting of the council, the rector (director) may be dismissed from office in accordance with the procedure laid down by legal acts.”

2. In the opinion of the group of Members of the Seimas, a petitioner, the legal regulation laid down in Articles 19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the Law on Science and Studies denies the principle of autonomy of schools of higher education and violates the constitutional principle of a state under the rule of law. The petitioner maintains that the fact that the functions of the council of a state school of higher education are much more extensive if compared to the functions of control and supervision, the purpose of which is to ensure the responsibility of a school of higher education and its accountability to the public, as well as the fact that the Minister of Education and Science directly participates in appointing 5 (out of 9) or 6 (out of 11) council members, are not in line with the official constitutional doctrine formulated by the Constitutional Court in relation to the autonomy of schools of higher education.

Thus, from the arguments of the petitioner it is clear that, in view of the official constitutional doctrine, the petitioner has had doubts as to the compliance, with the Constitution, of the provisions of Paragraph 2 of Article 20 of the Law on Science and Studies, which sets the functions of the council of a state school of higher education, also those of Paragraph 3 of this article, which regulates the formation of the council of a state school of higher education, and the provision of Paragraph 1 of the same article relating to the said paragraphs, whereby a governance body of a state school of higher education is the council, as well as the compliance, with the Constitution, of the provisions of Paragraphs 1 and 2 of Article 19 of the same law, to the extent that these paragraphs consolidate the council as a collegial governance body of a state university or state college, the provision of Paragraph 1 of Article 21, whereby the senate (academic council) of a state school of higher education is the governance body of academic affairs of that school of higher education, and the provisions of Paragraphs 2 and 3 of this article, which regulate the functions of the university senate and the academic council of a college, the provisions of Paragraph 2 of Article 22, which regulate the functions of the rector (director), the provisions of Paragraphs 3, 4 and 7 of the same article, which concern the procedure for election, appointment and dismissal of the rector (director), and the provisions of Paragraph 9 of this article, which relate to accountability of the rector (director).

By taking account of the said, the Constitutional Court will, first of all, investigate whether Paragraphs 2 and 3 of Article 20 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

3. It has been mentioned that Paragraph 2 of Article 20 of the Law on Science and Studies sets the functions of the council of a state school of higher education, while Paragraph 3 of this article—the procedure for formation of this council. The provisions in question are to be, first of all, related to Paragraph 1 of the same article, which provides that a governance body of a state school of higher education is the council, as well as to Paragraphs 1 and 2 of Article 19, wherein the council is identified as one of the collegial governance bodies of a state university (state college). Although the council is identified as a governance body, it performs the functions of governance as well as functions of control and supervision.

3.1. Under Paragraph 2 of Article 20 of the Law on Science and Studies, the council performs the following main functions of governance of a state school of higher education: approves the vision and mission of the school of higher education, a strategic action plan presented by the rector (director) (Item 1); upon hearing the opinion of the senate (academic council), submits amendments of the university statute to the Seimas (amendments of the college statute—to the Government) for approval (Item 2); approves plans for reorganisation of the structure of the school of higher education presented by the rector (director) (Item 3); sets the procedure for managing, using and disposing of funds (also funds allocated for work remuneration of the school’s leadership and other employees) and assets of the school of higher education, considers and approves key decisions related thereto (Item 4); sets the procedure for organising election of the rector (director) of the school of higher education through open competition; elects, appoints to the office and dismisses from it the rector (director) of the school of higher education (Item 5); sets the principles for selection and assessment of employees of the school of higher education (Item 6); on the recommendation of the rector (director) sets the study cost and the rates of fees that are not directly related to the implementation of a study programme (Item 7); sets a general number of student places, taking into account the possibilities of quality assurance in studies and scientific activities (Item 8); approves an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement presented by the rector (director) (Item 9); approves an annual report on the activities of the school of higher education presented by the rector (director) (Item 10); upon hearing the opinion of the senate (academic council), approves plans for reorganisation or liquidation of the school of higher education and submits them to the Seimas (the Government) for approval (Item 13). Under Item 15 of the same paragraph, the council of a state school of higher education may also perform other functions of governance of the school of higher education, as prescribed in the statute of the school of higher education and other legal acts.

Thus, under Paragraph 2 of Article 20 of the Law on Science and Studies, the main functions of the council of a state school of higher education are chiefly related to the adoption of strategic decisions and other most important decisions of governance of the school of higher education. The said functions include decisions inter alia relating to the most important questions in strategic planning (approval of the vision and mission as well as a strategic action plan of the school of higher education), reorganisation of the structure and governance of the school of higher education, principal issues regarding amendments of the legal regulation of the school’s activities as well as liquidation of its activities (submission of amendments of the statute to the Seimas or the Government, approval of plans for reorganisation of the structure of the school of higher education, approval of plans for reorganisation or liquidation of the school of higher education and their submission to the Seimas or the Government), principal issues regarding assets and finances of the school of higher education (establishment of the procedure for managing, using and disposing of funds and assets of the school of higher education and approval of key decisions related thereto, approval of the study cost and the rates of fees that are not directly related to the implementation of a study programme, approval of an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement, establishment of a general number of student places), as well as the principal issues of personnel management (establishment of the principles for selection and assessment of employees, establishment of the procedure for organising elections of the rector (director), also election, appointment and dismissal of the rector (director)).

3.2. In this context it needs to be noted that, under Paragraph 3 of Article 20 of the Law on Science and Studies, the council of a state school of higher education is composed of 9 or 11 members (an exact number of members of the council is set in the statute of the school of higher education); in accordance with the procedure laid down by the statute of the school of higher education, one member of the council is appointed by the representation of students, and in the absence of such—a general meeting (conference) of students, two members, or if the council consists of 11 members, three members are appointed by the teaching staff and the scientific staff, and one member—by the administration and other employees; one council member is appointed by the Minister of Education and Science together with the senate (academic council) of the school of higher education; four members, or if the council consists of 11 members, five members are proposed by legal and natural persons from the persons who do not belong to the staff and students of the school of higher education—these members of the council are appointed and recalled by the Minister of Education and Science on the recommendation of the Council of Higher Education, upon hearing the opinion of the council of the school of higher education.

3.2.1. In this context one also needs to mention Paragraph 1 of Article 53 of the Law on Science and Studies, wherein it is established that the academic community of institutions of science and studies, inter alia schools of higher education, consists of students, the teaching staff, the scientific staff, other researchers, and professors emeritus of these institutions. Thus, under Paragraph 3 of Article 20 of the Law on Science and Studies, the academic community of a state school of higher education may directly appoint 3 out of 9 or 4 out of 11 members of the council (one member of the council is a representative of students, two or three—representatives of the teaching staff and the scientific staff).

3.2.2. The other 6 out of 9 or 7 out of 11 members of the council of a state school of higher education are not directly appointed by the academic community:

one member of the council is appointed by the administration and other employees (in this context it needs to be noted that, under Paragraph 1 of Article 60 of the Law on Science and Studies, the administration is necessary for performance of administrative functions of the institution of science and studies as well as those of its units, and the administration employees and other employees are necessary for implementation of the objectives of studies, scientific research, experimental (social, cultural) development, as well as economic activities of the institution; the administration is headed by the rector (director), who is appointed by the council);

one council member is appointed by the Minister of Education and Science together with the senate (academic council) of the school of higher education, i.e. legal preconditions are created so that without a decision of the Minister of Education and Science one may not appoint as a council member a candidate acceptable to the senate (academic council) of the school of higher education;

the other 4 out of 9 or 5 out of 11 council members are also appointed by the Minister of Education and Science from among any candidates who are proposed by legal and natural persons and who do not belong to the staff members and students of the school of higher education (inter alia the academic community); these members of the council are appointed by the Minister of Education and Science on the recommendation of the Council of Higher Education, upon hearing the opinion of the council, but not the senate (academic council) of the school of higher education. It needs to be noted that candidates who are proposed by legal and natural persons are not required to be connected with the school of higher education to the council whereof they are being proposed, nor to be concerned with successful activities of that school of higher education in the course of implementation of its goals and mission (i.e., they are not necessarily proposed by, for example, organisations of benefactors, social partners or the alumni (former students of the school of higher education) of that school of higher education).

In this context it also needs to be noted that, under Paragraph 3 of Article 12 of the Law on Science and Studies, the Council of Higher Education is an advisory body to the Ministry of Education and Science on strategic issues of higher education development. The regulations of the Council of Higher Education are approved by the Government. In accordance with Item 8 of the Regulations of the Council of Higher Education, as approved by Resolution of the Government No. 771 “On the Approval of the Regulations of the Council of Higher Education” of 22 July 2009, the Council of Higher Education consists of 15 members; the chairman of the Council of Higher Education and its deputy are appointed by the Minister of Education and Science pursuant to the requirements set for members of the Council (Item 11 of the said regulations); the other 13 members of the Council, in accordance with the procedure set in Item 12 of the said regulations, are also appointed by the Minister of Education and Science after a special commission for selection of council members, formed by the Minister of Education and Science together with the acting Council, submits to the minister a list of candidates to members of the Council, in which the number of the indicated candidates must be larger than the required number of members of the Council which must be approved.

Thus, upon hearing the opinion of the acting council of the school of higher education, and without the participation of the academic community of the school of higher education, the Minister of Education and Science appoints 4 out of 9 or 5 out of 11 members of the council of that state school of higher education on the recommendation of an advisory institution formed by the minister himself.

3.2.3. In the context of Paragraph 2 of Article 20 of the Law on Science and Studies it needs to be noted that, under Paragraph 9 of the same article, the council adopts decisions by a majority of votes cast by the council members attending the meeting; a meeting of the council is valid if it is attended by at least two thirds of the members of the council.

Thus, strategic and other most important decisions of governance of a state school of higher education, indicated in Paragraph 2 of Article 20 of the Law on Science and Studies, are adopted by such a governance body (the council) in which members directly appointed by the academic community constitute the minority and in forming which the academic community has no decisive influence; the members directly appointed by the academic community have no decisive influence in adopting decisions of this body, either.

Paragraph 4 of Article 22 of the Law on Science and Studies provides for an exception in the event of the election of the rector (director) of a state school of higher education—a special norm with regard to the aforementioned general norm entrenched in Paragraph 9 of Article 20 of this law: to elect the rector (director) not a simple majority of votes cast by the council members attending the meeting is required, whereas votes of at least three-fifths of all the council members, i.e. votes of 6 council members, if the council consists of 9 members, or votes of 7 council members, if the council consists of 11 members. Another exception—a special norm with regard to the general norm entrenched in Paragraph 9 of Article 20 of the Law on Science and Studies—is set in Paragraph 9 of Article 22 of this law: an annual report on the activities of the school of higher education or an annual report on the implementation of the statement of revenue and expenditure presented by the rector (director) may not necessarily be approved by a majority of votes of the council members, i.e. by votes of 5 council members, if the council consists of 9 members, or votes of 6 council members, if the council consists of 11 members.

While taking account of the fact that the academic community of a state school of higher education directly appoints 3 out of 9, or 4 out of 11 members of the council, a conclusion is also to be drawn that the academic community has no decisive influence either when the council elects the rector (director), or when it decides on the question of approval of an annual report on the activities of the school of higher education or an annual report on the implementation of the statement of revenue and expenditure presented by the rector (director).

3.2.4. While summing up the legal regulation laid down in Paragraph 3 of Article 20 of the Law on Science and Studies, it needs to be noted that:

when forming the council of a state school of higher education, a decisive influence is wielded by the Minster of Education and Science: without the participation of the academic community of the school of higher education, the Minister of Education and Science appoints 4 out of 9, or 5 out of 11 members of the council of a state school of higher education on the recommendation of an advisory institution formed by the minister himself, and he also appoints one more member of the council together with the senate (academic council) of the school of higher education;

the academic community of a state school of higher education has no decisive influence in the formation of the council—as a collegial governance body—of that school of higher education: it may directly appoint 3 out of 9 or 4 out of 11 members of the council;

the academic community of a state school of higher education has no decisive influence upon decisions of the council: strategic and other most important decisions of governance of the school of higher education may be adopted by the council without the assent of the council members directly appointed by the academic community.

Thus, taking account of the legal regulation laid down in Paragraph 3 of Article 20 of the Law on Science and Studies, the council of a state school of higher education is not an institution implementing self-government of the academic community—it performs the main functions of governance related to self-government of the school of higher education.

3.3. The provisions of Paragraph 2 of Article 20 of the Law on Science and Studies are also to be construed in the context of the functions of the other collegial governance body of a state school of higher education—the senate (academic council).

3.3.1. Under Paragraph 5 of Article 21 of the Law on Science and Studies, members of the academic community of a university (college), members of the administration of a university who pass into the senate (academic council) based on their position, also scientists, teaching staff members and established artists of other institutions of science and studies, as well as representatives appointed by students may be members of the senate (academic council): representatives appointed by students must comprise not less than 20 per cent of the members of the senate (academic council), persons holding the position of professor and chief scientific staff member must comprise not less than 20 per cent of the members of the senate, and persons holding the position of associate professor and senior scientific staff member must comprise not less than 20 per cent of the members of the senate (academic council); persons who are members of the senate (academic council) based on their position must comprise not more than 10 per cent of the members of the senate (academic council).

Thus, taking account of the procedure for forming the senate (academic council) of a state school of higher education, the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of the academic community.

3.3.2. Under Paragraph 1 of Article 21 of the Law on Science and Studies, the senate (academic council) of a state school of higher education is defined as the governance body of academic affairs of the school of higher education. Paragraph 2 of this article sets the functions of the senate of a state university, while Paragraph 3—those of the academic council of a state college. The said functions inter alia include the approval of programmes of studies (in the case of the senate of a university—also programmes of scientific research and experimental (social, cultural) development, art programmes) and presentation of proposals to the rector (director) regarding funding of these programmes and corresponding reorganisation of the structure of the school of higher education, evaluation of the results of conducted research as well as the quality and level of all scientific and artistic activities of the whole school of higher education, establishment of the procedure of studies and approval of internal rules of the school of higher education, approval of an internal system of quality assurance in studies and control of its implementation, approval of the qualification requirements for positions of teaching staff members and scientific staff members, establishment of the procedure for performance evaluation of teaching staff members and scientific staff members and for organisation of a competition to fill a position, convening of meetings (conferences) of the academic community to discuss important issues concerning activities of the school of higher education, and bestowing of honorary titles of the school of higher education.

3.3.3. When construing the provisions of Paragraph 2 of Article 20 of the Law on Science and Studies in conjunction with Paragraphs 2 and 3 of Article 21 of this law, it also needs to be noted that the senate (academic council) does not participate, or participates only in an advisory capacity, in adopting strategic and other most important decisions of governance of the state school of higher education. Inter alia the senate (academic council) does not participate in adopting decisions on the principal questions of strategic planning (approval of the vision and mission as well as a strategic action plan of the school of higher education), it only presents its proposals or opinion regarding the reorganisation of the structure and governance of the school of higher education, as well as the reorganisation or liquidation of the school of higher education (under Item 1 of Paragraph 2 and Item 1 of Paragraph 3 of Article 21, the senate (academic council) presents proposals to the rector (director) regarding the reorganisation of the university (college) structure which is necessary for the implementation of programmes of studies, scientific research and experimental (social, cultural) development, as well as art programmes, under Items 2 and 13 of Paragraph 2 of Article 20, the senate (academic council) presents its opinion to the council regarding amendments of the university (college) statute and regarding plans for reorganisation or liquidation), and it does not participate or participates only by presenting its proposals while adopting principal issues regarding assets and finances of the school of higher education (the senate (academic council) participates neither in establishing the procedure for managing, using and disposing of funds and assets of the school of higher education, nor in approving key decisions related thereto, nor in approving the study cost and the rates of fees that are not directly related to the implementation of a study programme, nor in approving an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement, nor in establishing a general number of student places; under Item 1 of Paragraph 2 and Item 1 of Paragraph 3 of Article 21, the senate (academic council) presents proposals to the rector (director) regarding the funding of university (college) programmes of studies, scientific research and experimental (social, cultural) development, as well as art programmes), the senate (academic council) does not participate in adopting decisions on the principal issues of personnel management (in establishing the principles for selection and assessment of employees, setting the procedure for organisation of elections of the rector (director), also in electing, appointing and dismissing the rector (director)). In addition, while deciding on other questions of personnel management, the senate (academic council) is subordinated to the council: under Item 4 of Paragraph 2 and Item 4 of Paragraph 3 of Article 21 of the Law on Science and Studies, the senate (academic council), in compliance with the established principles for selection and evaluation of university (college) employees, approves the qualification requirements for positions of teaching staff members and scientific staff members and lays down the procedure for performance evaluation of teaching staff members and scientific staff members and for organisation of a competition to fill a position. The rector (director) of a state school of higher education is not accountable to the senate (academic council) and he simply acquaints the senate (academic council) with an annual report on the activities of the school of higher education approved by the council.

3.4. The provisions of Paragraph 2 of Article 20 of the Law on Science and Studies are also to be construed in the context of the functions of the rector (director)—another governance body of a state school of higher education, which are established in Paragraph 2 of Article 22 of this law.

3.4.1. It needs to be noted that the rector (director) of a state school of higher education is a one-person governance body, who acts in the name of the school of higher education and represents that school (Paragraph 1 of Article 22 of the Law on Science and Studies). The rector (director) is elected, appointed to the office and dismissed from it by the council (Item 5 of Paragraph 2 of Article 20 and Paragraphs 3, 4 and 7 of Article 22 of the Law on Science and Studies). The rector (director) is accountable to the council: he submits to the council for approval an annual report on the activities of the school of higher education, an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement; if the said documents are not approved by a majority of the council members at a meeting of the council, the rector (director) may be dismissed from office (Items 9 and 10 of Paragraph 2 of Article 20 and Paragraph 9 of Article 22 of the Law on Science and Studies).

The functions of the rector (director) are established in Paragraph 2 of Article 22 of the Law on Science and Studies. These functions inter alia include: heading a school of higher education, organising activities of the school of higher education by ensuring the implementation of a strategic action plan as approved by the council, issuing orders, recruiting and dismissing employees of the school of higher education, admitting and excluding students, submitting to the council for approval the study cost and the rates of fees not directly related to the implementation of a study programme, being accountable for financial activities of the school of higher education, proper management, use and disposal of funds and assets, submitting to the council for approval an annual report on the activities of the school of higher education, an annual statement of revenue and expenditure and a report on the execution of this statement, acquainting the senate (academic council) with an annual report on the activities of the school of higher education as approved by the council and submitting it to the Ministry of Education and Science, submitting to the council for approval a strategic action plan of the school of higher education and plans for reorganisation of the structure of the school of higher education.

3.4.2. When construing the provisions of Paragraph 2 of Article 20 of the Law on Science and Studies in conjunction with Paragraph 2 of Article 22 of this law, it also needs to be noted that the council of a state school of higher education adopts certain decisions of strategic governance and other most important decisions of governance upon the proposal of the rector (director). Inter alia, on the proposal of the rector (director), the council approves a strategic action plan of the school of higher education, plans for reorganisation of the structure of the school (Items 1 and 3 of Paragraph 2 of Article 20, Item 9 of Paragraph 2 of Article 22), an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement, as well as an annual report on the activities of the school of higher education (Items 9 and 10 of Paragraph 2 of Article 20, Item 7 of Paragraph 2 of Article 22), and sets the study cost and the rates of fees not directly related to the implementation of a study programme (Item 7 of Paragraph 2 of Article 20, Item 5 of Paragraph 2 of Article 22).

3.5. It needs to be noted that, besides the aforementioned functions of governance, under Paragraph 2 of Article 20 of the Law on Science and Studies, the council of a state school of higher education also performs the control and supervision functions relating to responsibility of the school of higher education and its accountability to the public: the council may initiate an audit of economic and financial activities of the school of higher education (Item 9), assesses the compliance of an annual report on the activities of the school of higher education presented by the rector (director) with the strategic plan, the achieved results and their impact (Item 10), ensures the accountability of the school of higher education to the public and its founders as well as its relation with them, each year informs the public about the results of the execution of the strategic action plan of the school of higher education (Item 11), prepares an annual report on its activities and submits it to the Seimas or the Government (Item 14).

3.6. While summing up the legal regulation laid down in Paragraph 2 of Article 20 of the Law on Science and Studies in conjunction with other related provisions of this law, it needs to be noted that:

the council of a state school of higher education is a governance body of that school of higher education which has the greatest powers: most of its functions are related to the adoption of strategic and other most important decisions of governance of the school of higher education; inter alia the said decisions include the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education;

the academic community has no decisive influence in the formation of the council, nor does it when the council adopts strategic and other most important decisions of governance of the school of higher education, inter alia the principal decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education: the academic community directly appoints a minority of council members, while the majority of council members are appointed by the Minister of Education and Science; strategic and other most important decisions of governance of the school of higher education may be adopted by the council without the assent of the council members directly appointed by the academic community; thus, the council of a state school of higher education is not an institution implementing self-government of the academic community, even though it performs the main governance functions related to self-government of the school of higher education;

the council adopts strategic and other most important decisions of governance of the state school of higher education without the participation, or with the participation in only an advisory capacity, of the senate (academic council), which is a collegial governance body directly representing the academic community of the school of higher education and the sole such body implementing self-government of that academic community;

the council adopts certain strategic and other most important decisions of governance upon the proposal of the rector (director)—a one-person governance body appointed by and accountable to the council;

besides the functions of governance of the state school of higher education related to the strategic governance and adoption of the most important decisions of governance of that school, the council also performs the control and supervision functions related to responsibility of the school of higher education and its accountability to the public.

4. From the material of the constitutional justice case at issue, inter alia from the systemic comparative study on higher education in Europe “Higher Education Governance in Europe. Policies, structures, funding and academic staff” published in 2008 by the information network on education in Europe “Eurydice”, it is clear that European states apply various models of self-government and governance of state and state-controlled schools of higher education.

It is noted in this study that all such institutions of higher education in Europe have an executive body, often called the rectorate, which is headed by a rector, director, president or vice-chancellor, as the executive head of the institution. Almost all of the said institutions have a collegial academic body, usually called a senate, academic council or academic board, which is responsible for the educational and research services provided by the institution. In part of the European states decisions concerning important institutional matters—long-term and strategic planning, determining the institutional orientation—are adopted by the academic body. There is a general trend across Europe toward the introduction of advisory and supervisory bodies, which supervise or control operational, educational and financial activities.

From the aforesaid study it is clear that the executive head (a rector, director, president or vice-chancellor) is the main person responsible for the strategic development, organisation and planning of the institution’s activities (including programming); he performs these duties in close cooperation with the respective governance bodies. Most of the states examined in this study have a system by which the head of a state and state-controlled school of higher education is selected and confirmed by the institution’s academic body.

An academic body—a collegial body, usually called a senate, academic council or academic board, is primarily responsible for the educational and research services provided by the state or state-controlled school of higher education. In the majority of European states (e.g., Ireland, Austria, Belgium, Bulgaria, the Czech Republic, Denmark, Estonia, Greece, Spain, Italy, the United Kingdom, Latvia, Poland, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal, Romania, Slovakia, Slovenia, Sweden, Hungary, Germany) in the said institutions of science an academic body is composed of members of the academic community (internal stakeholders).

A decision-making body of a state or state-controlled school of higher education is responsible for long-term and strategic planning, as well as for determining the institutional orientation. There is not an inconsiderable number of European states (e.g., the Czech Republic, Denmark, Estonia, Greece, Italy, Latvia, Poland, the Netherlands, Portugal, Romania, Slovenia, Slovakia, Hungary) in which a separate decision-making body is not formed and its functions are assumed by the academic body. In some of the states (e.g., Spain, most of the German Länder) the academic body is not vested with the competence to adopt the aforesaid important institutional decisions. However, in the majority of European states (e.g., Bulgaria, the Czech Republic, Estonia, Spain, Italy, Latvia, Poland, the Netherlands, Romania, Slovakia, Slovenia, Germany (most of its federal Länder)) the bodies discharging decision-making functions (inter alia academic bodies or special decision-making bodies), which adopt the most important decisions relating to long-term and strategic planning as well as to determining the institutional orientation, are composed exceptionally of internal stakeholders of the institution of science. In some European states the decision-making body is composed of internal as well as external stakeholders (e.g., Norway, France, Finland), or solely of external stakeholders (e.g., Belgium, Liechtenstein, Luxembourg).

In most European states (e.g., Austria, Bulgaria, the Czech Republic, Denmark, Estonia, Spain, Italy, Latvia, the Netherlands, Portugal, Slovakia, Slovenia, Hungary, Germany) state and state-controlled schools of higher education have instituted advisory or supervisory bodies, which supervise or control operational, educational and financial activities, and which are composed solely or largely of external stakeholders. In some European states (e.g., Ireland, Cyprus, Liechtenstein, Luxembourg, Norway, Sweden) the supervisory body performs both the supervisory and decision-making functions.

5. The principle of autonomy of schools of higher education inter alia is entrenched in the Magna Charta Universitatum, which declares inter alia the following fundamental principles:

the university is an autonomous institution at the heart of societies differently organised because of geography and historical heritage; it produces culture by research and teaching; to meet the needs of the world around it, its research and teaching must be morally and intellectually independent of all political authority and economic power;

freedom in research and training is the fundamental principle of university life; governments and universities, each as far as in them lies, must ensure respect for this fundamental requirement; rejecting intolerance and always open to dialogue, a university is an ideal meeting-ground for teachers capable of imparting their knowledge and well equipped to develop it by research and innovation and for students entitled, able and willing to enrich their minds with that knowledge.

6. The group of Members of the Seimas, a petitioner, has had doubts as regards the compliance of Paragraphs 2 and 3 of Article 20 of the Law on Science and Studies with inter alia Paragraph 3 of Article 40 of the Constitution, which consolidates the autonomy of schools of higher education.

In the constitutional justice case at issue it has been held that the autonomy of schools of higher education, guaranteed in Paragraph 3 of Article 40 of the Constitution, implies academic and institutional autonomy. In its ruling of 27 June 1994, the Constitutional Court, while construing the provision of Paragraph 3 of Article 40 of the Constitution, whereby schools of higher education are granted autonomy, held that, historically, the idea of the autonomy of the school of higher education came into being in the Middle Ages, when universities originated as establishments of science and studies. The autonomy meant that the university, to a certain extent, was independent from the state, was striving to dissociate itself from the influence of political power, to create an independent system of regulation of internal activities within the school of higher education. The purpose of such dissociation from the state power was to safeguard the freedom of science, research and teaching, to protect researchers and professors from political influence. The development of the academic autonomy has always been determined by the understanding that science and teaching may normally exist and induce progress only when they are free and independent. Thus appeared the principle of academic freedom, which expressed the striving to protect the researchers’ and teachers’ freedom of scientific thought and its expression from outward influence. Traditionally, the autonomy of the school of higher education is conceived as the right to independently determine and establish in the regulations or statute the organisational and governance structure, relations with other partners, the procedure of research and studies, study programmes and the procedure of student enrolment, to solve other related questions, to use the property given over by the state and other acquired property, to possess the territory, buildings and other property allotted for the needs of research and studies, and to have the guarantee of inviolability. For this purpose, the school of higher education is guaranteed the institutional autonomy, i.e. a certain status, which means that there are certain spheres of activities independent from the control of the executive power (Constitutional Court rulings of 14 January 2002, 5 February 2002, 20 February 2008 and 20 March 2008).

It needs to be noted that academic autonomy and institutional autonomy of schools of higher education are inseparably interrelated, i.e. without academic autonomy one may not guarantee institutional autonomy—the self-government of a school of higher education, while without institutional autonomy one would not ensure academic autonomy, which stems inter alia from the constitutional freedom of science and research. In its decision of 28 October 2009 the Constitutional Court held that the constitutional concept of freedom of science, research and teaching implies the professional independency of the scientific community, which is inseparable from self-government of schools of higher education, which is one of essential conditions for implementation of autonomy of schools of higher education; in order to ensure the constitutional implementation of the principle of academic freedom and the public interests that conditions are created in schools of higher education to offer all-round education of the personality, and that schools of higher education enjoy freedom of teaching, of scientific research and creative activities, the institutions of governance that carry out the functions of self-government of the school of higher education must be consolidated in the governance structure of schools of higher education. Only in this way one would guarantee the imperative of autonomy of schools of higher education, which stems from the Constitution.

Thus, the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies self-government of the academic community (scientific community) of these schools, which is implemented inter alia through governance institutions of a particular school of higher education which represent the said community of that school.

It needs to be noted that self-government of academic community of schools of higher education is to be related inter alia to democratic principles of governance. In the context of the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution the said principles include inter alia the direct participation of the academic community, and its decisive influence, in the formation of the governance institution (institutions) of the school of higher education that is (are) vested with the greatest powers, as well as the limitation of the number of terms of offices of members of the other governance, control and supervision institutions of the school of higher education and the number of terms of offices of the persons discharging functions of one-person institutions or holding the office of the head of a collegial institution. It needs to be emphasised that, while establishing the governance and organisational structure of schools of higher education, inter alia while regulating the reorganisation of that structure, the legislator should heed the democratic principles of governance and create no preconditions for their violation. The legal regulation that is not in line with these principles could create preconditions inter alia for the state to unreasonably interfere with the governance of schools of higher education and/or to deny self-government of the academic community of schools of higher education and, thus, to violate the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution.

7. The autonomy of schools of higher education is inseparable from the purpose of schools of higher education and the purpose of higher education (Constitutional Court decision of 28 October 2009). In its ruling of 5 February 2002 the Constitutional Court noted that the system of higher education ensures the development of science and culture, social sphere and economy. The purpose of higher education is to create, accumulate and disseminate knowledge of science and cultural values, to educate the personality and society. Therefore, the society is concerned with creating proper conditions for institutions of higher education to offer all-round education of the personality and to enjoy freedom of teaching, scientific research and creative activities. Accordingly, schools of higher education must respond to changes of social needs and adjust their activities with the interests of society. Consequently, the principle of autonomy of schools of higher education must be coordinated with the principle of responsibility and accountability to society, other constitutional values, with the duty of schools of higher education to observe the Constitution and laws, with the interaction and harmonisation of interests of schools of higher education and society.

The variety of purposes of higher education determines the fact that there may be different types of schools of higher education; while taking account of this, different limits of autonomy may be established by laws for different types of schools of higher education (taking account of whether they are universities or colleges, whether the founder is the state or other subjects, as well as of other conditions) (Constitutional Court ruling of 10 July 1996). Therefore, the provision of Paragraph 3 of Article 40 of the Constitution may not be construed as prohibiting from establishing, by laws, different limits of autonomy for different types of schools of higher education; laws may provide for different regulation of relations of governance, as well as those of self-government, of schools of higher education (Constitutional Court ruling of 5 February 2002 and decision of 28 October 2009). As the Constitutional Court noted in its ruling of 20 March 2008, the rights enjoyed by schools of higher education may be differentiated (by heeding the Constitution) according to various important criteria, inter alia according to the fact as to what status of these schools of higher education is (i.e. whether they are universities or not), what level of higher education is provided by them to persons studying therein, what study programmes they implement, what their scientific potential is, etc. Thus, it needs to be noted that the provision of Paragraph 3 of Article 40 of the Constitution does not prohibit from differentiating, while taking account of various important criteria, the legal status of schools of higher education of different types, nor the rights and limits of autonomy of schools of higher education of the same type.

In the constitutional justice case at issue it has been mentioned that, while heeding the autonomy of schools of higher education, the legislator has broad discretion to choose and regulate a concrete model of the organisation of science and studies, which meets best the needs of development of the progress of the state and society in a particulate period of time. Thus, the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution does not deny the right of the legislator to regulate activities of schools of higher education, inter alia, to establish, by taking account of the interests of society and its changing needs, various types of institutions of science and studies, different limits of autonomy of these institutions, and the bases of their organisational and governance structure. While not denying the autonomy of schools of higher education, inter alia the self-government thereof based on the democratic principles of governance, the legislator may establish various models of the governance structure of schools of higher education, inter alia provide for one institution directly representing the academic community and implementing self-government of that community, which would be empowered to decide on all the most important questions relating to both the academic and institutional autonomy of the school of higher education, or several such institutions, which would decide on the most important governance questions relating to academic autonomy and institutional autonomy separately, as well as an institution of control and supervision, which would be composed not only of, or not of, members of the academic community, and which in the course of adopting decisions of governance of the school of higher education could perform the advisory functions as well.

7.1. In the constitutional justice case at issue it also needs to be noted that the constitutional guarantee of autonomy of schools of higher education implies that the legislator is obliged to provide for special legal regulation, on the basis of which the greater part of the legal regulation of the said relations should be composed by local legal regulation established by schools of higher education themselves (Constitutional Court ruling of 20 March 2008 and decision of 28 October 2009). Therefore, the general legal regulation established by laws and applicable to all the schools of higher education should not be too much detailed and should not limit the right of schools of higher education, stemming from the principle of their autonomy, to regulate their activities by means of local legal acts.

7.2. It needs to be mentioned that in the Magna Charta Universitatum universities are defined as centres of culture, education and scientific research, which are building up the foundation for the cultural, scientific and technical development so essential for the future of mankind; it is also noted therein that a university is the trustee of the European humanist tradition; its constant care is to attain universal knowledge; to fulfil its vocation it transcends geographical and political frontiers, and affirms the vital need for different cultures to know and influence each other. As mentioned, historically, the idea of the autonomy of the school of higher education came into being in the Middle Ages, when universities originated as establishments of science and teaching; some universities have centuries-long traditions and their activities are characterised by the symbiosis of the humanities, social sciences, natural sciences, mathematics (and more often than not also medicine).

It has been mentioned that the provision of Paragraph 3 of Article 40 of the Constitution does not prohibit from differentiating, while taking account of various important criteria, the legal status of schools of higher education of different types, nor the rights and limits of autonomy of schools of higher education of the same type. While taking account of this, in the context of the constitutional justice case at issue it needs to be noted that, while differentiating, according to various important criteria, the status of schools of higher education, one must take account of inter alia the historical traditions and established traditions of self-government based on democratic principles of governance that are peculiar to a concrete school of higher education, as well as the nurturance of continuity of these traditions. The said inter alia means that, under Paragraph 3 of Article 40 of the Constitution, in certain cases one may, with respect to concrete schools of higher education, establish special norms defining the rights, limits of autonomy, and the organisational and governance structure of these schools, which will differ from those established by the general legal regulation provided for by laws with respect to all the schools of higher education.

8. As mentioned, the legislator has the right to regulate the activities of schools of higher education, inter alia to establish various bases of their organisational and governance structure; when implementing this right, it must heed the Constitution, inter alia not deny the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution.

In the constitutional justice case at issue it needs to be noted that the constitutional concept of autonomy of schools of higher education is disclosed and developed in the provisions of the official constitutional doctrine of the Constitutional Court. As the Constitutional Court noted in its decision of 20 September 2005, the provisions of the Constitution—its norms and principles—are construed in the acts of the Constitutional Court. In these acts, the official constitutional doctrine is created and developed. All law-making and law-applying subjects, including courts, must pay heed to the official constitutional doctrine when they apply the Constitution, they may not interpret the provisions of the Constitution differently from their construction in the acts of the Constitutional Court. Otherwise, the constitutional principle that only the Constitutional Court enjoys powers to construe the Constitution officially would be violated, the supremacy of the Constitution would be disregarded, and preconditions would be created for appearance of inconsistencies in the legal system.

It needs to be mentioned that while adopting new, amending and supplementing already adopted laws and other legal acts, the state institutions that pass them are bound by the concept of the provisions of the Constitution and other legal arguments set forth in the reasoning part of the Constitutional Court ruling (Constitutional Court rulings of 30 May 2003 and 19 January 2005, decision of 20 September 2005, and ruling of 28 March 2006). The legislator, while passing new or amending and supplementing the valid laws, may not disregard inter alia the concept of the provisions of the Constitution and other legal arguments which are set forth in officially published and effective rulings of the Constitutional Court (Constitutional Court ruling of 19 January 2005).

It also needs to be noted that provisions of the official constitutional doctrine are binding on the Constitutional Court itself. As the Constitutional Court has held more than once, the legal position of the Constitutional Court (ratio decidendi) in the corresponding constitutional justice cases has the significance of the precedent (Constitutional Court rulings of 22 October 2007 and 9 February 2010); the Constitutional Court is bound by the precedents that it itself has created (in previous constitutional justice cases) and by the official constitutional doctrine that it itself has formed, which substantiates those precedents (Constitutional Court ruling of 28 March 2006, decisions of 8 August 2006 and 21 November 2006, rulings of 22 October 2007 and 24 October 2007, decisions of 13 November 2007, 6 December 2007 and 1 February 2008, ruling of 20 February 2008).

9. In the context of the constitutional justice case at issue one needs to mention the official constitutional doctrinal provisions formulated in the Constitutional Court decision of 28 October 2009, which develop the constitutional concept of autonomy of schools of higher education as the right inter alia to independently determine the organisational and governance structure of these schools:

the administrative structure of a school of higher education in the broad meaning is understood to be a system of certain single-person and/or collegial institutions that adopt decisions on issues of governance of the school of higher education, that perform the functions of administration and control (for example, rector, vice-rectors, senate, council, administration, etc.); according to their purpose these institutions perform different functions;

the self-governance of schools of higher education must be implemented through the institutions of schools of higher education, the procedure for forming which should not be the one that would not enable the academic community of the school of higher education to influence adoption of decisions on administration of the school of higher education; the institutions of governance of schools of higher education that implement the functions of self-government of the school of higher education must be formed by the schools of higher education themselves, after they establish, on the bases of laws, in their by-laws or statutes the ways and procedure of forming these institutions;

it would be impossible to ensure the autonomy of schools of higher education, inter alia the constitutional principle of academic freedom, if schools of higher education did not enjoy financial independence, i.e. if their governance institutions that implement the functions of self-government of the school of higher education had no possibility to adopt (on the basis of laws) decisions on the use of financial funds and other property for performing their mission; the function of adopting decisions concerning the use of funds and other property based on laws is also to be attributed inter alia to functions of the governance institutions of schools of higher education that implement functions of self-government of the school of higher education;

in order to enable the state to implement its obligation to supervise the activity of educational establishments, as well as to ensure the compatibility of the principle of autonomy of schools of higher education with the principle of responsibility and accountability to society, to guarantee the quality of studies and development of scientific research, in the governance structure of the school of higher education, as a rule, one must provide for an institution which performs the functions of control and supervision and the purpose of which is to ensure the responsibility of the school of higher education and its accountability to society, but which, however, is not directly related to the implementation of the principle of academic freedom;

one may not establish any such legal regulation where the institution that performs the functions of control and supervision and the purpose of which is to ensure responsibility of the school of higher education and its accountability to society, apart from its functions of control and supervision would also perform the functions of governance of the school of higher education, which are assigned to institutions of governance of schools of higher education, which are usually formed from members of the academic community of the school of higher education and which perform the functions of self-government of the school of higher education;

while not denying the principle of autonomy of schools of higher education, the legislator may establish, by laws, the procedure and ways of forming those institutions of the governance structure of the school of higher education that perform the functions of control and supervision and the purpose of which is to ensure the responsibility of the school of higher education and its accountability to society;

the institution that performs the functions of control and supervision and the purpose of which is to ensure the responsibility of the school of higher education and its accountability to society may be formed not only from members of the academic community of the school of higher education—inter alia representatives of institutions of the executive power of the state may be appointed thereto, as well.

10. It has been mentioned that the Constitutional Court will, first of all, inter alia investigate whether Paragraph 2 of Article 20 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

10.1. It has been mentioned that, under the overall legal regulation laid down in Paragraph 2 of Article 20 of the Law on Science and Studies:

the council of a state school of higher education is a governance body of that school of higher education which has the greatest powers: most of its functions are related to the adoption of strategic and other most important decisions of governance of the school of higher education; inter alia the said decisions include the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education;

the academic community has no decisive influence in the formation of the council, nor does it when the council adopts strategic and other most important decisions of governance of the school of higher education, inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education; thus, the council of a state school of higher education is not an institution implementing self-government of the academic community, even though it performs the main governance functions related to self-government of the school of higher education;

besides the functions of governance of the state school of higher education related to the adoption of strategic and other most important decisions of governance of the school of higher education, the council also performs the control and supervision functions related to responsibility of the school of higher education and its accountability to the public.

10.2. As mentioned, the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies self-government of the academic community (scientific community) of these schools, which is inter alia implemented through the governance institutions of a particular school of higher education that represent the said community of that school; such self-government is to be linked to democratic principles of governance, inter alia to the direct participation of the academic community, and its decisive influence, in the formation of the governance institution (institutions) of the school of higher education that is (are) vested with the greatest powers; while establishing the governance and organisational structure of schools of higher education, the legislator should heed the democratic principles of governance and create no preconditions for their violation.

It has also been mentioned that self-governance of schools of higher education must be implemented through their institutions, the procedure for forming which may not be such that would not enable the academic community of the school of higher education to influence the adoption of decisions on administration of the school of higher education; it would be impossible to ensure the autonomy of schools of higher education, inter alia the constitutional principle of academic freedom, if schools of higher education did not enjoy financial independence, i.e. if their governance institutions that implement the functions of self-government of the school of higher education had no possibility to adopt (on the basis of laws) decisions on the use of financial funds and other property for the purpose of implementing their mission.

It has also been mentioned that in the governance structure of a school of higher education one must, as a rule, provide for such an institution that performs the functions of control and supervision and the purpose of which is to ensure the responsibility of the school of higher education and its accountability to society; one may not establish any such legal regulation where the said institution, apart from its functions of control and supervision, would also perform the functions of governance of the school of higher education, which are assigned to the governance institutions of schools of higher education which are usually formed from members of the academic community of the school of higher education and which perform the functions of self-government of the school of higher education.

10.3. Thus, the said overall legal regulation laid down in Paragraph 2 of Article 20 of the Law on Science and Studies, under which the council of a state school of higher education, in the formation of which the academic community has no decisive influence and which is not an institution implementing self-government of the school of higher education, is assigned the functions typical of self-government of schools of higher education, violates the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.

It needs to be noted that the functions of governance provided for in Paragraph 2 of Article 20 of the Law on Science and Studies per se would not contradict the Constitution if they were assigned to an institution that directly represents the academic community and implements self-government of that community. It also needs to be noted that neither would Paragraph 3 of Article 40 of the Constitution be violated by such legal regulation, under which such a council of a state school of higher education, the procedure for forming which is set in Paragraph 3 of Article 20 of the Law on Science and Studies, would perform only the control and supervision functions related to responsibility of the school of higher education and its accountability to society, as well as advisory functions.

11. Taking account of the arguments set forth, one is to draw a conclusion that Items 1 and 2 of Paragraph 2 of Article 20 of the Law on Science and Studies, Item 3 of the same paragraph, to the extent that it provides that the council of a state school of higher education approves plans for reorganisation of the structure of the school of higher education presented by the rector (director), Item 4, to the extent that it provides that the council of a state school of higher education sets the procedure for managing, using and disposing of funds (also funds allocated for work remuneration of the school’s leadership and other employees) and assets of the school of higher education and approves key decisions related thereto, also Items 5, 6, 7 and 8, Item 9, to the extent that it provides that the council of a state school of higher education approves an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement presented by the rector (director), Item 10, to the extent that it provides that the council of a state school of higher education approves an annual report on the activities of the school of higher education presented by the rector (director), Item 13, as well as Item 15, to the extent that it provides that the council of a state school of higher education performs other functions of governance of the school of higher education prescribed in its statute and other legal acts, are in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

12. It has been mentioned that the Constitutional Court inter alia will investigate whether Paragraph 3 of Article 20 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

12.1. It has been mentioned that self-governance of schools of higher education must be implemented through their institutions the procedure for forming which may not be such that would not enable the academic community of the school of higher education to influence the adoption of decisions on administration of the school of higher education; the institutions of governance of schools of higher education that implement the functions of self-government of the school of higher education must be formed by the schools of higher education themselves, after they establish, on the basis of laws, in their by-laws or statutes the ways and procedure for forming these institutions.

It has also been mentioned that, while not denying the principle of autonomy of schools of higher education, the legislator may establish, by laws, the procedure and ways of forming such institutions of the governance structure of the school of higher education that perform the functions of control and supervision and the purpose of which is to ensure the responsibility of the school of higher education and its accountability to society; the institution that performs the functions of control and supervision and the purpose of which is to ensure the responsibility of the school of higher education and its accountability to society may be formed not only from members of the academic community of the school of higher education—inter alia representatives of institutions of the executive power of the state may be appointed thereto, as well.

It has also been mentioned that, under the overall legal regulation laid down in Paragraph 2 of Article 20 of the Law on Science and Studies, the council of a state school of higher education is a governance body of that school of higher education which has the greatest powers. While summing up the legal regulation laid down in Paragraph 3 of Article 20 of the Law on Science and Studies, it has also been mentioned that the academic community of a state school of higher education has no decisive influence in the formation of the council of that school of higher education; in the formation of the council of a state school of higher education a decisive influence is wielded by the Minster of Education and Science; strategic and other most important decisions of governance of the state school of higher education may be adopted by the council without the assent of the council members directly appointed by the academic community.

12.2. Thus, the procedure for forming the council of a state school of higher education, which is set in Paragraph 3 of Article 20 of the Law on Science and Studies, would be in conflict with the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution if the council were assigned the functions typical of self-government of schools of higher education.

However, it needs to be noted that in its decision of 8 August 2006 and in its rulings of 21 September 2006 and 20 March 2008 the Constitutional Court held that such legal situations are also possible where the elimination of the provisions conflicting with provisions of legal acts of higher power, inter alia the Constitution, by means of a Constitutional Court ruling from the legal system, with respect to application of law, virtually amounts to changing the overall legal regulation, i.e. the establishment of a different, gapless overall legal regulation.

Once it has been held in the constitutional justice case at issue that the provisions of Paragraph 2 of Article 20 of the Law on Science and Studies, to the extent that they provide for the governance functions of the council of a state school of higher education, are in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law, the elimination of these provisions from the legal system, with respect to application of law, virtually amounts to the change of the overall legal regulation and the establishment of thus far different overall legal regulation: the council of a state school of higher education, the procedure for forming which is set in Paragraph 3 of Article 20 of the Law on Science, may continue to perform the control and supervision functions related to responsibility of the school of higher education and its accountability to society and provided for in Paragraph 2 of Article 20 of this law, as well as advisory functions. Such, as amended by this Constitutional Court ruling, overall legal regulation established in Paragraph 3 of Article 20 of the Law on Science is in line with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

12.3. Taking account of the arguments set forth, one is to draw a conclusion that there is no legal ground to maintain that Paragraph 3 of Article 20 of the Law on Science and Studies per se is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

12.4. In this context it needs to be noted that the regulation of the procedure for the formation of the council of a state school of higher education as a body of control and supervision should create legal preconditions to appoint as members of this body inter alia the representatives of institutions of the executive power of the state, also the persons connected with the school of higher education and concerned with its successful activities in the course of implementation of its aims and mission (for example, representatives of organisations of benefactors, social partners or the alumni of the school of higher education).

13. It has been mentioned that from the arguments of the petitioner it is clear that the petitioner has also had doubts as regards the constitutionality of other aforementioned provisions of Article 20, as well as Articles 19, 21 and 22, of the Law on Science and Studies, which relate to the provisions of Paragraph 2 of Article 20 that regulate the functions of the council of a state school of higher education. Therefore, the Constitutional Court will further investigate whether the provision of Paragraph 1 of Article 20 of the Law on Science, whereby the council is a governance body of a state school of higher education, also the provisions of Paragraphs 1 and 2 of Article 19 of this law, to the extent that these paragraphs consolidate the council as a collegial governance body of a state university or state college, the provision of Paragraph 1 of Article 21, whereby the senate (academic council) of a state school of higher education is the governance body of academic affairs of the school of higher education, the provisions of Paragraphs 2 and 3 of the same article, which regulate the functions of the university senate and the academic council of a college, the provisions of Paragraph 2 of Article 22, which regulate the functions of the rector (director), the provisions of Paragraphs 3, 4 and 7 of the same article concerning the procedure for electing, appointing and dismissing the rector (director), as well as the provisions of Paragraph 9 relating to the accountability of the rector (director), are not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

14. It has been mentioned that, under Paragraph 1 of Article 20 of the Law on Science and Studies, the council is a governance body of a state school of higher education, and that Paragraphs 1 and 2 of Article 19 of this law inter alia provide that the council is a collegial governance body of a state university or state college.

In the constitutional justice case at issue it has been held that such overall legal regulation, laid down in Paragraph 2 of Article 20 of the Law on Science and Studies, under which the council of a state school of higher education, in the formation of which the academic community has no decisive influence and which is not an institution implementing self-government of the school of higher education, is assigned the functions typical of self-government of schools of higher education, violates the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution. While applying the same arguments, it is also to be held that Paragraph 1 of Article 19 of the Law on Science and Studies, to the extent that it consolidates the council as a collegial governance body of a state university, Paragraph 2 of Article 19, to the extent that it consolidates the council as a collegial governance body of a state college, as well as Paragraph 1 of Article 20 thereof, are in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

15. It has been mentioned that Paragraph 1 of Article 21 of the Law on Science and Studies prescribes that the senate (academic council) of a state school of higher education is the governance body of academic affairs of the school of higher education, and that Paragraphs 2 and 3 of this article establish the functions of the university senate and those of the academic council of a college.

15.1. It has been mentioned that the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies self-government of the academic community (scientific community) of these schools, which is to be related inter alia to democratic principles of governance; in the context of the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution these principles include inter alia the direct participation of the academic community, and its decisive influence, in the formation of the governance institution (institutions) of the school of higher education that is (are) vested with the greatest powers.

It has also been mentioned that it would be impossible to ensure autonomy of schools of higher education, inter alia the constitutional principle of academic freedom, if schools of higher education did not enjoy financial independence, i.e. if their governance institutions that implement the functions of self-government of the school of higher education had no possibility to adopt (on the basis of laws) decisions on the use of financial funds and other property for the purpose of implementing their mission.

15.2. It has been mentioned that, under the legal regulation laid down in the Law on Science and Studies, the senate (academic council) of a state school of higher education is a collegial governance body which directly represents the academic community of the school of higher education and is the sole such body implementing self-government of the academic community.

It has also been mentioned that the senate (academic council) does not participate, or participates only in an advisory capacity, in the adoption of strategic and other most important decisions of governance of the state school of higher education, the adoption of which, under Paragraph 2 of Article 20 of the Law on Science and Studies, is ascribed to the council. The said decisions include inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education.

It has also been mentioned that the academic community has no decisive influence in the formation of the council, nor does it when the council adopts strategic and other most important decisions of governance of the school of higher education, inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education; the academic community of a state school of higher education has no decisive influence on decisions of the council; the council of a state school of higher education is not an institution implementing self-government of the academic community.

15.3. It has been mentioned that the provision of Paragraph 3 of Article 40 of the Constitution may not be construed as prohibiting from establishing, by laws, different limits of autonomy for different types of schools of higher education; laws may provide for different regulation of relations of governance, as well as those of self-government, of schools of higher education; while not denying the autonomy of schools of higher education, inter alia their self-government based on democratic principles of governance, the legislator may establish various models of the governance structure of schools of higher education.

It has been mentioned that the functions of governance provided for in Paragraph 2 of Article 20 of the Law on Science and Studies per se would not contradict the Constitution if these functions were assigned to an institution that directly represents the academic community and implements self-government of that community. It has also been mentioned that such legal regulation under which the said functions would be performed by the senate (academic council) of a state school of higher education, which, as mentioned, is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of the academic community, would not be in conflict with the Constitution.

Thus, if the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, then such legal regulation under which the competence of the senate (academic council) is confined only to academic affairs and the senate (academic council) does not participate, or participates only in an advisory capacity, in adopting strategic and other most important decisions of governance of the state school of higher education, inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education, is incompatible with the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.

15.3.1. Taking account of the arguments set forth, one is to draw the following conclusions:

Paragraph 1 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this paragraph provides that the senate (academic council) of a state school of higher education is a governance body of only academic affairs, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law;

Item 1 of Paragraph 2 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this item prescribes that the senate of a state university presents proposals to the rector regarding the funding of programmes of studies, scientific research and experimental (cultural, social) development, art programmes, and reorganisation of the university structure, which is necessary for implementation of those programmes, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law;

Item 1 of Paragraph 3 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this item prescribes that the academic council of a state college presents proposals to the director regarding the funding of study programmes and reorganisation of the college structure, which is necessary for implementation of those programmes, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

15.3.2. In the constitutional justice case at issue it has been held that Item 6 of Paragraph 2 of Article 20 of the Law on Science and Studies, which prescribes that the council of a state school of higher education sets the principles for selection and assessment of employees of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

While taking account of this, it also needs to be held that Item 4 of Paragraph 2 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this item prescribes that the senate of a state university, while approving the qualification requirements for positions of teaching staff members and scientific staff members and laying down the procedure for performance evaluation of teaching staff members and scientific staff members and for organisation of a competition to fill a position, must observe the principles for selection and assessment of university employees set by the council, as well as Item 4 of Paragraph 3 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this item prescribes that the academic council of a state college, while approving the qualification requirements for positions of teaching staff members and scientific staff members and laying down the procedure for performance evaluation of teaching staff members and scientific staff members and for organisation of a competition to fill a position, must observe the principles for selection and assessment of college employees set by the council, are also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

15.4. It has been mentioned that, if the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, then such legal regulation under which the competence of the senate (academic council) is confined only to academic affairs and the senate (academic council) does not participate, or participates only in an advisory capacity, in adopting strategic and other most important decisions of governance of the state school of higher education, inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education, is incompatible with the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.

It has also been mentioned that the functions of governance provided for in Paragraph 2 of Article 20 of the Law on Science and Studies per se would not contradict the Constitution if these functions were assigned to an institution that directly represents the academic community and implements self-government of that community.

15.4.1. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this paragraph does not establish that the senate of a state university adopts key strategic and other most important decisions of governance of the university, inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

15.4.2. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 3 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this paragraph does not establish that the academic council of a state college adopts key strategic and other most important decisions of governance of the college, inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

16. It has been mentioned that Paragraph 2 of Article 22 of the Law on Science and Studies lays down the functions of the rector (director), that provisions of Paragraphs 3, 4 and 7 of this article relate to the procedure for electing, appointing and dismissing the rector (director), and that provisions of Paragraph 9 relate to the accountability of the rector (director).

16.1. Item 5 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia prescribes that the rector (director) of a state school of higher education submits to the council for approval the study cost and the rates of fees that are not directly related to the implementation of a study programme.

In the constitutional justice case at issue it has been held that Item 7 of Paragraph 2 of Article 20 of the Law on Science and Studies, wherein it is established that the council of a state school of higher education, on the recommendation of the rector (director), sets the study cost and the rates of fees that are not directly related to the implementation of a study programme, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law. While taking account of this, it also needs to be held that Item 5 of Paragraph 2 of Article 22 of the Law on Science and Studies, to the extent that it prescribes that the rector (director) of a state school of higher education submits to the council for approval the study cost and the rates of fees that are not directly related to the implementation of a study programme, is also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

16.2. Item 7 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia prescribes that the rector (director) of a state school of higher education submits to the council for approval an annual report on the activities of the school of higher education, an annual statement of revenue and expenditure and a report on the execution of this statement.

In the constitutional justice case at issue it has been held that Item 9 of Paragraph 2 of Article 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a state school of higher education approves an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement presented by the rector (director), is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law. While taking account of this, it also needs to be held that Item 7 of Paragraph 2 of Article 22 of the Law on Science and Studies, to the extent that it prescribes that the rector (director) of a state school of higher education submits to the council for approval an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement, is also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

16.3. Item 8 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia provides that the rector (director) of a state school of higher education acquaints the senate (academic council) with an annual report on the activities of the school of higher education. In this context it needs to be noted that, under Item 10 of Paragraph 2 of Article 20 of the Law on Science and Studies, an annual report on the activities of the school of higher education is approved by the council.

In the constitutional justice case at issue it has been held that Item 10 of Paragraph 2 of Article of 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a state school of higher education approves an annual report on the activities of the school of higher education presented by the rector (director), is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law. In the constitutional justice case at issue it has also been held that Paragraph 2 of Article 21 of the Law on Science and Studies, to the extent that it does not establish that the senate of a state university adopts the key strategic and other most important decisions of governance of the university, inter alia approves an annual report on the activities of the university, as well as Paragraph 3 of Article 21 of the Law on Science and Studies, to the extent that it does not establish that the academic council of a state college adopts key strategic and other most important decisions of governance of the college, inter alia approves an annual report on the activities of the college, are also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

While taking account of this, it also needs to be held that Item 8 of Paragraph 2 of Article 22 of the Law on Science and Studies, to the extent that it prescribes that the rector (director) of a state school of higher education acquaints the senate (academic council) with an annual report on the activities of the school of higher education, is also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

16.4. Item 9 of Paragraph 2 of Article 22 of the Law on Science and Studies provides that the rector (director) of a state school of higher education submits to the council for approval a strategic action plan of the school of higher education and plans for reorganisation of the structure of the school of higher education.

In the constitutional justice case at issue it has been held that Item 1 of Paragraph 2 of Article of 20 of the Law on Science and Studies, which inter alia prescribes that the council of a state school of higher education approves a strategic action plan presented by the rector (director), as well as Item 3 of the same paragraph, to the extent that it prescribes that the council approves plans for reorganisation of the structure of the school of higher education presented by the rector (director), are in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law. While taking account of this, it also needs to be held that Item 9 of Paragraph 2 of Article 22 of the Law on Science and Studies is also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

16.5. It has been mentioned that Paragraphs 3, 4 and 7 of Article 22 of the Law on Science and Studies establish the procedure for the election, appointment to office and dismissal from office of the rector (director) of a state school of higher education.

Under Paragraph 3 of Article 22 of the Law on Science and Studies, the rector (director) is elected by an open competition, appointed and dismissed by the council. Under Paragraph 4 of this article, the council announces an open competition to fill a position of the rector (director); the rector (director) is considered to be elected if at least three-fifths of all the council members vote for him. Under Paragraph 7 of the same article, the chairman of the council or any other person authorised by the council signs in the name of the school of higher education an employment contract with the elected rector (director) for the duration of his term of office.

In the constitutional justice case at issue it has been held that Item 5 of Paragraph 2 of Article 20 of the Law on Science and Studies, wherein it is prescribed that the council of a state school of higher education sets the procedure for organising election of the rector (director) of the school of higher education through open competition, and elects, appoints to the office and dismisses from it the rector (director) of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

While taking account of this, it also needs to be held that Paragraphs 3, 4 and 7 of Article 22 of the Law on Science and Studies are also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

16.6. It has been mentioned that Paragraph 9 of Article 22 of the Law on Science and Studies relates to the accountability of the rector (director) of the school of higher education. This paragraph provides that if an annual report on the activities of the school of higher education or an annual report on the execution of the statement of revenue and expenditure presented by the rector (director) is not approved by a majority of the council members at a meeting of the council, the rector (director) may be dismissed from office in accordance with the procedure laid down by legal acts.

In the constitutional justice case at issue it has been held that Item 9 of Paragraph 2 of Article of 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a state school of higher education approves a report on the execution of a statement of revenue and expenditure of the school of higher education presented by the rector (director), as well as Item 10 of this paragraph, to the extent that it prescribes that the council of a state school of higher education approves an annual report on the activities of the school of higher education presented by the rector (director), are in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law. While taking account of this, it needs to be held that Paragraph 9 of Article 22 of the Law on Science and Studies, to the extent that it provides that the rector (director) may be dismissed from office in accordance with the procedure laid down by legal acts if an annual report on the activities of the school of higher education or an annual report on the execution of the statement of revenue and expenditure presented by the rector (director) is not approved by a majority of the council members at a meeting of the council, is also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

VIII

On the compliance of Paragraph 5 of Article 95 of the Law on Science and Studies with Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 5 of Article 95 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

2. Paragraph 5 of Article 95 of the Law on Science and Studies provides:

Paragraphs 2 and 12 of Article 20, Paragraphs 2 and 3 of Article 21, Paragraphs 2 and 7 of Article 22 of this Law shall be applied to the governance bodies of those state schools of higher education whose legal form is a budgetary establishment, where such bodies are formed in accordance with the procedure laid down by this Law. The governance bodies of a state school of higher education, whose legal form is a budgetary establishment, elected or formed before the entry into force of this Law shall perform their duties in accordance with the procedure laid down by the statute of the school of higher education, inasmuch as it is in compliance with this part of the paragraph, until the expiry of the term of office set at the moment the said bodies were formed, but not longer than until the reorganisation of the state school of higher education into a public establishment, with the exception of state colleges in which the governance bodies were formed not earlier than the year 2007, or until the formation (election) of new governance bodies, or until 31 December 2011. Members who are appointed by scientists, teaching staff, administration and other employees to the first councils of state schools of higher education set up in accordance with the procedure laid down by this Law shall be appointed by way of election in accordance with the procedure laid down by the Ministry of Education and Science. Upon the entry into force of this Law, the rector (director) of a state school of higher education shall be elected (appointed) only by that council of the state school of higher education which has been set up in accordance with the procedure laid down by this Law. Where there is no council of a state school of higher education set up in accordance with the procedure laid down by this Law, the powers of the rector (director) of the state school of higher education shall be extended until the election of a new rector (director) of the state higher education institution, but not longer than for six month.”

3. Thus, the provisions of Paragraph 5 of Article 95 of the Law on Science and Studies are related to the reorganisation of the state schools of higher education, whose legal form is a budgetary establishment, into public establishments—the only legal form of state school of higher education under Paragraph 4 of Article 6 of the Law on Science and Studies, in particular—to the formation of new bodies of governance established in the Law on Science and Studies in reorganising state schools of higher education into public establishments and to the termination of the powers of the bodies of governance (formed under the legal regulation valid prior to the entry into force of the Law on Science and Studies) of state schools of higher education, whose legal form was a budgetary establishment. It needs to be noted that, under the legal regulation established in the Law on Science and Studies, not only the legal form of state schools of higher education, but also the organisational and governance structure thereof, inter alia the powers of collegial bodies of governance, are changed. Taking account of the overall legal regulation established in the Law on Science and Studies, such reorganisation of the organisational and governance structure of schools of higher education is an essential one.

3.1. Paragraph 5 of Article 95 of the Law on Science and Studies inter alia provides that the governance bodies of a state school of higher education, whose legal form is a budgetary establishment, elected or formed before the entry into force of this law shall perform their duties either until the expiry of the term of office set at the moment the said bodies were formed, or until the reorganisation of the state school of higher education into a public establishment, if it has been reorganised before the expiry of the term of office of its bodies of governance (with the exception of state colleges in which the governance bodies were formed not earlier than the year 2007), or until the formation (election) of new governance bodies, or until 31 December 2011.

Thus, under Paragraph 5 of Article 95 of the Law on Science and Studies, there exist two grounds for terminating, by law, the powers of the bodies of governance, elected or formed prior to the entry into force of this law, of a state school of higher education whose legal form is a budgetary establishment, before the expiry of their term of office established at the time of forming thereof:

if the state school of higher education was reorganised before the expiry of the term of office of its bodies of governance (with the exception of state colleges in which the governance bodies were formed not earlier than the year 2007);

if the term of office of its bodies of governance has not expired, till 31 December 2011, on other grounds established in Paragraph 5 of Article 95 of the Law on Science and Studies.

In this context it needs to be mentioned that, under Paragraph 8 of Article 93 of the Law on Science and Studies, state schools of higher education must be reorganised from budgetary establishments into public establishments until 31 December 2011. Thus, the first of the aforesaid grounds, which is the termination, by law, of the powers of the bodies of governance (elected or formed under the legal regulation valid prior to the entry into force of this law) of a state school of higher education whose legal form is a budgetary establishment, i.e. reorganisation of a state school of higher education into a public establishment, provided it is reorganised before the expiry of the term of office of its bodies of governance, is related to reorganisation of the state school of higher education into a public establishment within the time period established in Paragraph 8 of Article 93 of the Law on Science and Studies. The second aforesaid ground, which is termination, on 31 December 2011, by law, of the powers of the bodies of governance (elected or formed under the legal regulation valid prior to the entry into force of this law) of a state school of higher education whose legal form is a budgetary establishment, would be applied in case the state school of higher education has not been reorganised into a public establishment within the time period established in Paragraph 8 of Article 93 of the law on Science and Studies.

3.2. In addition, Paragraph 5 of Article 95 of the Law on Science and Studies provides that, upon the entry into force of this law, the rector (director) of a state school of higher education shall be elected (appointed) only by that council of the state school of higher education which has been set up in accordance with the procedure laid down by this law, and where there is no such council, the powers of the rector (director) of the state school of higher education shall be extended until the election of a new rector (director) of the state higher education institution, but not longer than for six month.

4. The group of Members of the Seimas, a petitioner, is substantiating its doubts regarding the compliance of Paragraph 5 of Article 95 of the Law on Science and Studies with the Constitution by the fact that the final date, 31 December 2011, of forming the bodies of governance of schools of higher education subsequent to the Law on Science and Studies and reorganisation of schools of higher education into public establishments may not be applied to the bodies of governance (inter alia rectors) of schools of higher education that had been appointed to office and working under employment contracts until the end of their term of office. For example, the end of the term of office of rectors in various Lithuanian universities does not coincide with the date established in this law, since the said term of office takes a longer time, therefore, the persons admitted to work under employment contracts for a 5-year term of office before the entry into fore of the Law on Science and Studies should work till the end of their term of office. In the opinion of the petitioner, the legal regulation established in Paragraph 5 of Article 95 of the Law on Science and Studies, where the rector is dismissed before the end of his term of office, is in conflict with Paragraph 1 of 48 Article of the Constitution and the constitutional principle of a state under the rule of law. The petitioner has substantiated its arguments by the official constitutional doctrine in which inter alia the content of the constitutional principle of a state under the rule of law, that of the imperatives of protection of legitimate expectation, legal certainty and legal security are disclosed.

Thus, from the arguments of the petitioner, it is clear that it is doubting as regards the constitutionality of Paragraph 5 of Article 95 of the Law on Science and Studies insofar as it is established therein that the powers of the bodies of governance, elected or formed before the entry into force of this law, of a state school of higher education, whose legal form is a budgetary establishment, are terminated on 31 December 2011, if such powers have not expired on other grounds established in this paragraph.

5. It has been mentioned that the petitioner has doubts regarding the compliance of Paragraph 5 of Article 95 of the Law on Science and Studies inter alia with the constitutional principle of a state under the rule of law.

5.1. The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is a universal principle, upon which the entire legal system of Lithuania and the Constitution of the Republic of Lithuania itself are based, that the constitutional principle of a state under the rule of law is to be construed inseparably from the striving for an open, just, and harmonious civil society and state under the rule of law, which is declared in the Preamble to the Constitution, and that the content of the aforementioned constitutional principle reveals itself in various provisions of the Constitution.

In the constitutional justice case at issue it needs to be noted that the content of the constitutional principle of a state under the rule of law inter alia is to be disclosed by applying the principle of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.

5.2. In the constitutional justice case at issue it has been mentioned that, historically, the idea of the autonomy of the school of higher education came into being in the Middle Ages, when universities originated as establishments of science and studies; the autonomy meant that the university, to a certain extent, was independent from the state, was striving to dissociate itself from the influence of political power, to create an independent system of regulation of internal activities within the school of higher education. The purpose of such dissociation from the state power was to safeguard the freedom of science, research and teaching, to protect researchers and professors from political influence (Constitutional Court ruling of 27 June 1994). It has also been mentioned that, traditionally, the autonomy of the school of higher education is conceived as the right to independently determine and establish in the regulations or statute the organisational and governance structure, relations with other partners, the procedure of research and studies, study programmes, the procedure of student enrolment, to solve other related questions, to use the property given over by the state and other acquired property, to possess the territory, buildings and other property allotted for the needs of research and studies, and to have the guarantee of inviolability of the territory, buildings, and other property meant for scientific and study matters. For this purpose, the school of higher education is guaranteed the institutional autonomy, i.e. a certain status, which means that there are certain spheres of activities independent from the control of the executive power (Constitutional Court rulings of 14 January 2002, 5 February 2002, 20 February 2008 and 20 March 2008).

5.3. In this context it needs to be mentioned that in the Magna Charta Universitatum it is noted that the university is an autonomous institution; to meet the needs of the world around it, its research and teaching must be morally and intellectually independent of all political authority or economic power.

5.4. In the constitutional justice case at issue it was noted that the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies self-government of the academic community (scientific community) implemented inter alia through the institutions of governance of the school of higher education, which represent this community; self-government of the academic community of schools of higher education is to be related inter alia to the democratic principles of governance; in the context of the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution, these principles include inter alia direct participation of the academic community and its decisive influence in forming the governance institution(s) of the school of higher education having the biggest powers; such principles also include limitation of the number of terms of office of members of other institutions of governance, control and supervision of the school of higher education, as well as those of the persons discharging the functions of one-person institutions or the duties of heads of collegial institutions.

In the constitutional justice case at issue it has also been emphasised that, while establishing the organisational and governance structure of schools of higher education, inter alia regulating reorganisation thereof, the legislator should heed the democratic principles of governance and not create preconditions for violating them. The legal regulation that is not in line with these principles could create preconditions inter alia for the state to unreasonably interfere with the governance of schools of higher education and/or to deny self-government of the academic community of schools of higher education and, thus, to violate the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution.

5.5. In this context it needs to be noted that, while heeding the aforementioned democratic principles of governance, the reorganisation of the organisational and governance structure of schools of higher education must be regulated in a way not denying the decisive influence of the academic community in forming the governance institution(s) of the school of higher education having the biggest powers and in adopting the most important decisions of governance of the school of higher education, and in a way whereby the powers of the governance institutions directly representing the academic community, which were formed under the legal regulation valid prior to the reorganisation and which are implementing self-government of the academic community, would not be discontinued in violation of the Constitution.

It also needs to be mentioned that, while regulating and carrying out the reorganisation of the organisational and governance structure of schools of higher education, one may not create preconditions for disregarding inter alia the limitation of the number of terms of office of members of institutions of governance, control and supervision of the school of higher education, as well as those of the persons discharging the functions of one-person institutions or the duties of heads of collegial institutions.

5.6. The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is especially capacious; it comprises a range of various interrelated imperatives. The constitutional principle of a state under the rule of law must be followed both in law-making and implementation of law (Constitutional Court rulings of 6 December 2000, 13 December 2004, 16 January 2006, and 13 August 2007).

The Constitutional Court has held more than once that inseparable elements of the constitutional principle of a state under the rule of law are the protection of legitimate expectations, legal certainty and legal security. The constitutional principles of protection of legitimate expectations, legal certainty and legal security imply the obligation of the state to secure the certainty and stability of the legal regulation, to protect the rights of persons, to respect the legitimate interests and legitimate expectations. These principles inter alia imply that the state must fulfil all its undertaken obligations to the person. If the protection of legitimate expectations, legal certainty and legal security were not secured, the trust of the person in the state and law would not be guaranteed.

Thus, along with the other requirements, the principle of a state under the rule of law, which is entrenched in the Constitution, implies a duty of the state to guarantee certainty and stability of legal regulation as well as protection of legitimate expectations (Constitutional Court ruling of 24 January 2003).

5.7. The Constitutional Court has also held more than once that the essence of the constitutional principle of a state under the rule of law is the rule of law; the constitutional imperative of the rule of law means that the freedom of state power is limited by law, which must be obeyed by all the entities of legal relations, including the law-making entities; the discretion of all the law-making entities is limited by the supreme law—the Constitution.

In this context it needs to be noted that, in its rulings of 11 May 1999 and 24 January 2003, the Constitutional Court held that in a democratic state under the rule of law the officials and institutions must follow law. Carrying out the functions which are important to society and the state, the officials must not face any threat if they fulfil their duties without violations of laws.

In the context of the constitutional justice case at issue it also needs to be noted that these provisions of the official constitutional doctrine are applicable mutatis mutandis also to the governance bodies of state schools of higher education, since, as mentioned, the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution inter alia means that the legal regulation may not create preconditions inter alia for the state to unreasonably interfere with the governance of schools of higher education and/or to deny self-government of the academic community of schools of higher education.

While taking account of this, it also needs to be noted that the legislator, while implementing the constitutional powers to establish the length of powers (and grounds for expiration thereof) of bodies of governance of a state school of higher education, is bound by the Constitution, thus, also by the principle of a state under the rule of law implying legal certainty, legal stability, protection of legitimate expectations, also by the prohibition emerging from Paragraph 3 of Article 40 of the Constitution to restrict self-government of schools of higher education, and to violate the continuity of the governance bodies of schools of higher education which are implementing this self-government. Therefore, under the Constitution, the legislator may establish only such grounds for termination of powers of the governance bodies (and members thereof) of schools of higher education before the expiry of the term of office thereof due to which they generally cannot continue to hold office (inter alia due to such legal fact like the age established by law, change of the place of work, liquidation of the school of higher education or an essential reorganisation of the organisational and governance structure thereof). It needs to be noted that this requirement is applicable mutatis mutandis to members of the academic community of schools of higher education (teachers, scientific workers and other researchers).

6. It has been mentioned that the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution inter alia means that the legal regulation may not create preconditions inter alia for the state to unreasonably interfere with the governance of schools of higher education and/or to deny self-government of the academic community of schools of higher education. It has also been mentioned that, under the Constitution, the legislator may establish only such grounds for termination of powers of the governance bodies (and members thereof) of schools of higher education before the expiry of the term of office thereof due to which they generally cannot continue to hold office, inter alia due to an essential reorganisation of the organisational and governance structure of schools of higher education.

It has also been mentioned that, under Paragraph 5 of Article 95 of the Law on Science and Studies, the powers of the bodies of governance, elected or formed before the entry into force of this law, of a state school of higher education, whose legal form is a budgetary establishment, are terminated by law on 31 December 2011 before the expiry of their term of office established at the moment they were formed, if such powers have not expired on other grounds established in this paragraph. It has also been mentioned that the provisions of Paragraph 5 of Article 95 of the Law on Science and Studies are related to reorganisation of state schools of higher education, whose legal form is a budgetary establishment, into public establishments; they are also related to such reorganisation of their organisational and governance structure, inter alia of powers of collegial governance bodies, which is an essential one. Thus, the ground, established in Paragraph 5 of Article 95 of the Law on Science and Studies, for termination, on 31 December 2001, of the powers of governance bodies of the state school of higher education whose legal form is a budgetary establishment, if such powers have not expired on other grounds established in this paragraph, per se would not be in conflict with the Constitution, if the essential reorganisation (related to the said ground) of the organisational and governance structure of schools of higher education were also in line with the requirements arising from the Constitution.

6.1. In this context it needs to be noted that, as mentioned, while regulating the organisational and governance structure of schools of higher education, inter alia reorganisation thereof, the legislator should heed the democratic principles of governance and not create preconditions for violating them; the legal regulation that is not in line with these principles could create preconditions inter alia for the state to unreasonably interfere with the governance of schools of higher education and/or to deny self-government of the academic community of schools of higher education and, thus, to violate the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution; while heeding the democratic principles of governance, the reorganisation of the organisational and governance structure of schools of higher education must be regulated in a way not denying the decisive influence of the academic community in forming the governance institution(s) of the school of higher education having the biggest powers and in adopting the most important decisions of governance of the school of higher education.

6.2. In the constitutional justice case at issue it has been held that the overall legal regulation established in Paragraph 2 of Article 20 of the Law on Science and Studies, whereby the functions characteristic of self-government of a school of higher education are commissioned to the council of a state school of higher education in the course of forming which the academic community does not have a decisive influence and which is not an institution implementing self-government of the school of higher education, violates the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution. While taking account of this, the essential reorganisation of the organisational and governance structure of state schools of higher education is not in line with the requirements arising from the Constitution. Therefore, the ground (established in Paragraph 5 of Article 95 of the Law on Science and Studies and related to the said reorganisation) for termination, on 31 December 2001, of the powers of governance bodies, elected or formed before the entry into force of this law, of the state school of higher education whose legal form is a budgetary establishment, if such powers have not expired on other grounds established in this paragraph, is also in conflict with the Constitution.

6.3. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 5 of Article 95 of the Law on Science and Studies insofar as it is established therein that the powers of the bodies of governance, elected or formed before the entry into force of this law, of a state school of higher education whose legal form is a budgetary establishment, are terminated on 31 December 2011, if such powers have not expired on other grounds established in this paragraph, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

7. It has been mentioned that Paragraph 5 of Article 95 of the law on Science and Studies provides that, upon the entry into force of this law, the rector (director) of a state school of higher education shall be elected (appointed) only by that council of the state school of higher education which has been set up in accordance with the procedure laid down by this law, and where there is no such council, the powers of the rector (director) of the state school of higher education shall be extended until the election of a new rector (director) of the state higher education institution, but not longer than for six month.

In the constitutional justice case at issue it was held that Item 5 of Paragraph 2 of Article 20 of the Law on Science and Studies, wherein it is provided that the council of a state school of higher education elects the rector (director) of the school of higher education, appoints him to the office and dismisses from it is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law. While taking account of this, it also needs to be held that Paragraph 5 of Article 95 of the Law on Science and Studies insofar as it provides that, upon the entry into force of the Law on Science and Studies, the rector (director) of a state school of higher education shall be elected (appointed) only by that council of the state school of higher education which has been set up in accordance with the procedure laid down by this law, and where there is no such council, the powers of the rector (director) of the state school of higher education shall be extended until the election of a new rector (director) of the state higher education institution, but not longer than for six month, is also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 5 of Article 95 of the Law on Science and Studies, insofar as it is established therein that the powers of the bodies of governance, elected or formed before the entry into force of this law, of a state school of higher education, whose legal form is a budgetary establishment, are terminated on 31 December 2011, if such powers have not expired on other grounds established in this paragraph, also insofar as it provides that, upon the entry into force of the Law on Science and Studies, the rector (director) of a state school of higher education shall be elected (appointed) only by that council of the state school of higher education which has been set up in accordance with the procedure laid down by this law, and where there is no such council, the powers of the rector (director) of the state school of higher education shall be extended until the election of a new rector (director) of the state higher education institution, but not longer than for six month, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

Having held this, the Constitutional Court will not further investigate whether Paragraph 5 of Article 95 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 48 of the Constitution.

IX

On the compliance of Article 96 of the Law on Science and Studies with the constitutional principles of a state under the rule of law, protection of legitimate expectations, legal certainty and legal security, as well as on the compliance of Paragraph 4 of this article with Paragraph 3 of Article 40 of the Constitution.

1. The group of Members of the Seimas, a petitioner, is doubting whether Article 96 of the Law on Science and Studies is not in conflict with the constitutional principles of a state under the rule of law, protection of legitimate expectations, legal certainty and legal security and whether Paragraph 4 of this article is not in conflict with Paragraph 3 of Article 40 of the Constitution.

2. Article 96 of the Law on Science and Studies prescribes:

1. State schools of higher education shall be reorganised from budgetary establishments into public establishments pursuant to the provisions of the Civil Code.

2. The Government shall take a decision regarding the investment in state schools of higher education of the assets belonging to the State by the right of ownership. When reorganising state schools of higher education into public establishments, immovable property may not be invested in such institutions.

3. After the reorganisation of a state school of higher education into a public establishment, all the rights and duties which that state school of higher education acquired when it was a budgetary establishment shall be transferred to it.

4. Within twelve months of the entry into force of this Law, state universities shall apply to the Ministry of Education and Science concerning the setting-up of the council of a school of higher education provided for in this Law and shall submit the members nominated to this council by the school of higher education.”

3. Thus, in Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies the procedure for reorganising state schools of higher education from budgetary establishments into public establishments is established.

It needs to be noted that these provisions of the Law on Science and Studies are related to Paragraph 4 of Article 6 of the same law wherein the only legal form of a state school of higher education—a public establishment—is established, whereas, under Paragraph 9 (wording of 30 June 2005) of Article 5 of the Republic of Lithuania Law on Higher Education valid until the entry into force of the Law on Science and Studies, a state school of higher education used to be defined as a public legal person functioning as a budgetary or public establishment and having a special status established by the Constitution of the Republic of Lithuania and this law.

Paragraph 1 of Article 96 of the Law on Science and Studies has established a general norm whereby the provisions of the Civil Code are applied for the reorganisation of state schools of higher education from budgetary establishments into public establishments. From the applicable provisions of the Civil Code one is to mention the following: the provision of Paragraph 1 of Article 2.104 “Reorganisation of Legal Persons“ of the Civil Code defining reorganisation of a legal person as an alteration of the legal form of a legal person whereby a legal person of a new legal form becomes the successor to all rights and liabilities duties of the reorganised legal person; the provision of Paragraph 5 of the same article providing that also laws regulating individual legal forms of legal persons may establish a specific mode for the reorganisation of legal persons; the provision of Paragraph 1 of Article 2.105 “Mandatory Reorganisation of Legal Persons” whereby laws may provide for circumstances under which a legal person must alter its legal form; and the provision of Paragraph 2 of the same article that, where within the time limit established by the law, which may not be shorter than nine months, members of a legal person fail to pass a resolution on the alteration of the legal person’s legal form, it shall be considered that the legal form of the legal person has been altered and the legal person acts according to the documents of incorporation inasmuch as they do not infringe laws regulating activities of legal persons having the legal form into which the said legal person had to be altered.

Thus, the provision of Paragraph 1 of Article 96 of the Law on Science and Studies together with the provision of Paragraph 8 of Article 93 of this law wherein there is an obligation to reorganise sate schools of higher education from budgetary establishments into public establishments till 31 December 2011, is a provision for a mandatory reorganisation of the legal persons—state schools of higher education.

In this context it needs to be mentioned that the Law on Science and Studies (with the exception of certain articles thereof) came into force on 12 May 2009. Thus, a term longer than 19 months was provided for the reorganisation of state schools of higher education, whose legal form is a budgetary establishment, into public establishments.

The provisions of Paragraphs 2 and 3 of Article 96 of the Law on Science and Studies provide for special norms related to certain aspects of the reorganisation of state schools of higher education into public establishments.

4. It needs to be noted that Paragraph 4 of Article 96 of the Law on Science and Studies is related not to the reorganisation of state schools of higher education into public establishments, but rather to the formation of the councils (established under the legal regulation of the Law on Science and Studies) of state universities: it entrenched the obligation for state universities to apply, within twelve months of the entry into force of this law, to the Ministry of Education and Science concerning the setting-up of the council of a school of higher education provided for in this law and to submit the members nominated to this council by the school of higher education. It has been mentioned that the Law on Science and Studies (with the exception of certain articles thereof) came into force on 12 May 2009. Thus, under Paragraph 4 of Article 96 of the Law on Science and Studies, state universities were under obligation to apply, till 12 May 2010, to the Ministry of Education and Science concerning the setting-up of the council of a school of higher education provided for in this law and to submit the members nominated to this council by the school of higher education.

5. The group of Members of the Seimas, a petitioner, has substantiated its doubts regarding the compliance of Article 96 of the Law on Science and Studies by the official constitutional doctrine in which inter alia the content of the constitutional principle of a state under the rule of law, that of the imperatives of protection of legitimate expectation, legal certainty and legal security are disclosed.

6. As mentioned, in the constitutional justice case at issue the content of the constitutional principle of a state under the rule of law inter alia is to be disclosed by applying the principle of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution. It has also been mentioned that the protection of legitimate expectations, legal certainty and legal security are inseparable elements of the principle of a state under the rule of law.

7. It has been mentioned that in Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies the procedure for reorganising state schools of higher education from budgetary establishments into public establishments is established and that these paragraphs are related to Paragraph 4 of Article 6 of the Law on Science and Studies wherein the only legal form of a state school of higher education—a public establishment—is established. In the constitutional justice case at issue it has also been mentioned that the establishment of the legal form for the state school of higher education as a public legal person per se does not deny the freedom of scientific and educational activity of the school of higher education and self-government of the academic community, i.e. the academic and institutional autonomy of schools of higher education.

In the constitutional justice case at issue it was held that Paragraph 4 of Article 6 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution. Thus, one is also to hold that there is no ground to assess, in a different manner, Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies in which the reorganisation of state schools of higher education from budgetary establishments into public establishments is established.

It has been mentioned that a term longer than 19 months was provided for the reorganisation of state schools of higher education, whose legal form is a budgetary establishment, into public establishments. Thus, there is also no ground for asserting that the legal regulation established in Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies violates the imperatives of protection of legitimate expectation, legal certainty and legal security, and other imperatives of the constitutional principle of a state under the rule of law.

8. Taking account of the arguments set forth it needs to be held that Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies are not in conflict with the constitutional principle of a state under the rule of law.

9. It has been mentioned that that Paragraph 4 of Article 96 of the Law on Science and Studies is related to the formation of the councils (established under the legal regulation of the Law on Science and Studies) of state universities. It has also been mentioned that, under Paragraph 4 of Article 96 of the Law on Science and Studies, state universities were under obligation to apply, till 12 May 2010, to the Ministry of Education and Science concerning the setting-up of the council of a school of higher education provided for in this law and to submit the members nominated to this council by the school of higher education. Thus, the relations regulated in Paragraph 4 (which is disputed by the petitioner) of Article 96 of the Law on Science and Studies have ended and this provision of the law may no longer be applied, even though it has not been recognised invalid.

9.1. Under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings.

As it has been held by the Constitutional Court more than once, the formula “shall be the grounds <...> to dismiss the instituted legal proceedings” is to be construed as establishing the right of the Constitutional Court, in cases, when not courts, but other subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, to dismiss the instituted legal proceedings upon taking account of the circumstances of the case (inter alia Constitutional Court rulings of 19 January 2005 and 28 March 2006, as well as decisions of 31 May 2006, 29 December 2006, 28 May 2007, 25 February 2008 and 14 December 2009); gradually, after the Constitutional Court had gained corresponding experience in considering constitutional justice cases, also such construction in the Constitutional Court jurisprudence came into being, where in cases when not courts, but other subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, and when the disputed legal act (part thereof) is no longer valid—it has been recognised as no longer valid (it was abolished or amended) or its validity expired—the Constitutional Court, while paying heed to the circumstances of the considered case, has the powers to dismiss the instituted legal proceedings, however, it does not have to dismiss the instituted legal proceedings in every case when the disputed legal act (part thereof) is no longer valid—it has been recognised as no longer valid (it was abolished or amended) or its validity expired (Constitutional Court ruling of 28 March 2006, decision of 8 August 2006).

It needs to be noted that the jurisprudence of the Constitutional Court equated to invalid legal acts (parts thereof) also such legal acts (parts thereof), which, even though formally valid when the corresponding constitutional justice cases were investigated, however, at that moment they could no longer be applied because one had to apply certain legal acts (parts thereof) that were passed later and/or those of greater power, which regulated the corresponding relations differently than the disputed legal acts (parts thereof) (Constitutional Court ruling of 28 March 2006, decisions of 8 August 2006 and 13 November 2007). In the context of the constitutional justice case at issue it needs to be noted that also the legal acts (parts thereof) applied on a temporary basis, the term of the application whereof and the relations regulated by which have ended at the time of consideration of the constitutional justice case, even though these acts (parts thereof) have not officially been recognised as invalid, may be equated to invalid legal acts (parts thereof).

9.2. Thus, it needs to be noted that in cases, when not courts, but other subjects (inter alia a group of not less than 1/5 of the Members of the Seimas) specified in Article 106 of the Constitution have applied to the Constitutional Court, and the disputed legal act (part thereof) is to be equated to legal acts (parts thereof) that are no longer valid, since the established term of application thereof is applied on a temporary basis and the relations regulated by it have ended, the Constitutional Court has the right to dismiss the instituted legal proceedings, however, it does not have to do so in every situation. While deciding whether to dismiss the instituted legal proceedings, the Constitutional Court must take account of the circumstances of the case considered by it.

In this context, the significant circumstances which must be taken into account by the Constitutional Court, are, as mentioned, the fact that the relations regulated in disputed Paragraph 4 of Article 96 of the Law on Science and Studies have ended and the fact that this provision of the law may no longer be applied, even though it has not been recognised invalid; it has also been mentioned that, once it has been held in the constitutional justice case at issue that the provisions of Paragraph 2 of Article 20 of the Law on Science and Studies, to the extent that they provide for the governance functions of the council of a state school of higher education, are in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law, the elimination of these provisions from the legal system, with respect to application of law, virtually amounts to the change of the overall legal regulation and the establishment of thus far different overall legal regulation: the council of a state school of higher education, the procedure for forming which is set in Paragraph 3 of Article 20 of the Law on Science, may continue to perform the control and supervision functions related to responsibility of the school of higher education and its accountability to society and provided for in Paragraph 2 of Article 20 of this law, as well as advisory functions. Thus, while applying the legal regulation established in the Law on Science and Studies, inter alia Paragraph 4 of Article 96 of the Law on Science and Studies, the new overall legal regulation, which has undergone changes due to this Constitutional Court ruling, is to be applied to the formed councils of schools of higher education.

Consequently, while taking account of the circumstances of the constitutional justice case at issue, it needs to be held that in the part of the case related to the relations regulated in Paragraph 4 of Article 96 of the Law on Science and Studies the matter of dispute has virtually disappeared. In this context it needs to be mentioned that the Constitutional Court has already invoked the provision whereby the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings while holding that in the case considered by it the matter of dispute had virtually disappeared (since by then a new legal regulation, but not the disputed one, was being applied) (inter alia the Constitutional Court ruling of 28 March 2006).

10. Taking account of the arguments set forth, the part of the constitutional justice case at issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to investigate whether Paragraph 4 of Article 96 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution 40 and with the constitutional principles of a state under the rule of law, protection of legitimate expectations, legal certainty and legal security, is to be dismissed.

X

On the compliance of Article 94 of the Law on Science and Studies with the constitutional principles of a state under the rule of law, protection of legitimate expectations, legal certainty and legal security, as well as on the compliance of Paragraph 5 of this article with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

1. The group of Members of the Seimas, a petitioner, is doubting whether Article 94 of the Law on Science and Studies is not in conflict with the constitutional principles of a state under the rule of law, protection of legitimate expectations, legal certainty and legal security and whether Paragraph 5 of this article is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

2. Article 94 of the Law on Science and Studies prescribes:

1. Paragraph 2 of Article 67 and Paragraph 2 of Article 69 of this Law shall enter into force on 1 January 2010.

2. Items 1 and 2 of Paragraph 1 of Article 69, Paragraphs 6, 7, 8, 10, 11, 12 and 14 of Article 70, Articles 71, 72 and Paragraphs 1, 2, 3, 4 and 5 of Article 76 of this Law shall not be applied to persons who were accepted to schools of higher education before the entry into force of this Law.

3. State budget funds designated to fund studies of the persons accepted to state schools of higher education before the entry into force of this Law shall be appropriated in accordance with the procedure laid down by the Government, taking account of the number of student places, fixed pursuant to the procedure laid down by legal acts before the entry into force of this Law, where the studies in state schools of higher education of the students accepted to the said student places are fully or partly covered with state budget funds.

4. Students of undergraduate, integrated studies and studies of the second cycle of all forms of state schools of higher education, accepted to state schools of higher education before the entry into force of this Law, with the exception of the students specified in Paragraphs 8 and 9 of this Article, if their studying does not meet the criteria of good studying as defined in Paragraph 5 of this Article, shall each semester pay a study fee to a higher education institution in the amount of four base social benefits.

5. Free education shall be secured for students of state schools of higher education with a good academic record, accepted to the state higher education institutions before the entry into force of this Law, with the exception of the students specified in Paragraphs 8 and 9 of this Article. Students who are good at their studies shall be students who do not have academic failures and whose average of the evaluation of study subjects within a semester is not less than eight on a ten-point grading scale in accordance with the system of evaluation of study results approved by the Government or an institution authorised by it.

6. Students who were accepted to state schools of higher education before the entry into force of this Law shall be struck off the register of students of the school of higher education for poor progress in accordance with the procedure laid down by the school of higher education. The following persons, accepted to state schools of higher education before the entry into force of this Law, who study in the same study programme of the same year of studies (except the persons referred to in Items 1-3 of Paragraph 8 of this Article) shall qualify to fill vacancies according to the progress and in the order of priority:

1) students of the same study form;

2) students of other study forms.

7. In the case when it is impossible to fill vacancies in accordance with the procedure laid down in Paragraph 6 of this Article, state budget funds designated for funding of these free student places may be used for funding the studies of students of the same year of studies who were accepted to state higher education institutions before the entry into force of this Law and who study according to the study programmes of at least equivalent cost.

8. The following persons accepted to a state school of higher education shall pay the study cost, fixed by the state school of higher education, for studies in the state school of higher education:

1) persons studying according to a study programme of the same cycle or a lower cycle which they have completed in the state school of higher education, if they paid the full study cost for not more than half of the credits of the study programme, with the exception of the cases provided for by the Government;

2) persons who simultaneously study according to two or more study programmes, if their studies are fully or partly financed with the state budget funds according to at least one of these study programmes (they themselves pay for the second or other study programmes);

3) foreigners, if the international treaties of the Republic of Lithuania or other legal acts do not provide otherwise;

4) persons who have failed to be accepted to the student places where the studies are fully or partly financed with state budget funds.

9. The following persons accepted to state schools of higher education before the entry into force of this Law shall pay the study cost, proportionate to the volume of a study subject, for studies in that state school of higher education:

1) persons who do not engage in sequential studies;

2) persons who repeat separate subjects of a sequential study programme.

10. Students who were accepted to state schools of higher education before the entry into force of this Law may receive state loans or state-subsidised loans to pay the study fees referred to in Paragraph 4 of this Article. The Government shall lay down the procedure for granting, administering and repaying these loans.

11. Paragraph 2 of Article 75 of this Law shall apply only to students of state schools of higher education in 2009. State budget funds designated for payment of incentive scholarships and other support for students of state schools of higher education accepted to those state schools of higher education before the entry into force of this Law shall be granted in accordance with the procedure laid down by the Government.”

3. While having doubts about the constitutionality of the provisions of Article 94 of the Law on Science and Studies, the petitioner has presented the doctrinal provisions of the Constitutional Court regarding the requirements for the legislator implied by the constitutional principle of a state under the rule of law. While disputing Paragraph 5 of this article, it is invoking the doctrinal provision of the Constitutional Court whereby the criteria which must be met by citizens in order to be regarded as ones being good at their studies must be established only by law.

Thus, from the arguments of the petitioner it is clear that it is disputing the provision “Students who are good at their studies shall be students who do not have academic failures and whose average of the evaluation of study subjects within a semester is not less than eight on a ten-point grading scale in accordance with the system of evaluation of study results approved by the Government or an institution authorised by it” of Paragraph 5 of Article 94 of the Law on Science and Studies insofar as it is established therein that the criterion of learning well is the average of the evaluation of study subjects within a semester is not less than eight on a ten-point grading scale in accordance with the system of evaluation of study results approved by the Government or an institution authorised by it.

4. The disputed provision of Paragraph 5 of Article 94 of the Law on Science and Studies inter alia indicates the criterion of learning well—the average of the evaluation of study subjects within a semester is not less than eight on a ten-point grading scale. It needs to be noted that, traditionally, on a ten-point grading scale of academic results applied in establishments of education, science and studies the evaluation “eight” means a good level of knowledge and capabilities.

The disputed provision of Paragraph 5 of Article 94 of the Law on Science and Studies inter alia indicates that the system of evaluation of study results approved by the Government or an institution authorised by it is to be applied to the ten-point grading scale.

It needs to be noted that the provisions of Paragraph 5 of Article 94 of the Law on Science and Studies are applied on a temporary basis, since they are related to the entry into force and application of the provisions of Chapter VII of this law, regulating inter alia funding from the state budget the studies of the students who are good at their studies at state schools of higher education. The purpose of the provisions of Paragraph 5 of Article 94 of the Law on Science and Studies is to guarantee the free-of-charge education for the students who are good at their studies at state schools of higher education who were accepted to these schools before the entry into force of this law. Therefore, in Paragraph 5 of Article 94 of the Law on Science and Studies the same criteria of learning well are established as those established in Paragraph 1 (wording of 26 June 2008) of Article 60 of the Law on Higher Education (in the latter paragraph it was established that students good at their studies are those students who have no failed examinations or credits and whose average of subjects assessment during a semester is at least “eight” on the 10-point assessment scale according to the system of assessment study results approved by the Government or an institution authorised by it). Thus, the provisions of Paragraph 5 of Article 94 of the Law on Science and Studies are applied only to the persons accepted to state schools of higher education before the entry into force of this law, while seeking to established, pursuant to the criteria applied before the entry into force of this law, who of these persons should be deemed as students good at their studies whose studies are covered from the state budget.

5. It needs to be noted that, in its ruling of 20 March 2008, while construing the provision of Paragraph 3 of Article 41 of the Constitution that citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge, the Constitutional Court held that the Constitution does not define expressis verbis as to which citizens are to be regarded as those who are good at their studies. The content of the notion “citizen who is good at his studies” is revealed in the official constitutional doctrine: a citizen who is good at his studies is to be regarded the one who “is good at his studies, i.e. his learning meets the established criteria of learning well” (Constitutional Court ruling of 14 January 2002); the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law (Constitutional Court ruling of 7 June 2007). These criteria must be known in advance, they must be clear and transparent, they cannot deviate not only from the constitutional concept of good learning, but also from such concept of good learning, which arises from the social experience of society and which does not deny the meaning of the word “good” that is understood by everyone and is generally recognised.

6. It has been mentioned that the disputed provision of Paragraph 5 of Article 94 of the Law on Science and Studies indicates the criterion of learning well—the average of the evaluation of study subjects within a semester is not less than eight on a ten-point grading scale—traditionally means a good level of knowledge and capabilities. Thus, this criterion does not deviate from such concept of good learning, which arises from the social experience of society and which does not deny the meaning of the word “good” that is understood by everyone and is generally recognised; whereas the fact that the system of evaluation of study results approved by the Government or an institution authorised by it is to be applied to the ten-point grading scale may not be understood as the powers granted to the Government or an institution authorised by it to establish an essentially different criterion of learning well.

7. It has been mentioned that the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law. It has been held that the criterion of learning well specified in Paragraph 5 of Article 94 of the Law on Science and Studies—the average of the evaluation of study subjects within a semester is not less than eight on a ten-point grading scale in accordance with the system of evaluation of study results approved by the Government or an institution authorised by it—meets the aforesaid requirement. Thus, there are no grounds to assert that such legal regulation denies the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution and the provisions of Paragraph 3 of Article 41 thereof.

8. Taking account of the arguments set forth one is to conclude that Paragraph 5 of Article 94 of the Law on Science and Studies insofar as it is established therein that the criterion of learning well is the average of the evaluation of study subjects within a semester is not less than eight on a ten-point grading scale in accordance with the system of evaluation of study results approved by the Government or an institution authorised by it is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution and with the constitutional principle of a state under the rule of law.

XI

On the compliance of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of Article 91 of the Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of Article 91 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

2. Item 3 of Paragraph 2 of Article 86 of the Law on Science and Studies prescribes:

The main purposes of a state scientific institute shall be as follows:

<...>

3) together with schools of higher education to train scientists, to help to train specialists, to ensure the scientific competence of international level.”

Paragraph 4 of Article 90 of the Law on Science and Studies provides:

Two-thirds of members of the council of a university scientific institute shall be members of the council elected by scientists of the university scientific institute and one-third of members of the council shall be members of the council appointed by the university senate. The Government may fix another proportion of members of the council of a university scientific institute elected by scientists of the university scientific institute and members of the council of the university scientific institute appointed by the university senate, moreover, the Government may also determine the procedure in compliance with which representatives of the interested institutions, establishments and organisations are included in the council of the university scientific institute.”

Paragraph 3 of Article 91 of the Law on Science and Studies provides:

A director of a university scientific institute shall be elected by the commission from among scientists by secret ballot in an open competition for a term of office not exceeding five years and for not more than two terms of office in succession; this commission shall comprise an equal number of representatives of the council of the university scientific institute and the university senate, and one representative of the Ministry of Education and Science. The Ministry of Education and Science shall lay down the procedure for holding a competition and setting up the commission. The university rector shall conclude a fixed-term employment contract with the elected director of the university scientific institute.”

3. It needs to be noted that Articles 86, 90, 91 of the Law on Science and Studies, which contain the provisions disputed by the petitioner, are in Chapter IX “Regulation of Activities of Research Institutions During the Transitional Period” of the same law.

Paragraph 4 of Article 95 of the Law on Science and Studies provides that Chapter IX of this law shall be valid until 1 January 2010. Thus, as from then the provisions (disputed by the petitioner) of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of Article 91 of the Law on Science and Studies have been no longer valid.

4. It has been mentioned that, under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings.

It has been mentioned that, as it has been held by the Constitutional Court more than once, the formula “shall be the grounds <...> to dismiss the instituted legal proceedings” is to be construed as establishing the right of the Constitutional Court, in cases, when not courts, but other subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, to dismiss the instituted legal proceedings upon taking account of the circumstances of the case (inter alia Constitutional Court ruling of 19 January 2005, ruling of 28 March 2006, as well as decisions of 31 May 2006, 29 December 2006, 28 May 2007, 25 February 2008 and 14 December 2009); gradually, after the Constitutional Court had gained corresponding experience in considering constitutional justice cases, also such construction in the Constitutional Court jurisprudence came into being, where in cases when not courts, but other subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, and when the disputed legal act (part thereof) is no longer valid—it has been recognised as no longer valid (it was abolished or amended) or its validity expired—the Constitutional Court, while paying heed to the circumstances of the considered case, has the powers to dismiss the instituted legal proceedings, however, it does not have to dismiss the instituted legal proceedings in every case when the disputed legal act (part thereof) is no longer valid—it has been recognised as no longer valid (it was abolished or amended) or its validity expired (Constitutional Court ruling of 28 March 2006, decision of 8 August 2006).

Thus, in the jurisprudence of the Constitutional Court, the rule that the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings is applied to all legal acts that are no longer valid, inter alia to those whose validity has ended; it is also inter alia understood not as a duty of the Constitutional Court, but as its right in cases, when not courts, but other subjects (inter alia a group of not less than 1/5 of the Members of the Seimas) specified in Article 106 of the Constitution have applied to the Constitutional Court, to dismiss the instituted legal proceedings upon taking account of the circumstances of the case.

5. In the context of the constitutional justice case at issue it needs to be noted that the provisions (disputed by the petitioner) of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of Article 90 of the Law on Science and Studies used to regulate the activity of scientific research establishments, inter alia state scientific institutes and university scientific institutes, during the transitional period, i.e. until their reorganisation while applying the groups and types of institutions of science and studies established in the new legal regulation entrenched in the Law on Science and Studies, inter alia while reorganising them into state scientific research institutes or including them into the organisational and governance structure of universities. Under Paragraph 4 of Article 93 of the Law on Science and Studies, the Government had to arrange the reorganisation of scientific research establishments till 1 January 2010.

Thus, while taking account of the circumstances of the constitutional justice case at issue, it needs to be held that in the part of the case related to the reorganisation of scientific research establishments, inter alia state scientific institutes and university scientific institutes, and regulation of their activity during the transitional period, the matter of dispute has virtually disappeared, since the reorganisation of these establishments is over, the provisions of Chapter IX of the Law on Science and Studies that used to regulate their activity during the transitional period are no longer applied, and the new legal regulation established in the Law on Science and Studies is applied to the reorganised establishments of science and studies; it has been mentioned that the Constitutional Court has previously invoked the provision whereby the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings while holding that in the case considered by it the matter of dispute had virtually disappeared (since by then a new legal regulation, but not the disputed one, was being applied).

6. Taking account of the arguments set forth, the part of the constitutional justice case at issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to investigate whether Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of Article 91 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.

XII

On the compliance of Paragraphs 2, 4, 6, 8 of Article 93 of the Law on Science and Studies with the constitutional principles of a state under the rule of law, protection of legitimate expectations and legal security.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraphs 2, 4, 6, 8 of Article 93 of the Law on Science and Studies are not in conflict with the constitutional principles of a state under the rule of law, protection of legitimate expectations and legal security.

2. It has been mentioned that the Constitutional Court has held more than once that the protection of legitimate expectations, legal certainty and legal security are inseparable elements of the constitutional principle of a state under the rule of law.

3. The petitioner, while seeking to substantiate its doubts regarding the compliance of Paragraphs 2, 4, 6, 8 of Article 93 of the Law on Science and Studies with the Constitution, has presented the doctrinal provisions formulated by the Constitutional Court regarding the requirements for the legislator implied by the constitutional principle of a state under the rule of law. In the opinion of the petitioner, there emerge doubts regarding the constitutionality of these provisions of Article 93 of the Law on Science and Studies also because these provisions are related to the reorganisation of state schools of higher education and scientific research establishments. According to the petitioner, such reorganisation is in conflict with the principle of autonomy of schools of higher education entrenched in the Constitution.

4. It needs to be noted that all provisions of Article 93 of the Law on Science and Studies regulate the implementation of this law.

5. Paragraph 2 of Article 93 of the Law on Science and Studies provides:

Upon entry into force of this Law, universities may not accept persons to college studies and colleges may not accept persons to university studies.”

5.1. The provision of Paragraph 2 of Article 93 of the Law on Science and Studies, which is being disputed by the petitioner, is to be related to the implementation of other provisions of this law, inter alia to Paragraph 1 of Article 6 of the Law on Science and Studies wherein two types of schools of higher education—universities and colleges—are established, as well as to the provision of Paragraph 1 of Article 8 of this law whereby the university shall carry out university studies (these studies, under Item 1 of Paragraph 2 of the same article, must inter alia provide persons with university higher education based on scientific research and corresponding to the modern level of knowledge and technologies), to the provision of Paragraph 1 of Article 9 thereof whereby the college shall carry out college studies (these studies, under Item 1 of Paragraph 2 of the same article, must inter alia provide persons with the college higher education which satisfies the needs of the State, society and economy of Lithuania, and conforms to the level of science and latest technologies). In this context it also needs to be mentioned that, under Paragraph 3 of Article 8 of the Law on Science and Studies, higher requirements are raised to the teaching staff of universities (more than half of the teaching staff of a university must be scientists and/or established artists) than the requirements for the teaching staff of colleges established in Paragraph 3 of Article 9 of this law (more than a half of the teaching staff of a college must have at least three-year practical work experience in the sphere of a subject they teach).

Thus, the provision of Paragraph 2 of Article 93 of the Law on Science and Studies seeks to ensure the uniform and quality level of university higher education provided by universities and also the essential different, but uniform and quality level of collegiate higher education provided by colleges.

5.2. The provision of Paragraph 2 of Article 93 of the Law on Science and Studies, which is being disputed by the petitioner, is also to be related to certain provisions of the Law on Higher Education which used to be in force prior to the Law on Science and Studies. Paragraph 1 of Article 6 of the Law on Higher Education inter alia used to provide that a university shall be a school of higher education, where university studies prevail and the majority of students comprise those studying according to university study programmes, whereas Paragraph 4 of this article used to provide that universities may teach students in accordance with non-university study programmes as well. Paragraph 1 of Article 7 (wording of 18 July 2006) of the Law on Higher Education inter alia used to provide that a college shall be a school of higher education, where non-university studies prevail and the majority of students are those studying in accordance with non-university study programmes. Paragraph 4 of the same article used to provide that college study programmes may include study programmes (modules) co-ordinated with universities and corresponding to university undergraduate studies; a college may be given the right to organise the undergraduate university studies of some subject area in accordance with the procedure established by the Government; in this event, not less than half of the amount of study programmes must be taught by scientists and/or distinguished artists. Paragraph 7 of this article used to provide that a college may conclude contracts with universities concerning general studies and research programmes, exchange of teachers, etc.

Thus, under the legal regulation established in the Law on Higher Education, universities were allowed to carry out collegiate studies, whereas colleges were allowed to carry out the studies corresponding to university basic studies, provided not less than half of the amount of study programmes were taught by scientists and/or distinguished artists. It needs to be noted that, under the legal regulation established in the Law on Science and Studies, universities lost the opportunity to carry out collegiate studies, meanwhile colleges—studies corresponding to university basic studies.

It also needs to be noted that, under Paragraph 10 of Article 93 of the Law on Science and Studies, schools of higher education shall create conditions to complete the studies for persons who were accepted to the schools of higher education before the entry into force of this law. Thus, in this context the provision of Paragraph 2 of Article 93 of the Law on Science and Studies is to be construed that upon the entry into force of the Law on Science and Studies admission to collegiate studies in universities and that to university studies in colleges may not be conducted, however, the persons accepted to such studies before the entry into force of this law are given an opportunity to finish them.

5.3. In the constitutional justice case at issue it has been mentioned that the Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is a universal principle, upon which the entire legal system of Lithuania and the Constitution itself are based; the content of the principle of a state under the rule of law reveals itself in various provisions of the Constitution; the essence of the constitutional principle of a state under the rule of law is the rule of law; the constitutional imperative of the rule of law means that the freedom of state power is limited by law, which must be obeyed by all the entities of legal relations, including the law-making entities; the discretion of all the law-making entities is limited by the supreme law—the Constitution; all the legal acts and decisions of all the state and municipal institutions and officials must be in compliance with and not contradicting to the Constitution; the constitutional principle of a state under the rule of law must be followed both in law-making and implementation of law; the compliance of each institute of law with the Constitution must be evaluated according to how this institute is in compliance with the constitutional principles of a state under the rule of law.

It has also been mentioned that in the constitutional justice case at issue the content of the constitutional principle of a state under the rule of law inter alia is to be disclosed by applying the principle of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.

5.4. In the constitutional justice case at issue it has been noted that the right of the state to establish the quality requirements for higher education per se does not deny the autonomy of schools of higher education; however, when this right is being implemented, one must heed the imperatives emerging from Constitution, inter alia the constitutional principles of proportionality and reasonableness, the principle lex non cogit ad impossibilia etc.; the provision of the official constitutional doctrine that autonomy of schools of higher education include their right to independently determine the study programmes is to be construed in the context of the constitutional obligation of the state to supervise the activity of educational establishments and the constitutional obligation to secure that the level of provided higher education, which is marked by corresponding qualification degrees, would comply with certain uniform standards of the quality of higher education.

In the constitutional justice case at issue it was also noted that, while heeding autonomy of schools of higher education, the legislator has broad discretion to choose and regulate a concrete model of organising science and studies, which would meet best the needs of development of the progress of the state and society in a particulate period of time. However, having chosen a concrete model for organising science and studies, the legislator must ensure uniform standards of higher education rendered by institutions of science and studies, inter alia those of training of scientists and specialists.

In the constitutional justice case at issue it has also been noted that the variety of purposes of higher education determines the fact that there may be various types of schools of higher education; while taking account of this, laws may establish different limits of autonomy for different types of schools of higher education (while taking account of whether they are universities or colleges, whether the founders are the state or other subjects, and while taking into consideration other conditions); the rights exercised by schools of higher education may be (while heeding the Constitution) differentiated according to various important criteria, inter alia according to the status of these schools of higher education (whether they are universities or not), the level of higher education provided to the persons who are studying therein, the programme of studies conducted by them, the scientific potential thereof etc.

Thus, it needs to be held that, under the Constitution, the legislator has the right to establish such a model for organising science and studies whereby only two types of schools of higher education—universities and colleges—would carry out studies; having chosen such a model, the legislator must also differentiate the quality requirements of higher university education and higher collegiate education and create legal preconditions to secure the uniform quality of higher university education and higher collegiate education.

5.5. In this context it needs to be noted some universities also have centuries-long traditions and their activities are characterised by the symbiosis of the humanities, social sciences, natural sciences, mathematics (and more often than not also medicine), therefore, they keep a balance among humanities, social sciences, and natural sciences, whereas this fact is influential on studies in various specialities.

The Constitutional Court has also noted more than once the differences in the higher education provided by universities and the (special) higher education provided by other schools of higher education, which are not universities: not only abundance of knowledge but also versatility and fundamentality of the latter are characteristic of university education (Constitutional Court ruling of 10 July 1996); the persons who have university education acquire supplementary and universal knowledge which is necessary when adopting crucial decisions in various spheres of life (Constitutional Court rulings of 10 July 1996, 20 February 2008); university education is essentially different from special higher education (Constitutional Court ruling of 10 July 1996). In the context of the constitutional justice case at issue it needs to be noted that higher university education is essentially different from higher collegiate education.

5.6. In this context it also needs to be mentioned that in the constitutional justice case at issue it has been held that the autonomy of schools of higher education is not denied by the legal regulation established in Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Science and Studies differentiating the requirements for the teaching staff of universities and colleges, but by such legal regulation one is seeking to secure the quality of education provided by schools of higher education.

5.7. It has been mentioned that, under the Constitution, the legislator has the right to establish such a model for organising science and studies whereby only two types of schools of higher education—universities and colleges—would carry out studies; having chosen such a model, the legislator must also differentiate the quality requirements of higher university education and higher collegiate education and create legal preconditions to secure the uniform quality of higher university education and higher collegiate education; higher university education is essentially different from higher collegiate education.

It has also been mentioned that the provision of Paragraph 2 of Article 93 of the Law on Science and Studies seeks to ensure the uniform and quality level of university higher education provided by universities and also the essential different, but uniform and quality level of collegiate higher education provided by colleges.

Thus, such legal regulation established in Paragraph 2 of Article 93 of the Law on Science and Studies does not deny the autonomy of schools of higher education.

5.8. It has been mentioned that the protection of legitimate expectations, legal certainty and legal security are inseparable elements of the principle of a state under the rule of law. It has also been mentioned that the provision of Paragraph 2 of Article 93 of the Law on Science and Studies is to be construed that upon the entry into force of the Law on Science and Studies admission to collegiate studies in universities and that to university studies in colleges may not be conducted, however, the persons accepted to such studies before the entry into force of this law are given an opportunity to finish them.

Thus, there is no ground for asserting that the legal regulation established in Paragraph 2 of Article 96 of the Law on Science and Studies violates the imperatives of protection of legitimate expectation, legal certainty and legal security, and other imperatives of the constitutional principle of a state under the rule of law.

5.9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 of Article 93 of the Law on Science and Studies is not in conflict with the constitutional principle of a state under the rule of law.

6. Paragraph 4 of Article 93 of the Law on Science and Studies provides:

The Government or an institution authorised by it shall arrange the reorganisation of scientific research establishments until 1 January 2010.”

Paragraph 6 of Article 93 of the Law on Science and Studies provides:

Until 1 January 2010 universities together with state scientific institutes or university scientific institutes shall have the right to carry out doctoral studies.”

6.1. It needs to be noted that the provisions of Paragraphs 4 and 6 of Article 93 of the Law on Science and Studies are related to the reorganisation of scientific research establishments, inter alia state scientific institutes and university scientific institutes, while applying the groups and types of institutions of science and studies established in the new legal regulation entrenched in the Law on Science and Studies, inter alia while reorganising them into state scientific research institutes or including them into the organisational and governance structure of universities.

The following time period for such reorganisation of scientific research establishments is established in Paragraph 4 of Article 93 of the Law on Science and Studies: the Government or an institution authorised by it had to arrange the reorganisation of scientific research establishments until 1 January 2010, whereas Paragraph 6 of Article 93 of the same law provides that until the reorganisation of scientific research establishments (until 1 January 2010) universities together with state scientific institutes or university scientific institutes had the right to carry out doctoral studies.

In this context it needs to be noted that all provisions (Articles 84–92) of the chapter of the Law on Science and Studies that used to regulate the activity of scientific research establishments, inter alia state scientific institutes and university scientific institutes during the transitional period, were valid till 1 January 2010 (Paragraph 4 of Article 95 of the Law on Science and Studies).

Thus, the relations regulated in Paragraphs 4 and 6 (which are disputed by the petitioner) of Article 93 of the Law on Science and Studies have ended and these provisions of the law may no longer be applied, even though they have not been recognised as invalid; the new legal regulation established in the Law on Science and Studies is applied to the reorganised scientific research establishments.

6.2. It has been mentioned that, under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings. It has also been mentioned that, in the jurisprudence of the Constitutional Court, the rule that the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings is applied to all legal acts that are no longer valid; in the jurisprudence of the Constitutional Court this rule is also inter alia understood not as a duty of the Constitutional Court, but as its right in cases, when not courts, but other subjects (inter alia a group of not less than 1/5 of the Members of the Seimas) specified in Article 106 of the Constitution have applied to the Constitutional Court, to dismiss the instituted legal proceedings upon taking account of the circumstances of the case.

It has also been mentioned that the jurisprudence of the Constitutional Court equated to invalid legal acts (parts thereof) also such legal acts (parts thereof), which, even though formally valid when the corresponding constitutional justice cases were investigated, however, at that moment they could no longer be applied because one had to apply certain legal acts (parts thereof) that were passed later and/or those of greater power, which regulated the corresponding relations differently than the disputed legal acts (parts thereof); in the context of the constitutional justice case at issue it needs to be noted that also the legal acts (parts thereof) applied on a temporary basis, the term of the application whereof and the relations regulated by which have ended at the time of consideration of the constitutional justice case, even though these acts (parts thereof) have not officially been recognised as invalid, may be equated to invalid legal acts (parts thereof).

6.3. It has been mentioned that the relations regulated in Paragraphs 4 and 6 (which are disputed by the petitioner) of Article 93 of the Law on Science and Studies have ended and these provisions of the law may no longer be applied, even though they have not been recognised as invalid; the new legal regulation established in the Law on Science and Studies is applied to the reorganised scientific research establishments.

Thus, while taking account of the circumstances of the constitutional justice case at issue, it needs to be held that in the part of the case related to the relations regulated in Paragraphs 4 and 6 of Article 93 of the Law on Science and Studies the matter of dispute has virtually disappeared. In the constitutional justice case at issue it has been mentioned that the Constitutional Court has previously invoked the provision whereby the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings while holding that in the case considered by it the matter of dispute had virtually disappeared (since by then a new legal regulation, but not the disputed one, was being applied).

6.4. Taking account of the arguments set forth, the part of the constitutional justice case at issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to investigate whether Paragraphs 4 and 6 of Article 93 of the Law on Science and Studies are not in conflict with the constitutional principles of a state under the rule of law, protection of legitimate expectations, legal certainty and legal security, is to be dismissed.

7. Paragraph 8 of Article 93 of the Law on Science and Studies provides:

State schools of higher education must be reorganised from budgetary establishments into public establishments until 31 December 2011”.

7.1. Thus, Paragraph 8 of Article 93 of the Law on Science and Studies provides for the time period within which state schools of higher education must be reorganised from budgetary establishments into public establishments—it must be done until 31 December 2011. This provision is first of all related to Paragraph 4 of Article 6 of the Law on Science and Studies, wherein the sole legal form of a state school of higher education—a public establishment—is set (as mentioned, under Paragraph 1 of Article 2 of the Law on Public Establishments, a public establishment shall be a non-profit public legal person of limited civil liability founded according to this law and other laws, the aim of which is to satisfy public interests by carrying out the educational, training and scientific, cultural, health care, environmental protection, sports development, social or legal aid provision as well as other activities useful to the public), whereas, under Paragraph 9 (wording of 30 June 2005) of Article 5 of the Law on Higher Education valid until the entry into force of the Law on Science and Studies, a state school of higher education used to be defined as a public legal person functioning as a budgetary or public establishment and having a special status established by the Constitution and this law.

In this context it needs to be noted that, as mentioned, the Law on Science and Studies (with the exception of certain articles thereof) came into force on 12 May 2009. Thus, a term longer than 19 months was provided in Paragraph 8 of Article 93 of the Law on Science and Studies for the reorganisation of state schools of higher education, whose legal form is a budgetary establishment, into public establishments.

7.2. As mentioned, in the constitutional justice case at issue the content of the constitutional principle of a state under the rule of law inter alia is to be disclosed by applying the principle of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.

In the constitutional justice case at issue it has also been mentioned that the establishment of the legal form for the state school of higher education as a public legal person per se does not deny the freedom of scientific and educational activity of the school of higher education and self-government of the academic community, i.e. the academic and institutional autonomy of schools of higher education; the legal form of a state school of higher education as a public legal person must be in line with the purpose of the school, which is to satisfy public interests, in a non-profit manner, while carrying out the educational, training, scientific and cultural activity.

In the constitutional justice case at issue it has also been mentioned that that the protection of legitimate expectations, legal certainty and legal security are inseparable elements of the principle of a state under the rule of law.

7.3. In the constitutional justice case at issue it has been held that the only legal form of a state school of higher education as a public legal person—a public establishment—established in Paragraph 4 of Article 6 of the Law on Science and Studies, is brought in line with the aim of the state school of higher education to satisfy public interests, in a non-profit manner, by carrying out the educational, training, scientific, and cultural activities; while taking account of this, in the constitutional justice case at issue it was also held that Paragraph 4 of Article 6 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law. There are no grounds to differently assess Paragraph 8 of Article 93 of the Law on Science and Studies, wherein the term of implementation of Paragraph 4 of Article 6 of the this law is established.

It has been mentioned that a term longer than 19 months was provided in Paragraph 8 of Article 93 of the Law on Science and Studies for the reorganisation of state schools of higher education, whose legal form is a budgetary establishment, into public establishments. Thus, there is also no ground for asserting that such legal regulation violates the imperatives of protection of legitimate expectation, legal certainty and legal security, and other imperatives of the constitutional principle of a state under the rule of law.

7.4. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 8 of Article 93 of the Law on Science and Studies is not in conflict with the constitutional principle of a state under the rule of law.

XIII

On the compliance of Paragraph 1 of Article 70 of the Law on Science and Studies with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

1. The Supreme Administrative Court of Lithuania, a petitioner, has had doubts as to whether Paragraph 1 of Article 70 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

From the arguments of the petitioner it is clear that the petitioner is disputing the compliance of Paragraph 1 of Article 70 of the Law on Science and Studies not with the entire Paragraph 3 of Article 41 of the Constitution, but only with the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of this paragraph.

2. Paragraph 1 of Article 70 of the Law on Science and Studies provides:

The priority to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes shall belong to enrolling persons according to their capabilities, which are determined by taking into account the results of matura examinations and studying, other results as well as special capabilities. A queue of persons who have completed a secondary education programme with the best results shall be determined in accordance with the procedure laid down by the Ministry of Education and Science.”

3. Thus, the disputed, by the petitioner, Paragraph 1 of Article 70 of the Law on Science and Studies establishes the right of priority to enrol for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, by taking into account the results of matura examinations and studying, other results as well as special capabilities of enrolling persons. Priority, as a rule, means the precedence (a preceding position) in terms of implementing a certain right.

3.1. It needs to be noted that provisions of Paragraph 1 of Article 70 of the Law on Science and Studies are inseparable and should not be construed literally. The determining of “a queue of persons who have completed a secondary education programme with the best results”, which is referred to in this paragraph, is not an end in itself, and in the context of the notion “the priority to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes” it should be understood that the said queue is just a queue (queues) of persons who have completed a secondary education programme with the best results and who enrol for state-funded student places pursuant to certain study programmes of the first cycle and integrated study programmes (of certain fields) in schools of higher education; according to this queue (queues), which determines (determine) the priority to enrol for state-funded student places pursuant to the corresponding study programmes (of a corresponding field), the admission of enrolling persons to the said student places takes place.

3.2. Paragraph 1 of Article 70 of the Law on Science and Studies regulates the following two aspects of the right of priority to enrol for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes.

3.2.1. First, Paragraph 1 of Article 70 of the Law on Science and Studies sets the criteria that are taken into account when assessing the capabilities on the basis of which one determines a queue of priority of persons who enrol for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes in schools of higher education (a queue of persons who have completed a secondary education programme with the best results and who enrol for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes in schools of higher education)—the results of matura examinations and studying, other results as well as special capabilities of enrolling persons.

While taking account of the fact that, as mentioned, a queue of persons who have completed a secondary education programme with the best results, which is referred to in Paragraph 1 of Article 70 of the Law on Science and Studies, may not be understood only as the sole queue for all study programmes of the first cycle and integrated study programmes without taking account of the area and field of studies, it needs to be noted that, under the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and Studies, the capabilities on the basis of which one determines a queue of priority of persons who enrol for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes in schools of higher education should be related to the study programmes (fields) chosen by enrolling persons.

3.2.2. Second, the Ministry of Education and Science is commissioned, while taking account of the criteria established in Paragraph 1 of Article 70 of the Law on Science and Studies—the results of matura examinations and studying, other results as well as special capabilities related to the study area and field chosen by enrolling persons, to set the procedure for determining a queue of persons who have completed a secondary education programme with the best results (inter alia for assessing the meaning of these criteria), whereby the right of priority to enrol for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes is implemented.

It needs to be noted that during the admission to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes in schools of higher education it is obligatory to follow a queue of persons who have completed a secondary education programme with the best results, which is determined in accordance with the procedure set by the Ministry of Education and Science and whereby the right of priority to enrol for the said student places is implemented, otherwise the essence of the right of priority to enrol for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, which is provided for by the law, would be denied.

3.3. In the context of the constitutional justice case at issue it also needs to be noted that the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and Studies is related with Paragraph 1 of Article 52 “Admission to schools of higher education” of this law, wherein it is established that persons having at least the secondary education are admitted by way of competition to study programmes of the first cycle and integrated study programmes in a school of higher education, taking account of learning results, entrance examinations or other criteria set by the school of higher education; a list of competitive subjects according to study fields and the principles of composition of a competitive grade, a lowest passing entrance grade and other criteria are, upon the evaluation by a students’ representation, set by schools of higher education and announced by them not later than two years prior to the beginning of an appropriate academic year.

Thus, under Paragraph 1 of Article 52 of the Law on Science and Studies, the conditions of admission to study programmes of the first cycle and integrated study programmes of schools of higher education, inter alia the majority of the criteria and the weighted value of these criteria for determining a queue of enrolling persons, are set by schools of higher education themselves. The aforesaid paragraph refers to the following two main criteria, which must be taken into account during the admission to study programmes of the first cycle and integrated study programmes: results of studying and of entrance examinations of the enrolling persons; other criteria, inter alia a list of competitive subjects according to study fields, the principles of composition of a competitive grade, and a lowest passing entrance grade may be set by schools of higher education themselves.

It needs to be noted that, while engaging in mutual cooperation, schools of higher education, under Paragraph 1 of Article 52 of the Law on Science and Studies, may establish a common procedure for admission to studies pursuant to study programmes of the first cycle and integrated study programmes.

It also needs to be noted that, under Paragraph 1 of Article 52 of the Law on Science and Studies, the conditions of admission to study programmes of the first cycle and integrated study programmes of schools of higher education, inter alia the criteria that are taken into account during the admission to these studies, must be known to enrolling persons in advance—not later than two years prior to the beginning of an appropriate academic year.

3.4. One needs to note the differences between the legal regulation laid down in Paragraph 1 of Article 70 and that of Paragraph 1 of Article 52 of the Law on Science and Studies.

First, Paragraph 1 of Article 52 of the Law on Science and Studies regulates the conditions of admission to all student places of studies of the first cycle and integrated studies in schools of higher education, i.e. the conditions of admission to both state-funded and non-state-funded student places; Paragraph 1 of Article 70 lays down the criteria by taking account of which, in accordance with the procedure set by the Ministry of Education and Science, one establishes a queue of persons who have completed a secondary education programme with the best results, which determines the priority to enrol for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes and constitutes a mandatory condition of admission to these student places.

Second, in the law there are differences between the criteria that must be taken into account when establishing the conditions of admission to all student places of studies of the first cycle and integrated studies in schools of higher education and the criteria for determining, when admitting to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, a queue of persons who have completed a secondary education programme with the best results: Paragraph 1 of Article 52 of the Law on Science and Studies provides that, when establishing the conditions of admission to all student places of studies of the first cycle and integrated studies in schools of higher education, account is taken of learning results, entrance examinations and other criteria laid down by a school of higher education, whereas Paragraph 1 of Article 70 of this law provides that, when admitting to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, a queue of persons who have completed a secondary education programme with the best results is determined by taking into account the results of matura examinations and studying, other results as well as special capabilities.

Third, the Law on Science and Studies regulates in a different manner the announcement of the conditions of admission to study programmes of the first cycle and integrated study programmes of schools of higher education and the announcement of the procedure for determining, when admitting to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, a queue of persons who have completed a secondary education programme with the best results: it has been mentioned that, under Paragraph 1 of Article 52 of the Law on Science and Studies, the procedure for admission to study programmes of the first cycle and integrated study programmes of schools of higher education, inter alia the criteria that are taken into account during the admission to these studies, must be known to enrolling persons in advance—not later than two years prior to the beginning of an appropriate academic year, whereas Paragraph 1 of Article 70 of the Law on Science and Studies does not establish any time limit as to when one must announce the procedure for determining, when admitting to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, a queue of persons who have completed a secondary education programme with the best results.

3.5. While summing up the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and Studies, inter alia in the context of provisions of Paragraph 1 of Article 52 of this law it needs to be noted that:

this legal regulation lays down the main criteria that must be taken into account in determining, when admitting to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, a queue of persons who have completed a secondary education programme with the best results; the Ministry of Education and Science is commissioned to determine the meaning (weighted value) of these criteria; the said criteria partly differ from those established in Paragraph 1 of Article 52 of the Law on Science and Studies, which regulates the admission to all student places of studies of the first cycle and integrated studies in schools of higher education;

the said legal regulation creates legal preconditions for the emergence of such a situation where schools of higher education, while determining, under Paragraph 1 of Article 52 of the Law on Science and Studies, the conditions of admission to study programmes of the first cycle and integrated study programmes, inter alia to state-funded student places, will announce in advance certain criteria of admission to these studies (which may not necessarily coincide with the criteria specified in Paragraph 1 of Article 70 of the Law on Science and Studies) and the meaning (weighted value) of these criteria, whereas the Ministry of Education and Science will later on set a different procedure for determining, when admitting to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, a queue of persons who have completed a secondary education programme with the best results, inter alia a different meaning (weighted value) of the same criteria;

the Ministry of Education and Science has the powers to set not a recommended, but obligatory to all schools of higher education procedure for determining a queue of persons who have completed a secondary education programme with the best results, which determines the admission to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes; therefore, in those cases where the criteria of admission to study programmes of the first cycle and integrated study programmes established by a school of higher education would differ from those established in Paragraph 1 of Article 70 of the Law on Science and Studies, or the Ministry of Education and Science would establish a different meaning (weighted value) of the same criteria of the procedure for determining, when admitting to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, a queue of persons who have completed a secondary education programme with the best results, then, when admitting to state-funded student places, one should follow the criteria laid down in Paragraph 1 of Article 70 of the Law on Science and Studies and the meaning (weighted value) of these criteria established by the Ministry of Education and Science;

the legal regulation in question creates legal preconditions inter alia for the emergence of such a situation that the persons who have, according to the criteria established by a school of higher education, enrolled in studies pursuant to study programmes of the first cycle and integrated study programmes with the best results would not be admitted to state-funded student places of these studies, as a queue of persons who have completed a secondary education programme with the best results, when admitting to these student places, would be determined on the basis of different criteria and a different meaning (weighted value) of these criteria based on the procedure set by the Ministry of Education and Science;

as Paragraph 1 of Article 70 of the Law on Science and Studies does not establish any time limit as to when one must announce the procedure for determining, when admitting to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, a queue of persons who have completed a secondary education programme with the best results, legal preconditions are created for the emergence of such a situation where the conditions of admission to the said student places in schools of higher education would be neither known in advance nor clear, as well as such a situation where the conditions of admission to studies pursuant to study programmes of the first cycle and integrated study programmes that are established by schools of higher education and announced in advance (not later than two years prior to the beginning of an appropriate academic year) would differ from the conditions of admission to such state-funded studies that are established by the Ministry of Education and Science and announced later;

by establishing, not later than two years prior to the beginning of an appropriate academic year, the criteria of admission to studies pursuant to study programmes of the first cycle and integrated study programmes, schools of higher education cannot envisage as to how these criteria will be combined with the criteria for determining a queue of persons who have completed a secondary education programme with the best results and the meaning of these criteria (weighted value) established by the Ministry of Education and Science for an appropriate academic year; therefore, by establishing in advance the criteria of admission to studies pursuant to study programmes of the first cycle and integrated study programmes, schools of higher education cannot reasonably expect that they will be able to claim the number of student places of state-funded studies pursuant to study programmes of the first cycle and integrated study programmes that meets their capacity.

3.6. Thus, the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and Studies creates legal preconditions for the Ministry of Education and Science to establish such conditions of enrolment for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes in schools of higher education that are neither known in advance nor clear, also such conditions that would differ from the conditions of admission to studies pursuant to study programmes of the first cycle and integrated study programmes that are established by schools of higher education and announced in advance (within the time period set in Paragraph 1 of Article 52 of the Law on Science and Studies—not later than two years prior to the beginning of an appropriate academic year); thus, legal preconditions are also created for the emergence of such situations where the legal regulation laid down by the Ministry of Education and Science regarding the priority to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes and the legal regulation of admission to studies laid down by schools of higher education are not mutually compatible, even though the subject matter of their regulation, insofar as it is related to the admission to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, coincides.

4. The petitioner, while substantiating its doubts as regards the compliance of Paragraph 1 of Article 70 of the Law on Science and Studies with the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, indicates that such legal regulation when a law does not provide for any essential conditions for implementing the right to education free of charge, which is guaranteed in the Constitution, inter alia any criteria enabling to establish which persons are to be regarded as being good at their studies, is in conflict with the Constitution.

While substantiating its doubts as regards the compliance of Paragraph 1 of Article 70 of the Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution, the petitioner notes that, under the disputed legal regulation, such a situation is possible where, after a school of higher education implements the right, guaranteed by the Constitution, to set independently the procedure for the admission to studies of the first cycle and integrated studies, the persons who have enrolled according to that procedure with the best results may be not admitted to the student places pursuant to study programmes of the first cycle and integrated study programmes that are financed by funds from the state budget if the criteria of admission to the said studies established by the corresponding school of higher education differ from the principles and criteria for determining a queue of persons who have completed a secondary education programme with the best results. Thus, such legal regulation creates preconditions to maintain that state schools of higher education, while seeking to receive state funding for the preparation of specialists of certain areas (fields), must establish such criteria of admission to studies and the meaning of these criteria that would virtually not differ from the criteria for determining a queue of persons who have completed a secondary education programme with the best results and the meaning of these criteria that are established by the Ministry of Education and Science.

5. It has been mentioned that the petitioner is disputing the compliance of Paragraph 1 of Article 70 of the Law on Science and Studies with the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution.

5.1. In this context it needs to be noted that the constitutional provision that higher education is available to everyone according to his abilities means that both state schools of higher education and the non-state schools of higher education established according to the procedure prescribed by law, as well as the whole system of establishments of higher education, must be accessible to every person; this provision also means that those who seek higher education may not be subjected to the requirements that are based on the criteria other than their abilities (Constitutional Court ruling of 14 January 2002).

However, while construing the said provision, one may not deny another constitutional provision whereby citizens who are good at their studies are guaranteed education at state schools of higher education free of charge. In its ruling of 14 January 2002 the Constitutional Court noted that there has to be a balance between the legitimate interests of a person and the needs of both the society and the state; the financial possibilities of the state (including possibilities to fund higher education) are not and cannot be unlimited; the constitutional provisions that higher education is available to everyone according to their individual abilities may not be construed as imposing a duty on the state to ensure funding of any striving for higher education of anyone capable of seeking it, without proper consideration of the needs and possibilities of society and the state.

As it has been held by the Constitutional Court more than once, the possibilities of the state to finance higher education are and must be related to the interest of society and the state—their need—to have specialists of various areas who have acquired higher education (Constitutional Court ruling of 14 January 2002). Thus, a duty falls upon the state to establish the demand for specialists of various areas (fields) by taking account of not only the existing demand for such specialists, but also of the demand for such specialists in the future, and to allocate the necessary funds in order to prepare these specialists; the state obligations, which are announced in advance, to finance the preparation of a certain number of specialists are in conformity with the need of society and the state to have specialists of certain areas (fields) with higher education, as well as with the capabilities of society and the state to finance their preparation (Constitutional Court ruling of 20 March 2008).

5.2. It needs to be noted that the establishment of the criteria enabling to determine which persons are regarded as being good at their studies and which, consequently, as prescribed by the Constitution, have the right that their education at state schools of higher education be financed by the state, is directly related to the guarantee of the implementation of the right of a human being (i.e. a citizen who is good at his studies at a state school of higher education) to seek to acquire higher education at a state school of higher education free of charge. In this context it needs to be mentioned that in its rulings of 13 December 2004 and 5 May 2007, the Constitutional Court held that “according to the Constitution, the legal regulation related to defining the content of human rights and freedoms or consolidating the guarantees of their implementation may be established only by means of a law”. The said inter alia means that the criteria enabling to establish which persons are regarded as being good at their studies, and which, consequently, as prescribed by the Constitution, have the right that their education at state schools of higher education be financed by the state, are to be established by law (Constitutional Court rulings of 14 January 2002, 7 June 2007 and 20 March 2008).

5.3. It also needs to be noted that the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution is to be construed inter alia in the context of the constitutional principle of a state under the rule of law, as this principle, as mentioned, is a universal principle upon which the entire legal system of Lithuania and the Constitution itself are based.

One of the essential elements of the principle of a state under the rule of law, which is consolidated in the Constitution, is legal clarity, which implies certain obligatory requirements for a legal regulation: it must be clear and harmonious, legal norms must be formulated precisely and they may not contain any ambiguities (Constitutional Court rulings of 30 May 2003, 26 January 2004, 24 December 2008 and 22 June 2009, as well as decision of 20 April 2010); along with the other requirements, the principle of a state under the rule of law, which is entrenched in the Constitution, also implies a duty of the state to guarantee the certainty and stability of legal regulation as well as the protection of legitimate expectations (Constitutional Court ruling of 24 January 2003).

The Constitutional Court has also held more than once that the constitutional principle of a state under the rule of law implies the requirements for the legislator to establish such legal regulation that would inter alia provide subjects of legal relations with an opportunity to be aware of what is required of them by law, so that they could orientate their behaviour according to the requirements of law, also that legal norms would be established in advance, the legal regulation laid down in laws and other legal acts would be clear, understandable and consistent, and legal acts would contain no provisions simultaneously regulating the same public relations in a different manner.

5.4. In the context of the constitutional justice case at issue it needs to be noted that in the context of the constitutional principle of a state under the rule of law the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution inter alia implies the requirements for the legislator to lay down such legal regulation that the conditions of enrolment for state-funded student places in schools of higher education, inter alia the criteria of admission to studies and the meaning of these criteria, would be clear, consistent and announced in advance, in order that persons seeking higher education free of charge could be aware in advance of what will be required of them, so that they would be able to efficiently implement their constitutional right in question.

6. In this Constitutional Court ruling it has been noted more than once that in the jurisprudence of the Constitutional Court it has been held that, traditionally, the autonomy of a school of higher education is conceived as the right of a school of higher education to independently determine and establish in the regulations or statute its organisational and governance structure, its relations with other partners, the procedure for research and studies, study programmes, the procedure for admission of students, and to resolve other related questions, as well as that there are certain spheres of activities that are independent of the control of the executive power (Constitutional Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008 and 20 March 2008).

6.1. It has been mentioned that the interests of schools of higher education and those of society must be coordinated; autonomy of schools of higher education must be combined with their duty to observe the Constitution and laws, as well as with their responsibility and accountability to society; autonomy of schools of higher education does not mean that the activities of such schools may not be subject to state control; quite to the contrary, these activities, since they are related to inter alia the implementation of constitutional human rights and freedoms, as well as to the use of funds of the state budget, must be subject to regulation and supervision.

It has also been mentioned that Paragraph 4 of Article 40 of the Constitution consolidates not only the right, but also the duty of the state to supervise the activities of establishments of teaching and education; the supervision of the activities of establishments of teaching and education also involves the supervision and control of the observance of the Constitution and laws.

6.2. In the context of the constitutional justice case at issue it needs to be noted that the right of schools of higher education to set the procedure for admission of students, inter alia the conditions of their admission (the criteria and the meaning (weighted value) of these criteria), is one of the essential elements of autonomy of schools of higher education. The state, inter alia the institutions of the executive power thereof, in regulating and supervising the implementation of the said right, may exercise no essential influence over the independent implementation of that right provided that the constitutional human rights and freedoms, inter alia the constitutional rights of citizens, who are good at their studies at state schools of higher education, to education free of charge, are not violated.

6.3. In the constitutional justice case at issue it has been mentioned that the constitutional guarantee of autonomy of schools of higher education implies that the legislator is obliged to provide for a special legal regulation on the basis of which a local legal regulation—laid down by schools of higher education themselves—must constitute the greatest part of the legal regulation of these relations; therefore, the general legal regulation laid down by laws in respect of all schools of higher education should not be too detailed and should not limit the right of schools of higher education, stemming from the principle of their autonomy, to regulate their activities by means of local legal acts.

6.4. It has been mentioned that the constitutional principle of a state under the rule of law implies that a legal regulation is subject to certain obligatory requirements, inter alia that legal acts may contain no provisions simultaneously regulating the same public relations in a different manner. The said inter alia implies a requirement that the implementation of the constitutional right to education free of charge in state schools of higher education, inter alia the conditions of admission to state-funded student places in schools of higher education, be not simultaneously regulated in a different manner.

6.5. Thus, in the context of the constitutional justice case at issue it needs to be noted that, while taking account of the imperative of coordination of interests of schools of higher education and those of society, in the context of the constitutional principle of a state under the rule of law the guarantee of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution implies inter alia the fact that the legal regulation established by the state must create preconditions to combine the legal regulation laid down by state institutions supervising the execution of the policy on higher education and the legal regulation laid down by schools of higher education regarding the conditions of admission of persons to state-funded student places in schools of higher education.

7. It has been mentioned that the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and Studies creates legal preconditions for the Ministry of Education and Science to establish such conditions of enrolment for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes in schools of higher education:

that are neither known in advance nor clear; it needs to be noted that inter alia no time limit is set for the preannouncement of these conditions;

that would differ from the conditions of admission to studies pursuant to study programmes of the first cycle and integrated study programmes that are established by schools of higher education and announced in advance (within the time limit set in Paragraph 1 of Article 52 of the Law on Science and Studies—not later than two years prior to the beginning of an appropriate academic year); thus, legal preconditions are also created for the emergence of such a situation that the legal regulation laid down by the Ministry of Education and Science regarding the priority to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes and the legal regulation of admission to studies laid down by schools of higher education are not mutually compatible, even though the subject matter of their regulation, insofar as it is related to the admission to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, coincides.

It has also been mentioned that in the context of the constitutional principle of a state under the rule of law the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution inter alia implies the requirements for the legislator to lay down such legal regulation under which the conditions of enrolment for state-funded student places in schools of higher education, inter alia the criteria of admission to studies and the meaning of these criteria, would be clear, consistent and announced in advance, in order that persons seeking higher education free of charge could be aware in advance of what will be required of them, so that they would be able to efficiently implement their constitutional right in question.

It has also been mentioned that, while taking into account the imperative of coordination of interests of schools of higher education and those of society, in the context of the constitutional principle of a state under the rule of law the guarantee of autonomy of schools of higher education, entrenched in Paragraph 3 of Article 40 of the Constitution, implies the fact that the legal regulation established by the state must create preconditions to combine the legal regulation laid down by state institutions supervising the execution of the policy on higher education and the legal regulation laid down by schools of higher education regarding the conditions of admission of persons to state-funded student places in schools of higher education.

Thus, the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and Studies, which creates legal preconditions for the Ministry of Education and Science to establish such conditions of enrolment for state-funded student places pursuant to study programmes of the first cycle and integrated study programmes in schools of higher education that would be neither known in advance nor clear, and which would differ from the conditions of admission to studies pursuant to study programmes of the first cycle and integrated study programmes that are established by schools of higher education and announced in advance, is not in line with the requirements stemming from Paragraph 3 of Article 40 and the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and from the constitutional principle of a state under the rule of law.

8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 of Article 70 of the Law on Science and Studies, to the extent that this paragraph does not establish, for the Ministry of Education and Science, any time limit for the preannouncement of the procedure for determining a queue of persons who have completed a secondary education programme with the best results, which would be sufficient for the efficient implementation of the constitutional right to education at state schools of higher education free of charge, also to the extent that this paragraph does not establish a duty for the Ministry of Education and Science and schools of higher education to coordinate the conditions of admission to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, is in conflict with Paragraph 3 of Article 40 and the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

XIV

On the compliance of Paragraphs 2, 5, 7, 11 of Article 70 and Paragraph 4 of Article 76 of the Law on Science and Studies with Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraphs 2, 5, 7, 11 of Article 70 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

2. Article 70 “Payment of study costs in student places funded by the State” of the Law on Science and Studies provides:

1. The priority to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes shall belong to enrolling persons according to their capabilities which are determined by taking into account the results of matura examinations, studying, other results as well as special capabilities. A queue of persons who have completed a secondary education programme with the best results shall be determined by the Ministry of Education and Science.

2. State-funded student places according to study programmes of the first cycle and integrated study programmes shall be allocated to schools of higher education in accordance with the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results, without exceeding state funding established for each study area. Distribution of funding for study fields shall be established by the Government, taking into account the needs of the national economic, social and cultural development and financial possibilities of the State.

3. A preliminary number of state-funded student places of the first cycle and integrated studies in each study area or a set of study fields shall be announced by the Ministry of Education and Science not later than by 16 February of each year.

4. Only those persons whose study results are not lower than the minimum rates fixed by the Ministry of Education and Science may put in for state-funded student places of the first cycle and integrated study programmes.

5. The final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas shall be approved by the Ministry of Education and Science after the results of admission to schools of higher education are made known and study agreements are signed.

6. The number, approved by the Ministry of Education and Science, of student places of a permanent-form in a school of higher education, when the studies by students admitted to the said student places are covered with the state budget funds pursuant to the provisions of this Article, shall remain during the whole set period of studies, and the number of student places of an extended-form in a school of higher education, when the studies by students admitted to the said student places are covered with the state budget funds, shall remain during a period which lasts one-and-a-half time longer than a study period established for the appropriate studies of a permanent form, with the exception of the cases provided for in Paragraph 8 of this Article. In the cases when a person is excluded from a school of higher education, loses the state funding or terminates studies and when a state-funded student place is not occupied in accordance with the procedure laid down in Paragraph 14 of this Article, state funding for a student place shall remain for a school of higher education until the end of a budgetary year.

7. A person whose studies of the first cycle or integrated studies are funded by the State shall, after the first two years of studies and in the case of extended studies—after the completion of half of the study programme, lose state funding for studies if the mean of the results of his studies during an appropriate period is more than 20 percentage points lower than the mean of the results of studies of an appropriate study programme and form by students of the same year of studies of the school of higher education during an appropriate period. A person who loses state funding must pay for his studies the study cost fixed by a school of higher education and his state-funded student place shall be occupied by a person whose study results in a student place which is not funded by the State are the best.

8. A person whose studies are funded by the State in accordance with the procedure laid down by the Government shall have the right to change a study programme within the same study area, without losing the remaining part of state funding of the studies, where such part does not exceed the standard study cost of that study programme.

9. The number of state-funded student places of the second cycle, doctoral studies and studies which do not award a degree shall be fixed each year prior to 11 March according to concrete study fields by the Government, taking account of national economic, social and cultural development needs as well as financial possibilities of the State. Student places of studies of the second cycle and studies which do not award a degree shall be distributed among universities by the Ministry of Education and Science according to the results of their scientific (artistic) activities and/or the choice by those enrolling into study programmes of the first cycle and integrated study programmes according to a study or scientific field. Doctoral student places shall be distributed for institutions of science and studies by the Ministry of Education and Science in accordance with the results of scientific (artistic) activities and doctoral studies.

10. The state shall fund the study cost of persons studying in state-funded student places in accordance with the procedure laid down in Article 76 of this Law.

11. State budget funds to cover the study cost in state-funded student places shall be allocated in accordance with the procedure laid down by the Government.

12. In the cases and pursuant to the procedure laid down by the Government, persons who studied in state-funded student places, who have been excluded from a school of higher education or have terminated their studies, must return into the state budget the funds (or part thereof) intended to cover the study cost in state-funded student places.

13. The Ministry of Education and Science shall lay down the procedure for competing of persons, who have acquired education in the institutions of foreign countries, for state-funded student places.

14. After having excluded from a school of higher education a person who studied in a state-funded student place or after he himself terminates studies (with the exception of the cases provided for in Paragraph 8 of this Article), a person who studies in the same study programme of the same year of studies in the student place which is not funded by the State may be transferred to the said state-funded student place in the manner prescribed by the school of higher education (with the exception of the person referred to in Article 72 of this Law).”

3. While substantiating its doubts regarding all disputed provisions of Article 70 of the Law on Science and Studies, the petitioner has referred to the provisions of the official constitutional doctrine, which were formulated by the Constitutional Court when it was construing the provision of Paragraph 3 of Article 41 of the Constitution which guarantees free-of-charge education in state schools of higher education to the citizens who are good at their studies. Thus, from the arguments of the petitioner it is clear that it is disputing the compliance of Paragraphs 2, 5, 7, 11 of Article 70 of the Law on Science and Studies with not entire Paragraph 3 of Article 41 of the Constitution but only with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of the said paragraph.

4. From the arguments of the petitioner it is also clear that they are essentially the same as regards the disputing the interrelated provisions of Paragraphs 2 and 5 of Article 70 of the Law on Science and Studies. While taking account of this fact, the Constitutional Court will first of all investigate whether the provisions of Paragraphs 2 and 5 of Article 70 of the Law on Science and Studies are not in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

4.1. It has been mentioned that Paragraph 2 of Article 70 of the Law on Science and Studies provides:

State-funded student places according to study programmes of the first cycle and integrated study programmes shall be allocated to schools of higher education in accordance with the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results, without exceeding state funding established for each study area. Distribution of funding for study fields shall be established by the Government, taking into account the needs of the national economic, social and cultural development and financial possibilities of the State.”

It has also been mentioned that Paragraph 5 of Article 70 of the Law on Science and Studies provides:

The final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas shall be approved by the Ministry of Education and Science after the results of admission to schools of higher education are made known and study agreements are signed.”

4.2. Thus, Paragraph 2 of Article 70 of the Law on Science and Studies has established two general criteria for distribution of state-funded student places according to study programmes of the first cycle and integrated study programmes among schools of higher education. The first criterion in the distribution of these places is the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results, whereas the second criterion is the limits of state funding provided for each study field (under Paragraph 24 of Article 4 of the Law on Science and Studies, “study areas” are humanitarian, social, physical, biomedical, technology sciences and arts). No other criteria for distribution of state-funded student places according to study programmes of the first cycle and integrated study programmes among schools of higher education have been established either in Paragraph 2 of Article 70 of the Law on Science and Studies or in other provisions of this law.

The disputed Paragraph 2 of Article 70 of the Law on Science and Studies also provides that distribution of state funding for study fields, thus, also the limits of state funding provided for every study field, are established by the Government, taking into account the needs of the national economic, social and cultural development and financial possibilities of the state.

Thus, under Paragraph 2 of Article 70 of the Law on Science and Studies, state-funded student places according to study programmes of the first cycle and integrated study programmes among schools of higher education are distributed among schools of higher education in an equal manner, i.e. under the same criteria (the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results and the state funding established for each study area) state-funded student places may be distributed among both state and non-state schools of higher education. Paragraph 2 of Article 70 of the Law on Science and Studies does not establish that in the course of distribution of state-funded student places the state schools of higher education chosen by persons who have completed the secondary education programme with the best results will have the priority.

4.3. Paragraph 2 of Article 70 of the Law on Science and Studies is related to Paragraph 5 of the same article; the latter paragraph regulates the establishment of the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas.

4.3.1. Paragraph 5 of Article 70 of the Law on Science and Studies is also to be construed while taking account of Paragraph 3 of the same article; the latter paragraph regulates the establishment of a preliminary number of state-funded student places of the first cycle and integrated studies in each study area or a set of study fields: this number is announced by the Ministry of Education and Science not later than by 16 February of each year. A preliminary number of state-funded student places of the first cycle and integrated studies in each study area or a set of study fields is established prior to students’ acceptance to such studies, i.e. when the choice between schools of higher education made by enrolling persons is still unknown. While establishing a preliminary number of state-funded student places of the first cycle and integrated studies in each study area or a set of study fields, one takes account of the aforesaid second criterion, established in Paragraph 2 of Article 70 of the Law on Science and Studies, for distribution of state-funded student places according to study programmes of the first cycle and integrated study programmes among schools of higher education—state funding established by established by the Government, taking into account the needs of the national economic, social and cultural development and financial possibilities of the state.

Thus, Paragraph 3 of Article 70 of the Law on Science and Studies essentially regulates the requisition by state for schools of higher education to prepare specialists of corresponding areas (fields): while taking into account the needs of the national economic, social and cultural development and financial possibilities of the state, a preliminary number of state-funded student places of the first cycle and integrated studies in each study area or a set of study fields is established. It needs to be noted that a preliminary number of state-funded student places of the first cycle and integrated studies in schools of higher education is a general one for all schools of higher education, i.e. preliminary numbers of state-funded student places of the first cycle and integrated studies are not established separately for state and non-state schools of higher education.

4.3.2. Under disputed Paragraph 5 of Article 70 of the Law on Higher Education, it is the Ministry of Education and Science that is empowered to establish the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas. The said ministry does so after the results of admission to schools of higher education are made known and study agreements are signed.

Thus, the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas is established by specifying and segmenting among schools of higher education a preliminary number of state-funded student places of the first cycle and integrated studies in each study area or a set of study fields; the preliminary number is established under Paragraph 3 of Article 70 of the Law on Science and Studies. It is done while taking account of the said first criterion, established in Paragraph 2 of Article 70 of the Law on Science and Studies, for distribution of state-funded student places according to study programmes of the first cycle and integrated study programmes among schools of higher education—the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results, which becomes known after the results of admission to schools of higher education are made known and study agreements are signed.

It needs to be noted that, under Paragraph 5 of Article 70 of the Law on Higher Education, while establishing the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas, one separately does not take account of the fact whether enrolling persons who have completed the secondary education programme with the best results have chosen state or non-state schools of higher education.

4.4. Doubting the constitutionality of Paragraphs 2 and 5 of Article 70 of the Law on Science and Studies, the petitioner maintains that, under the jurisprudence of the Constitutional Court, free-of-charge education is guaranteed only to those citizens that are good at their studies, who are studying by requisition of the state in order to satisfy the state established demand for specialists (whose number is announced in advance) of corresponding areas (fields); the state must establish the demand for specialists of corresponding areas (fields) and submit a corresponding requisition to state schools of higher education, whereas, upon assessing the needs of society and the state and the financial capabilities of the state, in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, the state must submit such a requisition to non-state schools of higher education.

Thus, from the arguments of the petitioner it is clear that it is disputing something amounting to legislative omission: the fact that Paragraphs 2 and 5 (disputed by the petitioner) of Article 70 of the Law on Science and Studies does not establish the rule (mentioned by the petitioner) of the priority for state schools of higher education made in the requisition by the state when the distribution of state-funded student places of the first cycle studies and integrated studies is regulated, i.e. the fact that non-state schools of higher education may receive such state-funded student places only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, even though such a rule, under the Constitution, should have been established by the legislator namely in the provisions disputed by the petitioner.

4.5. In the constitutional justice case at issue it needs to be noted that the Constitutional Court has held that a legal gap, inter alia legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly, nor implicitly, neither in a concrete legal act (part thereof), nor any other legal acts at all, even though there exists a need for the legal regulation of these social relations, while the said legal regulation, in case of legislative omission, must be established precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher power, inter alia the Constitution itself (Constitutional Court decisions of 8 August 2006, 5 November 2008, rulings of 2 March 2009, 22 June 2009, 11 December 2009, 29 September 2010, 29 November 2010 and 7 July 2011).

4.6. It has been mentioned that the petitioner is disputing the compliance of Paragraphs 2 and 5 of Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution.

4.6.1. In the constitutional justice case at issue it has also been mentioned that the legal position of the Constitutional Court (ratio decidendi) in corresponding constitutional justice cases has the significance of the precedent; the Constitutional Court is bound by the precedents that it itself has created in previous constitutional justice cases and by the official constitutional doctrine that it itself has formed, which substantiates those precedents.

4.6.2. It has been mentioned that, while construing the constitutional provision that higher education shall be accessible to everyone according to his individual abilities, one may not deny another constitutional provision that citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge. In its ruling of 14 January 2002 the Constitutional Court noted that there has to be a balance between the legitimate interests of a person and the needs of both the society and the state; the financial possibilities of the state (including possibilities to fund higher education) are not and cannot be unlimited; the constitutional provisions that higher education shall be available to everyone according to their individual abilities cannot be construed as imposing a duty on the state to ensure funding of any higher education for anyone capable of seeking it without proper consideration of the needs and possibilities of the society and the state.

4.6.3. It needs to be noted that the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution implies the right of citizens who are good at their studies namely in state schools of higher education to receive higher education free of charge and it implies the corresponding duty of the state to provide for the funds in the state budget necessary to guarantee free-of-charge education for citizens who are good at their studies namely at state schools of higher education.

In addition, the Constitution guarantees higher education covered by state funds not to all citizens who are good at their studies in state schools of higher education, no matter under what conditions they were admitted to such schools (i.e. not to all those citizens who are good at their studies, who, however, in the course of admittance to a corresponding state school of higher education were not admitted to the places whose number announced in advance conforms to the obligation of the state to fund the preparation of a certain number of specialists, and who were admitted to study at the state school of higher education at their own expense), but only to those who are prepared in order to satisfy the state established demand for specialists of corresponding areas (fields); it is namely for financing of their studies that one has to provide the necessary funds in the state budget (Constitutional Court ruling of 20 March 2008).

On the other hand, the Constitution does not contain a prohibition for the state to undertake higher financial obligations, in accordance with its possibilities, to citizens learning at schools of higher education (Constitutional Court ruling of 14 January 2002).

4.6.4. It also needs to be noted that the possibility for the state to undertake higher financial obligations than those emerging from the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution with regard to citizens learning at schools of higher education inter alia means the right of the state to guarantee free-of-charge education in some cases to citizens learning in non-state schools of higher education, i.e. to those citizens who, under Paragraph 3 of Article 41 of the Constitution, do not enjoy the right to free-of-charge higher education and whose studies do not have to be financed by the state.

In its decision of 18 December 2009 the Constitutional Court held that it is impossible to construe the Constitution, inter alia Paragraph 3 of Article 41 thereof, as meaning that, purportedly, subsequent to a requisition of the state, specialists of corresponding areas (fields) cannot be prepared in non-state schools of higher education by means of funds of the state budget. Also such situations are possible, where specialists of corresponding areas (fields) cannot be prepared in state schools of higher education due to objective circumstances (for instance, situations are possible, when state schools of higher education do not possess special training facilities, etc., in order to prepare the specialists of certain areas (fields) which are necessary for the state). Alongside, it needs to be noted that in such cases the state requisition submitted to a non-state school of higher education for preparation of specialists of certain areas (fields) by funds from the state budget must be grounded on a balanced assessment of the needs of society and of the state and that of financial capabilities of the state and it may not be in conflict with inter alia the constitutional imperative of social harmony. In such cases the state, while submitting the requisition to non-state schools of higher education, must guarantee that the expenses of learning (studies) of such specialists will be covered by state funds, in cases their learning will meet the criteria of good learning established by law.

Thus, funds from the state budget must be allocated to state schools of higher education, inter alia the funds necessary in order that the free-of-charge education would be guaranteed to the citizens who are learning at state schools of higher education, who are prepared in order to meet the demand of specialists of corresponding areas (fields), which is established by the state, and whose learning complies with the criteria of good learning established by the law; upon assessing the needs of society and the state and the financial capabilities of the state, in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, they may be prepared also in non-state schools of higher education upon requisition of the state and from funds of the state budget; in such a case the state must guarantee that the expenses of learning (studies) of such specialists will be covered by state funds, in cases the learning of the said individuals will meet the criteria of good learning established by law (Constitutional Court decision of 18 December 2009).

Consequently, whatever model of higher education funding is chosen, the legislator must heed the requirement, emerging from the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, that upon assessing the needs of society and the state and the financial capabilities of the state, the state must establish the demand for specialists of corresponding areas (fields) and submit a requisition, first of all, to state schools of higher education, to prepare such specialists, and only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, such a requisition may be submitted to non-state schools of higher education as well.

4.6.5. In the context of the constitutional justice case at issue it also needs to be mentioned that in its ruling of 20 March 2008 the Constitutional Court held:

the state which, under the Constitution, has a duty to support science, secure accessibility of higher education, guarantee higher education in state schools of higher education to citizens who are good at their studies free of charge, who are prepared by meeting the established demand of specialists of corresponding areas (fields), may choose and establish in laws various models of financing of higher education; while doing so, the legislator is bound by the constitutional obligations of the state, as well as financial capabilities of the state which, as mentioned, are not limitless; the law may not establish any such model of financing of higher education, which would not be based upon a balanced assessment of the needs of society and the state and the financial capabilities of the state, where the state would clearly obviously be unable to implement such a model; the establishment of such a model would be in conflict inter alia with the constitutional imperative of social harmony and would not allow the state to perform its various other obligations;

the constitutional provision that the state shall supervise the activities of establishments of teaching, the constitutional imperative of coordination of the interests of schools of higher education and those of society, the constitutional obligation of the state to secure the efficiency of the system of higher education imply also a duty of the state to adopt the corresponding decisions linked with financing higher education in state schools of higher education by assessing whether higher education is provided in these schools of higher education according to confirmed programmes of studies, also, upon assessment of the quality of these programmes and that of their execution, and upon assessment of the possibilities of schools of higher education to prepare a certain number of good quality specialists of corresponding areas (fields); one must also assess whether there are necessary conditions in state schools of higher education to provide the higher education which meets the standards established by the state to the persons whose studies are financed by the state budget funds, as well as to persons who study at their own expense;

while establishing a model of financing higher education and regulating, by means of legal acts, the relations linked thereto, one must take account of the fact that, the higher education, which would meet the quality standards established by the state, can be provided by the schools of higher education that have teachers of high qualification, the indispensable training facilities, the necessary infrastructure etc.; under the Constitution, the rights enjoyed by schools of higher education may be differentiated (by heeding the Constitution) inter alia according to the status of these schools of higher education (whether they are universities or not), the level of higher education provided by them to the persons who are studying therein, the programme of studies conducted by them, the scientific potential thereof etc.; thus, when account is taken of all this, funding of state schools of higher education from the state budget can also be different, and, in certain respects it must be different; there is not any provision of the Constitution which could be construed as implying egalitarianism in this area.

4.7. It has been mentioned that Paragraph 2 (disputed by the petitioner) of Article 70 of the Law on Science and Studies has established two general criteria for distribution of state-funded student places according to study programmes of the first cycle and integrated study programmes among schools of higher education: the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results and the limits of state funding provided for each study field; Paragraph 2 of Article 70 of the Law on Science and Studies does not establish that in the course of distribution of state-funded student places the state schools of higher education chosen by persons who have completed the secondary education programme with the best results will have the priority. Thus, Paragraph 2 of Article 70 of the Law on Science and Studies does not establish, either, that state-funded student places chosen by persons who have completed the secondary education programme with the best results may be received by non-state schools of higher education only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances. No other criteria for distribution of state-funded student places according to study programmes of the first cycle and integrated study programmes among schools of higher education have been established either in Paragraph 2 of Article 70 of the Law on Science and Studies or in other provisions of this law.

It has been mentioned that whatever model of higher education funding is chosen, the legislator must heed the requirement, emerging from the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, that upon assessing the needs of society and the state and the financial capabilities of the state, the state must establish the demand for specialists of corresponding areas (fields) and submit a requisition, first of all, to state schools of higher education, to prepare such specialists, and only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, such a requisition may be submitted to non-state schools of higher education as well.

Thus, the legal regulation whereby Paragraph 2 of Article 70 of the Law on Science and Studies does not establish that, in the course of distribution, among schools of higher education, of state-funded student places in the study programmes of the first cycle and integrated studies, one must take account of the capabilities of state schools of higher education to satisfy the state established demand for specialists of corresponding areas (fields) and that it does not establish that state-funded student places chosen by persons who have completed the secondary education programme with the best results may be received by non-state schools of higher education only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, is not in line with the requirement, emerging from the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, that upon assessing the needs of society and the state and the financial capabilities of the state, the state must establish the demand for specialists of corresponding areas (fields) and submit a requisition, first of all, to state schools of higher education, to prepare such specialists, and only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, such a requisition may be submitted to non-state schools of higher education as well.

4.8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 of Article 70 of the Law on Science and Studies, to the extent that it does not establish that, in the course of distribution, among schools of higher education, of state-funded student places in the study programmes of the first cycle and integrated studies, one must take account of the capabilities of state schools of higher education to satisfy the state established demand for specialists of corresponding areas (fields) and that it does not establish that state-funded student places chosen by persons who have completed the secondary education programme with the best results may be received by non-state schools of higher education only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, is in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

4.9. It has been mentioned that from the arguments of the petitioner it is clear that it is disputing something that inter alia in Paragraph 5 of Article 70 of the Law on Science and Studies would amount to legislative omission, i.e. the fact that Paragraph 5 (disputed by the petitioner) of Article 70 of the Law on Science and Studies does not establish the rule of the priority for state schools of higher education made in the requisition by the state when the final distribution, among schools of higher education, of state-funded student places of the first cycle studies and integrated studies is regulated.

4.9.1. It has been mentioned that, under Paragraph 5 of Article 70 of the Law on Higher Education, while establishing the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas, one separately does not take account of the fact whether enrolling persons who have completed the secondary education programme with the best results have chosen state or non-state schools of higher education; thus, under such legal regulation, no priority is given to the state schools of higher education chosen by persons who have completed the secondary education programme with the best results.

It has also been mentioned that the legislator must heed the requirement, emerging from the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, that upon assessing the needs of society and the state and the financial capabilities of the state, the state must establish the demand for specialists of corresponding areas (fields) and submit a requisition, first of all, to state schools of higher education, to prepare such specialists, and only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, such a requisition may be submitted to non-state schools of higher education as well.

4.9.2. When one is deciding whether Paragraph 5 of Article 70 of the Law on Science and Studies, in the aspect that, while establishing the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas, one separately does not take account of the fact whether enrolling persons who have completed the secondary education programme with the best results have chosen state or non-state schools of higher education, is not in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, it is necessary to take account of the fact that Paragraph 5 of Article 70 of the Law on Science and Studies is related to Paragraph 2 of the same article, wherein the general criteria for distribution, among schools of higher education, of state-funded student places in the study programmes of the first cycle and integrated studies. It implies that, while establishing, under Paragraph 5 of Article 70 of the Law on Higher Education, the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas, one must take account of the general criteria (established in Paragraph 2 of the same article) for distribution, among schools of higher education, of state-funded student places in the study programmes of the first cycle and integrated studies.

In the constitutional justice case at issue it has been held that Paragraph 2 of Article 70 of the Law on Science and Studies, to the extent that it does not establish that, in the course of distribution, among schools of higher education, of state-funded student places in the study programmes of the first cycle and integrated studies, one must take account of the capabilities of state schools of higher education to satisfy the state established demand for specialists of corresponding areas (fields) and that it does not establish that state-funded student places chosen by persons who have completed the secondary education programme with the best results may be received by non-state schools of higher education only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, is in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

In view of the aforesaid, there are not any arguments allowing to assert that, in the aspect specified by the petitioner, there is legislative omission in Paragraph 5 of Article 70 of the Law on Science and Studies as well, i.e. that this paragraph must provide that, while establishing the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas, one has to take account of the fact whether enrolling persons who have completed the secondary education programme with the best results have chosen state or non-state schools of higher education.

It needs to be noted that also such legal regulation, established in Paragraph 5 of Article 70 of the Law on Science and Studies, would not be in conflict with the Constitution, whereby the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas is approved by the Ministry of Education and Science, after the results of admission to schools of higher education are made known and study agreements are signed, provided Paragraph 2 of the same article established that, in the course of distribution, among schools of higher education, of state-funded student places in the study programmes of the first cycle and integrated studies, one must take account of the capabilities of state schools of higher education to satisfy the state established demand for specialists of corresponding areas (fields), and also one must take account of the fact that state-funded student places chosen by persons who have completed the secondary education programme with the best results may be received by non-state schools of higher education only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances.

4.10. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 5 of Article 70 of the Law on Science and Studies is not in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

5. It has been mentioned that the group of Members of the Seimas, a petitioner, has doubted whether Paragraph 7 of Article 70 of the Law on Science and Studies is not in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

5.1. As mentioned, Paragraph 7 of Article 70 of the Law on Science and Studies provides:

A person whose studies of the first cycle or integrated studies are funded by the State shall, after the first two years of studies and in the case of extended studies—after the completion of half of the study programme, lose state funding for studies if the mean of the results of his studies during an appropriate period is more than 20 percentage points lower than the mean of the results of studies of an appropriate study programme and form by students of the same year of studies of the school of higher education during an appropriate period. A person who loses state funding must pay for his studies the study cost fixed by a school of higher education and his state-funded student place shall be occupied by a person whose study results in a student place which is not funded by the State are the best.”

5.2. Thus, Paragraph 7 of Article 70 of the Law on Science and Studies has provided for the procedure for assessment of the learning results of a person whose studies of the first cycle or integrated studies are funded by the state in order to establish whether he continues to meet the criteria of good learning established in this paragraph so that his studies could further be funded by the state. Having established that the person no longer meets the criteria of good learning (if the mean of the results of his studies during an appropriate period is more than 20 percentage points lower than the mean of the results of studies of an appropriate study programme and form by students of the same year of studies of the school of higher education during an appropriate period), he loses state funding for studies and his state-funded student place is occupied by a person whose study results in a student place which is not funded by the state are the best.

5.2.1. Paragraph 7 of Article 70 of the Law on Science and Studies has provided for the time period of assessment of the learning results of a person whose studies of the first cycle or integrated studies are funded by the state in order to establish whether he continues to meet the criteria of good learning established in this paragraph so that his studies could further be funded by the state—this time period is two years of studies or half of the study programme in case of extended studies. The said time period encompasses more than one period of academic learning (as a rule, a semester), after which the basic checking of the knowledge of persons studying in schools of higher education is conducted (as a rule, by means of taking examinations or credit tests in the studied subjects).

5.2.2. It needs to be noted that Paragraph 14 of Article 70 of the Law on Science and Studies provides for a possibility for a person whose studies are funded by the state to lose state funding for his studies earlier than during the period of assessment of learning results established in Paragraph 7 of this paragraph, i.e., when a person studying in a state-funded student place is excluded from a school of higher education or terminates his studies (in such cases a person who studies in the same study programme of the same year of studies in the student place which is not funded by the state may be transferred to the said state-funded student place in the manner prescribed by the school of higher education). However, this possibility is not to be related only to the assessment of the learning results of the person during an academic period of learning, after which the basic checking of the knowledge of persons studying in schools of higher education is conducted in order to establish whether they meet the criteria of good learning so that the funding of their studies would continue. The said possibility also depends upon negative results of learning of another person, who studies in the same study programme of the same year of studies in the student place which is funded by the state, or upon other circumstances determining exclusion of the said person from the school of higher education or upon his resolve to terminate his studies.

Thus, Paragraph 14 of Article 70 of the Law on Science and Studies has not established any other time period for assessment of learning results than the one established in Paragraph 7 of the same article, which is designed to establish whether the persons whose studies of the first cycle or integrated studies are funded by the state meet the criteria of good learning.

5.2.3. It also needs to be noted that Article 71 of the Law on Science and Studies provides that part of the persons in the student places of the first cycle or integrated studies, which are not funded by the state, who finished with the best results the first two academic years (in the case of extended studies—half of a study programme) and the remaining academic years, may be compensated for the study cost paid for the studies during an appropriate period; it is also established therein that the overall number of persons for whom the study cost is compensated shall not exceed 10 per cent of the number of persons who, in that academic year, finished studies of the first two academic years (in the case of extended studies—half of a study programme) or the remaining academic years in the state-funded student places of studies of the first cycle or integrated studies. Thus, Article 71 of the Law on Science and Studies has provided for a possibility to compensate, part of the persons in the student places of the first cycle or integrated studies, which are not funded by the state, who study with the best results, for part or entire study costs paid, i.e. this article regulates relations of different character than those regulated in Article 70 “Payment of study costs in student places funded by the State” of the Law on Science and Studies.

5.3. The doubts of the petitioner regarding the constitutionality of Paragraph 7 of Article 70 of the Law on Science and Studies are substantiated by the provisions of the official constitutional doctrine whereby the results of learning of the citizens who study in state schools of higher education subsequent to the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) must be assessed on a regular basis after checking the knowledge of the studied subjects after each period of academic learning; the citizens who were admitted in state schools of higher education to study subsequent to the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) must be guaranteed the education free of charge till the first basic checking of the knowledge of the subjects studied by them.

Thus, it is clear from the arguments of the petitioner that it has doubted the constitutionality of Paragraph 7 of Article 70 of the Law on Science and Studies only insofar as it provides for the time period of assessment of the learning results of a person whose studies of the first cycle or integrated studies are funded by the state in order to establish whether he continues to meet the criteria of good learning established in this paragraph so that his studies could further be funded by the state—this time period is two years of studies or half of the study programme in case of extended studies.

5.4. It has been mentioned that the petitioner is disputing the compliance of Paragraph 7 of Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution.

5.4.1. As mentioned, in its ruling of 20 March 2008, the Constitutional Court held that it is impossible to construe the constitutional provision whereby citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge, as meaning that, purportedly, the Constitution guarantees higher education covered by state funds to all citizens who are good at their studies in state schools of higher education, no matter under what conditions they were admitted to such schools, i.e. also to those citizens who are good at their studies, who, however, in the course of admittance to a corresponding state school of higher education were not admitted to the places whose number announced in advance conforms to the obligation of the state to fund the preparation of a certain number of specialists, and who were admitted to study at the state school of higher education at their own expense; the Constitution guarantees higher education covered by state funds not to all citizens who are good at their studies in state schools of higher education, but only to those who are prepared in order to meet the demand of specialists of corresponding areas (fields), which is established by the state; if learning of these citizens does not correspond to the criteria of good learning established by law, the state does not have to finance their studies.

It needs to be noted that the citizens who are good at their studies in state schools of higher education and who study in state schools of higher education subsequent to the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) must be guaranteed the education free of charge as long as their learning corresponds to the criteria of good learning established by law; alongside, it needs to be noted that the citizens who were admitted in state schools of higher education to study subsequent to the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) must be guaranteed the education free of charge till the first basic checking of the knowledge of the subjects studied by them (Constitutional Court decision of 18 December 2009).

5.4.2. As it was mentioned by the Constitutional Court in its decision of 18 December 2009, the procedure (established in the state school of higher education) of assessment of the knowledge acquired in the state school of higher education must inter alia be such so that on the grounds of this procedure it would be possible to assess whether the results of learning of the citizens studying in state schools of higher education subsequent to the requisition of the state (i.e. those who are prepared in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) correspond to the criteria of good learning established by law.

The Constitutional Court has also held that the assessment of the results of learning of the citizens who study in state schools of higher education subsequent to the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) must be conducted on a regular basis after checking the knowledge of the studied subjects after each period of academic learning (Constitutional Court decisions of 18 December 2009 and 19 March 2010).

In this context it needs to be mentioned that the Constitutional Court has noted that the knowledge of the individuals who learn at state schools of higher education must be assessed on a regular basis, within the corresponding periods of learning at these schools; legal acts can name these periods in a varied manner; as a rule, basic checking of the knowledge of the individuals who study in Lithuanian state schools of higher education as regards the studied subjects is regularly conducted after each period of academic learning—semester (Constitutional Court decision of 18 December 2009).

5.4.3. Thus, in the context of the constitutional justice case at issue it needs to be noted that the legal regulation, whereby in order to establish whether the study results of a person, whose studies are funded by the state, meet the criteria of good learning his study results are assessed irregularly, i.e. not after each period of academic learning, after which the basic checking of the knowledge of studied subjects of persons studying in schools of higher education is conducted, would not be in conformity with the provision of Paragraph 3 of Article 41 of the Constitution 41 that citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge.

5.5. It has been mentioned that Paragraph 7 of Article 70 of the Law on Science and Studies has provided for the time period of assessment of the learning results of a person whose studies of the first cycle or integrated studies are funded by the state in order to establish whether he continues to meet the criteria of good learning established in this paragraph so that his studies could further be funded by the state—this time period is two years of studies or half of the study programme in case of extended studies; this time period encompasses more than one period of academic learning (as a rule, a semester), after which the basic checking of the knowledge of persons studying in schools of higher education is conducted.

It has also been mentioned that the legal regulation, whereby in order to establish whether the study results of a person, whose studies are funded by the state, meet the criteria of good learning, his study results are assessed irregularly, i.e. not after each period of academic learning, after which the basic checking of the knowledge of studied subjects of persons studying in schools of higher education is conducted, would not be in conformity with the provision of Paragraph 3 of Article 41 of the Constitution that citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge.

5.6. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 7 of Article 70 of the Law on Science and Studies, insofar as it provides for the time period of assessment of the learning results of a person whose studies of the first cycle or integrated studies are funded by the state in order to establish whether he continues to meet the criteria of good learning established in this paragraph so that his studies could further be funded by the state—this time period is two years of studies or half of the study programme in case of extended studies, is in conflict the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

6. It has been mentioned that the group of Members of the Seimas, a petitioner, has doubted whether Paragraph 11 of Article 70 of the Law on Science and Studies is not in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

6.1. As mentioned, Paragraph 11 of Article 70 of the Law on Science and Studies provides:

State budget funds to cover the study cost in state-funded student places shall be allocated in accordance with the procedure laid down by the Government.“

6.2. Thus, under Paragraph 11 of Article 70 of the Law on Science and Studies, the Government is empowered to establish the procedure for allocation of state funds to cover the study cost in state-funded student places.

6.2.1. The disputed Paragraph 11 of Article 70 of the Law on Science and Studies is related to Paragraphs 2, 5, 9 of this article.

As mentioned, Paragraph 2 of Article 70 of the Law on Science and Studies establishes the general criteria (inter alia the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results) for distribution of state-funded student places according to study programmes of the first cycle and integrated study programmes among schools of higher education, whereas Paragraph 5 thereof regulates the establishment of the final number of state-funded student places of the first cycle and integrated studies in each study area or a set of study fields and the distribution of such student places among schools of higher education and study areas; the final number of state-funded student places in the first cycle and integrated studies as well as their distribution among schools of higher education and study areas and the distribution of such student places among schools of higher education and study areas is established by specifying and segmenting among schools of higher education a preliminary number of state-funded student places of the first cycle and integrated studies in each study area or a set of study fields (which is announced under procedure established in Paragraph 3 of Article 70 of the Law on Science and Studies) in accordance with the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results.

Paragraph 9 of Article 70 of the Law on Science and Studies has entrenched the procedure for establishment of the number of state-funded student places of the second cycle, doctoral studies and studies which do not award a degree, to which students are admitted, according to concrete study fields, and for distribution of such student places among schools of higher education.

Thus, Paragraph 11 of Article 70 of the Law on Science and Studies empowers the Government to establish the procedure for allocation of state budget funds to cover the study cost in state-funded student places in cases when, in accordance with the criteria established in Paragraph 2 and under procedure established in Paragraph 5 of this article, the final number of state-funded student places of the first cycle and integrated studies to which students are admitted as well as their distribution among schools of higher education and study areas are established and, under procedure established in Paragraph 9 of the same article, the number of state-funded student places of the second cycle, doctoral studies and studies which do not award a degree, according to concrete study fields and the distribution of such places among schools of higher education, are established.

6.2.2. The disputed Paragraph 11 of Article 70 of the Law on Science and Studies is also related to Paragraph 10 of the same article wherein it is established that the state shall fund the study cost of persons studying in state-funded student places in accordance with the procedure laid down in Article 76 of the Law on Science and Studies. The said Article 76 regulates inter alia the establishment of the standard study cost of an appropriate study field or a set of study programmes. Under Paragraph 4 of Article 76 of the Law on Science and Studies, the standard study cost of an appropriate study field or a set of study programmes shall be calculated in accordance with the procedure laid down by the Government, where such study cost shall comprise all the expenses of studies specified in Paragraph 3 of this article (funds necessary for carrying out studies—for wages and salaries of teaching staff members, research staff members and other employees related to studies, to purchase goods and services related to studies, to give incentives to students). Paragraph 4 of Article 76 also provides that in the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds.

Thus, Paragraph 11 of Article 70 of the Law on Science and Studies empowers the Government to establish the procedure for allocation of state budget funds to cover the study cost in state-funded student places in cases insofar as the standard study cost calculated under procedure established by the Government is paid with the state budget funds, also insofar as the said procedure for allocation of state budget funds to cover the study cost in state-funded student places is related to allocation of state budget funds to cover the standard study cost for those schools of higher education to which state-funded student places were distributed under procedure established in 2, 3, 5, 9 of Article 70 of the Law on Science and Studies (inter alia by taking account of the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results).

6.2.3. In this context it needs to be mentioned that state budget funds are allocated to schools of higher education not only in order to pay for state-funded student places. Under Item 1 Paragraph 1 of Article 67 of the Law on Science and Studies, funds of the basic financing of the state budget are allocated to state schools of higher education; these funds are allocated for research, experimental (social, cultural) development and the expansion of artistic activities, administration and economy as well as other needs (Paragraph 1 of Article 68 of the Law on Science and Studies). Paragraph 2 of Article 67 of the same law inter alia provides that state budget appropriations for each state university shall be allocated under a separate line; state colleges shall be funded with the state budget appropriations allocated for the state institutions or establishments which perform the functions of their founder.

6.3. The doubts of the petitioner regarding the constitutionality of Paragraph 11 of Article 70 of the Law on Science and Studies are substantiated by the fact that, according to the petitioner, the provision of the official constitutional doctrine that in the state budget funds must be provided for each school of higher education individually, alongside means that it is necessary to provide for the funds in the state budget for each school of higher education individually for covering all expenses of the citizens who are good at their studies in such a school and who are learning subsequent to requisition by the state.

6.4. It has been mentioned that the petitioner is doubting the compliance of Paragraph 11 of Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution.

6.4.1. In its ruling of 14 January 2002 the Constitutional Court noted that Paragraph 3 of Article 41 of the Constitution establishes the right of every citizen with a good academic progress in a state higher school to free higher education; this right presumes that funds must be provided out of the state budget to guarantee higher education free of charge to citizens who demonstrate good academic progress in state higher schools.

In its ruling of 14 January 2002 the Constitutional Court also noted that the fact that, under the Constitution, the system of higher education establishments, including state schools of higher education, must be accessible to every human being according to his abilities, that citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge, also that the autonomy of schools of higher education is entrenched in the Constitution, implies that state schools of higher education must be allocated funds so that they can discharge their functions. These funds must be provided for in the state budget. An essential guarantee of autonomy of state schools of higher education is such legal regulation when the law on the state budget provides not only for the allocation of money for the higher education, but also for the funds for each state school of higher education. While providing for state budget funds for state higher schools, the needs of the society and the state ensured by these schools, their existing and future programs, also their way of ensuring adherence to the set teaching standards, the correspondence of the content and level of teaching to the qualification recognised by the state, state obligations to these schools etc. should be considered.

6.4.2. In its ruling of 20 March 2008, the Constitutional Court noted that the state budget funds allocated to schools of higher education also encompass the funds for financing the studies of the citizens studying in state schools of higher education, who are good at their studies; the Constitution guarantees higher education covered by state funds not to all citizens who are good at their studies in state schools of higher education, no matter under what conditions they were admitted to such schools, but only to those who are prepared in order to meet the demand of specialists of corresponding areas (fields), which is established by the state; it is namely for financing of their studies that one has to provide the necessary funds in the state budget.

It has been mentioned that, in its ruling of 20 March 2008, the Constitutional Court also emphasised that the state which, under the Constitution, has a duty to support science, secure accessibility of higher education, guarantee higher education in state schools of higher education to citizens who are good at their studies free of charge, who are prepared by meeting the established demand of specialists of corresponding areas (fields), may choose and establish in laws various models of financing of higher education. While doing so, the legislator is bound by the constitutional obligations of the state, as well as financial capabilities of the state which, as mentioned, are not limitless. The law may not establish any such model of financing of higher education, which would not be based upon a balanced assessment of the needs of society and the state and the financial capabilities of the state, where the state would clearly obviously be unable to implement such a model; the establishment of such a model would be in conflict inter alia with the constitutional imperative of social harmony and would not allow the state to perform its various other obligations.

6.4.3. It needs to be noted that, as it was held by the Constitutional Court in its ruling of 20 March 2008, the Government has the powers to prepare a draft State Budget (Item 4 of Article 94 of the Constitution); the State Budget is approved by the Seimas (Item 14 of Article 67 of the Constitution); the Seimas does so by passing a law (Paragraph 1 of Article 131 of the Constitution).

In this context it also needs to be noted that, under Item 4 of Article 94 of the Constitution, the Government also enjoys the powers execute the State Budget and submit to the Seimas a report on the execution of the budget.

6.4.4. Thus, in the context of the constitutional justice case at issue it needs to be noted that, from the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution there emerges a requirement to provide for funds in the state budget to state schools of higher education for funding the studies of the citizens who are good at their studies and who are prepared in order to satisfy the state-established demand for specialists of corresponding areas (fields). However, the state may choose and entrench various models of funding of higher education in laws; such a model must be based upon a balanced assessment of the needs of society and the state and the financial capabilities of the state, but there must be no such model where the state would clearly be unable to implement it.

It also needs to be noted that the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution does not imply a requirement for the legislator to establish only such a model of funding of higher education, where all state budget funds meant for schools of higher education would be assigned to the state budget appropriations allocated individually to every state school of higher education; funds must be provided individually for in the state budget for each state school of higher education necessary in order to implement the purposes and the mission of that school of higher education. Thus, the legislator may also choose such a model, where certain state budget appropriations would be provided for higher education in general, inter alia for funding the studies of citizens who are good at their studies and who are prepared to satisfy the state-established demand for specialists of corresponding areas (fields); during the budget year, the Government, which is responsible for execution of the state budget, may distribute these appropriations to schools of higher education under established procedure, while taking account of inter alia the choice between schools of higher education made by enrolling persons.

6.5. It has been mentioned that Paragraph 11 of Article 70 of the Law on Science and Studies empowers the Government to establish the procedure for allocation of state budget funds to cover the study cost in state-funded student places in cases insofar as the standard study cost calculated under procedure established by the Government is paid with the state budget funds, also insofar as the said procedure for allocation of state budget funds to cover the study cost in state-funded student places is related to allocation of state budget funds to cover the standard study cost for those schools of higher education to which state-funded student places were distributed, inter alia by taking account of the choice between schools of higher education made by enrolling persons who have completed the secondary education programme with the best results.

It has also been mentioned that the model of funding of higher education chosen by the state must be based upon a balanced assessment of the needs of society and the state and the financial capabilities of the state, but there must be no such model where the state would clearly be unable to implement it; the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution does not imply a requirement for the legislator to establish only such a model of funding of higher education, where all state budget funds meant for schools of higher education would be assigned to the state budget appropriations allocated individually to every state school of higher education; the legislator may also choose such a model, where certain state budget appropriations may be provided for higher education in general, inter alia for funding the studies of citizens who are good at their studies and who are prepared to satisfy the state-established demand for specialists of corresponding areas (fields); during the budget year, the Government, which is responsible for execution of the state budget, may distribute these appropriations to schools of higher education under established procedure, while taking account of inter alia the choice between schools of higher education made by enrolling persons.

Thus, after the legislator has chosen such a model of funding of higher education, where inter alia the state budget funds for funding the studies of citizens who are good at their studies and who are prepared to satisfy the state-established demand for specialists of corresponding areas (fields) are allocated to state schools of higher education by taking account inter alia of the choice between schools of higher education made by enrolling persons, it would be impossible to implement such a model, if it were demanded that these funds be assigned to the state budget appropriations allocated individually to every state school of higher education. Therefore, there are no grounds to maintain that such a model of funding of higher education, inasmuch as it is related to the powers granted to the Government to establish the procedure for allocation of state budget funds to cover the study cost in state-funded student places, would not be grounded on a balanced assessment of the needs of society and of the state and that of financial capabilities of the state.

6.6. Taking account of the arguments set forth, one is to draw a conclusion that of Paragraph 11 of Article 70 of the Law on Science and Studies is not in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

7. The group of Members of the Seimas, a petitioner, has doubted the compliance of Paragraph 4 of Article 76 of the Law on Science and Studies with Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

7.1. From the arguments of the petitioner it is clear that it is disputing the compliance of the provision “In the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76 of the Law on Science and Studies with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

7.2. Paragraph 4 of Article 76 of the Law on Science and Studies provides:

The standard study cost of an appropriate study field or a set of study programmes shall be calculated in accordance with the procedure laid down by the Government, where such study cost shall comprise all the expenses specified in Paragraph 3 of this Article. Standard study costs of students admitted to a school of higher education in a corresponding year shall be each year approved by the Ministry of Education and Science before 15 January. In the cases where the study cost fixed by a school of higher education does not exceed the standard study cost, the study cost set by a school of higher education shall be paid with the state budget funds. In the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds.”

7.3. The provision “In the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76 of the Law on Science and Studies is related to other provisions of this article.

7.3.1. Under Paragraph 1 of Article 76 of the Law on Science and Studies, the study cost shall be fixed by a school of higher education. Thus, also in the situations where a person studies in a state-funded student place, the cost of his studies is established by the school of higher education.

It needs to be noted that the study cost in higher education institutions shall be fixed taking into consideration the studies-related expenses specified in Paragraph 3 of Article 76 (Paragraph 2 of Article 76 of the Law on Science and Studies). These expenses include the funds necessary for carrying out studies, i.e. for wages and salaries of teaching staff members, research staff members and other employees related to studies, to purchase goods and services related to studies and to give incentives to students.

7.3.2. It also needs to be noted that, under Paragraph 4 of Article 76 of the Law on Science and Studies, the standard study cost of an appropriate study field or a set of study programmes is calculated in accordance with the procedure laid down by the Government, where such study cost shall comprise all the expenses specified in Paragraph 3 of this article, i.e. funds necessary for carrying out studies (i.e. for wages and salaries of teaching staff members, research staff members and other employees related to studies, to purchase goods and services related to studies, to give incentives to students).

Thus, the notion “standard study cost” employed in the provision (disputed by the petitioner) of Paragraph 4 of Article 76 of the Law on Science and Studies is to be construed as meaning also such cost which is in conformity with the sum of the funds necessary to carry out the studies in an appropriate study field or a set of study programmes.

Paragraph 4 of Article 76 of the Law on Science and Studies provides that the state budget funds shall cover the study cost of the persons studying in state-funded student places, which is fixed by a school of higher education, in case this cost does not exceed the standard study cost, or the state budget funds shall cover the standard study cost, in case the study cost fixed by a school of higher education exceeds the standard study cost.

7.3.3. The provision “In the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76 of the Law on Science and Studies is to be construed together with the provision of Paragraph 5 of the same article whereby persons who study in state-funded student places of state schools of higher education shall not have to pay to a school of higher education any fees related to the implementation of a study programme, with the exception of the cases referred to in Paragraph 2 of Article 72 of this law. The aforesaid Paragraph 2 of Article 72 provides that the persons who study according to informal education programmes and the persons who repeatedly study individual subjects of a study programme shall pay for studies the study costs proportionate to the volume of a subject (modules).

Thus, under the overall legal regulation established in Article 76 of the Law on Science and Studies, even in the cases where the study cost established by a school of higher education exceeds the standard study cost and it is only the standard study cost is covered with state budget funds, the state school of higher education may not establish any fees to be paid by persons studying in state-funded student places in order to cover the difference between the study cost established by the school of higher education and the standard study cost.

7.4. The doubts of the petitioner regarding the compliance of the provision “In the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76 of the Law on Science and Studies with the Constitution are substantiated by the provision of the official constitutional doctrine whereby higher education tuition of citizens who are students at state higher schools and demonstrate good academic results cannot be imposed on these persons themselves in whatever form.

7.5. It has been mentioned that the petitioner is disputing the compliance of the provision “In the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76 of the Law on Science and Studies inter alia with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution.

7.5.1. In its ruling of 14 January 2002 and decision of 18 December 2009, the Constitutional Court held that the constitutional provision that citizens who demonstrate good academic results shall be guaranteed education free of charge in state higher schools means that a citizen who demonstrated good academic results has the right that his education in a state higher school be financed by the state.

It needs to be noted that, pursuant to Paragraph 3 of Article 41 of the Constitution, higher education tuition of citizens who are students at state higher schools and demonstrate good academic results cannot be imposed on these persons themselves in whatever form; higher education of citizens who are students at state higher schools and demonstrate good academic results is financed by the state (Constitutional Court ruling of 14 January 2002 and decision of 18 December 2009).

7.5.2. In this context it needs to be mentioned that, in its ruling of 20 March 2008, the Constitutional Court noted that planning of funds for state schools of higher education in the budget is inseparable from reasonable and fair computation of expenses of studies, i.e. the computation of how much funds are necessary for arranging of good quality studies in those schools of higher education and maintenance of the proper level of scientific activity; the expenses of studies (also those in state schools of higher education) are determined by various factors; in different schools of higher education the expenses of studies even of the same area (field) and of the same quality can be different; the state, while taking account of the position of schools of higher education, enjoys the powers to establish the composition of expenses of studies in state schools of higher education; by means of state legal acts rational, clear, transparent and reasonable criteria may and must be established, which would allow state schools of higher education to compute realistic expenses of studies conducted in them according to areas (fields), cycles, and forms of studies, so that financing of these studies from the state budget would correspond to its purpose, i.e. that it would permit to secure good quality preparation of specialists of various areas (fields).

It needs to be emphasised that the powers to establish the said costs of studies are enjoyed by state schools of higher education; these costs must be rationally reasoned, they may not create any preconditions to violate the constitutional principle of accessibility of higher education according to one’s abilities, the imperatives (entrenched in the Constitution) of social harmony and justice, they may not increase the social gulf; from the viewpoint of the Constitution, it would be unjustifiable to establish such costs for studies, which would create preconditions to cover also such expenses by means of studying persons, which are not necessary so that corresponding persons who pay for their studies would acquire good quality higher education, i.e. which are not necessary for arrangement of good quality studies in those schools of higher education and maintenance of the proper level of scientific activity (Constitutional Court ruling of 20 March 2008).

7.5.3. In the context of the constitutional justice case at issue it needs to be noted that the computed realistic expenses of studies are an important guideline in establishing the cost of studies, which has to be paid by the persons who were not admitted to the places, the number of which announced in advance corresponds to the established obligation of the state to finance the preparation of a certain number of specialists, but were admitted to studies in a corresponding state school of higher education at their own expense.

It needs to be emphasised that there are no legal arguments which would allow to maintain that, purportedly, the cost that must be paid by such students for their studies, must in all cases be the same as the cost that has to be paid by the persons, who are prepared by satisfying the need (established by the state) for specialists of various areas (fields), if their learning does not correspond to the criteria of good learning established by law (Constitutional Court ruling of 20 March 2008).

Thus, there are no legal arguments permitting to maintain that the study costs to be paid by the persons studying in non-state-funded student places may not be different from the study costs of the persons studying in state-funded student places.

7.6. It has been mentioned that, pursuant to Paragraph 3 of Article 41 of the Constitution, higher education tuition of citizens who are students at state higher schools and demonstrate good academic results cannot be imposed on these persons themselves in whatever form.

It has also been mentioned that, under the overall legal regulation established in Article 76 of the Law on Science and Studies, even in the cases where the study cost established by a school of higher education exceeds the standard study cost and it is only the standard study cost that is covered with state budget funds, the state school of higher education may not establish any fees to be paid by persons studying in state-funded student places in order to cover the difference between the study cost established by the school of higher education and the standard study cost.

7.7. Also, there are no grounds to maintain that the standard study cost provided for in Article 76 of the Law on Science and Studies, which is paid to the school of higher education with state funds in cases where the study cost fixed by a school of higher education exceeds the standard study cost, is calculated on the grounds of irrational, unclear, non-transparent and unreasonable criteria.

7.8. Taking account of the arguments set forth, one is to draw a conclusion that the provision “In the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76 of the Law on Science and Studies is not in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the rule of law.

XV

1. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution.

2. The fact that it has been held in this ruling of the Constitutional Court that the overall legal regulation laid down in Paragraph 2 of Article 20 of the Law on Science and Studies, under which the council of a state school of higher education, in the formation of which the academic community has no decisive influence and which is not an institution implementing self-governance of the school of higher education, is assigned the functions typical of self-governance of schools of higher education, is in conflict with the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution, does not in any way mean that only upon these grounds one may question the decisions, inter alia the principal decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education and decisions related to appointment of a rector (director) to office, made by the councils of state schools of higher education that were formed pursuant to the legal regulation established in the Law on Science and Studies prior to the official publishing of this ruling of the Constitutional Court.

The fact that it has been held in this ruling of the Constitutional Court that Paragraph 3 of Article 20 of the Law on Science and Studies is not in conflict with the Constitution means that the councils of state schools of higher education formed according to the procedure established in Paragraph 3 of Article 20 of the Law on Science and Studies may continue to discharge their functions entrenched in those provisions of Paragraph 2 of Article 20 of this law, which were not recognised as being in conflict with the Constitution.

3. In the constitutional justice case at issue it has been held that Paragraph 5 of Article 95 of the Law on Science and Studies, insofar as it is established therein that the powers of the bodies of governance, elected or formed before the entry into force of this law, of a state school of higher education, whose legal form is a budgetary establishment, are terminated on 31 December 2011, if such powers have not expired on other grounds established in this paragraph, also insofar as it provides that, upon the entry into force of the Law on Science and Studies, the rector (director) of a state school of higher education shall be elected (appointed) only by that council of the state school of higher education which has been set up in accordance with the procedure laid down by this law, and where there is no such council, the powers of the rector (director) of the state school of higher education shall be extended until the election of a new rector (director) of the state higher education institution, but not longer than for six month, is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

In view of the aforesaid, the governance bodies (inter alia rectors (directors)) of state schools of higher education elected or formed prior to the entry into force of this law, even if they were reorganised into public establishments within the time period established in Paragraph 8 of Article 93 of the Law on Science and Studies, may continue to discharge their functions (inasmuch as the said functions are in line with the Constitution, inter alia with the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 thereof) until the end of the term of office for which they were formed or appointed, when new corresponding governance bodies will be formed or appointed pursuant to laws and other legal acts not conflicting with the Constitution.

4. After the official publishing of this Constitutional Court ruling, from the day of its official publishing, the provisions of the articles (paragraphs and items thereof) of the Law on Science and Studies which have been recognised to be in conflict with the Constitution by this Constitutional Court ruling may not be applied. Thus, there will be a certain vacuum in the legal regulation related inter alia to governance of state schools of higher education.

It is clear that such a situation is permissible only for a very short time; a duty arises for the legislator to fill the existing vacuum in the legal regulation, otherwise the governance of state schools of higher education can be disturbed.

The aforesaid vacuum in the legal regulation may be removed completely only after the Seimas makes corresponding amendments of and/or supplements to the Law on Science and Studies, while heeding the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution and heeding other provisions of the Constitution (inter alia by taking account of the construction thereof presented in this ruling of the Constitutional Court and other acts of the Constitutional Court). Should more time be necessary, the Seimas has a duty to establish, by law, a provisional legal regulation whereby, while taking account of the construction of Paragraph 3 of Article 40 of the Constitution presented in this ruling of the Constitutional Court, the basics of the organisational and governance structure of schools of higher education would be established by laws.

5. Paragraph 1 of Article 6 of the Constitution prescribes that the Constitution is an integral and directly applicable act.

Under Paragraph 3 of Article 40 of the Constitution, schools of higher education enjoy a special status—autonomy is guaranteed to them. One of essential conditions for implementation of the autonomy of schools of higher education is self-governance of schools of higher education, which is implemented through self-governance institutions directly formed by academic communities and due to this these institutions represent the said academic communities directly, also, this autonomy is implemented through other institutions, discharging the functions of governance of schools of higher education, formed or appointed by the aforesaid self-governance institutions. As it has been mentioned more than once in this ruling of the Constitutional Court, the autonomy of the school of higher education is conceived inter alia as the right to independently determine and establish in the regulations or statute the organisational and governance structure, relations with other partners, the procedure of research and studies, study programmes and the procedure of student enrolment, to solve other related questions; the procedure for forming the institutions implementing self-governance of schools of higher education should not be the one that would not enable the academic community of the school of higher education to influence adoption of decisions on administration of the school of higher education. Thus, from Paragraph 3 of Article 40 of the Constitution emerges inter alia the right of collegial institutions, directly representing academic communities of schools of higher education and implementing their self-governance, to independently decide on strategic and other most important questions of governance of schools of higher education.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56 and 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

1. To recognise that the provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do scientific work” of the Preamble to the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), the provision “A state school of higher education shall be a public legal person functioning as a public establishment, possessing the autonomy guaranteed by the Constitution of the Republic of Lithuania, and the special status defined by this and other laws” of Paragraph 4 of Article 6, Paragraph 1 of Article 8 inasmuch as it is established therein that the name of a school of higher education of the university type must contain the word “university” or “academy”, or “seminary”, Paragraph 3 of Article 8, Paragraph 3 of Article 9, Item 4 of Paragraph 1 of Article 11, Paragraph 2 of Article 17, Paragraph 3 of Article 20, Article 39, the provision “On completion of theological study programmes of the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2 of Article 48 to the extent that it prescribes that a degree of licentiate in theology may be awarded after consultation with the Catholic Church hierarchy, Paragraph 4 of Article 53, Paragraph 3 of Article 66, Paragraphs 5 and 11 of Article 70, provision “In the cases where the study cost fixed by a school of higher education exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76, Paragraphs 2 and 8 of Article 93, Paragraph 5 of Article 94 insofar as it is established therein that the criterion of learning well is the average of the evaluation of study subjects within a semester is not less than eight on a ten-point grading scale in accordance with the system of evaluation of study results approved by the Government or an institution authorised by it, and Paragraphs 1, 2, 3 of Article 96 of the same law are not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Item 2 of Paragraph 3 of Article 7 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it does not establish a duty of non-state schools of higher education to account to society for the use of funds of the state budget allocated to them is in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 128 of the Constitution of the Republic of Lithuania.

3. To recognise that Item 2 of Paragraph 2 of Article 11 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) the extent that it does not establish a duty of non-state scientific research institutes to account to society for the use of funds of the state budget allocated to them is in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 128 of the Constitution of the Republic of Lithuania.

4. To recognise that Paragraph 1 of Article 19 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it consolidates the council as a collegial governance body of a state university is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

5. To recognise that Paragraph 2 of Article 19 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it consolidates the council as a collegial governance body of a state college is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

6. To recognise that Paragraph 1 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

7. To recognise that Item 1 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

8. To recognise that Item 2 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

9. To recognise that Item 3 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it provides that the council of a state school of higher education approves plans for reorganisation of the structure of the school of higher education presented by the rector (director) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

10. To recognise that Item 4 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it provides that the council of a state school of higher education sets the procedure for managing, using and disposing of funds (also funds allocated for work remuneration of the school’s leadership and other employees) and assets of the school of higher education and approves key decisions related thereto is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

11. To recognise that Item 5 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

12. To recognise that Item 6 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

13. To recognise that Item 7 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

14. To recognise that Item 8 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

15. To recognise that Item 9 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it provides that the council of a state school of higher education approves an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement presented by the rector (director) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

16. To recognise that Item 10 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it provides that the council of a state school of higher education approves an annual report on the activities of the school of higher education presented by the rector (director) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

17. To recognise that Item 13 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

18. To recognise that Item 15 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it provides that the council of a state school of higher education performs other functions of governance of the school of higher education prescribed in its statute and other legal acts is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

19. To recognise that Paragraph 1 of Article 21 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this paragraph provides that the senate (academic council) of a state school of higher education is a governance body of only academic affairs, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

20. To recognise that Paragraph 2 of Article 21 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this paragraph does not establish that the senate of a state university adopts key strategic and other most important decisions of governance of the university, inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

21. To recognise that Item 1 of Paragraph 2 of Article 21 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this item prescribes that the senate of a state university presents proposals to the rector regarding the funding of programmes of studies, scientific research and experimental (cultural, social) development, art programmes, and reorganisation of the university structure, which is necessary for implementation of those programmes, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

22. To recognise that Item 4 of Paragraph 2 of Article 21 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this item prescribes that the senate of a state university, while approving the qualification requirements for positions of teaching staff members and scientific staff members and laying down the procedure for performance evaluation of teaching staff members and scientific staff members and for organisation of a competition to fill a position, must observe the principles for selection and assessment of university employees set by the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

23. To recognise that Paragraph 3 of Article 21 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this paragraph does not establish that the academic council of a state college adopts key strategic and other most important decisions of governance of the college, inter alia the most important decisions concerning the use of financial funds and other assets for the purpose of implementing the mission of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

24. To recognise that Item 1 of Paragraph 3 of Article 21 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this item prescribes that the academic council of a state college presents proposals to the director regarding the funding of study programmes and reorganisation of the college structure, which is necessary for implementation of those programmes, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

25. To recognise that Item 4 of Paragraph 3 of Article 21 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance structure of a state school of higher education under which the senate (academic council) is a collegial governance body which directly represents the academic community and is the sole such body implementing self-government of that community, this item prescribes that the academic council of a state college, while approving the qualification requirements for positions of teaching staff members and scientific staff members and laying down the procedure for performance evaluation of teaching staff members and scientific staff members and for organisation of a competition to fill a position, must observe the principles for selection and assessment of college employees set by the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

26. To recognise that Item 5 of Paragraph 2 of Article 22 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher education submits to the council for approval the study cost and the rates of fees that are not directly related to the implementation of a study programme is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

27. To recognise that Item 7 of Paragraph 2 of Article 22 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher education submits to the council for approval an annual statement of revenue and expenditure of the school of higher education and a report on the execution of this statement is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

28. To recognise that Item 8 of Paragraph 2 of Article 22 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher education acquaints the senate (academic council) with an annual report on the activities of the school of higher education is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

29. To recognise that Item 9 of Paragraph 2 of Article 22 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

30. To recognise that Paragraph 3 of Article 22 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

31. To recognise that Paragraph 4 of Article 22 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

32. To recognise that Paragraph 7 of Article 22 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

33. To recognise that Paragraph 9 of Article 22 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that it provides that the rector (director) may be dismissed from office in accordance with the procedure laid down by legal acts if an annual report on the activities of the school of higher education or an annual report on the execution of the statement of revenue and expenditure presented by the rector (director) is not approved by a majority of the council members at a meeting of the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

34. To recognise that Paragraph 2 of Article 69 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) is in conflict with Paragraph 1 of Article 29, Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

35. To recognise that Paragraph 1 of Article 70 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that this paragraph does not establish, for the Ministry of Education and Science, any time limit for the preannouncement of the procedure for determining a queue of persons who have completed a secondary education programme with the best results, which would be sufficient for the efficient implementation of the constitutional right to education at state schools of higher education free of charge, also to the extent that this paragraph does not establish a duty for the Ministry of Education and Science and schools of higher education to coordinate the conditions of admission to state-funded student places pursuant to study programmes of the first cycle and integrated study programmes, is in conflict with Paragraph 3 of Article 40, the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

36. To recognise that Paragraph 2 of Article 70 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), to the extent that it does not establish that, in the course of distribution, among schools of higher education, of state-funded student places in the study programmes of the first cycle and integrated studies, one must take account of the capabilities of state schools of higher education to satisfy the state established demand for specialists of corresponding areas (fields) and that it does not establish that state-funded student places chosen by persons who have completed the secondary education programme with the best results may be received by non-state schools of higher education only in cases when specialists of certain areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, is in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

37. To recognise that Paragraph 7 of Article 70 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), insofar as it provides for the time period of assessment of the learning results of a person whose studies of the first cycle or integrated studies are funded by the state in order to establish whether he continues to meet the criteria of good learning established in this paragraph so that his studies could further be funded by the state—this time period is two years of studies or half of the study programme in case of extended studies, is in conflict with the provision “Citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

38. To recognise that Paragraph 5 of Article 95 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101), insofar as it is established therein that the powers of the bodies of governance, elected or formed before the entry into force of this law, of a state school of higher education, whose legal form is a budgetary establishment, are terminated on 31 December 2011, if such powers have not expired on other grounds established in this paragraph, also insofar as it provides that, upon the entry into force of the Law on Science and Studies, the rector (director) of a state school of higher education shall be elected (appointed) only by that council of the state school of higher education which has been set up in accordance with the procedure laid down by this law, and where there is no such council, the powers of the rector (director) of the state school of higher education shall be extended until the election of a new rector (director) of the state higher education institution, but not longer than for six month, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

39. To dismiss the part of the case subsequent to the petition of a group of Members of the Seimas of the Republic of Lithuania, a petitioner, requesting to investigate whether Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90, Paragraph 3 of Article 91, Paragraphs 4 and 6 of Article 93 and Paragraph 4 of Article 96 of the Republic of Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101) are not in conflict with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court: Egidijus Bieliūnas
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis
                                                                      Dainius Žalimas