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On certain provisions of the Law on Education

Case No. 23/98

 

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

R U L I N G

On the compliance of Item 5 of Article 1, Paragraphs 3 and 4 of Article 10, Paragraph 1 of Article 15, Article 20, Item 2 of Article 21, Paragraph 2 of Article 32, Paragraphs 2, 3 and 4 of Article 34, Items 2 and 5 of Article 35, Item 2 of Article 37 and Items 2 and 3 of Article 38 of the Republic of Lithuania’s Law on Education with the Constitution of the Republic of Lithuania

Vilnius, 13 June 2000

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Vytenis Povilas Andriukaitis, Justinas Karosas, Petras Papovas and Gintaras Šileikis, all of them are members of the Seimas of the Republic of Lithuania, acting as the representatives of the petitioner

Arimantas Juvencijus Raškinis, a member of the Seimas of the Republic of Lithuania, and Jadvyga Andriuškevičiūtė, a senior consultant to the Law Department of the Office of the Seimas of the Republic of Lithuania, acting as the representatives of the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 9 May 2000, in its public hearing, considered case No. 23/98 subsequent to the petition submitted to the Constitutional Court by a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Item 5 of Article 1, Paragraphs 3 and 4 of Article 10, Paragraph 1 of Article 15, Article 20, Item 2 of Article 21, Paragraph 2 of Article 32, Paragraphs 2, 3 and 4 of Article 34, Items 2 and 5 of Article 35, Item 2 of Article 37 and Items 2 and 3 of Article 38 of the Republic of Lithuania’s Law on Education are in conformity with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

1. On 2 July 1998, the Seimas passed the Republic of Lithuania’s Law on the Amendment of the Law on Education (Official Gazette Valstybės žinios, 1998, No. 67-1940). By means of Article 1 thereof, the Republic of Lithuania’s Law on Education (hereinafter referred to as the Law) was amended and set forth in a new wording.

2. A group of Seimas members, the petitioner, requests an investigation into the compliance of

Item 5 of Article 1 of the Law with Paragraphs 1, 2 and 3 of Article 26, Paragraph 1 of Article 40 and Paragraphs 1, 2, 5 and 7 of Article 43 of the Constitution;

Paragraph 3 of Article 10 of the Law with Paragraph 1 of Article 40, Paragraph 2 of Article 41, and Paragraphs 1 and 2 of Article 120 of the Constitution;

Paragraph 4 of Article 10 of the Law with Paragraph 2 of Article 26, Paragraph 2 of Article 29, Paragraph 1 of Article 40 and Paragraphs 3 and 7 of Article 43 of the Constitution;

Paragraph 1 of Article 15 of the Law with Paragraph 2 of Article 38, and Paragraphs 1 and 3 of Article 39 of the Constitution;

Article 20 of the Law with Paragraphs 1, 2, 3 and 5 of Article 26, Paragraph 2 of Article 29, Paragraph 1 of Article 40 and Paragraph 7 of Article 43 of the Constitution;

Item 2 of Article 21 of the Law with Paragraph 1 of Article 40 of the Constitution;

Paragraph 2 of Article 32 of the Law with Paragraph 1 of Article 25, Paragraphs 1, 2 and 3 of Article 26 and Paragraph 1 of Article 40 of the Constitution;

Paragraphs 2 and 3 of Article 34 of the Law with Paragraph 4 of Article 40 of the Constitution;

Paragraph 4 of Article 34 of the Law with Paragraph 1 of Article 40, Paragraph 2 of Article 41 and Paragraph 2 of Article 120 of the Constitution;

Items 2 and 5 of Article 35 of the Law with Paragraph 2 of Article 120 of the Constitution;

Item 2 of Article 37 and Items 2 and 3 of Article 38 of the Law with Paragraph 2 of Article 120 of the Constitution.

II

The request of the petitioner is based on the following arguments.

1. Item 5 of Article 1 of the Law provides that one of the major goals of the educational system of Lithuania shall be “to guarantee the same rights and conditions for members of traditional religions as for all the residents to bring up their children in educational establishments according to their convictions”.

The petitioner points out that it is established in Paragraphs 1, 2 and 3 of Article 26 of the Constitution that freedom of thought, conscience, and religion shall not be restricted, that every person shall have the right to freely choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching, and that no person may coerce another person or be subject to coercion to adopt or profess any religion or faith. The petitioner maintains that thereby the freedom of conscience of individuals is established and an opportunity for people holding different views to live in an open and harmonious civil society, as well as implementation of fundamental human rights and freedoms, is guaranteed.

Paragraph 7 of Article 43 of the Constitution provides that there shall not be a state religion in Lithuania, Paragraph 1 of Article 40 of the Constitution provides that state and municipal establishments of teaching and education shall be secular; at the request of parents, they shall offer classes in religious instruction. According to the petitioner, this means that the educational system of Lithuania is a secular one, it is open to all views, is based upon humanism, tolerance, and values of the Lithuanian and world culture.

Under Paragraph 1 of Article 43 of the Constitution, the state shall recognise traditional Lithuanian churches and religious organisations, as well as other churches and religious organisations provided that they have a basis in society and their teaching and rituals do not contradict morality or the law. In the opinion of the petitioner, this means that in Lithuania churches are: 1) traditional churches recognised by the state; 2) other churches which have a basis in society and whose teaching and rituals do not contradict morality or the law. Paragraph 5 of Article 43 of the Constitution provides that the status of churches and other religious organisations in the State shall be established by agreement or by law. According to the petitioner, no church is granted any exceptional rights.

The petitioner points out that by the established legal regulation in Item 5 of Article 1 of the Law the system of education is obligated to guarantee the same rights and conditions as for all the residents only for members of traditional religions to bring up their children in educational establishments according to their convictions but not for members of other religious organisations. Furthermore, such regulation makes an impression that other (i.e. non-traditional) religious associations are discriminated. On the other hand, the system of education is secular. Under Paragraph 1 of Article 40 of the Constitution, it must ensure the right of parents but not that of religious associations so that at their request their children be offered classes in religious instruction. This right of parents is a specific right of an individual. Meanwhile, Item 5 of Article 1 of the Law provides for a goal of the educational system to ensure the rights of religious associations. However, traditional churches and religious shall function freely according to their canons and statutes, as well as the laws, and they have the rights of legal persons (Paragraphs 2, 4 and 5 of Article 43 of the Constitution). Therefore, according to the petitioner, churches and religious organisations may not take over the right of parents, which is guaranteed by the Constitution, so that at their request their children might be offered classes in religious instruction.

Taking account of this reasoning, the petitioner draws the conclusion that Item 5 of Article 1 of the Law conflicts with Paragraphs 1, 2 and 3 of Article 26, Paragraph 1 of Article 40 and Paragraphs 1, 2, 5 and 7 of Article 43 of the Constitution.

2. Paragraph 3 of Article 10 of the Law provides that municipal educational establishments providing with elementary, basic and secondary education shall be founded, reorganised and closed down by municipal councils subject to a written consent of the Ministry of Education and Science, while educational establishments providing with nursery schooling, extra instruction and adult informal education—subject to a written consent of county governors. The petitioner considers such legal regulation to be unconstitutional due to the following reasons.

Article 120 of the Constitution provides that the state shall support municipalities, and that municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws. The petitioner points out that thereby discretion of municipalities is ensured, as well as their right to be founders of establishments of teaching and education. A matter of discretion of municipalities in the area of education is kindergartens, elementary schools, various centres of education, teaching and upbringing of children.

Paragraph 1 of Article 40 and Paragraph 2 of Article 41 of the Constitution mention state and municipal establishments of teaching and education. The petitioner maintains that it is not by accident that the notion “state” is used in the Constitution: it proves the existence of discretion of municipalities in the area of education.

The petitioner also maintains that the limits set down in Paragraph 3 of Article 10 of the Law may be established for the implementation of the competence delegated by the state but not for that of discretion of municipalities, meanwhile, the established legal regulation limits the discretion of municipalities.

Taking account of this reasoning, the petitioner concludes that Paragraph 3 of Article 10 of the Law conflicts with Paragraph 1 of Article 40, Paragraph 2 of Article 41 and Paragraphs 1 and 2 of Article 120 of the Constitution.

3. Paragraph 4 of Article 10 of the Law provides: “Educational establishments may be founded on the basis of an agreement of several co-founders. At the request of parents, on the basis of an agreement, state or municipal educational establishments (classes, groups) may be co-founded with a state-recognised traditional religious association on the initiative of the said association, municipal council or a state institution. The procedure of foundation, reorganisation or closing down of these educational establishments, coordinated with state-recognised traditional religious associations, shall be established by the Government or its authorised institution.”

Paragraph 7 of Article 43 of the Constitution provides that there shall not be a state religion in Lithuania. Paragraph 3 thereof stipulates that churches and religious organisations shall freely proclaim the teaching of their faith, perform the rituals of their belief, and have houses of prayer, charity institutions, and educational institutions for the training of priests of their faith, while Paragraph 5 thereof provides that the status of churches and other religious organisations in the state shall be established by agreement or by law. According to the petitioner, these constitutional provisions mean that Lithuania is a secular state. In a secular state the situation of churches and other religious organisations must be established by agreement or by law because they are separated from the state.

It is provided in Paragraph 1 of Article 40 of the Constitution that state and municipal establishments of teaching and education shall be secular; at the request of parents, they shall offer classes in religious instruction. According to the petitioner, in a democratic state, where churches and religious organisations are separated from the state, the educational system is open for people holding various views. Taxpayers are of various religious and secular views, and secular schools are maintained by the funds of all these persons. If part of state funds were allocated to joint state and traditional church or religious association educational establishments, then the feelings of the taxpayers who confess non-traditional religions are who do not confess any religion would definitely be hurt. Besides, the Preamble to the Constitution contains the striving of the Nation for an open, just, and harmonious civil society and state under the rule of law. Therefore, there is not any conscious attempt in the Constitution to provide that churches and religious organisations may, together with the state, found confessional or secular establishments of teaching and education for children under 16 years of age. It is provided in Paragraph 2 of Article 40 of the Constitution that non-governmental teaching and educational institutions may be established according to the procedure established by law. Paragraph 6 of Article 10 of the Law also guarantees the right to legal and natural persons to establish non-governmental educational establishments. The petitioner is of the opinion that non-governmental teaching and educational establishments may also be confessional.

Paragraph 2 of Article 26 of the Constitution provides that every person shall have the right to freely choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching. Due to this, in the opinion of the petitioner, classes in religious instruction may be provided only at the request of parents but never at the request of churches or religious organisations.

A person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions (Paragraph 2 of Article 29 of the Constitution). Meanwhile, under Paragraph 4 of Article 10 of the Law, the right to found state or municipal educational establishments (classes, groups) on the basis of an agreement is granted only to state-recognised traditional religious associations. In Lithuania other religious associations and organisations operate as well and they have support in society, however, they are not granted such a right. Thus, the Law grants a privilege to traditional religious associations.

Taking account of this reasoning, the petitioner draws the conclusion that Paragraph 4 of Article 10 of the Law conflicts with Paragraph 2 of Article 26, Paragraph 2 of Article 29, Paragraph 1 of Article 40 and Paragraphs 3, 5 and 7 of Article 43 of the Constitution.

4. Paragraph 1 of Article 15 of the Law provides that instruction at state and municipal pre-school establishments (with the exception of child care institutions) as well as establishments of additional education shall be paid in part.

Paragraph 2 of Article 38 of the Constitution provides that family, motherhood, fatherhood, and childhood shall be under the care and protection of the state. Paragraph 1 of Article 39 of the Constitution provides that the state shall take care of families bringing up children at home, and shall render them support in the manner established by law, Paragraph 3 thereof provides that children who are under age shall be protected by law, while Paragraph 2 of Article 41 stipulates that education at state and municipal schools of general education, vocational schools, and schools of further education shall be free of charge. On the grounds of the said constitutional provisions, the petitioner asserts that education for persons who are under 16 years of age must be free of charge. Education starts at pre-school establishments. Upbringing children is a constituent part of education. In case a child is brought up and educated at home, he is given support. Taking care of and protecting childhood, the state, which must guarantee that education at state and municipal schools of general education, vocational schools and schools of further education be free of charge, also must guarantee that pre-school education be free of charge. In the opinion of the petitioner, it does not mean that in state or municipal pre-school establishments may not be any services to be paid for in part. It is education that must be free of charge.

Taking account of this reasoning, the petitioner draws the conclusion that Paragraph 1 of Article 15 of the Law conflicts with Paragraph 2 of Article 38 and Paragraphs 1 and 3 of Article 39 of the Constitution.

5. Paragraph 1 of Article 20 of the Law provides that at the request of parents (legal guardians), individuals authorised by church dignitaries shall give religious instruction (of the confessions recognised by the state as traditional) at state and municipal educational establishments. Paragraph 2 of the same article prescribes that children under state and municipal care shall be given religious instruction conforming to the traditional religion professed by their family or relatives.

Paragraphs 1, 2 and 5 of Article 26 of the Constitution establish the freedom of thought, conscience and religion, the right of every person to freely choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching, and the right of parents and legal guardians to take care in an unrestricted manner of the religious and moral education of their children in conformity with their own convictions. The petitioner is of the opinion that due to this Paragraph 1 of Article 40 of the Constitution establishes the right of parents so that at their request state and municipal establishments of teaching and education would offer classes in religious instruction. Paragraph 3 of Article 26 of the Constitution provides that no person may coerce another person or be subject to coercion to adopt or profess any religion or faith, while Paragraph 2 of Article 29 of the Constitution stipulates that a person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions. Paragraph 1 of Article 40 of the Constitution reads: “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall offer classes in religious instruction.” Paragraph 7 of Article 43 of the Constitution stipulates that there shall not be a state religion in Lithuania. According to the petitioner, the aforesaid provisions guarantee equal rights to all persons to give religious instruction to their children according to the religion professed by their family, while the religions of traditional religious communities or associations are not singled out.

In the opinion of the petitioner, by the legal regulation established in Paragraphs 1 and 2 of Article 20 of the Law, unequal conditions are created for children from non-traditional religious communities or parents professing non-traditional faiths, as under the Law, at the request of parents children are given religious instruction regarding the matters of faith of traditional confessions only. By such legal regulation the rights of citizens professing other faiths are violated.

Taking account of the reasoning set forth, the petitioner draws the conclusion that Paragraphs 1 and 2 of Article 20 of the Law conflict with Paragraphs 1, 2, 3 and 5 of Article 26, Paragraph 2 of Article 29, Paragraph 1 of Article 40 and Paragraph 7 of Article 43 of the Constitution.

6. Paragraph 3 of Article 20 of the Law provides: “Those who do not attend classes of religious instruction shall be taught ethics at that time.”

Paragraph 7 of Article 43 of the Constitution provides that there shall not be a state religion in Lithuania. Besides, under Paragraph 1 of Article 40 of the Constitution, religious instruction is not compulsory but given at the request of parents.

The petitioner is of the opinion that the teaching of ethics instead of religious classes as provided for in Paragraph 3 of Article 20 of the Law implies the view that in Lithuania instruction of faiths of traditional confessions is compulsory in secular schools. As under the Constitution, religion instruction is given not on a compulsory basis but at the request of parents, thus, it may not be included into compulsory syllabi of instruction of secular schools.

The petitioner also points out that instruction of ethics may not be an alternative to the compulsory religious instruction. If ethics is included into compulsory syllabi of instruction of secular schools, its classes must be attended by all pupils irrespective of the fact whether they attend religious classes or not.

Taking account of this reasoning, as well as that concerning Paragraphs 1 and 2 of Article 20 of the Law, the petitioner draws the conclusion that Paragraph 3 of Article 20 of the Law conflicts with Paragraphs 1, 2, 3 and 5 of Article 26, Paragraph 2 of Article 29, Paragraph 1 of Article 40 and Paragraph 7 of Article 43 of the Constitution.

7. Paragraph 4 of Article 20 of the Law provides that in the educational establishments of two co-founders (the state or a municipality and a state-recognised traditional religious association), at the request of parents (or legal guardians), instead of religious classes pupils may attend ethics classes or those of religion of other traditional confessions. The petitioner maintains that such legal regulation conflicts with the Constitution for the same reasons due to which, in his opinion, Paragraphs 1, 2 and 3 of Article 20 of the Law are unconstitutional.

The petitioner concludes that Paragraph 4 of Article 20 of the Law conflicts with Paragraphs 1, 2, 3 and 5 of Article 26, Paragraph 2 of Article 29, Paragraph 1 of Article 40 and Paragraph 7 of Article 43 of the Constitution.

8. Item 2 of Article 21 of the Law provides that pupils shall have the right from the age of 15 to take an independent decision on whether they are going to take religious instruction.

State and municipal establishments of teaching and education are secular. They, at the request of parents, offer classes in religious instruction (Paragraph 1 of Article 40 of the Constitution). The petitioner is of the opinion that in case of the absence of parents’ request, in a secular school pupils may not be demanded to decide on, nor their right or obligation may be established concerning their religious instruction.

Taking account of this reasoning, the petitioner draws the conclusion that Item 2 of Article 21 of the Law conflicts with Paragraph 1 of Article 40 of the Constitution.

9. Paragraph 2 of Article 32 of the Law provides that the regulations of state and municipal educational establishments which are co-founded with state-recognised traditional religious associations must be approved by both co-founders, that for the staff of educational establishment the religious association shall set the requirements of world outlook formation as well as requirements for the staff of this establishment connected with education, and that the certification of the heads of the educational establishments and teachers shall be organised by both co-founders (according to their competence).

Paragraph 1 of Article 25, Paragraphs 1, 2 and 3 of Article 26 and Paragraph 1 of Article 40 of the Constitution guarantee the freedom of conscience of individuals and secularity of schools. In the opinion of the petitioner, the legal regulation established in Paragraph 2 of Article 32 of the Law conflicts with the freedom of conscience of individuals and secularity of schools.

Taking account of this reasoning, the petitioner draws the conclusion that Paragraph 2 of Article 32 of the Law conflicts with Paragraph 1 of Article 25, Paragraphs 1, 2 and 3 of Article 26 and Paragraph 1 of Article 40 of the Constitution.

10. Paragraph 2 of Article 34 of the Law provides that the activities of educational establishments shall be supervised by their co-founders under the procedure set down by the Common Regulations for Supervision of Educational Establishments. Paragraph 3 of the same article provides that the implementation of general policy of education shall be supervised by the Ministry of Education and Science and county governors according to the regulations approved by the Ministry of Education and Science.

Paragraph 4 of Article 40 of the Constitution provides: “The State shall supervise the activities of establishments of teaching and education.” In the opinion of the petitioner, this means that the state supervises not only implementation of general policy of education but also all activities of establishments of teaching and education.

Under Paragraph 3 of Article 34 of the Law, the State Inspectorate of Education is commissioned with supervision of general policy of education. On the other hand, founders of educational establishments may be the state, municipalities, and other natural or legal persons. Therefore, in the opinion of the petitioner, the founders may not supervise the activities of educational establishments.

Taking account of this reasoning, the petitioner draws the conclusion that Paragraphs 2 and 3 of Article 34 of the Law conflict with Paragraph 4 of Article 40 of the Constitution.

11. Paragraph 4 of Article 34 of the Law provides: “In cases when the Education Inspectorate of the Administration of the County Governor establishes that a municipality does not discharge the functions of education established to it by law, that it does not ensure the necessary conditions for the activities of the educational establishment that is within its jurisdiction, the county governor shall draw up a proposal for the representative of the Government in the county regarding transfer of the functions of the founder of the educational establishment to the administration of the county governor. The resolution concerning transfer of the functions of the founder of the educational establishment to the county shall be adopted by the Government.”

Paragraph 1 of Article 40 of the Constitution points out “state and municipal establishments of teaching and education”, Paragraph 2 of Article 41—“state and municipal schools of general education, vocational schools and schools of further education”. Paragraph 2 of Article 120 of the Constitution provides that municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws. This constitutional provision establishes independence of municipalities.

The petitioner points out that foundation of municipal establishments of education and teaching should be established as the discretion of municipalities. Paragraph 4 of Article 34 of the Law delegates the right to the Government to deprive the municipality of the functions of the founder and transfer them to the administration of the county governor. The fact that it is possible that the state supervises activities of municipal establishments of education and teaching, and that it is possible to impose administrative penalties on them does not mean, however, that it is permitted to deprive municipalities of the right to be founders of these establishments.

Taking account of this reasoning, the petitioner draws the conclusion that Paragraph 4 of Article 34 of the Law conflicts with Paragraph 1 of Article 40, Paragraph 2 of Article 41 and Paragraph 2 of Article 120 of the Constitution.

12. The petitioner points out that Items 2 and 5 of Article 35 of the Law provide that the Ministry of Education and Science shall approve the foundation, reorganisation and closing down of educational establishments and coordinate the activity of subdivisions of education of administrations of municipalities. Meanwhile, it is established in Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws. The petitioner is of the opinion that this means that no additional approval of their decisions is necessary. Under Paragraph 4 of Article 119 of the Constitution, municipal councils shall form executive bodies which are accountable to them for the direct implementation of the laws of the Republic of Lithuania and the decisions of the Government and the municipal council. Thus, according to the petitioner, independent decisions of municipal councils are implemented directly by executive bodies which are accountable to them.

Taking account of this reasoning, the petitioner draws the conclusion that Items 2 and 5 of Article 35 of the Law conflict with Paragraph 2 of Article 120 of the Constitution.

13. Article 37 of the Law defines the competence of the county governor, while Article 38—the competence of municipalities in the area of education. Item 2 of Article 37 of the Law provides that the county governor “shall give an approval in writing to the foundation, reorganisation and closure of non-governmental and municipal pre-school, additional education and informal adult educational establishments”, Item 2 of Article 38 of the Law stipulates that the municipality shall, “upon a written consent of the county governor, found, reorganise and close down pre-school educational establishments, educational establishments of additional education and adult informal educational establishments” and that it shall “appoint and dismiss heads of those educational establishments”; Item 3 of Article 38 provides that the municipality shall “upon a written consent of the Ministry of Education and Science, found, reorganise and close down elementary, basic and secondary schools of general education of all types”, “appoint and dismiss heads of those educational establishments”.

According to the petitioner, for the same reasons due to which the discretion of municipalities is violated by Items 2 and 5 of Article 35 of the Law, the same could be said about Item 2 of Article 37 and Items 2 and 3 of Article 38 of the Law.

Taking account of this reasoning, the petitioner draws the conclusion that Item 2 of Article 37 and Items 2 and 3 of Article 38 of the Law conflict with Paragraph 2 of Article 120 of the Constitution.

14. In the course of the preparation of the case for the court hearing, additional explanations of the representatives of the petitioner V. P. Andriukaitis, J. Karosas, and P. Papovas were also received.

III

In the course of the preparation of the case for the judicial consideration, the representatives of the party concerned A. J. Raškinis and J. Andriuškevičiūtė presented their written explanations regarding the arguments of the petitioner.

1. In the course of the investigation of the compliance with the Constitution of the impugned provisions of the Law challenged in the petition of the petitioner, which regulate religious instruction and participation of state-recognised traditional religious communities and associations in founding state and municipal educational establishments, one has to take into consideration the Republic of Lithuania’s Law on Religious Communities and Associations.

2. Paragraph 1 of Article 43 of the Constitution provides that the state shall recognise traditional Lithuanian churches and religious organisations, as well as other churches and religious organisations provided that they have a basis in society and their teaching and rituals do not contradict morality or the law. Article 5 of the Law on Religious Communities and Associations provides that the state recognises nine traditional religious communities and associations existing in Lithuania, which comprise part of the historical, spiritual and social heritage of Lithuania.

It is provided in Article 9 of the Law on Religious Communities and Associations that religion of traditional and other state-recognised religious communities and associations may be taught in state educational establishments upon the request by parents (legal guardians, care-takers), and that the procedure of religious instruction in state establishments of teaching and education is regulated by means of laws on education.

It is established in the Preamble to the Law on Education that this law shall establish the foundations governing the structure, activities and management of educational establishments (with the exception of the establishments of higher education) of the Republic of Lithuania. Under Article 2 of the Law, the educational system shall comprise pre-school education, general education of children and young people, vocational and further education, higher education, and education of adults provided at the educational establishments of the following type: establishments of pre-school education, schools of general education, vocational schools, enterprises, schools of further education, establishments of higher education, establishments of additional and informal education. In the opinion of the representatives of the party concerned, this means that the educational system is comprised not only of state and municipal establishments of teaching and education but also other establishments of upbringing, teaching and education which operate under procedure established by law. Item 5 of Article 1 of the impugned Law provides that one of the major goals of the educational system of Lithuania shall be to guarantee the same rights and conditions for members of traditional religions as for all the residents to bring up their children in educational establishments according to their convictions.

The representatives of the party concerned maintain that the Constitution does not mention the educational system, hence its secularity either. The notion of secularity should be interpreted as something not belonging to the clergy. A secular state is one where state institutions are not connected with any religious authority, however, it cooperates with religious communities and takes account of their views; it is also different from an atheistic state (where it is attempted to remove any influence of religion on public life), and from a neutral state (where representatives of religions are prohibited from exerting any influence on public life, but there is no fight against religion), as well as from a state where one national religion is favoured (in such a state the chief officials belong to the national religion, the state maintains houses of prayer and religious institutions, in state schools religious festivals and religious instruction are compulsory).

In the opinion of the representatives of the party concerned, construing the provisions of Articles 26, 29 and 38 of the Constitution in a systemic manner, one may presuppose that the state, ensuring care and protection of families and guaranteeing the right of parents to take care of religious and moral education of their children in an unrestricted manner, is obligated to ensure that parents who are indifferentists or holding certain religious beliefs might make use of equal support of the state. In a secular school the state must guarantee actual pluralism of convictions, create equal preconditions of parents who are indifferentists or holding certain religious convictions to make use of equal support of the state in educating their children according to their world outlook.

When the Constitution defines the relation between the state and religion, traditional churches and religious organisations are singled out from among the others. Under Paragraph 5 of Article 43 of the Constitution, the status of churches and other religious organisations in the state shall be established by agreement or by law. The impugned Item 5 of Article 1 of the Law mentions the guarantee of the same rights and conditions for members of traditional religious associations as for all the other residents. The representatives of the party concerned are of the opinion that the Law does not contain any norms restricting the freedom of thought, religion or conscience, while the provisions of the Law defining participation of traditional churches and religious organisations in founding educational establishments and in their activities are not in conflict with the Constitution but merely delimit implementation of the provisions of the Constitution.

3. Under Paragraph 4 of Article 10 of the Law, at the request of parents, on the basis of an agreement, state or municipal educational establishments (classes, groups) may be co-founded with a state-recognised traditional religious association on the initiative of the said association, the municipal council or a state institution. The way of the implementation of parents’ request to provide their children with religious education is not established in the Constitution. Therefore, the impugned provision particularises the right of parents entrenched in the Constitution and does not hinder parents professing religions which have support in society to request that their children be given religious instruction.

4. Under Paragraph 4 of Article 20 of the Law, in the educational establishments of two co-founders (the state or a municipality and a state-recognised traditional religious association), at the request of parents, instead of classes on religion pupils may attend ethics classes or those on other traditional religion. Thereby equal opportunities are created for pupils both attending classes on religion and not attending them to gain additional knowledge.

5. In the opinion of the representatives of the party concerned, Item 2 of Article 21 of the Law providing for the right of pupils who are of 15 years of age to decide independently on their religious instruction should be regarded as their right to decide by themselves whether to attend religious classes irrespective of the will of their parents. This provision was formulated while taking account of Articles 13 and 14 of the Civil Code of the Republic of Lithuania under which minors who reached 15 years of age may independently exercise some of their rights. A pupil of 15 years of age may not only stop attending religious classes but also start attending them. The establishment of such a right is in conformity with Paragraph 1 of Article 40 of the Constitution.

6. The provisions of the Law regulating the procedure of founding state and municipal educational establishments and the powers of the Ministry of Education and Science and the county governor to found these establishments and supervise their activity are construed by the representatives of the party concerned on the basis of the legal regulation established in the Republic of Lithuania’s Law on Local Self-Government and the Republic of Lithuania’s Law on the Governing of the County, the doctrine of the Constitutional Court and the provisions of the European Charter of Local Self-Government.

7. The representatives of the party concerned emphasise that under Article 2 of the Law on Local Self-Government, self-government shall be implemented on the basis of principle of coordination of the interests of a municipality and the state. They also draw one’s attention to the fact that, in its ruling of 18 February 1998, the Constitutional Court held that “self-government presupposes certain freedom and autonomy of activities, as well as independence from state authority institutions. Such freedom, however, is not limitless, while the autonomy does not mean that one may ignore state interests. Therefore, the principle of coordination of interests of municipalities and those of the state is of utmost importance. There are cases when this is expressed by the state supporting municipalities in all ways and forms, or when joint actions are coordinated when significant social objectives are being sought, or when the state supervises municipal activities in the form prescribed by law”. Further the Constitutional Court ruling points out that “In the countries of the continental law system the administrative supervision of self-government activities have been formed and are dominating. This means that municipalities are supervised by the executive power of the state, i.e. its certain institutions”. The representatives of the party concerned conclude that the provision of Paragraph 3 of Article 10 of the Law that municipal educational establishments providing with elementary and secondary education shall be founded, reorganised and closed down by municipal councils subject to a written consent of the Ministry of Education and Science, while educational establishments providing with nursery schooling, extra instruction and adult informal education—subject to a written consent of county governors, is in compliance with the Constitution.

The representatives of the party concerned point out that under Item 1 of Article 5 of the Law on the Governing of the County, one of the tasks of the county governor is to implement state policy in the sphere of education, while under Item 3 of Article 7 of the same law, the county governor supervises the implementation of state general education, cultural and social policy. Economic conditions, transport infrastructure, as well as other objective reasons, make one search for ways to decide the issues of foundation and use of educational establishments. The procedure of foundation of educational establishments provided for in the Law permits coordinating and harmonising actions of several municipalities in deciding whether a certain educational establishment is necessary. In the course of the coordination of the interests of municipalities and the state, opportunities are created to implement a certain state policy and to bring educational services closer to the people.

8. Substantiating the compliance with the Constitution of the impugned provisions of the Law regulating the powers of the Ministry of Education and Science and the county governor to supervise state and municipal educational establishments, the representatives of the party concerned have presented the following arguments.

Paragraph 4 of Article 40 of the Constitution provides: “The State shall supervise the activities of establishments of teaching and education.” This constitutional provision mentions only one of the functions of the state and is repeated in Paragraph 1 of Article 34 of the Law. On the grounds of the Constitutional Court ruling of 18 February 1998, the representatives of the party concerned maintain that local administration is fulfilment of state administration (i.e. the executive power) functions in particular localities, i.e. respective administrative units. The functions of the local administration are, as a rule, performed by officials appointed by the central authority or institutions formed by the said officials which generally act in the name or on the instructions (authorisation) of the central authority. It was necessary to provide for in the Law as to what state institution should supervise the activity of establishments of teaching and education. The impugned Paragraph 3 of Article 34 of the Law commissioned the Ministry of Education and Science and county governors to supervise the implementation of the state education policy according to the regulations approved by the Ministry of Education and Science. Thus, the function of local administration is implemented by supervising state policy carried out in particular localities.

9. In the opinion of the representatives of the party concerned, Paragraph 2 of Article 34 of the Law is also in conformity with the Constitution. The founder of an educational establishment must ensure that curricula be carried out, take care of the educational establishment, allocate funds to it. It would not be able to discharge these functions if he did not have the right to supervise the activity of this establishment. The founders of educational establishments organise and supervise the activities of educational establishments under the procedure provided in the common regulations for supervision of educational establishments.

10. The representatives of the party concerned maintain that Paragraph 4 of Article 34 of the Law grants the right to the Government to transfer the functions of the founder of an educational establishment to the administration of the county governor only in exceptional cases pointed out in the Law, i.e. when the municipality does not discharge the functions of education established to it by law, and when it does not ensure the necessary conditions for the activity of the educational establishment that is under its jurisdiction. Such regulation creates preconditions for ensuring the continuity of the teaching process so that in cases when the functions of education were not carried out, the process of teaching would not suffer.

11. Concerning the compliance of the impugned provisions of Items 2 and 5 of Article 35 of the Law with Paragraph 2 of Article 120 of the Constitution, the representatives of the party concerned present the following counter-arguments. The petitioner, challenging the conformity of the said provisions with the Constitution, bases himself on the statement of Paragraph 2 of Article 120 of the Constitution that municipalities shall “act freely and independently”, but he disregards the fact that under the Constitution municipalities shall act “within the limits of their competence which shall be established by the Constitution and laws”. The representatives of the party concerned note that, according to the European Charter of Local Self-Government, institutions of local self-government enjoy as many rights and powers as it is established in laws.

12. Concerning the compliance of Paragraph 1 of Article 15 of the Law with Paragraph 2 of Article 38, Paragraph 1 of Article 39 and Paragraph 2 of Article 41 of the Constitution, the representatives of the party concerned present the following counter-arguments.

Paragraph 1 of Article 15 of the Law provides that instruction at state and municipal pre-school establishments (with the exception of child care institutions) as well as establishments of additional education shall be paid in part. Under the Law, parents cover only part of the expenses. The representatives of the party concerned draw one’s attention to the fact that the petitioners also agree that in state or municipal pre-school establishments services to be paid for in part may be rendered, and that they recognise that the state has not financial opportunities to guarantee pre-school education free of charge yet.

The representatives of the party concerned contend that Paragraph 1 of Article 15 of the Law indicates one of the ways of support of families by the state: the state covers expenses of state and municipal pre-school establishments in part. Besides, Paragraph 1 of Article 39 of the Constitution provides that the state shall take care of families bringing up children at home, and shall render them support in the manner established by law, but it does not mention pre-school educational establishments.

Paragraph 2 of Article 41 of the Constitution enumerates educational establishments where education must be guaranteed free of charge. They are: state and municipal schools of general education, state and municipal vocational and further education schools. Pre-school establishments are not mentioned therein.

13. On the grounds of the arguments set forth, the representatives of the party concerned maintain that not a single provision impugned by the petitioner conflicts with the Constitution.

14. To his arguments the representative of the party concerned A. J. Raškinis also adjoined papers of the Association of Teachers of Lithuanian Catholic Schools and the Association of Lithuanian Catholic Parents.

IV

In the course of the preparation of the case for the court hearing, explanation concerning the arguments of the petitioner were received from the Seimas Education, Science and Culture Committee, the Ministry of Education and Science, the Catechetics Department of Pedagogical Faculty of Klaipėda University, the Lithuanian Catholic Academy of Science, the Constitutional Law Department of the Public Administration Faculty of the Law Academy of Lithuania, the Pedagogical Institute, the Pedagogics Department of the Pedagogical Faculty of Šiauliai University, the Catholic Faith Department of the Faculty of History of Vilnius Pedagogical University, the Pedagogics Department of Vilnius Pedagogical University, the Dean’s Office of the Faculty of Catholic Theology of the University of Vytautas the Great. There are appendices to the paper of the Seimas Education, Science and Culture Committee—“Constitutionality of Amendments of the Law on Education” by the Seimas member A. J. Raškinis and the statement of 3 March 1998 of the Conference of Bishops of Lithuania, and there are individual opinions of Assoc. Prof. M. Barkauskaitė, Assoc. Prof. E. Martišauskienė and the assistant I. Uždavinienė adjoined to the paper of the Pedagogics Department of Vilnius Pedagogical University.

In the course of the preparation of the case for the court hearing, the explanations concerning the arguments of the petitioners were received from the institutions.

The explanations concerning the arguments of the petitioner were also received from Assoc. Prof. Dr. G. Babachinaitė, the Head of the Criminology Department of the Law Faculty of the Law Academy of Lithuania, Assoc. Prof. Dr. A. Bučinskas, the Dean of the Faculty of Social Sciences of Klaipėda University, Dr. K. Dubnikas who is a senior assistant at the Department of Logic and History of Philosophy of the Faculty of Philosophy of Vilnius University, Dr. A. Gazarianas, Director of the Research Centre for Investigation of Problems of Self-Government, Prof. Habil. Dr. L. Jovaiša, Assoc. Prof. Dr. A. Kulakauskas who works at the Institute of International Relations and Political Science of Vilnius University, Habil. Dr. M. Lukšienė, Assoc. Prof. Dr. G. Mažeikis, the Head of the Department of Philosophy of the Humanities Faculty of Šiauliai University, A. Navickas, a lecturer at the Centre for Studies and Research of Religion at Vilnius University, P. Plumpa, an advisor to the Division of Culture, Education and Science of the Office of the Government of the Republic of Lithuania for questions of religions, Prof. d. h. c. T. Remeikis, Assoc. Prof. Dr. K. Stoškus who works at the Faculty of Philosophy of Vilnius University, Assoc. Prof. Dr. L. Šabajevaitė who works at the Department of Political Science of the Faculty of Philosophy of Vilnius University, Habil. Dr. V. Zaborskaitė, and Assoc. Prof. Dr. R. Želvys, the Head of the Education Department of the Faculty of Philosophy of Vilnius University.

V

In the court hearing the representatives of the petitioner and those of the party concerned virtually reiterated the arguments set down in writing.

The Constitutional Court

holds that:

I

On the compliance of Item 5 of Article 1 of the Law with Paragraphs 1, 2, and 3 of Article 26, Paragraph 1 of Article 40 and Paragraphs 1, 2, 5 and 7 of Article 43 of the Constitution.

1. Article 1 of the Law provides:

The major goals of the educational system shall be:

<…> 5) to guarantee the same rights and conditions for members of traditional religions as for all the residents to bring up their children in educational establishments according to their convictions.”

2. The Constitution shall be an integral and directly applicable statute (Paragraph 1 of Article 6 of the Constitution). It is impossible to interpret the norms set forth in the articles (parts thereof) of the Constitution which were pointed out by the petitioner by keeping them separate from other norms of the Constitution. The constitutional norms regulating the relations between the state and the churches and religious organisations in the sphere of education are set down in various articles (parts thereof) of the Constitution. The systematic method of construction will also be applied in the course of the investigation of the compliance of Item 5 of Article 1 of the Law which was impugned by the petitioner with the articles (parts thereof) of the Constitution which were pointed out by the petitioner.

It also needs to be noted that the Constitutional Court, after it has decided that the impugned act (part thereof) conflicts with the articles (parts thereof) of the Constitution which have not been pointed out by the petitioner, is empowered to state so.

3. Article 26 of the Constitution provides:

Freedom of thought, conscience, and religion shall not be restricted.

Every person shall have the right to freely choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching.

No person may coerce another person or be subject to coercion to adopt or profess any religion or faith.

A person’s freedom to profess and propagate his or her religion or faith may not be limited otherwise than by law and only when this is necessary to protect the safety of society, public order, a person’s health or morals, or the fundamental rights and freedoms of others.

Parents and legal guardians shall not be restricted in matters of taking care of the religious and moral education of their children in conformity with their own convictions.”

Article 40 of the Constitution provides:

State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall offer classes in religious instruction.

Non-governmental teaching and educational institutions may be established according to the procedure established by law.

Institutions of higher learning shall be granted autonomy.

The State shall supervise the activities of establishments of teaching and education.”

Article 43 of the Constitution provides:

The State shall recognise traditional Lithuanian churches and religious organisations, as well as other churches and religious organisations provided that they have a basis in society and their teaching and rituals do not contradict morality or the law.

Churches and religious organisations recognised by the State shall have the rights of legal persons.

Churches and religious organisations shall freely proclaim the teaching of their faith, perform the rituals of their belief, and have houses of prayer, charity institutions, and educational institutions for the training of priests of their faith.

Churches and religious organisations shall function freely according to their canons and statutes.

The status of churches and other religious organisations in the State shall be established by agreement or by law.

The teachings proclaimed by churches and other religious organisations, other religious activities, and houses of prayer may not be used for purposes which contradict the Constitution and the law.

There shall not be a State religion in Lithuania.”

4. One of fundamental freedoms of individuals is entrenched in Paragraph 1 of Article 26 of the Constitution: freedom of thought, conscience and religion shall not be restricted. This freedom guarantees an opportunity for people holding various views to live in an open, just and harmonious civil society. Not only is this freedom a self-contained value of democracy but also an important guarantee that the other constitutional human rights and freedoms would be implemented in a fully-fledged manner.

Interpreting the provisions of Article 26 of the Constitution in a systemic manner, it should be noted that the freedom of thought, conscience and religion is inseparable from the other human rights and freedoms entrenched in the Constitution: the right to have one’s own convictions and freely express them, freedom to seek, obtain and disseminate information and ideas (Paragraphs 1 and 2 of Article 25), the right to freely form societies and associations, the right not to be subjected to belong to any society or association by force (Paragraphs 1 and 2 of Article 35), the right of parents to bring up their children to be honest individuals and loyal citizens (Paragraph 6 of Article 38), the freedom of culture, science, research and teaching (Paragraph 1 of Article 42), as well as the other human rights and freedoms enshrined in the Constitution.

The freedom of thought, conscience and religion is also inseparable from the principles established in the Constitution: the equality of persons, the prohibition on granting privileges, non-discrimination (Paragraphs 1 and 2 of Article 29), the recognition by the state of marriages registered in church (Paragraph 4 of Article 38), the secularity of state and municipal establishments of teaching and education (Paragraph 1 of Article 40), the recognition by the state of traditional Lithuanian churches and religious organisations and other churches and religious organisations provided that they conform to the criteria provided for in the Constitution (Paragraph 1 of Article 43), freedom of religious activity (Paragraph 3 of Article 43), freedom of the internal functioning of churches and religious organisations (Paragraph 4 of Article 43), and the absence of a state religion (Paragraph 7 of Article 43). The aforesaid freedom is also inseparable from the general constitutional principle of a state under the rule of law and the striving for an open, just, and harmonious civil society, as well as from other constitutional principles.

5. By its content Article 26 of the Constitution is linked with the freedom of convictions and their expression established in Article 25 of the Constitution and the common criteria of limitation on the use of the rights and freedoms by persons as established in Articles 27 and 28 of the Constitution.

According to its content, in democratic states under the rule of law the freedom of thought, conscience and religion is recognised as a more particular expression of a broader human freedom to have one’s convictions and freely express them. Convictions are a broad and diverse constitutional notion, including political, economic convictions, religious feelings, cultural disposition, ethical and esthetical views etc.

The freedom to have convictions means that an individual is free to form his own convictions, to choose world-view values, he is protected from any coercion, it is not permitted to exert control over his convictions. The duty of state institutions is to ensure and protect this freedom of individuals. The content of convictions is a private matter of the individual.

The right of free expression of convictions is inseparable from the freedom to have them. The freedom of expression of convictions is an opportunity to express one’s thoughts, views and convictions orally, in writing, in symbols and other ways and means of dissemination of information in an unhampered manner. Alongside, the freedom of expression of convictions includes the freedom not to disclose one’s convictions and not be subjected to disclose them by force.

The freedom of convictions and their expression establishes ideological, cultural and political pluralism. No views or ideology may be declared mandatory and thrust on an individual, i.e. the person who freely forms and expresses his own views and who is a member of an open, democratic, and civil society. This is an innate human freedom. The state must be neutral in matters of convictions, it does not have any right to establish a mandatory system of views.

The freedom to have convictions may not be limited in any way, while the freedom to express convictions may be limited under the procedure provided for by law and only in cases when it is necessary to protect the values pointed out in Paragraph 3 of Article 25 of the Constitution, i.e., the health, honour and dignity, private life and morals of the person, or the constitutional order. The freedom of expression of convictions may also be temporarily limited during martial law or a state of emergency (Article 145 of the Constitution). The validity of limitations on a fundamental right or freedom should be assessed on the grounds of the criteria of common sense and those of evident necessity, it must be in compliance with the concept and requirements of justice and the possibilities and conditions of its restriction established in the Constitution (the Constitutional Court’s ruling of 13 February 1997). Any limitation on fundamental rights and freedoms should be connected with the rational relation guaranteeing that by means of the limitations the essence of a particular human right would not be violated.

The freedom of thought, conscience and religion becomes a matter of legal regulation only to the extent that an individual expresses his thoughts or religion in his actions. As long as he has a religion or faith, this is an inviolable sphere of his private life. This state may not be limited in any way (the Constitutional Court’s conclusion of 24 January 1995). In this respect, the freedom of religion is an absolute freedom of individuals. The right of an individual not to disclose his approach concerning matters of faith or non-believing is uncontested, either.

It is from this aspect that the formula “freedom shall not be restricted” employed in Paragraph 1 of Article 26 of the Constitution is particularised in Paragraphs 2, 3 and 4 of the same article. The state has the duty to ensure that no one encroach upon the spiritual matters of an individual, i.e., that no one impair his innate right to choose a religion acceptable to him or not to choose any, to change his chosen religion or abandon it. The state may not establish mandatory requirements that a person indicate his faith or his approach as regards matters of religion. On the other hand, the state has the duty to ensure that a believer or a non-believer, either alone or with others, make use of the freedom of thought, conscience and religion guaranteed to him in a way that the rights and freedoms of other persons would not be violated: under Article 28 of the Constitution, while exercising their rights and freedoms, persons must observe the Constitution and the laws, and must not impair the rights and freedoms of other people, while it is stipulated in Article 27 of the Constitution that a person’s convictions, professed religion or faith may justify neither the commission of a crime nor the violation of law.

In Paragraph 2 of Article 25 of the Constitution an important condition for the freedom of convictions and their expression is established: individuals must not be hindered from seeking, obtaining, or disseminating information or ideas. On the other hand, the provision of Paragraph 3 of Article 26 of the Constitution that no person may coerce another person or be subject to coercion to adopt or profess any religion or faith, means that no religious or materialistic ideas may be forced on an individual against his will. The right of parents to take care of the religious education of their children and wards in conformity with their own convictions as guaranteed in Paragraph 5 of Article 25 of the Constitution should not be regarded as such a constraint. Under Paragraph 2 of Article 26 of the Constitution, an individual is free to choose the religion or faith which is acceptable to the person who chooses it, alongside, he has the right not to choose any religion or faith.

6. It is established in Paragraph 1 of Article 43 of the Constitution, that the state shall recognise traditional Lithuanian churches and religious organisations, as well as other churches and religious organisations provided that they have a basis in society and their teaching and rituals do not contradict morality or the law.

The constitutional provision that the state shall recognise traditional Lithuanian churches and religious organisations presupposes the fact that the legislature may, in certain cases, name certain religious organisations as traditional in Lithuania. The naming of churches and religious organisations as traditional is a special way of their recognition by the state.

The constitutional establishment of the institute of recognition of churches and religious organisations as traditional means that such recognition by the state is irrevocable. Tradition is neither created nor abolished by an act of the will of the legislature. The naming of churches and religious organisations as traditional is not an act of their establishment as traditional organisations but an act stating both their tradition and the status of their relations with society, which does not depend on the willpower of the legislature. Such an act reflects the development and the situation of the religious culture in society. It needs to be noted that the provision of Paragraph 1 of Article 43 of the Constitution providing for the presence of traditional Lithuanian churches and religious organisations is the constitutional basis upon which a different status of traditional churches and organisations may be established if compared with other churches and religious organisations. This means that, without limiting the rights guaranteed for all churches and religious organisations, additional rights for traditional churches and religious organisations may also be ensured by law which are not enjoyed by the churches and organisations which are not traditional.

7. Paragraph 7 of Article 43 of the Constitution establishes the principle of the absence of a state religion in Lithuania. This constitutional norm and the norm providing that there are traditional churches and religious organisations in Lithuania, mean that the tradition of religion should not be identified with its belonging to the state system: churches and religious organisations do not interfere with the activity of the state, its institutions and that of its officials, they do not form state policy, while the state does not interfere with the internal affairs of churches and religious organisations; they function freely according to their canons and statutes (Paragraph 4 of Article 43 of the Constitution).

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, 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 systemic manner, the conclusion should be drawn that the principle of the separateness of the state and the church is established in the Constitution. The principle of the separateness of the state and the church is the basis of the secularity of the State of Lithuania, its institutions and their activities. This principle, along with the freedom of convictions, thought, religion and conscience which is established in the Constitution, together with the constitutional principle of equality of all persons and the other constitutional provisions, determine neutrality of the state in matters of world view and religion.

The fact that the State of Lithuania and its institutions are neutral as regards the matters of world view and religion, means disconnection of the purpose, functions and activities of the areas of the state and religion, those of the state and the churches and religious organisations. It needs to be noted that the neutrality and secularity of the state may not serve as the grounds to discriminate the believers, to restrict their rights and freedoms. Secularity of the state also presupposes non-interference with the internal life of churches and religious organisations by the state.

8. Paragraph 1 of Article 40 of the Constitution provides that state and municipal establishments of teaching and education shall be secular. This constitutional provision presupposes a requirement that these establishments be tolerant, open and accessible to people of all religions as well as those members of society who are non-believers. The formula “secular” employed in Article 40 of the Constitution means that the Constitution establishes the presumption that teaching in state and municipal establishments of teaching and education should be of secular content.

9. Paragraph 1 of Article 40 of the Constitution provides that at the request of parents, state and municipal establishments of teaching and education shall offer classes in religious instruction. This provision implies that: 1) religious instruction is given at the request of parents (taking account of the norm of Paragraph 5 of Article 26 of the Constitution, such a request may also be expressed by the legal guardians of a child); 2) state and municipal establishments of teaching and education have the duty to guarantee that, in case there is the request of parents, classes in religious instruction be offered; 3) religious instruction must be organised in such a way that secularity of state and municipal establishments of teaching and education would not be denied.

The requirement of Paragraph 1 of Article 40 of the Constitution to offer classes in religious instruction at the request of parents expresses the principle of positive declaration. It is the constitutional right of parents to express the request that their children be given religious instruction, also by indicating as to what particular religion is requested to be taught.

10. As mentioned before, the goal for the educational system is established in Item 5 of Article 5 of the Law “to guarantee the same rights and conditions for members of traditional religions as for all the residents to bring up their children in educational establishments according to their convictions”. In the opinion of the petitioner, Item 5 of Article 1 of the Law conflicts with Paragraphs 1, 2 and 3 of Article 26 of the Constitution.

By the legal regulation established in the impugned Item 5 of Article 1 of the Law, the right of members of traditional religious associations to bring up their children in educational establishments according to their convictions is emphasised.

To bring up their children, to take care of their religious and moral education according to their convictions is the constitutional right of all parents. According to the impugned norm, the parents who belong to traditional religious associations are not granted any additional rights which the other parents do not possess. It is established therein that the same rights and conditions must be crated for these parents to bring up their children in educational establishments according to their convictions as for all the other residents.

The norm of Item 5 of Article 1 of the Law neither regulates nor assesses the contents of religious doctrines, it does not restrict the innate human right to choose a religion or faith or to abandon it, to profess it, either individually or with others, in private or in public, to manifest his religion or faith in worship, observance, practice or teaching. Nor does the legal regulation established in the impugned norm create legal preconditions for coercing any person, or one’s being subject to coercion, to adopt or profess any religion or faith.

As by Item 5 of Article 1 of the Law not any additional rights in the educational system are established to parents belonging to traditional religious associations which are not enjoyed by other parents, thus, there are not any grounds to assert that the opportunities of parents to implement the innate freedom of thought, religion and conscience depend on whether they belong to traditional religious associations.

On the grounds of the arguments set forth, it should be concluded that Item 5 of Article 1 of the Law is in compliance with Paragraphs 1, 2 and 3 of Article 26 of the Constitution.

11. According to the petitioner, Item 5 of Article 1 of the Law conflicts with Paragraph 1 of Article 40 of the Constitution wherein it is established that state and municipal establishments of teaching and education shall be secular and that at the request of parents, they shall offer classes in religious instruction.

It has been held in this Constitutional Court ruling, that in the impugned legal norm not any additional rights in the educational system are established to parents belonging to traditional religious associations which are not enjoyed by other parents. It needs to be noted that by the impugned legal regulation the secular character of state and municipal establishments of teaching and education is not changed.

On the grounds of the arguments set forth, it should be concluded that Item 5 of Article 1 of the Law is in compliance with Paragraph 1 of Article 40 of the Constitution.

12. In the opinion of the petitioner, the impugned Item 5 of Article 1 of the Law conflicts with Paragraph 1 of Article 43 of the Constitution wherein it is established that the State shall recognise traditional Lithuanian churches and religious organisations, as well as other churches and religious organisations provided that they have a basis in society and their teaching and rituals do not contradict morality or the law.

As has been held in this ruling, singling out of members of traditional religious associations in the impugned norm is in compliance with Paragraphs 1, 2 and 3 of Article 26 of the Constitution. On the grounds of the same arguments, it should be concluded that Item 5 of Article 1 of the Law is also in compliance with Paragraph 1 of Article 43 of the Constitution.

13. According to the petitioner, Item 5 of Article 1 of the Law conflicts with Paragraph 2 of Article 43 of the Constitution establishing that churches and religious organisations recognised by the State shall have the rights of legal persons.

It needs to be noted that the impugned norm does not regulate the relations linked with acquisition, possession or loss of the rights of a legal person. Item 5 of Article 1 of the Law regulates relations of different nature, i.e. those linked with education of children of traditional religious associations and those of all residents in educational establishments according to their convictions.

On the grounds of the arguments set forth, it should be concluded that Item 5 of Article 1 of the Law is in compliance with Paragraph 2 of Article 43 of the Constitution.

14. The petitioner is of the opinion that Item 5 of Article 1 of the Law conflicts with Paragraph 5 of Article 43 of the Constitution establishing that the status of churches and other religious organisations in the state shall be established by agreement or by law.

The impugned norm does not regulate the relations linked with conclusion, implementation or termination of agreements between the state and the churches or other religious organisations, it does not deny the right of churches or religious organisations to conclude such agreements, or to establish their status in the state by agreement or by law.

On the grounds of the arguments set forth, it should be concluded that Item 5 of Article 1 of the Law is in compliance with Paragraph 5 of Article 43 of the Constitution.

15. In the opinion of the petitioner, Item 5 of Article 1 of the Law conflicts with Paragraph 7 of Article 43 of the Constitution establishing that there shall not be a state religion in Lithuania.

In the impugned norm of Item 5 of Article 1 of the Law not any religion is named as a state religion. The mere fact that the Law singles out traditional religious associations does not mean that corresponding religions are state religions.

On the grounds of the arguments set forth, it should be concluded that Item 5 of Article 1 of the Law is in compliance with Paragraph 7 of Article 43 of the Constitution.

II

On the compliance of Paragraph 4 of Article 10 of the Law with Paragraph 2 of Article 26, Paragraph 2 of Article 29, Paragraph 1 of Article 40 and Paragraphs 3, 5 and 7 of Article 43 of the Constitution.

1. Paragraph 4 of Article 10 of the Law provides: “Educational establishments may be founded on the basis of an agreement of several co-founders. At the request of parents, on the basis of an agreement, state or municipal educational establishments (classes, groups) may be co-founded with a state-recognised traditional religion association on the initiative of the said association, municipal council or a state institution. The procedure of foundation, reorganisation or closing down of these educational establishments, coordinated with state-recognised traditional religious associations, shall be established by the Government or its authorised institution.”

Paragraph 1 of Article 40 of the Constitution provides: “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall offer classes in religious instruction.”

One should not draw the conclusion from the provision of Paragraph 1 of Article 40 of the Constitution providing for the presence of state and municipal establishments of teaching and education, that several co-founders of state or municipal establishments of teaching and education are prohibited and that the state and municipalities (their institutions) are not permitted to be one of the co-founders of such establishments of teaching and education. Under Paragraph 4 of Article 10 of the Law, the educational establishments that state or municipal institutions found together with state-recognised traditional religious associations are state (municipal) schools. Under Paragraph 1 of Article 40 of the Constitution, these jointly founded educational establishments are secular.

It needs to be noted that by the norm entrenched in Paragraph 1 of Article 40 of the Constitution it is guaranteed that at the request of parents, state and municipal establishments of teaching and education offer classes in religious instruction. Paragraph 4 of Article 10 of the Law does not provide that state and municipal establishments of teaching and education shall not offer classes in religious instruction nor that religious instruction is given not at the request of parents.

It is provided in the impugned Paragraph 4 of Article 10 of the Law that at the request of parents, in state or municipal educational establishments classes or groups may be co-founded with a state-recognised traditional religion association. Under Paragraph 1 of Article 2 of the Law, classes or groups are not educational establishments. They are constituent parts of educational establishments. Classes and groups are not founded independently of respective educational establishments; their foundation is a matter of internal organisational work of establishments of teaching and education. It needs to be noted, however, that under Paragraph 1 of Article 40 of the Constitution, state and municipal establishments of teaching and education shall be secular, therefore, all their constituent parts—classes, groups etc.—must be secular as well. These classes, groups may not be founded or formed in any other way on the basis of religion, faith or religious instruction. Otherwise the secular character of state and municipal establishments of teaching and education would be denied and the constitutional principle of the separateness of the state and the church would be violated. On the grounds of religion, groups may be formed to receive religious instruction only, however, under the Constitution, on such a basis classes, groups etc. may not be founded or formed in any other way to receive instruction in secular subjects in state or municipal establishments of teaching and education. Meanwhile, Paragraph 4 of Article 10 of the Law to the extent that in state or municipal educational establishments their constituent parts (classes, groups) may be co-founded with state-recognised traditional religious associations in order not only to give religious instruction but also teach secular subjects creates legal preconditions for changing the secular character of state and municipal establishments of teaching and education. Therefore, Paragraph 4 of Article 10 of the Law to the aforesaid extent conflicts with Paragraph 1 of Article 40 of the Constitution.

Under Paragraph 4 of Article 10 of the Law, the Government or its authorised institution may establish the procedure of foundation, reorganisation or closing down of the said educational establishments (classes, groups) only upon the coordination with state-recognised traditional religious associations. Thus, the implementation of the powers established by the Law depends on the will of religious organisations, too. This violates the constitutional principle of the separateness of the state and the church and creates legal preconditions for changing the secular character of state and municipal establishments of teaching and education. Therefore, the provision of Paragraph 4 of Article 10 of the Law “coordinated with state-recognised traditional religious associations” conflicts with Paragraph 1 of Article 40 of the Constitution.

3. Paragraph 2 of Article 26 of the Constitution provides: “Every person shall have the right to freely choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching.”

It needs to be noted that by impugned norm of Paragraph 4 of Article 10 of the Law relations of different kind are regulated, i.e. those linked with the establishment, reorganisation or closing down of educational establishments on the basis of an agreement between the state (municipality) and a state-recognised traditional religion association. Therefore, there are not any grounds to assert that the legal regulation established in Paragraph 4 of Article 10 of the Law violates the right of an individual to freely choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching.

On the grounds of this reasoning, the conclusion should be drawn that Paragraph 4 of Article 10 of the Law is in compliance with Paragraph 2 of Article 26 of the Constitution.

4. Paragraph 2 of Article 29 of the Constitution provides: “A person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.”

It needs to be noted that it is permitted to establish different status for various churches and religious organisations in the state only pursuant to the criteria which are pointed out in the Constitution. The provision of Paragraph 1 of Article 43 of the Constitution that there are traditional Lithuanian churches and religious organisations is the constitutional basis upon which one may establish a different status of traditional churches and religious organisations in the state than that of other churches or religious organisations. Therefore, the fact that the right to be one of the co-founders of state or municipal educational establishments is granted to traditional religious associations in Paragraph 4 of Article 10 of the Law but this right has not been granted for other state-recognised churches and religious organisations does not give grounds to assert that by means of the impugned legal regulation the equality of persons established in Article 29 of the Constitution is violated.

On the grounds of the arguments set forth, it should be concluded that Paragraph 4 of Article 10 of the Law is in compliance with Paragraph 2 of Article 29 of the Constitution.

5. Paragraph 3 of Article 43 of the Constitution provides: “Churches and religious organisations shall freely proclaim the teaching of their faith, perform the rituals of their belief, and have houses of prayer, charity institutions, and educational institutions for the training of priests of their faith.”

It needs to be noted that Paragraph 3 of Article 43 of the Constitution is designated to guarantee the independence of churches and religious organisations, to protect them against interference of state and municipal institutions, their officials and other establishments with the activity of churches and religious organisations.

The Constitutional Court emphasises that the provisions of Paragraph 3 of Article 43 of the Constitution may not be construed as comprising a final list of the rights of churches and religious organisations. The rights of churches and religious organisations are also established in other provisions of the Constitution. The legislature is entitled, without violating the Constitution, to establish such rights for churches and religious organisations which are not expressly mentioned in the Constitution.

Paragraph 4 of Article 10 of the Law regulates relations linked with foundation of educational establishments (classes, groups) on the basis of an agreement together with state-recognised traditional religious associations, as well as relations linked with the establishment of the procedure for founding these establishments (classes, groups). Paragraph 3 of Article 43 of the Constitution regulates relations of a different nature.

On the grounds of the arguments set forth, it should be concluded that Paragraph 4 of Article 10 of the Law is in compliance with Paragraph 3 of Article 43 of the Constitution.

6. Paragraph 5 of Article 43 of the Constitution provides: “The status of churches and other religious organisations in the State shall be established by agreement or by law.”

The impugned norm of Paragraph 4 of Article 10 of the Law does not regulate the relations linked with conclusion, implementation or termination of agreements between the state and the churches and other religious organisations, nor does it deny the right for any churches or other religious organisations to conclude such agreements or to establish their status in the state by agreement or by law. Therefore, there are no grounds to assert that Paragraph 4 of Article 10 of the Law conflicts with Paragraph 5 of Article 43 of the Constitution.

7. Paragraph 7 of Article 43 of the Constitution provides: “There shall not be a State religion in Lithuania.” This constitutional provision means that it is not permitted to declare any religion as a state religion by law.

It needs to be noted that the impugned norm of Paragraph 4 of Article 10 of the Law does not establish any state religion. The mere fact that traditional religious associations are singled out from other churches or religious associations does not mean that one or several religions are granted the status of a state religion and that thereby the constitutional principle of absence of a state religion is violated.

On the grounds of the arguments set forth, it should be concluded that Paragraph 4 of Article 10 of the Law is in compliance with Paragraph 7 of Article 43 of the Constitution.

III

On the compliance of Paragraph 2 of Article 32 of the Law with Paragraph 1 of Article 25, Paragraphs 1, 2 and 3 of Article 26 and Paragraph 1 of Article 40 of the Constitution and that of Item 2 of Paragraph 2 of Article 32 of the Law with Paragraph 1 of Article 42 of the Constitution.

1. Paragraph 2 of Article 32 of the Law provides:

The regulations of state and municipal educational establishments which are co-founded with state-recognised traditional religious associations, which must be in conformity with this Law and other laws, must be approved by both co-founders. In these regulations of educational establishments it must be provided that:

1) heads of the educational establishments shall be appointed and dismissed by respective state and municipal institutions on the recommendation of the religious association;

2) the religious association shall set the requirements of world outlook formation and those for the staff of the educational establishment connected with education;

3) the certification of the heads and teachers of the educational establishment shall be organised by both co-founders (according to their competence).”

In the opinion of the petitioner, this paragraph of the said article conflicts with Paragraph 1 of Article 25, Paragraphs 1, 2 and 3 of Article 26 and Paragraph 1 of Article 40 of the Constitution.

2. Paragraph 1 of Article 25 of the Constitution provides: “Individuals shall have the right to have their own convictions and freely express them.”

2.1. Under the Constitution, state and municipal establishments of teaching and education are secular. In these establishments no requirements may be set to the teachers and other employees which are connected with their convictions. Neither state or 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. The Constitutional Court emphasises that otherwise the norm of Paragraph 1 of Article 42 of the Constitution by which culture, science, research and teaching shall be unrestricted, which was not pointed out by the petitioner, would also be denied.

It needs to be noted that the formula “the staff of the educational establishment connected with education” employed in Item 2 of Paragraph 2 of Article 32 of the Law is worded in such a way that it might be interpreted as including not only teachers of religion but also all the rest of the employees of respective establishments whose functions or activities might exert influence on pupils’ education, i.e. on their teaching, upbringing, instruction etc.

However, according to the constitutional concept of convictions and freedom of their expression, an individual is free to choose world-look values. Thus, the impugned norm is formulated in a legally deficient manner.

The provision of Item 2 of Paragraph 2 of Article 32 of the Law that the regulations of state and municipal educational establishments which are co-founded with state-recognised traditional religious associations must provide that the religious association shall set the requirements of world outlook formation for the staff of the educational establishment connected with education presupposes the fact that the religious community is entitled to interfere with the convictions of the employees, to exert influence on them, to find out their view on religion, faith, believing or non-believing. This is not in line with the constitutional concept of the freedom of convictions and their expression as well as the norm of Paragraph 1 of Article 42 of the Constitution that culture, science, research and teaching shall be unrestricted.

On the grounds of the reasoning set forth, it should be concluded that the provision of Item 2 of Paragraph 2 of Article 32 of the Law conflicts with Paragraph 1 of Article 25 and Paragraph 1 of Article 42 of the Constitution.

2.2. The provision of Item 1 of Paragraph 2 of Article 32 of the Law by which heads of the educational establishments shall be appointed and dismissed by respective state and municipal institutions on the recommendation of the religious association presupposes the fact that the said state and municipal institutions provided there is not the recommendation of the religious association, may not appoint the head of the educational establishment. This means that decisions of state and municipal institutions are dependent on the will of traditional churches and religious organisations. Such a recommendation which is provided for in the impugned item of the Law is not line with the constitutional principle of the separateness of the state and the church.

On the grounds of the arguments set forth, it should be concluded that the provision of Item 1 of Paragraph 2 of Article 32 of the Law providing that in order to appoint and dismiss heads of state and municipal educational establishments a recommendation of the religious association is necessary conflicts with Paragraph 1 of Article 25 of the Constitution.

2.3. The compliance of Item 3 of Paragraph 2 of Article 32 of the Law providing that the certification of the heads and teachers of the educational establishment shall be organised by both co-founders (according to their competence) with Paragraph 1 of Article 25 of the Constitution should also be investigated, while taking account of the provision of Item 2 of Paragraph 2 of Article 32 of the Law that the regulations of state and municipal educational establishments which are co-founded with state-recognised traditional religious associations must provide that the religious association shall set the requirements of world outlook formation and the requirements for the staff of the educational establishment connected with education. These requirements are linked with convictions of the employees of the educational establishment, their view on respective religion or faith. It has already been held in this ruling, that the provision of Item 1 of Paragraph 2 of Article 32 of the Law establishing that in order to appoint and dismiss heads of state and municipal educational establishments a recommendation of the religious association is necessary, and Item 2 of the same part of the said article conflict with Paragraph 1 of Article 25 of the Constitution. On the grounds of the same arguments, it should be concluded that Item 3 of Paragraph 2 of Article 32 of the Law is also in conflict with Paragraph 1 of Article 25 of the Constitution.

3. Paragraphs 1, 2 and 3 of Article 26 of the Constitution provide:

Freedom of thought, conscience, and religion shall not be restricted.

Every person shall have the right to freely choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching.

No person may coerce another person or be subject to coercion to adopt or profess any religion or faith.”

As has been held in this ruling, the provision of Item 1 of Paragraph 2 of Article 32 of the Law establishing that in order to appoint and dismiss heads of state and municipal educational establishments a recommendation of the religious association is necessary, and that Items 2 and 3 of Paragraph 2 of the same article conflict with Paragraph 1 of Article 25 of the Constitution. On the grounds of the same arguments, it should be concluded that the said provision as well as Items 2 and 3 of Paragraph 2 of the same article also conflict with Paragraphs 1 and 2 of Article 26 of the Constitution.

The compliance of the impugned Items 1, 2 and 3 of Paragraph 2 of Article 32 of the Law with Paragraph 3 of Article 26 of the Constitution should be assessed in a different manner. The legal norms established in the said items do not create legal preconditions for coercing persons to adopt or profess any religion or faith, therefore, Items 1, 2 and 3 of Paragraph 2 of Article 32 of the Law are in compliance with Paragraph 3 of Article 26 of the Constitution.

4. Paragraph 1 of Article 40 of the Constitution provides: “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall offer classes in religious instruction.”

4.1. The norm of Paragraph 2 of Article 32 of the Law that the regulations of state and municipal educational establishments which are co-founded with state-recognised traditional religious associations must be approved by both co-founders means that the state and municipalities (their institutions) may not approve the regulations of the aforesaid state and municipal educational establishments in case they are not approved by another co-founder—the state-recognised religious community. Thus, the opportunities of state institutions to implement the powers established to them by the Law depend on the will of the religious organisations. By such legal regulation the constitutional principle of the separateness of the state and the church is violated, legal preconditions are created for state-recognised traditional religious associations which are co-founders of the educational establishment to interfere with management of state and municipal establishments of teaching and education and with the supervision of their activity, as well as change the secular character of state and municipal establishments of teaching and education.

4.2. Paragraph 1 of Article 40 of the Constitution establishes the principle of secularity of state and municipal establishments of teaching and education. Among other things, this principle means that state and municipal secular establishments of teaching and education are tolerant, open and accessible to people of all faiths, as well as the members of society who are non-believers; the content of world-view education in these establishments is secular; in the course of the teaching of secular subjects not any religion nor faith is implanted in pupils. No requirements connected with their convictions may be set for teachers or other employees of secular educational establishments (save teachers of religion). Thus, churches and religious organisations may not set any requirements connected with their convictions or faith for teachers or other employees of secular educational establishments (save teachers of religion). It is only state and municipal institutions that are permitted to manage, organise and supervise activities of state and municipal educational establishments but never churches or religious organisations.

By the legal regulation established in Items 1, 2 and 3 of Paragraph 2 of Article 32 of the Law, the constitutional principle of the separateness of the state and the church is violated, it is permitted by it that a state-recognised traditional religious association which is a co-founder of an educational establishment interfere with the management and supervision of state and municipal establishments of teaching and education, and change the secular character of state and municipal establishments of teaching and education. On the grounds of the arguments set forth, it should be concluded that Paragraph 2 of Article 32 of the Law conflicts with Paragraph 1 of Article 40 of the Constitution.

IV

On the compliance of Article 20 of the Law with Paragraphs 1, 2, 3 and 5 of Article 26, Paragraph 2 of Article 29, Paragraph 1 of Article 40 and Paragraph 7 of Article 43 of the Constitution.

1. Article 20 of the Law provides:

At the request of parents (legal guardians), individuals authorised by church dignitaries shall give religious instruction (of the confessions recognised by the state as traditional) at state and municipal educational establishments.

Children under state and municipal care shall be given religious instruction conforming to the traditional religion professed by their family or relatives.

Those who do not attend classes of religious instruction shall be taught ethics at that time.

In the educational establishments of two co-founders (the state or municipality and a state-recognised traditional religious association), at the request of parents (or legal guardians), instead of religious classes pupils may attend ethics classes or those of religion of other traditional confessions.”

2. Paragraph 2 of Article 29 of the Constitution provides: “A person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.”

It has already been held in this ruling that the provision of Paragraph 1 of Article 43 of the Constitution providing for the presence of traditional Lithuanian churches and religious organisations is the constitutional basis on which a different status of traditional churches and organisations may be established if compared with other churches and religious organisations. Therefore, the fact that the impugned norm singles out the religious instruction of traditional churches and religious organisations and that it does not indicate religious instruction of other state-recognised churches and religious organisations, does not give grounds to assert that the impugned legal regulation violates the principle of the equality of persons established in Article 29 of the Constitution.

It is also important that Paragraphs 3 and 4 of Article 20 of the Law establish the right and duty for all the pupils who do not attend classes in religious instruction to attend ethics classes, and there is not any formal distinction of their group according to the criteria pointed out in Paragraph 2 of Article 29 of the Constitution.

On the grounds of the arguments set forth, it should be concluded that Article 20 of the Law is in compliance with Paragraph 2 of Article 29 of the Constitution.

3. Paragraph 5 of Article 26 of the Constitution provides: “Parents and legal guardians shall not be restricted in matters of taking care of the religious and moral education of their children in conformity with their own convictions.”

As mentioned before, under Paragraph 1 of Article 40 of the Constitution, children’s parents (legal guardians) are entitled to request that state or municipal educational establishments offer the pupils classes in religious instruction, and to indicate as to what religion their child be taught. The provisions of Paragraph 1 of Article 20 of the Law that state and municipal educational establishments offer classes in religious instruction and that they are offered at the request of parents (legal guardians) are in compliance with Paragraph 5 of Article 26 of the Constitution.

3.1. Under the Constitution, at the request of parents pupils in state and municipal establishments of teaching must not be taught a religion chosen at random but that pointed out by parents. This gives rise to the duty of state and municipal educational establishments to ensure that pupils be taught a particular religion requested by their parents. The provision of Paragraph 1 of Article 20 of the Law that religious instruction is given by the persons authorised by the spiritual authorities of state-recognised traditional religious associations should be judged to be a guarantee that the pupils will be taught that particular religion which is requested by parents. Therefore, this provision of Paragraph 1 of Article 20 of the Law is in compliance with Paragraph 5 of Article 26 of the Constitution.

3.2. As already held in this ruling, the provision of Paragraph 1 of Article 43 of the Constitution providing for the presence of traditional Lithuanian churches and religious organisations is the constitutional basis on which a different status of traditional churches and organisations may be established if compared with other churches and religious organisations. Alongside, it needs to be noted that the fact that the impugned norms single out the religious instruction of traditional churches and religious organisations and that it does not mention religious instruction of other state-recognised churches and religious organisations, does not mean in itself that by this legal regulation Paragraph 2 of Article 29 of the Constitution is violated. Nor the equal rights of parents and legal guardians to take care of the religious and moral education of their children and wards in an unrestricted manner in conformity with their own convictions established in Paragraph 5 of Article 26 of the Constitution are infringed.

3.3. The provisions of Paragraph 3 of Article 20 of the Law that those who do not attend classes of religious instruction shall be taught ethics at that time and that ethics is taught at the same time as classes in religious instruction take place, are designated for the regulation of organisation of educational process in educational establishments.

The impugned provisions do not violate the equal rights of parents and legal guardians to take care of the religious and moral education of their children and wards in an unrestricted manner in conformity with their own convictions established in Paragraph 5 of Article 26 of the Constitution.

4. Paragraphs 1, 2 and 3 of Article 26 of the Constitution provides:

Freedom of thought, conscience, and religion shall not be restricted.

Every person shall have the right to freely choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching.

No person may coerce another person or be subject to coercion to adopt or profess any religion or faith.”

The legal regulation established in the impugned Paragraphs 1, 3 and 4 of Article 20 of the Law does not restrict the freedom of thought, conscience, and religion, nor the right of an individual freely to choose any religion or faith and, either individually or with others, in public or in private, to manifest his or her religion or faith in worship, observance, practice or teaching. Nor by such legal regulation legal preconditions are created to anyone to coerce another person or be subject to coercion to adopt or profess any religion or faith.

On the grounds of the arguments set forth, it should be concluded that Paragraphs 1, 3 and 4 of Article 20 of the Law are in compliance with Paragraphs 1, 2 and 3 of Article 26 of the Constitution.

5. As mentioned before, Paragraph 1 of Article 40 of the Constitution provides: “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall offer classes in religious instruction.”

5.1. The provisions of Paragraph 1 of Article 20 of the Law that state and municipal educational establishments offer classes in religious instruction, that classes in religious instruction are offered at the request of parents (legal guardians) and that religious instruction is given by persons authorised by spiritual authorities of respective religious confessions do not deny the constitutional concept of freedom of thought, conscience and religion nor the constitutional principle of secularity of state and municipal establishments of teaching and education. Therefore, it should be concluded that these provisions are in compliance with Paragraph 1 of Article 40 of the Constitution.

5.2. As already held in this ruling, the fact that Article 20 of the Law singles out the religious instruction of traditional churches and religious organisations and that it does not mention religious instruction of other state-recognised churches and religious organisations, does not give grounds to assert that by the impugned legal regulation the principle of equality of all persons entrenched in Article 29 of the Constitution is violated. On the grounds of the same arguments, it should be concluded that by the established legal regulation Paragraph 1 of Article 40 of the Constitution is not violated, either.

5.3. As mentioned before, the provisions of Paragraph 3 of Article 20 of the Law that those who do not attend classes of religious instruction shall be taught ethics at that time and that ethics is taught at the same time as classes in religious instruction take place, are designated for the regulation of organisation of educational process in educational establishments.

Under the constitutional principle of positive declaration, parents may express their request that state and municipal establishments of teaching and education should offer classes in religious instruction, but they are not obligated to express their request that classes in ethics should be given, i.e. the subject provided for by the Law for the pupils who do not attend religious classes. In state and municipal educational establishments co-founded with state-recognised traditional religious associations, as well as in all state and municipal establishments of teaching and education, pupils may be given religious instruction in case there is a request of their parents (legal guardians). Therefore, the formula of Paragraph 4 of Article 20 of the Law “at the request of parents (or legal guardians), <…> pupils may attend ethics classes” is not to be interpreted as establishing an exception to the constitutional principle of positive declaration. The provision of Paragraph 4 of Article 20 of the Law that in the educational establishments of two co-founders (the state or municipality and a state-recognised traditional religious association), at the request of parents (or legal guardians), instead of religious classes pupils may attend ethics classes is worded improperly. However, this shortcoming does not provide the grounds to assert that by the established legal regulation the provisions of Paragraph 1 of Article 40 of the Constitution are violated.

6. Paragraph 7 of Article 43 of the Constitution provides: “There shall not be a State religion in Lithuania.”

It needs to be noted that the impugned norms of Article 20 of the Law do not establish any state religion. The mere fact that traditional religious associations are pointed out does not mean that respective religions are granted the status of a state religion and that thereby the constitutional principle of absence of a state religion is violated.

On the grounds of the arguments set forth, it should be concluded that Article 20 of the Law is in compliance with Paragraph 7 of Article 43 of the Constitution.

7. In certain cases provided for in the laws, the state or municipalities (their institutions) discharge the functions of the legal guardian of the child.

Paragraph 2 of Article 20 of the Law provides that children under state and municipal care shall be given religious instruction conforming to the traditional religion professed by their family or relatives. As already held in this ruling, Paragraph 2 of Article 20 of the Law is in compliance with Paragraph 2 of Article 29 and Paragraph 7 of Article 43 of the Constitution.

7.1. Paragraph 5 of Article 26 of the Constitution provides that parents and legal guardians shall not be restricted in matters of taking care of the religious and moral education of their children in conformity with their own convictions. The formulas “parents and legal guardians” and “in conformity with their own convictions” presuppose the fact that Article 26 of the Constitution establishes the rights of parents and legal guardians, i.e. natural persons, but not those of the institutions which in cases provided for in laws discharge the functions of the care of the child. Therefore, the formula “parents and legal guardians” of Paragraph 5 of Article 26 of the Constitution does not include the state, municipalities, nor state and municipal institutions, which may not have any convictions (including religious or moral ones).

Paragraph 2 of Article 20 of the Law regulates relations of a different nature, i.e. those linked with religious instruction of the pupils who are under the care of the state or municipalities.

On the grounds of the arguments set forth, it should be concluded that Paragraph 2 of Article 20 of the Law is in compliance with Paragraph 5 of Article 26 of the Constitution.

7.2. The state and municipalities, in cases provided for in laws, while discharging the functions of the care of children (pupils), have the duty to guarantee that they receive education in state or municipal establishments of teaching and education. Under Paragraph 1 of Article 40 of the Constitution, these establishments are secular.

The norm of Paragraph 2 of Article 20 of the Law that children under state and municipal care shall be given religious instruction conforming to the traditional religion professed by their family or relatives means that in cases when the children, before they were placed in these child care institutions, had been given respective religious instruction at the request of their parents, then they are taught the same religion at the child care institution.

It needs to be noted that Paragraph 1 of Article 14 of the United Nations Convention on the Rights of the Child, which was ratified by the Republic of Lithuania’s Law “On the Ratification of the United Nations Convention on the Rights of the Child” and which is a constituent part of the legal system of Lithuania, provides that States Parties shall respect the right of the child to freedom of thought, conscience and religion. Therefore, if the establishment of teaching or education knows about the religion of traditional churches or religious organisations professed in the family of the child, the child, while taking account of his interests, may be taught this religion. If the establishment of teaching or education does not know about the religion of traditional churches or religious organisations professed in the family of the child, account is taken of the request of the child himself. The child may not be coerced to adopt or profess any religion or faith, nor his constitutional freedom of thought, conscience and religion may be restricted. If interpreted in such a manner, the provisions of Paragraph 2 of Article 20 of the Law are in compliance with the Constitution.

On the grounds of the arguments set forth, it should be concluded that Paragraph 2 of Article 20 of the Law is in compliance with Paragraphs 1, 2 and 3 of Article 26 and Paragraph 1 of Article 40 of the Constitution.

V

On the compliance of Item 2 of Article 21 of the Law with Paragraph 1 of Article 40 of the Constitution.

1. Article 21 of the Law provides:

Pupils shall have the right:

<…> 2) from the age of 15 to take an independent decision on whether they are going to take religious instruction.”

2. As mentioned before, Paragraph 1 of Article 40 of the Constitution provides: “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall offer classes in religious instruction.”

3. Under Paragraph 6 of Article 38 of the Constitution, parents have the right and duty to bring up their children to be honest individuals and loyal citizens, as well as to support them until they come of age, while under Paragraph 5 of Article 26 of the Constitution, parents and legal guardians shall not be restricted in matters of taking care of the religious and moral education of their children in conformity with their own convictions. These provisions, together with the norm of Paragraph 1 of Article 40 of the Constitution that at the request of parents, state and municipal establishments of teaching and education shall offer classes in religious instruction, presuppose the fact that it is the constitutional right of parents (legal guardians) to request that a secular establishment of teaching and education offer classes in religious instruction.

Under Article 1 of the Convention on the Rights of the Child, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. Under the Republic of Lithuania’s Law on Fundamentals of Protection of the Rights of the Child, a child is a human being below the age of 18 years, unless otherwise established by law. Thus, in individual laws another limit of age may be established upon reaching which a person acquires a special legal capacity.

The provision of Item 2 of Article 21 of the Law means that a person, after he has reached 15 years, acquires a special legal capacity in the sphere particularly mentioned by the Law, i.e. in making a decision as for his religious instruction. From that moment, the request that the pupil be given religious instruction is already the right of the pupil but not that of his parents (legal guardians).

On the grounds of the arguments set forth, it should be concluded that Item 2 of Article 21 of the Law is in compliance with Paragraph 1 of Article 40 of the Constitution.

VI

On the compliance of Paragraph 1 of Article 15 of the Law with Paragraph 2 of Article 38 and Paragraphs 1 and 3 of Article 39 of the Constitution.

1. Paragraph 1 of Article 15 of the Law provides: “Instruction at state and municipal schools of general education, vocational schools and those of further education of the Republic of Lithuania shall be free. Instruction at state and municipal pre-school establishments (with the exception of child care institutions) as well as establishments of additional education shall be paid in part.”

Taking account of the arguments of the petitioner, the Constitutional Court will investigate whether the provision of Paragraph 1 of Article 15 of the Law that instruction at state and municipal pre-school establishments (with the exception of child care institutions) as well as establishments of additional education shall be paid in part.

2. Paragraph 2 of Article 38 of the Constitution provides: “Family, motherhood, fatherhood, and childhood shall be under the care and protection of the State.” Paragraph 1 of Article 39 of the Constitution provides: “The State shall take care of families bringing up children at home, and shall render them support in the manner established by law.” Paragraph 2 of Article 41 of the Constitution provides: “Education at State and municipal schools of general education, vocational schools and schools of further education shall be free of charge.”

2.1. Construing the said constitutional norms in a systemic manner, it needs to be noted that Paragraph 2 of Article 38, Paragraph 1 of Article 39 and Paragraph 2 of Article 41 of the Constitution should be connected with Paragraph 1 of Article 38 thereof establishing that the family shall be the basis of society and the state. The provisions of Paragraphs 1 and 2 of Article 38 of the Constitution mean the obligation of the state to establish such legal regulation by law and other legal act which might ensure that the family, as well as motherhood, fatherhood and childhood would be fostered and protected in all ways possible as constitutional values.

Paragraph 1 of Article 41 of the Constitution provides that education shall be compulsory for persons under the age of 16, while Paragraph 2 thereof provides that education at state and municipal schools of general education, vocational schools and schools of further education shall be free of charge. These constitutional norms mean that the state (its institutions) have the duty to ensure that all persons under the age of 16 have real opportunities to acquire free education in state and municipal schools of general education, vocational schools and schools of further education and that learning in these establishments be equally accessible to everyone.

Teaching is a constituent part of education. Education is a diverse process determined by many factors: influence of the family, activities of teachers and establishments of teaching and education, social and family values, social, demographic, economic, political and cultural processes taking place in society, financial, organisational and infra-structural opportunities of the state, etc. The purposefulness, quality and diversity of education must be guaranteed not only by state and municipal establishments of teaching and education which are pointed out in the Constitution but also by parents (legal guardians) who have the constitutional right to take care of the religious and moral education of their children (wards) in conformity with their own convictions and who have the constitutional duty to bring them up to be honest individuals and loyal citizens, as well as to support them until they come of age. Implementing these constitutional rights and freedoms, parents (legal guardians) may not refuse to cover part of the expenses for the education of their children.

2.2. Under Article 8 of the Law, those who wish shall be provided additional training at various types of educational establishments: art, sports, language, engineering and other schools, courses and societies. Thus, additional education is linked, first of all, not with general, vocational or further education which is free under the Constitution nor with syllabi (curricula) prepared and approved (confirmed) by competent state and municipal institutions or by state and municipal establishments of teaching and education but with the wish of pupils (or that of their parents or legal guardians). Therefore, the provision that instruction at establishments of additional education shall be paid in part is reasonable. This part of the expenses for education may be borne by the state, but it is not obligated to do so. On the other hand, this provision does not mean that state and municipal institutions, taking account of the needs of society (residents) and state (municipal) financial and organisational opportunities, may not establish and maintain or support in any other way state (municipal) establishments of additional education.

The provision of Paragraph 1 of Article 15 of the Law that instruction at child care institutions shall be free is also reasonable. If it were otherwise, the state would not fulfil its duty established in Paragraph 2 of Article 38 of the Constitution to take care of childhood nor would it guarantee that the children under the care of the state and municipalities be brought up in a proper way.

On the grounds of the arguments set forth, it should be concluded that Paragraph 1 of Article 15 of the Law is in compliance with Paragraph 2 of Article 38 of the Constitution.

2.3. Paragraph 1 of Article 39 of the Constitution provides: “The State shall take care of families bringing up children at home, and shall render them support in the manner established by law.” It needs to be noted that the norm of Paragraph 1 of Article 15 of the Law regulates relations linked not with taking care of and upbringing children at home but their teaching and education in state and municipal pre-school institutions, as well as establishments of additional education. Therefore, the conclusion should be drawn that Paragraph 1 of Article 15 of the Law is in compliance with Paragraph 1 of Article 39 of the Constitution.

4. Paragraph 3 of Article 39 of the Constitution provides: “Children who are under age shall be protected by law.”

This provision of the Constitution means that sufficient and effective protection must be guaranteed for the rights and legitimate interests of children who are under age, as well as that the legislature and other state institutions regulating the legal situation of children who are under age and regulating other relations must pay heed to the rights and legitimate interests of children who are under age.

As already held in this ruling, Paragraph 1 of Article 15 of the Law is in compliance with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution. On the grounds of the same arguments, it should be concluded that Paragraph 1 of Article 15 of the Law is also in compliance with Paragraph 3 of Article 39 of the Constitution.

VII

On the compliance of Paragraph 3 of Article 10 of the Law with Paragraph 1 of Article 40, Paragraph 2 of Article 41 and Paragraphs 1 and 2 of Article 120 of the Constitution.

1. Paragraph 3 of Article 10 of the Law provides: “Municipal educational establishments providing with elementary, basic and secondary education shall be founded, reorganised and closed down by municipal councils subject to a written consent of the Ministry of Education and Science, while educational establishments providing with nursery schooling, extra instruction and adult informal education—subject to a written consent of county governors.”

2. Paragraph 1 of Article 40 of the Constitution provides: “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall offer classes in religious instruction.” Paragraph 2 of Article 41 of the Constitution stipulates: “Education at State and municipal schools of general education, vocational schools and schools of further education shall be free of charge.” Paragraph 1 of Article 120 of the Constitution provides that “The State shall support municipalities”, while Paragraph 2 thereof stipulates that “municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws”.

3. The Constitutional Court will investigate the compliance of Paragraph 3 of Article 10 of the Law with Paragraph 1 of Article 40 and Paragraph 2 of Article 41 of the Constitution from the aspect pointed out by the petitioner, i.e. to the extent that the said articles of the Constitution provide for the presence of municipal establishments of teaching and education (schools of general education, vocational schools and those of further education).

4. The norm of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently may not be kept separate from the provision established in the same paragraph of the same article that the freedom and independence of municipalities are bound by the competence established by the Constitution and laws. Under Paragraph 3 of Article 119 of the Constitution, the procedure for the organisation and activities of self-government institutions shall be established by law.

The constitutional provision that municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws is in line with the European Charter of Local Self Government.

5. The formula “municipal establishments of teaching and education” of Paragraph 1 of Article 40 of the Constitution, and the formula “municipal schools of general education, vocational schools and schools of further education”, while taking account of the norm of Paragraph 2 of Article 120 of the Constitution, mean that they must be establishments of teaching and education linked with municipalities by ties of dependence. This, among other things, presupposes the right of municipalities (their institutions) to found, reorganise, close down establishments of teaching and education, and to possess other rights and duties linked with their foundation, reorganisation and closing down.

However, this right of municipalities is not unlimited. The aforesaid formulas of Paragraph 1 of Article 40 and Paragraph 2 of Article 41 of the Constitution, while taking account of the norm of Paragraph 2 of Article 120 of the Constitution, presupposes the right of the legislature to establish the procedure for the foundation, reorganisation and closing down of the said municipal establishments, as well as to regulate their activities and other relations linked with these establishments. It is important that by respective laws the right of municipalities itself to found, reorganise, close down establishments of teaching and education, and to possess other rights and duties linked with their foundation, reorganisation and closing down would not be denied.

6. Paragraph 3 of Article 10 of the Law establishes the procedure for the foundation, reorganisation and closing down of municipal establishments of teaching and education, i.e. it regulates relations between municipalities and state institutions of the executive (Ministry of Education and Science and county governors) concerning foundation, reorganisation and closing down of these establishments.

Under Paragraph 2 of Article 120 of the Constitution, the freedom and independence of activities of municipalities are bound by their competence defined by the Constitution and laws. As mentioned before, this constitutional provision presupposes competence of the legislature to establish the procedure for the foundation, reorganisation and closing down of municipal establishments of teaching and education. Therefore, the conclusion should be drawn that Paragraph 3 of Article 10 of the Law is in compliance with Paragraph 2 of Article 120 of the Constitution.

7. The provision of Paragraph 1 of Article 120 of the Constitution that the state shall support municipalities establishes the duty for the state to support municipalities and that for the legislature not to restrict legitimate initiative of municipalities and not to impede their lawful activities.

The compliance of Paragraph 3 of Article 10 of the Law with Paragraph 1 of Article 120 of the Constitution should be investigated by taking account of its relation with Paragraph 2 of Article 120 of the Constitution.

As has been held in this ruling, Paragraph 3 of Article 10 of the Law is in compliance with Paragraph 2 of Article 120 of the Constitution. On the grounds of the same arguments, it should be concluded that it is also in compliance with Paragraph 1 of Article 120 of the Constitution.

8. The assumption that Paragraph 3 of Article 10 of the Law conflicts with Paragraph 1 of Article 40 and Paragraph 2 of Article 41 of the Constitution is groundless as the character of municipal establishments of teaching and education founded, reorganised and closed down by municipal councils subject to a written consent of the Ministry of Education and Science and county governors remains the same. They continue to be municipal establishments of teaching and education: they are linked with municipalities with ties of dependence and municipalities are their founders.

On the grounds of the arguments set forth, it should be concluded that Paragraph 3 of Article 10 of the Law is in compliance with Paragraph 1 of Article 40 and Paragraph 2 of Article 41 of the Constitution.

VIII

On the compliance of Item 2 of Article 35, Item 2 of Article 37 and Items 2 and 3 of Article 38 of the Law with Paragraph 2 of Article 120 of the Constitution.

1. Item 2 of Article 35 of the Law provides:

The Ministry of Education and Science:

<…> 2) shall approve in writing the foundation, reorganisation and closing down of state and non-public educational establishments (with the exception of those of informal education) which are not under its control, and the foundation, reorganisation and closing down of municipal educational establishments providing elementary, basic and secondary education”.

2. Item 2 of Article 37 of the Law provides:

The county governor:

<…> 2) shall give an approval in writing to the foundation, reorganisation and closure of non-governmental and municipal pre-school, additional education and informal adult educational establishments”.

Items 2 and 3 of Article 38 of the Law provide:

The municipality shall:

<…> 2) upon a written consent of the county governor, found, reorganise and close down pre-school educational establishments, educational establishments of additional education and adult informal educational establishments. It shall appoint and dismiss heads of those educational establishments;

3) upon a written consent of the Ministry of Education and Science, found, reorganise and close down elementary, basic and secondary schools of general education of all types. It shall appoint and dismiss heads of those educational establishments”.

4. The petitioner does not impugn the provision of Item 2 of Article 38 of the Law that the municipality shall appoint and dismiss heads of pre-school educational establishments, educational establishments of additional education and adult informal educational establishments nor that of Item 3 of the same article that the municipality shall appoint and dismiss heads of elementary, basic and secondary schools of general education of all types. Taking account of the arguments of the petitioner, the Constitutional Court will investigate whether the provision of Item 2 of Article 38 of the Law that the municipality shall, upon a written consent of the county governor, found, reorganise and close down pre-school educational establishments, educational establishments of additional education and adult informal educational establishments and whether the provision of Item 3 of the same article that the municipality shall, upon a written consent of the Ministry of Education and Science, found, reorganise and close down elementary, basic and secondary schools of general education of all types, with the Constitution.

5. As mentioned before, under Paragraph 2 of Article 120 of the Constitution, the freedom and independence of municipal activities are bound by their competence defined by the Constitution and laws. This constitutional provision presupposes competence of the legislature to establish the procedure for the foundation, reorganisation and closing down of municipal establishments of teaching and education. Therefore, it should be concluded that Item 2 of Article 35, Item 2 of Article 37 and Items 2 and 3 of Article 38 of the Law to the said extent are in compliance with Paragraph 2 of Article 120 of the Constitution.

IX

On the compliance of Item 5 of Article 35 of the Law with Paragraph 2 of Article 120 of the Constitution.

1. Item 5 of Article 35 of the Law provides:

The Ministry of Education and Science:

<…> 5) shall coordinate the activity of subdivisions of education of administrations of county governors and those of municipalities, establish qualification requirements for heads, inspectors and specialists of these subdivisions, prepare and submit to the Government to approve the regulations for public competition for holding this office”.

2. Under Paragraph 3 of Article 119 of the Constitution, the procedure for the organisation and activities of self-government institutions shall be established by law, while under Paragraph 2 of Article 120 of the Constitution, municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws. The fact that Item 5 of Article 35 of the Law mentions municipal subdivisions of education virtually means that it is established by the Law that in administrations of municipalities there must be subdivisions responsible for the activity of respective municipalities in the area of education.

The interests of municipalities and those of the state must be coordinated. The principle of coordination of interests of municipalities and those of the state manifests itself not only when the state supports municipalities in all ways and forms, or when the state supervises municipal activities in the form prescribed by law, but also when joint actions are coordinated when significant social objectives are sought (the Constitutional Court’s ruling of 18 February 1998).

The coordination of activities of subdivisions of education of administrations of county governors and those of municipalities as established in the Law does not deny the constitutional concept of self-government. Such coordination is an important condition in order to ensure the same state education policy and supervision of its implementation by establishing the same standards of education and learning, by guaranteeing the compliance of the content and level of instruction and teaching with the qualification recognised by the state, by ensuring the constitutional right to education and learning.

The provisions of Item 5 of Article 35 of the Law that the Ministry of Education and Science shall establish qualification requirements for heads, inspectors and specialists of these subdivisions, prepare and submit to the Government to approve the regulations for public competition for holding this office are also to be linked with an opportunity to coordinate the activity of subdivisions of education of administrations of county governors and those of municipalities. These provisions of the Law should not to be deemed to be violating either the norms of Paragraph 2 of Article 120 of the Constitution or the freedom and independence of municipalities acting within the limits of their competence established by the Constitution and laws.

It needs to be noted that the establishment of equal requirements for heads, inspectors and specialists of subdivisions of education for their participation in the public competition for holding this office guarantees the right of all citizens to have an equal opportunity to serve in a state office of the Republic of Lithuania, to participate in the government of their state as established in Paragraph 1 of Article 33 of the Constitution, as well as their constitutional right to participate in the activities of institutions of municipalities.

On the grounds of the arguments set forth, it should be concluded that Item 5 of Article 35 of the Law is in compliance with Paragraph 2 of Article 120 of the Constitution.

X

On the compliance of Paragraphs 2 and 3 of Article 34 of the Law with Paragraph 4 of Article 40 of the Constitution and that of Paragraph 2 of Article 34 of the Law with Paragraph 1 of Article 40 of the Constitution.

1. Paragraph 2 of Article 34 of the Law provides: “The activities of educational establishments shall be supervised by their co-founders under the procedure set down by the Common Regulations for Supervision of Educational Establishments”, while Paragraph 3 of the same article provides: “The implementation of general policy of education shall be supervised by the Ministry of Education and Science and county governors according to the regulations approved by the Ministry of Education and Science”.

2. Paragraph 4 of Article 40 of the Constitution provides: “The State shall supervise the activities of establishments of teaching and education.”

Paragraph 4 of Article 40 of the Constitution establishes not only the right but also the duty of the state to supervise the activities of establishments of teaching and education.

Supervision of activities of establishments of teaching and education includes the supervision of control how the Constitution and laws are observed. Here the state (its institutions) may resort to various ways and forms of control established by law.

3. By the state supervision of activities of establishments of teaching and education equal observance of the standards of education and learning is ensured, and the compliance of contents and level of education and teaching with the qualification recognised by the state is guaranteed.

Under the Constitution, the legislature is entitled to establish which state institution (or institutions) must supervise the implementation of the state education policy and which competent institution of the executive must approve the regulations for such supervision. Therefore, the provision of Paragraph 3 of Article 34 of the Law that the implementation of general policy of education shall be supervised by the Ministry of Education and Science and county governors according to the regulations approved by the Ministry of Education and Science is in compliance with Paragraph 4 of Article 40 of the Constitution.

4. The legal regulation established in Paragraph 2 of Article 34 of the Law does not mean that the state refuses the supervision of establishments of teaching and education, and that it commissions the co-founders of these establishments and no one else to conduct this supervision. Supervision of establishments of teaching and education is a constitutional duty of the state. The Constitution is a directly applicable statute (Paragraph 1 of Article 6 of the Constitution), thus, even though the Law does not establish expressis verbis that state shall supervise activities of educational establishments, this constitutional right of the state does not disappear. Various state institutions conduct administrative and other supervision of establishments of teaching and education under the competence established to them by law.

The norm of the Law that the activities of educational establishments shall be supervised by their co-founders under the procedure set down by the Common Regulations for Supervision of Educational Establishments is a blanket one. It is impossible to decide from it as for the content of the legal regulation established in the said regulations. It needs to be noted that these regulations may not be in conflict with the Constitution nor laws.

On the grounds of the arguments set forth, it should be concluded that Paragraph 2 of Article 34 of the Law is in compliance with Paragraph 4 of Article 40 of the Constitution.

5. Under the Law, state and municipal establishments of teaching and education may be co-founded with state-recognised traditional religious associations. As already held in the present ruling, under the principle of secularity of state and municipal establishments of teaching and education established in Paragraph 1 of Article 40 of the Constitution, it is only state and municipal institutions that are permitted to organise management of state and municipal establishments of teaching and education, and to supervise their activities, but never churches or religious organisations.

The norm of Paragraph 2 of Article 34 of the Law that the activities of educational establishments shall be supervised by their co-founders under the procedure set down by the Common Regulations for Supervision of Educational Establishments presupposes the fact that the right is granted to state-recognised traditional religious associations to supervise not only how religion is taught in state and municipal establishments of teaching and education but also all activities of these establishments which, under the Constitution, are secular. By such legal regulation the constitutional principle of the separateness of the state and the church is violated, state-recognised religious associations which are co-founders of respective educational establishments are permitted to interfere with management of state and municipal establishments of teaching and education, as well as with supervision of their activities, and to change the secular character of state and municipal establishments of teaching and education.

On the grounds of these arguments, it should be concluded that Paragraph 2 of Article 34 of the Law to the extent that the right is granted to state-recognised traditional religious associations to supervise not only how respective religion is taught in state and municipal establishments of teaching and education but also all activities of these establishments conflicts with Paragraph 1 of Article 40 of the Constitution.

XI

On the compliance of Paragraph 4 of Article 34 of the Law with Paragraph 1 of Article 40, Paragraph 2 of Article 41 and Paragraph 2 of Article 120 of the Constitution.

1. Paragraph 4 of Article 34 of the Law provides: “In cases when the Education Inspectorate of the Administration of the County Governor establishes that a municipality does not discharge the functions of education established to it by law, that it does not ensure the necessary conditions for the activities of the educational establishment that is within its jurisdiction, the county governor shall draw up a proposal for the representative of the Government in the county regarding transfer of the functions of the founder of the educational establishment to the administration of the county governor. The resolution concerning transfer of the functions of the founder of the educational establishment to the county shall be adopted by the Government.”

2. Paragraph 1 of Article 40 of the Constitution provides: “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall offer classes in religious instruction”, while Paragraph 2 of Article 41 stipulates: “Education at State and municipal schools of general education, vocational schools and schools of further education shall be free of charge”. Paragraph 2 of Article 120 of the Constitution provides: “Municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws.”

3. As mentioned before, under Paragraph 4 of Article 40 of the Constitution, the state shall supervise the activities of establishments of teaching and education.

As already held in this ruling, the legislature is entitled to establish which institution (institutions) of the executive must supervise the activities of establishments of teaching and education within the limits of the competence established to it by law.

Paragraph 4 of Article 34 of the Law provides that, while supervising the activities of establishments of teaching and education, administration of county governors (their inspectorates of education) must have the right to establish and state that a particular municipality does not discharge the functions of education established to it by law and that it does not guarantee the necessary conditions for the activities of the establishment of education which is under its jurisdiction.

4. Paragraph 2 of Article 123 of the Constitution provides that representatives shall be appointed by the Government to supervise that the Constitution and the laws are observed, and that the decisions of the Government are implemented by municipalities. Article 124 of the Constitution points out that deeds and actions of municipal councils as well as of their executive bodies and officers which violate the rights of citizens and organisations may be appealed against in court. Paragraph 4 of Article 123 of the Constitution provides that in cases and according to procedures provided by law, the Seimas may introduce direct rule in the territory of a municipality. Thus, in the Constitution, various forms and ways are provided for by which institutions of state authority, their officials (including county governors and representatives of the Government), as well as citizens and organisations, may react in cases when a municipality does not discharge the functions of education established to it by law and when it does not guarantee the necessary conditions for the activities of an establishment of education which is under its jurisdiction.

The right of institutions of state authority and their officials to resort to all measures provided for in laws in order to remove the established violations, to ensure, within the limits of their competence, that self-government institutions and municipal educational establishments acted lawfully and effectively is uncontested one; this right may be grounded on responsibility of said institutions for organisation of state administration in the territory of a particular municipality. Therefore, there are not any grounds to assert that the provision of Paragraph 4 of Article 34 of the Law that the inspectorate of education of the county governor has the right to establish and state that a municipality does not discharge the functions of education established to it by law and that it does not guarantee the necessary conditions for the activities of an establishment of education which is under its jurisdiction are in conflict with the norms of the Constitution pointed out by the petitioner.

Under Paragraph 4 of Article 34 of the Law, a municipality may lose the rights of the founder of the educational establishment. It needs to be noted that the Law establishes the bases in the presence of which a question may be raised for transfer of the functions of the founder of the municipal educational establishment. It also provides for the procedure of solution of these questions. The transfer of the functions of the founder is only a reaction of institutions of state authority when the municipality does not discharge the duties established to it by law, i.e. when it does not discharge the functions of education established to it by law and when it does not guarantee the necessary conditions for the activities of the establishment of education which is under its jurisdiction.

In the context of the case at issue, a fact is also important that under Article 122 of the Constitution, municipal councils shall have the right to appeal to court regarding the violation of their rights. The impugned norms of the Law do not deny the competence of municipalities which is established by the Constitution, nor the guarantees of judicial protection of municipalities provided for in the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Item 5 of Article 1, Paragraph 3 of Article 10, Paragraph 1 of Article 15, Article 20, Item 2 of Article 21, Paragraphs 3 and 4 of Article 34, Items 2 and 5 of Article 35, Item 2 of Article 37 and the provision of Item 2 of Article 38 that the municipality shall upon a written consent of the county governor, found, reorganise and close down pre-school educational establishments, educational establishments of additional education and adult informal educational establishments, and the provision of Item 3 of Article 38 of the Republic of Lithuania’s Law on Education that the municipality shall upon a written consent of the Ministry of Education and Science, found, reorganise and close down elementary, basic and secondary schools of general education of all types, are in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that Item 4 of Article 10 of the Republic of Lithuania’s Law on Education to the extent that in state or municipal educational establishments classes or groups may be co-founded with state-recognised traditional religious associations, as well as the provision of Paragraph 4 of Article 10 “coordinated with state-recognised traditional religious associations” conflict with Paragraph 1 of Article 40 of the Constitution of the Republic of Lithuania.

3. To recognise that the provision of Item 1 of Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on Education providing that in order to appoint and dismiss heads of state and municipal educational establishments a recommendation of the traditional religious association is necessary, and Items 2 and 3 of Paragraph 2 of Article 32 of the same law conflict with Paragraph 1 of Article 25, Paragraphs 1 and 2 of Article 26 and Paragraph 1 of Article 40 of the Constitution of the Republic of Lithuania.

4. To recognise that Item 2 of Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on Education conflicts with Paragraph 1 of Article 25, Paragraphs 1 and 2 of Article 26, Paragraph 1 of Article 40 and Paragraph 2 of Article 42 of the Constitution of the Republic of Lithuania.

5. To recognise that Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on Education conflicts with Paragraph 1 of Article 40 of the Constitution of the Republic of Lithuania.

6. To recognise that Paragraph 2 of Article 34 of the Republic of Lithuania’s Law on Education to the extent that the right is granted to state-recognised traditional religious associations to supervise not only how religion is taught in state and municipal establishments of teaching and education but also all activities of these establishments conflicts with Paragraph 1 of Article 40 of the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Egidijus Kūris      Zigmas Levickis       Augustinas Normantas

Vladas Pavilonis       Jonas Prapiestis      Vytautas Sinkevičius

Stasys Stačiokas       Teodora Staugaitienė