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On certain provisions of the Law on Higher Education

Case No. 18/2000

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 5 OF ARTICLE 8, PARAGRAPH 3 OF ARTICLE 9, PARAGRAPH 3, ITEMS 10, 11 AND 12 OF PARAGRAPH 5 OF ARTICLE 22, ITEMS 1, 2 AND 5 OF PARAGRAPH 1, PARAGRAPHS 2 AND 7 OF ARTICLE 24, PARAGRAPH 4 OF ARTICLE 42, ARTICLE 60, PARAGRAPH 1 OF ARTICLE 61, PARAGRAPH 1 OF ARTICLE 62 AND PARAGRAPHS 1 AND 2 OF ARTICLE 65 OF THE REPUBLIC OF LITHUANIA’S LAW ON HIGHER EDUCATION WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

5 February 2002

Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

Seimas members Aloyzas Sakalas and Stanislovas Buškevičius, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Alfonsas Ramonas, a senior consultant to the Seimas Committee on Education, Science and Culture, and Audronė Ožiūnienė, a consultant to the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic of Lithuania, 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 22 January 2002, in its public hearing, considered case No. 18/2000 subsequent to the petition of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Paragraph 5 of Article 8, the first sentence of Paragraph 3 of Article 9, the second sentence of Paragraph 3, Items 10, 11 and 12 of Paragraph 5 of Article 22, Items 1, 2 and 5 of Paragraph 1, Paragraphs 2 and 7 of Article 24, the second sentence of Paragraph 4 of Article 42 of the Republic of Lithuania’s Law on Higher Education were in compliance with Article 40 of the Constitution of the Republic of Lithuania, whether the second sentence of Paragraph 3 of Article 22, Paragraph 2 of Article 60, Paragraph 1 of Article 61, Paragraph 1 of Article 62 and Paragraphs 1 and 2 of Article 65 of the same law were in compliance with Article 29 of the Constitution of the Republic of Lithuania, and whether Article 60 of the same law was in compliance with Article 41 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 21 March 2000, the Seimas of the Republic of Lithuania enacted the Republic of Lithuania’s Law on Higher Education (Official Gazette Valstybės žinios, 2000, No. 27-715; hereinafter also referred to as the Law) which subsequently was amended and supplemented.

The petitioner—a group of Seimas members—requests an investigation into whether certain provisions of the law are in compliance with Articles 29, 40 and 41 of the Constitution.

II

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

1. In the opinion of the petitioner, the functions of the state university council and the state college council as established in Items 1, 2 and 5 of Paragraph 1 of Article 24 of the Law restrain the rights of self-government of the school of higher learning in the areas of scientific and educational activities. They also restrict the autonomy guarantees set in Article 40 of the Constitution and in the laws passed previously (e.g. Paragraphs 1 and 2 of Article 16 of the Republic of Lithuania’s Law on Science and Studies (Official Gazette Valstybės žinios, 1991, No. 7-191)). Therefore, the petitioner doubts as to the compliance of Items 10, 11, 12 of Paragraph 5 of Article 22 and Items 1, 2, 5, and 7 of Paragraph 1 of Article 24 of the Law with Article 40 of the Constitution.

2. According to the petitioner, the autonomy of schools of higher learning in the areas of scientific and educational activities, which is entrenched in Article 40 of the Constitution, must be of the same level for all schools of higher learning irrespective of their type (universities or colleges), their founders (the state or not the state) etc. However, in the opinion of the petitioner, if one compares the rights of schools of higher learning established in Paragraphs 2 and 3 of Article 9 of the Law, it is clear that the provision of Paragraph 3 of Article 9 of the Law that beside the rights specified in Paragraph 2 of this Article, universities shall have the rights provided for in Paragraph 2 of Article 9 of the Law means that the level of the autonomy of universities is higher than that of other schools of higher learning. The petitioner also notes that the autonomy of non-state schools of higher learning is practically not restricted by the Law since under the Law the procedure of administration of non-state schools of higher learning (both universities and colleges) is established by their statutes, while Paragraph 5 of Article 8 of the Law provides that the statute of a school of higher learning not belonging to the state shall be adopted in a manner prescribed by its founder. The petitioner doubts as to the compliance of Paragraph 5 of Article 8, the first sentence of Paragraph 3 of Article 9, Paragraph 2 of Article 24 and the first sentence of Paragraph 4 of Article 42 of the Law with Article 40 of the Constitution.

3. According to the petitioner, by the second sentence of Paragraph 3 of Article 22 of the Law wherein it is established that the rector and the chairperson of the senate may not be the same person, the autonomy of a state university only is restricted. In the opinion of the petitioner, there are doubts as to the compliance of the second sentence of Paragraph 3 of Article 22 of the Law with Articles 29 and 40 of the Constitution.

4. The petitioner maintains that the provisions of Paragraph 2 of Article 60 and Paragraph 1 of Article 61 of the Law treat the students learning in a state school of higher learning in a varied manner. Some students have to conclude tripartite agreements (Paragraph 2 of Article 60 of the Law), while other students—bilateral agreements (Paragraph 1 of Article 61 of the Law). The content of both above agreements may be different as the content of the former is established by the Government, while the standard form of the latter is approved by the Ministry of Education and Science (hereinafter also referred to as the Ministry). Therefore, in the opinion of the petitioner, the students studying in state schools of higher learning are not equal before the law, therefore, doubts arise as to the compliance of Paragraph 2 of Article 60 and Paragraph 1 of Article 61 of the Law with Article 29 of the Constitution.

5. The petitioner notes that Paragraphs 1 and 2 of Article 65 of the Law provide for the procedure of repayment of loan for part of the students only (i.e. persons who studied occupying a place funded by the state, but have failed to meet the requirements of the semester study programme within the required limit of time), however, in connection with the students who study at their own expense, such a procedure may be quite different, while the Government is permitted to establish the latter procedure. In the opinion of the petitioner, the students studying in state schools of higher learning are not equal before the law, therefore, doubts arise as to the compliance of Paragraphs 1 and 2 of Article 65 of the Law with Article 29 of the Constitution.

6. In the opinion of the petitioner, admission to a state school of higher learning, which is, under Paragraph 3 of Article 47 and Paragraph 1 of Article 61 of the Law, determined by the results of secondary school graduation examinations, does not mean that everyone has an equal opportunity to attain higher education according to their individual abilities as established in Paragraph 3 of Article 41 of the Constitution. In the opinion of the petitioner, the accessibility of higher education for everyone according to one’s abilities is largely determined, after one has already been admitted to a school of higher learning, by one’s material living and conditions of studies, which, in their turn, are determined by the source of the covering of the cost of studies: the students whose costs of studies are covered by all taxpayers in the state have a better access to higher education if compared to those who have to pay for their studies by themselves. The petitioner underlines that even though Paragraph 4 of Article 60 of the Law provides for an opportunity to designate by tender a state study loan to cover the cost of studies to students studying at their own expense to pay for their studies, however, unlike those studying in places funded by the state, the students who study at their own expense must repay the loan irrespective of whether they learn well or badly in a state school of higher learning (Paragraphs 3 and 4 of Article 60 of the Law). Thus, in this case those who study in places funded by the state are in an advantageous position: if they learn well, they are excused from repayment of the loan (Paragraph 3 of Article 60 of the Law), but if those who study at their own expense learn well, they must compete for a state loan among themselves only (Paragraph 4 of Article 60 of the Law), and even if they win the competition, they are not excused from repayment of the loan.

The provisions of the Law guarantee the education in a state school of higher learning free of charge for the citizens with good academic results, but only for those whose academic results were better in secondary school, but this is not applied for the citizens whose academic results in secondary school were worse. The provision of Paragraph 3 of Article 41 of the Constitution is applicable to all citizens who have good academic results in state schools of higher learning, therefore, in the opinion of the petitioner, doubts arise as to the compliance of Article 60 of the Law with Article 41 of the Constitution.

III

1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the party concerned—the Seimas—A. Ramonas, a senior advisor to the Seimas Committee on Education, Science and Culture.

1.1. In the opinion of the representative of the party concerned, the functions of the state university council as established in Items 1 and 2 of Paragraph 1 of Article 24 of the Law create pre-conditions for stating an opinion of the state and society as regards the determination of the strategy of the university and its contribution to the economic, social and cultural development of the state (Item 6 of Paragraph 1 of Article 24 of the Law). The representative of the party concerned noted that the Law does not point out when the senate must take account of the council conclusions or proposals concerning the said issues. Items 10, 11 and 12 of Paragraph 5 of Article 22 of the Law do not indicate it either: they merely contain a provision that the senate must receive conclusions of the university council prior to consideration of issues or approving decisions which are important not only for the university but also the society and the state.

A. Ramonas noted that under Item 5 of Paragraph 1 of Article 24 of the Law, the council shall consider and prepare conclusions regarding annual reports of the rector, annual income and expenditure estimates and their implementation accounts, while under the provisions of Paragraph 7 of the same article, if the senate does not approve of the council’s conclusions and proposals concerning annual income and expenditure estimates and their implementation accounts, the council shall consider them repeatedly and, if it adopts the same decision again, such a decision shall become mandatory to the senate. Thereby the principle of accountability of the school of higher learning for the state and society as regards the funds used is established. However, the council has not been granted the powers so that it would be capable of restricting the university’s scientific or educational freedom. The council makes considerations, assessments, proposals, draws conclusions (the senate does not have to take account of them), and, as one’s last shift, it may propose to the Ministry the initiation of the auditing of the economic and financial activities of a school of higher learning (Item 7 of Paragraph 1 of Article 24 of the Law).

According to A. Ramonas, there are no grounds to assert that there are any doubts as to the compliance of Items 10, 11 and 12 of Paragraph 5 of Article 22 and Items 1, 2, 5 and 7 of Paragraph 1 of Article 24 of the Law with Article 40 of the Constitution.

1.2. The representative of the party concerned noted that the example given by the petitioner that the level of the autonomy of universities is higher than that of other schools of higher learning providing with university study programmes (e.g. academies), which have not been granted the status of a university under Paragraph 1 of Article 6 of the Law, is imprecise. Quite on the contrary, there are only two types of schools of higher learning: universities and colleges (Paragraph 1 of Article 5 of the Law), while the college name may not include words “university” and “academy” (Paragraph 1 of Article 7 of the Law); thus, there may not be any academy not enjoying the university status.

According to A. Ramonas, the Law provides for differences between the state college academic council and the university senate, however, they are necessary because of two reasons: (1) in colleges there are not enough scientists (and there will not be enough of them in the nearest future) who would be able independently to approve the study programmes, to select the areas of the studies or scientific activities, and to grant the qualification degrees recognised by the state; (2) it is important to preserve more state regulation but not self-government in colleges so that it would be possible more promptly to react to the changing needs for specialists (for particular areas of activities).

A. Ramonas noted that it is no one else but the founder that may establish the procedure of administration of a private school of higher learning. Therefore, the Law regulates the founding and activities of non-state schools of higher learning only in that the Government issues licences to them (Paragraph 2 of Article 15 of the Law) and that the quality of studies are assessed in the said schools of higher learning (Paragraphs 2 and 3 of Article 16 of the Law). Besides, the statutes of non-state schools of higher learning must contain the clauses regulating their activities (these clauses must be the same as in the statutes of state schools of higher learning) (Article 8 of the Law), with the only difference that the statutes of non-state schools of higher learning are adopted in a manner prescribed by their founders but not the state.

In the opinion of A. Ramonas, there should be no doubts as regards the compliance of Paragraph 5 of Article 8, the first sentence of Paragraph 3 of Article 9, Paragraph 2 of Article 24 and the second sentence of Paragraph 4 of Article 42 of the Law with Article 40 of the Constitution.

1.3. According to the representative of the party concerned, the reasoning of the petition of the petitioner that the second sentence of Paragraph 3 of Article 22 of the Law is in conflict with Article 29 of the Constitution due to the fact that the chairperson of the senate is prohibited from being the rector of the university at the same time is groundless as it is not important whether the person holds the office of the chairperson of the senate or that of the rector of the university only, or both of the chairperson of the senate and the rector of the university at the same time. In every case the person is equal before the law, the court and other state institutions and officers alike.

1.4. A. Ramonas explained that for the students, whose costs of studies are covered by all state taxpayers, higher education is more easily accessible if compared to those who have to pay for the studies themselves. The accessibility of higher education according to one’s abilities, after one has been admitted to a school of higher learning, are largely determined by the material circumstances of the student’s life and studies, which, in their turn, depend on the source of the covering of the cost of studies. Article 60 of the Law not only raises doubts as regards its compliance with the Constitution but it also increases social inequality. The representative of the party concerned pointed out that the petitioner was right in underlying that even though Paragraph 4 of Article 60 of the Law provides for an opportunity to designate a state study loan by tender to cover the cost of studies to students studying at their own expense to pay for their studies, however, unlike those studying in places funded by the state, the students who study at their own expense must repay the loan although they learn well in a state school of higher learning. According to A. Ramonas, the conclusion formulated in the petition of the petitioner that Paragraph 3 of Article 60 of the Law restricts the area of application of the provision of Paragraph 3 of Article 41 of the Constitution is correct.

2. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the party concerned—the Seimas—A. Ožiūnienė, a consultant to the Legal Department of the Office of the Seimas.

2.1. A. Ožiūnienė pointed out that the autonomy of schools of higher learning is relative. Their autonomy should be combined with their responsibility and accountability before the state and society in order to evade self-isolation of schools of higher learning. It is for this purpose that the Law provides for formation of the councils of universities and colleges. The representative of the party concerned paid attention to the fact that Paragraph 2 of Article 21 of the Law provides that the said councils are public supervision and care bodies of state schools of higher learning. The councils draw up conclusions, submit proposals concerning the activity of the institutions of self-government and administration of schools of higher learning, they assess how the school of higher learning carries out its tasks, utilises its property and the funds allocated by the state and those received by other means, etc. They help the schools of higher learning to maintain contacts with the society and to react to their needs at the same time.

A. Ožiūnienė maintains that when academic issues are being solved by the senate or the academic council, in reality the council may be influential up to the limit so that the principle of academic freedom would not be violated.

A. Ožiūnienė drew the conclusion that the provisions of Items 10, 11 and 12 of Paragraph 5 of Article 22 and those of Items 1, 2, and 5 of Paragraph 1 and Paragraph 7 of Article 24 of the Law are in compliance with Article 40 of the Constitution.

2.2. The representative of the party concerned explained that the provision of Article 40 of the Constitution that institutions of higher learning shall be granted autonomy does not obligate the legislature to apply the same extent of autonomy to all schools of higher learning.

In the opinion of A. Ožiūnienė, the notions “university” and “college” as presented in Articles 6 and 7 of the Law disclose an essential difference between these two types of schools of higher learning, the aims of these schools of higher learning, the level of preparation of specialists etc. The legislature, while taking account of the special status of universities, granted an additional right to universities to select study forms and subject areas, research, professional artistic activities, to approve study programmes conforming to the guidelines for a subject area (Paragraph 3 of Article 9 of the Law), and to the senates of universities to approve the study programmes (college study programmes are approved by the Ministry on the advice of the college academic council) (Paragraph 4 of Article 42 of the Law).

The representative of the representative of the party concerned noted that the procedure of adoption of the statutes of schools of higher learning is not related to the realisation of autonomy of schools of higher learning. Establishment of the procedure of adoption, amendment and supplementation of the statutes of non-state schools of higher learning is within the prerogative of their founders.

Taking account of the reasoning set forth, A. Ožiūnienė asserts that Paragraph 5 of Article 8, Paragraph 3 of Article 9, Paragraph 2 of Article 24 and Paragraph 4 of Article 42 of the Law are in compliance with Article 40 of the Constitution.

2.3. The representative of the party concerned underlined that the provision of Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before the law, the court, and other state institutions and officials virtually means a prohibition against discrimination. Differentiated legal regulation applied to persons who are in different situations is not considered to be discrimination. According to A. Ožiūnienė, the prohibition for the chairperson of the senate of the university against being the rector of the university at the same time should not be considered to be discriminatory against the person and conflicting with the constitutional principle of the equality of persons.

2.4. The provision of Paragraph 2 of Article 60 of the Law that a student accepted in a state-funded place shall form a tripartite agreement with the school of higher learning and the Lithuanian State Fund for Science and Studies of Lithuania and Paragraph 1 of Article 61 of the Law which provides that with the students who not having secured the state-funded places by the procedure of selective competition agree to pay for their studies agreements shall be concluded the procedure of drawing up and standard form whereof shall be approved by the Ministry and which shall be registered with the State Fund for Science and Studies of Lithuania, are not discriminating and in conflict with the principle of equality of all persons before the law. A. Ožiūnienė is of the opinion that there are not any grounds to treat these provisions of the Law as granting advantages to certain students if compared to the other students: the impugned norms of the Law are not related to the principle established in Paragraph 1 of Article 29 of the Constitution and are in conformity with it.

The representative of the party concerned draws an analogous conclusion as to the compliance of Paragraphs 1 and 2 of Article 65 of the Law with Paragraph 1 of Article 29 of the Constitution.

2.5. A. Ožiūnienė emphasised that, while implementing the provision of Paragraph 3 of Article 41 of the Constitution, Article 47 of the Law provides that persons who have completed, as a minimum, their secondary education may be accepted into a school of higher learning. Persons shall be accepted, by way of an open competition, to the places in schools of higher learning financed by the state. The grounds of this competition consist of the results of secondary school graduation examinations of not more than four subjects taught. No more than two examinations or tests may be organised by schools of higher learning for identification of special abilities. Thus, the right to acquire higher education is related with the abilities and knowledge of individuals. Alongside, Paragraph 7 of Article 5 of the Law points out a duty of schools of higher learning as one of their main functions to offer equal opportunities to all permanent residents of the Republic of Lithuania to acquire higher education in accordance with their abilities and knowledge. Besides, attention ought to be paid to the fact that Paragraph 2 of Article 47 of the Law provides for an opportunity for applicants to submit applications to enrol in several schools of higher learning, thus, the opportunities of individuals to attain higher education are increased. On the other hand, according to standard contracts, state schools of higher learning may accept a number of students, designated in the agreement between the Ministry and the higher learning establishment for sequential studies, who not having secured the state-funded places by the procedure of selective competition, agree to pay for their studies. However, this opportunity does not violate the rights of those willing to secure the state-funded places: individuals are admitted into state schools of higher learning according to their abilities while taking part in the competition for the state-funded places.

Article 60 of the Law provides that a nominal, corresponding to the cost of studies state loan, shall be given to cover the period of studies for students accepted to state-funded places. A student accepted in a state-funded place concludes an agreement of the standard form with the school of higher learning, by which the conditions of state loan issuance and repayment are established. The Law provides for an opportunity for the students studying at their own expense to be placed in state-funded places: if the student without serious cause failed to implement the requirements of the semester programme of study for two consecutive semesters, the school of higher learning removes his name from the list of the students listed in places funded by the state. If in a school of higher learning there appears a vacant state-funded place in a certain programme of studies, individuals who study there at their own expense within the framework of the same programme have the right to be placed in the said place by way of a competition.

A. Ožiūnienė noted that the content of the notion “suitable academic progress” is not disclosed in Paragraph 3 of Article 41 of the Constitution. The constitutional norm only underlines that the citizen must have suitable academic results. The legislature has not particularised in laws as to what is meant by a citizen with suitable academic results, therefore, there appear conditions for varied interpretation and application of this notion.

The representative of the party concerned draws the conclusion that there are no grounds to assert that Article 60 of the Law conflicts with Paragraph 3 of Article 40 of the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from V. Vadapalas, Director General of the European Law Department under the Government of the Republic of Lithuania, A. Monkevičius, Minister of Education and Science of the Republic of Lithuania, P. Koverovas, Vice-Minister of Justice and J. Liaučius, Auditor General of the Republic of Lithuania, as well as a written opinion from the Committee on Legal Issues of the Conference of Rectors of Lithuanian Universities.

V

At the Constitutional Court hearing, the representatives of the petitioner—a group of Seimas members—A. Sakalas and S. Buškevičius virtually reiterated the arguments set forth in their petition.

At the Constitutional Court hearing, the representatives of the party concerned—the Seimas—A. Ramonas and A. Ožiūnienė virtually reiterated the arguments set forth in their written explanations presented to the Constitutional Court.

The Constitutional Court

holds that:

I

1. The petitioner—a group of Seimas members—requests an investigation into whether Paragraph 5 of Article 8, the provision of Paragraph 3 of Article 9 that beside the rights specified in Paragraph 2 of Article 9 of the Law universities shall have the rights provided for in Paragraph 3 of Article 9 of the Law, the provision of Paragraph 3 of Article 22 that the rector and the chairperson of the senate may not be the same person, Items 10, 11 and 12 of Paragraph 5 of Article 22, Items 1, 2 and 5 of Paragraph 1, Paragraphs 2 and 7 of Article 24, the provision “college study programmes shall be approved by the Ministry on the advice of the college academic council” of Paragraph 4 of Article 42 of the Law are in compliance with Article 40 of the Constitution, whether the provision of Paragraph 3 of Article 22 that the rector and the chairperson of the senate may not be the same person, Paragraph 2 of Article 60, Paragraph 1 of Article 61, Paragraph 1 of Article 62 and Paragraphs 1 and 2 of Article 65 of the Law are in compliance with Article 29 of the Constitution, and whether Article 60 of the Law is in compliance with Article 41 of the Constitution.

It is clear from the arguments provided by the petitioner that the group of Seimas members doubts as to the compliance of the said provisions of the Law with not entire Articles 29, 40 and 41 of the Constitution, but only with Paragraph 1 of Article 29, Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

2. On 25 January 2001, the Seimas enacted the Republic of Lithuania’s Law on the Amendment and Supplement of Articles 5, 9, 11, 15, 34, 40, 51, 54, 56, 59, 67 of the Law on Higher Education (Official Gazette Valstybės žinios, 2001, No. 16-496) which amended Item 3 of Paragraph 3 of Article 9 of the Law. The impugned provision of Paragraph 3 of Article 9 of the Law that beside the rights specified in Paragraph 2 of Article 9 of the Law universities shall have the rights provided for in Paragraph 3 of Article 9 of the Law, was not amended.

3. On 21 December 2001, the Seimas enacted the Republic of Lithuania’s Law on the Amendment and Supplement of Article 2, the Title of Chapter II, Articles 14, 15, 17, 27, 28, 29, 37, 39, 41, 47, 48, 54, 56, 57, 58, 59, 60, 61, 62, 63, 66, 67 and Abolishment of Articles 18, 64, 65, 68 of the Law on Higher Education (Official Gazette Valstybės žinios, 2002, No. 3-75) which amended impugned Articles 60, 61 and 62 and abolished Article 65 of the Law. Subsequent to the amendment of the Law, the impugned provisions of the Law were no longer in force, therefore, conforming to Paragraph 4 of Article 69 of the Law on the Constitutional Court, the case should be dismissed as to the petition of the petitioner requesting an investigation into whether Paragraph 2 of Article 60, Paragraph 1 of Article 61, Paragraph 1 of Article 62 and Paragraphs 1 and 2 of Article 65 of the Law are in compliance with Paragraph 1 of Article 29 of the Constitution, and whether Article 60 of the Law is in compliance with Paragraph 3 of Article 41 of the Constitution.

4. The Constitutional Court, taking into consideration the above arguments and subsequent to the petition of the petitioner, will consider whether Paragraph 5 of Article 8, the provision of Paragraph 3 of Article 9 that beside the rights specified in Paragraph 2 of Article 9 of the Law universities shall have the rights provided for in Paragraph 3 of Article 9 of the Law, the provision of Paragraph 3 that the rector and the chairperson of the senate may not be the same person, Items 10, 11 and 12 of Paragraph 5 of Article 22, Items 1, 2 and 5 of Paragraph 1, Paragraphs 2 and 7 of Article 24, the provision “college study programmes shall be approved by the Ministry on the advice of the college academic council” of Paragraph 4 of Article 42 of the Law are in compliance with Paragraph 3 of Article 40 of the Constitution, and whether the provision of Paragraph 3 of Article 22 of the Law that the rector and the chairperson of the senate may not be the same person is in compliance with Paragraph 1 of Article 29 of the Constitution.

II

1. Paragraph 3 of Article 40 of the Constitution provides that “institutions of higher learning shall be granted autonomy“.

In order to disclose the content of the concept of autonomy provided for in Paragraph 3 of Article 40 of the Constitution, it should be noted that “traditionally, the autonomy of the institution of higher learning is conceived as the right to independently determine and establish in the regulations or statute the organisational and governmental structure, relations with other partners, the order of research and studies, academic syllabus, the order of student enrolment, to resolve other related questions, to use the property given over by the state as well as newly acquired, to possess the territory and buildings as well as other property, allotted for the needs of research and studies, to have the guarantee of inviolability. For this purpose, the institution of higher learning is guaranteed the institutional autonomy, i.e. certain status, which means that there are certain spheres of activities, independent from the control of the executive power” (the Constitutional Court’s ruling of 27 June 1994).

2. The system of higher education ensures the development of science and culture, social sphere and economy. The purpose of higher education is to create, accumulate and disseminate knowledge of science and cultural values, to educate the personality and society. Therefore, the society is concerned with creating due conditions for institutions of higher education in order to ensure all-round education of the personality, freedom of teaching, scientific research and creative activities. Accordingly, institutions of higher education have to react to changes of social needs and coordinate their activities with the interests of society. Therefore, the principle of autonomy of institutions of higher education must be coordinated with the principle of responsibility and accountability before society, other constitutional values, with the duty of institutions of higher education to observe the Constitution and laws, with the interaction and coordination of interests of institutions of higher education and society. The Magna Charta Universitatum (18 September 1988) has established that “the universities’ task of spreading knowledge among the younger generations implies that, in today’s world, they must also serve society as a whole”. It should be noted that “the right of the state to regulate external affairs of the institution of higher learning does not contradict the autonomy unless it impairs the freedom of research and teaching in the institution of higher education” (the Constitutional Court’s ruling of 27 June 1994).

3. Paragraph 3 of Article 40 of the Constitution specifies that institutions of higher learning are granted autonomy. The diversity of goals of higher education determines the fact that there may be a variety of types of schools of higher learning. In its ruling of 10 July 1996, the Constitutional Court noted that universities differ from other institutions of higher education in the nature of studies, goals, level of preparation of specialists etc. Taking into consideration the fact that there may be a variety of types of schools of higher learning, laws may provide for autonomy of different scope to different types of schools of higher learning (depending on whether they are universities or colleges, whether founded by the state or other entities, and on other conditions); laws may regulate administration and self-government of schools of higher learning in a different manner.

The provision of Paragraph 3 of Article 40 of the Constitution may not be construed as prohibiting against the establishment by law of different limits of autonomy of schools of higher learning. In themselves, different establishment by law of the administration forms of schools of higher learning of various types and also of the schools of higher learning founded by various founders (the state and not the state), also that of the institutions of their administration, of the procedure of formation and of the functions and powers of the latter, do not deny the constitutional principle of autonomy of institutions of higher learning.

III

On the compliance of Paragraph 5 of Article 8, the provision of Paragraph 3 of Article 9 that beside the rights specified in Paragraph 2 of Article 9 of the Law universities shall have the rights provided for in Paragraph 3 of Article 9 of the Law, the provision of Paragraph 3 of Article 22 that the rector and the chairperson of the senate may not be the same person, Items 10, 11 and 12 of Paragraph 5 of the same article, Items 1, 2 and 5 of Paragraph 1, Paragraphs 2 and 7 of Article 24, and the provision “college study programmes shall be approved by the Ministry on the advice of the college academic council” of Paragraph 4 of Article 42 of the Law with Paragraph 3 of Article 40 of the Constitution.

1. It is established in Paragraph 5 of Article 8 of the Law: “The statute of a school of higher learning not belonging to the State shall be adopted in a manner prescribed by its founder, and amended in a manner prescribed by the statute. The statute of a school of higher learning not belonging to the State shall be registered by the Ministry”.

It is established in the first sentence of Paragraph 3 of Article 9 of the Law: “Beside the rights specified in Paragraph 2 of this Article, universities shall have the following right:”.

It is established in the second sentence of Paragraph 3 of Article 22 of the Law: “The rector and the chairperson of the senate may not be the same person.”

It is established in Items 10, 11 and 12 of Paragraph 2 of Article 22 of the Law:

The senate shall exercise the following functions: <...>

10) consider the university’s developmental long-term plan project and, upon receipt of the conclusion of the university council, approve it and present it to the Ministry together with the said conclusion of the university council;

11) consider a draft agreement with the Ministry and, upon receipt of the conclusion of the university council, present it to the Ministry together with the said conclusion of the university council;

12) consider annual rector’s reports, annual income and expenditure estimates and, upon receipt of the conclusion of the university council, approve them.“

It is established in Items 1, 2 and 5 of Paragraph 1, Paragraphs 2 and 7 of the Law:

1. The State university council and the State college council (hereinafter referred to as the council) shall:

1) prepare conclusions concerning the projects of a long-term plan of the school of higher learning development and an agreement of a school of higher learning with the Ministry;

2) present recommendations on study programmes, programmes related to research and the development thereof, as well as on structural changes necessary for the implementation of such programmes; <...>

5) consider and prepare conclusions regarding annual reports of the rector (college director), annual income and expenditure forecasts and a report on whether those forecasts have been met/on the actual figures.

2. The college council shall elect a college director. <...>

7. If the senate (academic council) does not approve of the council’s conclusions and proposals concerning annual income and expenditure estimates and their implementation accounts, the council shall consider them repeatedly and, if it adopts the same decision again, such decision shall become mandatory to the senate (academic council).“

It is established in the second sentence of Paragraph 4 of Article 42 of the Law: “College study programmes shall be approved by the Ministry on the advice of the college academic council“.

2. The petitioner is of the opinion that the autonomy of institutions of higher education in their educational and scientific activities provided for in Paragraph 3 of Article 40 of the Constitution must be of the same level for all institutions of higher education irrespective of their types (universities or colleges), founders (the state or not the state) etc.

The petitioner doubts as to the compliance of Paragraph 5 of Article 8 establishing the procedure of adoption, amendment and registration of the statute of a school of higher learning not belonging to the state, the provision of Paragraph 3 of Article 9 that beside the rights specified in Paragraph 2 of Article 9 of the Law universities shall have the rights provided for in Paragraph 3 of Article 9 of the Law, Paragraph 2 of Article 24 and the provision “college study programmes shall be approved by the Ministry on the advice of the college academic council” of Paragraph 4 of Article 42 of the Law with Paragraph 3 of Article 40 of the Constitution.

The petitioner assumes that the functions of the university senate set forth in Items 10, 11 and 12 of Paragraph 5 of Article 22 of the Law, the functions of the state university council and state college council set forth in Items 1, 2 and 5 of Paragraph 1 of Article 24 narrows self-government rights of institutions of higher education in the sphere of education and scientific activities, as well as the guarantees of autonomy, established in Paragraph 3 in Article 40 of the Constitution. The petitioner doubts as to the compliance of Items 10, 11 and 12 of Paragraph 5 of Article 22 and Items 1, 2 and 5 of Paragraph 1 and Paragraph 7 of Article 24 with Paragraph 3 of Article 40 of the Constitution.

The petitioner doubts as to the compliance of the provision of Paragraph 3 of Article 22 of the Law that the rector and the chairperson of the senate may not be the same person with Paragraph 3 of Article 40 of the Constitution.

3. It has been mentioned that universities differ from other types of schools of higher learning according to the nature of studies, purposes of schools of higher learning, the level of preparation of specialists etc. Taking account of a special role of universities in the process of the development of society, of their importance to social life, the Law, in addition to the rights enjoyed by all types of schools of higher learning, grants extra rights to universities: the right to select study forms and subject areas, research, professional artistic activities; to approve study programmes conforming to the guidelines for a subject area; to award research degrees, qualifications, academic titles (Paragraph 3 of Article 9 of the Law). The Senate of Vilnius University, unlike academic councils of state colleges, is entitled to choose the rector (Item 3 of Paragraph 5 of Article 22 of the Law) and to approve the study programme (Paragraph 4 of Article 42 of the Law).

Under the Constitution, non-state schools of higher learning may be founded as well (Paragraph 2 of Article 40 of the Constitution). Paragraph 5 of Article 8 of the Law provides that “the statute of a school of higher learning not belonging to the State shall be adopted in a manner prescribed by its founder, and amended in a manner prescribed by the statute. The statute of a school of higher learning not belonging to the State shall be registered by the Ministry”.

It has already been held in this ruling of the Constitutional Court that, in themselves, different establishment by law of the administration forms of schools of higher learning of various types and also of the schools of higher learning founded by various founders (the state and not the state), also that of the institutions of their administration, of the procedure of formation and of the functions and powers of the latter, do not deny the constitutional principle of autonomy of institutions of higher learning.

Taking account of the arguments set forth, it should be concluded that Paragraph 5 of Article 8, the provision of Paragraph 3 of Article 9 that beside the rights specified in Paragraph 2 of Article 9 of the Law universities shall have the rights provided for in Paragraph 3 of Article 9 of the Law, Paragraph 2 of Article 24, and the provision “college study programmes shall be approved by the Ministry on the advice of the college academic council” of Paragraph 4 of Article 42 of the Law are in compliance with Paragraph 3 of Article 40 of the Constitution.

4. Paragraph 2 of Article 21 of the Law provides that the public supervision and care body of a state university shall be the university council, and the public supervision and care body of a state college shall be the college council. Under Paragraphs 4 and 5 of Article 24 of the Law, the council shall be formed for a period of 4 years from not less than 9, but not more than 21 members. The council shall be formed from three parts: one-third of the council members is appointed by the senate (academic council) in a manner prescribed by the statute, another third of the council members (not the employees of the school of higher learning) representing the spheres of science, culture, art and economy, local self-government institutions or public authorities, is appointed by the Minister; the remaining third of the council members is appointed by consensus between the rector (college director) and the Minister. The rector (college director) and at least one representative of students elected by the students’ government organisation, and if there is no such organisation—by the general meeting (conference) of students must be among the members appointed by the senate (academic council) of a school of higher learning. The Minister shall, by his order, announce the composition of the council and, taking into consideration the recommendation of the rector (college director), appoint its chairperson. The person working in that school of higher learning may not be the council chairperson. The Seimas and the Government members, civil servants of political (personal) confidence may not be council members.

The members of councils of state schools of higher learning are appointed by the Minister of Education and Science together with self-government institutions of state schools of higher learning (the senate (academic council) and the rector (college director)). Thus, the institutions of the executive (Minister of Education and Science) and self-government institutions of state schools of higher learning enjoy the same rights in the formation of the councils. Under Paragraph 4 of Article 24 of the Law, the Minister is prohibited from not announcing the composition of the councils formed under procedure established by law. The councils of state schools of higher learning are public supervision and care bodies.

It has been mentioned in this ruling of the Constitutional Court that the principle of autonomy of institutions of higher education must be coordinated with the principle of responsibility and accountability before society. For this purpose the councils assess as to how the state school of higher learning performs its tasks, utilises its property and the funds allocated to it by the state, how it performs the other functions established by the Law. The councils help the schools of higher learning to maintain ties with society and to react to social needs.

It needs to be noted that from the legal point of view most of the powers established for the councils are of recommendatory nature except the case when the council adopts the same conclusions and proposals concerning annual income and expenditure estimates after considering them repeatedly (Paragraph 7 of Article 24 of the Law).

Under Items 10 and 11 of Paragraph 5 of Article 22 of the Law, the university senate shall approve a draft university’s developmental long-term plan and present a draft agreement with the Ministry to the Ministry. The provisions of the Law that the university senate approves a draft university’s developmental long-term plan only upon receipt of the conclusion of the university council and that the university senate presents a draft agreement with the Ministry to the Ministry only upon receipt of the conclusion of the university council should be regarded as ones establishing certain procedural requirements which are necessary to be performed before the senate makes decisions. While deciding whether the requirements established in the Law do not violate the principle of autonomy of schools of higher learning, the fact is of essential importance that the conclusions of the council are not binding on the senate as to the adoption of decisions in the above issues. The decisions adopted by the council to present recommendations on study programmes, programmes related to research and the development thereof, as well as on structural changes necessary for the implementation of such programmes (Item 2 of Paragraph 1 of Article 24 of the Law) are of recommendatory nature.

Chapter VIII of the Law provides for allocation of state budget funds to state schools of higher education. For the purpose of implementation of their functions, state schools of higher learning are allocated state funds provided for in the state budget,

The school of higher learning which receives funds from the state budget must account for proper use of the received funds, while it is within the discretion of the legislature to establish by law as regards the manner and way of control of the use of the funds.

Paragraph 1 of Article 134 of the Constitution provides that state control shall supervise the lawfulness of the possession and utilisation of state property and the execution of the state budget, however, this does not mean that the legislature does not have a right to establish other forms of supervision, too.

Taking account of the arguments set forth, the conclusion should be drawn that Items 10, 11 and 12 of Paragraph 5 of Article 22 and Items 1, 2, 5 and 7 of Paragraph 1 of Article 24 of the Law are in compliance with Paragraph 3 of Article 40 of the Constitution.

5. The petitioner doubts if the provision of Paragraph 3 of Article 22 of the Law that the rector and the chairperson of the senate may not be the same person is in conformity with Paragraph 3 of Article 40 of the Constitution.

It has already been held in this ruling of the Constitutional Court that, depending on the type of the school of higher learning and other circumstances, the laws may establish varied composition procedure of self-government institutions of schools of higher learning. In other words, the provision of Paragraph 3 of Article 40 of the Constitution may not be construed as not permitting establishing by law different limits of autonomy of schools of higher learning and to regulate in a varied manner the activities of self-government institutions of schools of higher learning as well as relations of their formation. The fact that Paragraph 3 of Article 22 of the Law provides for the procedure that the rector and the chairperson of the senate may not be the same person does not deny the principle of autonomy of schools of higher learning enshrined in the Constitution.

Taking account of the arguments set forth, it should be concluded that the provision of Paragraph 3 of Article 22 of the Law that the rector and the chairperson of the senate may not be the same person is in compliance with Paragraph 3 of Article 40 of the Constitution.

IV

On the compliance of the provision of Paragraph 3 of Article 22 of the Law that the rector and the chairperson of the senate may not be the same person with Paragraph 1 of Article 29 of the Constitution.

The petitioner doubts if the provision of Paragraph 3 of Article 22 of the Law that the rector and the chairperson of the senate may not be the same person is in conformity with Paragraph 1 of Article 29 of the Constitution.

Paragraph 1 of Article 29 of the Constitution provides: “All persons shall be equal before the law, the court, and other State institutions and officers.”

It has already been held in this ruling of the Constitutional Court that, under the provision of Paragraph 3 of Article 40 of the Constitution whereby institutions of higher learning shall be granted autonomy, it is not prohibited to establish by law different limits of autonomy of schools of higher learning and to regulate in a varied manner the activities of self-government institutions of schools of higher learning as well as relation of their formation. The impugned provision of Paragraph 3 of Article 22 of the Law treats all relations of self-government of state universities in the same manner nor does it contain any provisions whereby the principle of equality of all persons before the law, the court, and other state institutions and officers might be violated.

Taking account of the aforementioned reasoning, it should be concluded that the provision of Paragraph 3 of Article 22 of the Law that the rector and the chairperson of the senate may not be the same person is in compliance with Paragraph 1 of Article 29 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the 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 Paragraph 5 of Article 8, Paragraph 3 of Article 9, Paragraph 3, Items 10, 11 and 12 of Paragraph 5 of Article 22, Items 1, 2 and 5 of Paragraph 1, Paragraphs 2 and 7 of Article 24, and Paragraph 4 of Article 42 of the Republic of Lithuania’s Law on Higher Education are in compliance with the Constitution of the Republic of Lithuania.

2. To dismiss the initiated legal proceedings as regards the compliance of Paragraph 2 of Article 60, Paragraph 1 of Article 61, Paragraph 1 of Article 62 and Paragraphs 1 and 2 of Article 65 of the Republic of Lithuania’s Law on Higher Education with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania, as well as that of Article 60 of the Republic of Lithuania’s Law on Higher Education with Paragraph 3 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 Jarašiūnas

Zigmas Levickis

Augustinas Normantas

Vladas Pavilonis

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas

Teodora Staugaitienė