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On the autonomy of schools of higher education

Case No. 28/07-29/07

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE CONSTRUCTION OF THE PROVISION OF ITEM 13 OF SECTION II OF THE REASONING PART OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 20 MARCH 2008

28 October 2009
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, on 20 October 2009, in its public hearing, considered the petition of Vydas Gedvilas, a member of the Seimas of the Republic of Lithuania, the petitioner, requesting the construction of the provision “<…> the autonomy of a school of higher education is conceived as the right to independently determine and establish in the regulations or statute its organisational and governmental structure <…>” of Item 13 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 20 March 2008.

The Constitutional Court

has established:

1. On 20 March 2008, the Constitutional Court in constitutional justice case No. 28/07-29/07 adopted the Ruling “On the Compliance of Paragraph 4 (wording of 22 April 2003), Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006), Article 57 (wording of 18 July 2006), Paragraph 3 (wording of 22 April 2003), Paragraph 4 (wording of 30 June 2005) of Article 58 (wording of 30 June 2005), Paragraph 1 (wording of 22 April 2003) of Article 60, and Paragraph 1 (wording of 22 April 2003) of Article 61 of the Republic of Lithuania’s Law on Higher Education with the Constitution of the Republic of Lithuania, as well as on the Dismissing of the Part of the Case Subsequent to the Petition of the President of the Republic of Lithuania, the Petitioner, Which Was Set Forth in His Decree (No. 1K-1138) “On Applying to the Constitutional Court of the Republic of Lithuania” of 22 October 2007, Requesting an Investigation into Whether Items 3 and 14 of the Methods of Establishing the Needs of Funds from the State Budget of the Republic of Lithuania and Assigning Them to the Institutions of Science and Studies as Approved by the Resolution of the Government of the Republic of Lithuania (No. 1272) “On Approving the Methods of Establishing the Needs of Funds from the State Budget of the Republic of Lithuania and Assigning Them to Institutions of Science and Studies” of 11 October 2004 (wording of 5 October 2006) are not in Conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2008, No. 34-1224, correction Official Gazette Valstybės žinios, 2008, No. 44; hereinafter referred to as the Constitutional Court’s ruling of 20 March 2008).

2. It was recognised in the Constitutional Court’s ruling of 20 March 2008 that:

Paragraph 4 (wording of 22 April 2003; Official Gazette Valstybės žinios, 2003, No. 47-2058) of Article 47 (wording of 18 July 2006) of the Republic of Lithuania’s Law on Higher Education is in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania.

Paragraph 5 (wording of 30 July 2005; Official Gazette Valstybės žinios, 2005, No. 85-3136) of Article 47 (wording of 18 July 2006) of the Republic of Lithuania’s Law on Higher Education to the extent that it does not provide that the persons who are willing to pay the full price of studies may be admitted also to the studies of the forms and stages that are not specified in this list (providing the school of higher education has capabilities to provide them with higher education that meets the quality standards established by the state), is in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania.

Article 57 (wording of 18 July 2006; Official Gazette Valstybės žinios, 2006, No. 87-3395) of the Republic of Lithuania’s Law on Higher Education to the extent that it does not establish the principles (which have not been specified by the group of members of the Seimas, a petitioner) of distribution of funds of the State Budget among schools of higher education is not in conflict with the Constitution of the Republic of Lithuania.

Paragraph 3 (wording of 22 April 2003; Official Gazette Valstybės žinios, 2003, No. 47-2058) of Article 58 (wording of 30 June 2005) of the Republic of Lithuania’s Law on Higher Education to the extent that it establishes a duty of state schools of higher education to coordinate the price of studies in those schools of higher education with the Ministry of Education and Science, i.e. to coordinate how much the students whose studies are not financed by the state will have to pay for their studies, as well as Paragraph 4 (wording of 30 June 2005; Official Gazette Valstybės žinios, 2005, No. 85-3136) of the same article, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania.

Paragraph 1 (wording of 22 April 2003; Official Gazette Valstybės žinios, 2003, No. 47-2058) of Article 60 of the Republic of Lithuania’s Law on Higher Education to the extent that it establishes a quota (expressed in percentage) of students who are good at their studies is in conflict with Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania.

Paragraph 1 (wording of 23 April 2003; Official Gazette Valstybės žinios, 2003, No. 47-2058) of Article 61 of the Republic of Lithuania’s Law on Higher Education is not in conflict with the Constitution of the Republic of Lithuania.

3. The Constitutional Court is requested to construe whether the provision “<…> the autonomy of a school of higher education is conceived as the right to independently determine and establish in the regulations or statute its organisational and governmental structure <…>” of Item 13 of Section II of the reasoning part of the Constitutional Court’s ruling of the 20 March 2008 means that it is solely the community of a school of higher education that forms administrative bodies of the school of higher education from members of its community, or that they may be formed also by the institutions of executive power by appointing its representatives to the administrative bodies of the school of higher education, as well as whether this notion of autonomy means that the state may not establish and consolidate by means of laws or other legal acts the organisational and administrative structure of a state school of higher education, as well as methods and procedure of forming these structures.

4. The petition to construe the provision of the Constitutional Court’s ruling of the 20 March 2008 was submitted by Seimas members V. M. Čigriejienė and V. Gedvilas. Seimas member V. Gedvilas was a representative of the Seimas, the party concerned, in the constitutional justice case in which the Constitutional Court’s ruling of 20 March 2008 was adopted, the provision of which is requested to be construed. Thus, according to Article 31 of the Law on the Constitutional Court, V. Gedvilas has the right to apply to the Constitutional Court with a request to construe the provision of the ruling of 20 March 2008. Therefore, the petition submitted by Seimas members V. M. Čigriejienė and V. Gedvilas was accepted at the Constitutional Court as a petition of Seimas member V. Gedvilas, the representative of the Seimas, requesting the construction of the provision of the Constitutional Court’s ruling of the 20 March 2008.

The Constitutional Court

holds that:

I

1. The powers of the Constitutional Court to officially construe its own rulings are entrenched in the Law on the Constitutional Court (Article 61). The Constitutional Court has held in its acts more than once that it enjoys the powers to construe its other final acts as well.

2. Paragraph 1 of Article 61 of the Law on the Constitutional Court provides that a ruling of the Constitutional Court may be officially construed by the Constitutional Court at the request of the parties to the case, of other institutions or persons to whom it was sent, or on its own initiative.

3. A decision concerning the construction of a ruling of the Constitutional Court shall be adopted at a sitting of the Constitutional Court as a separate document (Paragraph 2 of Article 61 of the Law on the Constitutional Court).

4. In its acts, the Constitutional Court has held more than once that the purpose of the institute of construction of rulings and other final acts of the Constitutional Court is to reveal the contents and meaning of the corresponding rulings or other final acts of the Constitutional Court more broadly and in more detail if it is necessary in order to ensure a proper execution of that ruling or other final act of the Constitutional Court so that the said ruling or other final act of the Constitutional Court would be followed.

5. The Constitutional Court has held more than once that a ruling of the Constitutional Court is integral; its operative part is based upon the arguments of the part of reasoning; while construing its ruling, the Constitutional Court is bound both by the content of the operative part and the part of reasoning of its ruling; the decision adopted concerning the construction of a ruling of the Constitutional Court is inseparable from that ruling of the Constitutional Court.

6. Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its content.

The Constitutional Court has held more than once that this provision of Paragraph 3 of Article 61 of the Law on the Constitutional Court means, among other things, that, while construing its ruling, the Constitutional Court cannot construe its content so that the meaning of its provisions, inter alia, the notional entirety of the elements constituting the content of the ruling, the arguments and reasons upon which that ruling of the Constitutional Court is based, is changed, also that the Constitutional Court may not construe what was not investigated in that constitutional justice case, subsequent to which the construed ruling was adopted, either. The Constitutional Court has also held more than once that the consideration of a petition requesting the construction of a ruling or another final act of the Constitutional Court does not imply a new constitutional justice case.

In this context, it needs to be noted that, as it has been held by the Constitutional Court more than once, the formula “shall be final and not subject to appeal” of Paragraph 2 of Article 107 of the Constitution, which provides that the decisions of the Constitutional Court on the issues within its competence according to the Constitution shall be final and not subject to appeal, also means that the rulings, conclusions and decisions of the Constitutional Court by which a constitutional justice case is finished, i.e. final acts of the Constitutional Court, are obligatory to all state institutions, courts, all enterprises, establishments and organisations, as well as officials and citizens, including the Constitutional Court itself: final acts of the Constitutional Court are obligatory to the Constitutional Court itself, they restrict the Constitutional Court in the aspect that it may not change them or review them if there are no constitutional grounds for that.

Therefore, in the official construction (subsequent to a petition of the persons that participated in the case, other institutions and individuals, to whom the ruling of the Constitutional Court was sent, also on the initiative of the Constitutional Court itself) of rulings and other final acts of the Constitutional Court, the constitutional doctrine is not corrected. The correction of the official constitutional doctrine (which, undoubtedly, must always have a constitutional basis and be explicitly reasoned in a respective act of the Constitutional Court) should be related with the consideration of new constitutional justice cases and creation of new Constitutional Court precedents therein, but not with the official construction of provisions of the rulings and other final acts of the Constitutional Court (the Constitutional Court’s decisions of 6 December 2007, 1 February 2008, 4 July 2008, and, 15 January 2009).

7. It should also be noted that the uniformity and continuity of the official constitutional doctrine implies the necessity to construe each construed provision of a ruling or another final act of the Constitutional Court by taking account of the entire official constitutional doctrinal context, also of other provisions (explicit and implicit) of the Constitution, which are related with the provision (provisions) of the Constitution in the course of the construction of which in a ruling or its other final act Constitutional Court the corresponding official constitutional doctrine was formulated. As already held by the Constitutional Court more than once, no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in that ruling or other final act of the Constitutional Court, in other acts of the Constitutional Court, as well as with other provisions (explicit and implicit) of the Constitution (the Constitutional Court’s decisions of 4 July 2008, 15 January 2009, and 15 May 2009).

II

1. The Constitutional Court is requested to construe whether the provision “<…> the autonomy of a school of higher education is conceived as the right to independently determine and establish in the regulations or statute its organisational and governmental structure <…>” of Item 13 of Section II of the reasoning part of the Constitutional Court’s ruling of the 20 March 2008 means that it is solely the community of a school of higher education that forms administrative bodies of the school of higher education from members of its community, or that they may be formed also by the institutions of executive power by appointing its representatives to the administrative bodies of the school of higher education, as well as whether this notion of autonomy means that the state may not establish and consolidate by means of laws or other legal acts the organisational and administrative structure of a state school of higher education, as well as methods and procedure of forming these structures.

2. The provision of the Constitutional Court’s ruling of the 20 March 2008, the construction of which is requested by the petitioner, constitutes a part of the text of Item 13 of Section II of the reasoning part of the Constitutional Court’s ruling of the 20 March 2008, in which it was held, inter alia, that:

<…> traditionally, the autonomy of a school of higher education is conceived as the right to independently determine and establish in the regulations or statute its organisational and governmental structure, its relations with other partners, the procedure of research and studies, academic syllabi, the procedure of students’ enrolment, to resolve other related questions, as well as that there are certain spheres of activities, independent from the control by the executive power (the Constitutional Court’s rulings of 27 June 1994, 14 January 2002, 5 February 2002, and 20 February 2008). It was also held that the society is concerned with creating due conditions for institutions of higher education in order to ensure all-round education of the personality, and that schools of higher education enjoy freedom of teaching, of scientific research and creative activities (the Constitutional Court’s ruling of 5 February 2002). On the other hand, the interests of schools of higher education and those of society must be coordinated; the principle of autonomy of schools of higher education must be coordinated with their duty to observe the Constitution and laws, with their responsibility and accountability before society (the Constitutional Court’s ruling of 5 February 2002). Schools of higher education must act while complying the Constitution and law; making use of the autonomy which is guaranteed to schools of higher education by the Constitution may not create any preconditions for abusing the said autonomy.

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

3. The Constitutional Court construed the said provisions in its ruling of 20 March 2008, where it interpreted, inter alia, Paragraph 3 of Article 40 of the Constitution.

Paragraph 3 of Article 40 of the Constitution provides: “Schools of higher education shall be granted autonomy.”

4. It has been mentioned that provisions of a ruling of the Constitutional Court must be construed by taking account of the entire official doctrinal context, also of other provisions (explicit and implicit) of the Constitution, which are related with the provision (provisions) of the Constitution in the course of construction of which in a ruling or another final act of the Constitutional Court the corresponding official constitutional doctrine was formulated; no official constitutional doctrinal provision of a ruling of the Constitutional Court may be construed by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions, as well as with other provisions of the Constitution.

5. The official constitutional doctrine of the autonomy of schools of higher education was developed not only in the Constitutional Court’s ruling of the 20 March 2008, but in other acts of the Constitutional Court as well, therefore, the provision of the Constitutional Court of 20 March 2008 should be construed, inter alia, by taking account of the entire official constitutional doctrinal context.

6. The autonomy of schools of higher education should be construed without separating it from the purpose of the schools of higher education and higher education, as well. The Constitutional Court has held that the purpose of higher education is to create, accumulate and disseminate knowledge of science and cultural values, to educate the personality and society. Therefore, the society is concerned with creating due conditions for institutions of higher education in order to ensure all-round education of the personality, freedom of teaching, scientific research and creative activities. Accordingly, institutions of higher education have to react to changes of social needs and coordinate their activities with the interests of society. Therefore, the principle of autonomy of institutions of higher education must be coordinated with the principle of responsibility and accountability before society, other constitutional values, with the duty of institutions of higher education to observe the Constitution and laws, with the interaction and coordination of interests of institutions of higher education and society (the Constitutional Court’s ruling of 5 February 2002). Moreover, the Magna Charta Universitatum of 18 September 1988 also stipulates 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”, and that, to meet the needs of the world around them, universities’ research and teaching must be morally and intellectually independent of all political authority and economic power (Fundamental Principles, Article 1). This implies a particular status of universities in the state and society (the Constitutional Court’s ruling of 27 June 1994).

7. It should be noted that the provision of the Constitutional Court’s ruling of the 20 March 2008, the construction of the part of which is requested by the petitioner, presented a traditional notion of the autonomy of schools of higher education.

In its ruling of 27 June 1994, the Constitutional Court held that “historically, the idea of the autonomy of the institution of higher learning came into being in the Middle Ages, when universities originated as establishments of science and studies. The autonomy meant that the university, to a certain extent, was independent from the state, striving to dissociate itself from the influence of political power, to create an independent system of regulation of internal activities within the institution of higher education. The purpose of such dissociation from the state authority institutions was to safeguard the freedom of science, research and teaching, to protect researchers and professors from political influence. The development of the academic autonomy has always been predetermined by the understanding that science and teaching may normally exist and induce progress only when they are free and independent. Thus appeared the principle of academic freedom, which expressed the striving to protect the researchers’ and teachers’ freedom of scientific thought and its expression from outward influence”.

Thus, neither the autonomy of schools of higher education nor academic freedom is an end in itself; they are closely related with each other.

8. The Constitutional Court has held that, under the Constitution, schools of higher education (both state and non-state ones) not only make use of their autonomy, but also they discharge an important social function—they provide higher education; it is impossible that the autonomy of schools of higher education is not linked with their mission to prepare specialists of various spheres who have acquired higher education, who meet the requirements of society and the state, thus, with big responsibility of schools of higher education for the quality of higher education (the Constitutional Court’s ruling of 1 February 2008).

Thus, the mission of schools of higher education to prepare specialists who have acquired higher education, who meet the requirements of society and the state, implies the responsibility of schools of higher education for providing good quality education that meets requirements of society and the state to the learners.

9. It has been mentioned that the Constitutional Court is requested to construe whether the provision “<…> the autonomy of a school of higher education is conceived as the right to independently determine and establish in the regulations or statute its organisational and governmental structure <…>” of Item 13 of Section II of the reasoning part of the Constitutional Court’s ruling of the 20 March 2008 means that it is solely the community of a school of higher education that forms administrative bodies of the school of higher education from members of its community, or that they may be formed also by the institutions of executive power by appointing its representatives to the administrative bodies of the school of higher education, as well as whether this notion of autonomy means that the state may not establish and consolidate by means of laws or other legal acts the organisational and administrative structure of a state school of higher education, as well as methods and procedure of forming these structures.

10. Thus, in the context of this constitutional justice case at issue one should examine first of all the concept of organisational and administrative structure of a school of higher education.

The organisational structure of the school of higher education comprises the units of the school of higher education in which studies are organised and scientific research is performed (for example, faculties, their affiliates, institutes, departments, laboratories, etc.).

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

11. The Constitutional Court has held that laws may regulate the administration and self-governance of schools of higher learning in a different manner; in themselves, a different establishment by law of the administration forms of schools of higher learning of various types and also of (state and non-state) schools of higher learning founded by various founders, also that of the institutions of their administration, of the procedure of formation and of the functions and powers of the latter, do not deny the constitutional principle of autonomy of institutions of higher learning (the Constitutional Court’s ruling of 5 February 2002).

The Constitutional Court has also held that the constitutional guarantee of autonomy of schools of higher education implies that the legislature must provide for special legal regulation, while the greater part of the legal regulation of the said relations should be composed by local legal regulation established by schools of higher education, which must be based on the legal regulation established by the legislature (the Constitutional Court’s ruling of 20 March 2008).

It should be held that, under the Constitution, the legislature, while not denying the principle of autonomy of schools of higher education, may establish by law the bases of organisational and administrative structure of schools of higher education.

12. The concept of autonomy of schools of higher education should be construed. inter alia, within the context of the principle of the constitutional principle of academic freedom.

12.1. The principle of academic freedom or freedom of science, research and teaching is consolidated in Paragraph 1 of Article 42 of the Constitution, which reads: “Culture, science and research, and teaching shall be free”.

The Constitutional Court has held that the constitutional concept of the freedom of science and research is very ample, it comprises various aspects of science and research. The constitutional freedom of science and research means, inter alia, that every person has the right to freely decide by himself whether to engage in science and research, including the right to freely choose the sphere of scientific research and methods of investigating particular subjects, to form his scientific world-view. According to the Constitution, no scientific views may be thrust upon a person, he may not be forced to choose a certain sphere of scientific research or not permitted to choose it (save the exceptions stemming from the Constitution), he may not be forced to perform certain scientific research or be prohibited from performing certain scientific research (save the exceptions stemming from the Constitution), and to publish or not to publish results of the performed scientific research. This is a matter of the discretion of the person and his free choice (the Constitutional Court’s ruling of 5 May 2007).

Science and research may not be made a political or ideological issue, where the scientist may not be forced to accept any scientific views and values, where scientists or researchers may not be discriminated on the basis of the fact that the sphere or subject area of their scientific research is not in line with someone’s political or ideological views. A different interpretation of the concept of the constitutional freedom of science and research would mean that, purportedly, it is also permitted to deviate from the constitutional imperatives or democracy, an open, just and harmonious civil society, and to create conditions for violating various values, inter alia, human rights and freedoms, which are entrenched in and protected and defended by the Constitution (the Constitutional Court’s ruling of 5 May 2007).

12.2. The constitutional notion of freedom of science and research implies the professional independency of the scientific community (as well as communities representing certain scientific subject areas), as a community united by a scientific view and professional interests, from state institutions, their independent institutionalisation and self-governance, as well as free communication with scientific communities of other countries (inter alia, scientific and educational institutions) (the Constitutional Court’s ruling of 5 May 2007).

It should be held that in order to ensure the constitutional implementation of the principle of academic freedom and public interests that conditions are created in the schools of higher education to ensure all-round education of the personality, and that schools of higher education enjoy freedom of teaching, of scientific research and creative activities, the institutions of administration that carry out the functions of self-administration of the school of higher education must be consolidated in the administrative structure of schools of higher education. Only in this way one would guarantee the imperative of autonomy of schools of higher education that stems from the Constitution.

12.3. Alongside it should be noted that the Constitutional Court has held that the fact that the Constitution establishes the autonomy of higher schools allows making the presumption that to perform their functions state higher schools need to be allotted state funds. These funds have to be provided for in the state budget. The essential guarantee of the autonomy of state higher schools is such legal regulation when the state budget law provides not only for allocations for higher education but also funds for each state high school (the Constitutional Court’s ruling of 14 January 2002).

It should be held that it would not be possible to ensure autonomy of schools of higher education, inter alia, the constitutional principle of academic freedom, if schools of higher education did not enjoy financial independence, i.e. if their administrative institutions that implement functions of self-governance of the school of higher education had no possibility of adopting (on the basis of laws) decisions on the use of funds and other property for performing their mission. Therefore, the function of adopting decisions based on laws concerning the use of funds and other property, which is necessary for carrying out the mission of the school of higher education, should be assigned, inter alia, to the functions of the administrative institutions of schools of higher education that implement the function of self-governance of the school of higher education.

12.4. Taking account of the fact that, as already mentioned, the constitutional notion of freedom of science, research and teaching implies the professional independence of scientific community, which is inseparable from the self-governance of schools of higher education, which constitutes one of the fundamental conditions of implementation of autonomy of a school of higher education, it should be noted that self-governance must be implemented through the institutions of schools of higher education, the procedure of forming which should no be the one which will not enable the academic community of the school of higher education to influence adoption of decisions on administration of the school of higher education. For this reason, the institutions of administration of schools of higher education that implement the functions of self-governance of the school of higher education must be formed by the schools of higher education themselves, after they establish on the bases of laws in their by-laws or statutes the ways and procedure of forming these institutions. Only in this way the constitutional implementation of the principle of academic freedom would be guaranteed. Alongside, the imperative of autonomy of schools of higher education that stems from the Constitution would be ensured.

It should be noted that, usually, these institutions of schools of higher education are formed from members of their academic community. Autonomy of schools of higher education implies the right of schools of higher education to provide that not only members of academic community of the particular school of higher education could become members of such institution.

13. Alongside it should be noted that the Constitutional Court has held more than once that autonomy of schools of higher education is inseparable from responsibility and accountability before society; interests of schools of higher education and society must be coordinated.

13.1. The principle of autonomy of institutions of higher education must be coordinated with the principle of responsibility and accountability before society, other constitutional values, with the duty of institutions of higher education to observe the Constitution and laws, with the interaction and coordination of interests of institutions of higher education and society (the Constitutional Court’s ruling of 5 February 2002).

13.2. Autonomy of schools of higher education does not mean that the activity of such schools cannot be regulated by the state. Quite to the contrary, this activity, since it is related, inter alia, with the implementation of human rights and freedoms, as well as with the use of funds of the State Budget, must be subject to regulation and supervision. It stems from the provision of Paragraph 4 of Article 40 of the Constitution whereby the state shall supervise the activities of establishments of teaching and education. However, the right of the state to regulate external relations of schools of higher education may not limit the scientific and educational activity of schools of higher education (the Constitutional Court’s rulings of 20 February 2008, and 20 March 2008).

13.3. The right of the state to regulate external affairs of the institution of higher learning does not contradict the autonomy unless it impairs the freedom of research and teaching in the institution of higher education (the Constitutional Court’s rulings of 27 June 1994 and 5 February 2007).

13.4. The Constitutional Court has already held that when allocating funds for financing the schools of higher education the state has the right to know how these funds shall be used. The school of higher learning which receives funds from the state budget must account for proper use of the received funds, while it is within the discretion of the legislature to establish by law as regards the manner and way of the control over the use of funds (the Constitutional Court’s ruling of 5 February 2002).

14. Having taken into account the aforementioned facts, it should be held that in order to enable the state to implement its obligation to supervise the activity of educational establishments, as well as to ensure coordination of the principle of autonomy of schools of higher education with the principle of responsibility and accountability before society, to guarantee the quality of studies and development of scientific research, in the administrative structure of the school of higher education, as a rule, one must provide for an institution, which performs functions of control and supervisions and the purpose of which is to ensure the responsibility and accountability of the school of higher education before society, but which, however, is not directly related to implementation of the principle of academic freedom. In this context, it should be noted that such an institution, which performs functions of control and supervision and the purpose of which is to ensure the responsibility and accountability of the school of higher education before society, may be formed not only from members of academic community of the particular school of higher education—inter alia, representatives of institutions of the executive power of the state may be appointed to it as well.

It should be held that the legislature, while not denying the principle of autonomy of schools of higher education, may establish by law the ways and procedure of forming the institutions (which perform functions of control and supervisions and the purpose of which is to ensure the responsibility and accountability of the school of higher education before society) within the structure of administration of schools of higher education.

In this context, it should be noted that one may not establish any such legal regulation where the institution, which performs functions of control and supervisions and the purpose of which is to ensure the responsibility and accountability of the school of higher education before society, apart of the functions of control and supervision would also perform the functions of administration of the school of higher education, which are, as already mentioned, assigned to the institutions of administration of schools of higher education, which are usually formed from members of the academic community of the school of higher education and which perform the functions of self-government of the school of higher education.

15. Having taken account of the arguments set forth, the conclusion should be drawn that the provision “<…> the autonomy of a school of higher education is conceived as the right to independently determine and establish in the regulations or statute its organisational and governmental structure <…>” of Item 13 of Section II of the reasoning part of the Constitutional Court’s ruling of the 20 March 2008 means, inter alia, that:

according to the Constitution, the legislature, while not denying the principle of autonomy of schools of higher education, may establish by law the bases of organisational and administrative structure of schools of higher education;

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

representatives of the institutions of the executive power of the state may be appointed to the institutions of schools of higher education which perform functions of control and supervision and the purpose of which is to ensure the responsibility and accountability of the school of higher education before society; the ways and procedure of forming such institutions may be established by law, while not denying the principle of autonomy of schools of higher education, by the legislature.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1 and 61 of the Republic of Lithuania’s Law on the Constitutional Court, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To construe that the provision “<…> the autonomy of a school of higher education is conceived as the right to independently determine and establish in the regulations or statute its organisational and governmental structure <…>” of Item 13 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania (Official Gazette Valstybės žinios, 2008, No. 34-1224, correction Official Gazette Valstybės žinios, 2008, No. 44) of 20 March 2008 means, inter alia, that:

according to the Constitution, the legislature, while not denying the principle of autonomy of schools of higher education, may establish by law the bases of organisational and administrative structure of schools of higher education;

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

representatives of the institutions of the executive power of the state may be appointed to the institutions of schools of higher education which perform functions of control and supervision and the purpose of which is to ensure the responsibility and accountability of the school of higher education before society; the ways and procedure of forming such institutions may be established by law, while not denying the principle of autonomy of schools of higher education, by the legislature.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                     Toma Birmontienė
                                                                     Pranas Kuconis
                                                                     Kęstutis Lapinskas
                                                                     Ramutė Ruškytė
                                                                     Egidijus Šileikis
                                                                     Algirdas Taminskas
                                                                     Romualdas Kęstutis Urbaitis