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On the interpretation of the provisions of the Constitutional Court’s ruling of 14 January 2002 related to funding higher education

Case No. 25/01

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE CONSTRUCTION OF THE PROVISIONS OF ITEMS 6.1, 6.2 AND 7 OF SECTION III OF THE REASONING PART OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 14 JANUARY 2002

18 December 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, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Seimas member Vytenis Povilas Andriukaitis, the petitioner who submitted the petition requesting the construction of the ruling of the Constitutional Court of the Republic of Lithuania of 14 January 2002, and who was the representative of the group of members of the Seimas of the Republic of Lithuania in constitutional justice case No. 25/01

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court Republic of Lithuania, on 16 December 2009, in its public hearing, considered the petition of Seimas member Vytenis Povilas Andriukaitis, requesting the construction of the provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 14 January 2002 in the aspect whether:

state funds are allotted only to state schools of higher education, or whether they also include the funds which are allotted in order to secure the free-of-charge studies of the students who are good at their studies and who study in state schools of higher education;

these funds, which are allotted by the state in order to secure the free-of-charge studies of the citizens who study in schools of higher education and who are good at their studies may be allotted also to those citizens of the Republic of Lithuania, who study in non-state schools of higher education;

the notion “citizens who study in a state school of higher education and who are good at their studies” includes only those citizens who are good at their studies only in a state school of higher education, or whether it also includes the citizens who were good at their studies in the secondary school prior to their entry into the school of higher education;

the criteria of “good learning at a school of higher education” include only those citizens, who study in a state school of higher education, or whether these criteria include also the results achieved by the citizens in secondary schools prior to their entry into a state school of higher education;

– “the one who is good at his studies in a state school of higher education” means that the results of students’ learning must be evaluated while taking account of the assessment received in every session, or whether the assessment results can include a longer period—from the results of finishing secondary studies (inclusive) till the results achieved, for example, during the first two years of studies in a school of higher education;

the provision “the criteria enabling to establish which students can be said to demonstrate good academic results should be established by law” means that these criteria should be established by the legislature or whether these criteria may be established by means of substatutory legal acts approved by the Government or a minister.

The Constitutional Court

has established:

I

1. On 14 January 2002, in constitutional justice case No. 25/01, the Constitutional Court adopted the Ruling “On the Compliance of the Republic of Lithuania’s Law on Approving the Financial Indicators of the 2001 State Budget and Municipal Budgets (Wording of 19 December 2000), the Republic of Lithuania’s Law on the Approval of the Indicators Determining the Size And Levelling of Revenues of Municipal Budgets for 2001, 2002 and 2003 and Article 16 of the Republic of Lithuania’s Law on the State Regulation of Economic Relations in Agriculture with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2002, No. 5-186; hereinafter referred to as the Constitutional Court’s ruling of 14 January 2002).

2. It was recognised in the Constitutional Court’s ruling of 14 January 2002, inter alia, that the Republic of Lithuania’s Law on Approving the Financial Indicators of the 2001 State Budget and Municipal Budgets (wording of 19 December 2000) to the extent that it did not specify allocations for each state higher school separately conflicted with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the principle of the separation of powers entrenched in the Constitution of the Republic of Lithuania.

3. The petitioner requests the construction of the following provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the Constitutional Court’s ruling of 14 January 2002:

6.1. Paragraph 3 of Article 41 of the Constitution refers to state higher schools. Pursuant to Paragraph 2 of Article 40 thereof, non-governmental teaching and educational institutions may be established according to the procedure prescribed by law. These provisions presume that not only state but also non-state higher schools may function in Lithuania. State higher schools have to be allotted state funds that have to be provided for in the state budget.

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6.2. There has to be a balance between the legitimate interests of a person and the needs of both the society and the state. The financial possibilities of the state (including the possibilities of funding higher education) are not and cannot be unlimited. <...>

7. Paragraph 3 of Article 41 of the Constitution establishes the right of every citizen with a good academic progress in a state higher school to free higher education. This right presumes that funds must be provided out of the state budget to guarantee higher education free of charge to citizens who demonstrate good academic progress in state higher schools.

7.1. According to the Constitution, the state must cover tuition for citizens who demonstrate good academic results in case of the following three conditions: 1) the student is a citizen of the Republic of Lithuania; 2) he studies at a state higher school; 3) he demonstrates good academic results, i.e. his academic results meet the established criteria of good academic results.

Pursuant to Paragraph 3 of Article 41 of the Constitution, higher education tuition of citizens who are students at state higher schools and demonstrate good academic results cannot be imposed on these persons themselves in whatever form. Higher education of citizens who are students at state higher schools and demonstrate good academic results is financed by the state. According to the Constitution, the state has a duty to provide for the principles and procedure of allocation of state funds necessary to finance tuition of citizens who are students at state higher schools and demonstrate good academic results, and also to establish control over their legal utilisation.

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7.2. <...> Therefore, the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law.”

It is requested that these provisions be construed in the aspect whether:

state funds are allotted only to state schools of higher education, or whether they also include the funds which are allotted in order to secure the free-of-charge studies of the students who are good at their studies and who study in state schools of higher education;

these funds, which are allotted by the state in order to secure the free-of-charge studies of the citizens who study in schools of higher education and who are good at their studies may be allotted also to those citizens of the Republic of Lithuania, who study in non-state schools of higher education;

the notion “citizens who study in a state school of higher education and who are good at their studies” includes only those citizens who are good at their studies only in a state school of higher education, or whether it also includes the citizens who were good at their studies in the secondary school prior to their entry into the school of higher education;

the criteria of “good learning a school of higher education” include only those citizens, who study in a state school of higher education, or whether these criteria include also the results achieved by the citizens in secondary schools prior to their entry into a state school of higher education;

– “the one who is good at his studies in a state school of higher education” means that the results of students’ learning must be evaluated while taking account of the assessment received in every session, or whether the assessment results can include a longer period—from the results of finishing secondary studies (inclusive) till the results achieved, for example, during the first two years of studies in a school of higher education;

the provision “the criteria enabling to establish which students can be said to demonstrate good academic results should be established by law” means that these criteria should be established by the legislature or whether these criteria may be established by means of substatutory legal acts approved by the Government or a minister.

This petition was received at the Constitutional Court on 25 June 2009.

II

At the Constitutional Court’s hearing, Seimas member V. P. Andriukaitis, who submitted the petition requesting the construction of some provisions of the Constitutional Court’s ruling of 14 January 2002, explained the reasons which were set forth in the petition and which prompted him to apply to the Constitutional Court, presented additional explanations and answered the questions given by the justices.

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.

Seimas member V. P. Andriukaitis was the representative of a group of members of the Seimas, the petitioner, in constitutional justice case No. 25/01 (he requests the construction of the provisions of the Constitutional Court’s ruling of 14 January 2002, which was adopted in the said case). Thus, under Article 61 of the Law on the Constitutional Court, V. P. Andriukaitis has the right to request that the Constitutional Court construe the provisions of the Constitutional Court’s ruling of 14 January 2002.

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 the construction of rulings and other final acts of the Constitutional Court is to reveal the contents and meaning of 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; the operative part of a ruling of the Constitutional Court 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, among other things, means 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 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.

It has also been held in the jurisprudence of the Constitutional Court more than once that 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 rulings and other final acts of the Constitutional Court (the Constitutional Court’s decisions of 6 December 2007, 1 February 2008, 4 July 2008, 15 January 2009, 15 May 2009, 28 October 2009, and 6 November 2009).

7. It should also be noted that the uniformity and continuity of the official constitutional doctrine implies a 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 another final act of the Constitutional Court the corresponding official constitutional doctrine was formulated. The Constitutional Court has held more than once that 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, 15 May 2009, 6 October 2009, and 6 November 2009).

II

1. The provisions of the Constitutional Court’s ruling of 14 January 2002, the construction of which is requested, are in Items 6–7 of Section III of the Constitutional Court’s ruling of 14 January 2002, wherein it is held:

6. According to Paragraph 3 of Article 41 of the Constitution, every person has the right to higher education according to their individual abilities.

6.1. Paragraph 3 of Article 41 of the Constitution refers to state higher schools. Pursuant to Paragraph 2 of Article 40 thereof, non-governmental teaching and educational institutions may be established according to the procedure prescribed by law. These provisions presume that not only state but also non-state higher schools may function in Lithuania. State higher schools have to be allotted state funds that have to be provided for in the state budget.

The constitutional provision that higher education is available to everyone according to his abilities means that both state and non-state higher schools established according to the procedure prescribed by law, the entire system of higher education establishments, have to be accessible to every person. This provision also means that those who seek higher education cannot be subjected to requirements that are based on criteria other than their abilities. The said provision is closely related to the principle of equality of individuals enshrined in Article 29 of the Constitution, to the provision contained in Paragraph 2 thereof that a person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.

It should be noted that state institutions have the duty not only not to impose any requirements inconsistent with the constitutional principle of equality of persons on those who seek higher education, but also to ensure that higher schools do not impose such requirements themselves. The law must provide for such legal regulation that would ensure everyone an opportunity to seek higher education according to their individual abilities.

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

It follows from Paragraph 3 of Article 41 of the Constitution that if a state higher school is able to provide higher education in accordance with the requirements set by the state not only to the persons whose studies are financed by the state but also to those who seek higher education in a state higher school not at the expense of the state, then the legal regulation obstructing or even prohibiting a state higher school from admitting these persons to that higher school cannot be established.

7. Paragraph 3 of Article 41 of the Constitution establishes the right of every citizen with a good academic progress in a state higher school to free higher education. This right presumes that funds must be provided out of the state budget to guarantee higher education free of charge to citizens who demonstrate good academic progress in state higher schools.

7.1. According to the Constitution, the state must cover tuition for citizens who demonstrate good academic results in case of the following three conditions: 1) the student is a citizen of the Republic of Lithuania; 2) he studies at a state higher school; 3) he demonstrates good academic results, i.e. his academic results meet the established criteria of good academic results.

Pursuant to Paragraph 3 of Article 41 of the Constitution, higher education tuition of citizens who are students at state higher schools and demonstrate good academic results cannot be imposed on these persons themselves in whatever form. Higher education of citizens who are students at state higher schools and demonstrate good academic results is financed by the state. According to the Constitution, the state has a duty to provide for the principles and procedure of allocation of state funds necessary to finance tuition of citizens who are students at state higher schools and demonstrate good academic results, and also to establish control over their legal utilisation.

On the other hand, the Constitution does not contain any prohibition for the state against undertaking higher financial obligations, in accordance with its possibilities, to students of higher schools. The undertaking of higher financial obligations than implied in the constitutional provision stipulating that citizens who demonstrate good academic results shall be guaranteed education free of charge in state higher schools, should not deny the striving for a just and harmonious society enshrined in the Constitution.

7.2. The constitutional provision that citizens who demonstrate good academic results shall be guaranteed education free of charge in state higher schools means that a citizen who demonstrated good academic results has the right that his education in a state higher school be financed by the state. According to the Constitution, it is financed out of the funds of the state budget. Therefore, the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law.”

2. Thus, in the said Items 6–7 of Section III of the Constitutional Court’s ruling of 14 January 2002, the construction of the provision of which is requested by the petitioner, the Constitutional Court, while construing the provisions of Paragraph 3 of Article 41 of the Constitution, interpreted, inter alia, the duty of the state to finance, from the state budget, state schools of higher education and the studies of the citizens who are good at their studies.

3. The petitioner, while requesting the construction of what is the meaning of the duty of the state to finance the studies of citizens who are good at their studies also requests the construction of whether the results of the learning of the citizens at the secondary school may have any influence in deciding whether these persons should be regarded as being good at their studies in a state school of higher education.

It needs to be noted that in the constitutional justice case, wherein the 14 January 2002 ruling was adopted, the Constitutional Court did not investigate whether the results of the learning of the citizens at the secondary school may have any influence in deciding whether these persons should be regarded as being good at their studies in a state school of higher education, therefore, this is not the matter of construction in this decision.

4. Thus, subsequent to the petition of the petitioner, the Constitutional Court will construe whether the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 mean that:

state funds allotted to state schools of higher education include also the funds which are allotted in order to secure the free-of-charge studies of the students who are good at their studies in state schools of higher education;

the funds, which are allotted by the state in order to secure the free-of-charge studies of the citizens who are good at their studies in state schools of higher education may be allotted also to those citizens of the Republic of Lithuania, who study in non-state schools of higher education;

only the citizens whose learning complies with the criteria of good studies at a school of higher education are citizens who are good at their studies in a state school of higher education, whose free-of-charge studies are guaranteed; the results of studies of such citizens must be assessed after each session, or whether the assessment results can include a longer period;

the criteria enabling to establish which students are good at their studies should be established by law, but not by means of substatutory legal acts approved by the Government or a minister.

5. The Constitutional Court construed the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 while interpreting Paragraph 3 of Article 41 of the Constitution which provides: “Higher education shall be accessible to everyone according to his individual abilities. Citizens who are good at their studies shall be guaranteed education at State schools of higher education free of charge.”

6. It has been mentioned that provisions of a ruling of the Constitutional Court must be construed 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 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 in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions, as well as with other provisions of the Constitution.

7. The official constitutional doctrine of free-of-charge studies of citizens who are good at their studies at state schools of higher education was developed not only in the Constitutional Court’s ruling of 14 January 2002, but also in other acts of the Constitutional Court, therefore, the provisions of the Constitutional Court’s ruling of 14 January 2002 should be construed while taking account of the entire official constitutional doctrinal context.

8. It has been mentioned that the petitioner requests the construction of whether the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 mean, inter alia, that state funds allotted to state schools of higher education include also the funds which are allotted in order to secure the free-of-charge studies of the students who are good at their studies in state schools of higher education.

9. As mentioned before, inter alia, the following was held in the Constitutional Court’s ruling of 14 January 2002:

– “State higher schools have to be allotted state funds that have to be provided for in the state budget” (Item 6.1 of Section III of the reasoning part).

– “Paragraph 3 of Article 41 of the Constitution establishes the right of every citizen with a good academic progress in a state higher school to free higher education. This right presumes that funds must be provided out of the state budget to guarantee higher education free of charge to citizens who demonstrate good academic progress in state higher schools” (Item 7 of Section III of the reasoning part).

– “Higher education of citizens who are students at state higher schools and demonstrate good academic results is financed by the state” (Item 7.1 of Section III of the reasoning part).

– “The constitutional provision that citizens who demonstrate good academic results shall be guaranteed education free of charge in state higher schools means that a citizen who demonstrated good academic results has the right that his education in a state higher school be financed by the state. According to the Constitution, it is financed out of the funds of the state budget” (Item 7.2 of Section III of the reasoning part).

10. The provisions of the Constitutional Court’s ruling of 14 January 2002, which are specified by the petitioner, should be construed inseparably also from the provisions of Item 8 of Section III of the reasoning part of the said ruling, wherein it was, inter alia, held: “While providing for state budget funds for state higher schools, the needs of the society and the state ensured by these schools, their existing and future programs, also their way of ensuring adherence to the set teaching standards, the correspondence of the content and level of teaching to the qualification recognised by the state, state obligations to these schools etc. should be considered.”

11. The duty of the state to finance state schools of higher education, inter alia, the studies of citizens learning in them, was also interpreted by the Constitutional Court in the ruling of 20 March 2008 wherein it was, inter alia, held:

– “The State Budget funds allocated to schools of higher education also encompass the funds for financing the studies of the citizens studying in state schools of higher education, who are good at their studies. However, it needs to be noted that <…> the Constitution guarantees higher education covered by state funds not to all citizens who are good at their studies in state schools of higher education <…> but only to those <…> who are prepared in order to meet the demand for specialists of corresponding areas (fields), which is established by the state. It is namely for financing their studies that one has to provide the necessary funds in the State Budget. If the learning of these citizens does not correspond to the criteria of good learning established by law, the state does not have to finance their studies”;

– “While submitting the requisition to a school of higher education to admit a certain number of students, the state must guarantee that the State Budget will provide for corresponding funds and these state funds will cover their expenses of studies, of course, providing their learning will correspond to the criteria of good learning established by law.”

12. Taking account of the aforesaid doctrinal provisions, the conclusion should be drawn that the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 mean, inter alia, that funds from the State Budget must be allocated to state schools of higher education, inter alia, the funds necessary in order that the free-of-charge education would be guaranteed to the citizens who are learning at state schools of higher education, who are prepared in order to meet the demand of specialists of corresponding areas (fields), which is established by the state, and whose learning complies with the criteria of good learning established by law.

13. It has been mentioned that the petitioner requests the construction of whether the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 mean, inter alia, that the funds, which are allotted by the state in order to secure the free-of-charge studies of the citizens who are good at their studies in state schools of higher education may be allotted also to those citizens of the Republic of Lithuania, who study in non-state schools of higher education.

14. In this context, it needs to be noted that, as mentioned before, Item 6 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002, the construction of the provisions of which is requested by the petitioner, held the following: “Paragraph 3 of Article 41 of the Constitution refers to state higher schools. Pursuant to Paragraph 2 of Article 40 thereof, non-governmental teaching and educational institutions may be established according to the procedure prescribed by law. These provisions presume that not only state but also non-state higher schools may function in Lithuania. <...> The constitutional provision that higher education is available to everyone according to his abilities means that both state and non-state higher schools established according to the procedure prescribed by law, the entire system of higher education establishments, have to be accessible to every person.”

15. The Constitutional Court, while interpreting the duty of the state to finance state schools of higher education from the State Budget, held the following in its ruling of 20 March 2008:

– “Under commissioning by the state, specialists of certain areas (fields) may also be prepared in non-state schools of higher education by funds of the State Budget. In addition, it is permitted to support citizens, who study in schools of higher education of other states, by funds of the State Budget.”

– “The law may not establish any such model of financing higher education, which would not be based upon a balanced assessment of the needs of society and the state and the financial capabilities of the state, where the state would clearly obviously be unable to implement such model; the establishment of such model would be in conflict, inter alia, with the constitutional imperative of social harmony and would not allow the state to perform its various other obligations.”

As mentioned before, in its ruling of 20 March 2008, the Constitutional Court also held that, “while submitting the requisition to a school of higher education to admit a certain number of students, the state must guarantee that the State Budget will provide for corresponding funds and these state funds will cover their expenses of studies, of course, providing their learning will correspond to the criteria of good learning established by law”.

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

17. Taking account of the arguments set forth and the mentioned doctrinal provisions, the conclusion should be drawn that the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 mean, inter alia, that: upon assessing the needs of society and the state and the financial capabilities of the state, in cases when specialists of corresponding areas (fields) cannot be prepared in state schools of higher education due to objective circumstances, they may be prepared also in non-state schools of higher education upon requisition of the state and from funds of the State Budget; in such a case the state must guarantee that the expenses of learning (studies) of such specialists will be covered by state funds, in cases the learning of the said individuals will meet the criteria of good learning established by law.

18. It has been mentioned that the petitioner requests the construction of whether the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the Constitutional Court’s ruling of 14 January 2002 mean, inter alia, that: only the citizens whose learning complies with the criteria of good studies at a school of higher education are citizens who are good at their studies in a state school of higher education, whose free-of-charge studies are guaranteed; the results of studies of such citizens must be assessed after each session, or whether the assessment results can include a longer period.

19. In the course of the construction of the provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the Constitutional Court’s ruling of 14 January 2002 which were specified by the petitioner, it needs to be noted that the Constitution does not provide explicitly which citizens should regarded as the ones who are good at their studies.

The Constitutional Court, while interpreting the provision of Paragraph 3 of Article 41 of the Constitution that the state has a duty to guarantee free-of-charge education at state schools of higher education to the citizens who are good at their studies, has held that:

– “According to the Constitution, the state must cover tuition for citizens who demonstrate good academic results in case of the following three conditions: 1) the student is a citizen of the Republic of Lithuania; 2) he studies at a state higher school; 3) he demonstrates good academic results, i.e. his academic results meet the established criteria of good academic results” (the Constitutional Court’s rulings of 14 January 2002 and 20 March 2008);

– “a citizen who is good at his studies should be regarded the one who ‘is good at his studies, i.e. his learning meets the established criteria of learning well’” (the Constitutional Court’s rulings of 14 January 2002 and 20 March 2008);

– “the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law” (the Constitutional Court’s rulings of 14 January 2002, 7 June 2007, and 20 March 2008);

– “it is impossible to construe the constitutional provision whereby citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge, as meaning that, purportedly, the Constitution guarantees higher education covered by state funds to all citizens who are good at their studies in state schools of higher education, no matter under what conditions they were admitted to such schools, i.e. also to those citizens who are good at their studies, who, however, in the course of admittance to a corresponding state school of higher education were not admitted to the places whose number announced in advance conforms to the obligation of the state to fund the preparation of a certain number of specialists, and who were admitted to study at the state school of higher education at their own expense” (the Constitutional Court’s ruling of 20 March 2008).

20. As mentioned before, in its ruling of 20 March 2008, the Constitutional Court, inter alia, held: “the Constitution guarantees higher education covered by state funds not to all citizens who are good at their studies in state schools of higher education <…> but only to those <…> who are prepared in order to meet the demand for specialists of corresponding areas (fields), which is established by the state. <…> If the learning of these citizens does not correspond to the criteria of good learning established by law, the state does not have to finance their studies.”

21. The said constitutional provisions imply that free-of-charge education is guaranteed at state schools of higher education to the citizens who study subsequent to the requisition by the state in order to meet the demand of specialists of corresponding areas (fields), which is established by the state, provided the learning of such citizens corresponds to the criteria of good learning established by law, and, also, that the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law.

22. In this context, it needs to be mentioned that, as it has been held in rulings of the Constitutional Court more than once, under Paragraph 3 of Article 40 of the Constitution, schools of higher education shall be granted autonomy, which includes, inter alia, the right independently to establish the procedure of science and studies as well as syllabi, and to decide other issues related thereto.

In the course of the establishment of the procedure of science and studies, the procedure for assessment of the knowledge acquired in a state school of higher education must be established as well. Such a procedure must be known in advance, it must be clear and objective.

It needs to be noted that the knowledge of the individuals who learn at state schools of higher education must be assessed on a regular basis, within the corresponding periods of learning at these schools. Legal acts can name these periods in a varied manner. As a rule, the basic checking of the knowledge of the individuals who study in Lithuanian state schools of higher education as regards the studied subjects is regularly conducted after each period of academic learning—semester.

It needs to be mentioned that the procedure (established in the state school of higher education) of assessment of the knowledge acquired in the state school of higher education must, inter alia, be such so that on the grounds of this procedure it would be possible to assess whether the results of the learning of the citizens studying in state schools of higher education subsequent to the requisition of the state (i.e. those who are prepared in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) correspond to the criteria of good learning established by law.

It needs to be noted that the citizens who are good at their studies in state schools of higher education and who study in state schools of higher education subsequent to the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is established by the state) must be guaranteed the education free of charge as long as their learning corresponds to the criteria of good learning established by law.

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

23. Taking account of the arguments set forth and the mentioned doctrinal provisions, the conclusion should be drawn that the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 mean, inter alia, that:

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

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

24. It has been mentioned that the petitioner requests the construction of whether the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 mean that the criteria enabling to establish which students are good at their studies should be established by law, but not by means of by substatutory legal acts issued by the Government or a minister.

25. It needs to be noted that establishment of the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, is directly related to the guarantee of the implementation of the right of a human being (i.e. a citizen who is good at his studies in a state school of higher education) to seek to acquire higher education at a state school of higher education free of charge. In this context it needs to be mentioned that in its rulings of 13 December 2004 and 5 May 2007, the Constitutional Court held that “according to the Constitution the legal regulation related to defining the content of human rights and freedoms and consolidating the guarantees of their implementation may be established only by means of a law”.

26. It also needs to be noted that, as mentioned before, in its ruling of 14 January 2002, the Constitutional Court held: “<...> the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law.” The same was also reiterated in the Constitutional Court’s rulings of 7 June 2007 and 20 March 2008.

27. Taking account of the arguments set forth, the conclusion should be drawn that the specified provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the of the Constitutional Court’s ruling of 14 January 2002 mean, inter alia, that the criteria enabling to establish which students are good at their studies must be established only by means of a law.

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

decision:

To construe that the following provisions of Items 6.1, 6.2 and 7 of Section III of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 14 January 2002 (Official Gazette Valstybės žinios, 2002, No. 5-186):

6.1. Paragraph 3 of Article 41 of the Constitution refers to state higher schools. Pursuant to Paragraph 2 of Article 40 thereof, non-governmental teaching and educational institutions may be established according to the procedure prescribed by law. These provisions presume that not only state but also non-state higher schools may function in Lithuania. State higher schools have to be allotted state funds that have to be provided for in the state budget.

<…>

6.2. There has to be a balance between the legitimate interests of a person and the needs of both the society and the state. The financial possibilities of the state (including the possibilities of funding higher education) are not and cannot be unlimited. <…>

7. Paragraph 3 of Article 41 of the Constitution establishes the right of every citizen with a good academic progress in a state higher school to free higher education. This right presumes that funds must be provided out of the state budget to guarantee higher education free of charge to citizens who demonstrate good academic progress in state higher schools.

7.1. According to the Constitution, the state must cover tuition for citizens who demonstrate good academic results in case of the following three conditions: 1) the student is a citizen of the Republic of Lithuania; 2) he studies at a state higher school; 3) he demonstrates good academic results, i.e. his academic results meet the established criteria of good academic results.

Pursuant to Paragraph 3 of Article 41 of the Constitution, higher education tuition of citizens who are students at state higher schools and demonstrate good academic results cannot be imposed on these persons themselves in whatever form. Higher education of citizens who are students at state higher schools and demonstrate good academic results is financed by the state. According to the Constitution, the state has a duty to provide for the principles and procedure of allocation of state funds necessary to finance tuition of citizens who are students at state higher schools and demonstrate good academic results, and also to establish control over their legal utilisation.

<…>

7.2. <…> Therefore, the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law”

mean, inter alia, that:

funds from the State Budget must be allocated to state schools of higher education, inter alia, the funds necessary in order that the free-of-charge education would be guaranteed to the citizens who are learning at state schools of higher education, who are prepared in order to meet the demand of specialists of corresponding areas (fields), which is established by the state, and whose learning complies with the criteria of good learning established by law;

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

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

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

the criteria enabling to establish which students are good at their studies must be established only by means of a law.

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

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

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