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On the number of students and their financing in state schools of higher education

Case No. 28/07-29/07

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

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 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

20 March 2008
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Aušra Rauličkytė and Milda Vainiutė, advisors to the President of the Republic, acting as the representatives of the President of the Republic of Lithuania, a petitioner, representing the President of the Republic of Lithuania in the part of the case subsequent to petition No. 1B-36/2007 submitted by the said petitioner

Seimas member Gintaras Steponavičius, acting as the representative of a group of members of the Seimas of the Republic of Lithuania, a petitioner, representing this group in the part of the case subsequent to petition No. 1B-37/2007 submitted by the said petitioner

Tomas Daukantas, Head of the Legal Division of the Ministry of Education and Science of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, a party concerned, representing the Government of the Republic of Lithuania in the part of the case subsequent to petition No. 1B-36/2007 submitted by the President of the Republic of Lithuania

Vydas Gedvilas, Deputy Speaker of the Seimas of the Republic of Lithuania, acting as the representative of the Seimas of the Republic of Lithuania, a party concerned, representing the Seimas of the Republic of Lithuania in the part of the case subsequent to petition No. 1B-37/2007 submitted by a group of members of the Seimas of the Republic of Lithuania, a petitioner in the case at issue

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 15 March 2008, considered case No. 28/07-29/07 subsequent to the following:

1) the petition of the President of the Republic of Lithuania, a 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 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 (petition No. 1B-36/2007);

2) the petition of a group of members of the Seimas of the Republic of Lithuania, consisting of Gintaras Steponavičius, Petras Auštrevičius, Kęstutis Glaveckas, Eligijus Masiulis, Vytautas Grubliauskas, Dalia Teišerskytė, Algis Kašėta, Audrius Endzinas, Raimundas Palaitis, Jonas Čekuolis, Algirdas Monkevičius, Vaclovas Karbauskis, Nijolė Steiblienė, Alvydas Sadeckas, Henrikas Žukauskas, Vaclavas Stankevičius, Algis Čaplikas, Andrius Kubilius, Jurgis Razma, Vilija Aleknaitė Abramikienė, Vincė Vaidevutė Margevičienė, Vida Marija Čigriejienė, Rasa Juknevičienė, Julius Dautartas, Audronius Ažubalis, Egidijus Vareikis, Saulius Pečeliūnas, Edmundas Pupinis, Donatas Jankauskas, and Rimantas Dagys, a petitioner, requesting an investigation into whether Paragraph 4 of Article 47 and Paragraph 4 of Article 58 of the Republic of Lithuania’s Law on Higher Education are not in conflict with Paragraph 3 of Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article 46 of the Constitution of the Republic of Lithuania; whether Paragraph 5 of Article 47 and Paragraph 1 of Article 61 of the Republic of Lithuania’s Law on Higher Education are not in conflict with Paragraph 1 of Article 29, Paragraph 3 of Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article 46 of the Constitution of the Republic of Lithuania; whether the Republic of Lithuania’s Law on Higher Education, inter alia, Article 57 of this law, to the extent that, according to the petitioner, it does not establish the principles of distribution of funds of the State Budget among schools of higher education, while the establishment of these principles is commissioned to the Government of the Republic of Lithuania, is not in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and the separation of powers; whether Paragraphs 3, 4, and 6 of Article 58 of the Republic of Lithuania’s Law on Higher Education are not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of Article 46 of the Constitution of the Republic of Lithuania (petition No. 1B-37/2007).

By the Constitutional Court’s Decision “On Joining Petitions into One Case” of 14 November 2007, petition No. 1B-36/2007 submitted by the President of the Republic, a petitioner (case No. 28/07) and petition No. 1B-37/2007 submitted by a group of members of the Seimas, a petitioner (case No. 29/07) were joined into one case and it was given reference No. 28/07-29/07.

The Constitutional Court

has established:

I

1. On 22 October 2007, the President of the Republic, a petitioner, issued the Decree (No. 1K-1138) “On Applying to the Constitutional Court of the Republic of Lithuania” (hereinafter also referred to as the 22 October 2007 decree (No. 1K-1138) of the President of the Republic), in which a petition is set forth, requesting the Constitutional Court to investigate 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 Institutions of Science and Studies (hereinafter referred to as the Methods) as approved by the Government Resolution (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; hereinafter also referred to as government resolution No. 1272 of 11 October 2004) are not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution. This petition of the petition was received at the Constitutional Court on 22 October 2007. By its Decision “On accepting the petition of a petitioner” of 23 October 2007, the Constitutional Court accepted this petition of the President of the Republic, a petitioner. The announcement of the President of the Constitutional Court about the acceptance of the petition of the President of the Republic, a petitioner, was officially published in the official gazette “Valstybės žinios” on 25 October 2007. Under Paragraph 4 of Article 106 of the Constitution, and Paragraph 2 of Article 26 of the Law on the Constitutional Court, the validity of Items 3 and 14 of the Methods as approved by government resolution No. 1272 of 11 October 2004 (wording of 5 October 2006) is suspended until the ruling of the Constitutional Court concerning this case is published.

2. A group of members of the Seimas, a petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether: Paragraph 4 of Article 47 and Paragraph 4 of Article 58 of the Law on Higher Education (hereinafter also referred to as the Law) are not in conflict with Paragraph 3 of Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article 46 of the Constitution; whether Paragraph 5 of Article 47 and Paragraph 1 of Article 61 of the Law on Higher Education are not in conflict with Paragraph 1 of Article 29, Paragraph 3 of Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article 46 of the Constitution; whether the Law on Higher Education, inter alia, Article 57 of this law, to the extent that, according to the petitioner, it does not establish the principles of distribution of funds of the State Budget among schools of higher education, while the establishment of these principles is commissioned to the Government, is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principles of a state under the rule of law and the separation of powers; whether Paragraphs 3, 4, and 6 of Article 58 of the Law on Higher Education are not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of Article 46 of the Constitution. This petition of the group of Seimas members, a petitioner, was received at the Constitutional Court on 5 November 2007.

II

1. The petition of the President of the Republic, a petitioner, is substantiated by the following arguments.

1.1. The provision of the Constitution which consolidates the right of the citizens who are good at their studies to acquire higher education free of charge obligates the state to establish clear criteria and a procedure, according to which the necessary funds would be allocated in order that the citizens who are good at their studies would acquire higher education, also to guarantee that one allocates funds as much as it is “realistically necessary” in order to acquire higher education. Since, as it is maintained by the President of the Republic, a petitioner, it is the Government that establishes the number of students who are financed, either fully or in part, by the funds of the State Budget, while the funds allocated to institutions of studies are computed on the grounds of the price of studies of one student, then, in the opinion of the petitioner, the State Budget should provide for precisely the amount of the funds that are necessary for the payment for the studies of students who are financed, either fully or in part, by the funds of the State Budget and whose admittance number is established by the Government. However, Item 14 of the Methods does not consolidate such a requirement, however, it entrenches the principle whereby funds of the State Budget are distributed among schools of higher education in proportion to the need for the funds, which is computed by means of the Methods; due to this, less funds could be allocated to institutions of studies from the State Budget than it is necessary in order to pay for the studies of the number (which is established by the Government) of the students who are financed, either fully or in part, by the funds of the State Budget. In the opinion of the petitioner, such legal regulation violates the constitutional right of the citizens, who are good at their studies, to acquire higher education free of charge, which is consolidated in Paragraph 3 of Article 41 of the Constitution; also, the constitutional duty of the state to allocate state schools of higher education as much funds as it is necessary in order to guarantee higher education to the citizens, who are good at their studies, free of charge, is not discharged; in the opinion of the petitioner, upon establishment of such legal regulation, the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution is violated.

1.2. According to the President of the Republic of Lithuania, the petitioner, the criteria of computation of the funds allocated for studies, which are established in Item 3 of the Methods, are not enough that in the course of computation of the funds allocated to individual institutions of studies it would be possible to take account of the fact how the corresponding institutions of studies secure the adherence to established standards of teaching, and of the fact how the content and level of education and teaching therein conform to the qualification recognised by the state; the established criteria do not permit the differentiation, according to the level of quality of studies, of the amount of funds necessary to finance the programmes executed by institutions of studies, and this virtually distorts the right (which is entrenched in the Constitution) of the citizens who are good at their studies to acquire higher education, and violates the right of autonomy of schools of higher education.

2. The petition of a group of members of the Seimas, a petitioner, is substantiated by the following arguments.

2.1. Paragraph 4 of Article 47 of the Law on Higher Education consolidates the right of the Government to establish the permissible total maximum number of students admitted to schools of higher education. In the opinion of the group of members of the Seimas, a petitioner, this prevents state schools of higher education from admitting those persons, who seek to acquire higher education other than at the expense of the state, while this is in conflict with Paragraph 3 of Article 41 of the Constitution, according to which (as it was construed by the Constitutional Court’s ruling of 14 January 2002) it is not permitted to establish any such legal regulation whereby a state school of higher education is obstructed or even prohibited from admitting persons who seek to acquire higher education other than at the expense of the state, providing the state school of higher education has any such possibilities. If the activity of state schools of higher education is limited in the absence of any reasonable interest of society, the right of autonomy of schools of higher education is violated and the interest of the consumers to acquire higher education by their own funds is unreasonably limited.

2.2. Paragraph 5 of Article 47 and Paragraph 1 of Article 61 of the Law establish the legal regulation whereby persons, save those specified in these paragraphs, who agree to pay the full price of studies, may not be admitted to state schools of higher education to study at their own expense. In the opinion of the group of members of the Seimas, a petitioner, such a limitation is in conflict with Paragraph 3 of Article 41 of the Constitution, whereby, as mentioned before, it is not permitted to establish any such legal regulation whereby a state school of higher education is obstructed or even prohibited from admitting persons who seek to acquire higher education other than at the expense of the state, providing the state school of higher education has any such possibilities. In addition, according to the petitioner, due to such legal regulation there is not any opportunity to study according to a programme of full-time studies of the first cycle, in case these are the first and the only studies for which the full price is paid, although the persons studying according to the study programme of the same or lower cycle which they have completed at a state school of higher education, if they paid the full price for not more than half of the credits of the completed study programme (Item 1 of Paragraph 1 of Article 61 of the Law), as well as persons who simultaneously study according to two or more study programmes of the same cycle, if their studies according to at least one of these study programmes are fully or partly paid with the state budgetary funds (Item 2 of Paragraph 1 of Article 61 of the Law) enjoy such opportunity; the fact that different opportunities to acquire higher education by one’s own funds were unreasonably established, when account is taken of the education acquired before or education which is being acquired at that time, violates the principle of equality of persons entrenched in Article 29 of the Constitution.

2.3. According to the group of members of the Seimas, a petitioner, after Article 57 of the Law consolidated the right of the Government to confirm the Methods and upon mentioning several constituent parts thereof, the principled rules whereby funds are distributed among state schools of higher education remained undefined; the Government was given almost absolute freedom to establish the principles following which the funds are distributed among the schools. However, higher education is a constitutional institute and, in addition, the Constitution guarantees the right of autonomy of schools of higher education; when the rules for the state financing of schools of higher education are established by means of something other than laws, there is too much indefiniteness, which increases the dependence of schools of higher education on state institutions and conjuncture decisions. Therefore (among other things, by heeding the constitutional principles of a state under the rule of law and the separation of powers, as well as the rules of hierarchy of legal acts), the principles of distribution of funds among state schools of higher education should be established not in substatutory legal acts, but in a law; substatutory legal acts should only detail the provisions of laws and the procedure of their implementation.

2.4. Under Paragraph 4 of Article 58 of the Law, the study price for citizens may not exceed the study expenses. In the opinion of the group of members of the Seimas, the petitioner, thus, the state undertook not only the regulation of allocation of funds necessary for the students who are good at their studies, but also the financing of studies of the students who study at their own expense. It violates the right of autonomy of schools of higher education, which is guaranteed in Article 40 of the Constitution, since such a limitation on autonomy of schools of higher education should be substantiated by clear arguments of public expediency and necessity, meanwhile, there are no sufficient arguments substantiating the limitation on the opportunities to provide study services by state schools of higher education and to earn additional income, and the limitation on the opportunities to provide studies of higher level, which are thus more expensive. Therefore, the limitation on the right of state schools of higher education to independently establish the price of studies for which provision of study services would be cost-efficient, decreases or even abolishes opportunities and incentives to provide study services for a fee and violates Paragraph 3 of Article 41 of the Constitution, as well as Paragraph 5 of Article 46 thereof whereby the state has a duty to defend the interest of consumers.

2.5. Paragraphs 3, 4 and 6 of Article 58 of the Law consolidate a different procedure for establishing the price of studies in schools of higher education: in state schools of higher education it is established according to centralised rules, while in non-state schools it is determined by free agreement. In the opinion of the group of members of the Seimas, it limits the opportunities of state schools of higher education to compete with non-state schools of higher education under equal conditions for persons who are prepared to pay the full price of studies themselves, and it violates the principle of equality of all persons entrenched in Paragraph 1 of Article 29 of the Constitution, as well as the principle of fair competition entrenched in Paragraph 4 of Article 46 thereof.

III

1. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representative of the Government, a party concerned, who was T. Daukantas, in which it is maintained that Items 3 and 14 of the Methods are not in conflict with the Constitution. The position of T. Daukantas, the representative of the Government, a party concerned, is substantiated by the following arguments.

1.1. The law consolidates the duty of the Government to confirm the Methods and points out as to what funds must be provided in the Methods. The Methods enable to properly compute the need of the funds to be allocated to schools of higher education and to establish the principles by following which, by taking account of the financial capacities of the state, the State Budget funds provided for studies are distributed. The Law specifies as to which funds must be counted in study expenses, but it does not specify how they should be distributed. Therefore, in the opinion of the representative of the Government, a party concerned, the Government has the right to decide how to compute the need of funds and which methods to apply in distributing these funds among corresponding areas; the Government can also establish the rule of proportionate distribution of funds among schools of higher education, which does not at all deny an opportunity to provide allocation of as much funds in the State Budget in order to finance these schools as it is necessary in order to pay for the studies of the number (which is established by the Government) of the students who are financed, either fully or in part, by the funds of the State Budget; when such rule is followed, it is possible to ensure the right equal to all persons to properly financed higher education.

1.2. The criteria (computation of study expenses according to the field, cycle and form of the studies) established in Item 3 of the Methods are in conformity to the criteria established in the Law on Higher Education. For instance, Article 54 of the Law provides that state budgetary funds appropriated for a school of higher education must be linked with the appropriate programmes and the results of assessment of school of higher education activities. The criteria established in Item 3 if the Methods are linked with quality requirements, since in schools of higher education sequential studies are executed under the studies programmes which are included in the Register of Study and Training Programmes and the quality of which is periodically assessed. The Ministry of Education and Science is empowered to organise and coordinate accreditation of programmes of studies of higher education so that the adherence to educational standards would be secured and only such programmes of studies would be financed, which are in conformity to the standards of education. According to T. Daukantas, if the programmes of studies that were registered and positively assessed under established procedure were financed in a different manner, the quality of studies would deteriorate, and there would not be any conditions for the acquisition of good-quality higher education. The allocation of the State Budget funds (which is provided for in the Law) according to the results of assessment of the activity of the school of higher education is also implemented. For instance, the Methods provide that the amount of allocated funds of the State Budget depends on the scientific and artistic activities executed by the schools of higher education. Thus, the funds for studies can be computed according to various criteria, which are in conformity to the provisions of the Law, however, these criteria have to allow a proper computation of the need for study funds, which corresponds to real expenses for the studies; according to the representative of the representative of the Government, a party concerned, the criteria established in Item 3 of the Methods are precisely the ones permitting doing so.

2. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Seimas member V. Gedvilas, the representative of the Seimas, a party concerned, wherein it is maintained that the impugned provisions of Articles 47, 57, 58, and 61 of the Law are not in conflict with the Constitution. The position of the representative of the Seimas, a party concerned, is substantiated by the following arguments.

2.1. The autonomy of schools of higher education entrenched in the Constitution implies independence of certain spheres of activity of schools of higher education from the control by the executive, however, this autonomy is relative and must be coordinated with the principle of responsibility and accountability to the state and society, and with the duty of schools of higher education to observe the Constitution and laws. The purpose of founding a school of higher education is not autonomy as such, but rather the striving to meet the needs of society in the sphere of education. Autonomy is only a means assisting a school of higher education to attain the objectives raised to it in the sphere of science and education.

While regulating the conditions of activity of state schools of higher education, the legislature should properly secure the interest of the entire society and those who are studying so that the conditions of studies arranged in state schools of higher education, as well as the acquired professional qualification, would meet all established requirements. When the states establishes the total maximum number of students admitted to schools of higher education, not only the need of society to have specialist of various areas with higher education, which is determined by state educational and occupational policy, is consolidated, but also the legitimate interest and expectation of the persons who were admitted to their studies, whereby the studies will meet all quality requirements, would be guaranteed.

While assessing the doubts of the petitioner whether when the state establishes the total maximum number of students admitted to schools of higher education the interests of consumers are not violated, the representative of the Seimas, a party concerned, noted that the interests of consumers are not absolute ones, that there should be a balance between the legitimate interests of a human being and the interests and capabilities of society and the state, i.e. the interest of a human being, who implements his right to higher education, has to be coordinated with the capabilities of the state to ensure higher education, and with the interests of other people to acquire higher education.

2.2. According to the representative of the Seimas, a party concerned, Items 1 and 2 of Paragraph 1 of Article 61 of the Law on Higher Education are not in conflict with Paragraph 1 of Article 29 of the Constitution and the principle of autonomy of schools of higher education, since the persons who are already with higher education, are enrolled to schools of higher education under equal conditions as the persons who do not have higher education of a corresponding cycle of studies. The provision of the law prohibiting persons to seek to acquire a second higher education of the same-level cycle of studies at a place of studies financed by the state grants more opportunities to the persons, who do not have higher education yet, to enrol to places financed by the state.

2.3. The most important principles of the institute of higher education, inter alia, the principles of financing schools of higher education, are established in the Law on Higher Education—in Articles 54 and 57 of this law.

The funds for the studies can be computed by means of variously formulated criteria, which are in conformity to the provisions of the Law on Higher Education, however, on the grounds of the established criteria it should be possible to properly compute the need for study funds so that it would correspond to real expenses for the studies. In the opinion of the representative of the Seimas, a party concerned, the computation of financing higher education is overly detailed and it would be a complex matter to regulate it by means of laws, therefore, taking account of the principle of the separation of powers and the doctrine of the Constitutional Court, the Law on Higher Education quite reasonably regulates only the general principles of financing schools of higher education, while the Government is only commissioned with detailing them.

2.4. Article 9 of the Law on Higher Education, while implementing the Constitutional Court’s ruling of 27 June 1994, regulates autonomy of schools of higher education, which includes the academic, administrative, economic and financial activities. However, neither the said ruling of the Constitutional Court nor Article 9 of the Law on Higher Education provides that a state school of higher education enjoys an autonomous right to establish the price of studies to the persons who study at their own expense.

According to the representative of the Seimas, a party concerned, the legislature sought, by means of the provision of Paragraph 4 of Article 58 of the Law on Higher Education whereby the state shall regulate the price of studies, to protect the students who are unable, because of their abilities, to enrol to the places financed by the state. The quality of studies of the student who pays for the studies himself must be the same as that of a student who is financed by the state, therefore, the expenses of the students who pay for their studies cannot be bigger than those of the students financed from the State Budget. While regulating the size of the price of studies, which would have to be paid by the persons who study at their own expense, protects the interests of these persons (consumers).

2.5. According to the representative of the Seimas, a party concerned, regulation of state and non-state schools of higher education, which is conducted by the state, may not be identical in both cases; the regulation of state schools of higher education in the area of finance is more detailed, the funds are allocated from the State Budget, while as regards the price of studies and resources of funds in non-state schools of higher education, it is made by free agreement between these schools of higher education and their students. Such legal regulation cannot be assessed as creating conditions for violation of the principles of equality of persons or freedom of fair competition.

IV

In the course of the preparation of the case for the judicial consideration, written explanations were received from J. Lionginas, Chairperson of the Seimas Committee of Budget and Finance, V. Domarkas, Chairperson of the Seimas Committee on Education, Science and Culture, Prof. Habil. Dr. E. Butkus, Chairperson of the Science Council of Lithuania, Acad. B. Juodka, Rector of Vilnius University, Prof. Habil. Dr. R. Ginevičius, Rector of Vilnius Gediminas Technical University, Prof. A. Pumputis, Rector of Mykolas Romeris University, Prof. A. Ramonas, Vice-Rector (Science and Art) of Klaipėda University, Prof. Habil. Dr. R. Žaliūnas, Rector of Kaunas University of Medicine, Prof. Habil. Dr. H. Žilinskas, Rector of the Lithuanian Veterinarian Academy, Prof. Dr. J. Antanavičius, Vice-Rector of the Lithuanian Academy of Music and Theatre, E. Stumbrys, Director of the Centre for Quality Assessment in Higher Education, N. Kikutienė, President of the Lithuanian Colleges’ Directors’ Conference, and I. Vareikytė, President of the National Union of Student Representations of Lithuania.

V

1. At the Constitutional Court’s hearing, the representatives of the President of the Republic, a petitioner, who were A. Rauličkytė and M. Vainiutė, virtually reiterated the arguments set forth in the petition of the President of the Republic, a petitioner, and also presented additional explanations.

2. At the Constitutional Court’s hearing, the representative of the group of members of the Seimas, a petitioner, who was G. Steponavičius, as well as G. Damijonaitis, virtually reiterated the arguments set forth in the petition of the group of members of the Seimas, a petitioner, and also presented additional explanations.

3. At the Constitutional Court’s hearing, the representative of the Government, a party concerned, who was T. Daukantas, virtually reiterated the arguments set forth in the written explanations and also presented additional explanations.

4. At the Constitutional Court’s hearing, the representative of the Seimas, a party concerned, who was V. Gedvilas, virtually reiterated the arguments set forth in the written explanations.

The Constitutional Court

holds that:

I

1. On 21 March 2000, the Seimas adopted the Law on Higher Education, which came into force on 1 September 2000 (save the exception specified in the Law). Under Paragraph 1 of Article 1 of the Law, the purpose of the law was to establish the system of studies, after which a person is recognised as having acquired higher education in the Republic of Lithuania; the principles for acquisition of professional qualifications, qualification and research degrees in schools of higher education; the “autonomy limits” of schools of higher education and limits of state regulation of their activities; the rights and duties of the school of higher education teachers and research workers, and students; legal grounds for the founding, reorganisation and liquidation of schools of higher education in the Republic of Lithuania; the basic requirements for schools of higher education and study programmes; the evaluation and registration of study programmes; and the principles of financing schools of higher education and studies.

2. The Law on Higher Education was amended and/or supplemented more than once; it was done the last time by the Republic of Lithuania’s Law on Amending and Supplementing the Law on Higher Education and the Law on Science and Studies, which was adopted by the Seimas on 18 July 2006 and which came into force on 1 January 2007.

3. A group of members of the Seimas, a petitioner, requests an investigation into whether Paragraph 4 of Article 47 and Paragraph 4 of Article 58 of the Law on Higher Education are not in conflict with Paragraph 3 of Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article 46 of the Constitution; whether Paragraph 5 of Article 47 and Paragraph 1 of Article 61 of the Law are not in conflict with Paragraph 1 of Article 29, Paragraph 3 of Article 40, Paragraph 3 of Article 41, and Paragraph 5 of Article 46 of the Constitution; whether the Law, inter alia, Article 57 of this law, to the extent that, according to the petitioner, it does not establish the principles of distribution of funds of the State Budget among schools of higher education, while the establishment of these principles is commissioned to the Government, is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principles of a state under the rule of law and the separation of powers; whether Paragraphs 3, 4, and 6 of Article 58 of the Law are not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of Article 46 of the Constitution.

4. It is specified in the petition of the group of members of the Seimas, a petitioner, that the impugned provisions of the Law are set forth in its wording of 18 July 2006; it is clear from the arguments of the petition that it is requested an investigation into whether 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) (to the specified extent), Paragraph 3 (wording of 22 April 2003), Paragraph 4 (wording of 30 June 2005), Paragraph 6 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005), and Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law are not in conflict with the Constitution.

5. Article 47 (wording of 18 July 2008) of the Law, inter alia, provides:

Paragraph 4 (wording of 22 April 2003): “The total maximum number of students admitted to schools of higher education according to study cycles, forms and type of financing shall be annually approved by the Government prior to 1 March, taking into consideration the demand for specialists, the quality of the training of specialists by a concrete school of higher education, as well as the funds of the state budget appropriated to schools of higher education.”

Paragraph 5 (wording of 30 June 2005): “Persons who agree to pay the full price of studies, may be accepted to part-time or extramural studies of all cycles and full-time residency studies, and, prior to 2005–2006, to full-time studies of the second cycle.”

6. Article 57 (wording of 18 July 2006) of the Law provides:

1. The demand for the State budgetary funds for a State school of higher education shall be determined in accordance with 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. These methods shall be approved by the Government, upon having heard the proposals of the Science Council of Lithuania, Lithuanian Universities Rectors’ Conference (Conferences), the Directors’ Conference (Conferences) of Lithuanian Colleges, and the Union (Unions) of Representations of the Lithuanian Students.

2. The methods must provide for the following funds for:

1) studies;

2) development of research and artistic creative work;

3) administration and economy;

4) keeping-up of objects entered on the Register of Immovable Cultural Properties of the Republic of Lithuania and lists of cultural properties of Lithuania.

3. Funds for studies shall be appropriated on the basis of study expenses determined according to the methods (according to study fields, cycles and forms).”

7. Article 58 (wording of 30 June 2005) of the Law, inter alia, provides:

Paragraph 3 (wording of 22 April 2003): “The price of studies at a State school of higher education shall be indicated in the rules for admission to the school of higher education which are coordinated in the manner defined in Paragraph 2 of Article 47 of this Law”;

Paragraph 4 (wording of 30 June 2005): “The study price indicated in Paragraph 3 of this Article for citizens of the Republic of Lithuania and other member states of the European Union may not be higher than the study price determined in the manner prescribed in Paragraphs 1 and 2 of this Article.”

Paragraph 6 (wording of 22 April 2003): “The price of studies at a school of higher education not belonging to the State shall be determined by agreement.”

In this context it needs to be mentioned that Paragraph 2 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law, to which reference is made in Paragraph 3 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law, provides that “Rules of admission to a school of higher education shall be established by the school of higher education itself. The said rules must be co-ordinated with the Ministry [i.e. the Ministry of Education and Science] in the manner prescribed by the Government”, that “the conditions for admission to undergraduate and integrated studies concerning competitive subjects according to study fields and principles of formation of a competitive grade shall be co-ordinated in the manner prescribed by the Government and announced at least 2 years prior to the beginning of enrolment”, and that “applicants shall have the right to submit an application to enrol in several schools of higher education”; Paragraphs 1 and 2 (wording of 22 April 2005) of Article 58 (wording of 30 June 2005) of the Law, to which reference is made in Paragraph 4 (wording of 30 June 2005) of this article, provide that “the expenses of studies in a state school of higher education (according to study fields, cycles and forms) shall be determined in compliance with the methods referred to in Article 57 of this Law” (Paragraph 1), also that “the expenses of studies shall include the funds required for organising studies and maintaining the scientific level thereof” (Paragraph 2), and these are “funds to cover the salaries of the school of higher education teachers, scientific workers and other workers related to studies of the school of higher education, as well as the State Social Insurance contributions” (Item 1 of Paragraph 2); “funds to cover expenses of a school of higher education, in connection with studies and goods and services needed to maintain the scientific level thereof” (Item 2 of Paragraph 2); and “funds for organising student cultural, sports and social activities” (Item 3 of Paragraph 2).

8. Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law provides:

The following shall pay the full price for studies at a State school of higher education:

1) persons studying according to the study programme of the same or lower cycle which they have completed at a state school of higher education, if they paid the full price for not more than half of the credits of the completed study programme, except the cases set out by the Government;

2) persons who simultaneously study according to two or more study programmes of the same cycle, if their studies according to at least one of these study programmes are fully or partly paid with the State budgetary funds (they pay for the second and other study programmes);

3) foreign nationals, unless international treaties or other legal acts of the Republic of Lithuania provide otherwise;

4) persons admitted to study in the manner laid down in Paragraph 5 of Article 47 of this Law.”

9. On 11 October 2004, the Government adopted the Resolution (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” whereby it approved 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. This resolution of the Government came into force on 15 October 2004.

10. It is specified in the preamble to government resolution No. 1272 of 11 October 2004 that the Methods were approved by following, inter alia, Articles 57 and 58 of the Law, i.e. those articles of the law the compliance of the legal regulation established in which with the Constitution is impugned by the group of members of the Seimas, a petitioner.

11. Government resolution No. 1272 of 11 October 2004 was amended by the Government Resolution (No. 974) “On Amending 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” of 5 October 2006, which came into force on 12 October 2006.

12. The President of the Republic, a petitioner, requests an investigation into whether Items 3 and 14 of the Methods (wording of 5 October 2006) are not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

13. Item 3 of the Methods (wording of 5 October 2006) provides:

Funds for the studies shall be computed by taking account of the following:

3.1. the type of the programme of studies;

3.2. the area, field of studies, or a group thereof <…>;

3.3. the form of studies.”

14. Item 14 of the Methods (wording of 5 October 2006) provides: “The funds for studies shall be distributed among institutions of science and studies (done separately among colleges and among other institutions of science and studies) in proportion to the need for funds of studies of each institution of science and studies, which is computed by means of the Methods.”

15. Government resolution No. 1272 of 11 October 2004 (wording of 5 October 2006) was amended by the Government Resolution (No. 975) “On Amending 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” of 11 September 2007, which came into force on 23 September 2007, however, the items of the Methods impugned by the President of the Republic, a petitioner, were not amended.

II

1. The legal regulation impugned in the constitutional justice case at issue is designed for establishment of the number of students admitted to state schools of higher education, for the right of state schools of higher education to admit to study those who pay for their studies themselves, for computation of the expenses of studies, for computation of the State Budget funds needed by state schools of higher education, and for establishment of the amount of the price of studies in state and non-state schools of higher education.

2. In the opinion of the group of members of the Seimas, a petitioner, the articles (parts thereof) of the Law, which are impugned by the petitioner, violate the requirements (which are entrenched in the Constitution) of accessibility of higher education according to one’s abilities; guarantee of higher education at state schools of higher education for citizens, who are good at their studies, free of charge; autonomy of schools of higher education; equality of rights of persons; freedom of fair competition; defence of interests of consumers; as well as the constitutional principles of a state under the rule of law and the separation of powers.

3. In the opinion of the President of the Republic, a petitioner, the items of the Methods impugned by him violate the requirements (which are entrenched in the Constitution) of accessibility of higher education according to one’s abilities; guarantee of higher education at state schools of higher education for citizens, who are good at their studies, free of charge; and autonomy of schools of higher education.

4. Paragraph 1 of Article 40 of the Constitution expressis verbis mentions state schools of higher education; Paragraph 2 of Article 40 of the Constitution provides that “non-state establishments of teaching <…> may be founded according to the procedure established by law; Paragraph 4 of Article 40 of the Constitution provides that “the State shall supervise the activities of establishments of teaching”; Paragraph 3 of Article 41 of the Constitution provides that “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”; Paragraph 2 of Article 42 of the Constitution provides that “the State shall support <…> science”. These provisions of the Constitution imply a duty of the state to establish a system of state schools of higher education and to support state schools of higher education. Under the Constitution, the state also has a duty to define, by means of a law, the procedure of founding non-state schools of higher education.

5. The state forms and executes the higher education policy which should conform to the public interest and needs of society. This policy includes, inter alia, the establishment of strategic areas (fields) of development of higher education, the choosing a model of financing higher education that corresponds to state needs and capabilities, the establishment of the demand for specialists of various areas (fields), and the establishment of measures allowing the securing of the quality of studies. Under the Constitution, inter alia, Paragraph 3 of Article 41 thereof, the state has to undertake obligations to finance the preparation of a certain number of specialists. Such obligations—it goes without saying, they must be announced in advance—are in conformity to the need of society and the state to have a certain number of specialists of certain areas (fields) with higher education, as well as the capabilities of society and the state to finance their preparation.

6. While forming and executing the policy of higher education, the state must pay heed to interests of schools of higher education—of both state and non-state schools of higher education—since higher education, and, science in general, can foster and be developed only without state petty administration of scientific activity and teaching. In this context, it needs to be noted that, under Paragraph 1 of Article 42 of the Constitution, culture, science and research, and teaching shall be free. However, it needs to be emphasised that the funds allocated by the state to schools of higher education must be used efficiently and heeding requirements of legal acts.

7. It happened to be so that state schools of higher education dominate in the system of higher education of Lithuania; for instance, higher education in a great many areas (fields) is provided only in state schools of higher education; practically, only state schools of higher education provide university higher education, it is in state schools of higher education where most students are learning, and it is the scientists working in state schools of higher education who create most of scientific works.

8. Under Paragraph 3 of Article 41 of the Constitution, every human being has the right to higher education which is accessible according to his individual abilities. The Constitutional Court has held that this constitutional human right is an important condition for implementation of his various rights and legitimate expectations and implies a duty of the state to create preconditions for implementation of this right (the Constitutional Court’s rulings of 14 January 2002, 7 June 2007, and 20 February 2008). Thus, both state schools of higher education and non-state schools of higher education established under procedure established by law must be accessible to each human being according to his abilities. While ensuring the accessibility of higher education according to one’s abilities, it is necessary to heed the imperatives consolidated in Article 29 of the Constitution whereby all persons shall be equal before the law, the court, and other state institutions and officials, and that the rights of the human being may not be restricted, nor may he be granted any privileges on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views.

However, it needs to be emphasised that the accessibility of higher education to everyone according to his abilities does not at all mean that higher education is universally compulsory, nor does it mean that it is required to establish any such standards of higher education which would worsen the quality of higher education.

9. Funds of the State Budget must be allocated to state schools of higher education. 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.

In this context, it needs to be mentioned that, as it was held by the Constitutional Court, under the Constitution, the state must create a system of support for the persons who seek to acquire higher education that every person who learns at a school of higher education, and to whom the support is necessary, would have a possibility of getting a state loan necessary for his studies (the Constitutional Court’s ruling of 7 June 2007). Such system of support of the persons who seek to acquire higher education must also secure the opportunities for the persons, who learn in schools of higher education, who meet constitutionally reasonable criteria and who need support, to receive support of another character (grants, allowances etc.). The state can establish various forms of an individual granting of state loans to persons studying in state schools of higher education, as well as those of support of these persons, and it enjoys broad discretion in this area. However, it needs to be emphasised that the system of granted loans and support must secure the accessibility to higher education according to one’s abilities; the constitutional principles of non-discrimination, clarity and transparency must be heeded. The system of loans to those studying in state schools of higher education and support of those studying in schools of higher education should be efficient and reliable.

10. The Constitutional requirement to secure accessibility to higher education according to one’s abilities does not mean that it must be done only by state funds. The Constitutional Court’s ruling of 14 January 2002 held: 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; this provision 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 other than at the expense of the state both in state and non-state schools of higher education even when this exceeds the needs and possibilities of the society and the state. In the same ruling of the Constitutional Court it was also held 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 other than 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. However (especially due to the fact that, as mentioned before, in Lithuania state schools of higher education are dominant), it needs to be emphasised that the right of state schools of higher education, which stems from the Constitution, to provide higher education also to the persons who seek education at their own expense (providing the school of higher education has possibilities of providing the higher education conforming to the quality standards established by the state), cannot create preconditions in any cases to worsen the quality of studies in state schools of higher education, inter alia, to deteriorate the conditions for the persons who seek to acquire higher education by state funds.

11. As mentioned before, under Paragraph 3 of Article 41 of the Constitution, the state has a duty to guarantee the citizens, who a good at their studies, higher education in state schools of higher education free of charge.

The Constitution does not define expressis verbis as to which citizens should be regarded as those who are good at their studies. The content of the notion “citizen who is good at his studies” is revealed in the official constitutional doctrine: a citizen who is good at his studies should be regarded as the one who “is good at his studies, i.e. his learning meets the established criteria of learning well” (the Constitutional Court’s ruling of 14 January 2002); the criteria enabling to establish which students can be said to demonstrate good academic results and which would, consequently, as prescribed by the Constitution, have the right that their education in state higher schools be financed by the state, should be established by law (the Constitutional Court’s ruling of 7 June 2007). These criteria must be known in advance, they must be clear and transparent, they cannot deviate not only from the constitutional concept of good learning, but also from such concept of good learning, which arises from the social experience of society and which does not deny the meaning of the word “good” that is understood by everyone and is generally recognised. In the context of the constitutional justice case at issue it needs to be emphasised that the criteria which are established by law and according to which persons funded by the state are regarded as those who are good at their studies cannot be formal; moreover, it is not permitted to establish in advance a number of citizens who are allegedly “good at their studies”, either an absolute or relative size, i.e. a quota, since it is impossible in advance to predict precisely how many students will actually be learning well, and how many of them will not. The establishment of such quotas would completely distort the constitutional concept of good learning. On the one hand, there can actually be more citizens, who are good at their studies, than it is provided for by establishing a quota a priori, therefore, some citizens, whose learning, as it is generally recognised, is doubtlessly regarded as good, would remain outside of the quota; in such cases the state would not discharge its constitutional duty to finance the studies of all students who learn well in state schools of higher education. On the other hand, there can actually be fewer citizens, who are good at their studies, than it is provided for by establishing a quota a priori, still, one would have to fund the studies of such citizens studying in state schools of higher education, who were covered by the said quota accidentally, whose learning, as it is generally recognised, is doubtlessly regarded as good; in such cases state funds would be used in a manner, which is constitutionally unreasonable and unfair from the social standpoint.

12. It needs to be specially emphasised that it is impossible to construe the constitutional provision whereby citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge, as meaning that, purportedly, the Constitution guarantees higher education covered by state funds to all citizens who are good at their studies in state schools of higher education, no matter under what conditions they were admitted to such schools, i.e. also to those citizens who are good at their studies, who, however, in the course of admittance to a corresponding state school of higher education were not admitted to the places whose number announced in advance conforms to the obligation of the state to fund the preparation of a certain number of specialists, and who were admitted to study at the state school of higher education at their own expense. The said provision of the Constitution should be construed as consolidating a duty of the state to guarantee higher education funded from the State Budget only to those citizens who are good at their studies in state schools of higher education, who are prepared in order to meet the demand for specialists of corresponding areas (fields), which is established by the state. As mentioned before, support of higher education should be regulated by legal acts in such a manner, so that the expenses of studies of citizens who are good at their studies in state schools of higher education, who are prepared in order to meet the established demand for specialists of corresponding areas (fields), by no means would fall upon these persons.

13. As mentioned before, under Paragraph 3 of Article 40 of the Constitution, schools of higher education shall be granted autonomy. This provision means that autonomy is guaranteed both to state and non-state schools of higher education.

It has been held in the jurisprudence of the Constitutional Court 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).

It also needs to be mentioned that the autonomy of schools of higher education entrenched in the Constitution does not at all imply that the corresponding powers may be granted to all schools of higher education; quite to the contrary, the rights enjoyed by schools of higher education may be differentiated (by heeding the Constitution) according to various important criteria, inter alia according to the fact as to what status of these schools of higher education is (i.e. whether they are universities or not), what level of higher education is provided by them to the persons that learn in them, what syllabi they implement, what their scientific potential is, etc. (the Constitutional Court’s decision of 1 February 2008 and its ruling of 20 February 2008).

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

15. In this context, it needs to be mentioned that, as it was held in the Constitutional Court’s ruling of 20 February 2008, the arising-from-the-Constitution guarantee of the recognition of the higher education (profession) provided by legally operating schools of higher education implies the powers of respective state institutions to control the quality of higher education and secure that the level of the provided higher education, which is denoted by various qualification degrees, would meet certain uniform standards of quality of higher education—both general standards and those concretising them, those defining the requirements for certain fields of studies; such standards must be established by the state institutions which, within their competence, form the policy of higher education, organise and execute the supervision of activities of schools of higher education.

In order that schools of higher education would be able to perform their constitutional obligation—to provide higher education, which meets the standards established by the state—it is especially important that teachers of high qualifications work in them. This condition of good-quality higher education is inseparable not only from freedom of science, research, and teaching, which is entrenched in the Constitution, but also from the existing infrastructure of higher education and state investment into this infrastructure, from the structure of schools of higher education (which should not be regulated by state legal acts so that this would stop the dynamism of scientific and pedagogical activity and the mobility of teachers and scientists), as well as from corresponding social guarantees to teachers, inter alia, from the establishment of the remuneration, which corresponds to the social function (protected by the Constitution) of this profession, secures dignified life, where one can devote all his working time to pedagogical and scientific activity, and which enables increasing one’s qualification. Teaching and scientific activity are a special activity which requires creativity; such activity is not similar to other types of professional activities and it is impossible to liken it to those other types of activities. Studies do not mean only work in lecture rooms, therefore, the work of teachers in preparing qualified specialists by no means is linked only with the time spent with those studying in lecture rooms etc.; a very important part of the qualitative, thus, creative, work time of a teacher of a school of higher education is given for preparation for classes with the students, for guiding the students in their independent studies, for heading scientific activities, for professional communication with other scientists and researchers etc., i.e. for the activities which are often conducted outside the premises of a school of higher education, and, sometimes, such activities cannot be conducted in these premises (all the more so that, as it is generally known, in Lithuania teachers in schools of higher education do not have individual premises for work). This specificity of teachers of schools of higher education determines that fact that the account of their work-load cannot be based upon the mere formal criterion as the time spent in a lecture room or in the premises of a school of higher education in general. The account of the work-load of teachers of schools of higher education must be regulated by legal acts so that the said specificity of their work would be heeded; 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 bases on the legal regulation established by the legislature. Schools of higher education must be guaranteed opportunities to prepare qualified specialists, otherwise the value of higher education acquired in schools of higher education of Lithuania is diminished.

16. So that they would perform their functions, state schools of higher education must be allocated not only funds of the State Budget, but also transferred corresponding state-owned property.

The Constitutional Court has held that from the Constitution (inter alia, the provision of Paragraph 2 of Article 128 thereof that the procedure for the possession, use and disposal of state property shall be established by law) follows the requirement to treasure state-owned property, not to waste it and manage it rationally; under the Constitution, laws must protect the rights of all owners, thus including the right of ownership of the state as the organisation of the entire society; it is not permitted to establish such legal regulation according to which the property that belongs to the state by right of ownership would be possessed, used or disposed of in such a manner so that the interests or needs of only one social group or individual persons are satisfied and that this property does not serve the public interest, the need of society, and the welfare of the nation, or that this property belonging to the state by right of ownership would be transferred as ownership to other subjects in order to satisfy the interests or needs of only one social group or individual persons, if this does not comply with the need of society, the public interest, or does not serve the welfare of the Nation (the Constitutional Court’s rulings of 30 September 2003, 8 July 2005, and 5 July 2007).

Thus, under the Constitution, the state, while having a duty to supervise the activity of establishments of teaching, must also supervise whether the state-owned property transferred to state schools of higher education is possessed, used and disposed of wile heeding the public interest and needs of society.

17. It has been mentioned that state schools of higher education must be allocated state funds so that they could perform their functions; these funds must be provided for in a state budget. The Constitutional Court has held that 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 higher school; also that, 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 (the Constitutional Court’s ruling of 14 January 2002).

18. It has also been mentioned that state schools of higher education can provide higher education which conforms to the standards established by the state also to persons, who study at their own expense, provided the corresponding state school of higher education has such possibilities. Thus, those studying in schools of higher education should also be treated as consumers of higher education services. While providing higher education to persons studying at their own expense, state schools of higher education compete with one another and with non-state schools of higher education.

From the provision “the State shall supervise the activities of establishments of teaching” of Paragraph 4 of Article 40 of the Constitution, the provision “the law <…> shall protect freedom of fair competition” of Paragraph 4 of Article 46 thereof, and the provision “the State shall defend the interests of the consumer” of Paragraph 5 of the same article, the duty arises to the state, when it regulates the relations linked with the school of higher education, to establish the legal regulation not distorting fair competition, also to consolidate various measures of the protection of consumers of higher education services. When corresponding relations are regulated by legal acts, it is necessary to heed the fact that, as mentioned before, funds of the State Budget are allocated to state schools of higher education, and certain property belonging to the state by right of ownership is transferred to them.

19. Under the Constitution, the Government has the powers to prepare a draft State Budget (Item 4 of Article 94 of the Constitution); the State Budget is approved by the Seimas (Item 14 of Article 67 of the Constitution). The Seimas does so by passing a law (Paragraph 1 of Article 131 of the Constitution).

The Constitutional Court has held that: while preparing a draft State Budget, the Government must take account of the existing economic and social situation, the needs and possibilities of the society and the state, the available and potential financial resources as well as state liabilities, as well as other important factors; the state possibilities of financing higher education are not limitless; the state possibilities of financing higher education are and must be linked with the interest of society and the state—the need to have specialists of various areas with higher education (the Constitutional Court’s rulings of 14 January 2002 and 11 July 2002). Thus, a duty falls upon the state to establish the demand for specialists of various areas (fields) by taking account of not only the existing demand for such specialists, but also of the demand for such specialists in the future, and to allocate the necessary funds in order to prepare such specialists. It has been held in this ruling of the Constitutional Court that the state obligations, which are announced in advance, to finance the preparation of a certain number of specialists are in conformity to the need of society and the state to have a certain number of specialists of certain areas (fields) with higher education, as well as the capabilities of society and the state to finance their preparation.

20. 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, as it has been held in this ruling of the Constitutional Court, the Constitution guarantees higher education covered by state funds not to all citizens who are good at their studies in state schools of higher education, no matter under what conditions they were admitted to such schools (i.e. not to all those citizens who are good at their studies, who, however, 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 learn at the state school of higher education at their own expense), but only to those citizens who are good at their studies in state schools of higher education, 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.

21. The state which, under the Constitution, has a duty to support science, secure accessibility of higher education, guarantee higher education in state schools of higher education to citizens who are good at their studies free of charge, who are prepared by meeting the established demand for specialists of corresponding areas (fields), may choose and establish in laws various models of financing higher education. While doing so, the legislature is bound by the constitutional obligations of the state, as well as the financial capabilities of the state which, as mentioned before, are not limitless. 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.

Therefore, while establishing a model of financing higher education and regulating, by means of legal acts, the relations linked thereto, one must take account of the fact that, the higher education, which would meet the quality standards established by the state can be provided by the schools of higher education that have teachers of high qualification, the indispensable training facilities, the necessary infrastructure etc. It has been mentioned that, under the Constitution, the rights enjoyed by schools of higher education may be differentiated (by heeding the Constitution), inter alia, according to the fact as to what status of these schools of higher education is (i.e. whether they are universities or not), what level of higher education is provided by them to the persons that learn in them, what syllabi they implement, what their scientific potential is, etc. Thus, when account is taken of all this, the funding of state schools of higher education from the State Budget can also be different, and, in certain respects it must be different. There is not any provision of the Constitution which could be construed as implying egalitarianism in this area.

22. The planning of funds for state schools of higher education in the budget is inseparable from reasonable and fair computation of expenses of studies, i.e. the computation of how much funds are necessary for the arrangement of good quality studies in those schools of higher education and maintenance of the proper level of scientific activity. The expenses of studies (also those in state schools of higher education) are determined by various factors; in different schools of higher education the expenses of studies even of the same area (fields) and of the same quality can be different. Doubtless to say, the state, while taking account of the position of schools of higher education, enjoys the powers to establish the composition of expenses of studies in state schools of higher education; by means of state legal acts rational, clear, transparent and reasonable criteria may and must be established, which would allow state schools of higher education to compute realistic expenses of studies conducted in them according to areas (fields), cycles, and forms of studies, so that the financing of these studies from the State Budget would correspond to its purpose, i.e. that it would permit the securing of good quality preparation of specialists of various areas (fields). Therefore, the computation of expenses of studies cannot be pressed on the schools of higher education. Such legal regulation which creates preconditions for ignoring the position of schools of higher education, which is grounded on rational arguments, as regards realistic expenses of studies conducted in them, would doubtlessly violate the autonomy of schools of higher education that is guaranteed by the Constitution, as well as other values entrenched in, and defended and protected by the Constitution, inter alia, the right of a human being to seek good-quality higher education. 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.

23. In the context of the constitutional justice case at issue it needs to be emphasised that the computed realistic expenses of studies are an important guideline in establishing the price of studies, which has to be paid by the persons for studies in state schools of higher education, who are prepared by satisfying the need (established by the state) for specialists of various areas (fields), if their learning does not correspond to the criteria of good learning established by law (since, as mentioned before, although the funds necessary for their studies should be provided for in the State Budget, if the learning of these citizens does not correspond to the criteria of good learning established by law, the state will not have to finance their studies).

The said expenses of studies are also an important guideline in establishing the price of studies, which has to be paid by the persons who were not admitted to the places, the number of which announced in advance corresponds to the established obligation of the state to finance the preparation of a certain number of specialists, but were admitted to studies in a corresponding state school of higher education at their own expense. There are no legal arguments which would allow maintaining that, purportedly, the price that must be paid by such students for their studies, must in all cases be the same as the price that has to be paid by the persons, who are prepared by satisfying the need (established by the state) for specialists of various areas (fields), if their learning does not correspond to the criteria of good learning established by law. As mentioned before, the teaching of such students depends on the possibilities of the school of higher education to provide good-quality higher education without creating any preconditions for deteriorating the quality of studies in state schools of higher education, inter alia, by giving less attention to the persons who seek to acquire higher education by state funds; thus, due to the creation of corresponding possibilities, additional expenses may also occur, and if the state submits the requisition to admit less students than schools of higher education are capable of preparing, the expenses for studies may decrease. Thus, the discussed prices of studies could not necessarily be the same.

24. It needs to be emphasised that the powers to establish the said prices of studies are enjoyed by state schools of higher education. In addition, it needs to be emphasised that these prices must be rationally reasoned, they may not create any preconditions for violating the constitutional principle of accessibility of higher education according to one’s abilities, the imperatives (entrenched in the Constitution) of social harmony and justice, they may not increase the social gulf. From the viewpoint of the Constitution, it would be unjustifiable to establish such prices for studies, which would also create preconditions for covering such expenses by means of studying persons, which are not necessary so that corresponding persons who pay for their studies would acquire good-quality higher education, i.e. which are not necessary for arrangement of good quality studies in those schools of higher education and maintenance of the proper level of scientific activity.

III

On the compliance of Paragraph 4 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law with Paragraph 3 of Article 40, Paragraph 3 of Article 41 and Paragraph 5 of Article 46 of the Constitution.

1. Paragraph 4 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) (which regulates admittance to state schools of higher education) of the Law provides: “The total maximum number of students admitted to schools of higher education according to study cycles, forms and type of financing shall be annually approved by the Government prior to 1 March, taking into consideration the demand for specialists, the quality of the training of specialists by a concrete school of higher education, as well as the funds of the state budget appropriated to schools of higher education.”

2. In the opinion of a group of members of the Seimas, a petitioner, the right of the state to establish the permissible total maximum number of students (who pay the full price of studies) admitted to schools of higher education limits the activity of state schools of higher education in the absence of any reasonable interest of society and violates their right of autonomy, and, thus, unreasonably limits the interest of the consumers to acquire higher education by their own funds.

3. While deciding subsequent to the petition of the group of members of the Seimas, the petitioner, whether Paragraph 4 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law is not in conflict with Paragraph 3 of Article 40, and Paragraph 3 of Article 41 of the Constitution, it needs to be held that the impugned provision consolidates the powers of the Government to establish the total maximum number of students, who are admitted to studies of all forms of each cycle (also, single-cycle studies) of each programme; while doing so, the Government must take into consideration “the demand for specialists, the quality of the training of specialists by a concrete school of higher education, as well as the funds of the state budget appropriated to schools of higher education”.

The “total maximum number of students admitted to schools of higher education” mentioned in Paragraph 4 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law encompasses also those students, the financing of whose studies the state has obligated itself to cover (however, only if they are good at their studies), and those students, who seek to acquire higher education in a state school of higher education not by state funds, but at their own expense. Thus, the Government is empowered to establish (to instruct state schools of higher education) not only how many students must be admitted to state schools of higher education (according to areas (fields), cycles and forms of studies) by meeting the established demand for specialists of corresponding areas (fields), i.e. to submit a corresponding state requisition (which must be guaranteed by providing for funds in the State Budget in order to pay the expenses of their studies, providing the learning of these citizens corresponds to the criteria of good learning established by law), but also to establish, at its discretion (regardless of the real capabilities of schools of higher education to provide higher education, which conforms to the same quality standards established by the state, not only to the persons whose studies are financed by the state itself, but also to those who seek to acquire higher education in a state school of higher education at their own expense), how many students must be admitted (according to areas (fields), cycles and forms of studies) to state schools of higher education, who seek to study in corresponding state schools of higher education at their own expense.

4. It has been held that it is not permitted to establish any such legal regulation whereby a state school of higher education is obstructed or even prohibited from admitting persons who seek to acquire higher education other than at the expense of the state, providing the state school of higher education has the capabilities of providing higher education which conforms to the same quality standards established by the state not only to the persons whose studies are financed by the state itself but also to those who seek to acquire higher education in a state school of higher education at their own expense.

5. Thus, the powers of the Government to establish the total maximum number of students, who are admitted to studies of all forms of each cycle (also, single-cycle studies) of each programme, which are consolidated in Paragraph 4 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law, create preconditions for an unreasonable limitation on the accessibility of higher education according to one’s abilities, which is entrenched in the Constitution, and also limit the autonomy of schools of higher education that is guaranteed by the Constitution.

6. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 4 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law is in conflict with Paragraph 3 of Article 40, and Paragraph 3 (the provision that higher education shall be accessible to everyone according to his individual abilities) of Article 41 of the Constitution.

7. Having drawn this conclusion, the Constitutional Court will not further investigate in this constitutional justice case whether Paragraph 4 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law is not in conflict with Paragraph 5 of Article 46 of the Constitution.

IV

On the compliance of Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006) and Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law with Paragraph 1 of Article 29, Paragraph 3 of Article 40, Paragraph 3 of Article 41 and Paragraph 5 of Article 46 of the Constitution.

1. Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006) (which, as mentioned before, regulates admittance to state schools of higher education) of the Law provides: “Persons who agree to pay the full price of studies, may be accepted to part-time or extramural studies of all cycles and full-time residency studies, and, prior to 2005–2006, to full-time studies of the second cycle.”

2. Paragraph 1 (wording of 22 April 2003) of Article 61 (which regulates admittance to paid studies in state schools of higher education) of the Law provides:

1. The following shall pay the full price for studies at a State school of higher education:

1) persons studying according to the study programme of the same or lower cycle which they have completed at a State school of higher education, if they paid the full price for not more than half of the credits of the completed study programme, except the cases set out by the Government;

2) persons who simultaneously study according to two or more study programmes of the same cycle, if their studies according to at least one of these study programmes are fully or partly paid with the State budgetary funds (they pay for the second and other study programmes);

3) foreign nationals, unless international treaties or other legal acts of the Republic of Lithuania provide otherwise;

4) persons admitted to study in the manner laid down in Paragraph 5 of Article 47 of this Law.”

3. In the opinion of the group of members of the Seimas, a petitioner, the fact that the persons who are willing to pay the full price of their studies may not be admitted to state schools of higher education at their own expense does not allow state schools of higher education, providing they have such capabilities, to admit the persons who seek to acquire higher education by non-state funds; in addition, different opportunities to acquire higher education by one’s own funds were established unreasonably, in violation of the constitutional principle of equality of persons.

4. While deciding subsequent to the petition of the group of members of the Seimas, a petitioner, whether Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006) of the Law is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution, it needs to be held that this paragraph has established a final list of the forms and cycles of studies, according to which persons may be admitted to studies who are willing to pay the full price of studies; however, this list does not encompass all existing forms and cycles of studies, and this means that it is not permitted that the persons who seek to acquire higher education in a state school of higher education by non-state funds be admitted to studies of such forms and cycles, which are not specified in the said list, even if the school of higher education has the capabilities of providing them with higher education that meets the quality standards established by the state.

5. Thus, the legal regulation established in Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006) of the Law unreasonably limits the accessibility of higher education according to one’s abilities, which is entrenched in the Constitution, and also limits the autonomy of schools of higher education that is guaranteed by the Constitution.

6. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006) of the Law to the extent that it does not provide that the persons who are willing to pay the full price of studies may also be admitted to the studies of the forms and cycles that are not specified in this list presented in this paragraph (providing the school of higher education has the capabilities of providing 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 (the provision that higher education shall be accessible to everyone according to his individual abilities) of Article 41 of the Constitution.

7. Having drawn this conclusion, the Constitutional Court will not further investigate in this constitutional justice case whether Paragraph 4 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006) of the Law is not in conflict with Paragraph 1 of Article 29 and Paragraph 5 of Article 46 of the Constitution.

8. While deciding subsequent to the petition of the group of members of the Seimas, a petitioner, whether Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law is not in conflict with Paragraph 1 of Article 29, Paragraph 3 of Article 40, Paragraph 3 of Article 41 and Paragraph 5 of Article 46 of the Constitution, it needs to be noted that Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law provides what persons must pay the full price of studies in state schools of higher education.

8.1. In this context it needs to be noted that the provisions of Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law, which entrench what persons must pay the full price of studies in state schools of higher education are inseparable from the provisions of the Law, which entrench as to whose studies are financed by the state, thus, also from the provisions of the Law, which define which citizens should be regarded as being good at their studies in state schools of higher education.

8.1.1. Paragraph 1 (wording of 22 April 2003) of Article 60 of the Law provides, inter alia, that “students, who are regarded as those who are good at their studies, shall be 30 per cent of students of every study programme of each semester, except the students referred to in Article 61 of this Law, who are selected each semester according to the best study results (in the first study semester—according to the enrolment results)”.

Thus, a quota of those who are good at their studies is established a priori.

8.1.2. It has been held in this ruling of the Constitutional Court that the criteria which are established by law and according to which persons funded by the state are regarded as those who are good at their studies cannot be formal; moreover, it is not permitted to establish in advance a number of citizens who are allegedly “good at their studies”, either an absolute or relative size, i.e. a quota, since it is impossible to predict precisely in advance how many students will actually be learning well, and how many of them will not; the establishment of such quotas would completely distort the constitutional concept of good learning.

8.1.3. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 1 (wording of 22 April 2003) of Article 60 of the Law 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 (the provision that citizens who are good at their studies shall be guaranteed education at state schools of higher education free of charge) of Article 41 of the Constitution.

8.2. The clause “full price for studies” of the impugned Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law should be construed while taking account of the official constitutional doctrinal provisions set forth in this ruling of the Constitutional Court, inter alia, of the fact that, as it has been mentioned: the price of studies which has to be paid by the persons who in the course of enrolment to a corresponding state school of higher education have not been admitted to the places, the number of which that was announced in advance corresponds to the obligation of the state to finance the preparation of a certain number of specialists, and who have been admitted to study in a corresponding state school of higher education at their own expense, can be different from the price, which has to be paid by the persons who are prepared in state schools of higher education in order to meet the demand (established by the state) of specialists of corresponding areas (fields), providing their learning does not correspond to the criteria of good learning established by law; the said prices of studies established by state schools of higher education must be rationally reasoned, they may not create any preconditions for violating the constitutional principle of accessibility of higher education according to one’s abilities, the imperatives (entrenched in the Constitution) of social harmony and justice, they may not increase the social gulf; no preconditions should be created to cover also such expenses by means of studying persons, which are not necessary so that corresponding persons who pay for their studies would acquire good-quality higher education.

8.3. The clause “except the cases set out by the Government” of the impugned Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law may not be interpreted as granting the right to the Government to establish also such cases, which do not stem from the Law, where persons studying according to the study programme of the same or lower cycle, whose programme they have completed at a state school of higher education, if they paid the full price for not more than half of the credits of the completed study programme, do not pay the full price of studies; the clause “or other legal acts” of Item 3 of the same paragraph cannot be construed as including such substatutory legal acts, the legal regulation established wherein is not based upon international treaties of the Republic of Lithuania and/or laws.

8.4. In addition, it needs to be held that it is also rational and reasonable that, under Item 2 of Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law, persons who simultaneously study according to two or more study programmes of the same cycle, if their studies according to at least one of these study programmes are fully or partly paid with the state budgetary funds, pay the full price for studies, when one takes account of the fact that, as mentioned before, the capabilities of the state to finance higher education are not limitless.

8.5. In Item 4 of Paragraph 1 (wording of 22 April 2003) of Article 61 of the Law reference is made to Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006) of the Law, which, to the extent that it does not provide that the persons who are willing to pay the full price of studies may also be admitted to the studies of the forms and cycles that are not specified in the list presented in this paragraph (providing the school of higher education has the capabilities of providing them with higher education that meets the quality standards established by the state), has been ruled in this ruling of the Constitutional Court to be in conflict with Paragraph 3 of Article 40 and Paragraph 3 (the provision that higher education shall be accessible to everyone according to his individual abilities) of Article 41 of the Constitution.

In its decision of 8 August 2006 and its ruling of 21 September 2006, the Constitutional Court held that legal situations are also possible, where the removal of the provisions conflicting with provisions of legal acts of higher legal force, inter alia, the Constitution, by means of a ruling of the Constitutional Court from the legal system, with respect to the application of law virtually amounts to changing the overall legal regulation, i.e. the establishment of a different, gapless overall legal regulation.

It needs to be held that after it was recognised that Paragraph 5 (wording of 30 June 2005) of Article 47 (wording of 18 July 2006) of the Law is in conflict (to the specified extent) with Paragraph 3 of Article 40 and Paragraph 3 (the provision that higher education shall be accessible to everyone according to his individual abilities) of Article 41 of the Constitution, there are not any legal grounds to assert that the legal regulation established in Item 4 of Paragraph 1 (wording of 23 April 2003) of Article 61 of the Law unreasonably limits the accessibility of higher education according to one’s abilities, which is entrenched in the Constitution, and the autonomy of schools of higher education guaranteed by the Constitution.

8.6. Alongside, it needs to be held that the entire legal regulation established in Paragraph 1 (wording of 23 April 2003) of Article 61 of the Law does not violate the accessibility of higher education according to one’s abilities, which is entrenched in the Constitution, and the autonomy of schools of higher education guaranteed by the Constitution.

9. Having held this, it should also be held that the legal regulation established in Paragraph 1 (wording of 23 April 2003) of Article 61 of the Law does not create any preconditions for violating either the interests of persons, who study at state schools of higher education, as consumers of higher education services, or the constitutional principle of the equality of rights of persons.

10. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 1 (wording of 23 April 2003) of Article 61 of the Law is not in conflict with Paragraph 3 of Article 40, Paragraph 3 (the provision that higher education shall be accessible to everyone according to his individual abilities) of Article 41 and Paragraph 5 of Article 46 of the Constitution.

V

On the compliance of the Law on Higher Education, inter alia, Article 57 (wording of 18 July 2006) of this law, to the extent that, according to the petitioner, it does not establish the principles of distribution of funds of the State Budget among schools of higher education, while the establishment of these principles is commissioned to the Government with Paragraph 3 of Article 40 of the Constitution and the constitutional principles of a state under the rule of law and the separation of powers.

1. Article 57 (wording of 18 July 2006) of the Law, which regulates the relations linked with the Methods, provides:

1. The demand for the State budgetary funds for a State higher education establishment shall be determined in accordance with the methods for determining the demand for the State budgetary funds and appropriating such funds to institutions of science and studies. These methods shall be approved by the Government, upon having heard the proposals of the Science Council of Lithuania, Lithuanian Universities Rectors’ Conference (Conferences), the Directors’ Conference (Conferences) of Lithuanian Colleges, and the Union (Unions) of Representations of the Lithuanian Students.

2. The methods must provide for the following funds for:

1) studies;

2) development of research and artistic creative work;

3) administration and economy;

4) keeping-up of objects entered on the Register of Immovable Cultural Properties of the Republic of Lithuania and lists of cultural properties of Lithuania.

3. Funds for studies shall be appropriated on the basis of study expenses determined according to the methods (according to study fields, cycles and forms).”

2. According to the group of members of the Seimas, a petitioner, the Law (inter alia, Article 57 (wording of 18 July 2006) thereof) does not establish the principles of distribution of funds of the State Budget among schools of higher education, while the establishment of these principles is commissioned to the Government; in the opinion of the petitioner, upon consolidating the right of the Government to confirm the Methods and upon mentioning several constituent parts thereof, the principled rules whereby funds are distributed among state schools of higher education remained undefined, while the Government almost absolutely freely establishes the principles following which the funds are distributed among the schools; when the rules for the state financing of schools of higher education are established by means of something other than laws, there is too much indefiniteness, which increases the dependence of schools of higher education on state institutions and conjuncture decisions.

3. It has been held in this ruling of the Constitutional Court that the state, while taking account of the position of schools of higher education, enjoys the powers to establish the composition of expenses of studies in state schools of higher education; by means of state legal acts rational, clear, transparent and reasonable criteria may and must be established, which would allow state schools of higher education to compute realistic expenses of studies conducted in them according to areas (fields), cycles, and forms of studies, so that the financing of these studies from the State Budget would correspond to its purpose, i.e. that it would permit the securing of good quality preparation of specialists of various areas (fields). It has also been 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.

4. It has been mentioned that, under the Constitution, the Government enjoys the powers to prepare a draft State Budget. The Methods specified in Article 57 (wording of 18 July 2006) of the Law should regulate the relations linked with precisely this stage of the budget process. It is obvious that the Seimas, while approving the State Budget by means of a law, can amend the articles of a draft State Budget proposed by the Government, including those articles wherein it is established how much funds are allocated to state schools of higher education.

5. On the other hand, both the Government, when it prepares a draft State Budget, and the Seimas, when it approves the State Budget by means of a law, must heed the Constitution and laws, and provide for such expenditures for state schools of higher education in the State Budget, which would secure that these schools properly discharge their function—provision of good-quality higher education.

6. In this context it needs to be noted that the Law, inter alia, Article 57 (wording of 18 July 2006), as well as Article 54 (wording of 22 April 2003), Article 56 (wording of 22 April 2003), and Article 58 (wording of 30 June 2005), contains various provisions which must be taken account of in the course of the preparation of a draft State Budget and providing for funds to state schools of higher education. There are such provisions in other laws as well. The Government, while executing laws, while concretising and detailing their provisions within its competence, may not establish any such legal regulation that would compete with the legal regulation established in laws.

7. It needs to be emphasised that the petition of the group of members of eth Seimas, a petitioner, does not specify as to what are any other principles which, in the opinion of the petitioner, should be consolidated in the Law, inter alia, in Article 57 (wording of 18 July 2006) thereof, so that there would not be any “indefiniteness, which increases the dependence of schools of higher education on state institutions and conjuncture decisions”. At the Constitutional Court’s hearing the representative of the group of members of the Seimas, a petitioner, did not indicate this, either.

8. Therefore, there are not any legal arguments which would allow asserting that Article 57 (wording of 18 July 2006) of the Law 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 in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principles of a state under the rule of law and the separation of powers.

9. Having held this, the Constitutional Court will not further investigate in this constitutional justice case whether other provisions of the Law to the same extent are not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principles of a state under the rule of law and the separation of powers.

VI

On the compliance of Paragraph 4 (wording of 30 June 2005) of Article 58 (wording of 30 June 2005) of the Law on Higher Education with Paragraph 1 of Article 29, Paragraph 3 of Article 40, Paragraph 3 of Article 41 and Paragraphs 4 and 5 of Article 46 of the Constitution, as well as on the compliance of Paragraphs 3 and 6 (wording of 22 April 2003) of Article 58 of the Law with Paragraph 1 of Article 29 and Paragraph 4 of Article 46 of the Constitution.

1. Article 58 (wording of 30 June 2005) of the Law, which regulates the expenses and price of studies, inter alia, provides:

Paragraph 3 (wording of 22 April 2003): “The price of studies at a State higher education establishment shall be indicated in the rules for admission to the school of higher education, which are coordinated in the manner defined in Paragraph 2 of Article 47 of this Law”;

Paragraph 4 (wording of 30 June 2005): “The study price indicated in Paragraph 3 of this Article for citizens of the Republic of Lithuania and other member states of the European Union may not be higher than the study expenses determined in the manner prescribed in Paragraphs 1 and 2 of this Article”;

Paragraph 6 (wording of 22 April 2003): “The price of studies at a higher education establishment not belonging to the State shall be determined by agreement”.

The quoted provisions make reference to Paragraph 2 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006), and Paragraphs 1 and 2 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law. It has been mentioned that Paragraph 2 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law provides that “Rules of admission to a school of higher education shall be established by the school of higher education itself. The said rules must be co-ordinated with the Ministry [i.e. the Ministry of Education and Science] in the manner prescribed by the Government”, that “the conditions for admission to undergraduate and integrated studies concerning competitive subjects according to study fields and principles of formation of a competitive grade shall be co-ordinated in the manner prescribed by the Government and announced at least 2 years prior to the beginning of enrolment”, and that “applicants shall have the right to submit an application to enrol in several schools of higher education”; Paragraphs 1 and 2 (wording of 22 April 2005) of Article 58 (wording of 30 June 2005) of the Law provide that “the expenses of studies in a state school of higher education (according to study fields, cycles and forms) shall be determined in compliance with the methods referred to in Article 57 of this Law” (Paragraph 1), also that “the expenses of studies shall include the funds required for organising studies and maintaining the scientific level thereof” (Paragraph 2), and these are “funds to cover the salaries of the school of higher education teachers, scientific workers, and other workers related to studies of the school of higher education, as well as the State Social Insurance contributions” (Item 1 of Paragraph 2); “funds to cover expenses of a school of higher education, in connection with studies and goods and services needed to maintain the scientific level thereof” (Item 2 of Paragraph 2); and “funds for organising student cultural, sports and social activities” (Item 3 of Paragraph 2).

2. In the opinion of the group of members of the Seimas, a petitioner, the fact that to citizens, the price of studies may not be higher than the expenses of studies, means that the state, in violation of the right of autonomy of schools of higher education, which is guaranteed by the Constitution, as well as in violation of the interests of consumers, undertook the regulation of the allocation of the funds necessary not only for the studies of students who are good at their studies, but also financing the studies of the students who study at their own expense, thus diminishing or even denying the opportunities and incentives for state schools of higher education to provide services of studies for a fee; in addition, the fact that the price of studies is established in state schools of higher education according to centralised rules, while in non-state schools they are established by a free agreement, limits the opportunities of state schools of higher education to compete under equal conditions with non-state schools of higher education for persons, who are prepared to pay the full price of studies, and it violates the constitutional principle of equality of all persons.

3. It needs to be noted that, although the group of members of the Seimas, a petitioner, requests an investigation into also the compliance of Paragraph 6 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law with the Constitution, it is clear from the arguments of the petition that the principled provision entrenched in this paragraph whereby the price of studies must be established by agreement, which is designed to non-state schools of higher education, does not rise doubts to the petitioner; the essence of the arguments of the petitioner is that the same principled provision should be established with regard to state schools of higher education.

Taking account of this, in this constitutional justice case the Constitutional Court will not investigate the compliance of Paragraph 6 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law with the Constitution.

4. While deciding, subsequent to the petition of the group of members of the Seimas, a petitioner, whether Paragraph 3 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law is not in conflict with the Constitution, it should be held that the legal regulation entrenched therein means, inter alia, that the rules for admission to state schools of higher education must indicate the price of studies which will have to be paid by the persons whose studies in the state school of higher education will not be financed by the state.

The fact that the said rules must indicate the price of the studies in a corresponding state school of higher education is reasonable and understandable of its own accord.

5. The reference to Paragraph 2 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law, which is in this paragraph, and according to which the rules for admission to a school of higher education are established by the school of higher education itself, by coordinating the rules with the Ministry of Education and Science in the manner prescribed by the Government.

5.1. In this context it needs to be noted that the coordination of the rules for admission to a corresponding state school of higher education with the Ministry of Science and Education is not unreasonable, since such rules must inevitably contain provisions, which in one way or another are related with obligations of the state (as well as with financial obligations, inter alia, those linked with formation of the State Budget) for a corresponding state school of higher education and the persons who study in that school. It should also be noted that the group of members of the Seimas, a petitioner, does not impugn the compliance of Paragraph 2 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law with the Constitution and the legal regulation established in the said paragraph is not a matter of investigation in the constitutional justice case at tissue.

5.2. When Paragraph 3 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) and Paragraph 2 (wording of 22 April 2003) of Article 47 (wording of 18 July 2006) of the Law are assessed in a systemic manner, it needs to be held that state schools of higher education are under obligation also 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. Thus, preconditions have been created for the Ministry of Education and Science to impose also such expenses of studies upon the schools of higher education, which would not be covered by tuition fees paid by the persons whose studies are not financed by the state.

Such legal regulation disregards the imperative which stems from the Constitution that it is state schools of higher education (whose autonomy is guaranteed by the Constitution) which have the powers to establish the realistic and rational price of studies, both the price to be paid by the persons who 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, and the price to be paid by the persons who are prepared in state schools of higher education in order to meet the demand for specialists of corresponding areas (fields), which is established by the state, provided the learning of these citizens does not correspond to the criteria of good learning established by law.

5.3. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 3 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law 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 is in conflict with Paragraph 3 of Article 40 of the Constitution.

6. Having held this, in this constitutional justice case the Constitutional Court will not further investigate whether Paragraph 3 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law is not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of Article 46 of the Constitution.

7. While deciding, subsequent to the petition of the group of members of the Seimas, a petitioner, whether Paragraph 4 (wording of 30 June 2005) of Article 58 (wording of 30 June 2005) of the Law is not in conflict with Paragraph 3 of Article 43 of the Constitution, it should be noted that the legal regulation entrenched in the said paragraph means, inter alia, that the price of studies to be paid by corresponding persons who study in state schools of higher education and whose studies are not financed by the state, may not be bigger than the expenses of studies in the state school of higher education (according to study fields, cycles and forms) established according to the Methods as approved by the Government in which the funds necessary for arrangement of studies and maintenance of their level, the funds for remuneration for work and for state social insurance of teachers of schools of higher education, their scientific workers and other employees who are linked with studies, the funds for the expenses of the school of higher education linked with goods and services necessary for studies and maintenance of their scientific level, as well as the funds necessary of arrangement of students’ cultural, sport and social activities, are counted in the expenses of studies.

7.1. Such legal regulation, as well as the legal regulation (to the corresponding extent) established in Paragraph 3 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law, also disregards the imperative which stems from the Constitution whereby it is state schools of higher education (whose autonomy is guaranteed by the Constitution) which have the powers to establish the realistic and rational price of studies, both the price to be paid by the persons who 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, and the price to be paid by the persons who are prepared in state schools of higher education in order to meet the demand for specialists of corresponding areas (fields), which is established by the state, provided the learning of these citizens does not correspond to the criteria of good learning established by law.

7.2. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 4 (wording of 30 June 2005) of Article 58 (wording of 30 June 2005) of the Law is in conflict with Paragraph 3 of Article 40 of the Constitution.

8. Having held this, in this constitutional justice case the Constitutional Court will not further investigate whether Paragraph 4 (wording of 30 June 2005) of Article 58 (wording of 30 June 2005) of the Law is not in conflict with Paragraph 1 of Article 29, Paragraph 3 of Article 41 and Paragraphs 4 and 5 of Article 46 of the Constitution.

VII

On the compliance of 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 Institutions of Science and Studies (wording of 5 October 2006) as approved by the Government Resolution (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) with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

1. Item 3 of the Methods (wording of 5 October 2006) provides:

Funds for the studies shall be computed by taking account of the following:

3.1. the type of the programme of studies;

3.2. the area, field of studies, or a group thereof <…>;

3.3. the form of studies.”

2. Item 14 of the Methods (wording of 5 October 2006) provides: “The funds for studies shall be distributed among institutions of science and studies (done separately among colleges and among other institutions of science and studies) in proportion to the need for funds of studies of each institution of science and studies, which is computed by means of the Methods.”

3. In the opinion of the President of the Republic, a petitioner, Item 14 of the Methods (wording of 5 October 2006) does not entrench a requirement to provide for precisely as much funds to schools of higher education in the State Budget as is needed to pay, either fully or in part, for the studies of the students who are financed by funds of the State Budget and whose admittance number is established by the Government, however, it entrenches the principle whereby funds of the State Budget are distributed among schools of higher education in proportion to the need of funds, which is computed by means of the Methods, therefore, due to this institutions of studies may be allocated less funds from the State Budget than it is necessary to pay, either fully or in part, for the studies of the students who are financed by funds of the State Budget and whose admittance number is established by the Government; the criteria of computing the funds allocated for studies, which are established in Item 3 of the Methods (wording of 5 October 2006) are insufficient so that in the course of the computation the funds allocated to individual institutions of studies it could be possible to take account of the fact how established standards of teaching are followed in corresponding institutions of studies, and of how the content and level of teaching and instruction corresponds to the qualification recognised by the state, while the established criteria do not allow the differentiation of the amount of funds necessary to finance the programmes executed by institutions of studies according to the level of the quality of studies.

4. The Methods (wording of 5 October 2006) establish the rules for computation of the need of funds of the State Budget and distribution thereof among state schools of higher education.

5. It needs to be noted that Items 3 and 14 of the Methods (wording of 5 October 2006), which are impugned by the President of the Republic, a petitioner, are linked with other items of the Methods; for instance, Item 3 wherein the criteria of computation of the funds allocated for studies is related with Item 4 wherein constituent parts of the expenses of studies are established, while Item 14 wherein the rule of proportionate distribution of funds among schools of higher education is established is related to Item 13 which consolidates the procedure for establishment of the amount of funds distributed among schools of higher education. Thus, the legal regulation established in Items 3 and 14 of the Methods (wording of 5 October 2006) should be assessed in a systemic manner and in the context of the entire legal regulation established in the Methods (wording of 5 October 2006).

6. The Preamble to government resolution No. 1272 of 11 October 2004 points out that the Methods are approved by following, inter alia, Articles 57 and 58 of the Law. Thus, the Methods should implement the provisions of the Law upon which these Methods are based.

7. One of the articles of the Law following which the Methods were approved has been ruled in this ruling of the Constitutional Court to be in conflict (to the corresponding extent) with the Constitution, namely: Paragraph 3 (wording of 22 April 2003) of Article 58 (wording of 30 June 2005) of the Law 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) of the same article were ruled to be in conflict with Paragraph 3 of Article 40 of the Constitution. This ruling of the Constitutional Court has also ruled some other provisions of the Law to be in conflict with the Constitution. In view of this fact, the legal regulation established by the Law should be corrected.

The overall legal regulation established in the Methods (wording of 5 October 2006), which was adopted while following, inter alia, Article 58 of the Law, will have to be corrected as well.

8. Under such circumstances Items 3 and 14 of the Methods (wording of 5 October 2006) acquire a different content, therefore, the investigation into their constitutionality becomes meaningless. It needs to be held that in this part of the case a matter of investigation is absent.

9. The absence of a matter of investigation in the petition of the petitioner means that the petition is not within the jurisdiction of the Constitutional Court (the Constitutional Court’s decisions of 6 May 2003, 13 May 2003, its ruling of 13 May 2004, its decision of 8 August 2006, and its ruling of 20 December 2007).

Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court provides that, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

It has been expressis verbis stated in the jurisprudence of the Constitutional Court that the absence of a matter of investigation in a case regarding the petition of the petitioner is grounds for the dismissal of the case (the Constitutional Court’s ruling of 25 January 2001, its decision of 6 May 2003, and its ruling of 20 December 2007).

10. Paragraph 2 of Article 80 (which regulates refusal to examine an inquiry in the Constitutional Court) of the Law on the Constitutional Court provides that, if in the course of the consideration of the inquiry the matter under consideration ceases to exist, the Constitutional Court shall dismiss the instituted legal proceedings on the grounds thereof.

This provision of the Law on the Constitutional Court is applicable mutatis mutandis to the consideration of petitions requesting an investigation into the compliance of a legal act with the Constitution (with another legal act of higher legal force) and the adoption of the respective decisions (the Constitutional Court’s rulings of 21 September 2006, 6 September 2007, its decision of 13 November 2007, and its ruling of 20 December 2007).

According to Item 3 of Article 69 of the Law on the Constitutional Court, in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, the decision to dismiss the case shall be adopted.

11. Taking account of the arguments set forth, the part of this constitutional justice case regarding the petition of the President of the Republic, a petitioner, requesting an investigation into the compliance of Items 3 and 14 of the Methods (wording of 5 October 2006) as approved by government resolution No. 1272 of 11 October 2004 (wording of 5 October 2006) with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution must be dismissed.

VIII

Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution.

After this ruling of the Constitutional Court is officially published, the articles (paragraphs thereof) of the Law on Higher Education which have been ruled by this ruling of the Constitutional Court to be in conflict with the Constitution will not be allowed to be applied.

Thus, certain relations linked, inter alia, with the accessibility of higher education according to one’s abilities, with guaranteeing higher education to citizens who are good at their studies in state schools of higher education free of charge will remain unregulated after the official publication of this ruling of the Constitutional Court.

The aforesaid relations are linked with the constitutional right of a human being to seek higher education, i.e. both with the rights of the persons who are studying in state schools of higher education at present and with the rights of the persons who will be admitted to schools of higher education. Therefore, the duty arises for the legislature promptly to fill the existing vacuum of legal regulation and immediately to amend the legal regulation established in the Law on Higher Education so that it would be in compliance with the constitutional concept of the right to seek higher education as presented in this ruling of the Constitutional Court.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56 69, and Paragraph 2 of Article 80 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraph 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 of 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.

2. To recognise that 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 also be admitted to the studies of the forms and cycles that are not specified in this list (providing the school of higher education has the capabilities of providing 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.

3. To recognise that 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.

4. To recognise that 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.

5. To recognise that 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.

6. To recognise that 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.

7. To dismiss the part of the case regarding the petition of the President of the Republic of Lithuania, a 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 Institutions of Science and Studies (wording of 5 October 2006; Official Gazette Valstybės žinios, 2006, No. 108-4114) 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.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Egidijus Kūris
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Vytautas Sinkevičius
                                                                      Stasys Stačiokas
                                                                      Romualdas Kęstutis Urbaitis