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Content updated: 27-09-2019 08:37

The Constitutional Court has passed the ruling on the constitutionality of the provisions of the Law on Education relating to the qualification requirements for heads of educational establishments and the initiation of official investigations

19-09-2019

In its ruling passed today, the Constitutional Court has recognised that Paragraphs 6 and 7 of Article 59 of the Law on Education, insofar as those paragraphs do not provide that heads of non-state educational establishments must meet the same qualification requirements as heads of state or municipal educational establishments, are not in conflict with the Constitution. However, the legal regulation laid down in Paragraph 16 of Article 59 of the Law on Education, insofar as, according to the said legal regulation, in cases where information is received that the head of an educational establishment has possibly committed a serious breach of his/her official duties or that he/she is not of good repute, an official investigation must be started within three working days from the day of the receipt of this information, and the head of the educational establishment must in all cases be suspended from his/her duties for the duration of such an investigation, was ruled to be in conflict with the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

When deciding on the compliance of Paragraphs 6 and 7 of Article 59 of the Law on Education with Article 29 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court noted that the principle of the equality of the rights of persons, which is consolidated in Article 29 of the Constitution, implies the duty of the legislature to establish an equal (non-differentiated) legal regulation with regard to certain categories of persons who are in the same situation if between the said categories of persons there are no differences of such a nature and to such an extent that would objectively justify their uneven treatment.

The Constitutional Court pointed out that Paragraph 4 of Article 40 of the Constitution consolidates the duty of the state to supervise the activities of the establishments of teaching and education, which also includes the duty of the state to ensure the observance of uniform education and learning standards not only in state and municipal establishments of teaching and education, but also in non-state establishments of teaching and education, as well as to guarantee the compliance of the contents and level of education and teaching with qualification recognised by the state. In implementing this duty of the state, the legislature has the discretion under the Constitution, among others, Paragraph 4 of Article 40 thereof, to determine the measures, established in the law or in other legal acts, that would ensure the education of adequate quality and the observance of uniform education and learning standards not only in state and municipal establishments of teaching and education, but also in non-state establishments of teaching and education.

In its ruling, the Constitutional Court noted that, under Paragraph 2 of Article 40 of the Constitution, the legislature, when regulating the founding and activities of non-state establishments of teaching and education, must coordinate the duty of the state, enshrined in Paragraph 3 of Article 46 of the Constitution, to regulate economic activity so that it serves the general welfare of the Nation with the freedom of individual economic activity and economic initiative, established in Paragraph 1 of Article 46 of the Constitution. In view of this, the Constitution allows, to a certain extent, a differentiated legal regulation governing the activities of non-state establishments of teaching and education, as well as those of state and municipal establishments of teaching and education. When establishing such a legal regulation, it is necessary to observe the requirements of the constitutional principle of a state under the rule of law, including the principle of proportionality, which means that the state, in supervising, under Paragraph 4 of Article 40 of the Constitution, among other things, the activities of non-state establishments of teaching and education, must not restrict, beyond what is needed to ensure adequate quality of education and adherence to uniform standards of education and training set by the state, the right of the owners of those establishments to take autonomous decisions necessary for their activities.

The Constitutional Court held that Paragraphs 6 and 7 of Article 59 of the Law on Education do not stipulate that heads of non-state educational establishments are subject to the same qualification requirements as heads of state or municipal educational establishments. Under Paragraph 6 of Article 59 of the Law on Education, the Minister of Education and Science lays down the qualification requirements for the heads of state or municipal educational establishments. Under the legal regulation established in Paragraphs 1 and 3 of Article 43 of the Law on Education, the owner (the meeting of the participants) of a non-state educational establishment has the powers to determine the qualification requirements for the head of the respective non-state educational establishment in order to ensure the proper fulfilment of the established functions of the head of the educational establishment and to ensure his/her responsibility for the effective administration over that establishment and for the quality of education provided by it.

The Constitutional Court noted that the Law on Education entrenches the unequal status of state and municipal schools, as well as of non-state schools: a state or municipal school is a public legal entity acting as a budgetary or public establishment owned or jointly owned respectively by the state or the relevant municipality, while a non-state school is a legal person whose legal form is chosen (determined) by its owner (the meeting of the participants), and its owner or one of the stakeholders is not the state or the municipality. Consequently, despite the fact that the heads of non-state educational establishments and those of state or municipal educational establishments may be considered to be in a similar (equal) position in terms of their work functions, nevertheless, given the different legal status of the establishments headed by them, the legal regulation laid down in Paragraphs 6 and 7 of Article 59 of the Law on Education is objectively justified and differentiated.

While assessing the compliance of such a legal regulation with the Constitution, the Constitutional Court also noted that the duty of the state to supervise, under Paragraph 4 of Article 40 of the Constitution, among other things, the activities of non-state establishments of teaching and education is ensured by the other measures provided for in the Law on Education, among other things, education monitoring and the on-going external evaluation of schools (Paragraph 4 of Article 37), requirements for teachers’ qualifications, which are also laid down in the Law on Education (Article 48), the evaluation of learning achievements (Article 38), requirements for formal education programmes (Paragraph 7 of Article 43), and requirements for school activities and environment (Article 40). These measures, among other things, also apply to non-state educational establishments. In view of this, a measure such as the requirement for the heads of non-state educational establishments to determine the same (uniform) qualification requirements as for the heads of state or municipal educational establishments is not necessary under the Constitution. Therefore, the Constitutional Court held that, by the impugned legal regulation, entrenched in Paragraphs 6 and 7 of Article 59 of the Law on Education, the legislature had not violated the constitutional requirements of the principle of a state under the rule of law, including the principle of proportionality. Among other things, the powers of the owner (the meeting of the participants) of a non-state educational establishment, which arise from the legal regulation laid down in Paragraphs 1 and 3 of Article 43 of the Law on Education, to establish the qualification requirements for the head of the educational establishment had not been disproportionately restricted.

In this case, the Constitutional Court also examined whether Paragraph 16 of Article 59 of the Law on Education was in conflict with the constitutional principle of a state under the rule of law, insofar as, according to that paragraph, in cases where information is received that the head of an educational establishment has possibly committed a serious breach of his/her official duties or that he/she is not of good repute, an official investigation must be started within three working days from the day of the receipt of this information, and the head of the educational establishment must be suspended from his/her duties for the duration of the official investigation.

The Constitutional Court noted that the impugned Paragraph 16 of Article 59 of the Law on Education consolidates the duty of the institution/the meeting of the participants implementing the rights and duties of the owner of an educational establishment or that of a person/the municipal mayor authorised by the said institution/the meeting of the participants to start in all cases an official examination and suspend the relevant head of an educational establishment from his/her duties, among other things, not only on the basis of official information provided by public authorities, but also on anonymous or wholly unsubstantiated, subjective opinion, or on the basis of any other information of any credibility. Neither the impugned nor any other provisions of the Law on Education consolidates any requirements for information (such as the reliability or validity of such information or complaint, the obligation to verify such received information), upon whose receipt an official investigation must be launched and the relevant person must be suspended from his/her duties. Thus, the entities deciding on the dismissal of the head of an educational establishment with respect to whom an official examination has been launched do not have an opportunity to assess the necessity and proportionality of this measure, nor are they obliged to annul the suspension of the head of an educational establishment from his/her duties when this measure becomes obsolete; in addition, no requirements for the duration of the application of this measure have been laid down.

In view of this, the Constitutional Court held that the impugned legal regulation is disproportionate to the legitimate aim, pursued by the state, to increase the responsibility of heads of educational establishments and does not create any preconditions for assessing, when taking into account all relevant circumstances, the individual situation of each head of an educational establishment with respect to whom an official investigation has been launched or for assessing the applicable (necessary) measures restricting his/her rights. Such a legal regulation also fails to comply with the requirement, arising from the constitutional principle of justice, for the legislature to ensure a certain balance of interests when regulating the legal relationships of suspension from duties, i.e. the protection of the rights and freedoms of the head of an educational establishment who is subject to suspension and the public interest to properly carry out an official investigation, in order to avoid possible abuse in the process of such suspension from duties. Therefore, the impugned legal regulation does not comply with the constitutional requirements of the principles of justice and proportionality, and, thus, also the imperatives arising from the constitutional principle of a state under the rule of law.

The Constitutional Court also held that the impugned legal regulation had disproportionately restricted the human right to freely choose a job, which is entrenched in Paragraph 1 of Article 48 of the Constitution.

The Constitutional Court drew attention to the fact that the legal regulation governing compulsory suspension from duties, as established in the impugned Paragraph 16 of Article 59 of the Law on Education, is extremely strict compared to that established in other legal acts that entrench suspension from duties. The Constitutional Court noted that the provisions of the Code of Criminal Procedure, also the Labour Code and the Law on State Service, provide for cases where suspension from duties is necessary, but also cases where, depending on the circumstances, a person may, but need not, be suspended from duties.

The full text of this ruling of the Constitutional Court can be accessed on the website of the Constitutional Court at https://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1967/content.