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Content updated: 16-12-2020 18:00

The Ombudsperson for Academic Ethics and Procedures may oblige an institution of higher education to revoke an awarded scientific degree if he or she finds gross violations of academic ethics

03-12-2020

By today’s ruling, the Constitutional Court has recognised that Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies is not in conflict with the Constitution.

The Supreme Administrative Court of Lithuania, the petitioner, applied to the Constitutional Court after suspending the examination of an administrative case, in which the lawfulness and validity of a decision of the Service of the Ombudsperson for Academic Ethics and Procedures was disputed. In the case examined by the petitioner, the disputed decision had found, among others, violations of academic ethics and obliged the school of higher education that had awarded the qualification of a habilitated doctor to revoke the decision on the award of the higher education qualification. The petitioner had doubts as to whether Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies, according to which the ombudsperson may take a decision obliging an institution of science and studies that has awarded a higher education qualification to revoke that qualification, was in conflict with Paragraph 3 of Article 40 of the Constitution, which guarantees the autonomy of schools of higher education, Paragraph 1 of Article 42 thereof, which, among others, consolidates freedom of science and research, and the constitutional principle of a state under the rule of law.

Article 17 of the Law on Science and Studies establishes the institution of the Ombudsperson for Academic Ethics and Procedures. This ombudsperson is a state official tasked with the monitoring of academic ethics and procedures by contributing to the improvement of academic ethical standards and, at the same time, of quality in higher education, among others, by ensuring the observance of the principles of academic integrity, academic freedom, and impartiality in the evaluation of scientific works. Within the scope of his/her competence, the ombudsperson examines complaints and reports, and, on his/her own initiative, conducts investigations into possible violations of academic ethics and procedures. Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies lays down the power of the ombudsperson to adopt a decision obliging an institution of science and studies to revoke a decision on the award of a higher education qualification (and, thus, also of a scientific degree) or on the winner of a competition in the event of a violation of academic ethics and/or procedures, among others, plagiarism or other violations of intellectual property rights relating to the unlawful use of scientific or artistic results.

The Constitutional Court has noted that the Constitution presupposes the power of the relevant state authorities to monitor quality in higher education and ensure that the level (expressed in appropriate qualification degrees) of provided higher education meets certain uniform quality standards for higher education. The state’s obligation, arising from Paragraph 4 of Article 40 of the Constitution, to assure quality in higher education presupposes, among others, the monitoring of the observance of the standards of academic ethics and procedures.

In this ruling, the Constitutional Court noted that, under Paragraph 3 of Article 40 and Paragraph 1 of Article 42 of the Constitution, the autonomy guaranteed to schools of higher education and constitutional freedom of science and research are not absolute. The autonomy of schools of higher education does not make it possible to disregard academic ethics and procedures in the conduct of scientific and study activity, and constitutional freedom of science and research is not exempt from the duty to observe academic ethics, among others, the principle of academic integrity. This principle presupposes the prohibition of any deception in academic activity, among others, the prohibition of fraudulent conduct such as falsification or manipulation of research data, plagiarism of scientific and other works, and the prohibition of inappropriate, biased, or derogatory criticism.

The Constitutional Court stressed that, according to the Constitution, among others, Paragraph 3 of Article 40 and Paragraph 1 of Article 42 thereof, and the constitutional principle of a state under the rule of law, it is intolerable that qualification degrees representing higher education and scientific qualifications should be awarded (or that individuals should be appointed to posts in institutions of science and studies) while disregarding standards for academic ethics and procedures where those standards are based on the above-mentioned academic values, among others, the principle of academic integrity. The award of qualification degrees representing higher education and scientific qualifications to individuals who grossly violate academic ethics, among others, the principle of academic integrity (including the prohibition of plagiarism), (or the appointment of such individuals to posts in institutions of science and studies) would discredit science and studies and would be incompatible with the general principles of law, according to which violations of law cannot be a source of law.  

The Constitutional Court noted that, under Paragraph 4 of Article 40 of the Constitution (“The State shall supervise the activities of establishments of teaching and education”) read in conjunction with Paragraph 3 of Article 73 thereof (under which the Seimas has the power to establish institutions of control), the Seimas, when implementing the state’s duty to monitor quality in higher education and to ensure that the level of provided higher education, represented by appropriate degrees, meets certain uniform standards of higher education quality, may set up a control institution tasked with defending the public interest – to monitor the observance of academic ethics and procedures in the conduct of scientific and study activity. Once such an institution of control has been set up, the legislature also has a duty to define its powers in such a way as to enable it to effectively perform the functions assigned to it.

Taking account of this, the Constitutional Court held that the legislature, having established the institution of the Ombudsperson for Academic Ethics and Procedures in Article 17 of the Law on Science and Studies, implemented those constitutional powers and established a control institution tasked with defending the public interest – to monitor the observance of academic ethics and procedures in the conduct of scientific and study activity. When assessing the powers of the ombudsperson laid down in Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies, including his/her power to oblige an institution of science and studies to revoke a decision on the award of a higher education qualification (and, thus, also of a scientific degree) or on the winner of a competition in the event of plagiarism or of violations of intellectual property rights relating to the unlawful use of scientific or artistic results, the Constitutional Court noted that those powers of the ombudsperson are an effective means to ensure the performance of the functions assigned to him/her to monitor the observance of academic ethics and procedures, in particular by taking effective measures to prevent individuals who grossly violate academic ethics, among others, the principle of academic integrity, from being awarded qualification degrees representing higher education and scientific qualifications (or to prevent such individuals from being appointed to posts in institutions of science and studies), so as not to discredit science and studies.

Therefore, the Constitutional Court concluded that the legal regulation laid down in Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies pursues the constitutionally important objective – to defend the public interest by effectively assuring quality in higher education and ensuring the observance of academic ethics and procedures, among others, the principle of academic integrity, i.e. it seeks the prevention of constitutionally intolerable situations in which qualification degrees representing higher education and scientific qualifications are awarded (or individuals are appointed to posts in institutions of science and studies) while disregarding standards for academic ethics and procedures, among others, the principle of academic integrity.

Assessing the impugned legal regulation, the Constitutional Court also noted that, according to Article 14 of the Law on Public Administration and Item 1 of Paragraph 1 of Article 17 of the Law on Administrative Proceedings, if an institution of science and studies disagrees with a decision taken by the Ombudsperson for Academic Ethics and Procedures in his/her capacity as an entity of public administration under Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies, it may apply to an administrative court, disputing the lawfulness and validity of such a decision of the ombudsperson. Under Item 2 of Article 88 of the Law on Administrative Proceedings, the administrative court may decide to annul the decision of the ombudsperson to oblige the institution of science and studies to revoke the awarded higher education qualification or the decision on the winner of a competition. In addition, under Paragraph 1 of Article 5 of the Law on Administrative Proceedings, any interested entity has the right to apply to a court in accordance with the procedure established by law in order to defend his/her violated or disputed right or interest protected by law. Thus, the ombudsperson’s decision referred to in Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies may be challenged before an administrative court not only by the institution of science and studies that is obliged to revoke the awarded higher education qualification or the decision on the winner of a competition, but also by the individual whose higher education qualification awarded to him/her is required to be revoked or who is the winner of the competition. Therefore, the legal regulation laid down in Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies and the related legal regulation create the preconditions for assuring quality in higher education in a single aspect, i.e. the observance of academic ethics and procedures, and make it possible for the administrative court to annul, on the basis of complaints from institutions of science and studies or other interested entities, unfounded and unlawful decisions of the ombudsperson to oblige the institution of science and studies to revoke the decision on the award of a higher education qualification or on the winner of a competition.

In view of this, the Constitutional Court held that there is no ground for stating that the legal regulation laid down in Item 2 of Paragraph 11 of Article 17 of the Law on Science and Studies restricts constitutional freedom of science and research and the autonomy (guaranteed by the Constitution) of schools of higher education clearly more than necessary in order to defend the public interest – to assure quality in higher education, among others, to ensure the monitoring of the observance of academic ethics and procedures. Therefore, there is also no ground for stating that that the impugned legal regulation disregards requirements, arising from the constitutional principle of a state under the rule of law, for proportionality and justice, or violates the autonomy (guaranteed in Paragraph 3 of Article 40 of the Constitution) of schools of higher education and freedom of science and research, which is enshrined in Paragraph 1 of Article 42 of the Constitution.