Case No. 13/2010-140/2010

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE PROVISIONS OF THE REPUBLIC OF

LITHUANIA LAW ON SCIENCE AND STUDIES (WORDING OF 30

APRIL 2009) WITH THE CONSTITUTION OF THE REPUBLIC OF

LITHUANIA

22 December 2011

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the

Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Ramutė Ruškytė,

Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representatives of a group of Members of the Seimas of the Republic

of Lithuania, a petitioner, who were Vytenis Povilas Andriukaitis, Vydas Gedvilas and Julius

Sabatauskas, Members of the Seimas,

the representatives of the Seimas of the Republic of Lithuania, the party concerned, who

were Valentinas Stundys, Chairman of the Committee on Education, Science and Culture of the

Seimas, Mantas Adomėnas, a Member of the Seimas, Audrius Skaistys, an Adviser at the Office of

the Education, Science and Culture Committee of the Office of the Seimas, Gytautas Damijonaitis,

an Adviser to the Minister of Education and Science of the Republic of Lithuania, and Tomas

Daukantas, Head of the Law Division of the Ministry of Education and Science 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 17,

21 and 23 November 2011, heard constitutional justice case No. 13/2010-140/2010 subsequent to:

1) a petition of the group of Members of the Seimas of the Republic of Lithuania, a

petitioner, requesting to investigate whether:

– the provision “The Lithuanian policy on science and studies guarantees <...> conditions

for the best of them to do scientific work” of the Preamble to the Republic of Lithuania Law on

Science and Studies (wording of 30 April 2009) is not in conflict with Paragraph 2 of Article 25,

Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the

Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of

law;

– the provision “A state school of higher education shall be a public legal person functioning

as a public establishment, possessing the autonomy guaranteed by the Constitution of the Republic

of Lithuania, and the special status defined by this and other laws” of Paragraph 4 of Article 6,

Paragraphs 1 and 3 of Article 8, Paragraph 3 of Article 9, Articles 19, 20, 21 and 22 (save

Paragraph 8 of Article 22), Paragraph 4 of Article 53, Item 3 of Paragraph 2 of Article 86,

Paragraph 4 of Article 90, and Paragraph 3 of Article 91 of the Republic of Lithuania Law on

Science and Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article 40 of

the Constitution of the Republic of Lithuania and the constitutional principle of a state under the

rule of law;

– Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Republic

of Lithuania Law on Science and Studies (wording of 30 April 2009) are not in conflict with

Paragraphs 1 and 4 of Article 46 of the Constitution of the Republic of Lithuania and the

constitutional principles of a state under the rule of law and equality of persons;

– Item 4 of Paragraph 1 of Article 11 of the Republic of Lithuania Law on Science and

Studies (wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 42, Paragraph 1 of

Article 46 and Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the

constitutional principle of a state under the rule of law;

– Paragraph 2 of Article 17 of the Republic of Lithuania Law on Science and Studies

(wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 33, Paragraphs 1 and 2 of

Article 35 and Paragraph 4 of Article 46 of the Constitution of the Republic of Lithuania and the

constitutional principle of a state under the rule of law;

– Article 39 of the Republic of Lithuania Law on Science and Studies (wording of 30 April

2009) is not in conflict with Paragraph 3 of Article 40 and Paragraph 1 of Article 42 of the

Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of

law;

– Paragraph 2 of Article 48 of the Republic of Lithuania Law on Science and Studies

(wording of 30 April 2009) is not in conflict with Paragraphs 1 and 3 of Article 40, Paragraph 1 of

Article 42 and Paragraphs 3 and 7 of Article 43 of the Constitution of the Republic of Lithuania and

the constitutional principle of a state under the rule of law;

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– Paragraph 3 of Article 66 of the Republic of Lithuania Law on Science and Studies

(wording of 30 April 2009) is not in conflict with Article 18, Paragraph 1 of Article 25, Paragraphs

1, 2 and 3 of Article 26, and Paragraphs 3 and 7 of Article 43 of the Constitution of the Republic of

Lithuania;

– Paragraph 2 of Article 69 and Paragraph 4 of Article 76 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article

41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under

the rule of law;

– Paragraphs 2, 5, 7 and 11 of Article 70 of the Republic of Lithuania Law on Science and

Studies (wording of 30 April 2009) are not in conflict with Paragraph 3 of Article 41 of the

Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of

law;

– Paragraphs 2, 4, 6 and 8 of Article 93 (“Implementation of the Law”), Article 94 (“Entry

into Force and Application of the Provisions of Chapter VII of the Law”) and Article 96

(“Reorganisation of State Schools of Higher Education from Budgetary Establishments into Public

Establishments”) of the Republic of Lithuania Law on Science and Studies (wording of 30 April

2009) are not in conflict with the constitutional principles of a state under the rule of law, legitimate

expectations, legal certainty and legal security, as well as whether Paragraph 4 of Article 96 of this

law is not in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania;

– Paragraph 5 of Article 94 of the Republic of Lithuania Law on Science and Studies

(wording of 30 April 2009) is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of

Article 41 of the Constitution of the Republic of Lithuania and the constitutional principle of a state

under the rule of law;

– Paragraph 5 of Article 95 of the Republic of Lithuania Law on Science and Studies

(wording of 30 April 2009) is not in conflict with Paragraph 1 of Article 48 of the Constitution of

the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition

No. 1B-3/2010);

2) a petition of the Supreme Administrative Court of Lithuania, a petitioner, requesting to

investigate whether Paragraph 1 of Article 70 of the Republic of Lithuania Law on Science and

Studies (wording of 30 April 2009) is 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-153/2010).

By the Constitutional Court decision of 14 October 2011 the petitions of the petitioners were

joined into one case and it was given reference No. 13/2010-140/2010.

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The Constitutional Court

has established:

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1. The petition (No. 1B-3/2010) of the group of Members of the Seimas, a petitioner, is

substantiated by the following arguments.

1.1. As a result of the fact that a subject has been allocated the funds from the state budget, a

duty should arise for such a subject to inform society of its financial, economic and scientific

activities as well as the use of its funds; therefore, a non-state school of higher education and a non-

state institute of scientific research, which would receive the funds of the state budget or the funds

of the state financed programmes, should also be obliged to account to society for their financial,

economic and scientific activities as well as the use of their funds—at least to the extent the said

funds have been used.

1.2. One may not set for educationists and other employees any requirements connected

with their convictions. The neutrality and secularity of the state may not serve as the grounds to

discriminate against the believers, to restrict their rights and freedoms; secularity of the state also

presupposes the non-interference of the state in the internal life of churches and religious

organisations. In secular state schools of higher education studies in theology and the scientific

degree of licentiate in theology are accessible to persons holding different religious convictions and

views and are not to be linked to any concrete religion. Recognising a scientific organisation as an

organisation of confessors of exclusively one religion violates the constitutional principles of a state

under the rule of law and equality of persons, while institutionalising a scientific organisation on the

grounds of a confession violates the constitutional principle of a state under the rule of law.

1.3. The petition of the group of Members of the Seimas, a petitioner, is essentially

substantiated by the provisions of the official constitutional doctrine, which construe the autonomy

and funding of schools of higher education and the criteria enabling to establish which persons are

regarded as being good at their studies. In the opinion of the petitioner, the most important

constitutional doctrinal provisions substantiating its petition are the following:

– according to the Constitution, the legislator, while not denying the principle of autonomy

of schools of higher education, may establish by means of laws the bases of organisational and

governance structure of schools of higher education;

– governance institutions of schools of higher education, which implement the functions of

self-government of the school of higher education, are formed by the schools of higher education

themselves; the ways and procedure of forming such institutions are established, according to the

bases that are entrenched in laws, by the schools of higher education in their regulations or statutes;

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– as a rule, the said institutions of schools of higher education are formed from members of

their academic community; autonomy of schools of higher education implies the right of schools of

higher education to provide that not only members of academic community of the particular school

of higher education could become members of such institution;

– representatives of institutions of the executive power of the state may be appointed to the

institutions of schools of higher education that perform functions of control and supervision and the

purpose of which is to ensure the responsibility and accountability of the school of higher education

to the public; the manner and procedure for forming such institutions may be established by the

legislator by means of laws, while not denying the principle of autonomy of schools of higher

education;

– the autonomy of schools of higher education entrenched in the Constitution implies that

state schools of higher education must be, for the purpose of performing their functions, allotted

state funds; these funds must be provided for in the state budget; an essential guarantee of autonomy

of state schools of higher education is such legal regulation when the law on the state budget

provides not only for the allocation of money for the higher education, but also for the funds for

each state school of higher education;

– free-of-charge education is guaranteed at state schools of higher education to the citizens

who study subsequent to the requisition by the state in order to meet the demand of specialists of

corresponding areas (fields), which is established by the state, providing their learning corresponds

to the criteria of good learning established by law;

– the criteria enabling to establish which students are good at their studies and which would,

consequently, as prescribed by the Constitution, have the right that their education in state schools

of higher education would be financed by the state, must be established only by law;

– higher education tuition of citizens who are good at their studies cannot be imposed on

these persons themselves in whatever form;

– the assessment of the results of learning (according to the criteria of good learning

established by law) of citizens who study in state schools of higher education subsequent to the

requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas

(fields), which is established by the state) must be conducted on a regular basis after checking the

knowledge of the studied subjects after each period of academic learning;

– the citizens who were admitted in state schools of higher education to study subsequent to

the requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas

(fields), which is established by the state) must be guaranteed the education free of charge till the

first basic checking of the knowledge of the subjects studied by them;

– the Constitution does not contain a prohibition for the state to undertake, in accordance

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with its possibilities, higher financial obligations to students of schools of higher education; the

undertaking of higher financial obligations than implied in the constitutional provision stipulating

that citizens who are good at their studies shall be guaranteed education free of charge in state

schools of higher education should not deny the striving for a just and harmonious society enshrined

in the Constitution;

– upon assessing the needs of society and the state and the financial capabilities of the state,

in cases when specialists of particular areas (fields) cannot be prepared in state schools of higher

education due to objective circumstances, they may be prepared also in non-state schools of higher

education upon requisition of the state and from funds of the state budget; in such a case the state

must guarantee that the expenses of learning (studies) of such specialists will be covered by state

funds, provided that the learning of the said individuals meets the criteria of good learning

established by law.

2. The petition (No. 1B-153/2010) of the Supreme Administrative Court of Lithuania, a

petitioner, is substantiated by the following arguments.

2.1. By granting, in Paragraph 1 of Article 70 of the Law on Science and Studies, the

Ministry of Education and Science the powers to determine the procedure for setting up the queue

of persons who have completed a secondary education programme with the best results, the

legislator has entrenched only a model rather than final list of the criteria which are to be taken into

account when establishing the priority right to state-funded student places pursuant to study

programmes of the first cycle and integrated study programmes. The constitutional doctrine

formulated by the Constitutional Court regarding the construction of Paragraph 3 of Article 41 of

the Constitution consolidates the provision that the criteria enabling to establish which students are

regarded as being good at their studies and which would, consequently, as prescribed by the

Constitution, have the right that their education in state schools of higher education would be

financed by the state, should be established by law. In the opinion of the petitioner, such regulation

when a law does not provide for an essential condition for implementing the right to free-of-charge

education guaranteed in the Constitution, inter alia the criteria enabling to establish which students

are to be regarded as being good at their studies in terms of Paragraph 3 of Article 41 of the

Constitution, and when a law does not respectively commission the Ministry of Education and

Science to establish the said criteria, is in conflict with Paragraph 3 of Article 41 of the

Constitution.

2.2. Once the legislator chooses such a model of financing of studies from funds of the state

budget under which it commissions the Ministry of Education and Science to determine the

procedure for setting up a queue of persons who have completed a secondary education programme

with the best results, and at the same time does not establish in the law any clear criteria for setting

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up such a queue, nor the meaning of these criteria, a situation is possible that, after a school of

higher education implements, as guaranteed by the Constitution, the right to set up independently

the procedure for admission to study programmes of the first cycle and integrated study

programmes, inter alia the criteria for admission to studies and the meaning of these criteria, the

persons who have enrolled according to that established order with the best (better) results may be

not admitted to state-funded student places in study programmes of the first cycle and integrated

study programmes where the criteria established by the corresponding higher school will differ

from the principles and criteria established for the procedure for setting up a queue of persons who

have completed a secondary education programme with the best results. Thus, such a chosen model

of financing of studies in state schools of higher education from funds of the state budget creates

preconditions to maintain that state schools of higher education, while having a possibility of

admitting to studies and preparing as many specialists as necessary in order to meet the demand of

specialists of corresponding areas (fields), which is established by the state, and while seeking to

receive funding for preparing these specialists, must establish such criteria of admission to studies

and the meaning of these criteria that would not, in essence, differ from the criteria established by

the Ministry of Education and Science for setting up a queue of persons who have completed a

secondary education programme with the best results, as well as from the meaning of these criteria,

however, such regulation, in the opinion of the petitioner, is in conflict with Paragraph 3 of Article

40 of the Constitution.

II

1. In the course of the preparation of the case for the Constitutional Court hearing written

explanations were received from the representatives of the Seimas, the party concerned, who were

M. Adomėnas, a Member of the Seimas, and A. Skaistys, an Adviser at the Office of the Education,

Science and Culture Committee of the Office of the Seimas, wherein it is maintained that the

disputed provisions of the Law on Science and Studies are not in conflict with the Constitution. The

position of the representatives of the party concerned, M. Adomėnas and A. Skaistys, has been

substantiated by the following arguments.

1.1. The preamble of a law is not an obligatory part of the structure of a legal act; it does not

belong to the normative part of a law and does not create any legal consequences characteristic of

norms of law; in the preamble one indicates the objectives of and the reasons for the issuance of the

legal act, as well as the political will of the subject who has passed that legal act. Thus, the

provision “The Lithuanian policy on science and studies guarantees <...> conditions for the best of

them to do scientific work” of the Preamble to the Law on Science and Studies does not, in itself,

create any relations of a discriminatory nature, and the striving to ensure conditions for the best

ones to do scientific work is not elaborated on in the normative part of the law so that it would

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violate the right to freely choose a job or business, which is guaranteed in the Constitution. The aim

to ensure conditions for the best ones to do scientific work, which is pursued within the Lithuanian

policy on science and studies, is a positive one, as it is based on a legal presumption that the best

ones, while conducting scientific work, will efficiently contribute to the improvement of the quality

of science and studies, and in order that the profession of a scientist would be more prestigious, one

must create favourable financial and professional conditions, the career motivation system and

similar preconditions, which may not be of a discriminatory nature.

1.2. The provision of Paragraph 3 of Article 40 of the Constitution guarantees the autonomy

of schools of higher education. In the official constitutional doctrine, which construes the concept of

autonomy of schools of higher education, it is noted that the legislator, while not denying the

principle of autonomy of schools of higher education, may establish the bases of the organisational

and governance structure of schools of higher education, that governance institutions of schools of

higher education, which perform the functions of self-government of the school of higher education,

are formed by the schools of higher education themselves, and that representatives of institutions of

the executive power of the state may be appointed to the institutions of schools of higher education

that perform the functions of control and supervision.

Schools of higher education are directly connected with the state and the processes taking

place therein and in the whole Europe, therefore the concept of the autonomy granted to schools of

higher education may not imply the ignorance about or the dissociation from the said processes to

such an extent that it would be impossible to amend the legal regulation and that such legal

regulation would always remain the same, without taking account of the indicators of a

demographic and social situation. The autonomy of schools of higher education means that the state

institutions do not regulate the inner life of schools of higher education in a petty manner, and that

schools of higher education are provided with the means to efficiently respond to the changes taking

place in society, the state and the world.

1.3. In the official constitutional doctrine, which construes the concept of autonomy of

schools of higher education, it is noted that that governance institutions of schools of higher

education, which implement the functions of self-government of the school of higher education, are

formed by the schools of higher education themselves. Article 19 of the Law on Science and

Studies provides for the following system of institutions of a school of higher education: the

collegial governance bodies—the council and the senate, and a one-person governance body—the

rector.

Namely the system of institutions of a school of higher education, entrenched in Article 19

of the Law on Science and Studies, ensures the autonomy of a school of higher education. Under

the Law on Science and Studies, when forming the aforesaid system of institutions of a state school

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of higher education, the decisive word belongs to the community of the school of higher education

itself. The community of a school of higher education, exclusively, forms the senate of the school of

higher education and elects half of the members of the council of the school of higher education;

one member of the council is appointed by common agreement (i.e. that member may not be

appointed against the will of the community of the school of higher education), while the other

members of the council are proposed by legal and natural persons from the persons who do not

belong to the staff and students of the school of higher education—these latter members of the

council are approved by the Minister of Education and Science. The rector is elected by the council.

Under the quorum requirements established in the Law on Science and Studies, while electing the

rector and deciding the other most important questions ascribed to the competence of the council,

the academic community has a decisive vote, as without the assent of the members of the council

who have been elected by the academic community the said decisions may not be adopted. Such a

system is a guarantee of self-government and institutional balance in the governance of a school of

higher education.

Thus, the system of interaction of institutions of a state school of higher education, which is

established in the Law on Science and Studies, guarantees the essential participation of the

university community in the course of implementation of self-government of the school of higher

education and ensures the transparency of the university’s activity as well as its accountability to

the public.

1.4. When assessing the compliance of Item 2 of Paragraph 3 of Article 7 and Item 2 of

Paragraph 2 of Article 11 of the Law on Science and Studies with the Constitution, one should note

the official constitutional doctrinal provisions, formulated in the Constitutional Court ruling of 20

March 2008, that “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, as well as, science in general, can foster and be developed only

without the state’s petty administration of scientific activity and teaching. <...> However, it needs to

be emphasised that funds allocated by the state to schools of higher education must be used

efficiently, by heeding the requirements of legal acts”. It needs to be noted that in its ruling of 5

February 2002 the Constitutional Court held that “A school of higher education which receives

funds from the state budget must account for proper use of the received funds, while it is within the

discretion of the legislator to establish by law the manner and means of control of the use of the

funds”.

While using the freedom of discretion, the legislator has established different legal

regulation with respect to state and non-state institutions of science and studies regarding the

information provided for founders of these institutions and the public about the financial, economic

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and scientific activity, the use of funds, and the findings of external quality assessment and

accreditation of study programmes in these institutions. By establishing different legal regulation,

the legislator does not deny the fact of control of the use of state budget funds as established in

accordance with the procedure set out in other laws.

1.5. According to the mission and objectives of an institute of scientific research, formulated

by the legislator, an institute of scientific research is not an institution of science and studies which

prepares scientists and specialists, since for the preparation of scientists and specialists university

studies are necessary, which may be provided not by any type of institution, but only by schools of

higher education—universities, certain part of teachers whereof are scientists or established artists.

Under the Law on Science and Studies, persons at doctoral studies are not employees, but students;

therefore, for their preparation one needs not only a corpus of scientific research, but also the

corresponding studies as well as the teachers who conduct doctoral studies.

1.6. The Centre for Quality Assessment in Higher Education is a non-typical budgetary

establishment, its activity has obvious specificity, due to which this establishment must be

independent. Seeking to ensure the best representation possible of public interests, the state also has

the right to involve, in the governance of an institution established by the state, the persons

delegated by non-state organisations. The Lithuanian Confederation of Industrialists, the Lithuanian

Chamber of Trade, Industry and Crafts, and the association “The Knowledge Economy Forum”

join, on the basis of associated membership, representatives of the labour market and

representatives of science into associations; in addition, these organisations have the reputation of

trusted partners who conduct expert assessment of institutions of education and science. Taking

account of the functions discharged by the Board of the Centre for Quality Assessment in Higher

Education, it is not possible to maintain that the board may influence the activity of the Centre for

Quality Assessment in Higher Education so that the prohibition against monopolisation of

production and the market or freedom of fair competition would be violated. On the contrary, the

involvement of non-state organisations in the governance of the Centre for Quality Assessment in

Higher Education is in conformity with the European good practice principles as well as with one of

the objectives of the Law on Science and Studies—to guarantee the quality of science and studies.

1.7. In assessing the constitutionality of Article 39 of the Law on Science and Studies, which

regulates the unity of science (arts) and studies, it needs to be noted that the Seimas, as an

institution forming the policy on higher education, has used its constitutional right to establish, by

law, certain standards of higher education. Science, by its nature, is international, therefore, it is

sought that Lithuanian schools of higher education would conform to the provisions of the

European research and higher education area, set out in the Magna Charta Universitatum, inter alia

the provisions consolidated therein, under which “teaching and research in universities must be

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inseparable if their tuition is not to lag behind changing needs, the demands of society, and

advances in scientific knowledge” and “recruitment of teachers, and regulation of their status, must

obey the principle that research is inseparable from teaching”.

1.8. The academic degree of licentiate in theology has been awarded in Lithuania (Kaunas

Vytautas Magnus University) as far back as from 1928. The licentiate is an academic qualification

degree of the second cycle, which is awarded to graduates of a school of higher education who have

completed continuing (graduate) studies (analogous to a master’s degree). The degree of licentiate

in theology is not directly and exceptionally linked to the training of the clergy, it is, both under the

Republic of Lithuania laws and canon law, also awarded to the laity and indicates not the

preparation to hold the office of a clergyman, but a special competence of a respective level. The

legitimisation of the title of a concrete degree should not be treated as a violation of autonomy of a

school of higher education, which then would be in conflict with the Constitution.

1.9. The Lithuanian Catholic Academy of Sciences is the oldest academic organisation in

Lithuania; it is the only institution that evidently attests to the continuity of non-institutional activity

of scientists, which was fostered in the pre-war independent state of Lithuania, among Lithuanian

émigrés, and in the restored Republic of Lithuania. As a result of historical circumstances, a very

small number of scientific unions in Lithuania have the tradition of long-term activity. Paragraph 3

of Article 66 of the Law on Science and Studies conveys the attitude of the Seimas towards the

recognition, continuity and nurturance of Lithuanian academic traditions, towards the assurance of

quality of scientific research and studies of all the areas and types and the assurance of the

continuity of activity of the Lithuanian Catholic Academy of Sciences. These provisions express the

striving to involve, more fully, the community of scientists in the processes of the formation of the

policy on science and studies, and to encourage them to act more actively.

1.10. By consolidating in Paragraph 2 of Article 69 of the Law on Science and Studies that

“State budget funds for studies shall not be appropriated for the branches of foreign schools of

higher education established in the Republic of Lithuania”, the Seimas has resolved to limit, by law,

additional financial liabilities and to create no possibilities for the branches of foreign schools of

higher education established in the Republic of Lithuania to acquire legitimate expectations to

receive the state budget funds allocated for the training (studies) of specialists of separate areas

(fields). However, under Paragraph 1 of Article 73 of the Law on Science and Studies, as regards

funding of target studies from funds of the state budget, the branches of foreign schools of higher

education established in the Republic of Lithuania may, by way of competition, compete alongside

state and non-state schools of higher education, as well.

2. In the constitutional justice case at issue written explanations were also received from the

representatives of the Seimas, the party concerned, who were G. Damijonaitis, an Adviser to the

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Minister of Education and Science, and T. Daukantas, Head of the Law Division of the Ministry of

Education and Science, wherein it is maintained that the disputed provisions of the Law on Science

and Studies are not in conflict with the Constitution. The position of G. Damijonaitis and T.

Daukantas, the representatives of the party concerned, has been substantiated by the following

arguments.

2.1. The comparative study on university autonomy across 26 European countries published

by the European University Association in 2011 shows that European universities themselves

regard autonomy as a relative quality which is realised to a certain extent. This study has also

indicated that Lithuanian schools of higher education are lacking most in academic autonomy,

whereas in terms of governance and finances, their situation, both de facto and de jure, meets the

average of Europe, or they have been even found to enjoy a more extensive than medium level of

autonomy. In addition, the said study maintains that external members are involved in making the

most important decisions of university governing bodies in most of the European universities. It

needs to be noted that the experience of the activity of Lithuanian state schools of higher education

in the period of several years also shows that the new governance system does not weaken

autonomy, but, on the contrary, it provides schools of higher education with more opportunities and

intellectual capacity to build their future in the conditions of dynamic changes and assume

responsibility for it. The said exhaustive study carried out by the authoritative institutions

unambiguously confirms that models of the governance of schools of higher education in Europe

are very various and changeable, and that the concept of autonomy is being modified, as both the

public itself and the perception in society of the mission of universities are also changing.

In almost all European countries institutions of higher education are undergoing reformation

for the purpose of creating new models of institutional governance. All institutions of higher

education in Europe have an executive body, generally the rector’s office, which is governed by the

rector, president or vice-rector—the executive manager of an institution. Most institutions of higher

education have a collegial academic body, generally called the senate, academic council or

academic board, which is responsible for education and research services provided by the

institution. There is a tendency in Europe to form advisory or supervisory bodies, which supervise

or control work, educational and financial activity, and which, for the most part or totally, are

formed from external stakeholders. In approximately one third of the states a supervisory body is at

the same time a decision-making body.

2.2. The Law on Science and Studies lays down such a model of funding of studies under

which the state, after assessing the demands in chosen study areas, finances the quality studies of

the students who have passed corresponding examinations with the best results. This model of

financing is in line with the fundamental constitutional value—the right of a person to choose

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responsibly, other important values and principles (those of non-discrimination, fair competition,

consumer rights, anti-monopolisation), and the following important goals of the state: to educate

responsible individuals capable of building their future and assuming responsibility for it, to fund

transparently institutions of science and studies, and to ensure competitiveness, modernisation,

efficiency of the institutions funded by the state, as well as the quality and accessibility of

education, flexibility of the education system, and response to demands.

The state, while applying the system of the study basket, satisfies the demand of the public

and the state to have, in accordance with the available financial possibilities, specialists of certain

areas (fields) who have received higher education. The Government of the Republic of Lithuania

allocates all the funds for studies according to study areas (humanities, social, physical, biomedical

and technological sciences, and arts).

2.3. Paragraph 1 of Article 70 of the Law on Science and Studies does not consolidate that

persons included in a queue of persons who have completed a secondary education programme with

the best results, as determined in accordance with the procedure established by the Ministry of

Education and Science, must be granted state funding, however, the said paragraph provides that

such persons, who are included in a queue of persons who have completed a secondary education

programme with the best results, are given priority to receive state funding. Thus, funding for

studies from the state budget may be allocated only for the person included in a queue of persons

who have completed a secondary education programme with the best results, and who meets a list

of competitive subjects according to study fields and the principles of composition of a competitive

grade, set by a school of higher education in accordance with Paragraph 1 of Article 52 of the Law

on Science and Studies, as well as a lowest passing entrance grade and other criteria assessed by the

students’ representation.

Prior to the entry into force of the Law on Science and Studies, state-funded student places

used to be distributed during the same year when the respective admission took place, but the

distribution of state-funded student places and the establishment of admission conditions for

enrolling persons were two separate processes. The Law on Science and Studies has consolidated a

possibility that the criteria of the formation of a queue of persons who have completed a secondary

education programme with the best results could differ from the admission conditions set by schools

of higher education themselves. Still there is also a possibility, which has been realised in Lithuania,

for the Ministry of Education and Science to choose, on the basis of the criteria for determining the

aforementioned queue, the admission conditions fixed by schools of higher education. In Lithuania

schools of higher education have managed to agree on common admission conditions. If they had

failed to reach such an agreement, the criteria for determining a queue of persons who have

completed a secondary education programme with the best results would have substantially differed

13

from the admission conditions of separate schools of higher education.

2.4. The recommendations by the Supervisor for Academic Ethics and Procedures reveal

that there exists a standard of academic ethics and procedures which is acceptable at the national

level. This standard means that the existence of common norms of academic ethics is being

recognised, therefore, no such situation is possible where a scientist, after moving from one

institution of science and studies to another, would be obliged to follow different standards of

academic ethics. A common standard of academic ethics and procedures is important not only to

institutions of science and studies, but also to expert institutions, which are commissioned to assess

the quality of scientific activity.

III

In the course of the preparation of the case for the Constitutional Court hearing, as regards

certain issues of this constitutional justice case, written explanations were received from Assoc.

Prof. Dr. Benas Ulevičius, Dean of the Faculty of Catholic Theology of Vytautas Magnus

University, Deividas Kriaučiūnas, Director General of the European Law Department under the

Ministry of Justice of the Republic of Lithuania, and Gintaras Steponavičius, Minister of Education

and Science of the Republic of Lithuania.

IV

1. At the Constitutional Court hearing, the representatives of a group of Members of the

Seimas, a petitioner, who were the Members of the Seimas—V. P. Andriukaitis, V. Gedvilas and J.

Sabatauskas, reiterated the arguments set forth in the petition of the petitioner and answered the

questions.

2. V. Stundys, Chairman of the Committee on Education, Science and Culture of the

Seimas, a representative of the Seimas, the party concerned, while submitting his explanations on

the compliance of the Law on Science and Studies with the Constitution, asserted that the disputed

provisions are not in conflict with the Constitution and substantiated his position by the following

arguments.

The Law on Science and Studies was drafted while taking account of several important

principles: state funds are following the student (student’s basket); the right of a school of higher

education to establish the number of students to be admitted; increase in accessibility of studies by

ensuring an effective loan system, by partial coverage of tuition fees, and by establishing students’

social grants. The Law on Science and Studies has developed the content and notion of autonomy of

a school of higher education: autonomy of schools of higher education includes freedom to

establish, by themselves, programmes of studies and content thereof, fields of scientific activities,

their internal structure, staff policy, as well as the right to dispose of the property that was acquired

14

by them or was entrusted by the state. Thus, the Law on Science and Studies has established a

special legal status of schools of higher education.

The Law on Science and Studies also seeks to achieve that the activity of schools of higher

education would be that of quality and that the schools themselves would be accountable to society.

The responsibility is related to assessment from outside, funding the higher education according to

the results, competition among schools of higher education and participation of social partners in

governance of such schools. This law has entrenched the reformed councils of schools of higher

education, these councils were granted the status of a strategic institution. The institution of the

supervisor of academic ethics and procedures is designated for securing the quality of science and

studies. Under this law, scientific activity is funded by applying the principle of competition, the

activity of societies and associations uniting scientists and students is promoted, such societies and

associations are drawn in the formation of the policy of science and studies.

By establishing a new procedure for formation the council of a state school of higher

education, one was attempting to make a balance in the proportion of its members appointed from

outside and from inside, and to define more precisely as to who can be a member of the council of a

state school of higher education. While seeking to diminish the possibility to violate autonomy of

schools of higher education as much as possible and to prevent politicians from participating in the

activity of the councils of a school of higher education, one has established clear criteria as well as

requirements for a member of the council of a school of higher education—he may not be a state

servant of political confidence. It was also sought to achieve that the Minister of Education and

Science would not exert a decisive influence but that he would have only an opportunity to choose

from the members submitted by the independent Council of Higher Education.

Since the concept of one’s being good at his studies often depends upon a lot of

circumstances, especially upon the culture of assessment in a school of higher education, upon the

nature of the programme of studies, it is rather difficult to compare as to what one’s being good at

his studies is, and what one’s being good at his studies according to separate programmes of studies

is. Therefore, the Law on Science and Studies has entrenched rotation—after two years of studies

the state funding is reassessed in essence: if the mean of the results of the studies during an

appropriate period is more than 20 per cent lower than the mean of the results of studies of an

appropriate study programme or course, the studying person loses his state-funded student place and

the one who is studying at his own expense may aspire to such a place. In addition, while seeking to

secure the accessibility of studies, it was established that up to 10 per cent of the students who are

good at their studies and whose student places are not funded by the state, may aspire to be

compensated for the fee paid for their tuition.

3. The representatives of the Seimas, the party concerned, who were M. Adomėnas, a

15

Member of the Seimas, and A. Skaistys, an Adviser at the Office of the Education, Science and

Culture Committee of the Office of the Seimas, reiterated the arguments set forth in their written

explanations, as well as answered the questions and gave additional explanations.

3.1. In its rulings the Constitutional Court has entrenched a traditional concept of autonomy

of schools of higher education, however, the tradition may be subject to change—in the European

higher education area such traditional autonomy is being reinterpreted by ensuring the compliance

of the higher education system with the interests of society. Autonomy of schools of higher

education must help seek to achieve that higher education would be that of quality and that schools

of higher education would be accountable to society: the state acts with regard of schools of higher

education both as the authority from which the academic community is independent, and as the

founder to which schools of higher education are accountable. The requirement for autonomy of

schools of higher education is not an end in itself, its purpose is to implement the public mission of

schools of higher education. It is noteworthy that the Law on Science and Studies seeks to

implement transparent mechanisms of accountability to society without violating academic freedom

at the same time.

3.2. The council of a state university is a governance institution through which society

expresses its interest which can be expressed so only in democratic states. Under the Law on

Science and Studies, the principles of formation of the council of a state university and the

mechanism of its functioning ensure inviolability of autonomy of a school of higher education and

non-interference with the life and activities of the academic community. The Law on Science and

Studies also allows to form active councils of state universities; the mechanism of adoption of

decisions by these councils is a transparent one.

3.3. In order to ensure the control and supervision of schools of higher education, the Law

on Science and Studies has strengthened the functions of the Centre for Quality Assessment in

Higher Education and entrenched the institution of the supervisor of academic ethics and

procedures, whose recommendations regarding the ethics provisions may not be deemed mandatory

for the schools of higher education.

3.4. In the area of the social relations in higher education and studies, the public and private

sectors must be adjusted. While taking account of the world tendency where the boundaries

between public and private higher education are disappearing, it is noteworthy that, in Lithuania, in

the area of higher education and studies, there could be, along with the state sector, a private sector

in higher education, which is more dynamic, which often meets concrete interests more efficiently,

and which reorients faster. Under the Law on Science and Studies, it is persons who are funded, but

not institutions of science and studies, thus, the non-state sector is funded insofar as it is related

with the choice by the students, i.e. with the implementation of a constitutional value—freedom of

16

choice by the person. Thus, the Law on Science and Studies promotes competition in higher

education and seeks to implement the standards of highest quality. It is important to note that the

accessibility of higher education to everyone according to his individual abilities does not mean at

all that higher education must be universal and that the standards diminishing the quality of higher

education should be established.

4. The representatives of the Seimas, the party concerned, who were G. Damijonaitis, an

Adviser to the Minister of Education and Science, and T. Daukantas, Head of the Law Division of

the Ministry of Education and Science, reiterated the arguments set forth in their written

explanations and answered the questions.

The Constitutional Court

holds that:

I

On the compliance of the provision “The Lithuanian policy on higher education and

research guarantees <…> favourable conditions for the best of them to do scientific work” of

the Preamble to the Law on Science and Studies with Paragraph 2 of Article 25 of the

Constitution, on the compliance of the same provision as well as Item 4 of Paragraph 1 of

Article 11 of the Law on Science and Studies with Paragraph 1 of Article 42, Paragraph 1 of

Article 46, Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a

state under the rule of law, on the compliance of Paragraph 3 of Article 8, Paragraph 3 of

Article 9, Article 39, and Paragraph 4 of Article 53 of the same law with Paragraph 3 of

Article 40 of the Constitution and the constitutional principle of a state under the rule of law,

and on the compliance of Article 39 of the same law with Paragraph 1 of Article 42 of the

Constitution.

1. A group of Members of the Seimas, a petitioner, has doubted whether the provision “The

Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do

scientific work” of the Preamble to the Law on Science and Studies (wording of 30 April 2009) is

not in conflict with Paragraph 2 of Article 25, Paragraph 1 of Article 42, Paragraph 1 of Article 46

and Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the

rule of law.

1.1. The petitioner has substantiated its doubts regarding the provision “The Lithuanian

policy on science and studies guarantees <...> conditions for the best of them to do scientific work”

of the Preamble to the Law on Science and Studies by the fact that, according to the petitioner,

scientific work can be done by those who feel calling for such an activity, who meet the

qualification requirements needed for scientific work, but not only by those who can be recognised

17

best to do scientific work.

1.2. The provision “The Lithuanian policy on science and studies guarantees <...> conditions

for the best of them to do scientific work”, which is being disputed by the petitioner, is entrenched

in the Preamble to the Law on Science and Studies; in the Preamble inter alia the purposes of the

law are established. It needs to be noted that the provisions of the preamble to this law are of

programmatic nature, in their context other provisions of this law are construed.

Thus, the provision (disputed by the petitioner) of the Preamble to the Law on Science and

Studies expresses the aspiration of the legislator to create the conditions where scientific work is

done by the persons best fit for such work, i.e. to create, by the legal regulation established in the

law, favourable conditions for the persons best fit for scientific work to choose this work, also, to

establish such requirements for screening which would allow to select those best fit to do this work.

This provision must be related first of all with the other provision “The Lithuanian policy on

science and studies guarantees the quality of science and studies” of the Preamble to the Law on

Science and Studies. The quality of science and studies would not be guaranteed if the conditions to

do scientific work were guaranteed to every person wishing to do this work regardless of his

abilities; the best quality of preparation of science and studies, inter alia the quality of preparation

of specialists and scientists, is possible only if the persons best fit for scientific work are selected

under procedure established by legal acts. The provision disputed by the petitioner is also to be

construed inter alia in the context of Item 2 of Paragraph 3 of Article 53 of the Law on Science and

Studies, in which the equal rights of the academic community to take part in competitions, as well

as Articles 58 and 59, in which the minimal qualification requirements are established for the

persons willing to work in the positions of teachers of schools of higher education and scientific

workers. When this provision is construed in this way, one is to draw a conclusion that namely

those persons who best meet the established qualification requirements for doing scientific work are

recognised as best fit to do scientific work and, due to this, under procedure established by legal

acts, they are selected or appointed to corresponding positions.

1.3. The provisions (specified by the petitioner) of the Constitution with which, according to

the petitioner, the provision “The Lithuanian policy on science and studies guarantees <...>

conditions for the best of them to do scientific work” of the Preamble to the Law on Science and

Studies is in conflict, are interrelated. In Paragraph 1 of Article 42 of the Constitution the principle

of academic freedom, or freedom of science, research and teaching, is entrenched; the constitutional

freedom of science and research also inter alia means that every person has the right to freely

decide by himself whether to engage in science and research, including the right to freely choose

the sphere of scientific research and methods of investigating particular subjects, to form his

scientific world-view (Constitutional Court decision of 28 October 2009). The constitutional

18

freedom of each human being to choose a job or business also implies the right to freely choose a

profession and acquire it (Constitutional Court ruling of 20 February 2008). Therefore, this freedom

entrenched in Paragraph 1 of Article 48 of the Constitution includes the human right to freely

decide himself whether to engage in science and research. On the other hand, the opportunity to

freely choose a job or business guaranteed in Paragraph 1 of Article 48 of the Constitution is related

to the provision of Paragraph 1 of Article 46 of the Constitution in which freedom of economic

activity and initiative of a person is entrenched (Constitutional Court ruling of 4 March 1999);

freedom of economic activity and initiative of a person implies his freedom to choose a job or

business.

Paragraph 1 of Article 42 of the Constitution is also related to Paragraphs 1 and 2 of Article

25 of the Constitution. In its ruling of 5 May 2007, the Constitutional Court held that the

constitutional freedom of science and research is inseparable from the freedom of having one’s own

convictions and expressing them, which is entrenched in Article 25 of the Constitution and which

implies among other things the freedom of a person to form his own convictions and to choose

values of world-view (Paragraph 1 of Article 25 of the Constitution), and from freedom of

information consolidated in the same article of the Constitution, which means that a person may not

be hindered from seeking, receiving and imparting information and ideas (Paragraph 2 of Article 25

of the Constitution).

1.4. The provision of Paragraph 1 of Article 42 of the Constitution must be construed inter

alia while taking account of the provision of Paragraph 3 of Article 41 of the Constitution which

entrenches the right of a human being to seek higher education according to his individual abilities

(Constitutional Court ruling of 20 February 2008).

In its ruling of 14 January 2002, the Constitutional Court inter alia held: “There has to be a

balance between the legitimate interests of a person and the needs of both the society and the state.

The financial possibilities of the state (including possibilities to fund higher education) are not and

cannot be unlimited. The constitutional provisions that higher education shall be available to

everyone according to their individual abilities cannot be interpreted as imposing a duty on the state

to ensure funding of any higher education for anyone capable of seeking it without proper

consideration of the needs and possibilities of the society and the state. The constitutional

provisions that higher education shall be available to everyone according to their individual abilities

cannot be interpreted in a way that would deny an individual’s constitutional right to seek higher

education according to his abilities even when the state does not finance his education because that

would exceed the needs and possibilities of the society and the state. The need of the society and the

state to have graduate specialists in various areas and the possibility to finance only a certain

number of specialists cannot be an obstacle for a person to seek higher education according to his

19

abilities not at the expense of the state even when this exceeds the needs and possibilities of the

society and the state.”

It needs to be noted that these provisions of the official constitutional doctrine are to be

applied mutatis mutandis in construing Paragraph 1 of Article 42 of the Constitution. It is not

allowed to construe the constitutional freedom of science and research as the one where the state

must, without taking account of the needs and possibilities of society and the state, guarantee the

conditions do scientific work for all persons willing to do such work; on the other hand, the needs

and possibilities of society and the state are not an obstacle for every human being willing to do

scientific work, to engage in science and research without state support.

1.5. Taking account of the arguments set forth, one is to draw a conclusion that the provision

“The Lithuanian policy on science and studies guarantees <...> conditions for the best of them to do

scientific work” of the Preamble to the Law on Science and Studies is not in conflict with Paragraph

2 of Article 25, Paragraph 1 of Article 42, Paragraph 1 of Article 46 and Paragraph 1 of Article 48

of the Constitution and the constitutional principle of a state under the rule of law.

2. A group of Members of the Seimas, a petitioner, has doubted whether Item 4 of Paragraph

1 of Article 11 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 42,

Paragraph 1 of Article 46 and Paragraph 1 of Article 48 of the Constitution and the constitutional

principle of a state under the rule of law.

2.1. Item 4 of Paragraph 1 of Article 11 of the Law on Science and Studies prescribes:

“1. A scientific research institute shall have the right:

<...>

4) in conjunction with universities and in accordance with the procedure laid down by this

Law, to train scientists, to help in training specialists.”

2.2. The doubts of the petitioner regarding the conflict of Item 4 of Paragraph 1 of Article 11

of the Law on Science and Studies with the Constitution are substantiated by the arguments

whereby a scientific research institute has the right to train scientists and specialists not only in

conjunction with universities, but also independently or in conjunction with other scientific research

institutes of Lithuania or with scientific research institutes of other states.

2.3. It needs to be noted that the provisions of Paragraph 1 of Article 42 of the Constitution,

in which inter alia freedom of science and research is entrenched, is related with Paragraph 3 of

Article 40 of the Constitution, in which autonomy of schools of higher education is guaranteed: the

constitutional concept of freedom of science and research implies the professional independency of

the scientific community, which is inseparable from self-government of schools of higher

education, which is one of essential conditions for implementation of autonomy of schools of higher

education (Constitutional Court decision of 28 October 2009). Thus, autonomy of schools of higher

20

education inter alia encompasses academic autonomy.

In its ruling of 27 June 1994, the Constitutional Court held that the development of the

academic autonomy had always been determined by the understanding that science and teaching

may normally exist and induce progress only when they are free and independent. Thus appeared

the principle of academic freedom, which expressed the striving to protect the researchers’ and

teachers’ freedom of scientific thought and its expression from outward influence.

In this context it needs to be noted that the right of the state to regulate external affairs of the

school of higher education does not contradict the autonomy unless it impairs the freedom of

scientific and pedagogic activity of the school of higher education (Constitutional Court ruling of 27

June 1994 and decision 28 October 2009).

2.4. It also needs to be noted that the provision of the official constitutional doctrine that

autonomy of schools of higher education (which is granted to them under Paragraph 3 of Article 40

of the Constitution) includes their right to independently establish their study programmes, is to be

construed in the context of the constitutional obligation of the state to supervise the activity of

educational establishments and the constitutional obligation to secure that the level of provided

higher education, which is marked by corresponding qualification degrees, would comply with

certain uniform standards of the quality of higher education (Constitutional Court ruling of 20

February 2008).

It also needs to be noted that, in its rulings of 20 February 2008 and 20 March 2008, the

Constitutional Court held that the arising from the Constitution guarantee of 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 areas of studies. Such standards must

be established by the state institutions which, within their competence, form the higher education

policy, and organise and implement the supervision of the activity of schools of higher education.

These provisions of the official constitutional doctrine are applicable mutatis mutandis also

to the legal regulation of activities of scientific research institutes, inter alia state scientific research

institutes.

2.5. In the context of the constitutional justice case at issue it needs to be noted that, under

the Constitution, while heeding autonomy of schools of higher education, the legislator has broad

discretion to choose and regulate a concrete model of organising science and studies, which meets

best the needs of development of the progress of the state and society in a particulate period of time.

However, having chosen a concrete model, the legislator must ensure uniform standards of higher

21

education rendered by institutions of science and studies, inter alia those of training of scientists

and specialists. It also needs to be noted that the Constitution, inter alia Paragraph 3 of Article 40

thereof, explicitly mentions only schools of higher education, however, it does not mean that the

legislator may not provide for other institutions of science and studies, inter alia scientific research

institutes, whose academic community is also guaranteed freedom science and research, i.e. an

essential element of academic autonomy, entrenched in Paragraph 1 of Article 42 of the

Constitution.

2.6. Under Paragraph 13 of Article 4 of the Law on Science and Studies, a scientific

research institute means an establishment the main activity of which is scientific research and

experimental (social, cultural) development.

Thus, the purpose of a scientific research institute is not conducting studies, but its main

activity is scientific research and experimental (social, cultural) development, meanwhile, the

competence of a school of higher education also encompasses conducting studies and scientific

research (Paragraph 3 of Article 6, Paragraph 1 of Article 8, Paragraph 1 of Article 9, and Article 35

of the Law on Science and Studies). Therefore, the differences in the legal regulation of the status

(inter alia the rights and purposes) of a scientific research institutes and a school of higher

education are objectively justifiable.

It needs to be noted that, according to the purposes of a scientific research institute, which

have been formulated to it by the legislator, a scientific research institute is not an establishment of

science and studies training scientists and specialists, since in order to train scientists and specialists

studies are necessary, which may be conducted only by schools of higher education. “Studies”

means studying done by a person, who has completed at least his secondary education, in a higher

education institution according to a certain study programme or when preparing a dissertation

(Paragraph 20 of Article 4 of the Law on Science and Studies).

Thus, the notion of studies encompasses the first and second cycles of studies (professional

bachelor’s, bachelor’s degree studies, and master’s degree studies), specified in Items 1 and 2 of

Paragraph 2 of Article 46 of the Law on Science and Studies, during which specialists are trained,

i.e. upon completing such studies, one is awarded the necessary professional qualification or the

scientific knowledge and analytical capabilities necessary for performing respective work are

acquired (Paragraphs 1 and 2 of Article 48 of the Law on Science and Studies), as well as the third

cycle of studies specified in Item 3 of Paragraph 2 of Article 46 of the Law on Science and Studies,

i.e. the doctoral studies the purpose of which is to prepare scientists who would be able to

independently conduct research and experimental (social, cultural) development work, and to solve

scientific problems (Paragraph 5 of Article 48 of the Law on Science and Studies). Carrying out

studies is one of the objectives of a university and a college (Item 1 of Paragraph 2 of Article 8,

22

Item 1 Paragraph 2 of Article 9 of the Law on Science and Studies), whereas training scientists is

one of the objectives of a university (Item 2 of Paragraph 2 of Article 8 of the Law on Science and

Studies). Thus, only universities and colleges can organise and carry out the studies necessary for

training specialists, whereas only universities can organise and carry out the doctoral studies.

2.7. It needs to be noted that with regard to schools of higher education and scientific

research institutes inter alia Article 53 of the Law on Science and Studies is applicable, in which

the academic community of institutions of science and studies and the academic freedom

guaranteed to it are defined. Under Paragraph 1 of this article, the academic community shall

consist of students, the teaching staff, scientific workers, other researchers, and professors emeritus

of institutions of science and studies.

Thus, academic freedom, which is inter alia defined in Paragraph 2 of Article 53 of the Law

on Science and Studies, which encompasses freedom of thought, freedom of expression, freedom to

choose methods of and access to research (artistic) and pedagogical activities, which is in

conformity with the accepted principles of ethics, protection against restrictions and sanctions for

making public the results of one’s research, and for the manifestation of one’s beliefs, with the

exception of the cases when the published information is a state or official secret and/or is in

violation of laws of the Republic of Lithuania, is guaranteed to members of the academic

community of scientific research institutes as well as members of the academic community of

schools of higher education; these members are also guaranteed the rights of academic community

(the rights of creative and intellectual work, equal rights to take part in competitions, objective and

open reviewing of scientific works) specified in Paragraph 3 of the same article.

2.8. Summing up the legal regulation of institutions of science and studies, which is

established in the Law on Science and Studies, it needs to be held that the legislator has chosen the

model of organising science and studies whereby inter alia:

– there are two groups of institutions of science and studies: schools of higher education and

scientific research institutes (Article 5 of the Law on Science and Studies);

– the differences of the legal regulation of the status, inter alia the rights and objectives, of

these two groups are objectively justified, since they are related with different purpose of schools of

higher education and scientific research institutes: carrying out studies and scientific research are

ascribed to the competence of schools of higher education; the main activity of scientific research

institutes is not carrying out studies, but scientific research and experimental (social, cultural)

development;

– studies are a component part of training scientists and specialists;

– the academic communities of both groups of institutions of science and studies are

guaranteed inter alia freedom of science and research, which is an essential element of academic

23

autonomy.

2.9. It has been mentioned that, under the Constitution, while heeding autonomy of schools

of higher education, the legislator has broad discretion to choose and regulate a concrete model of

organising science and studies, which meets best the needs of development of the progress of the

state and society in a particulate period of time; having chosen a concrete model, the legislator must

ensure uniform standards of higher education rendered by institutions of science and studies, inter

alia those of training of scientists and specialists.

It has also been mentioned that, in the Law on Science and Studies, the legislator established

the model of organising science and studies whereby studies are a component part of training

scientists and specialists and there are two groups of institutions of science and studies: schools of

higher education and scientific research institutes; carrying out studies and scientific research are

ascribed to the competence of schools of higher education, whereas the main activity of scientific

research institutes is not carrying out studies, but scientific research and experimental (social,

cultural) development. It has also been mentioned that the academic communities of both groups of

institutions of science and studies are guaranteed inter alia freedom of science and research, which

is an essential element of academic autonomy.

Thus, one is to draw a conclusion that if the legislator chose such a model of organisation of

science and studies, in which scientific research institutes, which do not organise and carry out

studies, are allowed to train scientists and specialists without schools of higher education, one

would create no preconditions for ensuring the uniform standards of higher education provided by

institutions of science and studies, inter alia those of training scientists and specialists.

2.10. Taking account of the arguments set forth, one is to draw a conclusion that Item 4 of

Paragraph 1 of Article 11 of the Law on Science and Studies is not in conflict with Paragraph 1 of

Article 42 of the Constitution.

2.11. It needs to be noted that the other provisions of the Constitution specified by the

petitioner, i.e. the provisions with which, according to the petitioner, the provision of Item 4 of

Paragraph 1 of Article 11 of the Law on Science and Studies is in conflict, are related with

Paragraph 1 of Article 42 of the Constitution, in which the principle of academic freedom, or

freedom of science, research, and teaching, is entrenched. As mentioned, the freedom of each

human being to choose a job or business, which is entrenched in Paragraph 1 of Article 48 of the

Constitution, also implies the right to freely choose a profession and acquire it; this freedom

includes the human right to freely decide himself whether to engage in science and research; the

opportunity to freely choose a job or business guaranteed in Paragraph 1 of Article 48 of the

Constitution is related to the provision of Paragraph 1 of Article 46 of the Constitution in which

freedom of economic activity and initiative of a person is entrenched: freedom of economic activity

24

and initiative of a person implies his freedom to choose a job or business.

While taking account of this, one is to draw a conclusion that Item 4 of Paragraph 1 of

Article 11 of the Law on Science and Studies is also not in conflict with Paragraph 1 of Article 46

and Paragraph 1 of Article 48 of the Constitution as well as with the constitutional principle of a

state under the rule of law.

3. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 3 of

Article 8, Paragraph 3 of Article 9 of the Law on Science and Studies are not in conflict with

Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the

rule of law.

3.1. Paragraph 2 of Article 8 of the Law on Science and Studies provides:

“More than half of the teaching staff of a university must be scientists and/or established

artists.”

Paragraph 3 of Article 9 of the Law on Science and Studies provides:

“More than a half of the teaching staff of a college must have at least three-year practical

work experience in the sphere of a subject they teach. The qualification in the sphere of a taught

subject must be improved in accordance with the procedure laid down by the college. Subjects

which must be taught at colleges by the teaching staff members with a scientific degree shall be

determined by descriptions of a study field, a set of study fields or a study area.”

3.2. In Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on Education and

Science the same requirements are established for the teaching staff of schools of higher education:

in Paragraph 3 of Article 8—to the teaching staff of all universities, whereas in Paragraph 3 of

Article 9—to the teaching staff of all colleges. “Teachers” means persons who educate and teach

students and learners in a higher education institution (Paragraph 7 of Article 4 of the Law on

Science and Studies). Thus, the requirements established in Paragraph 3 of Article 8 and Paragraph

3 of Article 9 of the Law on Science and Studies are related to the quality of education and teaching

in a school of higher education.

“Scientist” means a researcher who has a scientific degree (Paragraph 12 of Article 4 of the

Law on Science and Studies). “Established artist” means a creator or a performer of artistic works

whose creative activities are defined by the works which are especially significant for art and

culture and have been implemented in Lithuania or/and abroad, gained a wide recognition of the

public and art specialists, acknowledged with prestigious international or national prizes and other

high awards, or/and who has educated distinguished artists and meets the requirements set by a

higher education institution in which he seeks to hold or already holds a position (Paragraph 17 of

Article 4 of the Law on Science and Studies). Thus, the disputed provision of Paragraph 3 of Article

8 of the Law on Science and Studies is the uniform requirement for the quality of the teaching staff

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of all universities: more than half of the teachers, who educate and teach students and learners in

universities, must be researchers with a scientific degree and/or creators or performers of artistic

works whose creative activities are defined by the works which are especially significant for art and

culture and/or who have educated distinguished artists.

The uniform requirement for the quality of the teaching staff of colleges is at least three-year

practical work experience in the sphere of a subject they teach. This requirement must be met by

more than half of the teaching staff of colleges.

3.3. The petitioner is maintaining that the legal regulation established in Paragraph 3 of

Article 8 and Paragraph 3 of Article 9 of the Law on Science and Studies violates autonomy of

schools of higher education and the Constitutional principle of a state under the rule of law.

3.4. It has been mentioned that autonomy of schools of higher education (which is granted to

them under Paragraph 3 of Article 40 of the Constitution) is to be construed in the context of the

constitutional obligation of the state to supervise the activity of educational establishments and the

constitutional obligation to secure that the level of provided higher education, which is marked by

corresponding qualification degrees, would comply with certain uniform standards of the quality of

higher education. It has also been mentioned that the arising from the Constitution guarantee of

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, i.e. those defining the requirements for certain areas

of studies. Such standards must be established by the state institutions which, within their

competence, form the higher education policy, and organise and implement the supervision of the

activity of schools of higher education.

In its ruling of 13 June 2000, the Constitutional Court noted that supervision of activities of

establishments of teaching and education includes the supervision of control how the Constitution

and laws are observed; for this purpose, the state (its institutions) may resort to various ways and

forms of control established by laws. By the state supervision of activities of establishments of

teaching and education equal observance of the standards of education and learning is ensured, and

the compliance of contents and level of education and teaching with the qualification recognised by

the state is guaranteed.

Thus, under the Constitution, the right of the state to establish the quality requirements for

higher education, inter alia those related with the qualification of teachers, does not deny per se

autonomy of schools of higher education, however, in the course of implementing this right one

must heed the imperatives arising from the Constitution, inter alia the constitutional principles of

26

proportionality and reasonableness, and the principle lex non cogit ad impossibilia (it is not allowed

that legal acts demand impossible things).

3.5. It has been mentioned that in Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of

the Law on Science and Studies certain uniform quality standards for higher education—

requirements for university and college teachers—are established. It has also been mentioned that,

under the Constitution, the right of the state to establish the quality requirements for higher

education, inter alia those related with the qualification of teachers, does not deny per se autonomy

of schools of higher education. Thus, the legal regulation of Paragraph 3 of Article 8 and Paragraph

3 of Article 9 of the Law on Science and Studies does not deny autonomy of schools of higher

education (inter alia academic autonomy implying freedom of scientific and pedagogical activity),

but it seeks to secure the quality of higher education provided by schools of higher education. In

addition, there are no grounds to assert that the disputed legal regulation violates the imperatives

arising from the Constitution, inter alia the constitutional principles of proportionality and

reasonableness as well as the principle lex non cogit ad impossibilia.

3.6. Taking account of the arguments set forth it needs to be held that Paragraph 3 of Article

8 and Paragraph 3 of Article 9 of the Law on Science and Studies are not in conflict with Paragraph

3 of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

4. The group of Members of the Seimas, a petitioner, has doubted whether Article 39 of the

Law on Science and Studies is not in conflict with Paragraph 3 of Article 40, Paragraph 1 of Article

42 of the Constitution and the constitutional principle of a state under the rule of law.

4.1. Article 39 of the Law on Science and Studies prescribes:

“1. Higher education institutions must ensure the unity of scientific (artistic) activities and

studies.

2. The unity of scientific (artistic) activities and studies at universities shall be ensured by

the participation of teaching staff and students in scientific research and experimental (social,

cultural) development (artistic activities), participation of scientific (art) workers in the study

process, conveyance of scientific knowledge and scientific (artistic) work skills in study

programmes of the second cycle and doctoral studies, commissioned scientific and experimental

(social, cultural) development (artistic) works carried out at universities for business, non-state and

public sector. Conducting of studies of the second cycle shall be related to the results of scientific

(artistic) activities carried out at a university. Scientific research (artistic) activities shall be

mandatory for students of the third cycle.

3. The unity of higher education and research at colleges shall be ensured through a close

contact with the practice—participation of teaching staff and students in applied scientific research

and experimental (social, cultural) development works commissioned by business, industrial and

27

other organisations, at regional development projects, in consulting activities.”

4.2. Article 39 of the Law on Science and Studies establishes and regulates the principle of

unity of scientific (artistic) activities and studies in schools of higher education. In universities the

implementation of this principle is ensured by the participation of teaching staff and students in

scientific research and experimental (social, cultural) development (artistic activities), participation

of scientific (art) workers in the study process, by conveying scientific knowledge and scientific

(artistic) work skills in study programmes of the second cycle and doctoral studies, by carrying out

commissioned scientific research and experimental (social, cultural) development (artistic) works

carried out at universities for business, non-state and public sector, also, this principle is ensured by

relating the conduct of studies of the second cycle to the results of scientific (artistic) activities

carried out at a university, and by carrying out, in a mandatory manner, scientific research (artistic)

activities by students of the third cycle. At colleges this principle is ensured through a close contact

with the practice—participation of teaching staff and students in applied scientific research and

experimental (social, cultural) development works commissioned by business, industrial and other

organisations, at regional development projects, and in consulting activities. Thus, while

participating in scientific (artistic) activities and in the study process, teachers of schools of higher

education can apply their theoretical knowledge in practice and impart this knowledge to students,

whereas students can gain the theoretical and practical knowledge necessary for the sought

professional qualification.

4.3. In this context it needs to be noted that the principle of science and teaching is

entrenched in the Magna Charta Universitatum. It proclaims that teaching and research in

universities must be inseparable if their tuition is not to lag behind changing needs, the demands of

society, and advances in scientific knowledge. The same charter points out that recruitment of

teachers, and regulation of their status, must obey the principle that research is inseparable from

teaching.

4.4. Thus, Article 39 of the Law on Science and Studies, wherein the principle of unity of

science (art) and studies is entrenched and implementation thereof is regulated, is designed for

ensuring the tight link between the scientific research work and the teaching process, which is one

of the preconditions for guaranteeing the quality of higher education. Such a link is necessary so

that the education provided by schools of higher education would be in conformity with changing

needs of progressive development of the state and society.

4.5. The petitioner has substantiated its doubts regarding the compliance of Article 39 of the

Law on Science and Studies by inter alia the provisions of the official constitutional doctrine

formulated in the Constitutional Court ruling of 5 May 2007 whereby, under the Constitution, no

scientific views may be thrust upon a person, he may not be forced to choose a certain sphere of

28

scientific research or not be permitted to choose it (save the exceptions stemming from the

Constitution), he may not be forced to perform certain scientific research or be prohibited from

performing certain scientific research (save the exceptions stemming from the Constitution), and to

publish or not to publish results of the performed scientific research; this is a matter of the

discretion of the person and his free choice.

4.6. Paragraph 3 of Article 40 of the Constitution provides: “Schools of higher education

shall be granted autonomy.” It has been mentioned that this provision is related to the provision of

Paragraph 1 of Article 42 of the Constitution in which freedom of science and research is

entrenched. The autonomy of schools of higher education inter alia encompasses academic

autonomy.

It has also been mentioned that autonomy of schools of higher education is to be construed

in the context of the constitutional obligation of the state to supervise the activity of educational

establishments and the constitutional obligation to secure that the level of provided higher

education, which is marked by corresponding qualification degrees, would comply with certain

uniform standards of the quality of higher education; the arising from the Constitution guarantee of

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, i.e. those defining the requirements for certain areas

of studies. Such standards must be established by the state institutions which, within their

competence, form the higher education policy, and organise and implement the supervision of the

activity of schools of higher education.

It needs to be noted that also the legislator must create preconditions to ensure the quality of

higher education. In its ruling of 20 February 2008, the Constitutional Court held that the standards

of quality of higher education which must be met by a person aspiring to hold a certain position or

to be engaged in a certain professional activity must be established by the law.

In this context it also needs to be noted that, in its ruling of 20 March 2008, the

Constitutional Court held that 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; 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.

29

4.7. It has been mentioned that Article 39 of the Law on Science and Studies, wherein the

principle of unity of science (art) and studies is entrenched and implementation thereof is regulated,

is designed for ensuring the tight link between the scientific research work and the teaching process,

which is one of the preconditions for guaranteeing the quality of higher education; such a link is

necessary so that the education provided by schools of higher education would be in conformity

with changing needs of progressive development of the state and society.

Thus, by such legal regulation the legislator implements the powers granted to it by the

Constitution to create preconditions to ensure the quality of higher education, inter alia to guarantee

that the level of higher education provided by schools of higher education, marked by

corresponding qualification degrees, will meet certain uniform standards of higher education.

Without establishing and implementing the principle of unity of scientific (artistic) activity and

studies, one would not ensure the necessary standards of higher education, i.e. schools of higher

education would not prepare specialists who meet the standards of higher education applied to those

wishing to take a certain position or engage in a certain professional activity, also, one would not

reach the other objectives of schools of higher education established in Paragraph 2 of Article 8 of

the Law on Science and Studies (inter alia objectives of the university to carry out studies which

provide to a person the university higher education and a higher education qualification based on

scientific research and corresponding to the modern level of knowledge and technologies, develop a

thoroughly educated, ethically responsible, creative and entrepreneurial person, to develop society

receptive to education, sciences, arts and culture, which is able to effectively make use of science

and compete in the market of high technologies, products and services), and Paragraph 2 of Article

9 thereof (inter alia objectives of colleges to carry out studies which provide to a person the college

higher education and a higher education qualification satisfying the needs of the State, society and

economy of Lithuania, and conform to the level of science and latest technologies, to create

conditions for persons to improve their acquired knowledge and skills, to develop society receptive

to education and culture, which is able to work under the conditions of rapid technology change).

Alongside, the provisions of Article 39 of the Law on Science and Studies do not thrust upon

anyone any scientific views, they do not force anyone to choose a certain sphere of scientific

research or prohibit from choosing it, they do not force anyone to perform certain scientific research

or prohibit from performing certain scientific research, they do not violate autonomy of schools of

higher education.

4.8. Taking account of the arguments set forth, one is to draw a conclusion that Article 39 of

the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40, Paragraph 1 of

Article 42 of the Constitution and the constitutional principle of a state under the rule of law.

5. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 4 of

30

Article 53 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

5.1. Paragraph 4 of Article 53 of the Law on Science and Studies provides:

“The academic community shall make use of the academic freedom and acts in compliance

with the Code of Academic Ethics, which is prepared and approved by science and studies

institutions in accordance with the recommendations of the supervisor of academic ethics and

procedures.”

Thus, the Code of Academic Ethics, in compliance with which the academic community

acts, is prepared and approved in accordance with the recommendations of the supervisor of

academic ethics and procedures. Article 18 of the Law on Science and Studies provides that the

supervisor of academic ethics and procedures shall be a state official who examines complaints and

initiates investigation regarding the violation of academic ethics and procedures (Paragraph 1), and

that the Seimas shall appoint the supervisor for the term of five years on the recommendation of the

Research Council of Lithuania (Paragraph 2).

While discharging his functions, the supervisor of academic ethics and procedures has the

right inter alia to inform institutions of science and studies and the Ministry of Education and

Science about the persons who have violated the academic ethics and procedures, to recommend the

institutions of science and studies to revoke the decision taken on the basis of the documents

regulating the academic ethics and procedures, to recommend to an employee to refuse participating

in an ongoing project of research and experimental (social, cultural) development, to inform an

institution responsible for a specific sphere about the persons (authors) who have suffered from

violations of the academic ethics, to make public the cases about the violation of academic ethics

and procedures (Paragraph 12 of Article 18 of the Law on Science and Studies). Thus, while

implementing these powers, the supervisor of academic ethics and procedures contributes to the

improvement of standards of academic ethics and, alongside, to the quality of higher education. In

this context it needs to be mentioned that, under Sub-item 6 of Item 12 of the Regulations for the

Service of the Supervisor of Academic Ethics and Procedures, approved by Seimas Resolution No.

XI-1583 “On Founding the Service of the Supervisor of Academic Ethics and Procedures of the

Republic of Lithuania and on Approving the Regulations for the Service of the Supervisor of

Academic Ethics and Procedures of the Republic of Lithuania” of 15 September 2011 (which was

adopted while invoking Paragraph 14 of Article 18 of the Law on Science and Studies), one of the

tasks is the supervisor of academic ethics and procedures is contribution to the quality of science

and studies while fostering the principles of academic responsibility and ethical scientific practices,

while applying preventive measures against plagiarism, illegal copying or other illegal use of results

of intellectual property created by other persons, as well as against forging, falsifying or

31

manipulating scientific research data.

While summing up the legal regulation established in Paragraph 4 of Article 53 of the Law

on Science and Studies, it needs to be noted that recommendations of the supervisor of academic

ethics and procedures regarding the Code of Academic Ethics prepared and approved by the

institution of science and studies reveals what is the recommended standard acceptable to the

academic community of all institutions of science and studies. While taking account of the

recommendations of the supervisor of academic ethics and procedures, as well as of the specificity

of activity of a respective academic community and of the traditions of good academic practice,

each institution of science and studies (a school of higher education or an institute of scientific

research) prepares and approves its code of academic ethics.

5.2. The doubts of the petitioner regarding the compliance of Paragraph 4 of Article 53 of

the Law on Science and Studies with the Constitution are substantiated by the fact that, according to

the petitioner, the supervisor of academic ethics and procedures, while being a state official

appointed by the Seimas, has a possibility to violate autonomy of schools of higher education, when

he is submitting recommendations regarding the Code of Academic Ethics.

5.3. The autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of

the Constitution implies academic and institutional autonomy. In its ruling of 27 June 1994, the

Constitutional Court, while construing the provision of Paragraph 3 of Article 40 of the

Constitution, whereby schools of higher education shall be granted autonomy, held that,

historically, the idea of the autonomy of the school of higher education came into being in the

Middle Ages, when universities originated as establishments of science and studies. The autonomy

meant that the university, to a certain extent, was independent from the state, was striving to

dissociate itself from the influence of political power, to create an independent system of regulation

of internal activities within the school of higher education. The purpose of such dissociation from

the state power was to safeguard the freedom of science, research and teaching, to protect

researchers and professors from political influence. The development of the academic autonomy has

always been determined by the understanding that science and teaching may normally exist and

induce progress only when they are free and independent. Thus appeared the principle of academic

freedom, which expressed the striving to protect the researchers’ and teachers’ freedom of scientific

thought and its expression from outward influence. Traditionally, the autonomy of the school of

higher education is conceived as the right to independently determine and establish in the

regulations or statute the organisational and governance structure, relations with other partners, the

procedure of research and studies, study programmes and the procedure of student enrolment, to

solve other related questions, to use the property given over by the state and other acquired

property, to possess the territory, buildings and other property allotted for the needs of research and

32

studies, and to have the guarantee of inviolability. For this purpose, the school of higher education

is guaranteed the institutional autonomy, i.e. a certain status, which means that there are certain

spheres of activities independent from the control of the executive power (Constitutional Court

rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008, 20 March 2008,

decision of 28 October 2009).

On the other hand, the interests of schools of higher education and those of society must be

adjusted; autonomy of schools of higher education must be coordinated with their duty to observe

the Constitution and laws and with responsibility and accountability to society (Constitutional Court

rulings of 5 February 2002 and 20 March 2008). Granting autonomy to schools of higher education

does not relieve the state from its constitutional obligation to secure the efficiency of the system of

higher education; therefore, 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; such a conclusion

follows also 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 freedom of

scientific and educational activity of schools of higher education (Constitutional Court rulings of 27

June 1994, 5 February 2002, 20 February 2008, and 20 March 2008, decision of 28 October 2009).

In the constitutional justice case at issue it has been mentioned that supervision of activities

of establishments of teaching and education includes the supervision of control how the

Constitution and laws are observed; for this purpose, the state (its institutions) may resort to various

ways and forms of control established by laws. By the state supervision of activities of

establishments of teaching and education equal observance of the standards of education and

learning is ensured, and the compliance of contents and level of education and teaching with the

qualification recognised by the state is guaranteed (Constitutional Court ruling of 13 June 2000).

In the constitutional justice case at issue it has also been held that the right of the state to

establish the quality requirements for higher education per se does not deny the autonomy of

schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution. It needs to

be noted that the quality of higher education is related inter alia to heeding the norms of academic

ethics while pursuing activities of science and studies. Therefore, while seeking to ensure inter alia

the quality of higher education, the state may establish recommended standards of academic ethics

and procedures.

5.4. It has been mentioned that the recommendations of the supervisor of academic ethics

and procedures mentioned in Paragraph 4 of Article 53 of the Law on Science and Studies, whereby

33

institutions of science and studies prepare and approve their codes of academic ethics, disclose the

recommended standard acceptable to the academic community of all institutions of science and

studies; in addition, while taking account of the recommendations of the supervisor of academic

ethics and procedures, of the specificity of activity of the academic community and of the traditions

of good academic practice, each institution of science and studies (a school of higher education or

an institute of scientific research) prepares and approves its code of academic ethics.

It has also been mentioned that the right of the state to establish the quality requirements for

higher education, inter alia those related with the heeding the norms of academic ethics, per se does

not deny autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the

Constitution; while seeking to ensure inter alia the quality of higher education, the state may

establish recommendable standards of academic ethics and procedures.

5.5. Taking account of the arguments set forth it needs to be held that Paragraph 4 of Article

53 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

II

On the compliance of the provision of Paragraph 4 of Article 6 and Paragraph 1 of

Article 8 of the Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution

and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether the provision “A

state school of higher education shall be a public legal person functioning as a public establishment,

possessing the autonomy guaranteed by the Constitution of the Republic of Lithuania, and the

special status defined by this and other laws” of Paragraph 4 of Article 6 of the Law on Science and

Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional

principle of a state under the rule of law.

The group of Members of the Seimas, a petitioner, has also doubted whether Paragraph 1 of

Article 8 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

Paragraph 1 of Article 8 of the Law on Science and Studies provides:

“The university shall carry out university studies, conduct scientific research, experimental

(social, cultural) development and/or develop high-level professional art. The name of a school of

higher education carrying out this activity must contain the word ‘university’ or ‘academy’, or

‘seminary’.”

It needs to be mentioned that the university is one of the two types of schools of higher

education (Paragraph 1 of Article 6 of the Law on Science and Studies). Thus, it is clear from the

arguments of the petitioner that it is disputing the provision of Paragraph 1 of Article 8 of the Law

34

on Science and Studies inasmuch as it is established therein that the name of a school of higher

education of the university type must contain the word “university” or “academy”, or “seminary”.

2. The provision (which is being disputed by the petitioner) of Paragraph 4 of Article 6 of

the Law on Science and Studies has entrenched the sole legal form of a state school of higher

education as a public legal person, which is a public establishment.

Under Paragraph 1 of Article 2 of the Republic of Lithuania Law on Public Establishments,

a public establishment shall be a non-profit public legal person of limited civil liability founded

according to this law and other laws, the aim of which is to satisfy public interests by carrying out

the educational, training and scientific, cultural, health care, environmental protection, sports

development, social or legal aid provision as well as other activities useful to the public. In this

context it needs to be noted that a state school of higher education, whose founder is the state,

satisfies the public interests while carrying out the educational, training, scientific and cultural

activities (under Paragraph 3 of Article 6 of the Law on Science and Studies, the state school of

higher education shall organize and carry out studies, award higher education qualifications,

conduct scientific research, pursue experimental (social, cultural) development and/or artistic

activity, apply results of the research and experimental (social, cultural) development, accumulate

scientific knowledge, develop creative activity and culture, foster values and traditions of the

academic community).

Alongside, Paragraph 4 of Article 6 of the Law on Science and Studies prescribes that the

state school of higher education possesses the autonomy guaranteed by the Constitution of the

Republic of Lithuania, and the special status defined by this and other laws. Thus the legislator has

recognised the autonomy (guaranteed by the Constitution) to the state school of higher education

and established the special legal status related to such autonomy; this legal status is concretised in

other provisions of the Law on Science and Studies, inter alia in the ones regulating the

peculiarities of the governance of the school of higher education and those of the science (art) and

studies’ activity, which are necessary to ensure the institutional and academic autonomy of the state

school of higher education.

3. The provision (disputed by the petitioner) of Paragraph 1 of Article 8 of the Law on

Science and Studies provides that the name of a school of higher education of the university type

must contain the word “university” or “academy”, or “seminary”. Paragraph 1 of Article 8 of the

Law on Science and Studies also provides that the university shall carry out university studies,

conduct scientific research, experimental (social, cultural) development and/or develop high-level

professional art.

4. The doubts of the petitioner regarding the provision of Paragraph 4 of Article 6 of the

Law on Science and Studies are substantiated by the fact that, according to the petitioner, while

35

regulating all state schools of higher education only as public establishments, the legislator could

negate the variety of schools of higher education. The petitioner has also paid attention to the fact

that as regards institutes, this law has provided even two types of state scientific institutes—

budgetary establishments or public establishments.

5. The doubts of the petitioner regarding the disputed provision of Paragraph 1 of Article 8

of the Law on Science and Studies are substantiated by the fact that the limitation of the names of

the schools of higher education conducting the activities of a university only to three possible

variants may be in conflict with the principle of autonomy of schools of higher education, since the

schools conducting the activities of a university are not allowed to choose other names; in addition,

the legislator may oblige to change a traditional name of the university.

6. As mentioned, in its ruling of 27 June 1994, the Constitutional Court construed the

provision of Paragraph 3 of Article 40 of the Constitution and stated that, traditionally, the

autonomy of the school of higher education is conceived as the right to independently determine

and establish in the regulations or statute the organisational and governmental structure, relations

with other partners, the order of research and studies, academic syllabus, the order of student

enrolment, to resolve other related questions, to use the property given over by the state as well as

newly acquired, to possess the territory and buildings as well as other property, allotted for the

needs of research and studies, to have the guarantee of inviolability. For this purpose, the school of

higher education is guaranteed the institutional autonomy, i.e. a certain status, which means that

there are certain spheres of activities independent from the control of the executive power

(Constitutional Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February

2008, 20 March 2008, decision of 28 October 2009).

7. It needs to be noted that Paragraph 3 of Article 40 of the Constitution must be construed

while taking account of inter alia Paragraph 4 of Article 40 of the Constitution, in which it is

established that “The State shall supervise the activities of establishments of teaching and

education”. 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 follows also 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 freedom of scientific and educational

activity of schools of higher education (Constitutional Court rulings of 27 June 1994, 5 February

2002 and 20 February 2008, decision of 28 October 2009).

In this context it needs to be noted that, under the Constitution, the establishment of the legal

36

form for the state school of higher education as a public legal person and the establishment of

mandatory words in names of the schools of higher education of the university type per se do not

deny the freedom of scientific and educational activity of the school of higher education and self-

government of the academic community, i.e. the academic and institutional autonomy of schools of

higher education. The legislator enjoys the discretion to establish the legal form of a state school of

higher education and the words mandatory in the name of a school of higher education. However,

the legal form of a state school of higher education as a public legal person must be in line with the

purpose of the school, which is to satisfy public interests, in a non-profit manner, while carrying out

the educational, training, scientific and cultural activity. On the other hand, the words specified in a

mandatory manner in the names of schools of higher education must be in line with the type of the

school of higher education and with the level and specificity of the studies and scientific research

and those of the higher education provided by such a school.

8. It has been mentioned that, under Paragraph 4 of Article 6 of the Law on Science and

Studies, the legislator established the only form of a state school of higher education as a public

legal person—a state school of higher education must function as a public establishment (i.e. a non-

profit public legal person of limited civil liability, the aim of which is to satisfy public interests inter

alia by carrying out the educational, training and scientific, and cultural activities); alongside, the

autonomy (guaranteed by the Constitution) is recognised to the state school of higher education and

the special legal status related to such autonomy is established; this legal status is concretised in

other provisions of the Law on Science and Studies, inter alia in the ones regulating the

peculiarities of the governance of the school of higher education and those of the science (art) and

studies’ activity, which are necessary to ensure the institutional and academic autonomy of the state

school of higher education. It has also been mentioned that Paragraph 1 of Article 8 of the Law on

Science and Studies provides that the name of a school of higher education of the university type

must contain the word “university” or “academy”, or “seminary”; the university shall carry out

university studies, conduct scientific research, experimental (social, cultural) development and/or

develop high-level professional art.

It has also been mentioned that, under the Constitution, the establishment of the legal form

for the state school of higher education as a public legal person and the establishment of mandatory

words in names of the schools of higher education of the university type per se do not deny the

freedom of scientific and educational activity of the school of higher education and self-government

of the academic community, i.e. the academic and institutional autonomy of schools of higher

education; the legal form of a state school of higher education as a public legal person must be in

line with the purpose of the school, which is to satisfy public interests, in a non-profit manner, while

carrying out the educational, training, scientific and cultural activity, whereas the words specified in

37

a mandatory manner in the names of schools of higher education must be in line with the type of the

school of higher education and with the level and specificity of the studies and scientific research

and those of the higher education provided by such a school.

8.1. The only legal form of a state school of higher education as a public legal person—a

public establishment—established in Paragraph 4 of Article 6 of the Law on Science and Studies, is

in line with the aim of the state school of higher education to satisfy public interests, in a non-profit

manner, by carrying out the educational, training, scientific, and cultural activities. Thus, having

established such a legal form of a state school of higher education autonomy of schools of higher

education is not denied.

8.2. The requirement established in Paragraph 1 of Article 8 of the Law on Science and

Studies to indicate the word “university” or “academy”, or “seminary” is in line with the type of this

school of higher education and the level and specificity of the university studies and scientific

research and with the level and specificity of the higher education provided by such a school. Thus,

having established such mandatory words in the names of university type schools of higher

education one does not deny the autonomy of schools of higher education.

9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 4 of

Article 6 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law, also that Paragraph 1 of

Article 8 of the Law on Science and Studies inasmuch as it is established therein that the name of a

school of higher education of the university type must contain the word “university” or “academy”,

or “seminary” is not in conflict with Paragraph 3 of Article 40 of the Constitution and the

constitutional principle of a state under the rule of law.

III

On the compliance of Item 2 of Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of

Article 11 of the Law on Science and Studies with Paragraphs 1 and 4 of Article 46 of the

Constitution and the constitutional principles of a state under the rule of law and equality of

persons.

1. The group of Members of the Seimas, a petitioner, has doubted whether Item 2 of

Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies

are not in conflict with Paragraphs 1 and 4 of Article 46 of the Constitution and the constitutional

principles of a state under the rule of law and equality of persons.

2. Item 2 of Paragraph 3 of Article 7 of the Law on Science and Studies prescribes:

“A school of higher education must:

<...>

2) inform the founders, members of the legal person, and the public about quality assurance

38

measures in studies and scientific activities, and in case of state schools of higher education—also

about their financial, economic and scientific activities and the use of funds; the results of external

quality evaluation and accreditation of their study programmes.”

Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies prescribes:

“A scientific institute must:

<...>

2) inform the founder (members of the legal person) and the public about the quality

assurance measures in scientific activity, and in case of a state research institute—also inform about

its financial, economic activities and the use of funds.”

3. In this context it needs to be noted that Paragraph 1 of Article 67 of the Law on Science

and Studies provides for a possibility to allocate state budget funds to institutions of science and

studies. Such funds can be allocated to both state and non-state institutions of higher education

(schools of higher education and scientific research institutes). Funds of the basic financing of the

state budget and funds of state investment programmes as well as of state investment projects may

be allocated only to state institutions of science and studies (Items 1 and 3 of Paragraph 1 of Article

67 of the Law on Science and Studies). Funds of the state budget for studies, financing of scientific

research from the state budget on a programme and competition basis and funds of state foundations

may be allocated to both state and non-state institutions of science and studies (Items 2, 5 and 6 of

Paragraph 1 of Article 67 of the Law on Science and Studies).

4. Thus, Item 2 of Paragraph 3 of Article 7 of the Law on Science and Studies has

established different duties of state and non-state schools of higher education related to information

about their activity and use of the funds. All (state and non-state) schools of higher education must

inform the founder, members of the legal person, and the public about the quality assurance

measures in studies and scientific activity, the results of external quality evaluation and

accreditation of their study programmes. State schools of higher education also must inform their

founder and the public about their financial, economic and scientific activities and the use of funds,

whereas non-state schools of higher education do not have such a duty even in cases when they are

allocated funds form the state budget.

A similar legal regulation regarding scientific research institutes is established in Item 2 of

Paragraph 2 of Article 11 of the Law on Science and Studies. All (state and non-state) institutes of

scientific research must inform their founders (members of the legal person) and the public about

the quality assurance measures in scientific activity. State institutes of scientific research also must

inform their founder (members of the legal person) and the public about their financial, economic

activities and the use of funds, whereas non-state institutes of scientific research do not have such a

duty even in cases when they are allocated funds form the state budget.

39

5. The doubts of the petitioner regarding the compliance of Item 2 of Paragraph 2 of Article

7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies with the Constitution

are substantiated by the fact that, in the opinion of the petitioner, a duty should arise for such a

subject to inform society of its financial, economic and scientific activities as well as the use of its

funds, because the subject has been allocated funds of the state, therefore, a non-state school of

higher education and a non-state scientific research institute, which receive the funds of the state

budget or the funds of the state financed programmes, should also be obliged to account to society

for their financial, economic and scientific activities as well as the use of their funds—at least to the

extent the said funds have been used.

6. It needs to be noted that 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, a

duty arises to the state when it regulates the relations linked with the school of higher education, to

establish such legal regulation, which would not distort fair competition, also to consolidate various

measures of protection of consumers of higher education services (Constitutional Court ruling of 20

March 2008).

In the constitutional justice case at issue it has been mentioned that the interests of schools

of higher education and society must be adjusted; autonomy of schools of higher education must be

coordinated with their duty to observe the Constitution and laws and with responsibility and

accountability to society (Constitutional Court ruling of 5 February 2002). Schools of higher

education must act in compliance with the Constitution and law; making use of the autonomy

guaranteed to them by the Constitution by no means may create preconditions for abuse of such

autonomy.

7. In its ruling of 5 February 2002, the Constitutional Court held that, although Paragraph 1

of Article 134 of the Constitution provides that the State Control shall supervise the lawfulness of

the possession and use of state property and the execution of the State Budget, however, this does

not mean that the legislature does not have a right to establish other forms of supervision, too. After

it has allocated funds for financing the schools of higher education, the state has the right to know

how these funds are used (Constitutional Court decision of 28 October 2009).

A school of higher education which receives funds from the state budget must account for

proper use of the received funds, while it is within the discretion of the legislator to establish by law

the manner and means of control of the use of the funds (Constitutional Court ruling of 5 February

2002, decision of 28 October 2009). These provisions of the constitutional doctrine are applicable

also to the legal regulation related to allocation of funds of the state budget to scientific research

40

institutes.

In this context it needs to be noted that, while co-ordinating autonomy of schools of higher

education with their responsibility and accountability for society, the legislator has a duty to

establish the legal regulation whereby all (state and non-state) schools of higher education and all

state and non-state scientific research institutes should inform society of the use of the funds of the

state budget allocated to them.

8. In Paragraph 1 of Article 29 of the Constitution the principle of equality of rights of

persons is entrenched. The Constitutional Court has held more than once that the constitutional

principle of equality of persons must be followed in the course of both enactment of laws and their

application; the constitutional principle of equality of persons before the law means an innate

human right to be treated equally with the others (Constitutional Court rulings of 3 February 2010,

22 March 2010, decision of 20 April 2010, rulings of 29 June 2010, 14 February 2011) and obliges

to legally assess the homogenous facts in the same manner and prohibits to arbitrarily assess the

facts, which are the same in essence, in a different manner (Constitutional Court decision of 20

April 2010, rulings of 29 June 2010, 14 February 2011).

The Constitutional Court has held more than once that the constitutional principle of

equality of all persons before the law would be violated when a certain group of people to which the

legal norm is ascribed, if compared to other addressees of the same legal norm, were treated

differently, even though there are not any differences in their character and extent between these

groups that such an uneven treatment would be objectively justified; while assessing whether an

established different legal regulation is a grounded one, particular legal circumstances must be

taken into account; first of all, differences of the legal situation of subjects and objects to which

different legal regulation is applied must be considered (Constitutional Court ruling of 8 June 2009,

decision of 20 April 2010, rulings of 29 June 2010, 14 February 2011).

9. It needs to be noted that the constitutional grounds of the possession, use and disposal of

state property are entrenched in inter alia Paragraph 2 of Article 128 of the Constitution, wherein it

is established that the procedure for the possession, use and disposal of state property shall be

established by law.

The provisions of Paragraph 2 of Article 128 of the Constitution are inseparable from other

provisions of the Constitution, inter alia the provisions that citizens who are good at their studies

shall be guaranteed education at state schools of higher education free of charge (Paragraph 3 of

Article 41 of the Constitution), the state shall support science (Paragraph 2 of Article 42 of the

Constitution).

From the Constitution, inter alia Paragraph 2 of Article 128 thereof, follows the requirement

to treasure state-owned property, not to waste it and manage it rationally (Constitutional Court

41

rulings of 30 September 2003, 5 July 2007, and 20 March 2008). It needs to be noted that Paragraph

2 of Article 128 of the Constitution inter alia implies the requirement to establish the legal

regulation which would ensure proper use of the funds of the state budget allocated to institutions of

science and studies. Thus, the legislator, while regulating the allocation and use of funds of the state

budget to institutions of science and studies, must establish the duty of all institutions of science and

studies to account for the use of the funds of the state budget allocated to them.

10. While assessing the legal regulation established in Item 2 of Paragraph 3 of Article 7 and

Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies, it needs to be noted that

state schools of higher education and state scientific research institutes, if compared to non-state

schools of higher education and non-state scientific research institutes, are treated in a different

manner, even though there are not any differences of such nature and extent with respect to their

accountability for the use of funds of the state budget allocated to them so that such different

treatment would be objectively justifiable, therefore, the disputed provisions violate the

constitutional principle of equality of all persons before the law.

It has been mentioned that, while co-ordinating autonomy of schools of higher education

with their responsibility and accountability for society, the legislator has a duty to establish the legal

regulation whereby all (state and non-state) schools of higher education and all (state and non-state

scientific research institutes) should inform society of the use of the funds of the state budget

allocated to them; this duty inter alia arises from Paragraph 2 of Article 128 of the Constitution.

It has also been mentioned that Item 2 of Paragraph 3 of Article 7 of the Law on Science and

Studies established no such duty for non-state schools of higher education, whereas Item 2 of

Paragraph 2 of Article 11 thereof established no such duty for non-state scientific research institute.

11. Taking account of the arguments set forth it needs to be held that Item 2 of Paragraph 3

of Article 7 of the Law on Science and Studies to the extent that it does not establish a duty of non-

state schools of higher education to account to society for the use of funds of the state budget

allocated to them, and, Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies to the

extent that it does not establish a duty of non-state scientific research institutes to account to society

for the use of funds of the state budget allocated to them, are in conflict with Paragraph 1 of Article

29 and Paragraph 2 of Article 128 of the Constitution.

Having held this, the Constitutional Court will not further investigate whether Item 2 of

Paragraph 3 of Article 7 and Item 2 of Paragraph 2 of Article 11 of the Law on Science and Studies

are not in conflict with Paragraphs 1 and 4 of Article 46 of the Constitution and the constitutional

principle of a state under the rule of law.

IV

On the compliance of Paragraph 2 of Article 17 of the Law on Science and Studies with

42

Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of

the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 2 of

Article 17 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 33,

Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution and the

constitutional principle of a state under the rule of law.

2. Paragraph 2 of Article 17 of the Law on Science and Studies provides:

“A collegial body of governance of the Centre for Quality Assessment in Higher Education

shall be the Council of the Centre for Quality Assessment in Higher Education, which consists of 11

members. They shall be appointed for the term of six years by: the Seimas, on the recommendation

of the Committee on Education, Science and Culture, the Government, the Minister of Education

and Science, the Research Council of Lithuania together with the Lithuanian Academy of Sciences,

the senates of universities, the academic councils of colleges, unions of student representations of

schools of higher education of Lithuania, the Lithuanian Council of Culture and Art, the Lithuanian

Confederation of Industrialists, the Lithuanian Chamber of Commerce, Industry and Crafts, the

Knowledge Economy Forum. The composition of the Council of the Centre for Quality Assessment

in Higher Education shall be announced by the Minister of Education and Science. The Council of

the Centre for Quality Assessment in Higher Education shall draw up and approve its own rules of

procedure.”

3. Thus, the disputed Paragraph 2 of Article 17 of the Law on Science and Studies inter alia

established the procedure for forming the Council of the Centre for Quality Assessment in Higher

Education, a collegial body of the Centre for Quality Assessment in Higher Education. The

legislator established that the following subjects appoint one member each to the Council of the

Centre for Quality Assessment in Higher Education: the Seimas, on the recommendation of the

Committee on Education, Science and Culture, the Government, the Minister of Education and

Science, the Research Council of Lithuania together with the Lithuanian Academy of Sciences, the

senates of universities, the academic councils of colleges, unions of student representations of

schools of higher education of Lithuania, the Lithuanian Council of Culture and Art, the Lithuanian

Confederation of Industrialists, the Lithuanian Chamber of Commerce, Industry and Crafts, the

Knowledge Economy Forum.

It needs to be noted that one of the main tasks of the Centre for Quality Assessment in

Higher Education is to encourage the quality of activities of schools of higher education through an

external assessment and accreditation of institutions and study programmes (Item 1 of Paragraph 1

of Article 17 of the Law on Science and Studies). Thus, the legislator granted the competence to the

Centre for Quality Assessment in Higher Education to contribute to improvement of quality of

43

activity of schools of higher education, to supervise and assess activity of schools of higher

education in the quality aspect, to implement the policy of supervision of quality of higher

education. The Centre for Quality Assessment in Higher Education is to be regarded as an

institution supervising the implementation of the state education policy.

4. The petitioner, while requesting to investigate the compliance of the Law on Science and

Studies with the Constitution, is doubting whether a collegial body of governance of the Centre for

Quality Assessment in Higher Education, as a state budgetary establishment, may also be formed

from non-governmental, public organisations and those representing the interests of private persons,

and it also points out that due to the disputed legal regulation there has emerged such an

unreasonable situation where, by the will of the state, a certain concrete non-governmental subject

is granted the right and duty to appoint members of the Centre for Quality Assessment in Higher

Education, whereas the other subject is not granted such a right and duty.

5. In the constitutional justice case at issue it has been mentioned that the autonomy of

schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies

academic and institutional autonomy. In the jurisprudence of the Constitutional Court it has been

held 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 governance

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 of the executive power (Constitutional

Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008 and 20 March

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 (Constitutional

Court rulings of 5 February 2002 and 20 March 2008). On the other hand, the interests of schools of

higher education and those of society must be adjusted; autonomy of schools of higher education

must be coordinated with their duty to observe the Constitution and laws and with responsibility

and accountability to society (Constitutional Court ruling of 5 February 2002). Schools of higher

education must act in compliance with the Constitution and law; making use of the autonomy

guaranteed to them by the Constitution by no means may create preconditions for abuse of such

autonomy.

6. It has also been mentioned that the Constitutional Court has held more than once that

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, autonomy

of schools of higher education does not mean that the activity of such schools cannot be subject to

44

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 follows also 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 freedom of scientific and educational activity of schools of higher

education (Constitutional Court rulings of 27 June 1994, 5 February 2002, 20 February 2008, and

20 March 2008).

7. It needs to be noted that Paragraph 4 of Article 40 of the Constitution has entrenched not

only the right, but also the duty of the state to supervise the activities of establishments of teaching

and education.

In the constitutional justice case at issue it has been mentioned that supervision of activities

of establishments of teaching and education includes the supervision of control how the

Constitution and laws are observed; as regards this matter, the state (its institutions) may resort to

various ways and forms of control established by laws. By the state supervision of activities of

establishments of teaching and education equal observance of the standards of education and

learning is ensured, and the compliance of contents and level of education and teaching with the

qualification recognised by the state is guaranteed (Constitutional Court ruling of 13 June 2000).

It also needs to be noted that the legislator enjoys broad discretion to establish the procedure

for forming collegiate bodies of governance of institutions supervising the state education policy,

inter alia to establish the subjects appointing members of these bodies. However, while establishing

this procedure, the legislator must take account of the purposes of the institution supervising the

state education policy, and of the concernment, grounded on the public interest, of the subjects

appointing members of its collegiate body of governance to form and implement the state education

policy.

8. It has been mentioned that the disputed Paragraph 2 of Article 17 of the Law on Science

and Studies inter alia established the procedure for forming the Council of the Centre for Quality

Assessment in Higher Education, a collegial body of governance thereof. Seven members of the

Council of the Centre for Quality Assessment in Higher Education are appointed by one concrete

subject (the Seimas, the Government, the Minister of Education and Science, the Lithuanian

Council of Culture and Art, the Lithuanian Confederation of Industrialists, the Lithuanian Chamber

of Commerce, Industry and Crafts, the Knowledge Economy Forum), while four members are

appointed jointly by several subjects (the Research Council of Lithuania together with the

Lithuanian Academy of Sciences, the senates of universities, the academic councils of colleges,

unions of student representations of schools of higher education of Lithuania).

45

It has also been mentioned that the legislator enjoys broad discretion to establish the

procedure for forming collegiate bodies of governance of institutions supervising the state education

policy, inter alia to establish the subjects appointing members of these bodies; while establishing

this procedure, the legislator must take account of the purposes of the institution supervising the

state education policy, and of the concernment, grounded on the public interest, of the subjects

appointing members of its collegiate body of governance to form and implement the state education

policy. There are grounds to maintain that the subjects established in Paragraph 2 of Article 17 of

the Law on Science and Studies have the concernment, grounded on the public interest, regarding

the quality of carrying out the studies in higher education and that they could be represented at the

Council of the Centre for Quality Assessment in Higher Education.

9. In this context it needs to be noted that, while implementing its discretion to establish the

procedure for forming collegiate bodies of governance of institutions supervising the state education

policy, inter alia to establish the subjects appointing members of these bodies, the legislator may

also provide for other subjects which have the concernment, grounded on the public interest,

regarding the quality of carrying out the studies in higher education, and which would be granted

the right to appoint members of the Council of the Centre for Quality Assessment in Higher

Education.

10. In this context it also needs to be noted that, while implementing the social responsibility

falling upon them, the subjects which are established by the legislator and have the right to appoint

members of the Council of the Centre for Quality Assessment in Higher Education, should

implement this right so that preconditions would be created for the Council of the Centre for

Quality Assessment in Higher Education to discharge its functions properly; inter alia it means that

members of the Council of the Centre for Quality Assessment in Higher Education should be

persons of impeccable reputation, whose education and qualification would create preconditions for

ensuring qualified, efficient and responsible activity of this institution.

11. Taking account of the arguments set forth it needs to be held that by means of the legal

regulation established in Paragraph 2 of Article 17 of the Law on Science and Studies the legislator

properly implemented the discretion arising from Paragraph 4 of Article 40 of the Constitution to

establish the procedure for forming collegiate bodies of governance of institutions supervising the

state education policy, inter alia to establish the subjects appointing members of these bodies.

It needs to be noted that the implementation of such discretion of the legislator is not related

with the legal regulation of production, the market or fair competition, the right of citizens to

participate in the governance of their state as well as the right to enter on equal terms in the state

service, the right to freely form societies, political parties and associations, i.e. Paragraph 2 of

Article 17 of the Law on Science and Studies regulates the relations of different character than those

46

regulated in Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article

46 of the Constitution. Therefore, there are no arguments for maintaining that by means of the legal

regulation established in Paragraph 2 of Article 17 of the Law on Science and Studies the legislator

has created preconditions for violating the imperatives stemming from Paragraph 1 of Article 33,

Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution.

12. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2

of Article 17 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 33,

Paragraphs 1 and 2 of Article 35 and Paragraph 4 of Article 46 of the Constitution.

V

On the compliance of Paragraph 2 of Article 48 of the Law on Science and Studies with

Paragraphs 1, 3 of Article 40, Paragraph 1 of Article 42, and Paragraphs 3, 7 of Article 43 of

the Constitution and the constitutional principle of a state under the rule of law, and on the

compliance of Paragraph 3 of Article 66 of the same law with Article 18, Paragraph 1 of

Article 25, Paragraphs 1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the

Constitution.

1. The group of Members of the Seimas, a petitioner, has had doubts as to whether

Paragraph 2 of Article 48 of the Law on Science and Studies is not in conflict with Paragraphs 1, 3

of Article 40, Paragraph 1 of Article 42, and Paragraphs 3, 7 of Article 43 of the Constitution and

the constitutional principle of a state under the rule of law.

1.1. Paragraph 2 of Article 48 of the Law on Science and Studies provides:

“Master’s degree study programmes shall be designed for preparation for independent

scientific (artistic) work or any other work the performance of which requires scientific knowledge

and analytical competence. Master’s degree studies shall be conducted in universities in which

scientific (artistic) activities corresponding to the study field are carried out. On completion of

master’s degree study programmes persons shall be awarded a master’s degree of an appropriate

study field. On completion of theological study programmes of the second cycle persons may, after

consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology.”

1.2. The petitioner, while substantiating its doubts, indicates that one may not set for

educationists and other employees any requirements connected with their convictions; in secular

state schools of higher education, studies in theology and a scientific degree of licentiate in theology

should be accessible to persons holding different religious convictions and views and are not to be

linked to any concrete religion. Therefore, the petitioner has had doubts as to whether the

requirement to consult with the Catholic Church hierarchy before awarding a degree of licentiate in

theology to a person who has completed a theological study programme of the second cycle is in

compliance with the Constitution.

47

Thus, from the arguments set forth by the petitioner it is clear that the petitioner has had

doubts as regards the constitutionality of not the entire Paragraph 2 of Article 48 of the Law on

Science and Studies, but as regards the compliance, with the Constitution, of only the provision “On

completion of theological study programmes of the second cycle persons may, after consultation

with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2

of Article 48 of the Law on Science and Studies, to the extent that it prescribes that a degree of

licentiate in theology may be awarded after consultation with the Catholic Church hierarchy.

1.3. The disputed provision “On completion of theological study programmes of the second

cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a degree of

licentiate in theology” of Paragraph 2 of Article 48 of the Law on Science and Studies regulates the

awarding of a degree of licentiate in theology.

1.3.1. It needs to be noted that the provision disputed by the petitioner is set forth in

Paragraph 2 of Article 48 of the Law on Science and Studies, which regulates the requirements for

programmes of studies of the second cycle—master’s studies—in schools of higher education. The

paragraph in question inter alia provides that on completion of master’s degree study programmes

persons are awarded a master’s degree of an appropriate study field.

In this context it needs to be mentioned that, under Paragraph 2 of Article 46 of the Law on

Science and Studies, studies may be of three cycles: the first cycle—professional bachelor’s and

bachelor’s degree studies, the second cycle—master’s degree studies, and the third cycle—doctoral

studies. Thus, Paragraph 2 of Article 48 of the Law on Science and Studies, first of all, establishes a

general norm, which obligates to award a master’s degree of an appropriate study field to all the

persons who have completed studies of the second cycle (master’s degree studies).

The provision of Paragraph 2 of Article 48 of the Law on Science and Studies, which is

being disputed by the petitioner, provides that on completion of theological study programmes of

the second cycle persons may, after consultation with the Catholic Church hierarchy, be awarded a

degree of licentiate in theology. In this way the legislator provides for a possibility for persons who

have completed specific—theological—studies of the second cycle to be awarded a specific degree.

Thus, the legal regulation laid down in Paragraph 2 of Article 48 of the Law on Science and Studies

specifies a possibility of organising specific (licentiate) theological studies, which are an equivalent

of master’s degree studies; on completion of these studies persons may be awarded a specific

degree of licentiate in theology, which is an equivalent of a master’s degree. From the material of

the constitutional justice case at issue it is clear that the minimum requirements, with regard to the

volume of a study programme and duration of studies, for a licentiate theological programme are

the same as the maximum requirements for the volume of a master’s degree study programmes,

which are established in Paragraph 6 of Article 47 of the Law on Science and Studies.

48

The provision of Paragraph 2 of Article 48 of the Law on Science and Studies, which is

being disputed by the petitioner, provides that on completion of theological study programmes of

the second cycle persons may be awarded a degree of licentiate in theology only after consultation

with the Catholic Church hierarchy. Paragraph 2 of Article 48 of the Law on Science and Studies

does not explicitly establish that on completion of the said programmes a person is awarded another

degree confirming the education he has acquired where the awarding of a degree of licentiate in

theology to that person is not consulted with the Catholic Church hierarchy. However, from the

aforementioned general norm of Paragraph 2 of Article 48 of the Law on Science and Studies,

which obligates to award a master’s degree of an appropriate study field to all the persons who have

completed studies of the second cycle (master’s degree studies), a conclusion is to be drawn that in

the cases where the awarding of a degree of licentiate in theology to persons, who have completed

theological study programmes of the second cycle, is not consulted with the Catholic Church

hierarchy, such persons must be awarded a master’s degree of an appropriate field.

1.3.2. From the material of the constitutional justice case at issue it is clear that a degree of

licentiate in theology has centuries-old traditions and that up till the present it has been awarded in

schools of higher education that function in various countries and enjoy recognition from the

Catholic Church. The licentiate (licentiatus) in theology, referred to in Paragraph 2 of Article 48 of

the Law on Science and Studies, is a specific degree of university studies of the second cycle, which

confirms a special competence of an appropriate level recognised by the Catholic Church in the area

of studies in Catholic theology and which is necessary when one seeks to further continue Catholic

theological studies (i.e. doctoral studies) in universities and faculties recognised by the Catholic

Church, also when one seeks to take up a certain church office.

It needs to be noted that a degree of licentiate in theology is not directly and exceptionally

linked to the training of the clergy and it does not indicate the preparation to hold the office of a

clergyman, nor a possibility of being appointed to a church office; this degree may be also awarded

to the laity. It also needs to be noted that a degree of licentiate in theology does not automatically

grant the right to lecture in a school of higher education or to teach the Catholic religion. Persons

holding a degree of licentiate in theology may become clergymen, or they may be appointed to a

church office in accordance with the procedure established in canon law, or to an educational office

—in accordance with the procedure established in the legal acts of the Republic of Lithuania,

provided that they meet the qualification and other requirements set for such offices.

1.3.3. In this context one needs to mention the Agreement between the Republic of

Lithuania and the Holy See on Cooperation in Education and Culture of 5 May 2000, in the

Preamble of which it is indicated that the Republic of Lithuania has concluded this agreement

acting in accordance with its Constitution, while the Holy See—acting in accordance with the

49

documents of the Second Vatican Council, particularly its declaration Gravissimum educationis, as

well as the norms of canon law.

Taking account of the whole legal regulation of the Agreement between the Republic of

Lithuania and the Holy See on Cooperation in Education and Culture, one is to draw a conclusion

that provisions of the said agreement are based on the presumption of compatibility of the

Constitution and canon law. In the context of the constitutional justice case at issue this inter alia

means that schools of higher education of the Republic of Lithuania, which have recognition from

the Catholic Church, conduct theological studies and award corresponding degrees to persons

successfully completing these studies without violating the Constitution.

Article 5 of the aforesaid agreement provides that the Catholic Church may organise courses

and engage in spiritual-religious education in universities and other establishments of higher

education in agreement with the administration of these institutions. Article 7 of the agreement

prescribes that the authorised institutions of the contracting parties, each within its competence,

shall ensure that the contents and methods of teaching the Catholic religion comply with the

requirements established by the Catholic Church and the Republic of Lithuania; professional

qualifications of teachers of the Catholic religion shall be assessed and their work shall be

supervised in accordance with the procedure prescribed by the legal acts of the Republic of

Lithuania with the joint participation of the representatives of the Conference of Lithuanian

Bishops.

It also needs to be mentioned that Article 3 of the agreement provides that the qualifying

certificate for teaching the Catholic religion shall be granted in accordance with the procedure

prescribed by the legal acts of the Republic of Lithuania with due regard to the norms of the

Conference of Lithuanian Bishops; teachers of the Catholic religion must have the written

authorisation (missio canonica) of the local bishop and such authorisation constitutes an

indispensable part of the qualification requirements for the profession; from the moment when the

authorisation is withdrawn, a teacher loses the right to teach the Catholic religion.

1.4. In its ruling of 13 December 2000, the Constitutional Court held the following:

– Paragraph 1 of Article 40 of the Constitution provides that state and municipal

establishments of teaching and education shall be secular; this constitutional provision implies a

requirement that these establishments be tolerant, open and accessible to people of all religions, as

well as those members of society who are non-believers;

– the fact that the State of Lithuania and its institutions are neutral as regards the matters of

world view and religion, means disconnection of the purpose, functions and activities of the areas of

the state and religion, those of the state and the churches and religious organisations; the neutrality

and secularity of the state may not serve as the grounds to discriminate against the believers, to

50

restrict their rights and freedoms;

– while construing the norm set down in Paragraph 7 of Article 43 of the Constitution that

there shall not be a state religion in Lithuania, that of Paragraph 4 of the same article that churches

and religious organisations shall function freely according to their canons and statutes, also that of

Paragraph 1 of Article 40 that state and municipal establishments of teaching and education shall be

secular, as well as other constitutional provisions, in a systematic manner, one is to draw a

conclusion that the principle of separateness of the state and the church is established in the

Constitution; the constitutional principle of separateness of the state and the church is the basis of

the secularity of the State of Lithuania, its institutions and their activities; the constitutional

principle of separateness of the state and the church, along with the freedom of convictions,

thought, religion and conscience, which is established in the Constitution, together with the

constitutional principle of equality of persons and the other constitutional provisions, determine the

neutrality of the state in matters of world view and religion;

– under the Constitution, state and municipal establishments of teaching and education are

secular; in these establishments no requirements may be set to educationists and other employees

which are connected with their convictions; neither state or municipal institutions, nor parents at

whose request classes in religious instruction are offered, nor teachers of religion, nor traditional

churches or religious organisations, nor any other state-recognised churches or religious

organisations may set such requirements; otherwise the norm of Paragraph 1 of Article 42 of the

Constitution, whereby culture, science, research, and teaching are free, would also be denied.

1.5. In the context of the constitutional justice case at issue the provisions of Paragraph 1 of

Article 40 of the Constitution, whereby state and municipal establishments of teaching and

education are secular, and the provisions of Paragraph 1 of Article 42 of the Constitution, which

establish that culture, science, research, and teaching are free, are to be related to the provision

“Higher education shall be accessible to everyone according to his individual abilities” of Paragraph

3 of Article 41 of the Constitution. While construing this provision in its ruling of 14 January 2002,

the Constitutional Court noted that the constitutional provision that higher education is available to

everyone according to his abilities means that both state and non-state higher schools established

according to the procedure prescribed by law, as well as the entire system of higher education

establishments, have to be accessible to every person. This provision also means that those who

seek higher education cannot be subjected to requirements that are based on criteria other than their

abilities. The said provision is closely related to the principle of equality of individuals enshrined in

Article 29 of the Constitution, to the provision contained in Paragraph 2 thereof that a person may

not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex,

race, nationality, language, origin, social status, religion, convictions, or opinions.

51

Thus, from the aforementioned provision of Paragraph 3 of Article 41 of the Constitution a

requirement arises to award an appropriate degree confirming the acquired education and

qualification to a person who has successfully completed a study programme of higher education;

the Constitution would be violated by such legal regulation under which a situation would be

possible where a person who has successfully completed a study programme would not be awarded

an appropriate degree. In the context of Paragraph 1 of Article 40 and Paragraph 1 of Article 42 of

the Constitution, the aforesaid requirement inter alia also means that one is not permitted to lay

down any such legal regulation under which a person who has successfully completed a theological

study programme of the second cycle would not be awarded any degree confirming the acquired

education where the awarding of a degree would not be consulted with the Catholic Church

hierarchy.

1.6. It has been mentioned that from the legal regulation established in Paragraph 2 of

Article 48 of the Law on Science and Studies it is clear that a degree of licentiate in theology is a

specific equivalent of a master’s degree, which is, after consultation with the Catholic Church

hierarchy, awarded to persons who have completed theological study programmes of the second

cycle. It has also been mentioned that from the aforesaid general norm of Paragraph 2 of Article 48

of the Law on Science and Studies, which obligates to award a master’s degree of an appropriate

study field to all the persons who have completed studies of the second cycle (master’s degree

studies), a conclusion is to be drawn that in the cases where the awarding of a degree of licentiate in

theology to persons who have completed theological study programmes of the second cycle is not

consulted with the Catholic Church hierarchy such persons must be awarded a master’s degree of an

appropriate field.

It has also been mentioned that from the provision of Paragraph 3 of Article 41 of the

Constitution a requirement arises to award an appropriate degree confirming the acquired education

and qualification to a person who has successfully completed a study programme of higher

education; the Constitution would be violated by such legal regulation under which a situation

would be possible where a person who has successfully completed a study programme would not be

awarded an appropriate degree. In the context of Paragraph 1 of Article 40 and Paragraph 1 of

Article 42 of the Constitution, the aforesaid requirement inter alia also means that one is not

permitted to lay down any such legal regulation under which a person who has successfully

completed a theological study programme of the second cycle would not be awarded any degree

confirming the acquired education where the awarding of a degree would not be consulted with the

Catholic Church hierarchy.

Thus, only when the provisions of Paragraph 2 of Article 48 of the Law on Science and

Studies are construed in such a way that, as mentioned, in the cases where the awarding of a degree

52

of licentiate in theology to persons who have completed theological study programmes of the

second cycle is not consulted with the Catholic Church hierarchy, these persons must be awarded a

master’s degree of an appropriate field, one may draw a conclusion that no preconditions are

created for emerging of such a situation when a person who has successfully completed a study

programme would not be awarded an appropriate degree, i.e. only when construed in this way, the

disputed provision “On completion of theological study programmes of the second cycle persons

may, after consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in

theology” of Paragraph 2 of Article 48 of the Law on Science and Studies is not in conflict with

Paragraph 1 of Article 40, Paragraph 3 of Article 41, Paragraph 1 of Article 42 of the Constitution

and the constitutional principle of a state under the rule of law.

1.7. In the constitutional justice case at issue it has been mentioned that Paragraph 3 of

Article 40 of the Constitution, which guarantees the autonomy of schools of higher education, is

related to the provision of Paragraph 1 of Article 42 of the Constitution, which consolidates the

freedom of science and research. The autonomy of schools of higher education inter alia

encompasses academic autonomy. Therefore, having held that the provision “On completion of

theological study programmes of the second cycle persons may, after consultation with the Catholic

Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2 of Article 48 of the

Law on Science and Studies is not in conflict with Paragraph 1 of Article 42 of the Constitution,

one also needs to held that this provision (which is being disputed by the petitioner) is not in

conflict with Paragraph 3 of Article 40 of the Constitution.

1.8. It needs to be noted that the provision of Paragraph 2 of Article 48 of the Law on

Science and Studies, which is being disputed by the petitioner, regulates the relations of other

nature than those that are regulated under Paragraph 3 of Article 43 of the Constitution, wherein it is

established that churches and religious organisations are free to proclaim their teaching, perform

their practices, and have houses of prayer, charity establishments, and schools for the training of the

clergy, as well as than those that are regulated under Paragraph 7 of Article 43 of the Constitution,

wherein it is established that there shall not be a state religion in Lithuania. Therefore, there are no

grounds due to which it would be possible to maintain that by the legal regulation laid down in

Paragraph 2 of Article 48 of the Law on Science and Studies the legislator has created preconditions

to violate the freedom of activity of churches and religious organisations provided for in Paragraph

3 of Article 43 of the Constitution, nor the provision of Paragraph 7 of the same article that there

shall not be a state religion in Lithuania.

1.9. Taking account of the arguments set forth, one is to draw a conclusion that the provision

“On completion of theological study programmes of the second cycle persons may, after

consultation with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of

53

Paragraph 2 of Article 48 of the Law on Science and Studies, to the extent that it prescribes that a

degree of licentiate in theology may be awarded after consultation with the Catholic Church

hierarchy, is not in conflict with Paragraphs 1, 3 of Article 40, Paragraph 3 of Article 41, Paragraph

1 of Article 42, and Paragraphs 3, 7 of Article 43 of the Constitution and the constitutional principle

of a state under the rule of law.

2. The group of Members of the Seimas, a petitioner, has had doubts as to whether

Paragraph 3 of Article 66 of the Law on Science and Studies is not in conflict with Article 18,

Paragraph 1 of Article 25, Paragraphs 1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the

Constitution.

2.1. Paragraph 3 of Article 66 of the Law on Science and Studies provides:

“The Lithuanian Catholic Academy of Sciences shall join together the most prominent

catholic-oriented Lithuanian scientists, Lithuanian scientists living abroad and foreign scientists

who, because of their activities, are connected with Lithuania. The Lithuanian Catholic Academy of

Sciences shall act in compliance with its statutes.”

Thus, Paragraph 3 of Article 66 of the Law on Science and Studies defines the Lithuanian

Catholic Academy of Sciences as an organisation of scientists, which joins the most prominent

catholic-oriented Lithuanian scientists, Lithuanian scientists living abroad and foreign scientists

who, because of their activities, are connected with Lithuania. This organisation acts in compliance

with its statutes, which are registered in accordance with the procedure laid down in the laws of the

Republic of Lithuania.

From the material of the constitutional justice case at issue it is clear that the Lithuanian

Catholic Academy of Sciences is the oldest Lithuanian non-governmental academic organisation,

which was established nine decades ago (in 1922). The legislator refers to the Lithuanian Catholic

Academy of Sciences in Paragraph 3 of Article 66 of the Law on Science and Studies, regarding it

as part of the historical heritage and traditions of Lithuanian science.

It needs to be noted that Article 66 of the Law on Science and Studies is designated for the

establishment of the bases of the activity of organisations of students, teaching staff members,

scientists and other researchers. The said implies that the legal bases of the activity of the

Lithuanian Catholic Academy of Sciences are established by the same laws of the Republic of

Lithuania as the ones that regulate the activity of other organisations of students, teaching staff

members, scientists and other researchers. Inter alia the activity of the Lithuanian Catholic

Academy of Sciences, as well as the activity of other organisations of students, teaching staff

members, scientists and other researchers, is regulated in Paragraph 4 of Article 66 of the Law on

Science and Studies, wherein it is provided that the said organisations may, in accordance with the

procedure laid down by the Research Council of Lithuania, receive state budgetary funds for

54

activities related to the objectives of the system of science and studies.

Consequently, under Paragraph 3 of Article 66 of the Law on Science and Studies, the

Lithuanian Catholic Academy of Sciences is not granted any privileges or special legal status, if

compared to other organisations of students, teaching staff members, scientists and other

researchers, nor may the same paragraph be construed as granting any such privileges or special

legal status.

2.2. Although the petitioner requests investigation into the compliance of Paragraph 3 of

Article 66 of the Law on Science and Studies with Article 18, Paragraph 1 of Article 25, Paragraphs

1, 2, 3 of Article 26, and Paragraphs 3, 7 of Article 43 of the Constitution, from the arguments of

the petitioner it is clear that it has had doubts as to the compliance of the disputed provision with the

constitutional principle of a state under the rule of law, insofar as this principle is related to the

constitutional principle of equality of persons. The petitioner points out that, by recognising a

scientific organisation as an organisation of confessors of exclusively one religion violates the

constitutional principles of a state under the rule of law and equality of persons; institutionalising a

scientific organisation on the grounds of a confession, in the opinion of the petitioner, violates the

constitutional principle of a state under the rule of law, as well.

Taking account of the said, the Constitutional Court will investigate whether Paragraph 3 of

Article 66 of the Law on Science and Studies is not in conflict with the constitutional principle of a

state under the rule of law, insofar as this principle is related to the constitutional principle of

equality of persons.

2.3. The constitutional principle of a state under the rule of law is especially capacious; it

comprises a range of various interrelated imperatives. The principle of equality of persons, which is

entrenched in Article 29 of the Constitution, is inseparable from the constitutional principle of a

state under the rule of law, which is a universal principle upon which the entire Lithuanian legal

system and the Constitution itself are based.

The Constitutional Court has held that the constitutional principle of equality of rights of

persons in itself does not deny an opportunity to establish diverse, differentiated legal regulation by

means of legislation with respect to certain persons which belong to different categories, if there

exist differences between these persons of such character, which objectively justify such

differentiated regulation. Differentiated legal regulation, when it is applied to certain groups of

persons which are distinguished by the same signs, and in case it strives for positive and socially

meaningful goals, or if the establishment of certain limitations or conditions is linked with

peculiarities of regulated social relations, in itself is not to be regarded as discrimination

(Constitutional Court rulings of 11 November 1998, 13 May 2005, 31 May 2006, 2 March 2009, 29

April 2009, and decision of 20 April 2010).

55

The Constitutional Court has held more than once that the constitutional principle of

equality of all persons before the law would be violated when a certain group of persons to which

the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated

differently, even though there are not any differences in their character and extent between these

groups that such an uneven treatment would be objectively justified. While assessing whether an

established different legal regulation is a grounded one, concrete legal circumstances must be taken

into account. First of all, differences of the legal situation of subjects and objects, to which the

corresponding different legal regulation is applied, must be considered (Constitutional Court rulings

of 28 February 1996, 13 November 1997, 4 July 2003, 24 December 2008, 2 March 2009, 8 June

2009, and decision of 20 April 2010). The compliance of a concrete legal norm with Article 29 of

the Constitution may be assessed only by taking into account all significant circumstances

(Constitutional Court rulings of 4 July 2003, 24 December 2008, 2 March 2009, and 8 June 2009).

2.4. It has been mentioned that the constitutional principle of equality of all persons before

the law would be violated when a certain group of persons, to which the legal norm is ascribed, if

compared to other addressees of the same legal norm, were treated differently, even though there

are not any differences in their character and extent between these groups that such an uneven

treatment would be objectively justified.

It has also been mentioned that Paragraph 3 of Article 66 of the Law on Science and Studies

refers to the Lithuanian Catholic Academy of Sciences, by taking into consideration the fact that the

Lithuanian Catholic Academy of Sciences is regarded as part of the historical heritage and traditions

of Lithuanian science; the legal bases of the activity of the Lithuanian Catholic Academy of

Sciences are established by the same laws of the Republic of Lithuania that regulate the activity of

other organisations of students, teaching staff members, scientists and other researchers. It has also

been mentioned that, under Paragraph 3 of Article 66 of the Law on Science and Studies, the

Lithuanian Catholic Academy of Sciences is not granted any privileges or special legal status, if

compared to other organisations of students, teaching staff members, scientists and other

researchers, nor may the same Paragraph 3 of Article 66 be construed as granting any such

privileges or special legal status.

It needs to be noted that, under the Constitution, the legislator may not lay down any such

legal regulation under which the Lithuanian Catholic Academy of Sciences would be granted any

privileges or special legal status, if compared to other organisations of students, teaching staff

members, scientists and other researchers.

2.5. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 3

of Article 66 of the Law on Science and Studies is not in conflict with the constitutional principle of

a state under the rule of law.

56

VI

On the compliance of Paragraph 2 of Article 69 of the Law on Science and Studies with

Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under

the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 2 of

Article 69 of the Law on Science and Studies is not in conflict with Paragraph 3 of Article 41 of the

Constitution and the constitutional principle of a state under the rule of law.

2. Paragraph 2 of Article 69 of the Law on Science and Studies provides:

“State budget funds for studies shall not be appropriated for branches of foreign schools of

higher education established in the Republic of Lithuania.”

3. Thus, under the legal regulation (disputed by the petitioner) established in Paragraph 2 of

Article 69 of the Law on Science and Studies, appropriation of state budget funds for branches of

foreign schools of higher education established in the Republic of Lithuania is prohibited.

3.1. Under Paragraph 1 of Article 2.53 of the Civil Code of the Republic of Lithuania, the

branch office of a legal person shall be its structural unit, which has its registered office and

performs all or part of the legal person’s functions. In this context the notion “branch of a foreign

school of higher education established in the Republic of Lithuania” employed in Paragraph 2 of

Article 69 of the Law on Science and Studies should be understood as a structural unit of a school

of higher education, which is established and has its seat abroad, where the said unit is founded and

has its seat in the Republic of Lithuania and carries out all functions (or part thereof) of the said

school of higher education.

3.2. It needs to be noted that, under Paragraph 2 of Article 6 of the Law on Science and

Studies, schools of higher education may be state and non-state ones; under Paragraph 4 of the same

article, a state school of higher education shall be a public legal person functioning as a public

establishment, possessing the autonomy guaranteed by the Constitution, and the special status

defined by this and other law, whereas a non-state school of higher education shall be a public legal

person functioning as a public establishment or a private legal person.

It also needs to be noted that, under Paragraphs 3 and 4 of Article 27 of the Law on Science

and Studies, either the Seimas or the Government are founders of schools of higher education (the

Seimas shall establish a state university upon the recommendation of the Government, whereas a

state college shall be established by the Government upon the recommendation of the Ministry of

Education and Science). Under Paragraph 5 of Article 27 of the Law on Science and Studies, a non-

state school of higher education may be established by natural or legal persons, with the exception

of state and municipal institutions and establishments, as well as by branches, located in Lithuania,

of enterprises established in Member States of the European Union or other states which signed the

57

Agreement on the European Economic Area.

Thus, in the context of the legal regulation established in the Law on Science and Studies,

branches of foreign schools of higher education established in the Republic of Lithuania are

virtually equalled to non-state schools of higher education.

3.3. The provision (disputed by the petitioner) of Paragraph 2 of Article 69 of the Law on

Science and Studies is first of all related to the provision of Item 2 of Paragraph 1 of Article 67 of

this law wherein a possibility is provided to allocate state budge funds to all (i.e. both state and non-

state) institutions of science and studies. Thus, Paragraph 2 of Article 69 of the Law on Science and

Studies has established a special norm with regard to the norm of Item 2 of Paragraph 1 of Article

67, since the norm of Paragraph 2 of Article 69 contains a special prohibition to allocate state

budget funds to branches of foreign schools of higher education established in the Republic of

Lithuania; in this way the said branches are singled out from among non-state schools of higher

education.

3.4. The provision (disputed by the petitioner) of Paragraph 2 of Article 69 of the Law on

Science and Studies is related to Paragraph 1 of the same article, wherein it is established:

“State budget funds for studies shall be appropriated for:

1) covering the study cost in student places which are funded by the state;

2) compensating, in the manner prescribed by Article 71 of this Law, the study costs paid by

the students who achieved the best results of studies in the student places which are not funded by

the state;

3) target funding of studies;

4) state loans or state-supported loans;

5) social scholarships and other support.”

The allocation of the state budget funds for studies provided for in Paragraph 1 of Article 69

of the Law on Science and Studies is regulated in Articles 70, 71, 73, 74, 75 of this law. In this

context it needs to be noted that, under Paragraph 2 of Article 69 of the Law on Science and

Studies, appropriation of state budget funds for branches of foreign schools of higher education

established in the Republic of Lithuania is prohibited. Therefore, this prohibition may not be

understood as a prohibition to allocate state budget funds for studies to the persons who are

studying in branches of foreign schools of higher education established in the Republic of

Lithuania, i.e. the state budget funds for studies provided for in Items 2, 4, 5 of Paragraph 1 of

Article 69 of the Law on Science and Studies. While taking account of this, the said persons may be

allocated state budget funds under Article 71 of the Law on Science and Studies, which regulates

compensation of the costs paid for studies, under Article 74 thereof, which regulates allocation of

state loans and state supported loans to students of schools of higher education, and under Article

58

75 thereof, which regulates allocation of scholarships and other support from state budget funds to

students.

Article 70 of the Law on Science and Studies regulates payment of study costs in student

places funded by the state, i.e. distribution of student places funded by the state among schools of

higher education (both state and non-state ones) and the procedure for payment for such student

places by state budget funds. It needs to be noted that, under the same article, the state budget funds

for payment of the study costs in student places funded by the state are allocated not directly to the

persons studying in student places funded by the state, but to the schools of higher education so that

they continue to keep such distributed student places funded by the state. Such funds are allocated

under procedure established by the Government, after distribution of state-funded student places

among schools of higher education within study programmes of the first cycle and integrated study

programmes, without exceeding the state funding established by the Government for each area of

studies and upon approval, by the Ministry of Education and Science, the final number of state-

funded student places of the first cycle and integrated studies, after the results of admission to

higher education institutions are made known and study agreements are signed, also upon

establishment, by the Government, the number of state-funded student places of the second cycle,

doctoral studies and studies which do not award a degree in concrete fields of studies (Paragraphs 2,

5, 9, 11 of Article 70 of the Law on Science and Studies).

Article 73 of the Law on Science and Studies regulates targeted funding of studies;

Paragraph 1 thereof inter alia provides that, in accordance with the procedure laid down by the

Ministry of Education and Science, state budget funds may, by way of competition, be appropriated

to institutions (both state and non-state ones) of science and studies for the implementation of study

programmes, taking into consideration the most urgent needs of the economic, social and cultural

development of the state, if the said needs may not be satisfied in other ways laid down in this law.

Thus, the prohibition, established in Paragraph 2 of Article 69 of the Law on Science and

Studies, to allocate state budget funds for studies to branches of foreign schools of higher education

established in the Republic of Lithuania means a prohibition to allocate, for studies, the state budget

funds mentioned in Items 1, 3 of Paragraph 1 of the same article, i.e. state budget funds for covering

the study costs in student places which are funded by the state under Article 70 of the Law on

Science and Studies and state budget funds for target funding of studies under article 73 of the same

law.

3.5. While summing up the legal regulation (which is being disputed by the petitioner)

established in Paragraph 2 of Article 69 of the Law on Science and Studies, it needs to be noted that

the prohibition to allocate state budget funds for studies to branches of foreign schools of higher

education established in the Republic of Lithuania also means that state-funded student places may

59

not be distributed among branches of foreign schools of higher education established in the

Republic of Lithuania, nor may target funding of studies be allocated to such branches. Thus, if

compared with other, inter alia non-state schools of higher education, one has established less

favourable conditions for activity with respect to branches of foreign schools of higher education

established in the Republic of Lithuania. Such limitations upon activities of branches of foreign

schools of higher education established in the Republic of Lithuania are substantiated by a single

criterion—the location of the main activity and of the seat of the school of higher education—i.e.

the legal regulation established less favourable conditions for activity with respect to branches of

foreign schools of higher education established in the Republic of Lithuania only because of the fact

that such branches are established by foreign but not Lithuanian state and non-state schools of

higher education.

4. In the context of the constitutional justice case at issue it needs to be noted that the legal

regulation of branches of foreign schools of higher education is related to the main principles of EU

law, inter alia to the principle of non-discrimination and to the main freedoms.

4.1. Under Article 150 of the Constitution, the Constitutional Act of the Republic of

Lithuania “On Membership of the Republic of Lithuania in the European Union” is a constituent

part of the Constitution. Article 2 of the said act provides that the norms of the European Union law

shall be a constituent part of the legal system of the Republic of Lithuania; where it concerns the

founding Treaties of the European Union, the norms of the European Union law shall be applied

directly, while in the event of collision of legal norms, they shall have supremacy over the laws and

other legal acts of the Republic of Lithuania.

In this context it needs to be mentioned that the Constitutional Court has noted more than

once that the jurisprudence of the Court of Justice of the European Union (hereinafter referred to as

the ECJ) as a source of construction of law is also important to construction and application of

Lithuanian law (Constitutional Court rulings of 21 December 2006, 15 May 2007, 4 December

2008 and 27 March 2009).

4.2. Even though under Paragraph 1 of Article 165 of the Treaty on the Functioning of the

European Union (hereinafter referred to as TFEU) the European Union fully respects the

responsibility of the Member States for the content of teaching and the organisation of education

systems, in this area the Member States must comply with other provisions of EU law, especially

those pertaining to the principle of non-discrimination on grounds of nationality, which is

entrenched in Article 18 of the TFEU, as well as with the provisions consolidating the main

freedoms, inter alia the provisions of Articles 49–55 of the TFEU regulating freedom of

establishment.

Under the first section of Article 49 of the TFEU, restrictions on the freedom of

60

establishment of nationals of a Member State in the territory of another Member State shall be

prohibited; such prohibition shall also apply to restrictions on the setting-up of agencies, branches

or subsidiaries by nationals of any Member State established in the territory of any Member State.

Article 54 of the TFEU provides that companies or firms formed in accordance with the law of a

Member State and having their registered office, central administration or principal place of

business within the Union shall be treated in the same way as natural persons who are nationals of

Member States; this provision is applied to companies or firms constituted under civil or

commercial law, including cooperative societies, and other legal persons governed by public or

private law, save for those which are non-profit-making. Thus, profit-making schools of higher

education may also make use of freedom of establishment.

The ECJ has held in its jurisprudence more than once that freedom of establishment entails,

in accordance with Article 54 of the TFEU, for companies formed in accordance with the law of a

Member State and having their registered office, central administration or principal place of

business within the European Union, the right to exercise their activity in the Member State

concerned through a subsidiary, branch or agency (the 21 September 1999 judgment in

Saint-Gobain ZN, C-307/97, ECR I-6161, paragraph 35; the 12 September 2006 judgment in

Cadbury Schweppes and Cadbury Schweppes Overseas, C-196/04, ECR I-7995, paragraph 41; the

13 March 2007 judgment in Test Claimants in the Thin Cap Group Litigation, C-524/04, ECR

I-2107, paragraph 36). Thus, freedom of establishment includes the right of companies, inter alia

that of profit-making schools of higher education, to establish their branches within the territories of

Member States of the European Union (EU) and the prohibition to limit this right if there is no

justifying reason within EU law.

In this context the ECJ has noted that it is not allowed to resort to any such national

measures, which, even though applied without discrimination on grounds of nationality, are liable to

hamper or to render less attractive the exercise, by Community nationals, of fundamental freedoms;

the limitation is allowed only if such a measure pursued a legitimate objective compatible with the

Treaty establishing the European Community (at present—the TFEU) or if it is justified by

imperative requirements in the general interest, and provided corresponding national legal acts are

suitable for securing the attainment of the objective which they pursue and if they do not go beyond

what is necessary in order to attain it (the 31 March 1993 judgment in Kraus, C-19/92, ECR I-1663,

paragraph 32; the 30 November 1995 judgment in Gebhard, C-55/94, ECR I-4165, paragraph 37;

the 9 March 1999 judgment in Centros, C-212/97, ECR I-1459, paragraph 34). Thus, EU law

expressively prohibits the measures limiting freedom of establishment (inter alia the right of

companies to establish their branches), discriminating on the grounds of citizenship and hampering

or rendering less attractive the exercise of this right.

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4.3. It needs to be noted that, under Directive 2006/123/EC of the European Parliament and

of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, pp.

36–68), which inter alia regulates freedom of establishment of providers supplying services,

Member States must not establish discriminatory requirements based directly or indirectly on

nationality or, in the case of companies, the location of the registered office (Item 1 of Article 14).

Inter alia different conditions of activity, related to the requirement to the seat of a provider

supplying services, are attributed to indirect discrimination. Thus, under the said directive, the

establishment of less favourable conditions for companies supplying services, inter alia for profit-

making schools of higher education conducting studies, only on the grounds of the location of their

seat is per se to be regarded as a prohibited discriminatory limitation.

5. While substantiating its doubts regarding the compliance of Paragraph 2 of Article 69 of

the Law on Science and Studies with the Constitution, while invoking the official constitutional

doctrine, the petitioner is asserting that, having assessed the needs of society and the state and the

capabilities of the state, in cases when state schools of higher education cannot prepare specialists

of some areas due to objective reasons, then such specialists, under commissioning by the state,

must also be prepared in non-state schools of higher education, including branches of foreign

schools of higher education.

6. The petitioner is disputing the compliance of Paragraph 2 of Article 69 of the Law on

Science and Studies with inter alia Paragraph 3 of Article 41 of the Constitution which inter alia

provides that persons who are good at their studies shall be guaranteed education at state schools of

higher education free of charge.

It needs to be noted that, while construing the state duty to fund state schools of higher

education from the state budget, in its ruling of 20 March 2008 the Constitutional Court held that,

under commissioning of 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.

Thus, upon assessing the needs of society and the state and the capabilities of the state, in

cases when specialists of certain areas cannot be prepared in state schools of higher education due

to objective reasons, they may be prepared, upon requisition of the state, also in foreign schools of

higher education, including branches of foreign schools of higher education established in the

Republic of Lithuania.

7. The petitioner is disputing the compliance of Paragraph 2 of Article 69 of the Law on

Science and Studies inter alia with the constitutional principle of a state under the rule of law.

As mentioned in the constitutional justice case at issue, the constitutional principle of a state

under the rule of law is especially capacious; it comprises a range of various interrelated

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imperatives. The principle of equality of persons, which is entrenched in Paragraph 1 of Article 29

of the Constitution, is inseparable from the constitutional principle of a state under the rule of law,

which is a universal principle upon which the entire Lithuanian legal system and the Constitution

itself are based.

Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before

the law, the court, and other state institutions and officials. This provision enshrines formal equality

of all persons. The constitutional principle of equality of all persons before the law requires that in

law the main rights and duties be established equally to all (Constitutional Court rulings of 30 June

2000, 24 December 2008, and 2 March 2009).

In the constitutional justice case at issue it has been mentioned that the constitutional

principle of equality of rights of persons in itself does not deny an opportunity to establish diverse

and differentiated legal regulation by means of legislation with respect to certain persons who

belong to different categories, if there exist differences between these persons of such a character

that objectively justify such differentiated regulation. Differentiated legal regulation, when it is

applied to certain groups of persons which are distinguished by the same signs, and in case it is

striving for positive and socially meaningful goals, or if the establishment of certain limitations or

conditions is linked with the peculiarities of regulated social relations, in itself is not to be regarded

as discrimination. However, the constitutional principle of equality of all persons before the law

would be violated when a certain group of persons, to which the legal norm is ascribed, if compared

to other addressees of the same legal norm, were treated differently, even though there are not any

differences in their character and extent between these groups that such an uneven treatment would

be objectively justified.

It has also been mentioned that, while assessing whether an established different legal

regulation is a grounded one, particular legal circumstances must be taken into account. First of all,

differences of the legal situation of subjects and objects to which different legal regulation is

applied must be assessed. The compliance of a concrete legal norm with Article 29 of the

Constitution may be assessed only by taking into account all significant circumstances.

8. It has been mentioned that the principle of equality of persons, which is entrenched in

Paragraph 1 of Article 29 of the Constitution, is inseparable from the constitutional principle of a

state under the rule of law, which is a universal principle upon which the entire Lithuanian legal

system and the Constitution itself are based; the constitutional principle of equality of all persons

before the law would be violated when a certain group of persons to which the legal norm is

ascribed, if compared to other addressees of the same legal norm, were treated differently, even

though there are not any differences in their character and extent between these groups that such an

uneven treatment would be objectively justified; while assessing whether an established different

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legal regulation is a grounded one, particular legal circumstances must be taken into account: first

of all, differences of the legal situation of subjects and objects to which different legal regulation is

applied must be assessed.

It has also been mentioned that the branches of foreign schools of higher education

established in the Republic of Lithuania, which are specified in Paragraph 2 of Article 69 of the

Law on Science and Studies, in the context of the legal regulation established in this law, are

virtually equalled to non-state schools of higher education. It has also been mentioned that

Paragraph 2 of Article 69 of the Law on Science and Studies contains a prohibition to allocate state

budget funds for studies to branches of foreign schools of higher education established in the

Republic of Lithuania; alongside, such legal regulation means that state-funded student places may

not be distributed among branches of foreign schools of higher education established in the

Republic of Lithuania, nor may target funding of studies be allocated to such branches. Thus, if

compared with other non-state schools of higher education and persons studying therein, one has

established less favourable conditions for activity with respect to branches of foreign schools of

higher education established in the Republic of Lithuania and persons studying in such branches.

Such limitations upon activities of branches of foreign schools of higher education established in

the Republic of Lithuania are substantiated by a single criterion—the location of the main activity

and of the seat of the school of higher education—i.e. such legal regulation has established less

favourable conditions for activity with respect to branches of foreign schools of higher education

established in the Republic of Lithuania only because of the fact that such branches are established

by foreign schools of higher education.

It needs to be noted that in the context of the constitutional principle of equality of all

persons before the law such differentiated legal regulation of branches of foreign schools of higher

education established in the Republic of Lithuania is to be regarded as discriminatory, since the

criterion substantiating it (the location of the main activity and seat of the school of higher

education) may not be objectively justified, especially when establishing differentiated legal

regulation with respect to branches of schools of higher education established in the Republic of

Lithuania, which have their seat in other Member States of the European Union. While establishing

limitations upon the activity of science and studies only according to the location of the main

activity and seat of the school of higher education, one is not seeking any objectives corresponding

to the public interest. It needs to be emphasised that the mere fact that the activity of science and

studies is carried out by the branch of a foreign school of higher education may not serve as grounds

for an assumption that the higher education provided by it is of lesser quality than that provided by

Lithuanian schools of higher education.

Thus, one is to draw a conclusion that Paragraph 2 of Article 69 of the Law on Science and

64

Studies is in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional

principle of a state under the rule of law.

9. It has been mentioned that, while construing Paragraph 3 of Article 41 of the Constitution,

the Constitutional Court held that, under commissioning of 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. It has also been mentioned that, upon assessing the needs of

society and the state and the capabilities of the state, in cases when specialists of certain areas

cannot be prepared in state schools of higher education due to objective reasons, they may be

prepared, upon requisition of the state, also in foreign schools of higher education, including

branches of foreign schools of higher education established in the Republic of Lithuania.

It has also been mentioned that Paragraph 2 of Article 69 of the Law on Science and Studies

contains a prohibition to allocate state budget funds for studies to branches of foreign schools of

higher education established in the Republic of Lithuania; alongside, such legal regulation means

that state-funded student places may not be distributed among branches of foreign schools of higher

education established in the Republic of Lithuania, nor may target funding of studies be allocated to

such branches. Therefore, under the legal regulation established in Paragraph 2 of Article 69 of the

Law on Science and Studies, the state is prohibited from presenting a commissioning, upon

assessing the needs of society and the state and the capabilities of the state, to train specialists of

separate areas in branches of foreign schools of higher education established in the Republic of

Lithuania even in the cases when such specialists cannot be trained in state schools of higher

education.

Thus, one is to draw a conclusion that Paragraph 2 of Article 69 of the Law on Science and

Studies is in conflict with Paragraph 3 of Article 41 of the Constitution.

10. Summing it up, it needs to be held that Paragraph 2 of Article 69 of the Law on Science

and Studies is in conflict with Paragraph 1 of Article 29 and Paragraph 3 of Article 41 of the

Constitution and with the constitutional principle of a state under the rule of law.

VII

On the compliance of Articles 19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the

Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution and the

constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has had doubts as to whether Articles

19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the Law on Science and Studies are not in

conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state

under the rule of law.

65

1.1. Article 19 “Bodies of schools of higher education” of the Law on Science and Studies

prescribes:

“1. A state university must have the collegial governance bodies—the council and the

senate, and a one-person governance body—the rector.

2. A state college must have the collegial governance bodies—the council and the academic

council, and a one-person governance body—the director.

3. Governance of a non-state school of higher education shall be regulated by the founding

documents of this school of higher education.”

1.2. Article 20 “Council of a state school of higher education” of the Law on Science and

Studies prescribes:

“1. A governance body of a state school of higher education shall be the council.

2. The council shall perform the following functions:

1) approve the vision and mission of the school of higher education, a strategic action plan

presented by the rector (director);

2) upon hearing the opinion of the senate (academic council), submit amendments of the

university statute to the Seimas (amendments of the college statute—to the Government) for

approval;

3) consider and approve plans for reorganisation of the structure of the school of higher

education presented by the rector (director);

4) set the procedure for managing, using and disposing of funds (also funds allocated for

work remuneration of the school’s leadership and other employees) and assets of the school of

higher education, consider and approve key decisions related thereto;

5) set the procedure for organising election of the rector (director) of the school of higher

education through open competition; elect, appoint to the office and dismiss from it the rector

(director) of the school of higher education;

6) set the principles for selection and assessment of employees of the school of higher

education;

7) on the recommendation of the rector (director) set the study cost and the rates of fees that

are not directly related to the implementation of a study programme;

8) set a general number of student places, taking into account the possibilities of quality

assurance in studies and scientific activities;

9) approve an annual statement of revenue and expenditure of the school of higher education

and a report on the execution of this statement presented by the rector (director); may initiate an

audit of economic and financial activities of the school of higher education;

10) approve an annual report on the activities of the school of higher education presented by

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the rector (director), evaluate the compliance of the activities with the strategic plan, the achieved

results and their impact;

11) ensure the accountability and relation of the school of higher education with the public

and its founders, each year inform the public about the results of the implementation of the strategic

action plan of the school of higher education;

12) attend to support for the school of higher education;

13) upon hearing the opinion of the senate (academic council), approve plans for

reorganisation or liquidation of the school of higher education and submit them to the Seimas (the

Government) for approval;

14) prepare an annual report on its activities and submit it: in case of state universities—to

the Seimas, and in case of state colleges—to the Government;

15) perform the functions prescribed in the statute of the school of higher education and

other legal acts.

3. The council shall consist of 9 or 11 members. The statute of the school of higher

education shall set an exact number of the council members. In accordance with the procedure laid

down by the statute of the school of higher education, one member of the council shall be appointed

by the representation of students, and in the absence of such—a general meeting (conference) of

students; two members, or if the council consists of 11 members, three members shall be appointed

by the teaching staff and the scientific staff; one member—by the administration and other

employees; one council member shall be appointed by the Minister of Education and Science

together with the senate (academic council) of the school of higher education; four members, or if

the council consists of 11 members, five members shall be proposed by legal and natural persons

from the persons who do not belong to the staff and students of the school of higher education—

these members of the council shall be appointed and recalled by the Minister of Education and

Science on the recommendation of the Council of Higher Education, upon hearing the opinion of

the council of the school of higher education. The Minister of Education and Science shall publicly

announce the composition of the council.

4. A person may be a member of the council if he is of good repute, held or holds a position

of responsibility in the sphere of education, science, culture, public activity or business (this

requirement shall not apply to a representative of students) and has knowledge and competence

enabling him to seek the objectives of the school of higher education and to fulfil the mission of the

school of higher education. The same person may serve on the council only for two consecutive

terms of the council.

5. The President of the Republic, Members of the Seimas and the Government, as well as

public servants of political (personal) confidence may not be members of the council.

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6. The term of office of a member of the council shall be five years. Not later than a month

before the expiry of the term of office of a council member the Minister of Education and Science

shall announce a composition of a newly formed council.

7. When commencing the duties of his office, a member of the council shall, at a meeting of

the council, in the manner prescribed by the statute of the school of higher education, sign a

commitment to follow the interests of the school of higher education and the public and to fulfil in

good faith the functions set out by this law.

8. The council shall elect the chairman of the council from among its members and recall

him by a majority of votes cast by all members of the council. A person belonging to the staff of the

school of higher education or a student may not be the chairman of the council.

9. The council shall approve its rules of procedure. The council shall take decisions by a

majority of votes cast by the council members attending the meeting. A meeting of the council shall

be valid if it is attended by at least two thirds of the members of the council.

10. The rector (director) of the school of higher education may attend meetings of the

council in an advisory capacity.

11. If a member of the council fails to properly perform the duties set out by the statute of

the school of higher education, the rules of procedure of the council or the commitment referred to

in Paragraph 7 of this Article, or fails to sign the commitment referred to in Paragraph 7 of this

Article, the chairman of the council shall have the right to address the person who appointed the

said member with a request to recall the appointed member of the council.

12. If the powers of the member of the council are terminated before the expiry of his term

of office, a new member of the council shall be appointed in accordance with the procedure laid

down in Paragraph 3 of this Article by the person who appointed the member of the council whose

powers are terminated. The new member of the council shall commence his duties after the Minister

of Education and Science announces his appointment and the member of the council signs a

commitment specified in Paragraph 7 of this Article.

13. Members of the council may be remunerated for the activities during the tenure with the

funds of the school of higher education. The procedure for paying payments shall be laid down in

the statute of the school of higher education.

14. The rector (director) shall ensure organisational conditions necessary for the activities of

the council.”

1.3. Article 21 “Senate (academic council) of a state school of higher education” of the Law

on Science and Studies prescribes:

“1. The senate (academic council) of a state school of higher education shall be the

governance body of academic affairs of that school of higher education.

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2. The university senate shall execute the following functions:

1) approve programmes of studies, scientific research and experimental (social, cultural)

development, art programmes, and present proposals to the rector regarding the funding of these

programmes and reorganisation of the university structure which is necessary for implementation of

those programmes, evaluate the results of conducted research as well as the quality and level of all

scientific and artistic activities of the university;

2) define a procedure of studies; approve internal rules of the university;

3) approve an internal system of quality assurance in studies and control its implementation;

4) in compliance with the established principles for selection and evaluation of university

employees, approve the qualification requirements for positions of teaching staff members and

scientific staff members, lay down the procedure for performance evaluation of teaching staff

members and scientific staff members and for organisation of a competition to fill a position;

5) in accordance with the procedure laid down by the university statute, convene meetings

(conferences) of the academic community of the university to discuss important issues concerning

activities of the university;

6) in accordance with the procedure laid down by the university statute, bestow university’s

honorary degrees and other titles;

7) perform other functions prescribed by legal acts and the university statute.

3. The academic council of a college shall perform the following functions:

1) approve study programmes and present proposals to the director regarding the funding of

these programmes and reorganisation of the college structure which is necessary for implementation

of those programmes, evaluate the results of conducted research as well as the quality and level of

applied scientific and artistic activities of the college;

2) define a procedure of studies; approve internal rules of the college;

3) approve an internal system of quality assurance in studies and control its implementation;

4) in compliance with the established principles for selection and evaluation of college

employees, approve the qualification requirements for positions of teaching staff members and

scientific staff members, lay down the procedure for performance evaluation of teaching staff

members and scientific staff members and for organisation of a competition to fill a position;

5) in accordance with the procedure laid down by the college statute, convene meetings

(conferences) of the academic community of the college to discuss important issues concerning

activities of the college;

6) in accordance with the procedure laid down by the college statute, bestow college’s

honorary degrees;

7) perform other functions prescribed by legal acts and the college statute.

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4. A senate (academic council) shall be set up in accordance with the procedure laid down in

the statute of the school of higher education for a period not exceeding five years.

5. Members of the academic community of the university (college), members of the

administration of the university who pass into the senate (academic council) based on their position,

as well as scientists, teaching staff members and established artists of other institutions of science

and studies may be members of the senate (academic council). Representatives appointed by

students must comprise not less than 20 per cent of the members of the senate (academic council).

Representatives of students shall be appointed to the senate (academic council) by a student

representation; if there is no such representation—by a general meeting (conference) of the

students. Persons holding the position of professor and chief scientific staff member must comprise

not less than 20 per cent of the members of the senate. Persons holding the position of associate

professor and senior scientific staff member must comprise not less than 20 per cent of the members

of the senate (academic council). Persons who are members of the senate (academic council) based

on their position must comprise not more than 10 per cent of the members of the senate (academic

council). Employees of other institutions of science and studies may also be members of the senate

(academic council) based on their position. The rector (director) of the school of higher education

shall also be a member of the senate (academic council) based on his position.

6. Activities of the senate (academic council) shall be regulated by the rules of procedure of

the senate (academic council) as approved by the senate (academic council) of the school of higher

education.

7. The rector (director) of the school of higher education may not be chairman of the senate

(academic council).

8. The senate (academic council) shall, in accordance with the procedure laid down by the

statute of the school of higher education, inform the community of the school of higher education

about its decisions and shall account for its activities to the said community once a year.”

1.4. Article 22 “Rector (director) of a state school of higher education” of the Law on

Science and Studies prescribes:

“1. The rector (director) of a school of higher education shall be a one-person governance

body of the school of higher education, shall act in the name of the said institution and represent it.

2. The rector (director) shall execute the following functions:

1) head a school of higher education, organise its activities, ensuring the implementation of

a strategic action plan;

2) issue orders;

3) recruit and dismiss employees of the school of higher education;

4) admit and exclude students in accordance with the procedure laid down by the statute of

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the school of higher education;

5) upon evaluation of proposals of the student representation, submit to the council for

approval the study cost and the rates of fees that are not directly related to the implementation of a

study programme;

6) be responsible for financial activities of the school of higher education, proper

management, use and disposal of funds and assets;

7) submit to the council for approval and publicly announce an annual report on the

activities of the school of higher education, an annual statement of revenue and expenditure and a

report on the execution of this statement;

8) acquaint the senate (academic council) with an annual report on the activities of the

school of higher education and submit it to the Ministry of Education and Science;

9) submit to the council for approval a strategic plan for activities of the school of higher

education and plans for reorganisation of the structure of the school of higher education;

10) perform other functions prescribed in legal acts and the statute of the school of higher

education.

3. The rector (director) shall be elected by an open competition, appointed and dismissed by

the council.

4. The council shall announce an open competition to fill a position of the rector (director).

The rector (director) shall be considered to be elected if at least three-fifths of all the council

members vote for him.

5. The rector may be a person who has a scientific degree or is an established artist, who has

the experience in pedagogy and management.

6. The director may be a person who has the experience in pedagogy and management.

7. The chairman of the council or any other person authorised by the council shall sign in the

name of the school of higher education an employment contract with the elected rector (director) for

the duration of his term of office.

8. The term of office of the rector (director) shall be five years. The same person may be

elected rector (director) of the same school of higher education for not more than two terms of

office in succession and not earlier than after the lapse of five years since the end of the last term of

office, if the last term of office was consecutively second.

9. If an annual report on the activities of the school of higher education or an annual report

on the implementation of the statement of revenue and expenditure presented by the rector

(director) of the school of higher education is not approved by a majority of the council members at

a meeting of the council, the rector (director) may be dismissed from office in accordance with the

procedure laid down by legal acts.”

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2. In the opinion of the group of Members of the Seimas, a petitioner, the legal regulation

laid down in Articles 19, 20, 21 and 22 (save Paragraph 8 of Article 22) of the Law on Science and

Studies denies the principle of autonomy of schools of higher education and violates the

constitutional principle of a state under the rule of law. The petitioner maintains that the fact that the

functions of the council of a state school of higher education are much more extensive if compared

to the functions of control and supervision, the purpose of which is to ensure the responsibility of a

school of higher education and its accountability to the public, as well as the fact that the Minister

of Education and Science directly participates in appointing 5 (out of 9) or 6 (out of 11) council

members, are not in line with the official constitutional doctrine formulated by the Constitutional

Court in relation to the autonomy of schools of higher education.

Thus, from the arguments of the petitioner it is clear that, in view of the official

constitutional doctrine, the petitioner has had doubts as to the compliance, with the Constitution, of

the provisions of Paragraph 2 of Article 20 of the Law on Science and Studies, which sets the

functions of the council of a state school of higher education, also those of Paragraph 3 of this

article, which regulates the formation of the council of a state school of higher education, and the

provision of Paragraph 1 of the same article relating to the said paragraphs, whereby a governance

body of a state school of higher education is the council, as well as the compliance, with the

Constitution, of the provisions of Paragraphs 1 and 2 of Article 19 of the same law, to the extent

that these paragraphs consolidate the council as a collegial governance body of a state university or

state college, the provision of Paragraph 1 of Article 21, whereby the senate (academic council) of a

state school of higher education is the governance body of academic affairs of that school of higher

education, and the provisions of Paragraphs 2 and 3 of this article, which regulate the functions of

the university senate and the academic council of a college, the provisions of Paragraph 2 of Article

22, which regulate the functions of the rector (director), the provisions of Paragraphs 3, 4 and 7 of

the same article, which concern the procedure for election, appointment and dismissal of the rector

(director), and the provisions of Paragraph 9 of this article, which relate to accountability of the

rector (director).

By taking account of the said, the Constitutional Court will, first of all, investigate whether

Paragraphs 2 and 3 of Article 20 of the Law on Science and Studies are not in conflict with

Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the

rule of law.

3. It has been mentioned that Paragraph 2 of Article 20 of the Law on Science and Studies

sets the functions of the council of a state school of higher education, while Paragraph 3 of this

article—the procedure for formation of this council. The provisions in question are to be, first of all,

related to Paragraph 1 of the same article, which provides that a governance body of a state school

72

of higher education is the council, as well as to Paragraphs 1 and 2 of Article 19, wherein the

council is identified as one of the collegial governance bodies of a state university (state college).

Although the council is identified as a governance body, it performs the functions of governance as

well as functions of control and supervision.

3.1. Under Paragraph 2 of Article 20 of the Law on Science and Studies, the council

performs the following main functions of governance of a state school of higher education:

approves the vision and mission of the school of higher education, a strategic action plan presented

by the rector (director) (Item 1); upon hearing the opinion of the senate (academic council), submits

amendments of the university statute to the Seimas (amendments of the college statute—to the

Government) for approval (Item 2); approves plans for reorganisation of the structure of the school

of higher education presented by the rector (director) (Item 3); sets the procedure for managing,

using and disposing of funds (also funds allocated for work remuneration of the school’s leadership

and other employees) and assets of the school of higher education, considers and approves key

decisions related thereto (Item 4); sets the procedure for organising election of the rector (director)

of the school of higher education through open competition; elects, appoints to the office and

dismisses from it the rector (director) of the school of higher education (Item 5); sets the principles

for selection and assessment of employees of the school of higher education (Item 6); on the

recommendation of the rector (director) sets the study cost and the rates of fees that are not directly

related to the implementation of a study programme (Item 7); sets a general number of student

places, taking into account the possibilities of quality assurance in studies and scientific activities

(Item 8); approves an annual statement of revenue and expenditure of the school of higher

education and a report on the execution of this statement presented by the rector (director) (Item 9);

approves an annual report on the activities of the school of higher education presented by the rector

(director) (Item 10); upon hearing the opinion of the senate (academic council), approves plans for

reorganisation or liquidation of the school of higher education and submits them to the Seimas (the

Government) for approval (Item 13). Under Item 15 of the same paragraph, the council of a state

school of higher education may also perform other functions of governance of the school of higher

education, as prescribed in the statute of the school of higher education and other legal acts.

Thus, under Paragraph 2 of Article 20 of the Law on Science and Studies, the main

functions of the council of a state school of higher education are chiefly related to the adoption of

strategic decisions and other most important decisions of governance of the school of higher

education. The said functions include decisions inter alia relating to the most important questions in

strategic planning (approval of the vision and mission as well as a strategic action plan of the school

of higher education), reorganisation of the structure and governance of the school of higher

education, principal issues regarding amendments of the legal regulation of the school’s activities as

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well as liquidation of its activities (submission of amendments of the statute to the Seimas or the

Government, approval of plans for reorganisation of the structure of the school of higher education,

approval of plans for reorganisation or liquidation of the school of higher education and their

submission to the Seimas or the Government), principal issues regarding assets and finances of the

school of higher education (establishment of the procedure for managing, using and disposing of

funds and assets of the school of higher education and approval of key decisions related thereto,

approval of the study cost and the rates of fees that are not directly related to the implementation of

a study programme, approval of an annual statement of revenue and expenditure of the school of

higher education and a report on the execution of this statement, establishment of a general number

of student places), as well as the principal issues of personnel management (establishment of the

principles for selection and assessment of employees, establishment of the procedure for organising

elections of the rector (director), also election, appointment and dismissal of the rector (director)).

3.2. In this context it needs to be noted that, under Paragraph 3 of Article 20 of the Law on

Science and Studies, the council of a state school of higher education is composed of 9 or 11

members (an exact number of members of the council is set in the statute of the school of higher

education); in accordance with the procedure laid down by the statute of the school of higher

education, one member of the council is appointed by the representation of students, and in the

absence of such—a general meeting (conference) of students, two members, or if the council

consists of 11 members, three members are appointed by the teaching staff and the scientific staff,

and one member—by the administration and other employees; one council member is appointed by

the Minister of Education and Science together with the senate (academic council) of the school of

higher education; four members, or if the council consists of 11 members, five members are

proposed by legal and natural persons from the persons who do not belong to the staff and students

of the school of higher education—these members of the council are appointed and recalled by the

Minister of Education and Science on the recommendation of the Council of Higher Education,

upon hearing the opinion of the council of the school of higher education.

3.2.1. In this context one also needs to mention Paragraph 1 of Article 53 of the Law on

Science and Studies, wherein it is established that the academic community of institutions of

science and studies, inter alia schools of higher education, consists of students, the teaching staff,

the scientific staff, other researchers, and professors emeritus of these institutions. Thus, under

Paragraph 3 of Article 20 of the Law on Science and Studies, the academic community of a state

school of higher education may directly appoint 3 out of 9 or 4 out of 11 members of the council

(one member of the council is a representative of students, two or three—representatives of the

teaching staff and the scientific staff).

3.2.2. The other 6 out of 9 or 7 out of 11 members of the council of a state school of higher

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education are not directly appointed by the academic community:

– one member of the council is appointed by the administration and other employees (in this

context it needs to be noted that, under Paragraph 1 of Article 60 of the Law on Science and

Studies, the administration is necessary for performance of administrative functions of the

institution of science and studies as well as those of its units, and the administration employees and

other employees are necessary for implementation of the objectives of studies, scientific research,

experimental (social, cultural) development, as well as economic activities of the institution; the

administration is headed by the rector (director), who is appointed by the council);

– one council member is appointed by the Minister of Education and Science together with

the senate (academic council) of the school of higher education, i.e. legal preconditions are created

so that without a decision of the Minister of Education and Science one may not appoint as a

council member a candidate acceptable to the senate (academic council) of the school of higher

education;

– the other 4 out of 9 or 5 out of 11 council members are also appointed by the Minister of

Education and Science from among any candidates who are proposed by legal and natural persons

and who do not belong to the staff members and students of the school of higher education (inter

alia the academic community); these members of the council are appointed by the Minister of

Education and Science on the recommendation of the Council of Higher Education, upon hearing

the opinion of the council, but not the senate (academic council) of the school of higher education.

It needs to be noted that candidates who are proposed by legal and natural persons are not required

to be connected with the school of higher education to the council whereof they are being proposed,

nor to be concerned with successful activities of that school of higher education in the course of

implementation of its goals and mission (i.e., they are not necessarily proposed by, for example,

organisations of benefactors, social partners or the alumni (former students of the school of higher

education) of that school of higher education).

In this context it also needs to be noted that, under Paragraph 3 of Article 12 of the Law on

Science and Studies, the Council of Higher Education is an advisory body to the Ministry of

Education and Science on strategic issues of higher education development. The regulations of the

Council of Higher Education are approved by the Government. In accordance with Item 8 of the

Regulations of the Council of Higher Education, as approved by Resolution of the Government No.

771 “On the Approval of the Regulations of the Council of Higher Education” of 22 July 2009, the

Council of Higher Education consists of 15 members; the chairman of the Council of Higher

Education and its deputy are appointed by the Minister of Education and Science pursuant to the

requirements set for members of the Council (Item 11 of the said regulations); the other 13

members of the Council, in accordance with the procedure set in Item 12 of the said regulations, are

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also appointed by the Minister of Education and Science after a special commission for selection of

council members, formed by the Minister of Education and Science together with the acting

Council, submits to the minister a list of candidates to members of the Council, in which the

number of the indicated candidates must be larger than the required number of members of the

Council which must be approved.

Thus, upon hearing the opinion of the acting council of the school of higher education, and

without the participation of the academic community of the school of higher education, the Minister

of Education and Science appoints 4 out of 9 or 5 out of 11 members of the council of that state

school of higher education on the recommendation of an advisory institution formed by the minister

himself.

3.2.3. In the context of Paragraph 2 of Article 20 of the Law on Science and Studies it needs

to be noted that, under Paragraph 9 of the same article, the council adopts decisions by a majority of

votes cast by the council members attending the meeting; a meeting of the council is valid if it is

attended by at least two thirds of the members of the council.

Thus, strategic and other most important decisions of governance of a state school of higher

education, indicated in Paragraph 2 of Article 20 of the Law on Science and Studies, are adopted by

such a governance body (the council) in which members directly appointed by the academic

community constitute the minority and in forming which the academic community has no decisive

influence; the members directly appointed by the academic community have no decisive influence

in adopting decisions of this body, either.

Paragraph 4 of Article 22 of the Law on Science and Studies provides for an exception in

the event of the election of the rector (director) of a state school of higher education—a special

norm with regard to the aforementioned general norm entrenched in Paragraph 9 of Article 20 of

this law: to elect the rector (director) not a simple majority of votes cast by the council members

attending the meeting is required, whereas votes of at least three-fifths of all the council members,

i.e. votes of 6 council members, if the council consists of 9 members, or votes of 7 council

members, if the council consists of 11 members. Another exception—a special norm with regard to

the general norm entrenched in Paragraph 9 of Article 20 of the Law on Science and Studies—is set

in Paragraph 9 of Article 22 of this law: an annual report on the activities of the school of higher

education or an annual report on the implementation of the statement of revenue and expenditure

presented by the rector (director) may not necessarily be approved by a majority of votes of the

council members, i.e. by votes of 5 council members, if the council consists of 9 members, or votes

of 6 council members, if the council consists of 11 members.

While taking account of the fact that the academic community of a state school of higher

education directly appoints 3 out of 9, or 4 out of 11 members of the council, a conclusion is also to

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be drawn that the academic community has no decisive influence either when the council elects the

rector (director), or when it decides on the question of approval of an annual report on the activities

of the school of higher education or an annual report on the implementation of the statement of

revenue and expenditure presented by the rector (director).

3.2.4. While summing up the legal regulation laid down in Paragraph 3 of Article 20 of the

Law on Science and Studies, it needs to be noted that:

– when forming the council of a state school of higher education, a decisive influence is

wielded by the Minster of Education and Science: without the participation of the academic

community of the school of higher education, the Minister of Education and Science appoints 4 out

of 9, or 5 out of 11 members of the council of a state school of higher education on the

recommendation of an advisory institution formed by the minister himself, and he also appoints one

more member of the council together with the senate (academic council) of the school of higher

education;

– the academic community of a state school of higher education has no decisive influence in

the formation of the council—as a collegial governance body—of that school of higher education: it

may directly appoint 3 out of 9 or 4 out of 11 members of the council;

– the academic community of a state school of higher education has no decisive influence

upon decisions of the council: strategic and other most important decisions of governance of the

school of higher education may be adopted by the council without the assent of the council

members directly appointed by the academic community.

Thus, taking account of the legal regulation laid down in Paragraph 3 of Article 20 of the

Law on Science and Studies, the council of a state school of higher education is not an institution

implementing self-government of the academic community—it performs the main functions of

governance related to self-government of the school of higher education.

3.3. The provisions of Paragraph 2 of Article 20 of the Law on Science and Studies are also

to be construed in the context of the functions of the other collegial governance body of a state

school of higher education—the senate (academic council).

3.3.1. Under Paragraph 5 of Article 21 of the Law on Science and Studies, members of the

academic community of a university (college), members of the administration of a university who

pass into the senate (academic council) based on their position, also scientists, teaching staff

members and established artists of other institutions of science and studies, as well as

representatives appointed by students may be members of the senate (academic council):

representatives appointed by students must comprise not less than 20 per cent of the members of the

senate (academic council), persons holding the position of professor and chief scientific staff

member must comprise not less than 20 per cent of the members of the senate, and persons holding

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the position of associate professor and senior scientific staff member must comprise not less than 20

per cent of the members of the senate (academic council); persons who are members of the senate

(academic council) based on their position must comprise not more than 10 per cent of the members

of the senate (academic council).

Thus, taking account of the procedure for forming the senate (academic council) of a state

school of higher education, the senate (academic council) is a collegial governance body which

directly represents the academic community and is the sole such body implementing self-

government of the academic community.

3.3.2. Under Paragraph 1 of Article 21 of the Law on Science and Studies, the senate

(academic council) of a state school of higher education is defined as the governance body of

academic affairs of the school of higher education. Paragraph 2 of this article sets the functions of

the senate of a state university, while Paragraph 3—those of the academic council of a state college.

The said functions inter alia include the approval of programmes of studies (in the case of the

senate of a university—also programmes of scientific research and experimental (social, cultural)

development, art programmes) and presentation of proposals to the rector (director) regarding

funding of these programmes and corresponding reorganisation of the structure of the school of

higher education, evaluation of the results of conducted research as well as the quality and level of

all scientific and artistic activities of the whole school of higher education, establishment of the

procedure of studies and approval of internal rules of the school of higher education, approval of an

internal system of quality assurance in studies and control of its implementation, approval of the

qualification requirements for positions of teaching staff members and scientific staff members,

establishment of the procedure for performance evaluation of teaching staff members and scientific

staff members and for organisation of a competition to fill a position, convening of meetings

(conferences) of the academic community to discuss important issues concerning activities of the

school of higher education, and bestowing of honorary titles of the school of higher education.

3.3.3. When construing the provisions of Paragraph 2 of Article 20 of the Law on Science

and Studies in conjunction with Paragraphs 2 and 3 of Article 21 of this law, it also needs to be

noted that the senate (academic council) does not participate, or participates only in an advisory

capacity, in adopting strategic and other most important decisions of governance of the state school

of higher education. Inter alia the senate (academic council) does not participate in adopting

decisions on the principal questions of strategic planning (approval of the vision and mission as

well as a strategic action plan of the school of higher education), it only presents its proposals or

opinion regarding the reorganisation of the structure and governance of the school of higher

education, as well as the reorganisation or liquidation of the school of higher education (under Item

1 of Paragraph 2 and Item 1 of Paragraph 3 of Article 21, the senate (academic council) presents

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proposals to the rector (director) regarding the reorganisation of the university (college) structure

which is necessary for the implementation of programmes of studies, scientific research and

experimental (social, cultural) development, as well as art programmes, under Items 2 and 13 of

Paragraph 2 of Article 20, the senate (academic council) presents its opinion to the council

regarding amendments of the university (college) statute and regarding plans for reorganisation or

liquidation), and it does not participate or participates only by presenting its proposals while

adopting principal issues regarding assets and finances of the school of higher education (the senate

(academic council) participates neither in establishing the procedure for managing, using and

disposing of funds and assets of the school of higher education, nor in approving key decisions

related thereto, nor in approving the study cost and the rates of fees that are not directly related to

the implementation of a study programme, nor in approving an annual statement of revenue and

expenditure of the school of higher education and a report on the execution of this statement, nor in

establishing a general number of student places; under Item 1 of Paragraph 2 and Item 1 of

Paragraph 3 of Article 21, the senate (academic council) presents proposals to the rector (director)

regarding the funding of university (college) programmes of studies, scientific research and

experimental (social, cultural) development, as well as art programmes), the senate (academic

council) does not participate in adopting decisions on the principal issues of personnel management

(in establishing the principles for selection and assessment of employees, setting the procedure for

organisation of elections of the rector (director), also in electing, appointing and dismissing the

rector (director)). In addition, while deciding on other questions of personnel management, the

senate (academic council) is subordinated to the council: under Item 4 of Paragraph 2 and Item 4 of

Paragraph 3 of Article 21 of the Law on Science and Studies, the senate (academic council), in

compliance with the established principles for selection and evaluation of university (college)

employees, approves the qualification requirements for positions of teaching staff members and

scientific staff members and lays down the procedure for performance evaluation of teaching staff

members and scientific staff members and for organisation of a competition to fill a position. The

rector (director) of a state school of higher education is not accountable to the senate (academic

council) and he simply acquaints the senate (academic council) with an annual report on the

activities of the school of higher education approved by the council.

3.4. The provisions of Paragraph 2 of Article 20 of the Law on Science and Studies are also

to be construed in the context of the functions of the rector (director)—another governance body of

a state school of higher education, which are established in Paragraph 2 of Article 22 of this law.

3.4.1. It needs to be noted that the rector (director) of a state school of higher education is a

one-person governance body, who acts in the name of the school of higher education and represents

that school (Paragraph 1 of Article 22 of the Law on Science and Studies). The rector (director) is

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elected, appointed to the office and dismissed from it by the council (Item 5 of Paragraph 2 of

Article 20 and Paragraphs 3, 4 and 7 of Article 22 of the Law on Science and Studies). The rector

(director) is accountable to the council: he submits to the council for approval an annual report on

the activities of the school of higher education, an annual statement of revenue and expenditure of

the school of higher education and a report on the execution of this statement; if the said documents

are not approved by a majority of the council members at a meeting of the council, the rector

(director) may be dismissed from office (Items 9 and 10 of Paragraph 2 of Article 20 and Paragraph

9 of Article 22 of the Law on Science and Studies).

The functions of the rector (director) are established in Paragraph 2 of Article 22 of the Law

on Science and Studies. These functions inter alia include: heading a school of higher education,

organising activities of the school of higher education by ensuring the implementation of a strategic

action plan as approved by the council, issuing orders, recruiting and dismissing employees of the

school of higher education, admitting and excluding students, submitting to the council for approval

the study cost and the rates of fees not directly related to the implementation of a study programme,

being accountable for financial activities of the school of higher education, proper management, use

and disposal of funds and assets, submitting to the council for approval an annual report on the

activities of the school of higher education, an annual statement of revenue and expenditure and a

report on the execution of this statement, acquainting the senate (academic council) with an annual

report on the activities of the school of higher education as approved by the council and submitting

it to the Ministry of Education and Science, submitting to the council for approval a strategic action

plan of the school of higher education and plans for reorganisation of the structure of the school of

higher education.

3.4.2. When construing the provisions of Paragraph 2 of Article 20 of the Law on Science

and Studies in conjunction with Paragraph 2 of Article 22 of this law, it also needs to be noted that

the council of a state school of higher education adopts certain decisions of strategic governance

and other most important decisions of governance upon the proposal of the rector (director). Inter

alia, on the proposal of the rector (director), the council approves a strategic action plan of the

school of higher education, plans for reorganisation of the structure of the school (Items 1 and 3 of

Paragraph 2 of Article 20, Item 9 of Paragraph 2 of Article 22), an annual statement of revenue and

expenditure of the school of higher education and a report on the execution of this statement, as

well as an annual report on the activities of the school of higher education (Items 9 and 10 of

Paragraph 2 of Article 20, Item 7 of Paragraph 2 of Article 22), and sets the study cost and the rates

of fees not directly related to the implementation of a study programme (Item 7 of Paragraph 2 of

Article 20, Item 5 of Paragraph 2 of Article 22).

3.5. It needs to be noted that, besides the aforementioned functions of governance, under

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Paragraph 2 of Article 20 of the Law on Science and Studies, the council of a state school of higher

education also performs the control and supervision functions relating to responsibility of the school

of higher education and its accountability to the public: the council may initiate an audit of

economic and financial activities of the school of higher education (Item 9), assesses the

compliance of an annual report on the activities of the school of higher education presented by the

rector (director) with the strategic plan, the achieved results and their impact (Item 10), ensures the

accountability of the school of higher education to the public and its founders as well as its relation

with them, each year informs the public about the results of the execution of the strategic action

plan of the school of higher education (Item 11), prepares an annual report on its activities and

submits it to the Seimas or the Government (Item 14).

3.6. While summing up the legal regulation laid down in Paragraph 2 of Article 20 of the

Law on Science and Studies in conjunction with other related provisions of this law, it needs to be

noted that:

– the council of a state school of higher education is a governance body of that school of

higher education which has the greatest powers: most of its functions are related to the adoption of

strategic and other most important decisions of governance of the school of higher education; inter

alia the said decisions include the most important decisions concerning the use of financial funds

and other assets for the purpose of implementing the mission of the school of higher education;

– the academic community has no decisive influence in the formation of the council, nor

does it when the council adopts strategic and other most important decisions of governance of the

school of higher education, inter alia the principal decisions concerning the use of financial funds

and other assets for the purpose of implementing the mission of the school of higher education: the

academic community directly appoints a minority of council members, while the majority of

council members are appointed by the Minister of Education and Science; strategic and other most

important decisions of governance of the school of higher education may be adopted by the council

without the assent of the council members directly appointed by the academic community; thus, the

council of a state school of higher education is not an institution implementing self-government of

the academic community, even though it performs the main governance functions related to self-

government of the school of higher education;

– the council adopts strategic and other most important decisions of governance of the state

school of higher education without the participation, or with the participation in only an advisory

capacity, of the senate (academic council), which is a collegial governance body directly

representing the academic community of the school of higher education and the sole such body

implementing self-government of that academic community;

– the council adopts certain strategic and other most important decisions of governance upon

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the proposal of the rector (director)—a one-person governance body appointed by and accountable

to the council;

– besides the functions of governance of the state school of higher education related to the

strategic governance and adoption of the most important decisions of governance of that school, the

council also performs the control and supervision functions related to responsibility of the school of

higher education and its accountability to the public.

4. From the material of the constitutional justice case at issue, inter alia from the systemic

comparative study on higher education in Europe “Higher Education Governance in Europe.

Policies, structures, funding and academic staff” published in 2008 by the information network on

education in Europe “Eurydice”, it is clear that European states apply various models of self-

government and governance of state and state-controlled schools of higher education.

It is noted in this study that all such institutions of higher education in Europe have an

executive body, often called the rectorate, which is headed by a rector, director, president or vice-

chancellor, as the executive head of the institution. Almost all of the said institutions have a

collegial academic body, usually called a senate, academic council or academic board, which is

responsible for the educational and research services provided by the institution. In part of the

European states decisions concerning important institutional matters—long-term and strategic

planning, determining the institutional orientation—are adopted by the academic body. There is a

general trend across Europe toward the introduction of advisory and supervisory bodies, which

supervise or control operational, educational and financial activities.

From the aforesaid study it is clear that the executive head (a rector, director, president or

vice-chancellor) is the main person responsible for the strategic development, organisation and

planning of the institution’s activities (including programming); he performs these duties in close

cooperation with the respective governance bodies. Most of the states examined in this study have a

system by which the head of a state and state-controlled school of higher education is selected and

confirmed by the institution’s academic body.

An academic body—a collegial body, usually called a senate, academic council or academic

board, is primarily responsible for the educational and research services provided by the state or

state-controlled school of higher education. In the majority of European states (e.g., Ireland,

Austria, Belgium, Bulgaria, the Czech Republic, Denmark, Estonia, Greece, Spain, Italy, the United

Kingdom, Latvia, Poland, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal,

Romania, Slovakia, Slovenia, Sweden, Hungary, Germany) in the said institutions of science an

academic body is composed of members of the academic community (internal stakeholders).

A decision-making body of a state or state-controlled school of higher education is

responsible for long-term and strategic planning, as well as for determining the institutional

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orientation. There is not an inconsiderable number of European states (e.g., the Czech Republic,

Denmark, Estonia, Greece, Italy, Latvia, Poland, the Netherlands, Portugal, Romania, Slovenia,

Slovakia, Hungary) in which a separate decision-making body is not formed and its functions are

assumed by the academic body. In some of the states (e.g., Spain, most of the German Länder) the

academic body is not vested with the competence to adopt the aforesaid important institutional

decisions. However, in the majority of European states (e.g., Bulgaria, the Czech Republic, Estonia,

Spain, Italy, Latvia, Poland, the Netherlands, Romania, Slovakia, Slovenia, Germany (most of its

federal Länder)) the bodies discharging decision-making functions (inter alia academic bodies or

special decision-making bodies), which adopt the most important decisions relating to long-term

and strategic planning as well as to determining the institutional orientation, are composed

exceptionally of internal stakeholders of the institution of science. In some European states the

decision-making body is composed of internal as well as external stakeholders (e.g., Norway,

France, Finland), or solely of external stakeholders (e.g., Belgium, Liechtenstein, Luxembourg).

In most European states (e.g., Austria, Bulgaria, the Czech Republic, Denmark, Estonia,

Spain, Italy, Latvia, the Netherlands, Portugal, Slovakia, Slovenia, Hungary, Germany) state and

state-controlled schools of higher education have instituted advisory or supervisory bodies, which

supervise or control operational, educational and financial activities, and which are composed solely

or largely of external stakeholders. In some European states (e.g., Ireland, Cyprus, Liechtenstein,

Luxembourg, Norway, Sweden) the supervisory body performs both the supervisory and decision-

making functions.

5. The principle of autonomy of schools of higher education inter alia is entrenched in the

Magna Charta Universitatum, which declares inter alia the following fundamental principles:

– the university is an autonomous institution at the heart of societies differently organised

because of geography and historical heritage; it produces culture by research and teaching; to meet

the needs of the world around it, its research and teaching must be morally and intellectually

independent of all political authority and economic power;

– freedom in research and training is the fundamental principle of university life;

governments and universities, each as far as in them lies, must ensure respect for this fundamental

requirement; rejecting intolerance and always open to dialogue, a university is an ideal meeting-

ground for teachers capable of imparting their knowledge and well equipped to develop it by

research and innovation and for students entitled, able and willing to enrich their minds with that

knowledge.

6. The group of Members of the Seimas, a petitioner, has had doubts as regards the

compliance of Paragraphs 2 and 3 of Article 20 of the Law on Science and Studies with inter alia

Paragraph 3 of Article 40 of the Constitution, which consolidates the autonomy of schools of higher

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education.

In the constitutional justice case at issue it has been held that the autonomy of schools of

higher education, guaranteed in Paragraph 3 of Article 40 of the Constitution, implies academic and

institutional autonomy. In its ruling of 27 June 1994, the Constitutional Court, while construing the

provision of Paragraph 3 of Article 40 of the Constitution, whereby schools of higher education are

granted autonomy, held that, historically, the idea of the autonomy of the school of higher education

came into being in the Middle Ages, when universities originated as establishments of science and

studies. The autonomy meant that the university, to a certain extent, was independent from the state,

was striving to dissociate itself from the influence of political power, to create an independent

system of regulation of internal activities within the school of higher education. The purpose of

such dissociation from the state power was to safeguard the freedom of science, research and

teaching, to protect researchers and professors from political influence. The development of the

academic autonomy has always been determined by the understanding that science and teaching

may normally exist and induce progress only when they are free and independent. Thus appeared

the principle of academic freedom, which expressed the striving to protect the researchers’ and

teachers’ freedom of scientific thought and its expression from outward influence. Traditionally, the

autonomy of the school of higher education is conceived as the right to independently determine

and establish in the regulations or statute the organisational and governance structure, relations with

other partners, the procedure of research and studies, study programmes and the procedure of

student enrolment, to solve other related questions, to use the property given over by the state and

other acquired property, to possess the territory, buildings and other property allotted for the needs

of research and studies, and to have the guarantee of inviolability. For this purpose, the school of

higher education is guaranteed the institutional autonomy, i.e. a certain status, which means that

there are certain spheres of activities independent from the control of the executive power

(Constitutional Court rulings of 14 January 2002, 5 February 2002, 20 February 2008 and 20 March

2008).

It needs to be noted that academic autonomy and institutional autonomy of schools of higher

education are inseparably interrelated, i.e. without academic autonomy one may not guarantee

institutional autonomy—the self-government of a school of higher education, while without

institutional autonomy one would not ensure academic autonomy, which stems inter alia from the

constitutional freedom of science and research. In its decision of 28 October 2009 the Constitutional

Court held that the constitutional concept of freedom of science, research and teaching implies the

professional independency of the scientific community, which is inseparable from self-government

of schools of higher education, which is one of essential conditions for implementation of autonomy

of schools of higher education; in order to ensure the constitutional implementation of the principle

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of academic freedom and the public interests that conditions are created in schools of higher

education to offer all-round education of the personality, and that schools of higher education enjoy

freedom of teaching, of scientific research and creative activities, the institutions of governance that

carry out the functions of self-government of the school of higher education must be consolidated in

the governance structure of schools of higher education. Only in this way one would guarantee the

imperative of autonomy of schools of higher education, which stems from the Constitution.

Thus, the autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40

of the Constitution implies self-government of the academic community (scientific community) of

these schools, which is implemented inter alia through governance institutions of a particular

school of higher education which represent the said community of that school.

It needs to be noted that self-government of academic community of schools of higher

education is to be related inter alia to democratic principles of governance. In the context of the

autonomy of schools of higher education guaranteed in Paragraph 3 of Article 40 of the

Constitution the said principles include inter alia the direct participation of the academic

community, and its decisive influence, in the formation of the governance institution (institutions)

of the school of higher education that is (are) vested with the greatest powers, as well as the

limitation of the number of terms of offices of members of the other governance, control and

supervision institutions of the school of higher education and the number of terms of offices of the

persons discharging functions of one-person institutions or holding the office of the head of a

collegial institution. It needs to be emphasised that, while establishing the governance and

organisational structure of schools of higher education, inter alia while regulating the

reorganisation of that structure, the legislator should heed the democratic principles of governance

and create no preconditions for their violation. The legal regulation that is not in line with these

principles could create preconditions inter alia for the state to unreasonably interfere with the

governance of schools of higher education and/or to deny self-government of the academic

community of schools of higher education and, thus, to violate the autonomy of schools of higher

education guaranteed in Paragraph 3 of Article 40 of the Constitution.

7. The autonomy of schools of higher education is inseparable from the purpose of schools

of higher education and the purpose of higher education (Constitutional Court decision of 28

October 2009). In its ruling of 5 February 2002 the Constitutional Court noted that the system of

higher education ensures the development of science and culture, social sphere and economy. The

purpose of higher education is to create, accumulate and disseminate knowledge of science and

cultural values, to educate the personality and society. Therefore, the society is concerned with

creating proper conditions for institutions of higher education to offer all-round education of the

personality and to enjoy freedom of teaching, scientific research and creative activities.

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Accordingly, schools of higher education must respond to changes of social needs and adjust their

activities with the interests of society. Consequently, the principle of autonomy of schools of higher

education must be coordinated with the principle of responsibility and accountability to society,

other constitutional values, with the duty of schools of higher education to observe the Constitution

and laws, with the interaction and harmonisation of interests of schools of higher education and

society.

The variety of purposes of higher education determines the fact that there may be different

types of schools of higher education; while taking account of this, different limits of autonomy may

be established by laws for different types of schools of higher education (taking account of whether

they are universities or colleges, whether the founder is the state or other subjects, as well as of

other conditions) (Constitutional Court ruling of 10 July 1996). Therefore, the provision of

Paragraph 3 of Article 40 of the Constitution may not be construed as prohibiting from establishing,

by laws, different limits of autonomy for different types of schools of higher education; laws may

provide for different regulation of relations of governance, as well as those of self-government, of

schools of higher education (Constitutional Court ruling of 5 February 2002 and decision of 28

October 2009). As the Constitutional Court noted in its ruling of 20 March 2008, 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 persons studying therein, what study programmes they implement, what their scientific

potential is, etc. Thus, it needs to be noted that the provision of Paragraph 3 of Article 40 of the

Constitution does not prohibit from differentiating, while taking account of various important

criteria, the legal status of schools of higher education of different types, nor the rights and limits of

autonomy of schools of higher education of the same type.

In the constitutional justice case at issue it has been mentioned that, while heeding the

autonomy of schools of higher education, the legislator has broad discretion to choose and regulate

a concrete model of the organisation of science and studies, which meets best the needs of

development of the progress of the state and society in a particulate period of time. Thus, the

autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the

Constitution does not deny the right of the legislator to regulate activities of schools of higher

education, inter alia, to establish, by taking account of the interests of society and its changing

needs, various types of institutions of science and studies, different limits of autonomy of these

institutions, and the bases of their organisational and governance structure. While not denying the

autonomy of schools of higher education, inter alia the self-government thereof based on the

democratic principles of governance, the legislator may establish various models of the governance

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structure of schools of higher education, inter alia provide for one institution directly representing

the academic community and implementing self-government of that community, which would be

empowered to decide on all the most important questions relating to both the academic and

institutional autonomy of the school of higher education, or several such institutions, which would

decide on the most important governance questions relating to academic autonomy and institutional

autonomy separately, as well as an institution of control and supervision, which would be composed

not only of, or not of, members of the academic community, and which in the course of adopting

decisions of governance of the school of higher education could perform the advisory functions as

well.

7.1. In the constitutional justice case at issue it also needs to be noted that the constitutional

guarantee of autonomy of schools of higher education implies that the legislator is obliged to

provide for special legal regulation, on the basis of which the greater part of the legal regulation of

the said relations should be composed by local legal regulation established by schools of higher

education themselves (Constitutional Court ruling of 20 March 2008 and decision of 28 October

2009). Therefore, the general legal regulation established by laws and applicable to all the schools

of higher education should not be too much detailed and should not limit the right of schools of

higher education, stemming from the principle of their autonomy, to regulate their activities by

means of local legal acts.

7.2. It needs to be mentioned that in the Magna Charta Universitatum universities are

defined as centres of culture, education and scientific research, which are building up the foundation

for the cultural, scientific and technical development so essential for the future of mankind; it is also

noted therein that a university is the trustee of the European humanist tradition; its constant care is

to attain universal knowledge; to fulfil its vocation it transcends geographical and political frontiers,

and affirms the vital need for different cultures to know and influence each other. As mentioned,

historically, the idea of the autonomy of the school of higher education came into being in the

Middle Ages, when universities originated as establishments of science and teaching; some

universities have centuries-long traditions and their activities are characterised by the symbiosis of

the humanities, social sciences, natural sciences, mathematics (and more often than not also

medicine).

It has been mentioned that the provision of Paragraph 3 of Article 40 of the Constitution

does not prohibit from differentiating, while taking account of various important criteria, the legal

status of schools of higher education of different types, nor the rights and limits of autonomy of

schools of higher education of the same type. While taking account of this, in the context of the

constitutional justice case at issue it needs to be noted that, while differentiating, according to

various important criteria, the status of schools of higher education, one must take account of inter

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alia the historical traditions and established traditions of self-government based on democratic

principles of governance that are peculiar to a concrete school of higher education, as well as the

nurturance of continuity of these traditions. The said inter alia means that, under Paragraph 3 of

Article 40 of the Constitution, in certain cases one may, with respect to concrete schools of higher

education, establish special norms defining the rights, limits of autonomy, and the organisational

and governance structure of these schools, which will differ from those established by the general

legal regulation provided for by laws with respect to all the schools of higher education.

8. As mentioned, the legislator has the right to regulate the activities of schools of higher

education, inter alia to establish various bases of their organisational and governance structure;

when implementing this right, it must heed the Constitution, inter alia not deny the autonomy of

schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution.

In the constitutional justice case at issue it needs to be noted that the constitutional concept

of autonomy of schools of higher education is disclosed and developed in the provisions of the

official constitutional doctrine of the Constitutional Court. As the Constitutional Court noted in its

decision of 20 September 2005, the provisions of the Constitution—its norms and principles—are

construed in the acts of the Constitutional Court. In these acts, the official constitutional doctrine is

created and developed. All law-making and law-applying subjects, including courts, must pay heed

to the official constitutional doctrine when they apply the Constitution, they may not interpret the

provisions of the Constitution differently from their construction in the acts of the Constitutional

Court. Otherwise, the constitutional principle that only the Constitutional Court enjoys powers to

construe the Constitution officially would be violated, the supremacy of the Constitution would be

disregarded, and preconditions would be created for appearance of inconsistencies in the legal

system.

It needs to be mentioned that while adopting new, amending and supplementing already

adopted laws and other legal acts, the state institutions that pass them are bound by the concept of

the provisions of the Constitution and other legal arguments set forth in the reasoning part of the

Constitutional Court ruling (Constitutional Court rulings of 30 May 2003 and 19 January 2005,

decision of 20 September 2005, and ruling of 28 March 2006). The legislator, while passing new or

amending and supplementing the valid laws, may not disregard inter alia the concept of the

provisions of the Constitution and other legal arguments which are set forth in officially published

and effective rulings of the Constitutional Court (Constitutional Court ruling of 19 January 2005).

It also needs to be noted that provisions of the official constitutional doctrine are binding on

the Constitutional Court itself. As the Constitutional Court has held more than once, the legal

position of the Constitutional Court (ratio decidendi) in the corresponding constitutional justice

cases has the significance of the precedent (Constitutional Court rulings of 22 October 2007 and 9

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February 2010); the Constitutional Court is bound by the precedents that it itself has created (in

previous constitutional justice cases) and by the official constitutional doctrine that it itself has

formed, which substantiates those precedents (Constitutional Court ruling of 28 March 2006,

decisions of 8 August 2006 and 21 November 2006, rulings of 22 October 2007 and 24 October

2007, decisions of 13 November 2007, 6 December 2007 and 1 February 2008, ruling of 20

February 2008).

9. In the context of the constitutional justice case at issue one needs to mention the official

constitutional doctrinal provisions formulated in the Constitutional Court decision of 28 October

2009, which develop the constitutional concept of autonomy of schools of higher education as the

right inter alia to independently determine the organisational and governance structure of these

schools:

– the administrative structure of a school of higher education in the broad meaning is

understood to be a system of certain single-person and/or collegial institutions that adopt decisions

on issues of governance of the school of higher education, that perform the functions of

administration and control (for example, rector, vice-rectors, senate, council, administration, etc.);

according to their purpose these institutions perform different functions;

– the self-governance of schools of higher education must be implemented through the

institutions of schools of higher education, the procedure for forming which should not be the one

that would not enable the academic community of the school of higher education to influence

adoption of decisions on administration of the school of higher education; the institutions of

governance of schools of higher education that implement the functions of self-government of the

school of higher education must be formed by the schools of higher education themselves, after they

establish, on the bases of laws, in their by-laws or statutes the ways and procedure of forming these

institutions;

– it would be impossible to ensure the autonomy of schools of higher education, inter alia

the constitutional principle of academic freedom, if schools of higher education did not enjoy

financial independence, i.e. if their governance institutions that implement the functions of self-

government of the school of higher education had no possibility to adopt (on the basis of laws)

decisions on the use of financial funds and other property for performing their mission; the function

of adopting decisions concerning the use of funds and other property based on laws is also to be

attributed inter alia to functions of the governance institutions of schools of higher education that

implement functions of self-government of the school of higher education;

– in order to enable the state to implement its obligation to supervise the activity of

educational establishments, as well as to ensure the compatibility of the principle of autonomy of

schools of higher education with the principle of responsibility and accountability to society, to

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guarantee the quality of studies and development of scientific research, in the governance structure

of the school of higher education, as a rule, one must provide for an institution which performs the

functions of control and supervision and the purpose of which is to ensure the responsibility of the

school of higher education and its accountability to society, but which, however, is not directly

related to the implementation of the principle of academic freedom;

– one may not establish any such legal regulation where the institution that performs the

functions of control and supervision and the purpose of which is to ensure responsibility of the

school of higher education and its accountability to society, apart from its functions of control and

supervision would also perform the functions of governance of the school of higher education,

which are assigned to institutions of governance of schools of higher education, which are usually

formed from members of the academic community of the school of higher education and which

perform the functions of self-government of the school of higher education;

– while not denying the principle of autonomy of schools of higher education, the legislator

may establish, by laws, the procedure and ways of forming those institutions of the governance

structure of the school of higher education that perform the functions of control and supervision and

the purpose of which is to ensure the responsibility of the school of higher education and its

accountability to society;

– the institution that performs the functions of control and supervision and the purpose of

which is to ensure the responsibility of the school of higher education and its accountability to

society may be formed not only from members of the academic community of the school of higher

education—inter alia representatives of institutions of the executive power of the state may be

appointed thereto, as well.

10. It has been mentioned that the Constitutional Court will, first of all, inter alia investigate

whether Paragraph 2 of Article 20 of the Law on Science and Studies is not in conflict with

Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the

rule of law.

10.1. It has been mentioned that, under the overall legal regulation laid down in Paragraph 2

of Article 20 of the Law on Science and Studies:

– the council of a state school of higher education is a governance body of that school of

higher education which has the greatest powers: most of its functions are related to the adoption of

strategic and other most important decisions of governance of the school of higher education; inter

alia the said decisions include the most important decisions concerning the use of financial funds

and other assets for the purpose of implementing the mission of the school of higher education;

– the academic community has no decisive influence in the formation of the council, nor

does it when the council adopts strategic and other most important decisions of governance of the

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school of higher education, inter alia the most important decisions concerning the use of financial

funds and other assets for the purpose of implementing the mission of the school of higher

education; thus, the council of a state school of higher education is not an institution implementing

self-government of the academic community, even though it performs the main governance

functions related to self-government of the school of higher education;

– besides the functions of governance of the state school of higher education related to the

adoption of strategic and other most important decisions of governance of the school of higher

education, the council also performs the control and supervision functions related to responsibility

of the school of higher education and its accountability to the public.

10.2. As mentioned, the autonomy of schools of higher education guaranteed in Paragraph 3

of Article 40 of the Constitution implies self-government of the academic community (scientific

community) of these schools, which is inter alia implemented through the governance institutions

of a particular school of higher education that represent the said community of that school; such

self-government is to be linked to democratic principles of governance, inter alia to the direct

participation of the academic community, and its decisive influence, in the formation of the

governance institution (institutions) of the school of higher education that is (are) vested with the

greatest powers; while establishing the governance and organisational structure of schools of higher

education, the legislator should heed the democratic principles of governance and create no

preconditions for their violation.

It has also been mentioned that self-governance of schools of higher education must be

implemented through their institutions, the procedure for forming which may not be such that

would not enable the academic community of the school of higher education to influence the

adoption of decisions on administration of the school of higher education; it would be impossible to

ensure the autonomy of schools of higher education, inter alia the constitutional principle of

academic freedom, if schools of higher education did not enjoy financial independence, i.e. if their

governance institutions that implement the functions of self-government of the school of higher

education had no possibility to adopt (on the basis of laws) decisions on the use of financial funds

and other property for the purpose of implementing their mission.

It has also been mentioned that in the governance structure of a school of higher education

one must, as a rule, provide for such an institution that performs the functions of control and

supervision and the purpose of which is to ensure the responsibility of the school of higher

education and its accountability to society; one may not establish any such legal regulation where

the said institution, apart from its functions of control and supervision, would also perform the

functions of governance of the school of higher education, which are assigned to the governance

institutions of schools of higher education which are usually formed from members of the academic

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community of the school of higher education and which perform the functions of self-government

of the school of higher education.

10.3. Thus, the said overall legal regulation laid down in Paragraph 2 of Article 20 of the

Law on Science and Studies, under which the council of a state school of higher education, in the

formation of which the academic community has no decisive influence and which is not an

institution implementing self-government of the school of higher education, is assigned the

functions typical of self-government of schools of higher education, violates the autonomy of

schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.

It needs to be noted that the functions of governance provided for in Paragraph 2 of Article

20 of the Law on Science and Studies per se would not contradict the Constitution if they were

assigned to an institution that directly represents the academic community and implements self-

government of that community. It also needs to be noted that neither would Paragraph 3 of Article

40 of the Constitution be violated by such legal regulation, under which such a council of a state

school of higher education, the procedure for forming which is set in Paragraph 3 of Article 20 of

the Law on Science and Studies, would perform only the control and supervision functions related

to responsibility of the school of higher education and its accountability to society, as well as

advisory functions.

11. Taking account of the arguments set forth, one is to draw a conclusion that Items 1 and 2

of Paragraph 2 of Article 20 of the Law on Science and Studies, Item 3 of the same paragraph, to

the extent that it provides that the council of a state school of higher education approves plans for

reorganisation of the structure of the school of higher education presented by the rector (director),

Item 4, to the extent that it provides that the council of a state school of higher education sets the

procedure for managing, using and disposing of funds (also funds allocated for work remuneration

of the school’s leadership and other employees) and assets of the school of higher education and

approves key decisions related thereto, also Items 5, 6, 7 and 8, Item 9, to the extent that it provides

that the council of a state school of higher education approves an annual statement of revenue and

expenditure of the school of higher education and a report on the execution of this statement

presented by the rector (director), Item 10, to the extent that it provides that the council of a state

school of higher education approves an annual report on the activities of the school of higher

education presented by the rector (director), Item 13, as well as Item 15, to the extent that it

provides that the council of a state school of higher education performs other functions of

governance of the school of higher education prescribed in its statute and other legal acts, are in

conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state

under the rule of law.

12. It has been mentioned that the Constitutional Court inter alia will investigate whether

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Paragraph 3 of Article 20 of the Law on Science and Studies is not in conflict with Paragraph 3 of

Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

12.1. It has been mentioned that self-governance of schools of higher education must be

implemented through their institutions the procedure for forming which may not be such that would

not enable the academic community of the school of higher education to influence the adoption of

decisions on administration of the school of higher education; the institutions of governance of

schools of higher education that implement the functions of self-government of the school of higher

education must be formed by the schools of higher education themselves, after they establish, on the

basis of laws, in their by-laws or statutes the ways and procedure for forming these institutions.

It has also been mentioned that, while not denying the principle of autonomy of schools of

higher education, the legislator may establish, by laws, the procedure and ways of forming such

institutions of the governance structure of the school of higher education that perform the functions

of control and supervision and the purpose of which is to ensure the responsibility of the school of

higher education and its accountability to society; the institution that performs the functions of

control and supervision and the purpose of which is to ensure the responsibility of the school of

higher education and its accountability to society may be formed not only from members of the

academic community of the school of higher education—inter alia representatives of institutions of

the executive power of the state may be appointed thereto, as well.

It has also been mentioned that, under the overall legal regulation laid down in Paragraph 2

of Article 20 of the Law on Science and Studies, the council of a state school of higher education is

a governance body of that school of higher education which has the greatest powers. While

summing up the legal regulation laid down in Paragraph 3 of Article 20 of the Law on Science and

Studies, it has also been mentioned that the academic community of a state school of higher

education has no decisive influence in the formation of the council of that school of higher

education; in the formation of the council of a state school of higher education a decisive influence

is wielded by the Minster of Education and Science; strategic and other most important decisions of

governance of the state school of higher education may be adopted by the council without the assent

of the council members directly appointed by the academic community.

12.2. Thus, the procedure for forming the council of a state school of higher education,

which is set in Paragraph 3 of Article 20 of the Law on Science and Studies, would be in conflict

with the autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the

Constitution if the council were assigned the functions typical of self-government of schools of

higher education.

However, it needs to be noted that in its decision of 8 August 2006 and in its rulings of 21

September 2006 and 20 March 2008 the Constitutional Court held that such legal situations are also

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possible where the elimination of the provisions conflicting with provisions of legal acts of higher

power, inter alia the Constitution, by means of a Constitutional Court ruling from the legal system,

with respect to application of law, virtually amounts to changing the overall legal regulation, i.e. the

establishment of a different, gapless overall legal regulation.

Once it has been held in the constitutional justice case at issue that the provisions of

Paragraph 2 of Article 20 of the Law on Science and Studies, to the extent that they provide for the

governance functions of the council of a state school of higher education, are in conflict with

Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the

rule of law, the elimination of these provisions from the legal system, with respect to application of

law, virtually amounts to the change of the overall legal regulation and the establishment of thus far

different overall legal regulation: the council of a state school of higher education, the procedure for

forming which is set in Paragraph 3 of Article 20 of the Law on Science, may continue to perform

the control and supervision functions related to responsibility of the school of higher education and

its accountability to society and provided for in Paragraph 2 of Article 20 of this law, as well as

advisory functions. Such, as amended by this Constitutional Court ruling, overall legal regulation

established in Paragraph 3 of Article 20 of the Law on Science is in line with Paragraph 3 of Article

40 of the Constitution and the constitutional principle of a state under the rule of law.

12.3. Taking account of the arguments set forth, one is to draw a conclusion that there is no

legal ground to maintain that Paragraph 3 of Article 20 of the Law on Science and Studies per se is

in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a

state under the rule of law.

12.4. In this context it needs to be noted that the regulation of the procedure for the

formation of the council of a state school of higher education as a body of control and supervision

should create legal preconditions to appoint as members of this body inter alia the representatives

of institutions of the executive power of the state, also the persons connected with the school of

higher education and concerned with its successful activities in the course of implementation of its

aims and mission (for example, representatives of organisations of benefactors, social partners or

the alumni of the school of higher education).

13. It has been mentioned that from the arguments of the petitioner it is clear that the

petitioner has also had doubts as regards the constitutionality of other aforementioned provisions of

Article 20, as well as Articles 19, 21 and 22, of the Law on Science and Studies, which relate to the

provisions of Paragraph 2 of Article 20 that regulate the functions of the council of a state school of

higher education. Therefore, the Constitutional Court will further investigate whether the provision

of Paragraph 1 of Article 20 of the Law on Science, whereby the council is a governance body of a

state school of higher education, also the provisions of Paragraphs 1 and 2 of Article 19 of this law,

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to the extent that these paragraphs consolidate the council as a collegial governance body of a state

university or state college, the provision of Paragraph 1 of Article 21, whereby the senate (academic

council) of a state school of higher education is the governance body of academic affairs of the

school of higher education, the provisions of Paragraphs 2 and 3 of the same article, which regulate

the functions of the university senate and the academic council of a college, the provisions of

Paragraph 2 of Article 22, which regulate the functions of the rector (director), the provisions of

Paragraphs 3, 4 and 7 of the same article concerning the procedure for electing, appointing and

dismissing the rector (director), as well as the provisions of Paragraph 9 relating to the

accountability of the rector (director), are not in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

14. It has been mentioned that, under Paragraph 1 of Article 20 of the Law on Science and

Studies, the council is a governance body of a state school of higher education, and that Paragraphs

1 and 2 of Article 19 of this law inter alia provide that the council is a collegial governance body of

a state university or state college.

In the constitutional justice case at issue it has been held that such overall legal regulation,

laid down in Paragraph 2 of Article 20 of the Law on Science and Studies, under which the council

of a state school of higher education, in the formation of which the academic community has no

decisive influence and which is not an institution implementing self-government of the school of

higher education, is assigned the functions typical of self-government of schools of higher

education, violates the autonomy of schools of higher education entrenched in Paragraph 3 of

Article 40 of the Constitution. While applying the same arguments, it is also to be held that

Paragraph 1 of Article 19 of the Law on Science and Studies, to the extent that it consolidates the

council as a collegial governance body of a state university, Paragraph 2 of Article 19, to the extent

that it consolidates the council as a collegial governance body of a state college, as well as

Paragraph 1 of Article 20 thereof, are in conflict with Paragraph 3 of Article 40 of the Constitution

and the constitutional principle of a state under the rule of law.

15. It has been mentioned that Paragraph 1 of Article 21 of the Law on Science and Studies

prescribes that the senate (academic council) of a state school of higher education is the governance

body of academic affairs of the school of higher education, and that Paragraphs 2 and 3 of this

article establish the functions of the university senate and those of the academic council of a

college.

15.1. It has been mentioned that the autonomy of schools of higher education guaranteed in

Paragraph 3 of Article 40 of the Constitution implies self-government of the academic community

(scientific community) of these schools, which is to be related inter alia to democratic principles of

governance; in the context of the autonomy of schools of higher education guaranteed in Paragraph

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3 of Article 40 of the Constitution these principles include inter alia the direct participation of the

academic community, and its decisive influence, in the formation of the governance institution

(institutions) of the school of higher education that is (are) vested with the greatest powers.

It has also been mentioned that it would be impossible to ensure autonomy of schools of

higher education, inter alia the constitutional principle of academic freedom, if schools of higher

education did not enjoy financial independence, i.e. if their governance institutions that implement

the functions of self-government of the school of higher education had no possibility to adopt (on

the basis of laws) decisions on the use of financial funds and other property for the purpose of

implementing their mission.

15.2. It has been mentioned that, under the legal regulation laid down in the Law on Science

and Studies, the senate (academic council) of a state school of higher education is a collegial

governance body which directly represents the academic community of the school of higher

education and is the sole such body implementing self-government of the academic community.

It has also been mentioned that the senate (academic council) does not participate, or

participates only in an advisory capacity, in the adoption of strategic and other most important

decisions of governance of the state school of higher education, the adoption of which, under

Paragraph 2 of Article 20 of the Law on Science and Studies, is ascribed to the council. The said

decisions include inter alia the most important decisions concerning the use of financial funds and

other assets for the purpose of implementing the mission of the school of higher education.

It has also been mentioned that the academic community has no decisive influence in the

formation of the council, nor does it when the council adopts strategic and other most important

decisions of governance of the school of higher education, inter alia the most important decisions

concerning the use of financial funds and other assets for the purpose of implementing the mission

of the school of higher education; the academic community of a state school of higher education has

no decisive influence on decisions of the council; the council of a state school of higher education is

not an institution implementing self-government of the academic community.

15.3. It has been mentioned that the provision of Paragraph 3 of Article 40 of the

Constitution may not be construed as prohibiting from establishing, by laws, different limits of

autonomy for different types of schools of higher education; laws may provide for different

regulation of relations of governance, as well as those of self-government, of schools of higher

education; while not denying the autonomy of schools of higher education, inter alia their self-

government based on democratic principles of governance, the legislator may establish various

models of the governance structure of schools of higher education.

It has been mentioned that the functions of governance provided for in Paragraph 2 of

Article 20 of the Law on Science and Studies per se would not contradict the Constitution if these

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functions were assigned to an institution that directly represents the academic community and

implements self-government of that community. It has also been mentioned that such legal

regulation under which the said functions would be performed by the senate (academic council) of a

state school of higher education, which, as mentioned, is a collegial governance body which directly

represents the academic community and is the sole such body implementing self-government of the

academic community, would not be in conflict with the Constitution.

Thus, if the legislator has chosen such a model of governance structure of a state school of

higher education under which the senate (academic council) is a collegial governance body which

directly represents the academic community and is the sole such body implementing self-

government of that community, then such legal regulation under which the competence of the

senate (academic council) is confined only to academic affairs and the senate (academic council)

does not participate, or participates only in an advisory capacity, in adopting strategic and other

most important decisions of governance of the state school of higher education, inter alia the most

important decisions concerning the use of financial funds and other assets for the purpose of

implementing the mission of the school of higher education, is incompatible with the autonomy of

schools of higher education entrenched in Paragraph 3 of Article 40 of the Constitution.

15.3.1. Taking account of the arguments set forth, one is to draw the following conclusions:

– Paragraph 1 of Article 21 of the Law on Science and Studies, to the extent that, after the

legislator has chosen such a model of governance structure of a state school of higher education

under which the senate (academic council) is a collegial governance body which directly represents

the academic community and is the sole such body implementing self-government of that

community, this paragraph provides that the senate (academic council) of a state school of higher

education is a governance body of only academic affairs, is in conflict with Paragraph 3 of Article

40 of the Constitution and the constitutional principle of a state under the rule of law;

– Item 1 of Paragraph 2 of Article 21 of the Law on Science and Studies, to the extent that,

after the legislator has chosen such a model of governance structure of a state school of higher

education under which the senate (academic council) is a collegial governance body which directly

represents the academic community and is the sole such body implementing self-government of that

community, this item prescribes that the senate of a state university presents proposals to the rector

regarding the funding of programmes of studies, scientific research and experimental (cultural,

social) development, art programmes, and reorganisation of the university structure, which is

necessary for implementation of those programmes, is in conflict with Paragraph 3 of Article 40 of

the Constitution and the constitutional principle of a state under the rule of law;

– Item 1 of Paragraph 3 of Article 21 of the Law on Science and Studies, to the extent that,

after the legislator has chosen such a model of governance structure of a state school of higher

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education under which the senate (academic council) is a collegial governance body which directly

represents the academic community and is the sole such body implementing self-government of that

community, this item prescribes that the academic council of a state college presents proposals to

the director regarding the funding of study programmes and reorganisation of the college structure,

which is necessary for implementation of those programmes, is in conflict with Paragraph 3 of

Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

15.3.2. In the constitutional justice case at issue it has been held that Item 6 of Paragraph 2

of Article 20 of the Law on Science and Studies, which prescribes that the council of a state school

of higher education sets the principles for selection and assessment of employees of the school of

higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution and the

constitutional principle of a state under the rule of law.

While taking account of this, it also needs to be held that Item 4 of Paragraph 2 of Article 21

of the Law on Science and Studies, to the extent that, after the legislator has chosen such a model of

governance structure of a state school of higher education under which the senate (academic

council) is a collegial governance body which directly represents the academic community and is

the sole such body implementing self-government of that community, this item prescribes that the

senate of a state university, while approving the qualification requirements for positions of teaching

staff members and scientific staff members and laying down the procedure for performance

evaluation of teaching staff members and scientific staff members and for organisation of a

competition to fill a position, must observe the principles for selection and assessment of university

employees set by the council, as well as Item 4 of Paragraph 3 of Article 21 of the Law on Science

and Studies, to the extent that, after the legislator has chosen such a model of governance structure

of a state school of higher education under which the senate (academic council) is a collegial

governance body which directly represents the academic community and is the sole such body

implementing self-government of that community, this item prescribes that the academic council of

a state college, while approving the qualification requirements for positions of teaching staff

members and scientific staff members and laying down the procedure for performance evaluation of

teaching staff members and scientific staff members and for organisation of a competition to fill a

position, must observe the principles for selection and assessment of college employees set by the

council, are also in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional

principle of a state under the rule of law.

15.4. It has been mentioned that, if the legislator has chosen such a model of governance

structure of a state school of higher education under which the senate (academic council) is a

collegial governance body which directly represents the academic community and is the sole such

body implementing self-government of that community, then such legal regulation under which the

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competence of the senate (academic council) is confined only to academic affairs and the senate

(academic council) does not participate, or participates only in an advisory capacity, in adopting

strategic and other most important decisions of governance of the state school of higher education,

inter alia the most important decisions concerning the use of financial funds and other assets for the

purpose of implementing the mission of the school of higher education, is incompatible with the

autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the

Constitution.

It has also been mentioned that the functions of governance provided for in Paragraph 2 of

Article 20 of the Law on Science and Studies per se would not contradict the Constitution if these

functions were assigned to an institution that directly represents the academic community and

implements self-government of that community.

15.4.1. Taking account of the arguments set forth, one is to draw a conclusion that

Paragraph 2 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator

has chosen such a model of governance structure of a state school of higher education under which

the senate (academic council) is a collegial governance body which directly represents the academic

community and is the sole such body implementing self-government of that community, this

paragraph does not establish that the senate of a state university adopts key strategic and other most

important decisions of governance of the university, inter alia the most important decisions

concerning the use of financial funds and other assets for the purpose of implementing the mission

of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution

and the constitutional principle of a state under the rule of law.

15.4.2. Taking account of the arguments set forth, one is to draw a conclusion that

Paragraph 3 of Article 21 of the Law on Science and Studies, to the extent that, after the legislator

has chosen such a model of governance structure of a state school of higher education under which

the senate (academic council) is a collegial governance body which directly represents the academic

community and is the sole such body implementing self-government of that community, this

paragraph does not establish that the academic council of a state college adopts key strategic and

other most important decisions of governance of the college, inter alia the most important decisions

concerning the use of financial funds and other assets for the purpose of implementing the mission

of the school of higher education, is in conflict with Paragraph 3 of Article 40 of the Constitution

and the constitutional principle of a state under the rule of law.

16. It has been mentioned that Paragraph 2 of Article 22 of the Law on Science and Studies

lays down the functions of the rector (director), that provisions of Paragraphs 3, 4 and 7 of this

article relate to the procedure for electing, appointing and dismissing the rector (director), and that

provisions of Paragraph 9 relate to the accountability of the rector (director).

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16.1. Item 5 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia

prescribes that the rector (director) of a state school of higher education submits to the council for

approval the study cost and the rates of fees that are not directly related to the implementation of a

study programme.

In the constitutional justice case at issue it has been held that Item 7 of Paragraph 2 of

Article 20 of the Law on Science and Studies, wherein it is established that the council of a state

school of higher education, on the recommendation of the rector (director), sets the study cost and

the rates of fees that are not directly related to the implementation of a study programme, is in

conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state

under the rule of law. While taking account of this, it also needs to be held that Item 5 of Paragraph

2 of Article 22 of the Law on Science and Studies, to the extent that it prescribes that the rector

(director) of a state school of higher education submits to the council for approval the study cost

and the rates of fees that are not directly related to the implementation of a study programme, is also

in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a

state under the rule of law.

16.2. Item 7 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia

prescribes that the rector (director) of a state school of higher education submits to the council for

approval an annual report on the activities of the school of higher education, an annual statement of

revenue and expenditure and a report on the execution of this statement.

In the constitutional justice case at issue it has been held that Item 9 of Paragraph 2 of

Article 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a

state school of higher education approves an annual statement of revenue and expenditure of the

school of higher education and a report on the execution of this statement presented by the rector

(director), is in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional

principle of a state under the rule of law. While taking account of this, it also needs to be held that

Item 7 of Paragraph 2 of Article 22 of the Law on Science and Studies, to the extent that it

prescribes that the rector (director) of a state school of higher education submits to the council for

approval an annual statement of revenue and expenditure of the school of higher education and a

report on the execution of this statement, is also in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

16.3. Item 8 of Paragraph 2 of Article 22 of the Law on Science and Studies inter alia

provides that the rector (director) of a state school of higher education acquaints the senate

(academic council) with an annual report on the activities of the school of higher education. In this

context it needs to be noted that, under Item 10 of Paragraph 2 of Article 20 of the Law on Science

and Studies, an annual report on the activities of the school of higher education is approved by the

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council.

In the constitutional justice case at issue it has been held that Item 10 of Paragraph 2 of

Article of 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a

state school of higher education approves an annual report on the activities of the school of higher

education presented by the rector (director), is in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law. In the constitutional

justice case at issue it has also been held that Paragraph 2 of Article 21 of the Law on Science and

Studies, to the extent that it does not establish that the senate of a state university adopts the key

strategic and other most important decisions of governance of the university, inter alia approves an

annual report on the activities of the university, as well as Paragraph 3 of Article 21 of the Law on

Science and Studies, to the extent that it does not establish that the academic council of a state

college adopts key strategic and other most important decisions of governance of the college, inter

alia approves an annual report on the activities of the college, are also in conflict with Paragraph 3

of Article 40 of the Constitution and the constitutional principle of a state under the rule of law.

While taking account of this, it also needs to be held that Item 8 of Paragraph 2 of Article 22

of the Law on Science and Studies, to the extent that it prescribes that the rector (director) of a state

school of higher education acquaints the senate (academic council) with an annual report on the

activities of the school of higher education, is also in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

16.4. Item 9 of Paragraph 2 of Article 22 of the Law on Science and Studies provides that

the rector (director) of a state school of higher education submits to the council for approval a

strategic action plan of the school of higher education and plans for reorganisation of the structure

of the school of higher education.

In the constitutional justice case at issue it has been held that Item 1 of Paragraph 2 of

Article of 20 of the Law on Science and Studies, which inter alia prescribes that the council of a

state school of higher education approves a strategic action plan presented by the rector (director),

as well as Item 3 of the same paragraph, to the extent that it prescribes that the council approves

plans for reorganisation of the structure of the school of higher education presented by the rector

(director), are in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional

principle of a state under the rule of law. While taking account of this, it also needs to be held that

Item 9 of Paragraph 2 of Article 22 of the Law on Science and Studies is also in conflict with

Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the

rule of law.

16.5. It has been mentioned that Paragraphs 3, 4 and 7 of Article 22 of the Law on Science

and Studies establish the procedure for the election, appointment to office and dismissal from office

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of the rector (director) of a state school of higher education.

Under Paragraph 3 of Article 22 of the Law on Science and Studies, the rector (director) is

elected by an open competition, appointed and dismissed by the council. Under Paragraph 4 of this

article, the council announces an open competition to fill a position of the rector (director); the

rector (director) is considered to be elected if at least three-fifths of all the council members vote for

him. Under Paragraph 7 of the same article, the chairman of the council or any other person

authorised by the council signs in the name of the school of higher education an employment

contract with the elected rector (director) for the duration of his term of office.

In the constitutional justice case at issue it has been held that Item 5 of Paragraph 2 of

Article 20 of the Law on Science and Studies, wherein it is prescribed that the council of a state

school of higher education sets the procedure for organising election of the rector (director) of the

school of higher education through open competition, and elects, appoints to the office and

dismisses from it the rector (director) of the school of higher education, is in conflict with

Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the

rule of law.

While taking account of this, it also needs to be held that Paragraphs 3, 4 and 7 of Article 22

of the Law on Science and Studies are also in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

16.6. It has been mentioned that Paragraph 9 of Article 22 of the Law on Science and

Studies relates to the accountability of the rector (director) of the school of higher education. This

paragraph provides that if an annual report on the activities of the school of higher education or an

annual report on the execution of the statement of revenue and expenditure presented by the rector

(director) is not approved by a majority of the council members at a meeting of the council, the

rector (director) may be dismissed from office in accordance with the procedure laid down by legal

acts.

In the constitutional justice case at issue it has been held that Item 9 of Paragraph 2 of

Article of 20 of the Law on Science and Studies, to the extent that it prescribes that the council of a

state school of higher education approves a report on the execution of a statement of revenue and

expenditure of the school of higher education presented by the rector (director), as well as Item 10

of this paragraph, to the extent that it prescribes that the council of a state school of higher

education approves an annual report on the activities of the school of higher education presented by

the rector (director), are in conflict with Paragraph 3 of Article 40 of the Constitution and the

constitutional principle of a state under the rule of law. While taking account of this, it needs to be

held that Paragraph 9 of Article 22 of the Law on Science and Studies, to the extent that it provides

that the rector (director) may be dismissed from office in accordance with the procedure laid down

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by legal acts if an annual report on the activities of the school of higher education or an annual

report on the execution of the statement of revenue and expenditure presented by the rector

(director) is not approved by a majority of the council members at a meeting of the council, is also

in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a

state under the rule of law.

VIII

On the compliance of Paragraph 5 of Article 95 of the Law on Science and Studies with

Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under

the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraph 5 of

Article 95 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 48 of the

Constitution and the constitutional principle of a state under the rule of law.

2. Paragraph 5 of Article 95 of the Law on Science and Studies provides:

“Paragraphs 2 and 12 of Article 20, Paragraphs 2 and 3 of Article 21, Paragraphs 2 and 7 of

Article 22 of this Law shall be applied to the governance bodies of those state schools of higher

education whose legal form is a budgetary establishment, where such bodies are formed in

accordance with the procedure laid down by this Law. The governance bodies of a state school of

higher education, whose legal form is a budgetary establishment, elected or formed before the entry

into force of this Law shall perform their duties in accordance with the procedure laid down by the

statute of the school of higher education, inasmuch as it is in compliance with this part of the

paragraph, until the expiry of the term of office set at the moment the said bodies were formed, but

not longer than until the reorganisation of the state school of higher education into a public

establishment, with the exception of state colleges in which the governance bodies were formed not

earlier than the year 2007, or until the formation (election) of new governance bodies, or until 31

December 2011. Members who are appointed by scientists, teaching staff, administration and other

employees to the first councils of state schools of higher education set up in accordance with the

procedure laid down by this Law shall be appointed by way of election in accordance with the

procedure laid down by the Ministry of Education and Science. Upon the entry into force of this

Law, the rector (director) of a state school of higher education shall be elected (appointed) only by

that council of the state school of higher education which has been set up in accordance with the

procedure laid down by this Law. Where there is no council of a state school of higher education set

up in accordance with the procedure laid down by this Law, the powers of the rector (director) of

the state school of higher education shall be extended until the election of a new rector (director) of

the state higher education institution, but not longer than for six month.”

3. Thus, the provisions of Paragraph 5 of Article 95 of the Law on Science and Studies are

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related to the reorganisation of the state schools of higher education, whose legal form is a

budgetary establishment, into public establishments—the only legal form of state school of higher

education under Paragraph 4 of Article 6 of the Law on Science and Studies, in particular—to the

formation of new bodies of governance established in the Law on Science and Studies in

reorganising state schools of higher education into public establishments and to the termination of

the powers of the bodies of governance (formed under the legal regulation valid prior to the entry

into force of the Law on Science and Studies) of state schools of higher education, whose legal form

was a budgetary establishment. It needs to be noted that, under the legal regulation established in

the Law on Science and Studies, not only the legal form of state schools of higher education, but

also the organisational and governance structure thereof, inter alia the powers of collegial bodies of

governance, are changed. Taking account of the overall legal regulation established in the Law on

Science and Studies, such reorganisation of the organisational and governance structure of schools

of higher education is an essential one.

3.1. Paragraph 5 of Article 95 of the Law on Science and Studies inter alia provides that the

governance bodies of a state school of higher education, whose legal form is a budgetary

establishment, elected or formed before the entry into force of this law shall perform their duties

either until the expiry of the term of office set at the moment the said bodies were formed, or until

the reorganisation of the state school of higher education into a public establishment, if it has been

reorganised before the expiry of the term of office of its bodies of governance (with the exception

of state colleges in which the governance bodies were formed not earlier than the year 2007), or

until the formation (election) of new governance bodies, or until 31 December 2011.

Thus, under Paragraph 5 of Article 95 of the Law on Science and Studies, there exist two

grounds for terminating, by law, the powers of the bodies of governance, elected or formed prior to

the entry into force of this law, of a state school of higher education whose legal form is a budgetary

establishment, before the expiry of their term of office established at the time of forming thereof:

– if the state school of higher education was reorganised before the expiry of the term of

office of its bodies of governance (with the exception of state colleges in which the governance

bodies were formed not earlier than the year 2007);

– if the term of office of its bodies of governance has not expired, till 31 December 2011, on

other grounds established in Paragraph 5 of Article 95 of the Law on Science and Studies.

In this context it needs to be mentioned that, under Paragraph 8 of Article 93 of the Law on

Science and Studies, state schools of higher education must be reorganised from budgetary

establishments into public establishments until 31 December 2011. Thus, the first of the aforesaid

grounds, which is the termination, by law, of the powers of the bodies of governance (elected or

formed under the legal regulation valid prior to the entry into force of this law) of a state school of

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higher education whose legal form is a budgetary establishment, i.e. reorganisation of a state school

of higher education into a public establishment, provided it is reorganised before the expiry of the

term of office of its bodies of governance, is related to reorganisation of the state school of higher

education into a public establishment within the time period established in Paragraph 8 of Article 93

of the Law on Science and Studies. The second aforesaid ground, which is termination, on 31

December 2011, by law, of the powers of the bodies of governance (elected or formed under the

legal regulation valid prior to the entry into force of this law) of a state school of higher education

whose legal form is a budgetary establishment, would be applied in case the state school of higher

education has not been reorganised into a public establishment within the time period established in

Paragraph 8 of Article 93 of the law on Science and Studies.

3.2. In addition, Paragraph 5 of Article 95 of the Law on Science and Studies provides that,

upon the entry into force of this law, the rector (director) of a state school of higher education shall

be elected (appointed) only by that council of the state school of higher education which has been

set up in accordance with the procedure laid down by this law, and where there is no such council,

the powers of the rector (director) of the state school of higher education shall be extended until the

election of a new rector (director) of the state higher education institution, but not longer than for

six month.

4. The group of Members of the Seimas, a petitioner, is substantiating its doubts regarding

the compliance of Paragraph 5 of Article 95 of the Law on Science and Studies with the

Constitution by the fact that the final date, 31 December 2011, of forming the bodies of governance

of schools of higher education subsequent to the Law on Science and Studies and reorganisation of

schools of higher education into public establishments may not be applied to the bodies of

governance (inter alia rectors) of schools of higher education that had been appointed to office and

working under employment contracts until the end of their term of office. For example, the end of

the term of office of rectors in various Lithuanian universities does not coincide with the date

established in this law, since the said term of office takes a longer time, therefore, the persons

admitted to work under employment contracts for a 5-year term of office before the entry into fore

of the Law on Science and Studies should work till the end of their term of office. In the opinion of

the petitioner, the legal regulation established in Paragraph 5 of Article 95 of the Law on Science

and Studies, where the rector is dismissed before the end of his term of office, is in conflict with

Paragraph 1 of 48 Article of the Constitution and the constitutional principle of a state under the

rule of law. The petitioner has substantiated its arguments by the official constitutional doctrine in

which inter alia the content of the constitutional principle of a state under the rule of law, that of the

imperatives of protection of legitimate expectation, legal certainty and legal security are disclosed.

Thus, from the arguments of the petitioner, it is clear that it is doubting as regards the

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constitutionality of Paragraph 5 of Article 95 of the Law on Science and Studies insofar as it is

established therein that the powers of the bodies of governance, elected or formed before the entry

into force of this law, of a state school of higher education, whose legal form is a budgetary

establishment, are terminated on 31 December 2011, if such powers have not expired on other

grounds established in this paragraph.

5. It has been mentioned that the petitioner has doubts regarding the compliance of

Paragraph 5 of Article 95 of the Law on Science and Studies inter alia with the constitutional

principle of a state under the rule of law.

5.1. The Constitutional Court has held more than once that the constitutional principle of a

state under the rule of law is a universal principle, upon which the entire legal system of Lithuania

and the Constitution of the Republic of Lithuania itself are based, that the constitutional principle of

a state under the rule of law is to be construed inseparably from the striving for an open, just, and

harmonious civil society and state under the rule of law, which is declared in the Preamble to the

Constitution, and that the content of the aforementioned constitutional principle reveals itself in

various provisions of the Constitution.

In the constitutional justice case at issue it needs to be noted that the content of the

constitutional principle of a state under the rule of law inter alia is to be disclosed by applying the

principle of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the

Constitution.

5.2. In the constitutional justice case at issue it has been mentioned that, historically, the

idea of the autonomy of the school of higher education came into being in the Middle Ages, when

universities originated as establishments of science and studies; the autonomy meant that the

university, to a certain extent, was independent from the state, was striving to dissociate itself from

the influence of political power, to create an independent system of regulation of internal activities

within the school of higher education. The purpose of such dissociation from the state power was to

safeguard the freedom of science, research and teaching, to protect researchers and professors from

political influence (Constitutional Court ruling of 27 June 1994). It has also been mentioned that,

traditionally, the autonomy of the school of higher education is conceived as the right to

independently determine and establish in the regulations or statute the organisational and

governance structure, relations with other partners, the procedure of research and studies, study

programmes, the procedure of student enrolment, to solve other related questions, to use the

property given over by the state and other acquired property, to possess the territory, buildings and

other property allotted for the needs of research and studies, and to have the guarantee of

inviolability of the territory, buildings, and other property meant for scientific and study matters.

For this purpose, the school of higher education is guaranteed the institutional autonomy, i.e. a

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certain status, which means that there are certain spheres of activities independent from the control

of the executive power (Constitutional Court rulings of 14 January 2002, 5 February 2002, 20

February 2008 and 20 March 2008).

5.3. In this context it needs to be mentioned that in the Magna Charta Universitatum it is

noted that the university is an autonomous institution; to meet the needs of the world around it, its

research and teaching must be morally and intellectually independent of all political authority or

economic power.

5.4. In the constitutional justice case at issue it was noted that the autonomy of schools of

higher education guaranteed in Paragraph 3 of Article 40 of the Constitution implies self-

government of the academic community (scientific community) implemented inter alia through the

institutions of governance of the school of higher education, which represent this community; self-

government of the academic community of schools of higher education is to be related inter alia to

the democratic principles of governance; in the context of the autonomy of schools of higher

education guaranteed in Paragraph 3 of Article 40 of the Constitution, these principles include inter

alia direct participation of the academic community and its decisive influence in forming the

governance institution(s) of the school of higher education having the biggest powers; such

principles also include limitation of the number of terms of office of members of other institutions

of governance, control and supervision of the school of higher education, as well as those of the

persons discharging the functions of one-person institutions or the duties of heads of collegial

institutions.

In the constitutional justice case at issue it has also been emphasised that, while establishing

the organisational and governance structure of schools of higher education, inter alia regulating

reorganisation thereof, the legislator should heed the democratic principles of governance and not

create preconditions for violating them. The legal regulation that is not in line with these principles

could create preconditions inter alia for the state to unreasonably interfere with the governance of

schools of higher education and/or to deny self-government of the academic community of schools

of higher education and, thus, to violate the autonomy of schools of higher education guaranteed in

Paragraph 3 of Article 40 of the Constitution.

5.5. In this context it needs to be noted that, while heeding the aforementioned democratic

principles of governance, the reorganisation of the organisational and governance structure of

schools of higher education must be regulated in a way not denying the decisive influence of the

academic community in forming the governance institution(s) of the school of higher education

having the biggest powers and in adopting the most important decisions of governance of the school

of higher education, and in a way whereby the powers of the governance institutions directly

representing the academic community, which were formed under the legal regulation valid prior to

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the reorganisation and which are implementing self-government of the academic community, would

not be discontinued in violation of the Constitution.

It also needs to be mentioned that, while regulating and carrying out the reorganisation of

the organisational and governance structure of schools of higher education, one may not create

preconditions for disregarding inter alia the limitation of the number of terms of office of members

of institutions of governance, control and supervision of the school of higher education, as well as

those of the persons discharging the functions of one-person institutions or the duties of heads of

collegial institutions.

5.6. The Constitutional Court has held more than once that the constitutional principle of a

state under the rule of law is especially capacious; it comprises a range of various interrelated

imperatives. The constitutional principle of a state under the rule of law must be followed both in

law-making and implementation of law (Constitutional Court rulings of 6 December 2000, 13

December 2004, 16 January 2006, and 13 August 2007).

The Constitutional Court has held more than once that inseparable elements of the

constitutional principle of a state under the rule of law are the protection of legitimate expectations,

legal certainty and legal security. The constitutional principles of protection of legitimate

expectations, legal certainty and legal security imply the obligation of the state to secure the

certainty and stability of the legal regulation, to protect the rights of persons, to respect the

legitimate interests and legitimate expectations. These principles inter alia imply that the state must

fulfil all its undertaken obligations to the person. If the protection of legitimate expectations, legal

certainty and legal security were not secured, the trust of the person in the state and law would not

be guaranteed.

Thus, along with the other requirements, the principle of a state under the rule of law, which

is entrenched in the Constitution, implies a duty of the state to guarantee certainty and stability of

legal regulation as well as protection of legitimate expectations (Constitutional Court ruling of 24

January 2003).

5.7. The Constitutional Court has also held more than once that the essence of the

constitutional principle of a state under the rule of law is the rule of law; the constitutional

imperative of the rule of law means that the freedom of state power is limited by law, which must

be obeyed by all the entities of legal relations, including the law-making entities; the discretion of

all the law-making entities is limited by the supreme law—the Constitution.

In this context it needs to be noted that, in its rulings of 11 May 1999 and 24 January 2003,

the Constitutional Court held that in a democratic state under the rule of law the officials and

institutions must follow law. Carrying out the functions which are important to society and the state,

the officials must not face any threat if they fulfil their duties without violations of laws.

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In the context of the constitutional justice case at issue it also needs to be noted that these

provisions of the official constitutional doctrine are applicable mutatis mutandis also to the

governance bodies of state schools of higher education, since, as mentioned, the autonomy of

schools of higher education guaranteed in Paragraph 3 of Article 40 of the Constitution inter alia

means that the legal regulation may not create preconditions inter alia for the state to unreasonably

interfere with the governance of schools of higher education and/or to deny self-government of the

academic community of schools of higher education.

While taking account of this, it also needs to be noted that the legislator, while

implementing the constitutional powers to establish the length of powers (and grounds for

expiration thereof) of bodies of governance of a state school of higher education, is bound by the

Constitution, thus, also by the principle of a state under the rule of law implying legal certainty,

legal stability, protection of legitimate expectations, also by the prohibition emerging from

Paragraph 3 of Article 40 of the Constitution to restrict self-government of schools of higher

education, and to violate the continuity of the governance bodies of schools of higher education

which are implementing this self-government. Therefore, under the Constitution, the legislator may

establish only such grounds for termination of powers of the governance bodies (and members

thereof) of schools of higher education before the expiry of the term of office thereof due to which

they generally cannot continue to hold office (inter alia due to such legal fact like the age

established by law, change of the place of work, liquidation of the school of higher education or an

essential reorganisation of the organisational and governance structure thereof). It needs to be noted

that this requirement is applicable mutatis mutandis to members of the academic community of

schools of higher education (teachers, scientific workers and other researchers).

6. It has been mentioned that the autonomy of schools of higher education guaranteed in

Paragraph 3 of Article 40 of the Constitution inter alia means that the legal regulation may not

create preconditions inter alia for the state to unreasonably interfere with the governance of schools

of higher education and/or to deny self-government of the academic community of schools of

higher education. It has also been mentioned that, under the Constitution, the legislator may

establish only such grounds for termination of powers of the governance bodies (and members

thereof) of schools of higher education before the expiry of the term of office thereof due to which

they generally cannot continue to hold office, inter alia due to an essential reorganisation of the

organisational and governance structure of schools of higher education.

It has also been mentioned that, under Paragraph 5 of Article 95 of the Law on Science and

Studies, the powers of the bodies of governance, elected or formed before the entry into force of

this law, of a state school of higher education, whose legal form is a budgetary establishment, are

terminated by law on 31 December 2011 before the expiry of their term of office established at the

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moment they were formed, if such powers have not expired on other grounds established in this

paragraph. It has also been mentioned that the provisions of Paragraph 5 of Article 95 of the Law on

Science and Studies are related to reorganisation of state schools of higher education, whose legal

form is a budgetary establishment, into public establishments; they are also related to such

reorganisation of their organisational and governance structure, inter alia of powers of collegial

governance bodies, which is an essential one. Thus, the ground, established in Paragraph 5 of

Article 95 of the Law on Science and Studies, for termination, on 31 December 2001, of the powers

of governance bodies of the state school of higher education whose legal form is a budgetary

establishment, if such powers have not expired on other grounds established in this paragraph, per

se would not be in conflict with the Constitution, if the essential reorganisation (related to the said

ground) of the organisational and governance structure of schools of higher education were also in

line with the requirements arising from the Constitution.

6.1. In this context it needs to be noted that, as mentioned, while regulating the

organisational and governance structure of schools of higher education, inter alia reorganisation

thereof, the legislator should heed the democratic principles of governance and not create

preconditions for violating them; the legal regulation that is not in line with these principles could

create preconditions inter alia for the state to unreasonably interfere with the governance of schools

of higher education and/or to deny self-government of the academic community of schools of

higher education and, thus, to violate the autonomy of schools of higher education guaranteed in

Paragraph 3 of Article 40 of the Constitution; while heeding the democratic principles of

governance, the reorganisation of the organisational and governance structure of schools of higher

education must be regulated in a way not denying the decisive influence of the academic

community in forming the governance institution(s) of the school of higher education having the

biggest powers and in adopting the most important decisions of governance of the school of higher

education.

6.2. In the constitutional justice case at issue it has been held that the overall legal regulation

established in Paragraph 2 of Article 20 of the Law on Science and Studies, whereby the functions

characteristic of self-government of a school of higher education are commissioned to the council of

a state school of higher education in the course of forming which the academic community does not

have a decisive influence and which is not an institution implementing self-government of the

school of higher education, violates the autonomy of schools of higher education entrenched in

Paragraph 3 of Article 40 of the Constitution. While taking account of this, the essential

reorganisation of the organisational and governance structure of state schools of higher education is

not in line with the requirements arising from the Constitution. Therefore, the ground (established in

Paragraph 5 of Article 95 of the Law on Science and Studies and related to the said reorganisation)

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for termination, on 31 December 2001, of the powers of governance bodies, elected or formed

before the entry into force of this law, of the state school of higher education whose legal form is a

budgetary establishment, if such powers have not expired on other grounds established in this

paragraph, is also in conflict with the Constitution.

6.3. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 5

of Article 95 of the Law on Science and Studies insofar as it is established therein that the powers

of the bodies of governance, elected or formed before the entry into force of this law, of a state

school of higher education whose legal form is a budgetary establishment, are terminated on 31

December 2011, if such powers have not expired on other grounds established in this paragraph, is

in conflict with Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a

state under the rule of law.

7. It has been mentioned that Paragraph 5 of Article 95 of the law on Science and Studies

provides that, upon the entry into force of this law, the rector (director) of a state school of higher

education shall be elected (appointed) only by that council of the state school of higher education

which has been set up in accordance with the procedure laid down by this law, and where there is

no such council, the powers of the rector (director) of the state school of higher education shall be

extended until the election of a new rector (director) of the state higher education institution, but not

longer than for six month.

In the constitutional justice case at issue it was held that Item 5 of Paragraph 2 of Article 20

of the Law on Science and Studies, wherein it is provided that the council of a state school of higher

education elects the rector (director) of the school of higher education, appoints him to the office

and dismisses from it is in conflict with Paragraph 3 of Article 40 of the Constitution and the

constitutional principle of a state under the rule of law. While taking account of this, it also needs to

be held that Paragraph 5 of Article 95 of the Law on Science and Studies insofar as it provides that,

upon the entry into force of the Law on Science and Studies, the rector (director) of a state school of

higher education shall be elected (appointed) only by that council of the state school of higher

education which has been set up in accordance with the procedure laid down by this law, and where

there is no such council, the powers of the rector (director) of the state school of higher education

shall be extended until the election of a new rector (director) of the state higher education

institution, but not longer than for six month, is also in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 5 of

Article 95 of the Law on Science and Studies, insofar as it is established therein that the powers of

the bodies of governance, elected or formed before the entry into force of this law, of a state school

of higher education, whose legal form is a budgetary establishment, are terminated on 31 December

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2011, if such powers have not expired on other grounds established in this paragraph, also insofar as

it provides that, upon the entry into force of the Law on Science and Studies, the rector (director) of

a state school of higher education shall be elected (appointed) only by that council of the state

school of higher education which has been set up in accordance with the procedure laid down by

this law, and where there is no such council, the powers of the rector (director) of the state school of

higher education shall be extended until the election of a new rector (director) of the state higher

education institution, but not longer than for six month, is in conflict with Paragraph 3 of Article 40

of the Constitution and the constitutional principle of a state under the rule of law.

Having held this, the Constitutional Court will not further investigate whether Paragraph 5

of Article 95 of the Law on Science and Studies is not in conflict with Paragraph 1 of Article 48 of

the Constitution.

IX

On the compliance of Article 96 of the Law on Science and Studies with the

constitutional principles of a state under the rule of law, protection of legitimate expectations,

legal certainty and legal security, as well as on the compliance of Paragraph 4 of this article

with Paragraph 3 of Article 40 of the Constitution.

1. The group of Members of the Seimas, a petitioner, is doubting whether Article 96 of the

Law on Science and Studies is not in conflict with the constitutional principles of a state under the

rule of law, protection of legitimate expectations, legal certainty and legal security and whether

Paragraph 4 of this article is not in conflict with Paragraph 3 of Article 40 of the Constitution.

2. Article 96 of the Law on Science and Studies prescribes:

“1. State schools of higher education shall be reorganised from budgetary establishments

into public establishments pursuant to the provisions of the Civil Code.

2. The Government shall take a decision regarding the investment in state schools of higher

education of the assets belonging to the State by the right of ownership. When reorganising state

schools of higher education into public establishments, immovable property may not be invested in

such institutions.

3. After the reorganisation of a state school of higher education into a public establishment,

all the rights and duties which that state school of higher education acquired when it was a

budgetary establishment shall be transferred to it.

4. Within twelve months of the entry into force of this Law, state universities shall apply to

the Ministry of Education and Science concerning the setting-up of the council of a school of higher

education provided for in this Law and shall submit the members nominated to this council by the

school of higher education.”

3. Thus, in Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies the procedure

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for reorganising state schools of higher education from budgetary establishments into public

establishments is established.

It needs to be noted that these provisions of the Law on Science and Studies are related to

Paragraph 4 of Article 6 of the same law wherein the only legal form of a state school of higher

education—a public establishment—is established, whereas, under Paragraph 9 (wording of 30 June

2005) of Article 5 of the Republic of Lithuania Law on Higher Education valid until the entry into

force of the Law on Science and Studies, a state school of higher education used to be defined as a

public legal person functioning as a budgetary or public establishment and having a special status

established by the Constitution of the Republic of Lithuania and this law.

Paragraph 1 of Article 96 of the Law on Science and Studies has established a general norm

whereby the provisions of the Civil Code are applied for the reorganisation of state schools of

higher education from budgetary establishments into public establishments. From the applicable

provisions of the Civil Code one is to mention the following: the provision of Paragraph 1 of Article

2.104 “Reorganisation of Legal Persons“ of the Civil Code defining reorganisation of a legal person

as an alteration of the legal form of a legal person whereby a legal person of a new legal form

becomes the successor to all rights and liabilities duties of the reorganised legal person; the

provision of Paragraph 5 of the same article providing that also laws regulating individual legal

forms of legal persons may establish a specific mode for the reorganisation of legal persons; the

provision of Paragraph 1 of Article 2.105 “Mandatory Reorganisation of Legal Persons” whereby

laws may provide for circumstances under which a legal person must alter its legal form; and the

provision of Paragraph 2 of the same article that, where within the time limit established by the law,

which may not be shorter than nine months, members of a legal person fail to pass a resolution on

the alteration of the legal person’s legal form, it shall be considered that the legal form of the legal

person has been altered and the legal person acts according to the documents of incorporation

inasmuch as they do not infringe laws regulating activities of legal persons having the legal form

into which the said legal person had to be altered.

Thus, the provision of Paragraph 1 of Article 96 of the Law on Science and Studies together

with the provision of Paragraph 8 of Article 93 of this law wherein there is an obligation to

reorganise sate schools of higher education from budgetary establishments into public

establishments till 31 December 2011, is a provision for a mandatory reorganisation of the legal

persons—state schools of higher education.

In this context it needs to be mentioned that the Law on Science and Studies (with the

exception of certain articles thereof) came into force on 12 May 2009. Thus, a term longer than 19

months was provided for the reorganisation of state schools of higher education, whose legal form

is a budgetary establishment, into public establishments.

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The provisions of Paragraphs 2 and 3 of Article 96 of the Law on Science and Studies

provide for special norms related to certain aspects of the reorganisation of state schools of higher

education into public establishments.

4. It needs to be noted that Paragraph 4 of Article 96 of the Law on Science and Studies is

related not to the reorganisation of state schools of higher education into public establishments, but

rather to the formation of the councils (established under the legal regulation of the Law on Science

and Studies) of state universities: it entrenched the obligation for state universities to apply, within

twelve months of the entry into force of this law, to the Ministry of Education and Science

concerning the setting-up of the council of a school of higher education provided for in this law and

to submit the members nominated to this council by the school of higher education. It has been

mentioned that the Law on Science and Studies (with the exception of certain articles thereof) came

into force on 12 May 2009. Thus, under Paragraph 4 of Article 96 of the Law on Science and

Studies, state universities were under obligation to apply, till 12 May 2010, to the Ministry of

Education and Science concerning the setting-up of the council of a school of higher education

provided for in this law and to submit the members nominated to this council by the school of

higher education.

5. The group of Members of the Seimas, a petitioner, has substantiated its doubts regarding

the compliance of Article 96 of the Law on Science and Studies by the official constitutional

doctrine in which inter alia the content of the constitutional principle of a state under the rule of

law, that of the imperatives of protection of legitimate expectation, legal certainty and legal security

are disclosed.

6. As mentioned, in the constitutional justice case at issue the content of the constitutional

principle of a state under the rule of law inter alia is to be disclosed by applying the principle of

autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the

Constitution. It has also been mentioned that the protection of legitimate expectations, legal

certainty and legal security are inseparable elements of the principle of a state under the rule of law.

7. It has been mentioned that in Paragraphs 1, 2, 3 of Article 96 of the Law on Science and

Studies the procedure for reorganising state schools of higher education from budgetary

establishments into public establishments is established and that these paragraphs are related to

Paragraph 4 of Article 6 of the Law on Science and Studies wherein the only legal form of a state

school of higher education—a public establishment—is established. In the constitutional justice

case at issue it has also been mentioned that the establishment of the legal form for the state school

of higher education as a public legal person per se does not deny the freedom of scientific and

educational activity of the school of higher education and self-government of the academic

community, i.e. the academic and institutional autonomy of schools of higher education.

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In the constitutional justice case at issue it was held that Paragraph 4 of Article 6 of the Law

on Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution. Thus,

one is also to hold that there is no ground to assess, in a different manner, Paragraphs 1, 2, 3 of

Article 96 of the Law on Science and Studies in which the reorganisation of state schools of higher

education from budgetary establishments into public establishments is established.

It has been mentioned that a term longer than 19 months was provided for the reorganisation

of state schools of higher education, whose legal form is a budgetary establishment, into public

establishments. Thus, there is also no ground for asserting that the legal regulation established in

Paragraphs 1, 2, 3 of Article 96 of the Law on Science and Studies violates the imperatives of

protection of legitimate expectation, legal certainty and legal security, and other imperatives of the

constitutional principle of a state under the rule of law.

8. Taking account of the arguments set forth it needs to be held that Paragraphs 1, 2, 3 of

Article 96 of the Law on Science and Studies are not in conflict with the constitutional principle of

a state under the rule of law.

9. It has been mentioned that that Paragraph 4 of Article 96 of the Law on Science and

Studies is related to the formation of the councils (established under the legal regulation of the Law

on Science and Studies) of state universities. It has also been mentioned that, under Paragraph 4 of

Article 96 of the Law on Science and Studies, state universities were under obligation to apply, till

12 May 2010, to the Ministry of Education and Science concerning the setting-up of the council of a

school of higher education provided for in this law and to submit the members nominated to this

council by the school of higher education. Thus, the relations regulated in Paragraph 4 (which is

disputed by the petitioner) of Article 96 of the Law on Science and Studies have ended and this

provision of the law may no longer be applied, even though it has not been recognised invalid.

9.1. Under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment

of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal

proceedings.

As it has been held by the Constitutional Court more than once, the formula “shall be the

grounds <...> to dismiss the instituted legal proceedings” is to be construed as establishing the right

of the Constitutional Court, in cases, when not courts, but other subjects specified in Article 106 of

the Constitution have applied to the Constitutional Court, to dismiss the instituted legal proceedings

upon taking account of the circumstances of the case (inter alia Constitutional Court rulings of 19

January 2005 and 28 March 2006, as well as decisions of 31 May 2006, 29 December 2006, 28 May

2007, 25 February 2008 and 14 December 2009); gradually, after the Constitutional Court had

gained corresponding experience in considering constitutional justice cases, also such construction

in the Constitutional Court jurisprudence came into being, where in cases when not courts, but other

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subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, and

when the disputed legal act (part thereof) is no longer valid—it has been recognised as no longer

valid (it was abolished or amended) or its validity expired—the Constitutional Court, while paying

heed to the circumstances of the considered case, has the powers to dismiss the instituted legal

proceedings, however, it does not have to dismiss the instituted legal proceedings in every case

when the disputed legal act (part thereof) is no longer valid—it has been recognised as no longer

valid (it was abolished or amended) or its validity expired (Constitutional Court ruling of 28 March

2006, decision of 8 August 2006).

It needs to be noted that the jurisprudence of the Constitutional Court equated to invalid

legal acts (parts thereof) also such legal acts (parts thereof), which, even though formally valid

when the corresponding constitutional justice cases were investigated, however, at that moment

they could no longer be applied because one had to apply certain legal acts (parts thereof) that were

passed later and/or those of greater power, which regulated the corresponding relations differently

than the disputed legal acts (parts thereof) (Constitutional Court ruling of 28 March 2006, decisions

of 8 August 2006 and 13 November 2007). In the context of the constitutional justice case at issue it

needs to be noted that also the legal acts (parts thereof) applied on a temporary basis, the term of the

application whereof and the relations regulated by which have ended at the time of consideration of

the constitutional justice case, even though these acts (parts thereof) have not officially been

recognised as invalid, may be equated to invalid legal acts (parts thereof).

9.2. Thus, it needs to be noted that in cases, when not courts, but other subjects (inter alia a

group of not less than 1/5 of the Members of the Seimas) specified in Article 106 of the

Constitution have applied to the Constitutional Court, and the disputed legal act (part thereof) is to

be equated to legal acts (parts thereof) that are no longer valid, since the established term of

application thereof is applied on a temporary basis and the relations regulated by it have ended, the

Constitutional Court has the right to dismiss the instituted legal proceedings, however, it does not

have to do so in every situation. While deciding whether to dismiss the instituted legal proceedings,

the Constitutional Court must take account of the circumstances of the case considered by it.

In this context, the significant circumstances which must be taken into account by the

Constitutional Court, are, as mentioned, the fact that the relations regulated in disputed Paragraph 4

of Article 96 of the Law on Science and Studies have ended and the fact that this provision of the

law may no longer be applied, even though it has not been recognised invalid; it has also been

mentioned that, once it has been held in the constitutional justice case at issue that the provisions of

Paragraph 2 of Article 20 of the Law on Science and Studies, to the extent that they provide for the

governance functions of the council of a state school of higher education, are in conflict with

Paragraph 3 of Article 40 of the Constitution and the constitutional principle of a state under the

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rule of law, the elimination of these provisions from the legal system, with respect to application of

law, virtually amounts to the change of the overall legal regulation and the establishment of thus far

different overall legal regulation: the council of a state school of higher education, the procedure for

forming which is set in Paragraph 3 of Article 20 of the Law on Science, may continue to perform

the control and supervision functions related to responsibility of the school of higher education and

its accountability to society and provided for in Paragraph 2 of Article 20 of this law, as well as

advisory functions. Thus, while applying the legal regulation established in the Law on Science and

Studies, inter alia Paragraph 4 of Article 96 of the Law on Science and Studies, the new overall

legal regulation, which has undergone changes due to this Constitutional Court ruling, is to be

applied to the formed councils of schools of higher education.

Consequently, while taking account of the circumstances of the constitutional justice case at

issue, it needs to be held that in the part of the case related to the relations regulated in Paragraph 4

of Article 96 of the Law on Science and Studies the matter of dispute has virtually disappeared. In

this context it needs to be mentioned that the Constitutional Court has already invoked the provision

whereby the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the

instituted legal proceedings while holding that in the case considered by it the matter of dispute had

virtually disappeared (since by then a new legal regulation, but not the disputed one, was being

applied) (inter alia the Constitutional Court ruling of 28 March 2006).

10. Taking account of the arguments set forth, the part of the constitutional justice case at

issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to

investigate whether Paragraph 4 of Article 96 of the Law on Science and Studies is not in conflict

with Paragraph 3 of Article 40 of the Constitution 40 and with the constitutional principles of a state

under the rule of law, protection of legitimate expectations, legal certainty and legal security, is to

be dismissed.

X

On the compliance of Article 94 of the Law on Science and Studies with the

constitutional principles of a state under the rule of law, protection of legitimate expectations,

legal certainty and legal security, as well as on the compliance of Paragraph 5 of this article

with Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

1. The group of Members of the Seimas, a petitioner, is doubting whether Article 94 of the

Law on Science and Studies is not in conflict with the constitutional principles of a state under the

rule of law, protection of legitimate expectations, legal certainty and legal security and whether

Paragraph 5 of this article is not in conflict with Paragraph 3 of Article 40 and Paragraph 3 of

Article 41 of the Constitution.

2. Article 94 of the Law on Science and Studies prescribes:

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“1. Paragraph 2 of Article 67 and Paragraph 2 of Article 69 of this Law shall enter into force

on 1 January 2010.

2. Items 1 and 2 of Paragraph 1 of Article 69, Paragraphs 6, 7, 8, 10, 11, 12 and 14 of

Article 70, Articles 71, 72 and Paragraphs 1, 2, 3, 4 and 5 of Article 76 of this Law shall not be

applied to persons who were accepted to schools of higher education before the entry into force of

this Law.

3. State budget funds designated to fund studies of the persons accepted to state schools of

higher education before the entry into force of this Law shall be appropriated in accordance with the

procedure laid down by the Government, taking account of the number of student places, fixed

pursuant to the procedure laid down by legal acts before the entry into force of this Law, where the

studies in state schools of higher education of the students accepted to the said student places are

fully or partly covered with state budget funds.

4. Students of undergraduate, integrated studies and studies of the second cycle of all forms

of state schools of higher education, accepted to state schools of higher education before the entry

into force of this Law, with the exception of the students specified in Paragraphs 8 and 9 of this

Article, if their studying does not meet the criteria of good studying as defined in Paragraph 5 of

this Article, shall each semester pay a study fee to a higher education institution in the amount of

four base social benefits.

5. Free education shall be secured for students of state schools of higher education with a

good academic record, accepted to the state higher education institutions before the entry into force

of this Law, with the exception of the students specified in Paragraphs 8 and 9 of this Article.

Students who are good at their studies shall be students who do not have academic failures and

whose average of the evaluation of study subjects within a semester is not less than eight on a ten-

point grading scale in accordance with the system of evaluation of study results approved by the

Government or an institution authorised by it.

6. Students who were accepted to state schools of higher education before the entry into

force of this Law shall be struck off the register of students of the school of higher education for

poor progress in accordance with the procedure laid down by the school of higher education. The

following persons, accepted to state schools of higher education before the entry into force of this

Law, who study in the same study programme of the same year of studies (except the persons

referred to in Items 1-3 of Paragraph 8 of this Article) shall qualify to fill vacancies according to the

progress and in the order of priority:

1) students of the same study form;

2) students of other study forms.

7. In the case when it is impossible to fill vacancies in accordance with the procedure laid

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down in Paragraph 6 of this Article, state budget funds designated for funding of these free student

places may be used for funding the studies of students of the same year of studies who were

accepted to state higher education institutions before the entry into force of this Law and who study

according to the study programmes of at least equivalent cost.

8. The following persons accepted to a state school of higher education shall pay the study

cost, fixed by the state school of higher education, for studies in the state school of higher

education:

1) persons studying according to a study programme of the same cycle or a lower cycle

which they have completed in the state school of higher education, if they paid the full study cost

for not more than half of the credits of the study programme, with the exception of the cases

provided for by the Government;

2) persons who simultaneously study according to two or more study programmes, if their

studies are fully or partly financed with the state budget funds according to at least one of these

study programmes (they themselves pay for the second or other study programmes);

3) foreigners, if the international treaties of the Republic of Lithuania or other legal acts do

not provide otherwise;

4) persons who have failed to be accepted to the student places where the studies are fully or

partly financed with state budget funds.

9. The following persons accepted to state schools of higher education before the entry into

force of this Law shall pay the study cost, proportionate to the volume of a study subject, for studies

in that state school of higher education:

1) persons who do not engage in sequential studies;

2) persons who repeat separate subjects of a sequential study programme.

10. Students who were accepted to state schools of higher education before the entry into

force of this Law may receive state loans or state-subsidised loans to pay the study fees referred to

in Paragraph 4 of this Article. The Government shall lay down the procedure for granting,

administering and repaying these loans.

11. Paragraph 2 of Article 75 of this Law shall apply only to students of state schools of

higher education in 2009. State budget funds designated for payment of incentive scholarships and

other support for students of state schools of higher education accepted to those state schools of

higher education before the entry into force of this Law shall be granted in accordance with the

procedure laid down by the Government.”

3. While having doubts about the constitutionality of the provisions of Article 94 of the Law

on Science and Studies, the petitioner has presented the doctrinal provisions of the Constitutional

Court regarding the requirements for the legislator implied by the constitutional principle of a state

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under the rule of law. While disputing Paragraph 5 of this article, it is invoking the doctrinal

provision of the Constitutional Court whereby the criteria which must be met by citizens in order to

be regarded as ones being good at their studies must be established only by law.

Thus, from the arguments of the petitioner it is clear that it is disputing the provision

“Students who are good at their studies shall be students who do not have academic failures and

whose average of the evaluation of study subjects within a semester is not less than eight on a ten-

point grading scale in accordance with the system of evaluation of study results approved by the

Government or an institution authorised by it” of Paragraph 5 of Article 94 of the Law on Science

and Studies insofar as it is established therein that the criterion of learning well is the average of the

evaluation of study subjects within a semester is not less than eight on a ten-point grading scale in

accordance with the system of evaluation of study results approved by the Government or an

institution authorised by it.

4. The disputed provision of Paragraph 5 of Article 94 of the Law on Science and Studies

inter alia indicates the criterion of learning well—the average of the evaluation of study subjects

within a semester is not less than eight on a ten-point grading scale. It needs to be noted that,

traditionally, on a ten-point grading scale of academic results applied in establishments of

education, science and studies the evaluation “eight” means a good level of knowledge and

capabilities.

The disputed provision of Paragraph 5 of Article 94 of the Law on Science and Studies inter

alia indicates that the system of evaluation of study results approved by the Government or an

institution authorised by it is to be applied to the ten-point grading scale.

It needs to be noted that the provisions of Paragraph 5 of Article 94 of the Law on Science

and Studies are applied on a temporary basis, since they are related to the entry into force and

application of the provisions of Chapter VII of this law, regulating inter alia funding from the state

budget the studies of the students who are good at their studies at state schools of higher education.

The purpose of the provisions of Paragraph 5 of Article 94 of the Law on Science and Studies is to

guarantee the free-of-charge education for the students who are good at their studies at state schools

of higher education who were accepted to these schools before the entry into force of this law.

Therefore, in Paragraph 5 of Article 94 of the Law on Science and Studies the same criteria of

learning well are established as those established in Paragraph 1 (wording of 26 June 2008) of

Article 60 of the Law on Higher Education (in the latter paragraph it was established that students

good at their studies are those students who have no failed examinations or credits and whose

average of subjects assessment during a semester is at least “eight” on the 10-point assessment scale

according to the system of assessment study results approved by the Government or an institution

authorised by it). Thus, the provisions of Paragraph 5 of Article 94 of the Law on Science and

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Studies are applied only to the persons accepted to state schools of higher education before the entry

into force of this law, while seeking to established, pursuant to the criteria applied before the entry

into force of this law, who of these persons should be deemed as students good at their studies

whose studies are covered from the state budget.

5. It needs to be noted that, in its ruling of 20 March 2008, while construing the provision of

Paragraph 3 of Article 41 of the Constitution that citizens who are good at their studies shall be

guaranteed education at state schools of higher education free of charge, the Constitutional Court

held that the Constitution does not define expressis verbis as to which citizens are to 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 is to be regarded

the one who “is good at his studies, i.e. his learning meets the established criteria of learning well”

(Constitutional Court 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 (Constitutional Court 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.

6. It has been mentioned that the disputed provision of Paragraph 5 of Article 94 of the Law

on Science and Studies indicates the criterion of learning well—the average of the evaluation of

study subjects within a semester is not less than eight on a ten-point grading scale—traditionally

means a good level of knowledge and capabilities. Thus, this criterion does not deviate 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;

whereas the fact that the system of evaluation of study results approved by the Government or an

institution authorised by it is to be applied to the ten-point grading scale may not be understood as

the powers granted to the Government or an institution authorised by it to establish an essentially

different criterion of learning well.

7. It has been mentioned that the criteria enabling to establish which students can be said to

demonstrate good academic results and which would, consequently, as prescribed by the

Constitution, have the right that their education in state higher schools be financed by the state,

should be established by law. It has been held that the criterion of learning well specified in

Paragraph 5 of Article 94 of the Law on Science and Studies—the average of the evaluation of

study subjects within a semester is not less than eight on a ten-point grading scale in accordance

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with the system of evaluation of study results approved by the Government or an institution

authorised by it—meets the aforesaid requirement. Thus, there are no grounds to assert that such

legal regulation denies the autonomy of schools of higher education guaranteed in Paragraph 3 of

Article 40 of the Constitution and the provisions of Paragraph 3 of Article 41 thereof.

8. Taking account of the arguments set forth one is to conclude that Paragraph 5 of Article

94 of the Law on Science and Studies insofar as it is established therein that the criterion of learning

well is the average of the evaluation of study subjects within a semester is not less than eight on a

ten-point grading scale in accordance with the system of evaluation of study results approved by the

Government or an institution authorised by it is not in conflict with Paragraph 3 of Article 40 and

Paragraph 3 of Article 41 of the Constitution and with the constitutional principle of a state under

the rule of law.

XI

On the compliance of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90

and Paragraph 3 of Article 91 of the Law on Science and Studies with Paragraph 3 of Article

40 of the Constitution and the constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Item 3 of

Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of Article 91 of the Law on

Science and Studies are not in conflict with Paragraph 3 of Article 40 of the Constitution and the

constitutional principle of a state under the rule of law.

2. Item 3 of Paragraph 2 of Article 86 of the Law on Science and Studies prescribes:

“The main purposes of a state scientific institute shall be as follows:

<...>

3) together with schools of higher education to train scientists, to help to train specialists, to

ensure the scientific competence of international level.”

Paragraph 4 of Article 90 of the Law on Science and Studies provides:

“Two-thirds of members of the council of a university scientific institute shall be members

of the council elected by scientists of the university scientific institute and one-third of members of

the council shall be members of the council appointed by the university senate. The Government

may fix another proportion of members of the council of a university scientific institute elected by

scientists of the university scientific institute and members of the council of the university scientific

institute appointed by the university senate, moreover, the Government may also determine the

procedure in compliance with which representatives of the interested institutions, establishments

and organisations are included in the council of the university scientific institute.”

Paragraph 3 of Article 91 of the Law on Science and Studies provides:

“A director of a university scientific institute shall be elected by the commission from

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among scientists by secret ballot in an open competition for a term of office not exceeding five

years and for not more than two terms of office in succession; this commission shall comprise an

equal number of representatives of the council of the university scientific institute and the university

senate, and one representative of the Ministry of Education and Science. The Ministry of Education

and Science shall lay down the procedure for holding a competition and setting up the commission.

The university rector shall conclude a fixed-term employment contract with the elected director of

the university scientific institute.”

3. It needs to be noted that Articles 86, 90, 91 of the Law on Science and Studies, which

contain the provisions disputed by the petitioner, are in Chapter IX “Regulation of Activities of

Research Institutions During the Transitional Period” of the same law.

Paragraph 4 of Article 95 of the Law on Science and Studies provides that Chapter IX of

this law shall be valid until 1 January 2010. Thus, as from then the provisions (disputed by the

petitioner) of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3 of

Article 91 of the Law on Science and Studies have been no longer valid.

4. It has been mentioned that, under Paragraph 4 of Article 69 of the Law on the

Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to

dismiss the instituted legal proceedings.

It has been mentioned that, as it has been held by the Constitutional Court more than once,

the formula “shall be the grounds <...> to dismiss the instituted legal proceedings” is to be

construed as establishing the right of the Constitutional Court, in cases, when not courts, but other

subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, to

dismiss the instituted legal proceedings upon taking account of the circumstances of the case (inter

alia Constitutional Court ruling of 19 January 2005, ruling of 28 March 2006, as well as decisions

of 31 May 2006, 29 December 2006, 28 May 2007, 25 February 2008 and 14 December 2009);

gradually, after the Constitutional Court had gained corresponding experience in considering

constitutional justice cases, also such construction in the Constitutional Court jurisprudence came

into being, where in cases when not courts, but other subjects specified in Article 106 of the

Constitution have applied to the Constitutional Court, and when the disputed legal act (part thereof)

is no longer valid—it has been recognised as no longer valid (it was abolished or amended) or its

validity expired—the Constitutional Court, while paying heed to the circumstances of the

considered case, has the powers to dismiss the instituted legal proceedings, however, it does not

have to dismiss the instituted legal proceedings in every case when the disputed legal act (part

thereof) is no longer valid—it has been recognised as no longer valid (it was abolished or amended)

or its validity expired (Constitutional Court ruling of 28 March 2006, decision of 8 August 2006).

Thus, in the jurisprudence of the Constitutional Court, the rule that the annulment of the

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disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings is

applied to all legal acts that are no longer valid, inter alia to those whose validity has ended; it is

also inter alia understood not as a duty of the Constitutional Court, but as its right in cases, when

not courts, but other subjects (inter alia a group of not less than 1/5 of the Members of the Seimas)

specified in Article 106 of the Constitution have applied to the Constitutional Court, to dismiss the

instituted legal proceedings upon taking account of the circumstances of the case.

5. In the context of the constitutional justice case at issue it needs to be noted that the

provisions (disputed by the petitioner) of Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article

90 and Paragraph 3 of Article 90 of the Law on Science and Studies used to regulate the activity of

scientific research establishments, inter alia state scientific institutes and university scientific

institutes, during the transitional period, i.e. until their reorganisation while applying the groups and

types of institutions of science and studies established in the new legal regulation entrenched in the

Law on Science and Studies, inter alia while reorganising them into state scientific research

institutes or including them into the organisational and governance structure of universities. Under

Paragraph 4 of Article 93 of the Law on Science and Studies, the Government had to arrange the

reorganisation of scientific research establishments till 1 January 2010.

Thus, while taking account of the circumstances of the constitutional justice case at issue, it

needs to be held that in the part of the case related to the reorganisation of scientific research

establishments, inter alia state scientific institutes and university scientific institutes, and regulation

of their activity during the transitional period, the matter of dispute has virtually disappeared, since

the reorganisation of these establishments is over, the provisions of Chapter IX of the Law on

Science and Studies that used to regulate their activity during the transitional period are no longer

applied, and the new legal regulation established in the Law on Science and Studies is applied to the

reorganised establishments of science and studies; it has been mentioned that the Constitutional

Court has previously invoked the provision whereby the annulment of the disputed legal act shall be

grounds to adopt a decision to dismiss the instituted legal proceedings while holding that in the case

considered by it the matter of dispute had virtually disappeared (since by then a new legal

regulation, but not the disputed one, was being applied).

6. Taking account of the arguments set forth, the part of the constitutional justice case at

issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to

investigate whether Item 3 of Paragraph 2 of Article 86, Paragraph 4 of Article 90 and Paragraph 3

of Article 91 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article 40 of

the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.

XII

On the compliance of Paragraphs 2, 4, 6, 8 of Article 93 of the Law on Science and

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Studies with the constitutional principles of a state under the rule of law, protection of

legitimate expectations and legal security.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraphs 2, 4,

6, 8 of Article 93 of the Law on Science and Studies are not in conflict with the constitutional

principles of a state under the rule of law, protection of legitimate expectations and legal security.

2. It has been mentioned that the Constitutional Court has held more than once that the

protection of legitimate expectations, legal certainty and legal security are inseparable elements of

the constitutional principle of a state under the rule of law.

3. The petitioner, while seeking to substantiate its doubts regarding the compliance of

Paragraphs 2, 4, 6, 8 of Article 93 of the Law on Science and Studies with the Constitution, has

presented the doctrinal provisions formulated by the Constitutional Court regarding the

requirements for the legislator implied by the constitutional principle of a state under the rule of

law. In the opinion of the petitioner, there emerge doubts regarding the constitutionality of these

provisions of Article 93 of the Law on Science and Studies also because these provisions are related

to the reorganisation of state schools of higher education and scientific research establishments.

According to the petitioner, such reorganisation is in conflict with the principle of autonomy of

schools of higher education entrenched in the Constitution.

4. It needs to be noted that all provisions of Article 93 of the Law on Science and Studies

regulate the implementation of this law.

5. Paragraph 2 of Article 93 of the Law on Science and Studies provides:

“Upon entry into force of this Law, universities may not accept persons to college studies

and colleges may not accept persons to university studies.”

5.1. The provision of Paragraph 2 of Article 93 of the Law on Science and Studies, which is

being disputed by the petitioner, is to be related to the implementation of other provisions of this

law, inter alia to Paragraph 1 of Article 6 of the Law on Science and Studies wherein two types of

schools of higher education—universities and colleges—are established, as well as to the provision

of Paragraph 1 of Article 8 of this law whereby the university shall carry out university studies

(these studies, under Item 1 of Paragraph 2 of the same article, must inter alia provide persons with

university higher education based on scientific research and corresponding to the modern level of

knowledge and technologies), to the provision of Paragraph 1 of Article 9 thereof whereby the

college shall carry out college studies (these studies, under Item 1 of Paragraph 2 of the same

article, must inter alia provide persons with the college higher education which satisfies the needs

of the State, society and economy of Lithuania, and conforms to the level of science and latest

technologies). In this context it also needs to be mentioned that, under Paragraph 3 of Article 8 of

the Law on Science and Studies, higher requirements are raised to the teaching staff of universities

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(more than half of the teaching staff of a university must be scientists and/or established artists) than

the requirements for the teaching staff of colleges established in Paragraph 3 of Article 9 of this law

(more than a half of the teaching staff of a college must have at least three-year practical work

experience in the sphere of a subject they teach).

Thus, the provision of Paragraph 2 of Article 93 of the Law on Science and Studies seeks to

ensure the uniform and quality level of university higher education provided by universities and

also the essential different, but uniform and quality level of collegiate higher education provided by

colleges.

5.2. The provision of Paragraph 2 of Article 93 of the Law on Science and Studies, which is

being disputed by the petitioner, is also to be related to certain provisions of the Law on Higher

Education which used to be in force prior to the Law on Science and Studies. Paragraph 1 of Article

6 of the Law on Higher Education inter alia used to provide that a university shall be a school of

higher education, where university studies prevail and the majority of students comprise those

studying according to university study programmes, whereas Paragraph 4 of this article used to

provide that universities may teach students in accordance with non-university study programmes as

well. Paragraph 1 of Article 7 (wording of 18 July 2006) of the Law on Higher Education inter alia

used to provide that a college shall be a school of higher education, where non-university studies

prevail and the majority of students are those studying in accordance with non-university study

programmes. Paragraph 4 of the same article used to provide that college study programmes may

include study programmes (modules) co-ordinated with universities and corresponding to university

undergraduate studies; a college may be given the right to organise the undergraduate university

studies of some subject area in accordance with the procedure established by the Government; in

this event, not less than half of the amount of study programmes must be taught by scientists and/or

distinguished artists. Paragraph 7 of this article used to provide that a college may conclude

contracts with universities concerning general studies and research programmes, exchange of

teachers, etc.

Thus, under the legal regulation established in the Law on Higher Education, universities

were allowed to carry out collegiate studies, whereas colleges were allowed to carry out the studies

corresponding to university basic studies, provided not less than half of the amount of study

programmes were taught by scientists and/or distinguished artists. It needs to be noted that, under

the legal regulation established in the Law on Science and Studies, universities lost the opportunity

to carry out collegiate studies, meanwhile colleges—studies corresponding to university basic

studies.

It also needs to be noted that, under Paragraph 10 of Article 93 of the Law on Science and

Studies, schools of higher education shall create conditions to complete the studies for persons who

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were accepted to the schools of higher education before the entry into force of this law. Thus, in this

context the provision of Paragraph 2 of Article 93 of the Law on Science and Studies is to be

construed that upon the entry into force of the Law on Science and Studies admission to collegiate

studies in universities and that to university studies in colleges may not be conducted, however, the

persons accepted to such studies before the entry into force of this law are given an opportunity to

finish them.

5.3. In the constitutional justice case at issue it has been mentioned that the Constitutional

Court has held more than once that the constitutional principle of a state under the rule of law is a

universal principle, upon which the entire legal system of Lithuania and the Constitution itself are

based; the content of the principle of a state under the rule of law reveals itself in various provisions

of the Constitution; the essence of the constitutional principle of a state under the rule of law is the

rule of law; the constitutional imperative of the rule of law means that the freedom of state power is

limited by law, which must be obeyed by all the entities of legal relations, including the law-making

entities; the discretion of all the law-making entities is limited by the supreme law—the

Constitution; all the legal acts and decisions of all the state and municipal institutions and officials

must be in compliance with and not contradicting to the Constitution; the constitutional principle of

a state under the rule of law must be followed both in law-making and implementation of law; the

compliance of each institute of law with the Constitution must be evaluated according to how this

institute is in compliance with the constitutional principles of a state under the rule of law.

It has also been mentioned that in the constitutional justice case at issue the content of the

constitutional principle of a state under the rule of law inter alia is to be disclosed by applying the

principle of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the

Constitution.

5.4. In the constitutional justice case at issue it has been noted that the right of the state to

establish the quality requirements for higher education per se does not deny the autonomy of

schools of higher education; however, when this right is being implemented, one must heed the

imperatives emerging from Constitution, inter alia the constitutional principles of proportionality

and reasonableness, the principle lex non cogit ad impossibilia etc.; the provision of the official

constitutional doctrine that autonomy of schools of higher education include their right to

independently determine the study programmes is to be construed in the context of the

constitutional obligation of the state to supervise the activity of educational establishments and the

constitutional obligation to secure that the level of provided higher education, which is marked by

corresponding qualification degrees, would comply with certain uniform standards of the quality of

higher education.

In the constitutional justice case at issue it was also noted that, while heeding autonomy of

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schools of higher education, the legislator has broad discretion to choose and regulate a concrete

model of organising science and studies, which would meet best the needs of development of the

progress of the state and society in a particulate period of time. However, having chosen a concrete

model for organising science and studies, the legislator must ensure uniform standards of higher

education rendered by institutions of science and studies, inter alia those of training of scientists

and specialists.

In the constitutional justice case at issue it has also been noted that the variety of purposes of

higher education determines the fact that there may be various types of schools of higher education;

while taking account of this, laws may establish different limits of autonomy for different types of

schools of higher education (while taking account of whether they are universities or colleges,

whether the founders are the state or other subjects, and while taking into consideration other

conditions); the rights exercised by schools of higher education may be (while heeding the

Constitution) differentiated according to various important criteria, inter alia according to the status

of these schools of higher education (whether they are universities or not), the level of higher

education provided to the persons who are studying therein, the programme of studies conducted by

them, the scientific potential thereof etc.

Thus, it needs to be held that, under the Constitution, the legislator has the right to establish

such a model for organising science and studies whereby only two types of schools of higher

education—universities and colleges—would carry out studies; having chosen such a model, the

legislator must also differentiate the quality requirements of higher university education and higher

collegiate education and create legal preconditions to secure the uniform quality of higher

university education and higher collegiate education.

5.5. In this context it needs to be noted some universities also have centuries-long traditions

and their activities are characterised by the symbiosis of the humanities, social sciences, natural

sciences, mathematics (and more often than not also medicine), therefore, they keep a balance

among humanities, social sciences, and natural sciences, whereas this fact is influential on studies in

various specialities.

The Constitutional Court has also noted more than once the differences in the higher

education provided by universities and the (special) higher education provided by other schools of

higher education, which are not universities: not only abundance of knowledge but also versatility

and fundamentality of the latter are characteristic of university education (Constitutional Court

ruling of 10 July 1996); the persons who have university education acquire supplementary and

universal knowledge which is necessary when adopting crucial decisions in various spheres of life

(Constitutional Court rulings of 10 July 1996, 20 February 2008); university education is essentially

different from special higher education (Constitutional Court ruling of 10 July 1996). In the context

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of the constitutional justice case at issue it needs to be noted that higher university education is

essentially different from higher collegiate education.

5.6. In this context it also needs to be mentioned that in the constitutional justice case at

issue it has been held that the autonomy of schools of higher education is not denied by the legal

regulation established in Paragraph 3 of Article 8 and Paragraph 3 of Article 9 of the Law on

Science and Studies differentiating the requirements for the teaching staff of universities and

colleges, but by such legal regulation one is seeking to secure the quality of education provided by

schools of higher education.

5.7. It has been mentioned that, under the Constitution, the legislator has the right to

establish such a model for organising science and studies whereby only two types of schools of

higher education—universities and colleges—would carry out studies; having chosen such a model,

the legislator must also differentiate the quality requirements of higher university education and

higher collegiate education and create legal preconditions to secure the uniform quality of higher

university education and higher collegiate education; higher university education is essentially

different from higher collegiate education.

It has also been mentioned that the provision of Paragraph 2 of Article 93 of the Law on

Science and Studies seeks to ensure the uniform and quality level of university higher education

provided by universities and also the essential different, but uniform and quality level of collegiate

higher education provided by colleges.

Thus, such legal regulation established in Paragraph 2 of Article 93 of the Law on Science

and Studies does not deny the autonomy of schools of higher education.

5.8. It has been mentioned that the protection of legitimate expectations, legal certainty and

legal security are inseparable elements of the principle of a state under the rule of law. It has also

been mentioned that the provision of Paragraph 2 of Article 93 of the Law on Science and Studies is

to be construed that upon the entry into force of the Law on Science and Studies admission to

collegiate studies in universities and that to university studies in colleges may not be conducted,

however, the persons accepted to such studies before the entry into force of this law are given an

opportunity to finish them.

Thus, there is no ground for asserting that the legal regulation established in Paragraph 2 of

Article 96 of the Law on Science and Studies violates the imperatives of protection of legitimate

expectation, legal certainty and legal security, and other imperatives of the constitutional principle

of a state under the rule of law.

5.9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2

of Article 93 of the Law on Science and Studies is not in conflict with the constitutional principle of

a state under the rule of law.

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6. Paragraph 4 of Article 93 of the Law on Science and Studies provides:

“The Government or an institution authorised by it shall arrange the reorganisation of

scientific research establishments until 1 January 2010.”

Paragraph 6 of Article 93 of the Law on Science and Studies provides:

“Until 1 January 2010 universities together with state scientific institutes or university

scientific institutes shall have the right to carry out doctoral studies.”

6.1. It needs to be noted that the provisions of Paragraphs 4 and 6 of Article 93 of the Law

on Science and Studies are related to the reorganisation of scientific research establishments, inter

alia state scientific institutes and university scientific institutes, while applying the groups and types

of institutions of science and studies established in the new legal regulation entrenched in the Law

on Science and Studies, inter alia while reorganising them into state scientific research institutes or

including them into the organisational and governance structure of universities.

The following time period for such reorganisation of scientific research establishments is

established in Paragraph 4 of Article 93 of the Law on Science and Studies: the Government or an

institution authorised by it had to arrange the reorganisation of scientific research establishments

until 1 January 2010, whereas Paragraph 6 of Article 93 of the same law provides that until the

reorganisation of scientific research establishments (until 1 January 2010) universities together with

state scientific institutes or university scientific institutes had the right to carry out doctoral studies.

In this context it needs to be noted that all provisions (Articles 84–92) of the chapter of the

Law on Science and Studies that used to regulate the activity of scientific research establishments,

inter alia state scientific institutes and university scientific institutes during the transitional period,

were valid till 1 January 2010 (Paragraph 4 of Article 95 of the Law on Science and Studies).

Thus, the relations regulated in Paragraphs 4 and 6 (which are disputed by the petitioner) of

Article 93 of the Law on Science and Studies have ended and these provisions of the law may no

longer be applied, even though they have not been recognised as invalid; the new legal regulation

established in the Law on Science and Studies is applied to the reorganised scientific research

establishments.

6.2. It has been mentioned that, under Paragraph 4 of Article 69 of the Law on the

Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to

dismiss the instituted legal proceedings. It has also been mentioned that, in the jurisprudence of the

Constitutional Court, the rule that the annulment of the disputed legal act shall be grounds to adopt

a decision to dismiss the instituted legal proceedings is applied to all legal acts that are no longer

valid; in the jurisprudence of the Constitutional Court this rule is also inter alia understood not as a

duty of the Constitutional Court, but as its right in cases, when not courts, but other subjects (inter

alia a group of not less than 1/5 of the Members of the Seimas) specified in Article 106 of the

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Constitution have applied to the Constitutional Court, to dismiss the instituted legal proceedings

upon taking account of the circumstances of the case.

It has also been mentioned that the jurisprudence of the Constitutional Court equated to

invalid legal acts (parts thereof) also such legal acts (parts thereof), which, even though formally

valid when the corresponding constitutional justice cases were investigated, however, at that

moment they could no longer be applied because one had to apply certain legal acts (parts thereof)

that were passed later and/or those of greater power, which regulated the corresponding relations

differently than the disputed legal acts (parts thereof); in the context of the constitutional justice

case at issue it needs to be noted that also the legal acts (parts thereof) applied on a temporary basis,

the term of the application whereof and the relations regulated by which have ended at the time of

consideration of the constitutional justice case, even though these acts (parts thereof) have not

officially been recognised as invalid, may be equated to invalid legal acts (parts thereof).

6.3. It has been mentioned that the relations regulated in Paragraphs 4 and 6 (which are

disputed by the petitioner) of Article 93 of the Law on Science and Studies have ended and these

provisions of the law may no longer be applied, even though they have not been recognised as

invalid; the new legal regulation established in the Law on Science and Studies is applied to the

reorganised scientific research establishments.

Thus, while taking account of the circumstances of the constitutional justice case at issue, it

needs to be held that in the part of the case related to the relations regulated in Paragraphs 4 and 6

of Article 93 of the Law on Science and Studies the matter of dispute has virtually disappeared. In

the constitutional justice case at issue it has been mentioned that the Constitutional Court has

previously invoked the provision whereby the annulment of the disputed legal act shall be grounds

to adopt a decision to dismiss the instituted legal proceedings while holding that in the case

considered by it the matter of dispute had virtually disappeared (since by then a new legal

regulation, but not the disputed one, was being applied).

6.4. Taking account of the arguments set forth, the part of the constitutional justice case at

issue subsequent to the petition of the group of Members of the Seimas, a petitioner, requesting to

investigate whether Paragraphs 4 and 6 of Article 93 of the Law on Science and Studies are not in

conflict with the constitutional principles of a state under the rule of law, protection of legitimate

expectations, legal certainty and legal security, is to be dismissed.

7. Paragraph 8 of Article 93 of the Law on Science and Studies provides:

“State schools of higher education must be reorganised from budgetary establishments into

public establishments until 31 December 2011”.

7.1. Thus, Paragraph 8 of Article 93 of the Law on Science and Studies provides for the time

period within which state schools of higher education must be reorganised from budgetary

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establishments into public establishments—it must be done until 31 December 2011. This provision

is first of all related to Paragraph 4 of Article 6 of the Law on Science and Studies, wherein the sole

legal form of a state school of higher education—a public establishment—is set (as mentioned,

under Paragraph 1 of Article 2 of the Law on Public Establishments, a public establishment shall be

a non-profit public legal person of limited civil liability founded according to this law and other

laws, the aim of which is to satisfy public interests by carrying out the educational, training and

scientific, cultural, health care, environmental protection, sports development, social or legal aid

provision as well as other activities useful to the public), whereas, under Paragraph 9 (wording of

30 June 2005) of Article 5 of the Law on Higher Education valid until the entry into force of the

Law on Science and Studies, a state school of higher education used to be defined as a public legal

person functioning as a budgetary or public establishment and having a special status established by

the Constitution and this law.

In this context it needs to be noted that, as mentioned, the Law on Science and Studies (with

the exception of certain articles thereof) came into force on 12 May 2009. Thus, a term longer than

19 months was provided in Paragraph 8 of Article 93 of the Law on Science and Studies for the

reorganisation of state schools of higher education, whose legal form is a budgetary establishment,

into public establishments.

7.2. As mentioned, in the constitutional justice case at issue the content of the constitutional

principle of a state under the rule of law inter alia is to be disclosed by applying the principle of

autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of the

Constitution.

In the constitutional justice case at issue it has also been mentioned that the establishment of

the legal form for the state school of higher education as a public legal person per se does not deny

the freedom of scientific and educational activity of the school of higher education and self-

government of the academic community, i.e. the academic and institutional autonomy of schools of

higher education; the legal form of a state school of higher education as a public legal person must

be in line with the purpose of the school, which is to satisfy public interests, in a non-profit manner,

while carrying out the educational, training, scientific and cultural activity.

In the constitutional justice case at issue it has also been mentioned that that the protection

of legitimate expectations, legal certainty and legal security are inseparable elements of the

principle of a state under the rule of law.

7.3. In the constitutional justice case at issue it has been held that the only legal form of a

state school of higher education as a public legal person—a public establishment—established in

Paragraph 4 of Article 6 of the Law on Science and Studies, is brought in line with the aim of the

state school of higher education to satisfy public interests, in a non-profit manner, by carrying out

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the educational, training, scientific, and cultural activities; while taking account of this, in the

constitutional justice case at issue it was also held that Paragraph 4 of Article 6 of the Law on

Science and Studies is not in conflict with Paragraph 3 of Article 40 of the Constitution and the

constitutional principle of a state under the rule of law. There are no grounds to differently assess

Paragraph 8 of Article 93 of the Law on Science and Studies, wherein the term of implementation

of Paragraph 4 of Article 6 of the this law is established.

It has been mentioned that a term longer than 19 months was provided in Paragraph 8 of

Article 93 of the Law on Science and Studies for the reorganisation of state schools of higher

education, whose legal form is a budgetary establishment, into public establishments. Thus, there is

also no ground for asserting that such legal regulation violates the imperatives of protection of

legitimate expectation, legal certainty and legal security, and other imperatives of the constitutional

principle of a state under the rule of law.

7.4. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 8

of Article 93 of the Law on Science and Studies is not in conflict with the constitutional principle of

a state under the rule of law.

XIII

On the compliance of Paragraph 1 of Article 70 of the Law on Science and Studies with

Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

1. The Supreme Administrative Court of Lithuania, a petitioner, has had doubts as to

whether Paragraph 1 of Article 70 of the Law on Science and Studies is not in conflict with

Paragraph 3 of Article 40 and Paragraph 3 of Article 41 of the Constitution.

From the arguments of the petitioner it is clear that the petitioner is disputing the compliance

of Paragraph 1 of Article 70 of the Law on Science and Studies not with the entire Paragraph 3 of

Article 41 of the Constitution, but only with the provision “Citizens who are good at their studies

shall be guaranteed education at state schools of higher education free of charge” of this paragraph.

2. Paragraph 1 of Article 70 of the Law on Science and Studies provides:

“The priority to state-funded student places pursuant to study programmes of the first cycle

and integrated study programmes shall belong to enrolling persons according to their capabilities,

which are determined by taking into account the results of matura examinations and studying, other

results as well as special capabilities. A queue of persons who have completed a secondary

education programme with the best results shall be determined in accordance with the procedure

laid down by the Ministry of Education and Science.”

3. Thus, the disputed, by the petitioner, Paragraph 1 of Article 70 of the Law on Science and

Studies establishes the right of priority to enrol for state-funded student places pursuant to study

programmes of the first cycle and integrated study programmes, by taking into account the results

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of matura examinations and studying, other results as well as special capabilities of enrolling

persons. Priority, as a rule, means the precedence (a preceding position) in terms of implementing a

certain right.

3.1. It needs to be noted that provisions of Paragraph 1 of Article 70 of the Law on Science

and Studies are inseparable and should not be construed literally. The determining of “a queue of

persons who have completed a secondary education programme with the best results”, which is

referred to in this paragraph, is not an end in itself, and in the context of the notion “the priority to

state-funded student places pursuant to study programmes of the first cycle and integrated study

programmes” it should be understood that the said queue is just a queue (queues) of persons who

have completed a secondary education programme with the best results and who enrol for state-

funded student places pursuant to certain study programmes of the first cycle and integrated study

programmes (of certain fields) in schools of higher education; according to this queue (queues),

which determines (determine) the priority to enrol for state-funded student places pursuant to the

corresponding study programmes (of a corresponding field), the admission of enrolling persons to

the said student places takes place.

3.2. Paragraph 1 of Article 70 of the Law on Science and Studies regulates the following

two aspects of the right of priority to enrol for state-funded student places pursuant to study

programmes of the first cycle and integrated study programmes.

3.2.1. First, Paragraph 1 of Article 70 of the Law on Science and Studies sets the criteria that

are taken into account when assessing the capabilities on the basis of which one determines a queue

of priority of persons who enrol for state-funded student places pursuant to study programmes of

the first cycle and integrated study programmes in schools of higher education (a queue of persons

who have completed a secondary education programme with the best results and who enrol for

state-funded student places pursuant to study programmes of the first cycle and integrated study

programmes in schools of higher education)—the results of matura examinations and studying,

other results as well as special capabilities of enrolling persons.

While taking account of the fact that, as mentioned, a queue of persons who have completed

a secondary education programme with the best results, which is referred to in Paragraph 1 of

Article 70 of the Law on Science and Studies, may not be understood only as the sole queue for all

study programmes of the first cycle and integrated study programmes without taking account of the

area and field of studies, it needs to be noted that, under the legal regulation laid down in Paragraph

1 of Article 70 of the Law on Science and Studies, the capabilities on the basis of which one

determines a queue of priority of persons who enrol for state-funded student places pursuant to

study programmes of the first cycle and integrated study programmes in schools of higher education

should be related to the study programmes (fields) chosen by enrolling persons.

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3.2.2. Second, the Ministry of Education and Science is commissioned, while taking account

of the criteria established in Paragraph 1 of Article 70 of the Law on Science and Studies—the

results of matura examinations and studying, other results as well as special capabilities related to

the study area and field chosen by enrolling persons, to set the procedure for determining a queue of

persons who have completed a secondary education programme with the best results (inter alia for

assessing the meaning of these criteria), whereby the right of priority to enrol for state-funded

student places pursuant to study programmes of the first cycle and integrated study programmes is

implemented.

It needs to be noted that during the admission to state-funded student places pursuant to

study programmes of the first cycle and integrated study programmes in schools of higher education

it is obligatory to follow a queue of persons who have completed a secondary education programme

with the best results, which is determined in accordance with the procedure set by the Ministry of

Education and Science and whereby the right of priority to enrol for the said student places is

implemented, otherwise the essence of the right of priority to enrol for state-funded student places

pursuant to study programmes of the first cycle and integrated study programmes, which is

provided for by the law, would be denied.

3.3. In the context of the constitutional justice case at issue it also needs to be noted that the

legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and Studies is related

with Paragraph 1 of Article 52 “Admission to schools of higher education” of this law, wherein it is

established that persons having at least the secondary education are admitted by way of competition

to study programmes of the first cycle and integrated study programmes in a school of higher

education, taking account of learning results, entrance examinations or other criteria set by the

school of higher education; a list of competitive subjects according to study fields and the principles

of composition of a competitive grade, a lowest passing entrance grade and other criteria are, upon

the evaluation by a students’ representation, set by schools of higher education and announced by

them not later than two years prior to the beginning of an appropriate academic year.

Thus, under Paragraph 1 of Article 52 of the Law on Science and Studies, the conditions of

admission to study programmes of the first cycle and integrated study programmes of schools of

higher education, inter alia the majority of the criteria and the weighted value of these criteria for

determining a queue of enrolling persons, are set by schools of higher education themselves. The

aforesaid paragraph refers to the following two main criteria, which must be taken into account

during the admission to study programmes of the first cycle and integrated study programmes:

results of studying and of entrance examinations of the enrolling persons; other criteria, inter alia a

list of competitive subjects according to study fields, the principles of composition of a competitive

grade, and a lowest passing entrance grade may be set by schools of higher education themselves.

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It needs to be noted that, while engaging in mutual cooperation, schools of higher education,

under Paragraph 1 of Article 52 of the Law on Science and Studies, may establish a common

procedure for admission to studies pursuant to study programmes of the first cycle and integrated

study programmes.

It also needs to be noted that, under Paragraph 1 of Article 52 of the Law on Science and

Studies, the conditions of admission to study programmes of the first cycle and integrated study

programmes of schools of higher education, inter alia the criteria that are taken into account during

the admission to these studies, must be known to enrolling persons in advance—not later than two

years prior to the beginning of an appropriate academic year.

3.4. One needs to note the differences between the legal regulation laid down in Paragraph 1

of Article 70 and that of Paragraph 1 of Article 52 of the Law on Science and Studies.

First, Paragraph 1 of Article 52 of the Law on Science and Studies regulates the conditions

of admission to all student places of studies of the first cycle and integrated studies in schools of

higher education, i.e. the conditions of admission to both state-funded and non-state-funded student

places; Paragraph 1 of Article 70 lays down the criteria by taking account of which, in accordance

with the procedure set by the Ministry of Education and Science, one establishes a queue of persons

who have completed a secondary education programme with the best results, which determines the

priority to enrol for state-funded student places pursuant to study programmes of the first cycle and

integrated study programmes and constitutes a mandatory condition of admission to these student

places.

Second, in the law there are differences between the criteria that must be taken into account

when establishing the conditions of admission to all student places of studies of the first cycle and

integrated studies in schools of higher education and the criteria for determining, when admitting to

state-funded student places pursuant to study programmes of the first cycle and integrated study

programmes, a queue of persons who have completed a secondary education programme with the

best results: Paragraph 1 of Article 52 of the Law on Science and Studies provides that, when

establishing the conditions of admission to all student places of studies of the first cycle and

integrated studies in schools of higher education, account is taken of learning results, entrance

examinations and other criteria laid down by a school of higher education, whereas Paragraph 1 of

Article 70 of this law provides that, when admitting to state-funded student places pursuant to study

programmes of the first cycle and integrated study programmes, a queue of persons who have

completed a secondary education programme with the best results is determined by taking into

account the results of matura examinations and studying, other results as well as special

capabilities.

Third, the Law on Science and Studies regulates in a different manner the announcement of

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the conditions of admission to study programmes of the first cycle and integrated study programmes

of schools of higher education and the announcement of the procedure for determining, when

admitting to state-funded student places pursuant to study programmes of the first cycle and

integrated study programmes, a queue of persons who have completed a secondary education

programme with the best results: it has been mentioned that, under Paragraph 1 of Article 52 of the

Law on Science and Studies, the procedure for admission to study programmes of the first cycle and

integrated study programmes of schools of higher education, inter alia the criteria that are taken

into account during the admission to these studies, must be known to enrolling persons in advance

—not later than two years prior to the beginning of an appropriate academic year, whereas

Paragraph 1 of Article 70 of the Law on Science and Studies does not establish any time limit as to

when one must announce the procedure for determining, when admitting to state-funded student

places pursuant to study programmes of the first cycle and integrated study programmes, a queue of

persons who have completed a secondary education programme with the best results.

3.5. While summing up the legal regulation laid down in Paragraph 1 of Article 70 of the

Law on Science and Studies, inter alia in the context of provisions of Paragraph 1 of Article 52 of

this law it needs to be noted that:

– this legal regulation lays down the main criteria that must be taken into account in

determining, when admitting to state-funded student places pursuant to study programmes of the

first cycle and integrated study programmes, a queue of persons who have completed a secondary

education programme with the best results; the Ministry of Education and Science is commissioned

to determine the meaning (weighted value) of these criteria; the said criteria partly differ from those

established in Paragraph 1 of Article 52 of the Law on Science and Studies, which regulates the

admission to all student places of studies of the first cycle and integrated studies in schools of

higher education;

– the said legal regulation creates legal preconditions for the emergence of such a situation

where schools of higher education, while determining, under Paragraph 1 of Article 52 of the Law

on Science and Studies, the conditions of admission to study programmes of the first cycle and

integrated study programmes, inter alia to state-funded student places, will announce in advance

certain criteria of admission to these studies (which may not necessarily coincide with the criteria

specified in Paragraph 1 of Article 70 of the Law on Science and Studies) and the meaning

(weighted value) of these criteria, whereas the Ministry of Education and Science will later on set a

different procedure for determining, when admitting to state-funded student places pursuant to

study programmes of the first cycle and integrated study programmes, a queue of persons who have

completed a secondary education programme with the best results, inter alia a different meaning

(weighted value) of the same criteria;

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– the Ministry of Education and Science has the powers to set not a recommended, but

obligatory to all schools of higher education procedure for determining a queue of persons who

have completed a secondary education programme with the best results, which determines the

admission to state-funded student places pursuant to study programmes of the first cycle and

integrated study programmes; therefore, in those cases where the criteria of admission to study

programmes of the first cycle and integrated study programmes established by a school of higher

education would differ from those established in Paragraph 1 of Article 70 of the Law on Science

and Studies, or the Ministry of Education and Science would establish a different meaning

(weighted value) of the same criteria of the procedure for determining, when admitting to state-

funded student places pursuant to study programmes of the first cycle and integrated study

programmes, a queue of persons who have completed a secondary education programme with the

best results, then, when admitting to state-funded student places, one should follow the criteria laid

down in Paragraph 1 of Article 70 of the Law on Science and Studies and the meaning (weighted

value) of these criteria established by the Ministry of Education and Science;

– the legal regulation in question creates legal preconditions inter alia for the emergence of

such a situation that the persons who have, according to the criteria established by a school of

higher education, enrolled in studies pursuant to study programmes of the first cycle and integrated

study programmes with the best results would not be admitted to state-funded student places of

these studies, as a queue of persons who have completed a secondary education programme with the

best results, when admitting to these student places, would be determined on the basis of different

criteria and a different meaning (weighted value) of these criteria based on the procedure set by the

Ministry of Education and Science;

– as Paragraph 1 of Article 70 of the Law on Science and Studies does not establish any time

limit as to when one must announce the procedure for determining, when admitting to state-funded

student places pursuant to study programmes of the first cycle and integrated study programmes, a

queue of persons who have completed a secondary education programme with the best results, legal

preconditions are created for the emergence of such a situation where the conditions of admission to

the said student places in schools of higher education would be neither known in advance nor clear,

as well as such a situation where the conditions of admission to studies pursuant to study

programmes of the first cycle and integrated study programmes that are established by schools of

higher education and announced in advance (not later than two years prior to the beginning of an

appropriate academic year) would differ from the conditions of admission to such state-funded

studies that are established by the Ministry of Education and Science and announced later;

– by establishing, not later than two years prior to the beginning of an appropriate academic

year, the criteria of admission to studies pursuant to study programmes of the first cycle and

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integrated study programmes, schools of higher education cannot envisage as to how these criteria

will be combined with the criteria for determining a queue of persons who have completed a

secondary education programme with the best results and the meaning of these criteria (weighted

value) established by the Ministry of Education and Science for an appropriate academic year;

therefore, by establishing in advance the criteria of admission to studies pursuant to study

programmes of the first cycle and integrated study programmes, schools of higher education cannot

reasonably expect that they will be able to claim the number of student places of state-funded

studies pursuant to study programmes of the first cycle and integrated study programmes that meets

their capacity.

3.6. Thus, the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science

and Studies creates legal preconditions for the Ministry of Education and Science to establish such

conditions of enrolment for state-funded student places pursuant to study programmes of the first

cycle and integrated study programmes in schools of higher education that are neither known in

advance nor clear, also such conditions that would differ from the conditions of admission to studies

pursuant to study programmes of the first cycle and integrated study programmes that are

established by schools of higher education and announced in advance (within the time period set in

Paragraph 1 of Article 52 of the Law on Science and Studies—not later than two years prior to the

beginning of an appropriate academic year); thus, legal preconditions are also created for the

emergence of such situations where the legal regulation laid down by the Ministry of Education and

Science regarding the priority to state-funded student places pursuant to study programmes of the

first cycle and integrated study programmes and the legal regulation of admission to studies laid

down by schools of higher education are not mutually compatible, even though the subject matter of

their regulation, insofar as it is related to the admission to state-funded student places pursuant to

study programmes of the first cycle and integrated study programmes, coincides.

4. The petitioner, while substantiating its doubts as regards the compliance of Paragraph 1 of

Article 70 of the Law on Science and Studies with the provision “Citizens who are good at their

studies shall be guaranteed education at state schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution, indicates that such legal regulation when a law does

not provide for any essential conditions for implementing the right to education free of charge,

which is guaranteed in the Constitution, inter alia any criteria enabling to establish which persons

are to be regarded as being good at their studies, is in conflict with the Constitution.

While substantiating its doubts as regards the compliance of Paragraph 1 of Article 70 of the

Law on Science and Studies with Paragraph 3 of Article 40 of the Constitution, the petitioner notes

that, under the disputed legal regulation, such a situation is possible where, after a school of higher

education implements the right, guaranteed by the Constitution, to set independently the procedure

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for the admission to studies of the first cycle and integrated studies, the persons who have enrolled

according to that procedure with the best results may be not admitted to the student places pursuant

to study programmes of the first cycle and integrated study programmes that are financed by funds

from the state budget if the criteria of admission to the said studies established by the corresponding

school of higher education differ from the principles and criteria for determining a queue of persons

who have completed a secondary education programme with the best results. Thus, such legal

regulation creates preconditions to maintain that state schools of higher education, while seeking to

receive state funding for the preparation of specialists of certain areas (fields), must establish such

criteria of admission to studies and the meaning of these criteria that would virtually not differ from

the criteria for determining a queue of persons who have completed a secondary education

programme with the best results and the meaning of these criteria that are established by the

Ministry of Education and Science.

5. It has been mentioned that the petitioner is disputing the compliance of Paragraph 1 of

Article 70 of the Law on Science and Studies with the provision “Citizens who are good at their

studies shall be guaranteed education at state schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution.

5.1. In this context it needs to be noted that the constitutional provision that higher education

is available to everyone according to his abilities means that both state schools of higher education

and the non-state schools of higher education established according to the procedure prescribed by

law, as well as the whole system of establishments of higher education, must be accessible to every

person; this provision also means that those who seek higher education may not be subjected to the

requirements that are based on the criteria other than their abilities (Constitutional Court ruling of

14 January 2002).

However, while construing the said provision, one may not deny another constitutional

provision whereby citizens who are good at their studies are guaranteed education at state schools

of higher education free of charge. In its ruling of 14 January 2002 the Constitutional Court noted

that there has to be a balance between the legitimate interests of a person and the needs of both the

society and the state; the financial possibilities of the state (including possibilities to fund higher

education) are not and cannot be unlimited; the constitutional provisions that higher education is

available to everyone according to their individual abilities may not be construed as imposing a

duty on the state to ensure funding of any striving for higher education of anyone capable of

seeking it, without proper consideration of the needs and possibilities of society and the state.

As it has been held by the Constitutional Court more than once, the possibilities of the state

to finance higher education are and must be related to the interest of society and the state—their

need—to have specialists of various areas who have acquired higher education (Constitutional

140

Court ruling of 14 January 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 these specialists; the state obligations, which are announced in advance, to

finance the preparation of a certain number of specialists are in conformity with the need of society

and the state to have specialists of certain areas (fields) with higher education, as well as with the

capabilities of society and the state to finance their preparation (Constitutional Court ruling of 20

March 2008).

5.2. It needs to be noted that the establishment of the criteria enabling to determine which

persons are regarded as being good at their studies and which, consequently, as prescribed by the

Constitution, have the right that their education at state schools of higher education be financed by

the state, is directly related to the guarantee of the implementation of the right of a human being

(i.e. a citizen who is good at his studies at a state school of higher education) to seek to acquire

higher education at a state school of higher education free of charge. In this context it needs to be

mentioned that in its rulings of 13 December 2004 and 5 May 2007, the Constitutional Court held

that “according to the Constitution, the legal regulation related to defining the content of human

rights and freedoms or consolidating the guarantees of their implementation may be established

only by means of a law”. The said inter alia means that the criteria enabling to establish which

persons are regarded as being good at their studies, and which, consequently, as prescribed by the

Constitution, have the right that their education at state schools of higher education be financed by

the state, are to be established by law (Constitutional Court rulings of 14 January 2002, 7 June 2007

and 20 March 2008).

5.3. It also needs to be noted that the provision “Citizens who are good at their studies shall

be guaranteed education at state schools of higher education free of charge” of Paragraph 3 of

Article 41 of the Constitution is to be construed inter alia in the context of the constitutional

principle of a state under the rule of law, as this principle, as mentioned, is a universal principle

upon which the entire legal system of Lithuania and the Constitution itself are based.

One of the essential elements of the principle of a state under the rule of law, which is

consolidated in the Constitution, is legal clarity, which implies certain obligatory requirements for a

legal regulation: it must be clear and harmonious, legal norms must be formulated precisely and

they may not contain any ambiguities (Constitutional Court rulings of 30 May 2003, 26 January

2004, 24 December 2008 and 22 June 2009, as well as decision of 20 April 2010); along with the

other requirements, the principle of a state under the rule of law, which is entrenched in the

Constitution, also implies a duty of the state to guarantee the certainty and stability of legal

regulation as well as the protection of legitimate expectations (Constitutional Court ruling of 24

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January 2003).

The Constitutional Court has also held more than once that the constitutional principle of a

state under the rule of law implies the requirements for the legislator to establish such legal

regulation that would inter alia provide subjects of legal relations with an opportunity to be aware

of what is required of them by law, so that they could orientate their behaviour according to the

requirements of law, also that legal norms would be established in advance, the legal regulation laid

down in laws and other legal acts would be clear, understandable and consistent, and legal acts

would contain no provisions simultaneously regulating the same public relations in a different

manner.

5.4. In the context of the constitutional justice case at issue it needs to be noted that in the

context of the constitutional principle of a state under the rule of law the provision “Citizens who

are good at their studies shall be guaranteed education at state schools of higher education free of

charge” of Paragraph 3 of Article 41 of the Constitution inter alia implies the requirements for the

legislator to lay down such legal regulation that the conditions of enrolment for state-funded student

places in schools of higher education, inter alia the criteria of admission to studies and the meaning

of these criteria, would be clear, consistent and announced in advance, in order that persons seeking

higher education free of charge could be aware in advance of what will be required of them, so that

they would be able to efficiently implement their constitutional right in question.

6. In this Constitutional Court ruling it has been noted more than once that in the

jurisprudence of the Constitutional Court it has been held that, traditionally, the autonomy of a

school of higher education is conceived as the right of a school of higher education to independently

determine and establish in the regulations or statute its organisational and governance structure, its

relations with other partners, the procedure for research and studies, study programmes, the

procedure for admission of students, and to resolve other related questions, as well as that there are

certain spheres of activities that are independent of the control of the executive power

(Constitutional Court rulings of 27 June 1994, 14 January 2002, 5 February 2002, 20 February 2008

and 20 March 2008).

6.1. It has been mentioned that the interests of schools of higher education and those of

society must be coordinated; autonomy of schools of higher education must be combined with their

duty to observe the Constitution and laws, as well as with their responsibility and accountability to

society; autonomy of schools of higher education does not mean that the activities of such schools

may not be subject to state control; quite to the contrary, these activities, since they are related to

inter alia the implementation of constitutional human rights and freedoms, as well as to the use of

funds of the state budget, must be subject to regulation and supervision.

It has also been mentioned that Paragraph 4 of Article 40 of the Constitution consolidates

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not only the right, but also the duty of the state to supervise the activities of establishments of

teaching and education; the supervision of the activities of establishments of teaching and education

also involves the supervision and control of the observance of the Constitution and laws.

6.2. In the context of the constitutional justice case at issue it needs to be noted that the right

of schools of higher education to set the procedure for admission of students, inter alia the

conditions of their admission (the criteria and the meaning (weighted value) of these criteria), is one

of the essential elements of autonomy of schools of higher education. The state, inter alia the

institutions of the executive power thereof, in regulating and supervising the implementation of the

said right, may exercise no essential influence over the independent implementation of that right

provided that the constitutional human rights and freedoms, inter alia the constitutional rights of

citizens, who are good at their studies at state schools of higher education, to education free of

charge, are not violated.

6.3. In the constitutional justice case at issue it has been mentioned that the constitutional

guarantee of autonomy of schools of higher education implies that the legislator is obliged to

provide for a special legal regulation on the basis of which a local legal regulation—laid down by

schools of higher education themselves—must constitute the greatest part of the legal regulation of

these relations; therefore, the general legal regulation laid down by laws in respect of all schools of

higher education should not be too detailed and should not limit the right of schools of higher

education, stemming from the principle of their autonomy, to regulate their activities by means of

local legal acts.

6.4. It has been mentioned that the constitutional principle of a state under the rule of law

implies that a legal regulation is subject to certain obligatory requirements, inter alia that legal acts

may contain no provisions simultaneously regulating the same public relations in a different

manner. The said inter alia implies a requirement that the implementation of the constitutional right

to education free of charge in state schools of higher education, inter alia the conditions of

admission to state-funded student places in schools of higher education, be not simultaneously

regulated in a different manner.

6.5. Thus, in the context of the constitutional justice case at issue it needs to be noted that,

while taking account of the imperative of coordination of interests of schools of higher education

and those of society, in the context of the constitutional principle of a state under the rule of law the

guarantee of autonomy of schools of higher education entrenched in Paragraph 3 of Article 40 of

the Constitution implies inter alia the fact that the legal regulation established by the state must

create preconditions to combine the legal regulation laid down by state institutions supervising the

execution of the policy on higher education and the legal regulation laid down by schools of higher

education regarding the conditions of admission of persons to state-funded student places in schools

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of higher education.

7. It has been mentioned that the legal regulation laid down in Paragraph 1 of Article 70 of

the Law on Science and Studies creates legal preconditions for the Ministry of Education and

Science to establish such conditions of enrolment for state-funded student places pursuant to study

programmes of the first cycle and integrated study programmes in schools of higher education:

– that are neither known in advance nor clear; it needs to be noted that inter alia no time

limit is set for the preannouncement of these conditions;

– that would differ from the conditions of admission to studies pursuant to study

programmes of the first cycle and integrated study programmes that are established by schools of

higher education and announced in advance (within the time limit set in Paragraph 1 of Article 52

of the Law on Science and Studies—not later than two years prior to the beginning of an

appropriate academic year); thus, legal preconditions are also created for the emergence of such a

situation that the legal regulation laid down by the Ministry of Education and Science regarding the

priority to state-funded student places pursuant to study programmes of the first cycle and

integrated study programmes and the legal regulation of admission to studies laid down by schools

of higher education are not mutually compatible, even though the subject matter of their regulation,

insofar as it is related to the admission to state-funded student places pursuant to study programmes

of the first cycle and integrated study programmes, coincides.

It has also been mentioned that in the context of the constitutional principle of a state under

the rule of law the provision “Citizens who are good at their studies shall be guaranteed education at

state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution

inter alia implies the requirements for the legislator to lay down such legal regulation under which

the conditions of enrolment for state-funded student places in schools of higher education, inter alia

the criteria of admission to studies and the meaning of these criteria, would be clear, consistent and

announced in advance, in order that persons seeking higher education free of charge could be aware

in advance of what will be required of them, so that they would be able to efficiently implement

their constitutional right in question.

It has also been mentioned that, while taking into account the imperative of coordination of

interests of schools of higher education and those of society, in the context of the constitutional

principle of a state under the rule of law the guarantee of autonomy of schools of higher education,

entrenched in Paragraph 3 of Article 40 of the Constitution, implies the fact that the legal regulation

established by the state must create preconditions to combine the legal regulation laid down by state

institutions supervising the execution of the policy on higher education and the legal regulation laid

down by schools of higher education regarding the conditions of admission of persons to state-

funded student places in schools of higher education.

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Thus, the legal regulation laid down in Paragraph 1 of Article 70 of the Law on Science and

Studies, which creates legal preconditions for the Ministry of Education and Science to establish

such conditions of enrolment for state-funded student places pursuant to study programmes of the

first cycle and integrated study programmes in schools of higher education that would be neither

known in advance nor clear, and which would differ from the conditions of admission to studies

pursuant to study programmes of the first cycle and integrated study programmes that are

established by schools of higher education and announced in advance, is not in line with the

requirements stemming from Paragraph 3 of Article 40 and the provision “Citizens who are good at

their studies shall be guaranteed education at state schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution and from the constitutional principle of a state under

the rule of law.

8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 of

Article 70 of the Law on Science and Studies, to the extent that this paragraph does not establish,

for the Ministry of Education and Science, any time limit for the preannouncement of the procedure

for determining a queue of persons who have completed a secondary education programme with the

best results, which would be sufficient for the efficient implementation of the constitutional right to

education at state schools of higher education free of charge, also to the extent that this paragraph

does not establish a duty for the Ministry of Education and Science and schools of higher education

to coordinate the conditions of admission to state-funded student places pursuant to study

programmes of the first cycle and integrated study programmes, is in conflict with Paragraph 3 of

Article 40 and the provision “Citizens who are good at their studies shall be guaranteed education at

state schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution

and the constitutional principle of a state under the rule of law.

XIV

On the compliance of Paragraphs 2, 5, 7, 11 of Article 70 and Paragraph 4 of Article 76

of the Law on Science and Studies with Paragraph 3 of Article 41 of the Constitution and the

constitutional principle of a state under the rule of law.

1. The group of Members of the Seimas, a petitioner, has doubted whether Paragraphs 2, 5,

7, 11 of Article 70 of the Law on Science and Studies are not in conflict with Paragraph 3 of Article

41 of the Constitution and the constitutional principle of a state under the rule of law.

2. Article 70 “Payment of study costs in student places funded by the State” of the Law on

Science and Studies provides:

“1. The priority to state-funded student places pursuant to study programmes of the first

cycle and integrated study programmes shall belong to enrolling persons according to their

capabilities which are determined by taking into account the results of matura examinations,

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studying, other results as well as special capabilities. A queue of persons who have completed a

secondary education programme with the best results shall be determined by the Ministry of

Education and Science.

2. State-funded student places according to study programmes of the first cycle and

integrated study programmes shall be allocated to schools of higher education in accordance with

the choice between schools of higher education made by enrolling persons who have completed the

secondary education programme with the best results, without exceeding state funding established

for each study area. Distribution of funding for study fields shall be established by the Government,

taking into account the needs of the national economic, social and cultural development and

financial possibilities of the State.

3. A preliminary number of state-funded student places of the first cycle and integrated

studies in each study area or a set of study fields shall be announced by the Ministry of Education

and Science not later than by 16 February of each year.

4. Only those persons whose study results are not lower than the minimum rates fixed by the

Ministry of Education and Science may put in for state-funded student places of the first cycle and

integrated study programmes.

5. The final number of state-funded student places of the first cycle and integrated studies to

which students are admitted as well as their distribution among schools of higher education and

study areas shall be approved by the Ministry of Education and Science after the results of

admission to schools of higher education are made known and study agreements are signed.

6. The number, approved by the Ministry of Education and Science, of student places of a

permanent-form in a school of higher education, when the studies by students admitted to the said

student places are covered with the state budget funds pursuant to the provisions of this Article,

shall remain during the whole set period of studies, and the number of student places of an

extended-form in a school of higher education, when the studies by students admitted to the said

student places are covered with the state budget funds, shall remain during a period which lasts one-

and-a-half time longer than a study period established for the appropriate studies of a permanent

form, with the exception of the cases provided for in Paragraph 8 of this Article. In the cases when a

person is excluded from a school of higher education, loses the state funding or terminates studies

and when a state-funded student place is not occupied in accordance with the procedure laid down

in Paragraph 14 of this Article, state funding for a student place shall remain for a school of higher

education until the end of a budgetary year.

7. A person whose studies of the first cycle or integrated studies are funded by the State

shall, after the first two years of studies and in the case of extended studies—after the completion of

half of the study programme, lose state funding for studies if the mean of the results of his studies

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during an appropriate period is more than 20 percentage points lower than the mean of the results of

studies of an appropriate study programme and form by students of the same year of studies of the

school of higher education during an appropriate period. A person who loses state funding must pay

for his studies the study cost fixed by a school of higher education and his state-funded student

place shall be occupied by a person whose study results in a student place which is not funded by

the State are the best.

8. A person whose studies are funded by the State in accordance with the procedure laid

down by the Government shall have the right to change a study programme within the same study

area, without losing the remaining part of state funding of the studies, where such part does not

exceed the standard study cost of that study programme.

9. The number of state-funded student places of the second cycle, doctoral studies and

studies which do not award a degree shall be fixed each year prior to 11 March according to

concrete study fields by the Government, taking account of national economic, social and cultural

development needs as well as financial possibilities of the State. Student places of studies of the

second cycle and studies which do not award a degree shall be distributed among universities by the

Ministry of Education and Science according to the results of their scientific (artistic) activities

and/or the choice by those enrolling into study programmes of the first cycle and integrated study

programmes according to a study or scientific field. Doctoral student places shall be distributed for

institutions of science and studies by the Ministry of Education and Science in accordance with the

results of scientific (artistic) activities and doctoral studies.

10. The state shall fund the study cost of persons studying in state-funded student places in

accordance with the procedure laid down in Article 76 of this Law.

11. State budget funds to cover the study cost in state-funded student places shall be

allocated in accordance with the procedure laid down by the Government.

12. In the cases and pursuant to the procedure laid down by the Government, persons who

studied in state-funded student places, who have been excluded from a school of higher education

or have terminated their studies, must return into the state budget the funds (or part thereof)

intended to cover the study cost in state-funded student places.

13. The Ministry of Education and Science shall lay down the procedure for competing of

persons, who have acquired education in the institutions of foreign countries, for state-funded

student places.

14. After having excluded from a school of higher education a person who studied in a state-

funded student place or after he himself terminates studies (with the exception of the cases provided

for in Paragraph 8 of this Article), a person who studies in the same study programme of the same

year of studies in the student place which is not funded by the State may be transferred to the said

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state-funded student place in the manner prescribed by the school of higher education (with the

exception of the person referred to in Article 72 of this Law).”

3. While substantiating its doubts regarding all disputed provisions of Article 70 of the Law

on Science and Studies, the petitioner has referred to the provisions of the official constitutional

doctrine, which were formulated by the Constitutional Court when it was construing the provision

of Paragraph 3 of Article 41 of the Constitution which guarantees free-of-charge education in state

schools of higher education to the citizens who are good at their studies. Thus, from the arguments

of the petitioner it is clear that it is disputing the compliance of Paragraphs 2, 5, 7, 11 of Article 70

of the Law on Science and Studies with not entire Paragraph 3 of Article 41 of the Constitution but

only with the provision “Citizens who are good at their studies shall be guaranteed education at

State schools of higher education free of charge” of the said paragraph.

4. From the arguments of the petitioner it is also clear that they are essentially the same as

regards the disputing the interrelated provisions of Paragraphs 2 and 5 of Article 70 of the Law on

Science and Studies. While taking account of this fact, the Constitutional Court will first of all

investigate whether the provisions of Paragraphs 2 and 5 of Article 70 of the Law on Science and

Studies are not in conflict with the provision “Citizens who are good at their studies shall be

guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article

41 of the Constitution and the constitutional principle of a state under the rule of law.

4.1. It has been mentioned that Paragraph 2 of Article 70 of the Law on Science and Studies

provides:

“State-funded student places according to study programmes of the first cycle and integrated

study programmes shall be allocated to schools of higher education in accordance with the choice

between schools of higher education made by enrolling persons who have completed the secondary

education programme with the best results, without exceeding state funding established for each

study area. Distribution of funding for study fields shall be established by the Government, taking

into account the needs of the national economic, social and cultural development and financial

possibilities of the State.”

It has also been mentioned that Paragraph 5 of Article 70 of the Law on Science and Studies

provides:

“The final number of state-funded student places of the first cycle and integrated studies to

which students are admitted as well as their distribution among schools of higher education and

study areas shall be approved by the Ministry of Education and Science after the results of

admission to schools of higher education are made known and study agreements are signed.”

4.2. Thus, Paragraph 2 of Article 70 of the Law on Science and Studies has established two

general criteria for distribution of state-funded student places according to study programmes of the

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first cycle and integrated study programmes among schools of higher education. The first criterion

in the distribution of these places is the choice between schools of higher education made by

enrolling persons who have completed the secondary education programme with the best results,

whereas the second criterion is the limits of state funding provided for each study field (under

Paragraph 24 of Article 4 of the Law on Science and Studies, “study areas” are humanitarian,

social, physical, biomedical, technology sciences and arts). No other criteria for distribution of

state-funded student places according to study programmes of the first cycle and integrated study

programmes among schools of higher education have been established either in Paragraph 2 of

Article 70 of the Law on Science and Studies or in other provisions of this law.

The disputed Paragraph 2 of Article 70 of the Law on Science and Studies also provides that

distribution of state funding for study fields, thus, also the limits of state funding provided for every

study field, are established by the Government, taking into account the needs of the national

economic, social and cultural development and financial possibilities of the state.

Thus, under Paragraph 2 of Article 70 of the Law on Science and Studies, state-funded

student places according to study programmes of the first cycle and integrated study programmes

among schools of higher education are distributed among schools of higher education in an equal

manner, i.e. under the same criteria (the choice between schools of higher education made by

enrolling persons who have completed the secondary education programme with the best results and

the state funding established for each study area) state-funded student places may be distributed

among both state and non-state schools of higher education. Paragraph 2 of Article 70 of the Law

on Science and Studies does not establish that in the course of distribution of state-funded student

places the state schools of higher education chosen by persons who have completed the secondary

education programme with the best results will have the priority.

4.3. Paragraph 2 of Article 70 of the Law on Science and Studies is related to Paragraph 5 of

the same article; the latter paragraph regulates the establishment of the final number of state-funded

student places of the first cycle and integrated studies to which students are admitted as well as their

distribution among schools of higher education and study areas.

4.3.1. Paragraph 5 of Article 70 of the Law on Science and Studies is also to be construed

while taking account of Paragraph 3 of the same article; the latter paragraph regulates the

establishment of a preliminary number of state-funded student places of the first cycle and

integrated studies in each study area or a set of study fields: this number is announced by the

Ministry of Education and Science not later than by 16 February of each year. A preliminary

number of state-funded student places of the first cycle and integrated studies in each study area or

a set of study fields is established prior to students’ acceptance to such studies, i.e. when the choice

between schools of higher education made by enrolling persons is still unknown. While establishing

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a preliminary number of state-funded student places of the first cycle and integrated studies in each

study area or a set of study fields, one takes account of the aforesaid second criterion, established in

Paragraph 2 of Article 70 of the Law on Science and Studies, for distribution of state-funded

student places according to study programmes of the first cycle and integrated study programmes

among schools of higher education—state funding established by established by the Government,

taking into account the needs of the national economic, social and cultural development and

financial possibilities of the state.

Thus, Paragraph 3 of Article 70 of the Law on Science and Studies essentially regulates the

requisition by state for schools of higher education to prepare specialists of corresponding areas

(fields): while taking into account the needs of the national economic, social and cultural

development and financial possibilities of the state, a preliminary number of state-funded student

places of the first cycle and integrated studies in each study area or a set of study fields is

established. It needs to be noted that a preliminary number of state-funded student places of the first

cycle and integrated studies in schools of higher education is a general one for all schools of higher

education, i.e. preliminary numbers of state-funded student places of the first cycle and integrated

studies are not established separately for state and non-state schools of higher education.

4.3.2. Under disputed Paragraph 5 of Article 70 of the Law on Higher Education, it is the

Ministry of Education and Science that is empowered to establish the final number of state-funded

student places of the first cycle and integrated studies to which students are admitted as well as their

distribution among schools of higher education and study areas. The said ministry does so after the

results of admission to schools of higher education are made known and study agreements are

signed.

Thus, the final number of state-funded student places of the first cycle and integrated studies

to which students are admitted as well as their distribution among schools of higher education and

study areas is established by specifying and segmenting among schools of higher education a

preliminary number of state-funded student places of the first cycle and integrated studies in each

study area or a set of study fields; the preliminary number is established under Paragraph 3 of

Article 70 of the Law on Science and Studies. It is done while taking account of the said first

criterion, established in Paragraph 2 of Article 70 of the Law on Science and Studies, for

distribution of state-funded student places according to study programmes of the first cycle and

integrated study programmes among schools of higher education—the choice between schools of

higher education made by enrolling persons who have completed the secondary education

programme with the best results, which becomes known after the results of admission to schools of

higher education are made known and study agreements are signed.

It needs to be noted that, under Paragraph 5 of Article 70 of the Law on Higher Education,

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while establishing the final number of state-funded student places of the first cycle and integrated

studies to which students are admitted as well as their distribution among schools of higher

education and study areas, one separately does not take account of the fact whether enrolling

persons who have completed the secondary education programme with the best results have chosen

state or non-state schools of higher education.

4.4. Doubting the constitutionality of Paragraphs 2 and 5 of Article 70 of the Law on

Science and Studies, the petitioner maintains that, under the jurisprudence of the Constitutional

Court, free-of-charge education is guaranteed only to those citizens that are good at their studies,

who are studying by requisition of the state in order to satisfy the state established demand for

specialists (whose number is announced in advance) of corresponding areas (fields); the state must

establish the demand for specialists of corresponding areas (fields) and submit a corresponding

requisition to state schools of higher education, whereas, upon assessing the needs of society and

the state and the financial capabilities of the state, in cases when specialists of certain areas (fields)

cannot be prepared in state schools of higher education due to objective circumstances, the state

must submit such a requisition to non-state schools of higher education.

Thus, from the arguments of the petitioner it is clear that it is disputing something

amounting to legislative omission: the fact that Paragraphs 2 and 5 (disputed by the petitioner) of

Article 70 of the Law on Science and Studies does not establish the rule (mentioned by the

petitioner) of the priority for state schools of higher education made in the requisition by the state

when the distribution of state-funded student places of the first cycle studies and integrated studies

is regulated, i.e. the fact that non-state schools of higher education may receive such state-funded

student places only in cases when specialists of certain areas (fields) cannot be prepared in state

schools of higher education due to objective circumstances, even though such a rule, under the

Constitution, should have been established by the legislator namely in the provisions disputed by

the petitioner.

4.5. In the constitutional justice case at issue it needs to be noted that the Constitutional

Court has held that a legal gap, inter alia legislative omission, always means that the legal

regulation of corresponding social relations is established neither explicitly, nor implicitly, neither

in a concrete legal act (part thereof), nor any other legal acts at all, even though there exists a need

for the legal regulation of these social relations, while the said legal regulation, in case of legislative

omission, must be established precisely in that legal act (precisely in that part thereof), since this is

required by a certain legal act of higher power, inter alia the Constitution itself (Constitutional

Court decisions of 8 August 2006, 5 November 2008, rulings of 2 March 2009, 22 June 2009, 11

December 2009, 29 September 2010, 29 November 2010 and 7 July 2011).

4.6. It has been mentioned that the petitioner is disputing the compliance of Paragraphs 2

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and 5 of Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who

are good at their studies shall be guaranteed education at State schools of higher education free of

charge” of Paragraph 3 of Article 41 of the Constitution.

4.6.1. In the constitutional justice case at issue it has also been mentioned that the legal

position of the Constitutional Court (ratio decidendi) in corresponding constitutional justice cases

has the significance of the precedent; the Constitutional Court is bound by the precedents that it

itself has created in previous constitutional justice cases and by the official constitutional doctrine

that it itself has formed, which substantiates those precedents.

4.6.2. It has been mentioned that, while construing the constitutional provision that higher

education shall be accessible to everyone according to his individual abilities, one may not deny

another constitutional provision that citizens who are good at their studies shall be guaranteed

education at state schools of higher education free of charge. In its ruling of 14 January 2002 the

Constitutional Court noted that there has to be a balance between the legitimate interests of a person

and the needs of both the society and the state; the financial possibilities of the state (including

possibilities to fund higher education) are not and cannot be unlimited; the constitutional provisions

that higher education shall be available to everyone according to their individual abilities cannot be

construed as imposing a duty on the state to ensure 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.

4.6.3. It needs to be noted that the provision “Citizens who are good at their studies shall be

guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article

41 of the Constitution implies the right of citizens who are good at their studies namely in state

schools of higher education to receive higher education free of charge and it implies the

corresponding duty of the state to provide for the funds in the state budget necessary to guarantee

free-of-charge education for citizens who are good at their studies namely at state schools of higher

education.

In addition, 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, 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), but only to those

who are prepared in order to satisfy the state established demand for specialists of corresponding

areas (fields); it is namely for financing of their studies that one has to provide the necessary funds

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in the state budget (Constitutional Court ruling of 20 March 2008).

On the other hand, the Constitution does not contain a prohibition for the state to undertake

higher financial obligations, in accordance with its possibilities, to citizens learning at schools of

higher education (Constitutional Court ruling of 14 January 2002).

4.6.4. It also needs to be noted that the possibility for the state to undertake higher financial

obligations than those emerging from the provision “Citizens who are good at their studies shall be

guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article

41 of the Constitution with regard to citizens learning at schools of higher education inter alia

means the right of the state to guarantee free-of-charge education in some cases to citizens learning

in non-state schools of higher education, i.e. to those citizens who, under Paragraph 3 of Article 41

of the Constitution, do not enjoy the right to free-of-charge higher education and whose studies do

not have to be financed by the state.

In its decision of 18 December 2009 the Constitutional Court held that it is impossible to

construe the Constitution, inter alia Paragraph 3 of Article 41 thereof, as meaning that, purportedly,

subsequent to a requisition of the state, specialists of corresponding areas (fields) cannot be

prepared in non-state schools of higher education by means of funds of the state budget. Also such

situations are possible, where specialists of corresponding areas (fields) cannot be prepared in state

schools of higher education due to objective circumstances (for instance, situations are possible,

when state schools of higher education do not possess special training facilities, etc., in order to

prepare the specialists of certain areas (fields) which are necessary for the state). Alongside, it needs

to be noted that in such cases the state requisition submitted to a non-state school of higher

education for preparation of specialists of certain areas (fields) by funds from the state budget must

be grounded on a balanced assessment of the needs of society and of the state and that of financial

capabilities of the state and it may not be in conflict with inter alia the constitutional imperative of

social harmony. In such cases the state, while submitting the requisition to non-state schools of

higher education, must guarantee that the expenses of learning (studies) of such specialists will be

covered by state funds, in cases their learning will meet the criteria of good learning established by

law.

Thus, funds from the state budget must be allocated to state schools of higher education,

inter alia the funds necessary in order that the free-of-charge education would be guaranteed to the

citizens who are learning at state schools of higher education, who are prepared in order to meet the

demand of specialists of corresponding areas (fields), which is established by the state, and whose

learning complies with the criteria of good learning established by the law; upon assessing the

needs of society and the state and the financial capabilities of the state, in cases when specialists of

certain areas (fields) cannot be prepared in state schools of higher education due to objective

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circumstances, they may be prepared also in non-state schools of higher education upon requisition

of the state and from funds of the state budget; in such a case the state must guarantee that the

expenses of learning (studies) of such specialists will be covered by state funds, in cases the

learning of the said individuals will meet the criteria of good learning established by law

(Constitutional Court decision of 18 December 2009).

Consequently, whatever model of higher education funding is chosen, the legislator must

heed the requirement, emerging from the provision “Citizens who are good at their studies shall be

guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article

41 of the Constitution, that upon assessing the needs of society and the state and the financial

capabilities of the state, the state must establish the demand for specialists of corresponding areas

(fields) and submit a requisition, first of all, to state schools of higher education, to prepare such

specialists, and only in cases when specialists of certain areas (fields) cannot be prepared in state

schools of higher education due to objective circumstances, such a requisition may be submitted to

non-state schools of higher education as well.

4.6.5. In the context of the constitutional justice case at issue it also needs to be mentioned

that in its ruling of 20 March 2008 the Constitutional Court held:

– 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 of

specialists of corresponding areas (fields), may choose and establish in laws various models of

financing of higher education; while doing so, the legislator is bound by the constitutional

obligations of the state, as well as financial capabilities of the state which, as mentioned, are not

limitless; the law may not establish any such model of financing of 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 a

model; the establishment of such a 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;

– 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 to prepare a

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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;

– 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.; under the Constitution, the rights enjoyed by schools of higher education may be

differentiated (by heeding the Constitution) inter alia according to the status of these schools of

higher education (whether they are universities or not), the level of higher education provided by

them to the persons who are studying therein, the programme of studies conducted by them, the

scientific potential thereof etc.; thus, when account is taken of all this, 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.

4.7. It has been mentioned that Paragraph 2 (disputed by the petitioner) of Article 70 of the

Law on Science and Studies has established two general criteria for distribution of state-funded

student places according to study programmes of the first cycle and integrated study programmes

among schools of higher education: the choice between schools of higher education made by

enrolling persons who have completed the secondary education programme with the best results and

the limits of state funding provided for each study field; Paragraph 2 of Article 70 of the Law on

Science and Studies does not establish that in the course of distribution of state-funded student

places the state schools of higher education chosen by persons who have completed the secondary

education programme with the best results will have the priority. Thus, Paragraph 2 of Article 70 of

the Law on Science and Studies does not establish, either, that state-funded student places chosen

by persons who have completed the secondary education programme with the best results may be

received by non-state schools of higher education only in cases when specialists of certain areas

(fields) cannot be prepared in state schools of higher education due to objective circumstances. No

other criteria for distribution of state-funded student places according to study programmes of the

first cycle and integrated study programmes among schools of higher education have been

established either in Paragraph 2 of Article 70 of the Law on Science and Studies or in other

provisions of this law.

It has been mentioned that whatever model of higher education funding is chosen, the

legislator must heed the requirement, emerging from the provision “Citizens who are good at their

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studies shall be guaranteed education at State schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution, that upon assessing the needs of society and the state

and the financial capabilities of the state, the state must establish the demand for specialists of

corresponding areas (fields) and submit a requisition, first of all, to state schools of higher

education, to prepare such specialists, and only in cases when specialists of certain areas (fields)

cannot be prepared in state schools of higher education due to objective circumstances, such a

requisition may be submitted to non-state schools of higher education as well.

Thus, the legal regulation whereby Paragraph 2 of Article 70 of the Law on Science and

Studies does not establish that, in the course of distribution, among schools of higher education, of

state-funded student places in the study programmes of the first cycle and integrated studies, one

must take account of the capabilities of state schools of higher education to satisfy the state

established demand for specialists of corresponding areas (fields) and that it does not establish that

state-funded student places chosen by persons who have completed the secondary education

programme with the best results may be received by non-state schools of higher education only in

cases when specialists of certain areas (fields) cannot be prepared in state schools of higher

education due to objective circumstances, is not in line with the requirement, emerging from the

provision “Citizens who are good at their studies shall be guaranteed education at State schools of

higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, that upon

assessing the needs of society and the state and the financial capabilities of the state, the state must

establish the demand for specialists of corresponding areas (fields) and submit a requisition, first of

all, to state schools of higher education, to prepare such specialists, and only in cases when

specialists of certain areas (fields) cannot be prepared in state schools of higher education due to

objective circumstances, such a requisition may be submitted to non-state schools of higher

education as well.

4.8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2

of Article 70 of the Law on Science and Studies, to the extent that it does not establish that, in the

course of distribution, among schools of higher education, of state-funded student places in the

study programmes of the first cycle and integrated studies, one must take account of the capabilities

of state schools of higher education to satisfy the state established demand for specialists of

corresponding areas (fields) and that it does not establish that state-funded student places chosen by

persons who have completed the secondary education programme with the best results may be

received by non-state schools of higher education only in cases when specialists of certain areas

(fields) cannot be prepared in state schools of higher education due to objective circumstances, is in

conflict with the provision “Citizens who are good at their studies shall be guaranteed education at

State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution

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and the constitutional principle of a state under the rule of law.

4.9. It has been mentioned that from the arguments of the petitioner it is clear that it is

disputing something that inter alia in Paragraph 5 of Article 70 of the Law on Science and Studies

would amount to legislative omission, i.e. the fact that Paragraph 5 (disputed by the petitioner) of

Article 70 of the Law on Science and Studies does not establish the rule of the priority for state

schools of higher education made in the requisition by the state when the final distribution, among

schools of higher education, of state-funded student places of the first cycle studies and integrated

studies is regulated.

4.9.1. It has been mentioned that, under Paragraph 5 of Article 70 of the Law on Higher

Education, while establishing the final number of state-funded student places of the first cycle and

integrated studies to which students are admitted as well as their distribution among schools of

higher education and study areas, one separately does not take account of the fact whether enrolling

persons who have completed the secondary education programme with the best results have chosen

state or non-state schools of higher education; thus, under such legal regulation, no priority is given

to the state schools of higher education chosen by persons who have completed the secondary

education programme with the best results.

It has also been mentioned that the legislator must heed the requirement, emerging from the

provision “Citizens who are good at their studies shall be guaranteed education at State schools of

higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, that upon

assessing the needs of society and the state and the financial capabilities of the state, the state must

establish the demand for specialists of corresponding areas (fields) and submit a requisition, first of

all, to state schools of higher education, to prepare such specialists, and only in cases when

specialists of certain areas (fields) cannot be prepared in state schools of higher education due to

objective circumstances, such a requisition may be submitted to non-state schools of higher

education as well.

4.9.2. When one is deciding whether Paragraph 5 of Article 70 of the Law on Science and

Studies, in the aspect that, while establishing the final number of state-funded student places of the

first cycle and integrated studies to which students are admitted as well as their distribution among

schools of higher education and study areas, one separately does not take account of the fact

whether enrolling persons who have completed the secondary education programme with the best

results have chosen state or non-state schools of higher education, is not in conflict with the

provision “Citizens who are good at their studies shall be guaranteed education at State schools of

higher education free of charge” of Paragraph 3 of Article 41 of the Constitution, it is necessary to

take account of the fact that Paragraph 5 of Article 70 of the Law on Science and Studies is related

to Paragraph 2 of the same article, wherein the general criteria for distribution, among schools of

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higher education, of state-funded student places in the study programmes of the first cycle and

integrated studies. It implies that, while establishing, under Paragraph 5 of Article 70 of the Law on

Higher Education, the final number of state-funded student places of the first cycle and integrated

studies to which students are admitted as well as their distribution among schools of higher

education and study areas, one must take account of the general criteria (established in Paragraph 2

of the same article) for distribution, among schools of higher education, of state-funded student

places in the study programmes of the first cycle and integrated studies.

In the constitutional justice case at issue it has been held that Paragraph 2 of Article 70 of

the Law on Science and Studies, to the extent that it does not establish that, in the course of

distribution, among schools of higher education, of state-funded student places in the study

programmes of the first cycle and integrated studies, one must take account of the capabilities of

state schools of higher education to satisfy the state established demand for specialists of

corresponding areas (fields) and that it does not establish that state-funded student places chosen by

persons who have completed the secondary education programme with the best results may be

received by non-state schools of higher education only in cases when specialists of certain areas

(fields) cannot be prepared in state schools of higher education due to objective circumstances, is in

conflict with the provision “Citizens who are good at their studies shall be guaranteed education at

State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution

and the constitutional principle of a state under the rule of law.

In view of the aforesaid, there are not any arguments allowing to assert that, in the aspect

specified by the petitioner, there is legislative omission in Paragraph 5 of Article 70 of the Law on

Science and Studies as well, i.e. that this paragraph must provide that, while establishing the final

number of state-funded student places of the first cycle and integrated studies to which students are

admitted as well as their distribution among schools of higher education and study areas, one has to

take account of the fact whether enrolling persons who have completed the secondary education

programme with the best results have chosen state or non-state schools of higher education.

It needs to be noted that also such legal regulation, established in Paragraph 5 of Article 70

of the Law on Science and Studies, would not be in conflict with the Constitution, whereby the final

number of state-funded student places of the first cycle and integrated studies to which students are

admitted as well as their distribution among schools of higher education and study areas is approved

by the Ministry of Education and Science, after the results of admission to schools of higher

education are made known and study agreements are signed, provided Paragraph 2 of the same

article established that, in the course of distribution, among schools of higher education, of state-

funded student places in the study programmes of the first cycle and integrated studies, one must

take account of the capabilities of state schools of higher education to satisfy the state established

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demand for specialists of corresponding areas (fields), and also one must take account of the fact

that state-funded student places chosen by persons who have completed the secondary education

programme with the best results may be received by non-state schools of higher education only in

cases when specialists of certain areas (fields) cannot be prepared in state schools of higher

education due to objective circumstances.

4.10. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph

5 of Article 70 of the Law on Science and Studies is not in conflict with the provision “Citizens

who are good at their studies shall be guaranteed education at State schools of higher education free

of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state

under the rule of law.

5. It has been mentioned that the group of Members of the Seimas, a petitioner, has doubted

whether Paragraph 7 of Article 70 of the Law on Science and Studies is not in conflict with the

provision “Citizens who are good at their studies shall be guaranteed education at State schools of

higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the

constitutional principle of a state under the rule of law.

5.1. As mentioned, Paragraph 7 of Article 70 of the Law on Science and Studies provides:

“A person whose studies of the first cycle or integrated studies are funded by the State shall,

after the first two years of studies and in the case of extended studies—after the completion of half

of the study programme, lose state funding for studies if the mean of the results of his studies during

an appropriate period is more than 20 percentage points lower than the mean of the results of

studies of an appropriate study programme and form by students of the same year of studies of the

school of higher education during an appropriate period. A person who loses state funding must pay

for his studies the study cost fixed by a school of higher education and his state-funded student

place shall be occupied by a person whose study results in a student place which is not funded by

the State are the best.”

5.2. Thus, Paragraph 7 of Article 70 of the Law on Science and Studies has provided for the

procedure for assessment of the learning results of a person whose studies of the first cycle or

integrated studies are funded by the state in order to establish whether he continues to meet the

criteria of good learning established in this paragraph so that his studies could further be funded by

the state. Having established that the person no longer meets the criteria of good learning (if the

mean of the results of his studies during an appropriate period is more than 20 percentage points

lower than the mean of the results of studies of an appropriate study programme and form by

students of the same year of studies of the school of higher education during an appropriate period),

he loses state funding for studies and his state-funded student place is occupied by a person whose

study results in a student place which is not funded by the state are the best.

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5.2.1. Paragraph 7 of Article 70 of the Law on Science and Studies has provided for the time

period of assessment of the learning results of a person whose studies of the first cycle or integrated

studies are funded by the state in order to establish whether he continues to meet the criteria of good

learning established in this paragraph so that his studies could further be funded by the state—this

time period is two years of studies or half of the study programme in case of extended studies. The

said time period encompasses more than one period of academic learning (as a rule, a semester),

after which the basic checking of the knowledge of persons studying in schools of higher education

is conducted (as a rule, by means of taking examinations or credit tests in the studied subjects).

5.2.2. It needs to be noted that Paragraph 14 of Article 70 of the Law on Science and Studies

provides for a possibility for a person whose studies are funded by the state to lose state funding for

his studies earlier than during the period of assessment of learning results established in Paragraph 7

of this paragraph, i.e., when a person studying in a state-funded student place is excluded from a

school of higher education or terminates his studies (in such cases a person who studies in the same

study programme of the same year of studies in the student place which is not funded by the state

may be transferred to the said state-funded student place in the manner prescribed by the school of

higher education). However, this possibility is not to be related only to the assessment of the

learning results of the person during an academic period of learning, after which the basic checking

of the knowledge of persons studying in schools of higher education is conducted in order to

establish whether they meet the criteria of good learning so that the funding of their studies would

continue. The said possibility also depends upon negative results of learning of another person, who

studies in the same study programme of the same year of studies in the student place which is

funded by the state, or upon other circumstances determining exclusion of the said person from the

school of higher education or upon his resolve to terminate his studies.

Thus, Paragraph 14 of Article 70 of the Law on Science and Studies has not established any

other time period for assessment of learning results than the one established in Paragraph 7 of the

same article, which is designed to establish whether the persons whose studies of the first cycle or

integrated studies are funded by the state meet the criteria of good learning.

5.2.3. It also needs to be noted that Article 71 of the Law on Science and Studies provides

that part of the persons in the student places of the first cycle or integrated studies, which are not

funded by the state, who finished with the best results the first two academic years (in the case of

extended studies—half of a study programme) and the remaining academic years, may be

compensated for the study cost paid for the studies during an appropriate period; it is also

established therein that the overall number of persons for whom the study cost is compensated shall

not exceed 10 per cent of the number of persons who, in that academic year, finished studies of the

first two academic years (in the case of extended studies—half of a study programme) or the

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remaining academic years in the state-funded student places of studies of the first cycle or

integrated studies. Thus, Article 71 of the Law on Science and Studies has provided for a possibility

to compensate, part of the persons in the student places of the first cycle or integrated studies, which

are not funded by the state, who study with the best results, for part or entire study costs paid, i.e.

this article regulates relations of different character than those regulated in Article 70 “Payment of

study costs in student places funded by the State” of the Law on Science and Studies.

5.3. The doubts of the petitioner regarding the constitutionality of Paragraph 7 of Article 70

of the Law on Science and Studies are substantiated by the provisions of the official constitutional

doctrine whereby the results of learning of the citizens who study in state schools of higher

education subsequent to the requisition by the state (i.e. in order to meet the demand of specialists

of corresponding areas (fields), which is established by the state) must be assessed on a regular

basis after checking the knowledge of the studied subjects after each period of academic learning;

the citizens who were admitted in state schools of higher education to study subsequent to the

requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas

(fields), which is established by the state) must be guaranteed the education free of charge till the

first basic checking of the knowledge of the subjects studied by them.

Thus, it is clear from the arguments of the petitioner that it has doubted the constitutionality

of Paragraph 7 of Article 70 of the Law on Science and Studies only insofar as it provides for the

time period of assessment of the learning results of a person whose studies of the first cycle or

integrated studies are funded by the state in order to establish whether he continues to meet the

criteria of good learning established in this paragraph so that his studies could further be funded by

the state—this time period is two years of studies or half of the study programme in case of

extended studies.

5.4. It has been mentioned that the petitioner is disputing the compliance of Paragraph 7 of

Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who are good

at their studies shall be guaranteed education at State schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution.

5.4.1. As mentioned, in its ruling of 20 March 2008, the Constitutional Court held 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

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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 Constitution guarantees higher education

covered by state funds not to all citizens who are good at their studies in state schools of higher

education, but only to those who are prepared in order to meet the demand of specialists of

corresponding areas (fields), which is established by the state; if 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.

It needs to be noted that the citizens who are good at their studies in state schools of higher

education and who study in state schools of higher education subsequent to the requisition by the

state (i.e. in order to meet the demand of specialists of corresponding areas (fields), which is

established by the state) must be guaranteed the education free of charge as long as their learning

corresponds to the criteria of good learning established by law; alongside, it needs to be noted that

the citizens who were admitted in state schools of higher education to study subsequent to the

requisition by the state (i.e. in order to meet the demand of specialists of corresponding areas

(fields), which is established by the state) must be guaranteed the education free of charge till the

first basic checking of the knowledge of the subjects studied by them (Constitutional Court decision

of 18 December 2009).

5.4.2. As it was mentioned by the Constitutional Court in its decision of 18 December 2009,

the procedure (established in the state school of higher education) of assessment of the knowledge

acquired in the state school of higher education must inter alia be such so that on the grounds of

this procedure it would be possible to assess whether the results of learning of the citizens studying

in state schools of higher education subsequent to the requisition of the state (i.e. those who are

prepared in order to meet the demand of specialists of corresponding areas (fields), which is

established by the state) correspond to the criteria of good learning established by law.

The Constitutional Court has also held that the assessment of the results of learning of the

citizens who study in state schools of higher education subsequent to the requisition by the state (i.e.

in order to meet the demand of specialists of corresponding areas (fields), which is established by

the state) must be conducted on a regular basis after checking the knowledge of the studied subjects

after each period of academic learning (Constitutional Court decisions of 18 December 2009 and 19

March 2010).

In this context it needs to be mentioned that the Constitutional Court has noted that the

knowledge of the individuals who learn at state schools of higher education must be assessed on a

regular basis, within the corresponding periods of learning at these schools; legal acts can name

these periods in a varied manner; as a rule, basic checking of the knowledge of the individuals who

study in Lithuanian state schools of higher education as regards the studied subjects is regularly

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conducted after each period of academic learning—semester (Constitutional Court decision of 18

December 2009).

5.4.3. Thus, in the context of the constitutional justice case at issue it needs to be noted that

the legal regulation, whereby in order to establish whether the study results of a person, whose

studies are funded by the state, meet the criteria of good learning his study results are assessed

irregularly, i.e. not after each period of academic learning, after which the basic checking of the

knowledge of studied subjects of persons studying in schools of higher education is conducted,

would not be in conformity with the provision of Paragraph 3 of Article 41 of the Constitution 41

that citizens who are good at their studies shall be guaranteed education at state schools of higher

education free of charge.

5.5. It has been mentioned that Paragraph 7 of Article 70 of the Law on Science and Studies

has provided for the time period of assessment of the learning results of a person whose studies of

the first cycle or integrated studies are funded by the state in order to establish whether he continues

to meet the criteria of good learning established in this paragraph so that his studies could further be

funded by the state—this time period is two years of studies or half of the study programme in case

of extended studies; this time period encompasses more than one period of academic learning (as a

rule, a semester), after which the basic checking of the knowledge of persons studying in schools of

higher education is conducted.

It has also been mentioned that the legal regulation, whereby in order to establish whether

the study results of a person, whose studies are funded by the state, meet the criteria of good

learning, his study results are assessed irregularly, i.e. not after each period of academic learning,

after which the basic checking of the knowledge of studied subjects of persons studying in schools

of higher education is conducted, would not be in conformity with the provision of Paragraph 3 of

Article 41 of the Constitution that citizens who are good at their studies shall be guaranteed

education at state schools of higher education free of charge.

5.6. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 7

of Article 70 of the Law on Science and Studies, insofar as it provides for the time period of

assessment of the learning results of a person whose studies of the first cycle or integrated studies

are funded by the state in order to establish whether he continues to meet the criteria of good

learning established in this paragraph so that his studies could further be funded by the state—this

time period is two years of studies or half of the study programme in case of extended studies, is in

conflict the provision “Citizens who are good at their studies shall be guaranteed education at State

schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the

constitutional principle of a state under the rule of law.

6. It has been mentioned that the group of Members of the Seimas, a petitioner, has doubted

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whether Paragraph 11 of Article 70 of the Law on Science and Studies is not in conflict with the

provision “Citizens who are good at their studies shall be guaranteed education at State schools of

higher education free of charge” of Paragraph 3 of Article 41 of the Constitution and the

constitutional principle of a state under the rule of law.

6.1. As mentioned, Paragraph 11 of Article 70 of the Law on Science and Studies provides:

“State budget funds to cover the study cost in state-funded student places shall be allocated

in accordance with the procedure laid down by the Government.“

6.2. Thus, under Paragraph 11 of Article 70 of the Law on Science and Studies, the

Government is empowered to establish the procedure for allocation of state funds to cover the study

cost in state-funded student places.

6.2.1. The disputed Paragraph 11 of Article 70 of the Law on Science and Studies is related

to Paragraphs 2, 5, 9 of this article.

As mentioned, Paragraph 2 of Article 70 of the Law on Science and Studies establishes the

general criteria (inter alia the choice between schools of higher education made by enrolling

persons who have completed the secondary education programme with the best results) for

distribution of state-funded student places according to study programmes of the first cycle and

integrated study programmes among schools of higher education, whereas Paragraph 5 thereof

regulates the establishment of the final number of state-funded student places of the first cycle and

integrated studies in each study area or a set of study fields and the distribution of such student

places among schools of higher education and study areas; the final number of state-funded student

places in the first cycle and integrated studies as well as their distribution among schools of higher

education and study areas and the distribution of such student places among schools of higher

education and study areas is established by specifying and segmenting among schools of higher

education a preliminary number of state-funded student places of the first cycle and integrated

studies in each study area or a set of study fields (which is announced under procedure established

in Paragraph 3 of Article 70 of the Law on Science and Studies) in accordance with the choice

between schools of higher education made by enrolling persons who have completed the secondary

education programme with the best results.

Paragraph 9 of Article 70 of the Law on Science and Studies has entrenched the procedure

for establishment of the number of state-funded student places of the second cycle, doctoral studies

and studies which do not award a degree, to which students are admitted, according to concrete

study fields, and for distribution of such student places among schools of higher education.

Thus, Paragraph 11 of Article 70 of the Law on Science and Studies empowers the

Government to establish the procedure for allocation of state budget funds to cover the study cost in

state-funded student places in cases when, in accordance with the criteria established in Paragraph 2

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and under procedure established in Paragraph 5 of this article, the final number of state-funded

student places of the first cycle and integrated studies to which students are admitted as well as their

distribution among schools of higher education and study areas are established and, under procedure

established in Paragraph 9 of the same article, the number of state-funded student places of the

second cycle, doctoral studies and studies which do not award a degree, according to concrete study

fields and the distribution of such places among schools of higher education, are established.

6.2.2. The disputed Paragraph 11 of Article 70 of the Law on Science and Studies is also

related to Paragraph 10 of the same article wherein it is established that the state shall fund the

study cost of persons studying in state-funded student places in accordance with the procedure laid

down in Article 76 of the Law on Science and Studies. The said Article 76 regulates inter alia the

establishment of the standard study cost of an appropriate study field or a set of study programmes.

Under Paragraph 4 of Article 76 of the Law on Science and Studies, the standard study cost of an

appropriate study field or a set of study programmes shall be calculated in accordance with the

procedure laid down by the Government, where such study cost shall comprise all the expenses of

studies specified in Paragraph 3 of this article (funds necessary for carrying out studies—for wages

and salaries of teaching staff members, research staff members and other employees related to

studies, to purchase goods and services related to studies, to give incentives to students). Paragraph

4 of Article 76 also provides that in the cases where the study cost fixed by a school of higher

education exceeds the standard study cost, the standard study cost shall be paid with the state

budget funds.

Thus, Paragraph 11 of Article 70 of the Law on Science and Studies empowers the

Government to establish the procedure for allocation of state budget funds to cover the study cost in

state-funded student places in cases insofar as the standard study cost calculated under procedure

established by the Government is paid with the state budget funds, also insofar as the said procedure

for allocation of state budget funds to cover the study cost in state-funded student places is related

to allocation of state budget funds to cover the standard study cost for those schools of higher

education to which state-funded student places were distributed under procedure established in 2, 3,

5, 9 of Article 70 of the Law on Science and Studies (inter alia by taking account of the choice

between schools of higher education made by enrolling persons who have completed the secondary

education programme with the best results).

6.2.3. In this context it needs to be mentioned that state budget funds are allocated to schools

of higher education not only in order to pay for state-funded student places. Under Item 1 Paragraph

1 of Article 67 of the Law on Science and Studies, funds of the basic financing of the state budget

are allocated to state schools of higher education; these funds are allocated for research,

experimental (social, cultural) development and the expansion of artistic activities, administration

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and economy as well as other needs (Paragraph 1 of Article 68 of the Law on Science and Studies).

Paragraph 2 of Article 67 of the same law inter alia provides that state budget appropriations for

each state university shall be allocated under a separate line; state colleges shall be funded with the

state budget appropriations allocated for the state institutions or establishments which perform the

functions of their founder.

6.3. The doubts of the petitioner regarding the constitutionality of Paragraph 11 of Article 70

of the Law on Science and Studies are substantiated by the fact that, according to the petitioner, the

provision of the official constitutional doctrine that in the state budget funds must be provided for

each school of higher education individually, alongside means that it is necessary to provide for the

funds in the state budget for each school of higher education individually for covering all expenses

of the citizens who are good at their studies in such a school and who are learning subsequent to

requisition by the state.

6.4. It has been mentioned that the petitioner is doubting the compliance of Paragraph 11 of

Article 70 of the Law on Science and Studies with inter alia the provision “Citizens who are good

at their studies shall be guaranteed education at State schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution.

6.4.1. In its ruling of 14 January 2002 the Constitutional Court noted that Paragraph 3 of

Article 41 of the Constitution establishes the right of every citizen with a good academic progress in

a state higher school to free higher education; this right presumes that funds must be provided out of

the state budget to guarantee higher education free of charge to citizens who demonstrate good

academic progress in state higher schools.

In its ruling of 14 January 2002 the Constitutional Court also noted that the fact that, under

the Constitution, the system of higher education establishments, including state schools of higher

education, must be accessible to every human being according to his abilities, that citizens who are

good at their studies shall be guaranteed education at state schools of higher education free of

charge, also that the autonomy of schools of higher education is entrenched in the Constitution,

implies that state schools of higher education must be allocated funds so that they can discharge

their functions. These funds must be provided for in the state budget. An essential guarantee of

autonomy of state schools of higher education is such legal regulation when the law on the state

budget provides not only for the allocation of money for the higher education, but also for the funds

for each state school of higher education. 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.

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6.4.2. In its ruling of 20 March 2008, the Constitutional Court noted that 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; 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, but only to those who are prepared in order to meet the demand of

specialists of corresponding areas (fields), which is established by the state; it is namely for

financing of their studies that one has to provide the necessary funds in the state budget.

It has been mentioned that, in its ruling of 20 March 2008, the Constitutional Court also

emphasised that 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 of specialists of corresponding areas (fields), may choose and establish in laws various

models of financing of higher education. While doing so, the legislator is bound by the

constitutional obligations of the state, as well as financial capabilities of the state which, as

mentioned, are not limitless. The law may not establish any such model of financing of 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 a model; the establishment of such a 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.

6.4.3. It needs to be noted that, as it was held by the Constitutional Court in its ruling of 20

March 2008, 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).

In this context it also needs to be noted that, under Item 4 of Article 94 of the Constitution,

the Government also enjoys the powers execute the State Budget and submit to the Seimas a report

on the execution of the budget.

6.4.4. Thus, in the context of the constitutional justice case at issue it needs to be noted that,

from the provision “Citizens who are good at their studies shall be guaranteed education at State

schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution there

emerges a requirement to provide for funds in the state budget to state schools of higher education

for funding the studies of the citizens who are good at their studies and who are prepared in order to

satisfy the state-established demand for specialists of corresponding areas (fields). However, the

state may choose and entrench various models of funding of higher education in laws; such a model

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must be based upon a balanced assessment of the needs of society and the state and the financial

capabilities of the state, but there must be no such model where the state would clearly be unable to

implement it.

It also needs to be noted that the provision “Citizens who are good at their studies shall be

guaranteed education at State schools of higher education free of charge” of Paragraph 3 of Article

41 of the Constitution does not imply a requirement for the legislator to establish only such a model

of funding of higher education, where all state budget funds meant for schools of higher education

would be assigned to the state budget appropriations allocated individually to every state school of

higher education; funds must be provided individually for in the state budget for each state school

of higher education necessary in order to implement the purposes and the mission of that school of

higher education. Thus, the legislator may also choose such a model, where certain state budget

appropriations would be provided for higher education in general, inter alia for funding the studies

of citizens who are good at their studies and who are prepared to satisfy the state-established

demand for specialists of corresponding areas (fields); during the budget year, the Government,

which is responsible for execution of the state budget, may distribute these appropriations to

schools of higher education under established procedure, while taking account of inter alia the

choice between schools of higher education made by enrolling persons.

6.5. It has been mentioned that Paragraph 11 of Article 70 of the Law on Science and

Studies empowers the Government to establish the procedure for allocation of state budget funds to

cover the study cost in state-funded student places in cases insofar as the standard study cost

calculated under procedure established by the Government is paid with the state budget funds, also

insofar as the said procedure for allocation of state budget funds to cover the study cost in state-

funded student places is related to allocation of state budget funds to cover the standard study cost

for those schools of higher education to which state-funded student places were distributed, inter

alia by taking account of the choice between schools of higher education made by enrolling persons

who have completed the secondary education programme with the best results.

It has also been mentioned that the model of funding of higher education chosen by the state

must be based upon a balanced assessment of the needs of society and the state and the financial

capabilities of the state, but there must be no such model where the state would clearly be unable to

implement it; the provision “Citizens who are good at their studies shall be guaranteed education at

State schools of higher education free of charge” of Paragraph 3 of Article 41 of the Constitution

does not imply a requirement for the legislator to establish only such a model of funding of higher

education, where all state budget funds meant for schools of higher education would be assigned to

the state budget appropriations allocated individually to every state school of higher education; the

legislator may also choose such a model, where certain state budget appropriations may be provided

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for higher education in general, inter alia for funding the studies of citizens who are good at their

studies and who are prepared to satisfy the state-established demand for specialists of corresponding

areas (fields); during the budget year, the Government, which is responsible for execution of the

state budget, may distribute these appropriations to schools of higher education under established

procedure, while taking account of inter alia the choice between schools of higher education made

by enrolling persons.

Thus, after the legislator has chosen such a model of funding of higher education, where

inter alia the state budget funds for funding the studies of citizens who are good at their studies and

who are prepared to satisfy the state-established demand for specialists of corresponding areas

(fields) are allocated to state schools of higher education by taking account inter alia of the choice

between schools of higher education made by enrolling persons, it would be impossible to

implement such a model, if it were demanded that these funds be assigned to the state budget

appropriations allocated individually to every state school of higher education. Therefore, there are

no grounds to maintain that such a model of funding of higher education, inasmuch as it is related to

the powers granted to the Government to establish the procedure for allocation of state budget funds

to cover the study cost in state-funded student places, would not be grounded on a balanced

assessment of the needs of society and of the state and that of financial capabilities of the state.

6.6. Taking account of the arguments set forth, one is to draw a conclusion that of Paragraph

11 of Article 70 of the Law on Science and Studies is not in conflict with the provision “Citizens

who are good at their studies shall be guaranteed education at State schools of higher education free

of charge” of Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state

under the rule of law.

7. The group of Members of the Seimas, a petitioner, has doubted the compliance of

Paragraph 4 of Article 76 of the Law on Science and Studies with Paragraph 3 of Article 41 of the

Constitution and the constitutional principle of a state under the rule of law.

7.1. From the arguments of the petitioner it is clear that it is disputing the compliance of the

provision “In the cases where the study cost fixed by a school of higher education exceeds the

standard study cost, the standard study cost shall be paid with the state budget funds” of Paragraph

4 of Article 76 of the Law on Science and Studies with the provision “Citizens who are good at

their studies shall be guaranteed education at State schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the

rule of law.

7.2. Paragraph 4 of Article 76 of the Law on Science and Studies provides:

“The standard study cost of an appropriate study field or a set of study programmes shall be

calculated in accordance with the procedure laid down by the Government, where such study cost

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shall comprise all the expenses specified in Paragraph 3 of this Article. Standard study costs of

students admitted to a school of higher education in a corresponding year shall be each year

approved by the Ministry of Education and Science before 15 January. In the cases where the study

cost fixed by a school of higher education does not exceed the standard study cost, the study cost set

by a school of higher education shall be paid with the state budget funds. In the cases where the

study cost fixed by a school of higher education exceeds the standard study cost, the standard study

cost shall be paid with the state budget funds.”

7.3. The provision “In the cases where the study cost fixed by a school of higher education

exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of

Paragraph 4 of Article 76 of the Law on Science and Studies is related to other provisions of this

article.

7.3.1. Under Paragraph 1 of Article 76 of the Law on Science and Studies, the study cost

shall be fixed by a school of higher education. Thus, also in the situations where a person studies in

a state-funded student place, the cost of his studies is established by the school of higher education.

It needs to be noted that the study cost in higher education institutions shall be fixed taking

into consideration the studies-related expenses specified in Paragraph 3 of Article 76 (Paragraph 2

of Article 76 of the Law on Science and Studies). These expenses include the funds necessary for

carrying out studies, i.e. for wages and salaries of teaching staff members, research staff members

and other employees related to studies, to purchase goods and services related to studies and to give

incentives to students.

7.3.2. It also needs to be noted that, under Paragraph 4 of Article 76 of the Law on Science

and Studies, the standard study cost of an appropriate study field or a set of study programmes is

calculated in accordance with the procedure laid down by the Government, where such study cost

shall comprise all the expenses specified in Paragraph 3 of this article, i.e. funds necessary for

carrying out studies (i.e. for wages and salaries of teaching staff members, research staff members

and other employees related to studies, to purchase goods and services related to studies, to give

incentives to students).

Thus, the notion “standard study cost” employed in the provision (disputed by the petitioner)

of Paragraph 4 of Article 76 of the Law on Science and Studies is to be construed as meaning also

such cost which is in conformity with the sum of the funds necessary to carry out the studies in an

appropriate study field or a set of study programmes.

Paragraph 4 of Article 76 of the Law on Science and Studies provides that the state budget

funds shall cover the study cost of the persons studying in state-funded student places, which is

fixed by a school of higher education, in case this cost does not exceed the standard study cost, or

the state budget funds shall cover the standard study cost, in case the study cost fixed by a school of

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higher education exceeds the standard study cost.

7.3.3. The provision “In the cases where the study cost fixed by a school of higher education

exceeds the standard study cost, the standard study cost shall be paid with the state budget funds” of

Paragraph 4 of Article 76 of the Law on Science and Studies is to be construed together with the

provision of Paragraph 5 of the same article whereby persons who study in state-funded student

places of state schools of higher education shall not have to pay to a school of higher education any

fees related to the implementation of a study programme, with the exception of the cases referred to

in Paragraph 2 of Article 72 of this law. The aforesaid Paragraph 2 of Article 72 provides that the

persons who study according to informal education programmes and the persons who repeatedly

study individual subjects of a study programme shall pay for studies the study costs proportionate to

the volume of a subject (modules).

Thus, under the overall legal regulation established in Article 76 of the Law on Science and

Studies, even in the cases where the study cost established by a school of higher education exceeds

the standard study cost and it is only the standard study cost is covered with state budget funds, the

state school of higher education may not establish any fees to be paid by persons studying in state-

funded student places in order to cover the difference between the study cost established by the

school of higher education and the standard study cost.

7.4. The doubts of the petitioner regarding the compliance of the provision “In the cases

where the study cost fixed by a school of higher education exceeds the standard study cost, the

standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76 of the

Law on Science and Studies with the Constitution are substantiated by the provision of the official

constitutional doctrine whereby higher education tuition of citizens who are students at state higher

schools and demonstrate good academic results cannot be imposed on these persons themselves in

whatever form.

7.5. It has been mentioned that the petitioner is disputing the compliance of the provision

“In the cases where the study cost fixed by a school of higher education exceeds the standard study

cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76

of the Law on Science and Studies inter alia with the provision “Citizens who are good at their

studies shall be guaranteed education at State schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution.

7.5.1. In its ruling of 14 January 2002 and decision of 18 December 2009, the Constitutional

Court held that the constitutional provision that citizens who demonstrate good academic results

shall be guaranteed education free of charge in state higher schools means that a citizen who

demonstrated good academic results has the right that his education in a state higher school be

financed by the state.

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It needs to be noted that, pursuant to Paragraph 3 of Article 41 of the Constitution, higher

education tuition of citizens who are students at state higher schools and demonstrate good

academic results cannot be imposed on these persons themselves in whatever form; higher

education of citizens who are students at state higher schools and demonstrate good academic

results is financed by the state (Constitutional Court ruling of 14 January 2002 and decision of 18

December 2009).

7.5.2. In this context it needs to be mentioned that, in its ruling of 20 March 2008, the

Constitutional Court noted that 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 arranging 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 (field) and of the same quality can

be different; 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 financing

of these studies from the state budget would correspond to its purpose, i.e. that it would permit to

secure good quality preparation of specialists of various areas (fields).

It needs to be emphasised that the powers to establish the said costs of studies are enjoyed

by state schools of higher education; these costs must be rationally reasoned, they may not create

any preconditions to violate 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 costs for studies, which would create preconditions 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, 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 (Constitutional Court ruling of 20 March 2008).

7.5.3. In the context of the constitutional justice case at issue it needs to be noted that the

computed realistic expenses of studies are an important guideline in establishing the cost 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

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school of higher education at their own expense.

It needs to be emphasised that there are no legal arguments which would allow to maintain

that, purportedly, the cost that must be paid by such students for their studies, must in all cases be

the same as the cost 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 (Constitutional Court ruling of 20

March 2008).

Thus, there are no legal arguments permitting to maintain that the study costs to be paid by

the persons studying in non-state-funded student places may not be different from the study costs of

the persons studying in state-funded student places.

7.6. It has been mentioned that, pursuant to Paragraph 3 of Article 41 of the Constitution,

higher education tuition of citizens who are students at state higher schools and demonstrate good

academic results cannot be imposed on these persons themselves in whatever form.

It has also been mentioned that, under the overall legal regulation established in Article 76

of the Law on Science and Studies, even in the cases where the study cost established by a school of

higher education exceeds the standard study cost and it is only the standard study cost that is

covered with state budget funds, the state school of higher education may not establish any fees to

be paid by persons studying in state-funded student places in order to cover the difference between

the study cost established by the school of higher education and the standard study cost.

7.7. Also, there are no grounds to maintain that the standard study cost provided for in

Article 76 of the Law on Science and Studies, which is paid to the school of higher education with

state funds in cases where the study cost fixed by a school of higher education exceeds the standard

study cost, is calculated on the grounds of irrational, unclear, non-transparent and unreasonable

criteria.

7.8. Taking account of the arguments set forth, one is to draw a conclusion that the provision

“In the cases where the study cost fixed by a school of higher education exceeds the standard study

cost, the standard study cost shall be paid with the state budget funds” of Paragraph 4 of Article 76

of the Law on Science and Studies is not in conflict with the provision “Citizens who are good at

their studies shall be guaranteed education at State schools of higher education free of charge” of

Paragraph 3 of Article 41 of the Constitution and the constitutional principle of a state under the

rule of law.

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1. 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 official

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promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is

in conflict with the Constitution.

2. The fact that it has been held in this ruling of the Constitutional Court that the overall

legal regulation laid down in Paragraph 2 of Article 20 of the Law on Science and Studies, under

which the council of a state school of higher education, in the formation of which the academic

community has no decisive influence and which is not an institution implementing self-governance

of the school of higher education, is assigned the functions typical of self-governance of schools of

higher education, is in conflict with the autonomy of schools of higher education entrenched in

Paragraph 3 of Article 40 of the Constitution, does not in any way mean that only upon these

grounds one may question the decisions, inter alia the principal decisions concerning the use of

financial funds and other assets for the purpose of implementing the mission of the school of higher

education and decisions related to appointment of a rector (director) to office, made by the councils

of state schools of higher education that were formed pursuant to the legal regulation established in

the Law on Science and Studies prior to the official publishing of this ruling of the Constitutional

Court.

The fact that it has been held in this ruling of the Constitutional Court that Paragraph 3 of

Article 20 of the Law on Science and Studies is not in conflict with the Constitution means that the

councils of state schools of higher education formed according to the procedure established in

Paragraph 3 of Article 20 of the Law on Science and Studies may continue to discharge their

functions entrenched in those provisions of Paragraph 2 of Article 20 of this law, which were not

recognised as being in conflict with the Constitution.

3. In the constitutional justice case at issue it has been held that Paragraph 5 of Article 95 of

the Law on Science and Studies, insofar as it is established therein that the powers of the bodies of

governance, elected or formed before the entry into force of this law, of a state school of higher

education, whose legal form is a budgetary establishment, are terminated on 31 December 2011, if

such powers have not expired on other grounds established in this paragraph, also insofar as it

provides that, upon the entry into force of the Law on Science and Studies, the rector (director) of a

state school of higher education shall be elected (appointed) only by that council of the state school

of higher education which has been set up in accordance with the procedure laid down by this law,

and where there is no such council, the powers of the rector (director) of the state school of higher

education shall be extended until the election of a new rector (director) of the state higher education

institution, but not longer than for six month, is in conflict with Paragraph 3 of Article 40 of the

Constitution and the constitutional principle of a state under the rule of law.

In view of the aforesaid, the governance bodies (inter alia rectors (directors)) of state

schools of higher education elected or formed prior to the entry into force of this law, even if they

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were reorganised into public establishments within the time period established in Paragraph 8 of

Article 93 of the Law on Science and Studies, may continue to discharge their functions (inasmuch

as the said functions are in line with the Constitution, inter alia with the autonomy of schools of

higher education guaranteed in Paragraph 3 of Article 40 thereof) until the end of the term of office

for which they were formed or appointed, when new corresponding governance bodies will be

formed or appointed pursuant to laws and other legal acts not conflicting with the Constitution.

4. After the official publishing of this Constitutional Court ruling, from the day of its official

publishing, the provisions of the articles (paragraphs and items thereof) of the Law on Science and

Studies which have been recognised to be in conflict with the Constitution by this Constitutional

Court ruling may not be applied. Thus, there will be a certain vacuum in the legal regulation related

inter alia to governance of state schools of higher education.

It is clear that such a situation is permissible only for a very short time; a duty arises for the

legislator to fill the existing vacuum in the legal regulation, otherwise the governance of state

schools of higher education can be disturbed.

The aforesaid vacuum in the legal regulation may be removed completely only after the

Seimas makes corresponding amendments of and/or supplements to the Law on Science and

Studies, while heeding the autonomy of schools of higher education guaranteed in Paragraph 3 of

Article 40 of the Constitution and heeding other provisions of the Constitution (inter alia by taking

account of the construction thereof presented in this ruling of the Constitutional Court and other

acts of the Constitutional Court). Should more time be necessary, the Seimas has a duty to establish,

by law, a provisional legal regulation whereby, while taking account of the construction of

Paragraph 3 of Article 40 of the Constitution presented in this ruling of the Constitutional Court, the

basics of the organisational and governance structure of schools of higher education would be

established by laws.

5. Paragraph 1 of Article 6 of the Constitution prescribes that the Constitution is an integral

and directly applicable act.

Under Paragraph 3 of Article 40 of the Constitution, schools of higher education enjoy a

special status—autonomy is guaranteed to them. One of essential conditions for implementation of

the autonomy of schools of higher education is self-governance of schools of higher education,

which is implemented through self-governance institutions directly formed by academic

communities and due to this these institutions represent the said academic communities directly,

also, this autonomy is implemented through other institutions, discharging the functions of

governance of schools of higher education, formed or appointed by the aforesaid self-governance

institutions. As it has been mentioned more than once in this ruling of the Constitutional Court, the

autonomy of the school of higher education is conceived inter alia as the right to independently

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determine and establish in the regulations or statute the organisational and governance structure,

relations with other partners, the procedure of research and studies, study programmes and the

procedure of student enrolment, to solve other related questions; the procedure for forming the

institutions implementing self-governance of schools of higher education should not be the one that

would not enable the academic community of the school of higher education to influence adoption

of decisions on administration of the school of higher education. Thus, from Paragraph 3 of Article

40 of the Constitution emerges inter alia the right of collegial institutions, directly representing

academic communities of schools of higher education and implementing their self-governance, to

independently decide on strategic and other most important questions of governance of schools of

higher education.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and

Articles 1, 53, 54, 55, 56 and 69 of the Law on the Constitutional Court of the Republic of

Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

1. To recognise that the provision “The Lithuanian policy on science and studies guarantees

<...> conditions for the best of them to do scientific work” of the Preamble to the Republic of

Lithuania Law on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios,

2009, No. 54-2140, 61, 101), the provision “A state school of higher education shall be a public

legal person functioning as a public establishment, possessing the autonomy guaranteed by the

Constitution of the Republic of Lithuania, and the special status defined by this and other laws” of

Paragraph 4 of Article 6, Paragraph 1 of Article 8 inasmuch as it is established therein that the name

of a school of higher education of the university type must contain the word “university” or

“academy”, or “seminary”, Paragraph 3 of Article 8, Paragraph 3 of Article 9, Item 4 of Paragraph 1

of Article 11, Paragraph 2 of Article 17, Paragraph 3 of Article 20, Article 39, the provision “On

completion of theological study programmes of the second cycle persons may, after consultation

with the Catholic Church hierarchy, be awarded a degree of licentiate in theology” of Paragraph 2

of Article 48 to the extent that it prescribes that a degree of licentiate in theology may be awarded

after consultation with the Catholic Church hierarchy, Paragraph 4 of Article 53, Paragraph 3 of

Article 66, Paragraphs 5 and 11 of Article 70, provision “In the cases where the study cost fixed by

a school of higher education exceeds the standard study cost, the standard study cost shall be paid

with the state budget funds” of Paragraph 4 of Article 76, Paragraphs 2 and 8 of Article 93,

Paragraph 5 of Article 94 insofar as it is established therein that the criterion of learning well is the

average of the evaluation of study subjects within a semester is not less than eight on a ten-point

grading scale in accordance with the system of evaluation of study results approved by the

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Government or an institution authorised by it, and Paragraphs 1, 2, 3 of Article 96 of the same law

are not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Item 2 of Paragraph 3 of Article 7 of the Republic of Lithuania Law on

Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it does not establish a duty of non-state schools of higher education

to account to society for the use of funds of the state budget allocated to them is in conflict with

Paragraph 1 of Article 29 and Paragraph 2 of Article 128 of the Constitution of the Republic of

Lithuania.

3. To recognise that Item 2 of Paragraph 2 of Article 11 of the Republic of Lithuania Law on

Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) the extent that it does not establish a duty of non-state scientific research institutes to

account to society for the use of funds of the state budget allocated to them is in conflict with

Paragraph 1 of Article 29 and Paragraph 2 of Article 128 of the Constitution of the Republic of

Lithuania.

4. To recognise that Paragraph 1 of Article 19 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101) to the extent that it consolidates the council as a collegial governance body of a state university

is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the

constitutional principle of a state under the rule of law.

5. To recognise that Paragraph 2 of Article 19 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101) to the extent that it consolidates the council as a collegial governance body of a state college is

in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the

constitutional principle of a state under the rule of law.

6. To recognise that Paragraph 1 of Article 20 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania

and the constitutional principle of a state under the rule of law.

7. To recognise that Item 1 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on

Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

8. To recognise that Item 2 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on

Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

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Lithuania and the constitutional principle of a state under the rule of law.

9. To recognise that Item 3 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on

Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it provides that the council of a state school of higher education

approves plans for reorganisation of the structure of the school of higher education presented by the

rector (director) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

10. To recognise that Item 4 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it provides that the council of a state school of higher education

sets the procedure for managing, using and disposing of funds (also funds allocated for work

remuneration of the school’s leadership and other employees) and assets of the school of higher

education and approves key decisions related thereto is in conflict with Paragraph 3 of Article 40 of

the Constitution of the Republic of Lithuania and the constitutional principle of a state under the

rule of law.

11. To recognise that Item 5 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

12. To recognise that Item 6 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

13. To recognise that Item 7 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

14. To recognise that Item 8 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

15. To recognise that Item 9 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it provides that the council of a state school of higher education

approves an annual statement of revenue and expenditure of the school of higher education and a

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report on the execution of this statement presented by the rector (director) is in conflict with

Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional

principle of a state under the rule of law.

16. To recognise that Item 10 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it provides that the council of a state school of higher education

approves an annual report on the activities of the school of higher education presented by the rector

(director) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

17. To recognise that Item 13 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

18. To recognise that Item 15 of Paragraph 2 of Article 20 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it provides that the council of a state school of higher education

performs other functions of governance of the school of higher education prescribed in its statute

and other legal acts is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic

of Lithuania and the constitutional principle of a state under the rule of law.

19. To recognise that Paragraph 1 of Article 21 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101), to the extent that, after the legislator has chosen such a model of governance structure of a

state school of higher education under which the senate (academic council) is a collegial

governance body which directly represents the academic community and is the sole such body

implementing self-government of that community, this paragraph provides that the senate

(academic council) of a state school of higher education is a governance body of only academic

affairs, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania

and the constitutional principle of a state under the rule of law.

20. To recognise that Paragraph 2 of Article 21 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101), to the extent that, after the legislator has chosen such a model of governance structure of a

state school of higher education under which the senate (academic council) is a collegial

governance body which directly represents the academic community and is the sole such body

implementing self-government of that community, this paragraph does not establish that the senate

of a state university adopts key strategic and other most important decisions of governance of the

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university, inter alia the most important decisions concerning the use of financial funds and other

assets for the purpose of implementing the mission of the school of higher education, is in conflict

with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the

constitutional principle of a state under the rule of law.

21. To recognise that Item 1 of Paragraph 2 of Article 21 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance

structure of a state school of higher education under which the senate (academic council) is a

collegial governance body which directly represents the academic community and is the sole such

body implementing self-government of that community, this item prescribes that the senate of a

state university presents proposals to the rector regarding the funding of programmes of studies,

scientific research and experimental (cultural, social) development, art programmes, and

reorganisation of the university structure, which is necessary for implementation of those

programmes, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

22. To recognise that Item 4 of Paragraph 2 of Article 21 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance

structure of a state school of higher education under which the senate (academic council) is a

collegial governance body which directly represents the academic community and is the sole such

body implementing self-government of that community, this item prescribes that the senate of a

state university, while approving the qualification requirements for positions of teaching staff

members and scientific staff members and laying down the procedure for performance evaluation of

teaching staff members and scientific staff members and for organisation of a competition to fill a

position, must observe the principles for selection and assessment of university employees set by

the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

23. To recognise that Paragraph 3 of Article 21 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101), to the extent that, after the legislator has chosen such a model of governance structure of a

state school of higher education under which the senate (academic council) is a collegial

governance body which directly represents the academic community and is the sole such body

implementing self-government of that community, this paragraph does not establish that the

academic council of a state college adopts key strategic and other most important decisions of

governance of the college, inter alia the most important decisions concerning the use of financial

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funds and other assets for the purpose of implementing the mission of the school of higher

education, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

24. To recognise that Item 1 of Paragraph 3 of Article 21 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance

structure of a state school of higher education under which the senate (academic council) is a

collegial governance body which directly represents the academic community and is the sole such

body implementing self-government of that community, this item prescribes that the academic

council of a state college presents proposals to the director regarding the funding of study

programmes and reorganisation of the college structure, which is necessary for implementation of

those programmes, is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic

of Lithuania and the constitutional principle of a state under the rule of law.

25. To recognise that Item 4 of Paragraph 3 of Article 21 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101), to the extent that, after the legislator has chosen such a model of governance

structure of a state school of higher education under which the senate (academic council) is a

collegial governance body which directly represents the academic community and is the sole such

body implementing self-government of that community, this item prescribes that the academic

council of a state college, while approving the qualification requirements for positions of teaching

staff members and scientific staff members and laying down the procedure for performance

evaluation of teaching staff members and scientific staff members and for organisation of a

competition to fill a position, must observe the principles for selection and assessment of college

employees set by the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the

Republic of Lithuania and the constitutional principle of a state under the rule of law.

26. To recognise that Item 5 of Paragraph 2 of Article 22 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher

education submits to the council for approval the study cost and the rates of fees that are not directly

related to the implementation of a study programme is in conflict with Paragraph 3 of Article 40 of

the Constitution of the Republic of Lithuania and the constitutional principle of a state under the

rule of law.

27. To recognise that Item 7 of Paragraph 2 of Article 22 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher

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education submits to the council for approval an annual statement of revenue and expenditure of the

school of higher education and a report on the execution of this statement is in conflict with

Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania and the constitutional

principle of a state under the rule of law.

28. To recognise that Item 8 of Paragraph 2 of Article 22 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) to the extent that it prescribes that the rector (director) of a state school of higher

education acquaints the senate (academic council) with an annual report on the activities of the

school of higher education is in conflict with Paragraph 3 of Article 40 of the Constitution of the

Republic of Lithuania and the constitutional principle of a state under the rule of law.

29. To recognise that Item 9 of Paragraph 2 of Article 22 of the Republic of Lithuania Law

on Science and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-

2140, 61, 101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of

Lithuania and the constitutional principle of a state under the rule of law.

30. To recognise that Paragraph 3 of Article 22 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania

and the constitutional principle of a state under the rule of law.

31. To recognise that Paragraph 4 of Article 22 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania

and the constitutional principle of a state under the rule of law.

32. To recognise that Paragraph 7 of Article 22 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101) is in conflict with Paragraph 3 of Article 40 of the Constitution of the Republic of Lithuania

and the constitutional principle of a state under the rule of law.

33. To recognise that Paragraph 9 of Article 22 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101), to the extent that it provides that the rector (director) may be dismissed from office in

accordance with the procedure laid down by legal acts if an annual report on the activities of the

school of higher education or an annual report on the execution of the statement of revenue and

expenditure presented by the rector (director) is not approved by a majority of the council members

at a meeting of the council, is in conflict with Paragraph 3 of Article 40 of the Constitution of the

Republic of Lithuania and the constitutional principle of a state under the rule of law.

34. To recognise that Paragraph 2 of Article 69 of the Republic of Lithuania Law on Science

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and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101) is in conflict with Paragraph 1 of Article 29, Paragraph 3 of Article 41 of the Constitution of

the Republic of Lithuania and the constitutional principle of a state under the rule of law.

35. To recognise that Paragraph 1 of Article 70 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101), to the extent that this paragraph does not establish, for the Ministry of Education and Science,

any time limit for the preannouncement of the procedure for determining a queue of persons who

have completed a secondary education programme with the best results, which would be sufficient

for the efficient implementation of the constitutional right to education at state schools of higher

education free of charge, also to the extent that this paragraph does not establish a duty for the

Ministry of Education and Science and schools of higher education to coordinate the conditions of

admission to state-funded student places pursuant to study programmes of the first cycle and

integrated study programmes, is in conflict with Paragraph 3 of Article 40, the provision “Citizens

who are good at their studies shall be guaranteed education at state schools of higher education free

of charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the

constitutional principle of a state under the rule of law.

36. To recognise that Paragraph 2 of Article 70 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101), to the extent that it does not establish that, in the course of distribution, among schools of

higher education, of state-funded student places in the study programmes of the first cycle and

integrated studies, one must take account of the capabilities of state schools of higher education to

satisfy the state established demand for specialists of corresponding areas (fields) and that it does

not establish that state-funded student places chosen by persons who have completed the secondary

education programme with the best results may be received by non-state schools of higher

education only in cases when specialists of certain areas (fields) cannot be prepared in state schools

of higher education due to objective circumstances, is in conflict with the provision “Citizens who

are good at their studies shall be guaranteed education at state schools of higher education free of

charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the

constitutional principle of a state under the rule of law.

37. To recognise that Paragraph 7 of Article 70 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101), insofar as it provides for the time period of assessment of the learning results of a person

whose studies of the first cycle or integrated studies are funded by the state in order to establish

whether he continues to meet the criteria of good learning established in this paragraph so that his

studies could further be funded by the state—this time period is two years of studies or half of the

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study programme in case of extended studies, is in conflict with the provision “Citizens who are

good at their studies shall be guaranteed education at state schools of higher education free of

charge” of Paragraph 3 of Article 41 of the Constitution of the Republic of Lithuania and the

constitutional principle of a state under the rule of law.

38. To recognise that Paragraph 5 of Article 95 of the Republic of Lithuania Law on Science

and Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61,

101), insofar as it is established therein that the powers of the bodies of governance, elected or

formed before the entry into force of this law, of a state school of higher education, whose legal

form is a budgetary establishment, are terminated on 31 December 2011, if such powers have not

expired on other grounds established in this paragraph, also insofar as it provides that, upon the

entry into force of the Law on Science and Studies, the rector (director) of a state school of higher

education shall be elected (appointed) only by that council of the state school of higher education

which has been set up in accordance with the procedure laid down by this law, and where there is

no such council, the powers of the rector (director) of the state school of higher education shall be

extended until the election of a new rector (director) of the state higher education institution, but not

longer than for six month, is in conflict with Paragraph 3 of Article 40 of the Constitution of the

Republic of Lithuania and the constitutional principle of a state under the rule of law.

39. To dismiss the part of the case subsequent to the petition of a group of Members of the

Seimas of the Republic of Lithuania, a petitioner, requesting to investigate whether Item 3 of

Paragraph 2 of Article 86, Paragraph 4 of Article 90, Paragraph 3 of Article 91, Paragraphs 4 and 6

of Article 93 and Paragraph 4 of Article 96 of the Republic of Lithuania Law on Science and

Studies (wording of 30 April 2009; Official Gazette Valstybės žinios, 2009, No. 54-2140, 61, 101)

are not in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court: Egidijus Bieliūnas

Toma Birmontienė

Pranas Kuconis

Egidijus Šileikis

Algirdas Taminskas

Romualdas Kęstutis Urbaitis

Dainius Žalimas

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