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,
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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;
2
– 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.
3
The Constitutional Court
has established:
I
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;
4
– 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
5
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
6
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
7
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
8
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
9
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
10
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
11
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
12
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
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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
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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
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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
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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.
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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
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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,