DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of March 4, 2004 No. 5-rp/2004

On case on the constitutional provision of 50 People's Deputies of Ukraine on official interpretation of provisions of part three of article 53 of the Constitution of Ukraine "the state provides availability and free of charge preschool, complete general secondary, professional, higher education in the state and utility educational institutions" (case on availability and free of charge education)

Case No. 1-4/2004

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Selivon Nikolay Fedosovich - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Ivashchenko Vladimir Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna - the judge-speaker,

Mironenko Alexander Nikolaevich,

Nimchenko Vasily Ivanovich,

Wheaten Valery Grigoryevich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Silent Vladimir Pavlovich,

Tkachuk Pavel Nikolaevich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

with the assistance of the representative of the person of law on the constitutional provision Rudkovsky Nikolay Nikolaevich - the People's Deputy of Ukraine; the representatives recruited in consideration of the case: from the Verkhovna Rada of Ukraine - Ustenko Alexander Andreevich, the People's Deputy of Ukraine, the chairman of subcommittee of Committee of the Verkhovna Rada of Ukraine concerning science and education; Selivanov Anatoly Aleksandrovich, the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine; from the President of Ukraine - Nosov Vladislav Vasilyevich, the Permanent representative of the President of Ukraine in the Constitutional Court of Ukraine; from the Cabinet of Ministers of Ukrainybogomolov Anatoly Grigoryevich, Stepko Mikhail Filimonovich, Ognevyyuk Victor Aleksandrovich, deputy ministers of education and sciences of Ukraine, Vorobyov Victor Anatolyevich, the head of department of finance of education, science and culture of Department of the consolidated budget of the Ministry of Finance of Ukraine, Gorbunova Lidiya Nikolaevna, the deputy minister of justice of Ukraine; from the Ministry of Education and Science of Ukraine - Sviridenko Anatoly Mikhaylovich, the head of legal department of the Ministry of Education and Science of Ukraine,

considered at plenary meeting case on the constitutional provision of 50 People's Deputies of Ukraine on official interpretation of provisions of part three of article 53 of the Constitution of Ukraine "the state provides availability and free of charge preschool, complete general secondary, professional, higher education in the state and utility educational institutions".

The constitutional provision of People's Deputies of Ukraine became pretext for consideration of the case according to article 39 of the Law of Ukraine "About the Constitutional Court of Ukraine".

The basis for consideration of the case according to article 93 of the Law of Ukraine "About the Constitutional Court of Ukraine" is practical need for official interpretation of the specified provisions of part three of article 53 of the Constitution of Ukraine.

Having heard the judge-speaker Malinnikova L. F., Rudkovsky M. M., Ustenko O. A. explanations., Selivanova A. O., Nosova V. V., Bogomolov A. G., Ognevyyuka V. O., Stepko M. F., Vorobyov V. A., Gorbunova L. M., Sviridenko A. M. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional provision - 50 People's Deputies of Ukraine - appealed to the Constitutional Court of Ukraine with the petition for official interpretation of provisions of part three of article 53 of the Constitution of Ukraine concerning ensuring availability and free of charge preschool, complete general secondary, professional, higher education in the state and utility educational institutions.

In the constitutional provision, first, it is specified that though acceptance of children is carried out to preschool educational institutions at the request of parents or persons, them replacing (article 34 of the Law of Ukraine "About education"), it does not exempt the state from the obligation "provide compulsory primary education" as the international acts "guarantee the rights of children to preschool education".

Besides, People's Deputies of Ukraine claim that insufficient public financing and reducing with respect thereto led networks of the state and utility preschool educational institutions to the fact that citizens, without having opportunity to arrange children in these institutions because of their insufficient quantity in certain settlement, at the same time are not able to pay preschool education in institutions of other pattern of ownership.

Secondly, People's Deputies of Ukraine ask to explain whether the gratuitousness of complete general secondary education guaranteed by part three of article 53 of the Constitution of Ukraine in the state and utility educational institutions "includes obligation of the state to finance expenses on ensuring training process".

Thirdly, the person of law specifies the constitutional provision that "the part three of article 53 of the Constitution of Ukraine does not provide exceptions of constitutional right on free receipt of the higher education in the state and utility educational institutions" therefore addresses for explanation, or "the amount of free higher education (on competitive basis) is limited only to amount of the state order" or "or providing the right of citizens freely is priority for the state and utility educational institutions to get higher education."

2. The president of Ukraine in the letter in the Constitutional Court of Ukraine noted that the state provides free education only in preschool and general education educational institutions of the state and utility patterns of ownership. In educational institutions of other patterns of ownership the state provides development of education not by their financing, and the means of public administration determined in the legislation on education.

The president of Ukraine considers that the provision of part three of article 53 of the Constitution of Ukraine concerning the higher education, and provision of part four of this article about competitive basis of its obtaining it is necessary to consider taking into account Article part two provisions 43, parts two of article 95 of the Constitution of Ukraine, i.e. free receipt of the higher education at the expense of public funds is performed "only for public requirements which are determined by amount of the state order on training of specialists".

According to the Chairman of the Verkhovna Rada of Ukraine, the state guarantees of availability and free of charge education in the state and utility educational institutions are determined mainly by financial and economic capability of the state, however the state shall provide budgetary appropriations on education in the amount of at least 10 percent of national income.

The state and territorial community as it is specified in the letter of the Chairman of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine, shall provide financing of preschool and general education educational institutions as their owners. At the same time by the legislation of Ukraine attraction of additional sources of financing by the state and utility educational institutions, in particular, for provision of additional educational services is not forbidden. The same obligation concerning financing of these educational institutions lies on owners who independently shall resolve issue of their reorganization and financing, including the preschool educational institutions created by the former state companies and the organizations.

The chairman of the Verkhovna Rada of Ukraine paid attention to that, "that the purpose of receipt of the higher education in Ukraine is ensuring requirements of society and state for qualified specialists", and also that "higher educational institutions can perform enrollment of students and listeners within the number stipulated by the license with payment of training cost on contractual basis".

The committee of the Verkhovna Rada of Ukraine concerning science and education, Committee of the Verkhovna Rada of Ukraine concerning human rights, ethnic minorities and the international relations is claimed that I will eat around free higher education in educational institutions of the state and utility patterns of ownership (on competitive basis within licensed amount) it is regulated by the state order and financed by means of the state and local budgets. Provisions of parts two, third article 53 of the Constitution of Ukraine do not assign to the state of obligation of financing of educational institutions of other patterns of ownership.

The line item of the Cabinet of Ministers of Ukraine, the Ministry of Justice of Ukraine, the Ministry of Education and Science of Ukraine, the Ministry of Finance of Ukraine is that the national legal system of Ukraine realizes provision of the Constitution of Ukraine concerning ensuring availability and free of charge all types of education in the state and utility educational institutions. Ensuring financing of the types of education specified in part three of article 53 of the Constitution of Ukraine is performed on the conforming state standards and standard rates within budgetary appropriations.

3. At plenary meeting of the Constitutional Court of Ukraine Rudkovsky M. M. supported the arguments stated in the constitutional provision and paid attention to incompleteness of legal support of financing and development of education that has the investigation narrowing of content and amount of constitutional right on its obtaining.

Ustenko O. A. stated line item of Committee of the Verkhovna Rada of Ukraine concerning science and education, having specified that availability of education provides the state as financing of the state and utility educational institutions, and by means of attraction with the provided law of various means, funds and so forth.

Noses V.V. and Selivanov A. About the performances emphasized on the arguments stated respectively in letters of the President of Ukraine and the Chairman of the Verkhovna Rada of Ukraine.

Mantises A.G., Ognevyyuk V. O., Stepko M. F., Vorobyov V. A., Gorbunova L. M., Sviridenko A. M. supported line item of the Cabinet of Ministers of Ukraine, the Ministry of Education and Science of Ukraine recruited in consideration of the case of other central executive bodies, having paid attention, in particular, to what the higher education, in their opinion, shall provide as social, connected with development of the personality, and economic to function of the state which is determined by production process, preparation of skilled labor force and scientific personnel for needs of the state and society in general.

4. Solving case on official interpretation of provisions of part three of article 53 of the Constitution of Ukraine concerning ensuring with the state availability and free of charge education in the state and utility educational institutions, the Constitutional Court of Ukraine recognizes that Ukraine is the democratic, social, constitutional state which the person is recognized the highest social value. Human rights and freedoms and their guarantees determine content and orientation of activities of the state which main obligation is approval and providing human rights and freedoms (Article 1, 3 Constitutions of Ukraine.

4.1 Education is recognized to one of priority spheres of social and economic, spiritual and cultural development of society.

The right to education is human right on receipt of certain amount of knowledge, cultural skills, professional orientation which are necessary for normal life activity in the conditions of modern society. Education is purposeful process of education and training for the purpose of acquisition of the educational levels established by the state.

By provisions of article 53 of the Constitution of Ukraine the right to education is guaranteed to everyone (part one); the state provides availability and free of charge preschool, complete general secondary, professional, higher education in the state and utility educational institutions (part three). The right to education is guaranteed to each person on the principles of equality determined by article 24 of the Constitution of Ukraine. Recognition of the right of each person to education corresponds, in particular, to the General declaration of human rights (Article 26), to the International Covenant on Economic, Social and Cultural Rights (Article 13).

Education in Ukraine is performed according to the laws of Ukraine ("About education", "About preschool education", "About general secondary education", "About vocational training", "About the higher education" and so forth), to other regulatory legal acts which, in particular, resolve issues of creation of network of educational institutions of education, their financing, compensation and establishment of the state social guarantees and privileges for workers of these institutions.

4.2 Considering the questions raised in the constitutional provision, the Constitutional Court of Ukraine considers, that in case of interpretation of the term "availability" concerning education in the state and utility educational institutions it is necessary to proceed from grammatical determination of the word "availability" as "access for all to get, use, acquire something", "compliance to forces, capabilities, opportunities someone".

Systems analysis of provisions of the Constitution of Ukraine in which the term "availability" is used gives the grounds for the conclusion that the concept "availability of education" of part three of article 53 of the Constitution of Ukraine means creation by the state of opportunities for realization of human right on education. At the same time it should be noted that availability of preschool and general secondary education is guarantee of the right of everyone for receipt of such education to which the obligation of the state corresponds to provide realization of this right. Availability of the higher education in the state and utility educational institutions consists in creation by the state of the corresponding conditions for their functioning and development in case of which the personality could exercise the right to the higher education based on competitive selection, taking into account the capability and interests in the free choice like higher educational institution, the direction of preparation and specialty, training profile.

Thus, proceeding from content of the concept "availability" which is used in provisions of the Fundamental Law of Ukraine the corresponding education laws, other regulatory legal acts, the Constitutional Court of Ukraine considers that availability of education in constitutional legal sense needs to be understood so that it can have to nobody is refused right to education, and the state shall create opportunities to exercise this right.

4.3 Analyzing provision of Articles of the Fundamental Law of Ukraine where the term "free of charge" is used, and also proceeding from interpretation of this term in the Solution of the Constitutional Court of Ukraine of May 29, 2002 of N 10-rp/2002 (case on free medical care) the Constitutional Court of Ukraine came to conclusion that "free of charge" the education levels specified in provisions of part three of article 53 of the Constitution of Ukraine in the state and utility educational institutions should be understood as possibility of education in these institutions without payment, i.e. without introduction of payment in any form for educational services, according to state standard within those types of education which free of charge is determined in these provisions. Ensuring free of charge education at all levels is one of guarantees of its availability.

Free of charge receipt of education by citizens is provided with financing of educational institutions of these patterns of ownership within the state and local budgetary appropriations according to certain laws and other legal acts standard rates their financial and material logistics that, however, does not exclude possibilities of financing of the field of education due to development of off-budget mechanisms of attraction of additional resources as it is determined by the legislation on education.

5. As for the question of application of provisions of article 53 of the Constitution of Ukraine raised in the constitutional provision on which the state shall provide availability and free of charge receipt of preschool education, in particular concerning ustraivaniye of children in preschool educational institutions of the state and utility patterns of ownership, the Constitutional Court of Ukraine proceeds from it.

The analysis of provisions of articles of the Constitution of Ukraine (Articles 51, of 52, of 53) and the laws of Ukraine on education adopted on their realization demonstrates that though according to the Law of Ukraine "About education" acceptance of children is carried out to preschool educational institutions at the request of parents or persons, them replacing (Article part two 34), i.e. for choice them like preschool educational institution or form of education, it, however, does not limit the right of children to education and does not put receipt of preschool education into dependence on desire of parents. As it is provided by part one of article 8 of the Law of Ukraine "About preschool education", the family shall assist receipt of education by the child in preschool and other educational institutions or provide preschool education in family according to requirements of Basic component of preschool education.

According to article 18 of the Law of Ukraine "About preschool education" and article 14 of the Law of Ukraine "About education" the state assigns to governing bodies of system of preschool education, in particular, accounting of children of preschool age and control over the implementation of requirements concerning their training. In Ukraine the system of life-long education which obligatory primary component is preschool education functions. Citizens have the equal rights to its obtaining in preschool educational institutions irrespective of subordination, types and pattern of ownership, and also in family (Articles 4, 9 Laws of Ukraine "About preschool education").

The question of preserving network of preschool educational institutions which is rather raised in the constitutional provision, including non-state and not utility, at the expense of means of the state and local budgets, as considers the Constitutional Court of Ukraine, ensuring availability and free of charge preschool education is assigned to the state only relatively of educational institutions of the state and utility patterns of ownership (part three of article 53 of the Constitution of Ukraine. According to part two of article 3 of the Law of Ukraine "About preschool education" the state only promotes development and preserving network of preschool educational institutions of other patterns of ownership.

Therefore the part six of article 16 of the specified Law forbids groundless liquidation of preschool educational institutions only of the state and utility patterns of ownership. Reorganization or liquidation of the operating utility preschool educational institutions including created by the former agricultural collective and state farms (the nonagricultural companies, the organizations) is allowed only in cases and according to the procedure, determined by this Law.

Financing of preschool education depends on pattern of ownership of preschool educational institution which obligation of financing is assigned to the owner (founder). As for preschool educational institutions of others, than state and utility, patterns of ownership of the decision on liquidation is accepted by the founder (owner) in coordination with relevant organ of the executive authority concerning education.

6. In the context of provisions of article 53 of the Constitution of Ukraine which provide obligation of complete general secondary education (part two) ensuring availability and free of charge complete general secondary education assigns obligation to the state to create conditions for free receipt of such education in the state and utility educational institutions (part three). In pursuance of the specified provisions of the Constitution of Ukraine of obligatory main component of life-long education acknowledged general secondary education (part two of article 3 of the Law of Ukraine "About general secondary education".

For ensuring realization of the right of everyone to compulsory complete general secondary education and creation for this purpose of proper conditions the state created system of general secondary education (article 4 of the Law of Ukraine "About general secondary education").

Standard rates of material and financial provision of general education educational institutions affirm the Cabinet of Ministers of Ukraine according to State standard of general secondary education. The material and technical resources of these institutions are financed by means of their founders (owners). Financing according to the determined norms, consolidation of material resources of the state and utility general education educational institutions provide covering of expenses on teaching and educational process at the expense of means of the relevant budgets according to state standards of education.

Constitutional court of Ukraine in the Solution of November 21, 2002 of N 18-rp/2002 (case on free use of school textbooks), having stated the line item concerning financing of expenses on providing general education institutions with tutorials and the educational equipment, noted that obligation to create conditions for receipt of complete general secondary education in the state and utility educational institutions by the Constitution of Ukraine it is assigned to the state.

Proceeding from the fact that free of charge and availability of complete general secondary education in the state and utility educational institutions are connected with its obligation the state shall finance in full training process of pupils within State standard of general secondary education.

7. The constitutional court of Ukraine considers that the regulations of article 53 of the Constitution of Ukraine on ensuring free of charge the higher education with the state in the state and utility educational institutions need to be considered in the context of the right to education guaranteed by the Fundamental Law of Ukraine and access for citizens of Ukraine to its obtaining in these educational institutions on competitive basis. On content of provisions of this Article receipt of the higher education is not obligatory. In the Solution of the Constitutional Court of Ukraine of November 21, 2002 N 18-rp/2002 is connected with obligation of complete general secondary education its free of charge.

In pursuance of provisions of article 23 of the Constitution of Ukraine which guarantee human right on free development of the personality and parts three of article 53 of the Constitution of Ukraine the right to the free choice of form of receipt of the higher education, type of higher educational institution, the direction of preparation and specialty are enshrined in the laws of Ukraine on education. Realization of the right of citizens to free receipt of the higher education in the state and utility educational institutions is performed on competitive basis (part four of article 53 of the Constitution of Ukraine.

Under the Constitution of Ukraine (Article part two 43) the state creates conditions for training on the main directions according to public requirements on which satisfaction only the law on the Government budget of Ukraine determines any budgeted expenses of the state (Article part two 95). Proceeding from public requirements and the amount of the budget settings determined in the law on the Government budget of Ukraine the state order on training of specialists with the higher education in the directions and specialties of the appropriate educational and qualification levels is created. Therefore the amounts of financing of the highest state and utility educational institutions at the expense of budgetary funds are connected first of all with preparation of such number of specialists with the higher education which is determined annually in the state order.

However education in these institutions cannot be limited only to amount of the state order which financial basis are budgetary funds. Training of specialists with the higher education in the directions and specialties of the appropriate educational and qualification levels in higher educational institutions of the state and utility patterns of ownership can be performed also at the expense of other sources of financing which are not prohibited by the law, being additional tool of obtaining and providing the right to the higher education. In the legislation of Ukraine it is determined that over the established amount which is financed by budgetary funds higher educational institutions can perform enrollment of students within the number stipulated by the license with payment of training cost on contractual basis.

Therefore, free of charge the higher education (free of charge training) in the state and utility educational institutions obliges the state to create the corresponding opportunities in case of which the citizen of Ukraine as equals competitive conditions (the part four of article 53 of the Constitution of Ukraine can graduate without introduction payment in any form within amount necessary for the state and society of specialists.

Based on stated and being guided by Articles 147, 150 Constitutions of Ukraine, Articles 63, of 67, 69 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. In aspect of the constitutional provision of provision of part three of article 53 of the Constitution of Ukraine "the state provides availability and free of charge preschool, complete general secondary, professional, higher education in the state and utility educational institutions" in the context of parts one, the second, the fourth specified Article it is necessary to understand so:

- availability of education as the constitutional sales warranty of right to education on the principles of equality determined by article 24 of the Constitution of Ukraine means what can have to nobody is refused right to education, and the state shall create opportunities for realization of this right;

- free of charge education as the constitutional sales warranty of right to education means possibility of education in the state and utility educational institutions without introduction of payment in any form for educational services by the determined legislation of level, content, amount and within those types of education which free of charge is provided by part three of article 53 of the Constitution of Ukraine.

Proceeding from provisions of parts two, third article 53 of the Constitution of Ukraine by which complete general secondary education is obligatory and free expenses on ensuring teaching and educational process in the state and utility general education educational institutions are performed on normative basis at the expense of means of the relevant budgets in full.

Free of charge the higher education means that the citizen has the right to receive it according to standards of the higher education without introduction of payment in the state and utility educational institutions on competitive basis (part four of article 53 of the Constitution of Ukraine within amount of training of specialists for public requirements (state order).

2. The solution of the Constitutional Court of Ukraine is obligatory for accomplishment in the territory of Ukraine, final and cannot be appealed.

Decision of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine" and in other official publications of Ukraine.

 

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