Vladimir Kovtunec, an expert Alliance promotion
external testing (USETI), Associate Professor of NAU
Constitutionality as the principle of the reform of higher education of Ukraine
One of the obstacles in the system reform of socio-economic relations in Ukraine there is a misunderstanding of the principles of constitutionalism, rather, dominance in the pravozastosovnìj practice of traditionalism, as opposed to the classic constitutionalism .
Higher education is one of the areas where these problems stand out pretty boldly.
Because of the new law of Ukraine "on higher education" , which establishes the fundamental reforms in higher education, one of the fundamental principles of constitutionality identified.
One of the problems of legal regulation of higher education – the realization of the constitutional right to higher education.
Yes, article 53 of the Constitution of Ukraine guarantees the availability of higher education in State and communal educational establishments, provides for the right of citizens of Ukraine to free higher education in State and communal educational establishments on a competitive basis. An additional guarantee of the provision of this law is a constitutional norm on granting scholarships to students.
For system understanding of the mechanisms of the realization of the right to higher education provided by the new law of Ukraine "on higher education" should take into account the following provisions of the Constitution:
equality of citizens of Ukraine and ban "privileges or restrictions on the grounds of race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other grounds" (article 24);
exclusively by the laws of Ukraine defined the rights and freedoms of man and citizen, guarantees of these rights and freedoms (article 92).
in making new laws or amending existing laws do not allow narrowing of the content and scope of existing rights and freedoms (article 22);
the rights of aliens and stateless persons who are in Ukraine on legal grounds, koristuvatmsâ the same rights and freedoms as citizens of Ukraine – for exceptions established by the Constitution, laws or international treaties of Ukraine (article 26).
Law of Ukraine "on higher education" in the wording of 2002 year envisaged the procedure for access to higher education, laid the base of the law "on education" adopted in 1991, before the adoption of the new Constitution of 1996 year. The law envisaged:
competitive order access to higher education according to the abilities of the person, regardless of source of payment for training;
like the right of entry for categories of entrants; Moreover, these rights can be provided not only the laws but also other legislative acts: decrees of the President of Ukraine, resolutions of the Cabinet of Ministers of Ukraine;
The law envisaged the possibility of the target admission in cases established by law.
These standards do not meet the requirements of article 53 of the Constitution of Ukraine, which does not provide for exceptions to the rule for competitive entry into State and municipal educational institutions, and also does not provide the target admission to higher educational institutions. Relevant legal position laid down in the decision of the Constitutional Court of Ukraine of March 4, 2004 year, N 5-RP/2004 (right about the availability and free education): "... free higher education (free training) in State and communal educational establishments requires the State to create appropriate opportunities for the citizen of Ukraine on equal competitive conditions (part four of article 53 of the Constitution of Ukraine) can get without making payment in any form of higher education within the scope of the right of the State and society of experts ".
In the new Law the right to higher education is defined in article 4. Mechanisms for the implementation of this law is ruled through the norm of article 44, which provides for the introduction of the results of the external evaluation.
Article 4 specifies the content of the right to higher education according to the Constitution of Ukraine. In fact, that in this article made the ûridizacìû constitutional law on higher education  taking into account the practice of application of the Constitution and the above-mentioned decisions of the Constitutional Court of Ukraine.
Part one of article guarantees the right to higher education and prohibits discrimination based on age, citizenship, residence, gender, skin color, social and financial status, nationality, language, origin, health status, attitude to religion, convictions and other circumstances. " Provisions of the second part of the article guarantee the citizen the right of choice: higher education, specialties, forms of obtaining higher education.
Important is the norm on banning set limits the right to receive higher education in other legislative acts, in addition to the Constitution and laws of Ukraine. It meets paragraph 1) of article 92 of the Constitution of Ukraine, the precept that does not allow you to define the rights and freedoms of man and citizen, guarantees of these rights and freedoms "in other legislative acts apart from the laws of Ukraine. Thus, neither the decrees of the President of Ukraine, Cabinet of Ministers Regulations No, no orders of Ministers cannot set limits the right to higher education. The norm of is relevant, since 2014 year restrictions on the access of foreigners and persons without citizenship to free higher education, where the conditions of admission to higher educational institutions.
Requirements of articles provide the possibility of "positive discrimination" persons who receive higher education, on three grounds:
Creating the necessary conditions for persons with special educational needs; We are talking about persons with disabilities physical development that is unable to acquire higher education in conditions that are acceptable to the other parties;
Support for socially vulnerable persons-individuals who are "in need of social assistance in accordance with the legislation; to them must be carried out in full or partial financial assistance for their maintenance during the period of obtaining them higher education for each educational level;
Specific conditions of obtaining higher education, predefined features receiving training; in this case, can be installed with the necessary privileges and limitations.
In the first case, the law obliges the higher educational institutions (HEIs) to create proper conditions for the training of persons with disabilities. In the regulations listed in rule 9, paragraphs detalìzuêtsâ) and 28) of article 62 of the law. So a person with special needs are eligible for "special education and rehabilitation support and free access to the infrastructure of higher educational establishment in accordance with the medical and social indications for the presence of the restrictions of life due to health reasons and the free provision of information for training in accessible formats, using technologies that take into account the limitations of life due to health reasons. Thus, each institution of higher education shall:
provide individuals with special needs information in accessible formats (we are talking primarily about persons with visual impairments);
provide special training and rehabilitation support for persons with special needs in accordance with medical and social indications;
provide free access to the infrastructure of the institution, which can provide appropriate rehabilitation services (health, fitness, etc.).
The specified list of duties of the educational institution is incomplete, as can be seen from article 4. We can talk about the special equipment for persons with disabilities of the musculoskeletal system and other measures for the successful training of individuals specified categories.
The second case gives the right to pay vulnerable persons funds necessary full or partial provision of their content while studying. The procedure for such payments should be set by law. For example, it can be the full state maintenance of orphaned children. The implementation of this norm implies the adoption of appropriate legislative acts.
The third case involves the obtaining of higher education specialties that require special preparation or special physical requirements for the health of the person. First of all it is about the training of military specialties, training law enforcement. Thus, the allowable restrictions on access to certain categories of persons to higher education on the following specialities. This provision also allows you to create special conditions for persons who study certain specialities. So, for example, will not be considered discriminatory higher cost of training in specialties that require more individual training, for example, art majors or higher tuition fees in the case of the high cost of laboratory equipment (for example, for the training of physicists). This provision allows, therefore, set different fees depending on the features of the educational process.
The Constitution of Ukraine (article 53), guaranteeing the right of the citizen to access to free higher education on a competitive basis, does not limit the number of such attempts as well as the number of different specialties that a citizen may obtain free of charge. The law defines these standards.
In particular, part one of article 4 establishes that each degree of higher education can obtain free of charge only once. An exception is provided to persons who for health reasons have lost the ability to perform service or responsibilities for obtained previously qualified. This fact is confirmed by the conclusion of the medical social Expert Commission. Allow you to install other exceptions, however, indicated that such exceptions can be established only by law.
Thus, the person should be refused entry for studies from State or local budgets for some educational degree, if it has already received such a degree of charge in another specialty.
The first part of the second paragraph of article 4 of the law of Ukraine "on higher education" the right to obtain free higher education in State and communal educational establishments is provided to a person in the case of "a certain degree of higher education of the citizen for the first time at the expense of the State or local budget. With this norm, it follows that education can not be bezoplatnoû if the corresponding education degree is gained for the second time.
So, if a person donates studied but not received an appropriate education degree, she in the next attempt may not qualify for free training.
It is obvious that the person is in the process of free acquisition of educational degree can change the specialty, continuing training in another specialty in the same or another educational institution, provided appropriate educational program, if the educational institution has the right to increase the number of students of this specialty.
However, if a person not having completed training at a certain level of higher education, which oplačuvalos State, comes to a different profession, it will be the second acquisition of the appropriate level of higher education, and it may not be free of charge.
Enough talking, as mentioned above, there are volume and stateless persons to acquire the free higher education. Yes, part three of article 53 of the Constitution of Ukraine guarantees access to free higher education only to citizens of Ukraine. But the article 26 of the Constitution of urìvnûê rights of citizens of Ukraine, foreigners and stateless persons who are in Ukraine on legal grounds. Exceptions in accordance with the requirements of this article, can be installed only by laws of Ukraine.
Therefore, foreigners and persons without citizenship can acquire higher education in Ukraine in accordance with the provisions of part two of the article 4 of the law "on higher education". The first paragraph of this part provides for the right of persons who are in Ukraine on legal grounds, to acquire higher education free of charge, on a par with citizens of Ukraine. Such persons are:
Aliens (citizens of foreign countries);
individuals who have been granted refugee status in Ukraine;
individuals who need additional or temporary protection;
individuals who have granted the status of Ukrainian.
The law does not define the content of the concept of "stay on the territory of Ukraine on legal grounds.
This concept according to the listed categories is determined by special laws of Ukraine:
"On the legal status of aliens and stateless persons" ;
"On refugees and persons in need of additional or temporary protection" ;
"About foreign Ukrainians" .
Listed laws clearly define the concept of a legal stay on the territory of Ukraine with regard to aliens and stateless persons.
Especially important is article 44 of law of Ukraine "on higher education". Here not only defined the procedure for access to higher education, but according to the Constitution settled the preferred forms of entry:
canceled target reception to the University;
provided, that the right to non-competition entry may be provided only by laws of Ukraine.
Combine the above novelties decide several important social problems:
create a legal guarantee of equal access to quality higher education;
partially filmed on higher education function of social protection for this level of education is unnatural;
create conditions for better-quality selection of students and, consequently, to improve the quality of higher education;
provide legal conditions for the implementation of international obligations concerning mutual recognition of qualifications and access to education, in particular, hang the opportunities for integration of higher education in the European educational space.
Remained not completely solved the problem like access to higher education. In accordance with the principle of constitutionality of the repeal like entry for socially vulnerable categories of persons should be accompanied by measures of their positive discrimination to equalize their opportunities with others. This has to be decided at the next stage, the improvement of legislation on higher education.
1. And g., Kovtunec v. Classic constitutionalism vs. charismatic post-Soviet constitutionalism//legal magazine, 2008, no. 7, pp. (electronic access:
2. Law of Ukraine "on higher education"//Supreme Council (BD), 2014, # 37-38, c. 2004, electronic access:
3. the decision of the Constitutional Court of Ukraine, in the case of a constitutional proposal 50 deputies of the official interpretation of the provisions of part three article 53 of the Constitution of Ukraine "the State ensures accessible and free pre-school, complete general secondary, vocational and higher education in State and communal educational establishments" (right about the availability and free education) on March 4, 2004, no. 5-RP/2004. Electronic mode of access: http://zakon1.rada.gov.ua/laws/show/v005p710-04/print1391697229661790.
4. Kozyubra m., constitutional right to education and reforming legislation on education//problems of modernization and systematization of legislation on education in Ukraine. Abstracts of scientific-practical Conference, Kiev, 27-28 May 2010 year. – Кyiv: Nora-Druk, s. 73-75.
5. law of Ukraine "on legal status of foreigners and stateless persons"//Supreme Council of Ukraine (BD), 2012, no. 19-20, 179, electronic access: http://zakon2.rada.gov.ua/laws/show/3773-17.
6. law of Ukraine "on refugees and persons in need of additional or temporary protection"//Supreme Council of Ukraine (BD), 2012, no. 16, item 146, electronic access: http://zakon4.rada.gov.ua/laws/show/3671-17.
7. law of Ukraine "on foreign Ukrainians" (in the redaction of law No. 4381-VI from 09.02.2012)//Supreme Council of Ukraine (BD), 2004, no. 25, item 343, electronic access: http://zakon4.rada.gov.ua/laws/show/1582-15.