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Publication date: 29.04.2024
Legal opinion
regarding the preservation of a budget place after leaving the academic leave
Legal analysis of the situation regarding the preservation of budget places for students who return from an academic leave (hereinafter - AV) to budget cities (hereinafter - a disputed situation).
The controversial situation is whether the institution of higher education (hereinafter referred to as higher education institution) should keep a place for the "budgetary" if he went on academic leave. And if so, when did the document enter into force, which obliges ZVO not to keep a budget place.
Regarding the above, based on the result of the analysis of the disputed situation from a legal point of view, I consider it necessary to note the following.
The Law of Ukraine "On Higher Education" and other legislative acts do not define how to act in a disputed situation. That is, there is no rule of law that would oblige ZVO to keep a budget seat for the person who occupied it, but returned and wants to occupy it. Also, there is no legal norm that would establish the provision according to which the budget place in the case under review should be given to another person who needs it.
By the letter of the Ministry of Education and Culture "On granting academic leave" No. 1/15735-23 dated 11.10.2023 (hereinafter - the Letter of the Ministry of Education and Culture dated 11.10.2023) higher education institutions were informed that by the Letter of the Ministry of Education and Culture of Ukraine dated 23.04.2018 No. 1/9-257 (hereinafter - the Letter dated 04/23/2018) the Higher Education Institution was recommended to be temporarily guided by the "Regulations on Academic Leave and Re-study in Higher Education Institutions" approved by the joint order of the Ministry of Education and Culture of the Ministry of Health and the Ministry of Health dated 06.06.1996 No. 191/153 (hereinafter - Regulations dated 06.06) until the entry into force of the new act .1996).
Also in the Letter of the Ministry of Education and Culture dated 11.10.2023, attention is drawn to the fact that in the case of academic leave (breaks in study) to students who are getting an education at the expense of the state budget (state order) or local budget (regional order), they resume their studies at the expense of the funds of individuals or legal entities with the possibility of further transfer to budget places if they are available in accordance with the legislation. Participants in hostilities and persons who continue their education after leave due to pregnancy, childbirth and child care are guaranteed to be reinstated to the places of state (regional) order.
As can be seen from the Regulation dated 06.06.1996, which the Ministry of Education and Culture recommended in the Letter dated 04.23.2018 to be used before adopting a specific act in a disputed situation, it does not contain a clear mechanism that would oblige the Higher Education Institution to do one way or another. Only Clause 19 of the Regulation dated 06.06.1996 refers to the controversial situation, according to which students who studied at the expense of the state budget are awarded a scholarship at the expense of budget funding from the time of their resumption of studies until the results of the next examination session.
Clause 19 of the Regulation dated 06.06.1996 does not directly define anything, but it is clear from its content that the Higher Education Institution provides a budgetary place if it is available at the time of the student's return.
The legal analysis of the situation gives reason to believe that there is another document of the Ministry of Education and Culture - Regulations on the Procedure for Transfer, Expulsion and Renewal of Students of Higher Education Institutions, approved by Order of the Ministry of Education and Culture No. 245 dated 15.07.1996 (hereinafter - the Regulations dated 07.15.1996), which is valid on October 2023.
Clause 4 of the Regulations dated 15.07.1996 stipulates: Persons who have entered higher education institutions and studied at the expense of the state budget, enjoy the priority right when transferring and renewing state-ordered places, provided that such vacant places are available. In the absence of vacancies financed from the state budget, the above-mentioned persons, with their consent, may be transferred or renewed for training with payment from the funds of the local budget, branch ministries, departments, enterprises, organizations, institutions and individuals, provided that there are vacancies places of licensed volume.
Although the Regulation dated 07.15.1996 is in effect, it regulates "transfer, expulsion and renewal of students", and the Regulation dated 06.06.1996, which the Ministry of Education and Science of Education recommends to be used, defines the mechanism of "granting academic leaves and retraining". By analogy with the law (Article 8 of the Civil Code of Ukraine), the norms of the Regulation dated 07.15.1996 should be followed, since the relations regulated by it are similar in legal nature.
The analysis of the situation by a lawyer shows that the current legal acts and the above position of the Ministry of Education, Culture, Sports and Science, which is stated in the letters dated 11.10.2023 and 23.04.2018, the higher education institution is not obliged to keep a budget place for a student who went on "academic leave" and can provide it to a person who needs it.If a "budget place" turns out to be free, it can be given to such a person.
lawyer's request, the following should be said regarding the terms of application of the principle "ZVO is not obliged to hold a budgetary position". Since the controversial issue has not been settled at the legislative level, the Supreme Administrative Court develops its own position, which is reflected in the relevant provision.
lawyer's opinion: if you want to "go in step" with the position of the Ministry of Education and Culture, it is appropriate to provide in your position on the disputed issue after 04.23.2018 (the proposal of the Ministry of Education and Culture, set out in the Letter of April 23, 2018), that the budget place is not preserved, but is provided only in case its presence. Until April 23, 2018, it is possible in the internal normative documents of the ZVO to provide for a provision according to which the budget place is preserved.
