The Kyiv District Administrative Court declared it unlawful and invalid. Order of the Ministry of Education No. 910, issued in 2024, according to which postgraduate studies under a contract do not entitle you to a deferral.
As a reminder, the Ministry of Education and Science issued an order that canceled full-time postgraduate studies under a contract in 2024 and adjusted the rules for resuming postgraduate studies. According to the Ministry of Education and Science, this was done so that "postgraduate studies would not turn into a corrupt tool for avoiding mobilization."
This order of the Ministry of Education and Science also applied to women who were not subject to military service. However, this prohibition did not apply to reserved men, for example, those who were reserved in connection with the implementation of grant donor programs.
The circumstances of the case
A woman filed a lawsuit against the Ministry of Education and Science with the Kyiv District Administrative Court, in which she asked the court to declare the order of the Ministry of Education and Science No. 24.06.2024 dated June 910, XNUMX, unlawful, and invalid.
In particular, the plaintiff noted that, in accordance with the norms of international and Ukrainian law, she has the right to receive education (including at the third educational and scientific level of higher education for the degree of "Doctor of Philosophy") on a paid basis in full-time study at any educational institution, regardless of the form of ownership.
Therefore, state bodies do not have the right to restrict her access to such education in any way (including by restricting the forms and conditions of obtaining education, licensing educational institutions, as well as by establishing certain prohibitions, conditions, competitions, assessments, exams and other tests).
Separately, the plaintiff emphasized the violation of the procedure for adopting such an order.
As can be seen from the case materials, on December 26.12.2017, XNUMX, the plaintiff completed her studies at the National University of Bioresources and Environmental Management of Ukraine by obtaining a higher education in the specialty "Jurisprudence" and obtaining the qualification "Master of Law".
The provisions of paragraph 6 of Article 5 of the Law "On Higher Education" establish that persons who have previously received the educational degree "Master" (or "Specialist") have the right to obtain, on the basis of this degree, the educational and scientific degree "Doctor of Philosophy" at the third level of higher education, through postgraduate study.
Thus, the plaintiff has the right, on the basis of the previously obtained educational degree "Master", to obtain the next educational and scientific degree "Doctor of Philosophy" at the third level of higher education, through postgraduate study. The above-mentioned right is also confirmed by the conclusion marked "Right to enter postgraduate study", which is contained in the "Academic Rights" section of the appendix to the plaintiff's Master's Diploma.
At the same time, the Ministry of Education and Science adopted Order No. 910 "On Some Peculiarities of Acquiring and Renewing the Status of a Higher Education Applicant in 2024", which, in particular, suspended the acceptance of applications, competitive selection, conclusion of training agreements between a higher education institution and an applicant, and enrollment in studies for the third (educational-scientific, educational-creative) level of higher education and in assistantships-internships for full-time or dual forms of education at the expense of individuals and legal entities (except for foreigners and stateless persons, provided that there is state recognition of the education document on the basis of which admission is made), etc. for the period of the legal regime of martial law in Ukraine.
Court's position
So, on May 21, 2025, the Kyiv District Administrative Court issued a decision in this case 320/37685/24.
The court concluded that the claims were well-founded based on the following.
According to the provisions of Article 57 of the Constitution, laws and other regulatory legal acts that define the rights and obligations of citizens that have not been brought to the attention of the population in the manner established by law are invalid.
The requirements of Part 2 of Article 44 of the Law "On Higher Education" establish that the conditions for admission to higher education are published on the official website of the Ministry of Education and Science no later than October 15 of the year preceding the year of admission to a higher education institution.
The Law "On Amendments to Certain Laws of Ukraine in the Field of Education" dated November 8.11.2024, 3438 No. 2-ИХ in paragraph 23 of Section XV "Final and Transitional Provisions" of the Law of Ukraine "On Higher Education" provides for subparagraph 2022 as follows: "in 2023, 2024, XNUMX, admission to study for higher education shall be carried out in a special procedure determined by the central executive body in the field of education and science, without complying with the requirements of this Law."
At the same time, Law 3438-IX does not establish any restrictions on the rights of citizens and does not establish new deadlines for the publication of regulatory legal acts in the field of education, and therefore, accordingly, cannot be applied to disputed legal relations.
Accordingly, the court concludes that any legal acts that establish the conditions for admission to higher education in 2024 (including forms and levels of education, conditions and procedure for submitting applications, enrollment in studies, as well as conditions for concluding contracts between the applicant and the educational institution, etc.) must be adopted and published on the MES website no later than October 15, 2023.
Thus, starting from October 16, 2023, all citizens who intend to enter a higher education institution and begin receiving higher education in 2024 have the right and are obliged to comply only with those requirements for admission to an educational institution that were published before October 15, 2023. At the same time, after October 15, 2023, any changes to the legislation can no longer affect a person's rights to enter an educational institution in 2024.
At the same time, according to the provisions of Article 58 of the Constitution, laws and other regulatory legal acts do not have retroactive effect in time, except in cases where they mitigate or cancel the liability of a person.
Accordingly, any legal acts establishing the conditions for admission to higher education adopted and published after October 15, 2023, cannot be applied to admission to higher education in 2024.
In this regard, in 2024, regulatory legal acts of the Cabinet of Ministers of Ukraine, the Ministry of Education and Science and any other management and control bodies in this area that were adopted and published later than October 15, 2023 and establish the conditions for admission to higher education in 2024 (including those that establish the conditions for licensing, acceptance of applications, competitive selections, conclusion of training contracts, enrollment in training, and also limit the forms, levels and types of education on any grounds and in any other way) cannot be applied for admission to higher education.
In turn, the contested order entered into force only on June 25.06.2024, 2 and, accordingly, could not be adopted in compliance with Article 44 of Article 2024 of the Law "On Higher Education" in terms of its application to the procedure for admission to an educational institution in XNUMX, which indicates the validity of the plaintiff's arguments.
Moreover, the Law "On Amendments to Certain Laws of Ukraine in the Field of Education" of November 8.11.2024, 3438 No. 15-ИХ itself entered into force after October 2023, 27, namely, only on December 2023, XNUMX.
In turn, as already noted, only the conditions established and communicated to the population by October 2024, 15, as established by the imperative requirements of Articles 2023, 57, and 58 of the Constitution and the requirements of Part 64 of Article 2 of the Law "On Higher Education", can be valid and legal conditions for admission to higher education institutions in 44, as established by the imperative requirements of Articles 58, 23, and 15 of the Constitution and the requirements of Part 2023 of Article 2024 of the Law "On Higher Education". At the same time, the requirements of Article 15 of the Constitution do not allow for the retroactive effect of the requirements of Clause 2023 of the Final and Transitional Provisions of the Law "On Higher Education" for the period until October XNUMX, XNUMX, and accordingly, such requirements cannot establish or allow the establishment of the procedure for admission and enrollment in postgraduate studies in XNUMX, which should have been established by October XNUMX, XNUMX.
The court also notes that the norms of the final and transitional provisions of the Law "On Higher Education", to which the defendant refers, apply only if it is necessary to regulate relations related to the application of such a law in connection with the transition from the existing legal regulation to that which should be introduced with the adoption of a new law. The norms laid down in the text of the law itself have a predominant importance for the legal regulation of legal relations. In the disputed legal relations, this is the above-mentioned Article 44 of the Law "On Higher Education".
Therefore, since, as of the date of adoption of the disputed act, the provision of Part 2 of Article 44 of the Law "On Higher Education", which provides for the defendant's obligation to publish the conditions of admission to higher education no later than October 15 of the year preceding the year of admission, had not been changed and had not been recognized as unconstitutional, the court considers the defendant's reference to paragraph 23 of Section XV of the Final and Transitional Provisions of the said law to be unfounded and does not take into account.
The court also draws attention to the fact that the provisions of the defendant's contested order are of a general nature (i.e., apply to an unspecified range of persons) and establish legal norms relating to the rights and freedoms of citizens (in particular, the constitutional rights of citizens to education, defined by the provisions of Article 53 of the Constitution of Ukraine).
Thus, Order No. 910 is a regulatory legal act.
In addition, this order applies to the activities of both public and private educational institutions and regulates economic and administrative relations, in particular, acquiring the status of a higher education seeker (in particular, at the expense of individuals and legal entities), concluding contracts for the provision of paid educational services, etc.
Therefore, this order regulates economic and administrative relations between regulatory authorities (including the Ministry of Education and Science, the Treasury of Ukraine) and business entities (state and private educational institutions, legal entities).
The court also concludes that the contested Order No. 910 is a regulatory act.
In turn, in order to comply with the principle of openness in accordance with part two of Article 68 of the Law "On Education", educational management bodies ensure mandatory public discussion of draft regulatory legal acts relating to the education system, and the participation of public representatives in the preparation and adoption of these documents.
The Ministry of Education and Science is among the governing bodies in the field of education, which complies with the provisions of Article 62 of the aforementioned Law.
In addition, the provisions of paragraph 12 of the Procedure for conducting public consultations on issues of forming and implementing state policy, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 03.11.2010 of 996, also establish that public consultations are mandatory in the form of public public discussion and/or electronic public consultations on draft regulatory legal acts that, in particular, relate to the constitutional rights, freedoms and obligations of citizens.
Draft regulatory acts are submitted for public discussion, taking into account the requirements of the Law "On the Principles of State Regulatory Policy in the Sphere of Economic Activity."
Since the right to education in Ukraine is guaranteed by the Constitution of Ukraine, and the contested order concerns the implementation of such a constitutional right, the court considers the defendant's claim that there are no legal grounds for holding a public discussion of the draft disputed act to be unfounded and does not take into account it.
Taking into account the above, the draft of the contested Order No. 910 was subject to mandatory public discussion, both as a normative and regulatory act.
Accordingly, the lack of public discussion of the draft Order No. 910 and the lack of its publication by October 15, 2023 (which is established by law), which is not disputed by the defendant, indicates that such an order was adopted in violation of the above requirements of the legislation of Ukraine, and therefore is unlawful.
Within the framework of the disputed legal relationship, the Ministry of Education and Science, by adopting the contested order, violated the principle of legal certainty as a component of the rule of law, because, taking into account the above, it thereby created a situation of unpredictability regarding the regulation of legal relationships regarding education in 2024.
The court believes that the defendant, during the consideration of the case, in accordance with the requirements of Part 2 of Article 77 of the Code of Civil Procedure, failed to prove the legality of the contested decision made by him.
Therefore, the court satisfied the administrative claim and declared the order of the Ministry of Education and Science No. 910 “On Some Peculiarities of Acquiring and Renewing the Status of an Education Seeker” unlawful and invalid.
However, the decision enters into force after the deadline for filing an appeal by all participants in the case, if no appeal has been filed. An appeal against the court decision is filed with the Sixth Administrative Court of Appeal within 30 days from the date of its announcement.
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