Subsection 3.1 Integrity and professionalism of public administration
Justification and sources
The current economic and social problems cannot be remedied by a blind refusal of any public intervention. By contrast, the confidence in better functioning of the state and public service has to be restored. Both the perception of the state as an institution as well as the public service has to be rehabilitated in eyes of citizens. This can be achieved by reinstating the true purpose of the civil service which consists in serving public interest. At the same time, civil servants have to receive decent financial and social status while maintaining high ethical and professional standards.
Sources:
- UN: United Nations Convention against Corruption, 14 December 2005
- UN: General Assembly resolution 51/59 containing International Code of Conduct for Public Officials, 12 December 1996
- EU: Charter of Fundamental Rights of the European Union, 18 December 2000
- OECD: Recommendation on Improving Ethical Conduct in the Public Service including Principles for Managing Ethics in the Public Service, 1998
- European Commission: Staff Working Document, Report on the Czech Republic, (COM(2015) 85 final)
- European Commission:EU Anticorruption Report, Annex Czech Republic, Annex 3, COM(2014) 38 final
- European Parliament: European Code of Good Administrative Behaviour, 6 September 2001
- Recommendation CM/Rec(2007)7 (Committee of Ministers): Recommendation to member stateson good administration, 20 June 2007
- Council of Europe (Committee of Ministers): Recommendation No. R (2000) 10 on codes of conduct for public officials; 11 May 2000
- Council of Europe (Committee of Ministers): Recommendation No. R (2000) 6 on the status of public officials in Europe; 24 February 2000
- Council of Europe (Committee of Ministers): Recommendation No. R (84) 15 relating to public liability; 18 September 1984
- Czech Government Office: Anti-corruption Conception for years 2015 – 2017
- Transparency International: Curbing Corruption in Public Procurement, A Practical Guide, 2014
- Chvalkovská, J., Analysis of financial costs and performance quality of the state administration, Center for Applied Economy, April 2013
- Public Money and Corruption Risks – A Comparative Analysis, Frank Bold, 2013
- REST. Depolitisation of the civil service, Reconstruction of the State [online], 2013
- Transparency International - Czech Republic, Professionalisation of the state administration and the Civil Servants Act, Policy paper, Prague, June 2012
- Transparency International: Corruption risks in the Visegrad Countries – Visegrad Integrity System Study, 2012
- Černý, P., Klanicová, K.: A Clientelist or Legal State? Environmental Law Service, Prague, 2010
- Vondráček, O., Havrda, M., Corruption as a Parasite – Manual How to Combat It, chap. A Czech Dream – Qualified and Non-corrupt State Officer, not Sideways, 2013
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#49 Democratic principles of civil service
The powers and tasks as well as the status of public officials are defined by an Act of Parliament. The functioning of public administration is based on the principles of legality, equal treatment, impartiality, proportionality, legal certainty, responding in reasonable time framework, participation respect of private life and transparency.
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#50 Separation of political and administrative posts in public administration
A public office consists of political posts and posts of professional officers. The distinction of which posts are political and which are for professional officers shall be included in an (Civil Service) Act. The management of the civil service is functionally separated from the political management of ministries.
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#51 Irrevocability of a public servant by a politician
A person who occupies the political post shall assigns tasks to professional officers who implement them unless those orders do not comply with the law. The person holding political post should not be entitled to appoint or dismiss professional officers.
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#52 Maximum fixed amount and budget for political advisors
The law sets a maximum number of persons to be nominated to the political posts (minister plus up to 10 advisors). The selection process for those political posts can be influenced by political considerations. The minister has at its disposal a fixed budget to pay his/her political advisors.
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#53 Prior economic assessment of the need of public officials posts
The analysis of functioning and of costs of the public administration is performed beforehand (what is necessary and what is not) and includes socio-economic analysis of costs and benefits shall precede adoption of any regulation of civil service whether extending or restricting its powers. The number of civil servant posts is not set out in the law, it is determined on the basis of an analysis of a need and intensity of public regulation of the given sector.
* How large budget shall be granted for remunerations of civil servants? How much funds shall be assigned for extraordinary remunerations of civil servants? Which portion of work is being outsourced?
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#54 Enforceable ethical code of public officials and financial liability
A binding ethical codex for public officers is adopted and is effectively enforced. Officers are held liable for illegal decisions made and the damage arising.
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#55 Separation of public officials and assistants
Professional officers consist of administrators (substantive work) and assistant (purely clerical work). Administrator and assistant posts shall have different qualification requirements (for example, university vs. lower secondary education) and different wage tariffs.
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#56 Public officials selection on the basis of entry tests
Selection of officers is performed according to demanding entry tests.
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#57 Prohibition of extra bonuses for public officials
Next to the basic wage the only possibility of remuneration should be the promotion to a higher wage tariff. No extraordinary bonuses should be allowed.
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#58 Tenure for officials conditioned by keeping high qualificiation
After the trial period the officer should obtain a tenure conditioned by maintaining his/her qualification. Regular testing aimed at maintaining the qualification condition wage increases or can be a reason for wage reduction or dismissal. In order to be promoted to management functions, officers shall pass the necessary testing.
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Subsection 3.2 On-line access to information about public institutions
Justification and sources
If the mission of public institutions is to provide public services to the citizens, then those institutions should disclose to the public as much information as about their activities, ideally on the internet in a machine readable form. Without an obligation to actively publish information about their functioning in a way which would make these information easily comparable, it is not possible to find out whether public institutions exercise their mission in the interest of citizens and whether they do not misuse public funds. Making information available to the public has to comprise, at least, an active publication of all contracts between public institutions and private companies as well as the disclosure of financial flows related to those contracts.
Sources:
- UN: United Nations Convention against Corruption, 14 December 2005
- European Commission:Recommendation for a Council Recommendation on the 2015 National Reform Programme of the Czech Republic and delivering a Council opinion on the 2015 Convergence Programme of the Czech Republic, COM(2015) 254 final
- European Commission:Staff Working Document, Report on the Czech Republic, (COM(2015) 85 final)
- Recommendation CM/Rec(2007)7 (Committee of Ministers): Recommendation to member stateson good administration, 20 June 2007
- Council of Europe (Committee of Ministers): Recommendation Rec(2002)2 on access to official documents; 21 February 2002
- Council of Europe (Committee of Ministers): Recommendation No. R (91) 10 on the communication to third parties of personal data held by public bodies; 9 September 1991
- Council of Europe (Committee of Ministers): Recommendation No. R (87) 16 on administrative procedures affecting a large number of persons; 17 September 1987
- Council of Europe (Committee of Ministers): Recommendation No. R (84) 15 relating to public liability; 18 September 1984
- Council of Europe (Committee of Ministers): Recommendation No. R (81) 19 on the access to information held by public authorities; 25 November 1981
- Council of Europe (Committee of Ministers): Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities; 28 September 1977
- Czech Government Anti-corruption Conception for years 2015 – 2017
- Czech Government Anti-corruption Action Plan for 2015
- Public Money and Corruption Risks – A Comparative Analysis, Frank Bold, 2013
- REST. Public contracts on the internet, Reconstruction of the State [online], 2013
- Kohout, P. andcoll., Collection of texts of a working group for the fight against corruption, National Economic Government Council, June 2011
- Černý, P., Klanicová, K.: A Clientelist or Legal State? Environmental Law Service, Prague, 2010
- Pavel, J., Efficiency of functioning of public procurement control systems in the Czech Republic, Transparency International Czech Republic, October 2009
- Vondráček, O., Havrda, M., Corruption as a Parasite – Manual How to Combat It, chap. Open State, not Sideways, 2013
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#59 Publication of the list of companies serving public interest obliged to disclose information to the public
State, regions and municipalities should publish (and update) lists of companies serving public interests which are obliged to provide information according to the Act on free access to information. Public information which shall be available to the general public should be provided by all companies serving public interests which dispose with public assets.
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#60 Active online publication of information about functioning of the public administration on the internet
Public institutions shall actively publish a maximum amount of information (contracts, records of municipal assemblies) on the internet in a machine readable form. Thanks to this citizens do not have to file requests for information.
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#61 Business secret definition for public purposes
The law shall provide a sufficiently specific definition of what constitutes a business secret in relation to the public interest and at the same time it is specified that the information about price stipulated in public contracts is not a part of a business secret. Price for public service delivered by private entity should always be published.
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#62 Electronic communication of public authorities with citizens
If the information is not made public, a citizen should request the information by using e-mail and shall receive the answer also by e-mail. The processing time of each request shall be publicly available in “real-time”.
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#63 Control of disclosure of information about public administration by the ombudsman
If a citizen does not receive an answer, he/she should be entitled to ask the Public Defender of Rights (ombudsman) to order the public institution to provide the requested information. Ombudsman provides redress in a fast and effective manner. The dispute is solved online.
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#64 Sanctions for public institutions for non-disclosure of information
Public Defender of Rights (ombudsman) initiates the proceedings with the public institution which did not provide the requested information. The public institution reimburses the costs of ombudsman’s intervention his costs caused by violation of duties of the public institution.
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#65 Register of public-private contracts
Contracts between public administration and private entities shall be disclosed in the public accessible register of contracts at the central single web address. Legal effect of such contracts shall be conditioned by their disclosure in the publicly accessible register of contracts at the central single web address.
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#66 Financial liability for the violation of the obligation to publish public-private contracts in the public register
A liability for not having published the contract between a public and private entity, including the liability of the manager of the relevant public entity, is laid down in the law.
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Subsection 3.3 Control of management of public funds
Justification and sources
If the state is not transparent, it cannot function effectively and efficiently. The surveillance exercised by the Supreme Control Authority has to be completed by the control of the public because the Authority on its own is not able to cover all the areas of management of public assets. Allowing public control over management of public funds along with the supervision of an independent authority with expert staff is the best means how to ensure that public funds are not diverted and serve for financing of works and services of public interest.
Sources:
- UN: United Nations Convention against Corruption, 14 December 2005
- INTOSAI: Lima Declaration, 1977
- OECD. Accountability and Transparency. A Guide for State Ownership, OECD Publishing, 2010
- Recommendation CM/Rec(2007)7 (Committee of Ministers): Recommendation to member stateson good administration, 20 June 2007
- Czech Government Anti-corruption Conception for years 2015 – 2017
- Czech Government Anti-corruption Action Plan for 2015
- Public Money and Corruption Risks – A Comparative Analysis, Frank Bold, 2013
- REST. Extension of supervisory powers of the Supreme Control Authority, Reconstruction of the State [online], 2013
- Good Governance: A new law from Good Governance, team of Good Governance and CEGG, 18 July 2013
- Political control and corruption potential of enterprises owned by the state, Center for Applied Economy, 11 September 2013
- Kohout, P. andcoll., Collection of texts of a working group for the fight against corruption, National Economic Government Council, June 2011
- Business corporations controlled by the state and municipalities: Do they need stricter rules, Environmental Law Services and Center for Applied Economy, 5 November 2011
- Bouda, P., Boudal, J., Fadrný, M., Public control of commercial companies owed by state and municipalities, Analysis and recommendations for extension of competence of the Supreme Control Authority, Environmental Law Services, Brno, 2011
- Bartoň, M., Dienstbier, F., Horáková, M. and coll., Controlling mechanisms for the functioning of public administration, Olomouc: Periplum 2009
- Pavel, J., Using business corporations in the Czech Republic on the example of regional cities, Transparency International Czech Republic, 2008
- Pavel, J., Efektivnost a transparentnost obecních obchodních společností. Praha, Transparency International– ČR, 2006
- Vondráček, O., Havrda, M., Corruption as a Parasite – Manual How to Combat It, chap. Good morning, Please Show the Money, 2013
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#67 Competences of the Supreme Audit Authority (legality and efficiency)
The Supreme Audit Authority should keep the competence to check both the effectiveness and efficiency of public money spending – i.e. if public money are spent effectively and efficiently, not only the competence to check whether public funds were disbursed in compliance with legal provisions (formal compliance).
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#68 Outreach of the Supreme Audit Authority (all public institutions and companies serving public interest)
The competence of the Supreme Audit Authority allows it to control not only state finances and finances of state companies, but also finances of municipalities, regions and companies owned by the state, regions by municipalities
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#69 Disclosure of financial flows from the public administration ton private entities
An obligation to publish financial flows relating to the disclosed public-private contracts - i.e. obligation to publish in the machine readable form the invoices and documents confirming the payments made under those contracts - should be laid down in the law.
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#70 A better law on financial control in management of public funds
A new and more effective Act on financial control in the management of public funds is adopted and enforced.
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Subsection 3.4 Corruption whistleblowing
Justification and sources
If the public administration fails to reveal corruption practices in its own functioning by standard means, it is necessary to establish rules which would motivate corruption actors or witnesses to disclose corruption themselves. In the United States, United Kingdom as well as in other West European countries so-called whistleblowing proved to be a very effective tool. Recently, it has become the key means for revealing cartel agreements constraining economic competition. If a person can be sure that if he/she announces corruption he/she will escape the punishment if involved in the announced corruption practices, and possibly be compensated, such person will be motivated to disclose this type of socially damaging behaviour. Hence, it would be possible to uncover much larger portion of corruption practices than in situations when motivation factors to corruption disclosure are lacking.
Sources:
- UN: United Nations Convention against Corruption, 14 December 2005
- European Commission:Recommendation for a Council Recommendation on the 2015 National Reform Programme of the Czech Republic and delivering a Council opinion on the 2015 Convergence Programme of the Czech Republic, COM(2015) 254 final
- European Commission:Staff Working Document, Report on the Czech Republic, (COM(2015) 85 final)
- European Commission:EU Anticorruption Report, Annex Czech Republic, Annex 3, COM(2014) 38 final
- Czech Government Anti-corruption Conception for years 2015 – 2017
- Czech Government Anti-corruption Action Plan for 2015
- Transparency International: Curbing Corruption in Public Procurement, A Practical Guide, 2014
- Transparency International Czech Republic: Whistleblowing is not snitching, A Guide not only for whistleblowers, September 2014
- Public Money and Corruption Risks – A Comparative Analysis, Frank Bold, 2013
- REST. Depolitisation of the civil service, Reconstruction of the State [online], 2013
- Transparency International: International Principles for Whistleblower Legislation – Best Practices for Laws to Protect Whistleblowers and Support Whistleblowing in the Public Interest, 2013
- Transparency International: Alternative to silence – Whistleblower protection in 10 European Countries: Whistleblowers protection in the Czech Republic – Key Findings, 2009
- Transparency International Czech Republic: Whistleblowing and the protection of whistleblowers in the Czech Republic, November 2009
- Vondráček, O., Havrda, M., Corruption as a Parasite – Manual How to Combat It, chap. Honouring and Protecting… whistleblowers, 2013
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#71 Adoption of a general protection framework for whistleblowers
A general framework for whistleblower protection is adopted, at least in relation to the public sector, which is able to ensure an effective protection to whistleblowers.
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#72 Whistleblowing to ombudsman
The public administration employee should announce his/her suspicion of unlawful behavior of public authority or corruption to the Public Defender of Rights (ombudsman).
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#73 Evaluation of legitimacy of whistleblower's announcement
Public Defender of Rights (Ombudsman) should assess the legitimacy of whistleblower’s announcement. Should he/she find that there are facts in the announcement that indicate that the unlawful behavior of public administration or corruption occurred, the Public Defender of Rights (Ombudsman) should consider the announcement to be legitimate.
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#74 Dismissal protection of whistleblowers
A legitimate corruption announcement triggers dismissal protection for the public employee which is effective retroactively from the moment of making the announcement. Whistleblower which made a legitimate corruption announcement cannot be dismissed until the investigation which he/she instigated is terminated.
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#75 Forwarding a legitimate announcement to the police
Should the Public Defender of Rights (ombudsman) find that the announcement of the whistleblower contains facts suggesting that a criminal act was committed, especially in the case of a criminal act in the area of corruption, the Public Defender of Rights forwards whistleblower’s announcement to the police.
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#76 Anonymisation of legitimate whistleblowers
Should the whistleblower ask for it, the Public Defender of Rights should grant the legitimate whistleblower anonymity (i.e. rights granted within witness protection regime) and on behalf of the whistleblower requests the police to grant him/her the same protection.
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#77 Physical protection of whistleblowers
In justified cases the police shall grant the whistleblower physical protection.
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#78 Media protection of whistleblowers
Should the whistleblower ask for it, he/she shall be entitled from the moment of announcement submission to obtain media protection at the same level which is granted in the criminal proceedings to perpetrators of criminal acts.
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#79 Obligation of the state not to disclose information about whistleblowers
If media protection is granted to the whistleblower, neither ombudsman nor police shall be allowed to publish any information that could lead to revealing whistleblower’s identity.
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#80 Obligation of the state to ensure protection of whistleblowers
Should the ombudsman and police find whistleblower’s announcement of corruption legitimate, the state shall take over the responsibility for assuring whistleblower’s physical and media protection.
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#81 Liability of the state if protection of whistleblowers not ensured
Should the state fail to provide the whistleblower sufficient physical and media protection, it has the duty to compensate any material and immaterial damage that occurs to him/her. The whistleblower shall also have the right to receive adequate financial compensation.
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Subsection 3.5 (Poor) Quality of Czech laws
Justification and sources
The most important problem causing the low quality of Czech laws is the absence of a thorough description and analysis of problems which the proposed laws are supposed to resolve. Without a proper definition of a problem it is not possible to develop the right solution: as a result of insufficiently analysed problems the proposed solution contained in draft bills do not resolve anything or solve different problems. If the problems which should be resolved by the laws to be were clearly defined, it would be easier to achieve a societal consensus on the necessity of adopting new laws. Moreover, proposals of Acts which try to solve a previously analysed problem must be continuously consulted with stakeholders representing various societal interests. Thanks to the preparation of reports about the impact of the laws adopted, it would be possible to evaluate whether those laws have indeed resolved the problems they were supposed to deal with; if the did not, it would be possible to abolish those laws. The correct problem definition and evenly targeted consultations are the best means preventing adoption of laws in private or corruption driven interests.
Sources:
- UN: United Nations Convention against Corruption, 14 December 2005
- European Commission: Staff Working Document, Better Regulation Guidelines, European Commission, COM(2015) 215 final
- European Commission: Better Regulation Toolbox, SWD(2015) 111
- Czech Government Anti-corruption Conception for years 2015 - 2017
- Czech Government Anti-corruption Action Plan for 2015
- National Economic Council of the Government: Competitiveness strategy framework, March 2011
- Methodology for corruption risk assessment, January 2013
- Resolution of the Government of the Czech Republic: General principles for regulation of impact assessment (RIA), 2007, updated version dated 2011
- Methodology for involving the general public of government documents, Ministry of Interior of the Czech Republic, April 2010
- Methodology for determination of the amount and origin of administration burden for enterpreneurs (calculator of administration burden of enterpreneurs)
- Methodology for determination of planned costs for public administration (calculator for determination of planned costs for public administration)
- Methodology for determination of planned costs for putting forward public policy (calculator of planned costs for putting forward public policy)
- Analysis of the Green Circle – Legislative amendments of deputies, Rekonstrukce státu, 2013
- Kohout, P. andcoll., Collection of texts of a working group for the fight against corruption, National Economic Government Council, June 2011
- Richter, T., How (not) to help the legislative process, Právní rozhledy 15(3), 2007
- Povolná, V., How to participateon the preparation of (not only) laws – A manual for participation of the public in the preparation of legal rules, Environmental Law Service, September 2007
- Weiss, T., Reinforcing the transparency of the legislative process in the Chamber of Deputies of the Parliament of the Czech Republic, Europeum, Institute for European Policy
- Vondráček, O., Havrda, M., Corruption as a Parasite – Manual How to Combat It, chap. Not to Write Laws Good for Nothing, 2013
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#82 Description of the problem which the law is supposed to resolve
Before any law starts to be drafted, the competent ministry submitting the draft proposal should describe the problem it wants to solve by that law in a comprehensible and, if possibly in “non-legal” language. This description shall include the scope and causes of the described problem.
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#83 Consultation of the identified problems with the public
The institution submitting the draft law should perform an analysis of the problem using available socio-economic data and should submit this analysis to the consultation for general public.
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#84 Impact assessment of proposed options, including corruption risks
Subsequently, the institution proposing the draft law should describe the solution (theses – legislative intent) supposed to remove or alleviate the problems described. At the same time, the proposing institution should perform a regulatory impact assessment, including cost-benefit comparison of the proposed draft law and a corruption analysis announcement.
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#85 Consultation of proposed solutions with the general public
The institution submitting the draft law should present the outlined solutions, including the regulatory and corruption, impact assessment to the general public for consultation.
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#86 Defending proposed solutions before an independent group of experts
The institution submitting the draft law should be able defend the selected solution of the described problem in an independent committee of professionals. The decision of the committee including the reasons for the decision should be made public.
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#87 Only defended solutions into the proposal of a law
After a successful defense of the impact assessment, the institution submitting the draft law should prepare a legislative proposal in the legal language which contains only defended solutions. Only once the aforementioned procedure is accomplished, the legislative proposal would enter the standard legislative procedure.
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#88 Amendments with the evaluation of necessity and impacts
The submission of amendments by the deputies and senators should be conditioned by a parallel submission of at least a minimum impact assessment of the needs and impacts.
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#89 Evaluation of effectiveness of the laws adopted
Following certain period of time, for example, after three years from the entry of the law into force, the ministry that submitted the proposal of the law should prepare a report about functioning and impacts of the adopted legislation. The report shall be approved by the Government and be submitted to the Parliament for discussion.
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