10. STRENGTHENING DEMOCRATIC CONTROL OF PUBLIC ADMINISTRATION

Control in general, in all its forms, is one the most important though most underestimated fields of public administration. The EU views control as a key prerequisite for the implementation and enforcement of law and the general improvement of public administration efficiency. The Proposals discuss administrative control in several places: administrative supervision in connection with regulatory processes and regulatory reform (para. 5.3), financial control (para. 6.4) and internal control (para. 7.5). Various kinds of control processes have their specific functions and features as well as important mutual links and relationships. Furthermore, there are also gaps and blurred areas. For these reasons, it will be necessary to authorize a single department at Government level to manage and coordinate all kinds of administrative control both conceptually and methodologically. In performing this function, it will be useful to benefit from the lessons of experience summarized in the instructions for internal control standards issued by the International Organization of Supreme Audit Institutions (INTOSAI).

Public administration control by the public and the citizens represents one of the pillars of the democratic state ruled by law. Citizens, their elected representatives and institutions of civic society, including independent professional institutions, participate in this control in various ways. Therefore, one of the tasks of the reform is to continue the development of the democratic concept of public administration control with particular reference:

• to the citizens´ right to information, right to the freedom of expression, petition right, right to submit complaints to administrative authorities and agencies and right to request the protection of their rights by an independent institution as well as the legal guarantees of these rights;
• to the duty of administrative bodies to deal with the petitions and complaints within stipulated time limits;
• to the duty of public administration to inform the public on its activities and render accounts thereof to the public and its representatives;
• to control of public administration by independent representative, judicial and other public institutions.

The changes of administrative culture aiming at open and participative administration cannot be achieved by legislative and organizational measures only. They represent a long-term process in which a key role will be played by training and leading the staff of public authorities and agencies and by real changes in their conduct and behaviour, aiming to enhance the citizens´ interest and confidence in the effects of criticism.

The conclusions of public administration analysis in the Czech Republic and its comparison with the standard of EU member states speak for incorporating the following tasks into the reform strategy.

10.1 Right to Information and Public Administration Duty to Inform about its Activities

The solution of this task requires both a solid legal basis and the instruments without which the right to information and the duty to inform cannot be practically implemented. For this reason it will be necessary to:

• complete legislation implementing constitutional norms and principles in this field, in the first place an Act implementing the provisions of Art. 17 of the Charter of Fundamental Rights and Freedoms,
• lay particular emphasis on the duty of public administration to render accounts of its activities to the public and its representatives. It means the adoption of the practice which has become a standard in Western democracies, where the public institutions inform regularly about their activities (in the first place about the results achieved, economic management, investments, development of staff numbers and qualification, etc.). The duty to publish such reports will have to be incorporated into legal rules regulating the status of the subjects of public administration and their bodies,
• include the conditions of implementation of this legislation into management and control processes and education and training programmes in public administration,
• use all forms of dissemination of information and their availability to citizens and the public (for details see paras. 5.5 and 7.3).

10.2 Public Administration Control by the Parliament and Local Government Authorities

This is a field in which a new practice is being developed in the conditions of pluralist democracy. In connection with the envisaged revision of the Constitution of the Czech Republic it will also be advisable to evaluate the legislation and practice of public administration control by the Parliament aiming at a more coherent and coordinated approach to the establishment of independent institutions with control competences and at providing technical prerequsites for the implementation of Parliamentary control.

Analogous procedures will have to be adopted also in the legislation concerning territorial self-government.

10.3 Administrative Judiciary

The objective of the reform is to fully guarantee the right to a fair trial. In connection with the preparation of the Czech Republic for EU accession it is necessary to harmonize the legislation and enforcement of administrative judiciary with the Convention on the Protection of Human Rights and Fundamental Freedoms as interpreted by the European Court for Human Rights. This requirement necessitates the revision of the legislation on administrative judiciary in force at present.

The establishment of a specific system of administrative judiciary, topped by the Supreme Administrative Court, is justified by the need to broaden the scope of the cases subjected to review by an independent institution and the higher requirements imposed on the specific knowledge of the complex and diverse administrative matters (the review will involve not only the legal aspects, but also the facts of the case and the interpretation of legal principles). This organization corresponds to our constitution and tradition as well as the arrangement adopted by most European countries. Important in this respect is also the constitutionally provided possibility of transferring the power to cancel legal rules and decide the competence disputes (which will probably increase with the establishment of regional administration) from the Constitutional Court to the Supreme Administrative Court. The purpose is to strengthen in this way the primary purpose of constitutional judiciary - the protection of constitutionality.

Our experience with administrative judiciary performed (moreover only in a restricted way) by general courts does not lead to the unification of administrative jurisdiction, which is the necessary prerequisite for the foreseeability of judicial decisions required by the EU. Contradictory administrative jurisdiction cannot exercise effective pressure on the legality and quality of administrative decisions. This situation leads to losses of time and money, and weakens legal consciousness and the citizen´s confidence in law. According to foreign experience, the other alternative, viz. administrative judiciary performed by general courts, results in the origin of a great number of specialized independent institutions („tribunals“), thus making the whole system more expensive.

10.4 Complaints

Contrary to the petition right (the right to address requests, proposals and complaints concerning the matters of public or other common interest to state administration and local self-government), which was granted adequate constitutional and legislative codification after 1989, the right to complain in the matters of personal interest is still governed by an obsolete ordinance of 1958. The adoption of modern legislation in this field is essential to strengthening the democratic guarantees of the function of public administration.

10.5 Ombudsman

The mission of the ombudsman, an independent institution operating in most European countries, is not only to deal with the complaints about shortcomings in legal procedures of public administration, but also complaints concerning the failure to take action, procrastination and improper or unethical behaviour and conduct of officials which cannot be adequately regulated by administrative procedure or administrative judiciary. Other countries as well as EU studies appreciate the ombudsman´s contribution to the prevention and elimination of bureaucratic methods and the provision of informal, inexpensive and speedy corrective measures. The number of successful interventions permits a positive assessment also in quantitative terms.

The institution of ombudsman must be established also in the Czech Republic. The necessary prerequisite for its effective function will consist in the appointment of a person of high moral authority and the provision of an adequate professional background for this function.

In this field the reform must:

• enact and, using international experience, develop the concept and the rules for ombudsman´s function,
• prepare a system of selection and training of professional staff required for this purpose.

10.6 Supreme Audit Office

The Supreme Audit Office (NKÚ) audits the economic management of state property and the compliance with the state budget. Within its competence the Office is authorized to audit all administrative offices and state authorities and agencies except for the Czech National Bank, as well as all natural persons and legal entities. The communes are subject to its control only in the field of the management of state budget funds or the funds levied on the basis of a law with the exception of the funds levied by the communes within their own autonomous competence.

The Supreme Audit Office should operate so as not to replace the comprehensive and necessary financial control system assured in the framework of state administration. Control of the management of state property and state property rights, including the management of financial funds of the state, must be provided at the levels of internal control, sector control and supra-sector control (as a rule carried out by the Ministry of Finance and financial authorities and agencies). The Supreme Audit Office should be above this control system and verify and assess at random the function of this system according to topical needs. The results of its activities should be always objective and Tecnically irreproachable and should help the respective authorities to decide with a complete knowledge of the case. The Office must operate regardless of the momentary political situation and internal politics in the entities subjected to its control.

It will be necessary to create such prerequisites as would enable the Office to operate at a high professional and moral level - for example, by defining the audit officer status in the Civil Service Act.

There are also cases in which it is not possible, suitable or sufficiently operative for the audit to be made by the Supreme Audit Office or any other state authority entrusted with financial control. Therefore, it would be advisable to consider whether and how the supreme state bodies - the Government or the Parliament - might assume certain financial control functions.