Sintesi Dialettica ::: per l'identità democratica

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02/07/2015
Abstract
International experience of democratization of legislating from the point of view of the analysis of efficiency of application of regulations and the use of its results in parliamentary activity is lighted. The actual problem the rule-making process, as well as making certain adjustments in the regulations is the understanding of the monitoring process. In the modern information society all entities rule-making, as the entities that provide the legislative process require obtaining accurate, clear and complete information about the quality of legal acts. In addition, they should clearly see that there are acts gaps and contradictions, which documents clearly lobbying for business interests, criminals who do not meet the requirements of the legal technique in the area of norm-setting. Such information is essential for the subjects of the normative order based on scientifically based forecasts to make appropriate changes and additions to regulations, to comply with applicable law and international standards on human rights and freedoms of man and citizen.

The actual problem the rule-making process, as well as making certain adjustments in the regulations is the understanding of the monitoring process. In the modern information society all entities rule-making, as the entities that provide the legislative process, need to receive accurate, clear and complete information about the quality of legal acts. In addition, they should clearly see the existing acts gaps and contradictions, documents obviously lobbying for business interests, criminals who do not meet the requirements of legal techniques in the area of norm-setting. Such information is essential for entities standard-setting in order, based on scientific forecasts to make appropriate changes and additions to regulations, to comply with applicable law and international standards on human rights and freedoms of man and citizen[1].

Monitoring – continuous monitoring of any process in order to identify its compliance with the desired result and the prediction and prevention of critical situations[2].

The analysis of the existing regulatory act and its application is based on the study of materials, among which an important role is played: materials scientific-practical conferences, seminars, meetings on the problems of the current legislation; treatment of citizens to public authorities, the materials provided by non-governmental organizations, the results of sociological research on law enforcement[3].

Democratization and political reform, the system of measures and laws aimed at introducing elements of democracy (democracy) in the country, the society. Usually refers to a society that doesn't have a democratic structure, namely: the post-totalitarian, post-authoritarian, hierarchical society. Democratization is characterized by partial redistribution of political power, delegation of powers to other entities – citizens, public institutions and organizations; the fixing of the laws of rights and freedoms; the abolition of anti-democratic laws and institutions[4].

Agencies, whose duties include analysis of the effectiveness of the current legislation, as a rule, there are special institutions parliamentary studies, specific parliamentary committees and commissions, or special state bodies established by the Executive. In other cases, this analysis is part of the daily activities of government ministries. In the process of analyzing the effectiveness of the legislation involved many organizations. For some, this function is not the primary. First of all, the Accounts chamber, the powers of which are different, and which, in various systems that operate both independently and at the request of the government and Parliament. For example, in Germany, court of auditors examines the validity and reliability of farming country. For example, in Poland it also examines the usefulness and cost-effectiveness of decisions of public bodies. In some countries, the status of the chamber are equal to the status of the Supreme court, sometimes the same powers and restrictions like the judiciary, is vested parliamentary committees the investigations[5].

Parliamentary commissions and committees monitor changes in legislation and make recommendations for reform. Also, give their suggestions to the consultation comments and recommendations. Council (Cabinet) Ministers and ministries in systems where the main role belongs to the government, perform the functions of parliamentary committees and commissions, make their assessment laws.

Special institutions can be formed in Parliament. For example, Parliamentary Institute in the Czech Republic, or the government; the Center for legal reform and legislative work at the Ministry of justice of Ukraine; Institute of macroeconomic research and development in Slovenia. Cooperate with ministries, universities and private companies engaged in research, assessment bills.

Government Council for non-governmental non-profit organizations (Czech Republic) was established by government decree in 1992 Similar councils exist in other European countries with the aim of developing cooperation between certain segments of the sector, and (usually) one of the ministries. The peculiarity of this Czech authority that this Board exists longer than the others in Eastern Europe and makes recommendations to the government as a whole, and not just for individual ministries (Board with similar functions exist also in Slovakia and Poland). The Council plays an important role in decisions on strategy and implementation of the Investment Fund. The distribution of 1 percent of the privatization portfolio among eligible funds – one of the unique support schemes civil society organizations in Eastern Europe and in the world, which means for the formation of reserve funds made available to hundreds of civil society organizations in the country. The Council is composed of equal number of representatives of government and non-governmental sector[6].

Universities, academics, independent experts are involved in cooperation according to the Parliament or the government, as well as on their own initiative to produce and publish research on various aspects of the proposed and existing laws and regulations. The media constantly, but selectively monitor the current legislative process and are the venue for performances by other actors of this process.

Non-governmental organizations are active in matters within their specific area of interest. Usually it is children's rights, ecology issues. Hold shares, seminars, round tables, to produce publications.

Trade unions sometimes act in the framework of multilateral bodies including government and entrepreneurs. Their activities are generally limited to the themes of the work. The constitutional court verifies the conformity of legislation with the Constitution. Interestingly, the countries with Federal structure are important, such as Belgium or Switzerland, great attention is paid to the parliamentary assessing regulatory impact, including legislative.

The center for legal reform and legislative work at the Ministry of justice of Ukraine established in accordance with decree of the President of Ukraine dated April 29, 1994, No. 198 On improving the work on the drafting of legislation and legal reform" to improve the work on the drafting of legislative acts, their scientific basis, coordination the Central Executive authorities, scientific institutions and higher educational institutions in this area, providing legal reform in Ukraine. The Statute of the Center approved by the Cabinet of Ministers of Ukraine dated 16 November 1994 No. 780[7] .

According to the Decree of the President of Ukraine dated April 6, 2011 No. 395/2011 "On approval of the Regulations on the Ministry of justice of Ukraine", as amended by the decree of the President of Ukraine of 11 January 2012 No. 11/2012 "On amendments to the regulation on the Ministry of justice of Ukraine" priority directions of activities of the Center are:

1) create a system providing free legal aid in Ukraine;
2) participation in the development of proposals and recommendations for implementation in Ukraine of legal reform, taking into account international experience;
3) development of concepts, projects of legislative acts on the issues of development of society and the state and their scientific rationale;
4) participation in the preparation of proposals for systematization and codification of the legislation of Ukraine; edition codes, collections of laws and regulations[8] .

The purpose of the formation in Ukraine of an effective system of free legal aid, in accordance with the Law of Ukraine "On free legal aid" and Decree of the President of Ukraine dated June 9, 2006 No. 509 "On the Concept of formation of the system of free legal aid in Ukraine, the Cabinet of Ministers of Ukraine has decided to liquidate the Center for legal reform and legislative work at the Ministry of justice and create a Focal point for the provision of legal help with assigning it to the sphere of management of the Ministry of justice[9].

The relevance of the analysis of regional legislation depends on the availability of local authorities legislative powers, (which, despite the difficult administrative-territorial division of some countries on the ground just no), and from the fullness of their competence in the implementation of its regulation. For example, in Poland only possible administrative oversight, the object of which is to benefit and economic efficiency of the decisions of local authorities.

In countries where the Parliament is a serious analysis legislation, researchers are very relaxed about the possibility of a decision on his immediate results of political decisions (including legislative), pointing to difficulties in cases where the results go against the tide of political interests". In particular, States that his results are often distorted, discarded directly or ignored by those who make policy". That, apparently, does not prevent them to continue to perform such analysis. Such analysis must exist at the local level, however, and there he is accompanied by the same difficulties associated with resource constraints.

The effectiveness of monitoring depends greatly on the capacity of public administration. As you can see on the example of the development of the latest strategies of civil society in the EU, quality monitoring plans, as well as the quality of implementation has increased by strengthening the capacity of relevant public administrations in the field of monitoring and evaluation.

By joining The EU, in most new member countries of EU ministries received training and are aware of the difference between the three levels of results, see the relevant indicators and the logical framework as a means to establish a correlation between them. Unfortunately, this approach may also lead to a technical presentation on the assessment of progress, when the focus is more on the achievement of indicators, and not the overall goal. Although it is certainly difficult, but employees of the state administration should find a balance between technical skills and a deeper understanding of the role and added value of civil society to assess progress[10].

According to the results of message monitoring commissions and the Federal Government at the plenary session of the Bundestag usually hear, which can be associated with the formal provision of such information and solutions. The case depends, how much of this is accompanied by legislative measures. Monitoring the impact of the law is not fundamental for the German Bundestag[11].

It is possible, within the so-called competing the competence of the legislation is that the Union (the Bundestag, the Federal government, the Federal Council)) after analysis of the various laws of the land in the regulation comes to the understanding that the need for regulation for equal living conditions or the need to respect the rights and entities on the territory of the Federal Republic of Germany.

No regional legislatures not in Cyprus. Even municipalities have no powers under the legislation, but only have limited power when making some instructions and guidelines, mainly dealing with urban development.

No regional legislatures not in Cyprus. Even municipalities have no powers under the legislation, but only have limited power when making some instructions and guidelines, mainly dealing with urban development.

In Poland, the Sejm does not carry out assessments of the implementation of local ordinances. This is partly a result of the independence of local communities to determine the law at the local level. Their law-making activities may be subject to control by the Supervisory authorities, government (i.e. the Prime Minister and the Governor), the administrative court. Administrative supervision of municipalities subject to the need to verify compliance with the law (use and economic efficiency of the decisions taken by local authorities is not subject to supervision).

In the UK were established administrations in the three parts in accordance with Act of Parliament and is responsible to three different types of Meetings: the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. In addition, there are other areas, including the Isle of Man, Bailiwick of Guernsey and other type of Gibraltar or the Falkland Islands, which have substantial measures of legislative autonomy, although their external relations are regulated by the UK Parliament[12].

The UK was the first country that signed the agreement on cooperation between sector organizations civil society and government sector in November 1998, "the relationship Agreement between the government and the voluntary community sector in England"[13]. In the Preface to the agreement, Prime Minister Tony Blair has described its purpose as follows: "This agreement between the government and voluntary sector provides a Foundation that will help to settle our relationships on every level. It is recognized that the government and the voluntary sector play an additional role in the development and implementation of public policies and services, and the government plays a role in the promotion of voluntary social activities in all spheres of our national life[14].

Switzerland has a Federal political system. The cantons (regions, or States) have multiple independent fields of competence: education, the police, culture. In addition, Federal policy is implemented by the cantons (the so-called "implementation of federalism"). The cantons enjoy considerable freedom in the implementation of the Federal law. Federal control authorities (Parliament, the Administration and the Federal audit Office) control the cantonal authorities of execution of the Federal law to the extent that they carefully examine the Executive bodies of the Confederation. With respect to the independent spheres of competence, the Cantons have their own government and parliamentary controls and procedures. A considerable amount of empirical work researchers in many countries shows that the use of the results of the policy evaluation is not obvious. The results of the evaluation – especially in the case of the movement against powerful political interests – often distorted, rejected or simply ignored by those who make policy[15].

This observation may also sometimes be applied in the context of parliamentary assessment in Switzerland. On the other hand, some reports estimate Parliament, showing performance issues or defects in policy has had a significant impact on the decision-makers and stimulate reform and the process of learning. There are different ways of processing results of the assessment in the framework of the political process the decision, which depend not only on the political convenience of the results to the decision makers, but also on numerous factors which are peculiar to the study of evaluation, types of scientific quality or timeliness of messages.

The Netherlands is a decentralized country in which the regions have a high degree of autonomy as long as they are within the law. On some issues, the Central government has the right to challenge their decisions in the sphere of legislation. The Parliament does not possess in this area of the rights or powers[16].

The involvement of civil society organizations to the main organs of the implementation and monitoring of government policy and law-making in almost all member countries of the EU demonstrates the importance of their participation. At the same time, such involvement should ensure the real participation of civil society organizations, which will help to achieve common political goals.

In Ukraine it is necessary to establish a monitoring system of lawmaking covering all stages of the development of draft laws, laws and their implementation. It is necessary to formulate the monitoring system at the state level in the form of targeted programs, to adopt the procedure for conducting such monitoring by the Law of Ukraine. To implement these tasks, you must create the appropriate structural subdivision of the staff of the state, giving them appropriate powers and providing the necessary budgetary funding.

In order to properly assess the impact of policies the government needs to implement it as a separate process, preferably having its independent public or private institution that has the necessary complex cases qualifications (for example, the audit chamber or independent analytic center).

Monitoring of legislation and law enforcement practices undertaken on a systematic basis, could be an effective tool to identify gaps, conflicts or legal uncertainty in the current legislation, and thus to contribute to the improvement of the legal system. To achieve these goals it is necessary to develop uniform criteria for evaluating regulations and to adopt the best international experience.

* Rev. Ihor Onyshchuk PhD, candidate of law sciences.
Archpriest and the referent of the Curia of the Supreme Archbishop UGCC on issues of church-state relations. docent of theory and history of state and law kafedra, Ivano-Frankivsk university of law named after King Danylo Halytskij (Ukraine), the competitor of a scientific degree of doctor of law sciences of the theory of state and law department of the National academy of internal relations.

Notes

[1] Арзамасов Ю.Г., Наконечный Я. Е. Мониторинг в правотворчестве : теория и методология / Ю.Г. Арзамасов, Я. Е. Наконечный. – М.: Издательство МГТУ им. Н.Э. Баумана. 2009. – С. 7.

[2] Великий тлумачний словник сучасної української мови / упоряд. В. Т. Бусел. – К. : Перун. – 2005. – С. 687.

[3] Методические рекомендации по проведению правового мониторинга нормативных правовых актов и по подготовке Концепций и проектов НПА. Electronic text data. – Mode of access :  http://www.adilet.gov.kz/ru/node/15896

[4] Демократизація. Electronic text data. – Mode of access : http://uk.wikipedia.org/w/index.php?title=Демократизація&oldid=12640158

[5] Механизмы обоснования принятия и мониторинга нормотворческих решений в странах Европы // Аналитический вестник Совета Федерации ФС РФ. – 2005. – № 24. – С. 47. Electronic text data. – Mode of access : http://www.budgetrf.ru/Publications/Magazines/VestnikSF/2005/VSF_NEW200802091554/VSF_NEW200802091554_000.htm.

[6] Statute the Government Council for Non-Government, Non-Profit Organisations Electronic text data. – Mode of access : www.vlada.cz/assets/ppov/rnno/statut_EN_1.pdf

[7] Про Центр правової реформи і законопроектних робіт. Electronic text data. – Mode of access :   http : //novovoronzovka.just.ks.ua/organi-ta-ustanovi-yustitsiyi-hersonskoyi-oblasti/pro-tsentr-pravovoyi-reformi-i-zakonoproektnih-robit.html

[8] Ibid.

[9]Постанова Кабінету Міністрів України від 6 червня 2012 р. № 504 «Про утворення Координаційного центру з надання правової допомоги та ліквідацію Центру правової реформи і законопроектних робіт при Міністерстві юстиції. Electronic text data. – Mode of access :  http://zakon2.rada.gov.ua/laws/show/504-2012-п#n17

[10] Monitoring the effectiveness of state policies on civil society development. European experience. – Kyiv. UNDP.  –  2011. –  p. 95.

[11]Оныщук И. И. Использование результатов правового мониторинга в парламентской деятельности : международный опыт демократизации правотворчества / И. И. Оныщук // Юридическая техника. Демократизация правотворчества : доктрина, практика, техника. – Нижний Новгород : Нижегородская академия МВД России. – 2014. – №8. – С. 550.

[12] Механизмы обоснования принятия и мониторинга нормотворческих решений в странах Европы. – C. 46.

[13] The Compact is the agreement which governs relations between the Government and civil society organisations, such as charities, in England Electronic text data. – Mode of access :  www.hmrc.gov.uk/vcs/compact-on-relations.htm‎

[14] Monitoring the effectiveness of state policies on civil society development. European experience. – Kyiv. UNDP.  –  2011. –  p. 47.

[15]Оныщук И. И. Использование результатов правового мониторинга в парламентской деятельности : международный опыт демократизации правотворчества / И. И. Оныщук // Юридическая техника. Демократизация правотворчества : доктрина, практика, техника. – Нижний Новгород : Нижегородская академия МВД России. – 2014. – №8. – С. 551.

[16] Ibid.