Incomplete Legal Framework for Whistle-Blower Protection

Transparency – Serbia (official chapter of Transparency International), on the occasion of today’s beginning of implementation of the long expected Law on the Protection of Whistle-blowers, concludes, with regret, that some of the problems related to that law, that we timely pointed out to  the Ministry of Justice and to members of the parliament, are already showing in practice. The Law on the Protection of Whistle-blowers for some of the most important types of violations of their rights unfortunately does not prescribe criminal acts, nor misdemeanours. The obvious intention was to prescribe such provisions  with amendments to the Criminal Code, but that was obviously neglected even with the parallel adoption of the Law on the Protection of Whistle-blowers, as we suggested, even by the beginning of implementation in the past six months. Although the absence of sanctions will narrow the scope of whistle-blower protection, it will, in our view, enable for the adequate punishment for those responsible for the violation of the rights of those who reported corruption, public resources waste, environmental threats, human health threats and other irregularities.

Implementation of the law was delayed for half a year following its adoption, with the explanation that the delay is necessary to conduct the training and professional specialisation of judges who will rule in cases of whistle-blowers and also to prepare state organs and employers. However, although special training is prescribed as a condition for judges to rule in these matters, the training program hasn’t envisaged at all the individual verification of obtained knowledge, which is completely inconceivable. Also, three months ago, the deadline for the Ministry of Justice to regulate internal whistle blowing mechanisms for employers of over ten employees expired. In the meantime, other laws important for protection of whistle-blowers were not amended (for example, the Law on Secrecy of Data) and the opportunity to amend these laws in order to regulate the positions and rights of persons that received “administrative protection” from the Anti-corruption Agency were missed.     
 
Among other legal loopholes that we pointed out during public debate process and through draft amendments, are: 1) threats to trivialize the institution of whistle blowing, because protection is not related to the reporting of serious misdemeanours; 2) the absence of methods of rewarding, which we are confident could bring benefit to public incomes that would otherwise be missing; 3) inexistence of explicit rights of whistle-blowers to ask for fair compensation instead of annulling acts that represents  retribution; 4) the absence of rules on certain specific cases (for example when retribution is not directly coming from the  employer, but rather from a third party; when retribution is directed to persons that gave information confidential, etc). Since this is one of the most important anticorruption regulations, Transparency – Serbia will closely monitor its implementation, and will suggest possibilities for its improvement by, among other means, using the experience of the work of the Anticorruption council.

Transparency – Serbia,

Belgrade,

5th June 2015