Necessary important changes of second Draft Whistleblowers' Protection Law
Transparency – Serbia (official chapter of Transparency International) warns about important loopholes remaining in second Draft Whistleblowers' Protection Law[1] whose adoption is announced for autumn.
Second Draft Law that Ministry of Justice published in June 2014, is somewhat improved version of Ministry's document from December 2013[2]. However, its weaknesses are still such that can endanger creating of efficient system for corruption whistle blowing, and their avoiding would have been possible if the Ministry had accepted suggestions from public debate by the end of this year.
Unlike Draft from December 2013, when too sever conditions were prescribed in order for some announcements on violation of regulations to enjoy special protection in compliance with this law, now its completely opposite, complete termination of conditions in regards to seriousness of indicated regulations’ violation, which can trivialize implementation of this new legal institute. Besides, protection is not conditioned with proceeding of whistleblower although in certain cases it can be controversial – e.g. if someone awaits for almost a year before reporting violation of regulations, if delivers information which are already known to organ in order to accomplish protection or if thereby publish protected personal data irrelevant for resolving of problem indicated to.
This Draft, unfortunately, doesn’t contain standards on awarding whistleblower who enables retrieving of public income that otherwise will be missing. That is considered as failure, because awarding of „honest finders of public assets“ would significantly improve control of public finances.
We also feel that Draft doesn’t resolve in a good way problem of publishing secret data during whistle blowing. Greatest problem with these data is the fact that Serbia doesn’t have published comprehensive audit of previously proclaimed secrecy of data along with the fact that secret data can be published if the act was initially marked as confidential contrary to the law, which is often times unknown to whistleblower.
On top of it, this Draft kept provision that conditions whistle blowing with existing of some relation between persons that indicate to illegality of organs or firms that are places of harmful activity (employment, professional cooperation, using of services etc.). Although there is no doubt that most of whistleblowers will precisely be employed or service users, there is no proper reason to deny protection from retribution to other citizens that indicate to abuses and therefore suffer harmful consequences.
Draft does not comprehend other important matters proposed in Model Law published on the web-page of Commissioner for information in April 2013[3], and which would be very useful to be considered, like: indicating to endangering of public interest in anonymous research, right of whistleblower and related person to demand instead of elimination of retribution consequences, fair compensation (special form of damage compensation) and proceeding in the cases when third person and not „employer“ performs harmful activity.
Following reasons can be stated as weaknesses:
- According to estimation of Transparency Serbia, status of official person as whistleblower is not properly elaborated – according to one provision of the Law they are whistleblowers, and according to other they enjoy protection „as whistleblowers if they are subjected to harmful action during performing of official duty“;
- Provisions on abuse of whistle blowing were not precise enough, as well as those on „special emergency“ of proceedings, on „duty of organs to allow whistleblower insight into documents related to the case in compliance with the law“, on matters organized with by-law act of Minister of Justice, forwarding information to other organ;
- Decisiononburdenofproving, unfortunately, is not detailed enough, and will create difficulties in implementation because it doesn’t have enough criteria to determine that harmful activity was not related to whistle blowing;
- doesn’tanticipatetemporarymeasuresthatwouldenableundertakingofactivitiesin favor of whistleblower or related person, that would be especially important with retribution by non doingof the organ or firm;
- criminalactswerenotprescribed, and should be prescribed by this Draft or even better through comparative changes of Criminal Code;
- transitional provisions don’t comprehend all regulations relevant.
More complete comments of our organization on Draft of above mentioned law can be read here: http://www.transparentnost.org.rs/images/stories/inicijativeianalize/Komentari%20na%20drugi%20nacrt%20Zakona%20o%20zastiti%20uzbunjivaca%20jul%202014.doc
Transparency – Serbia,
Belgrade, 12 September 2014
[1] http://www.mpravde.gov.rs/sekcija/53/radne-verzije-propisa.php
[2]Comments of TS to this draft can be read here http://www.transparentnost.org.rs/images/stories/inicijativeianalize/komentar%20nacrt%20zakona%20o%20uzbunjivacima%20decembar%202013.doc
[3]http://www.poverenik.rs/sr/oglasi/zavrsene-javne-rasprave/1569-zakon-o-uzbunjivanju-i-zastiti-uzbunjivaca.html, (that model served as baseground for working group startup)