By Tomislav Šunjka, lawyer
Law office of Tomislav Šunjka
Law for Whistle-Blower Protection is first time introduced in Serbian legislature in 2014 with implementing from July 2015 ("Official Gazette of Republic of Serbia", No. 128/2014) („Law“).
We can conclude it is good to have it, however unfortunately legal basic and framework for adequate Whistle – Blower (“WB”) Protection according existing international legal standards is incomplete.
The main problem is absence of sanctions. For example, for important and usual types and kind of violations of the WB rights, Law does not prescribe criminal acts or offences, or misdemeanors. Law prescribe only monetary mandatory penalty from 400 € to 4000€ for legal entity if said legal entity has no internal act about protection of WB or if it does not protect WB in case of any kind of discriminations. For responsible person in legal entity, Law prescribes monetary mandatory penalty from 180€ to 1800€. Hence, we may say that penalty policy is very low, and cannot achieve its legal goal-to secure protection of WB.
Other laws important for protection of WB were not amended like Criminal Code, Data Protection Law, Employment Law, Civil Litigation Law, or Enforcement Law. We can conclude, with regret, that legal framework and basis for protections of WB is invalid and incomplete.
In Public debate process Transparency – Serbia pointed out that: 1. Threats to trivialize the institutions of WB, because protection is not related to the reporting of serious criminal acts or offence or misdemeanors; 2. the absence of methods of rewarding, which could bring benefit to public incomes; 3. Inexistence of explicate rights of WB to ask for fair compensation instead of annulling acts that represent retribution; and other.
The positive side is that WB, according the Law, has protection, if disclose irregularities, in maximum term of 10 years. WB`s connected and associated persons have protection, too.
Law prescribes three types of WB, internal, external and public. Internal whistleblowing is making a disclosure to an employer. External whistleblowing is making a disclosure to an authorized authority. Whistleblowing to the public is making a disclosure through the mass media, internet, at public gatherings, or in any other way that disclosure may be made public.
When internal WB is in question, the employer shall appoint a person authorized to receive disclosures and act upon them, and inform every person in a working relationship with him in writing about their right to protection in accordance with the Law. The problem is that this authorized person is an employee, too. Hence, under full control and dependent of employer, even his trustful and confident person. Law does not recognize possibility or obligation of the employer to appoint an authorized person outside of the legal entity, from independent professions like lawyers or professors, academics etc.
Law does not recognize any status of monitors and/or monitoring in legal entity, state institutions etc.
A whistleblower may make a disclosure to the public without previous disclosure made to an authorized authority ONLY in the case of immediate threat to life, health, safety of people, survival of plant and the environment, big damage, or if direct damage exist to secure the evidence. While making a disclosure to the public, a whistleblower shall comply with the presumption of innocence in the court proceedings, right to privacy, right to personal data protection, and shall not jeopardize the conduct of court proceedings.
If a disclosure contains classified information, a whistleblower cannot make it public!
The employer of a whistleblower shall not put a whistleblower in an unfavorable position or cause him due to whistleblowing, in particularly in relation to:
1. Employment procedure;
2. Getting the status of an intern or a volunteer;
3. Work outside employment;
4. Education, training, or professional development;
5. Promotion at work;
6. Disciplinary measures and penalties;
7. Working conditions;
8. Termination of employment;
10. Participation in employer profit;
11. Awards and severance pay;
12. Replacement to another work position and place;
13. Retribution from third parties;
14. Referral for medical exams.
A lawsuit for protection due to whistleblowing cannot revoke the legality of an employer’s individual act used to resolve rights, obligations and responsibilities of an employee from the employment.
Labor inspection will manage supervision of implementing of Law.
Since this is one of the most important anticorruption regulations, first time in legal history in Serbian legislature, we hope that in future there will be POSSIBILITIES for improvement by using the international existing legal standards and experience.