Whistleblowers are often among the most important actors in the fight against corruption. Ensuring effective protection for whistleblowers encourages people to stand up against corruption, human rights violations, and dangers to human life and public health in their surroundings and report what would otherwise not be detected by the authorities. Until recently, the Serbian legal system has not paid much attention to protecting whistleblowers. However, it seems that the situation is now improving, with the Serbian National Assembly’s recent adoption of the long-anticipated Whistleblowers’ Protection Act.
For many years, Serbia did not have separate regulations in place to regulate the protection of whistleblowers. Instead, a number of vague and ambiguous provisions were scattered across different regulations, including the Rulebook for the Protection of a Person who Reports Corruption (Official Gazette of the Republic of Serbia no. 56/11) [Pravilnik o zaatiti lica koje prijavi sumnju na korupciju] (“Rulebook”), which was adopted by the Serbian Anti-Corruption Agency. However, the Agency, which is not a legislative body, did not have much room for manoeuvre within its competence to introduce appropriate protection methods in the Rulebook.
The relevant legal framework has changed following the National Assembly of Republic of Serbia’s adoption of the Whistleblowers Protection Act (Official Gazette of the Republic of Serbia no. 128/2014) [Zakon o zaatiti uzbunjivača] (“WBPA”) on 25 November 2014. The WBPA entered into force on 4 December 2014 and is applicable from 4 June 2015.
The Whistleblowers’ Protection under the WBPA
Who is Protected?
Unlike previous regulations which only protected whistleblowers employed in the public sector, the WBPA offers protection to whistleblowers in both the public and the private sectors. Namely, according to the definitions of the WBPA, the employers for whom the Act is applicable are state bodies of the Republic of Serbia, territorial units or local self-government, incumbents of public office or public service, legal entities, or entrepreneurs employing one or more persons.
The Act defines whistleblowers as individuals who disclose information about their work engagement, recruitment process, use of services provided by state bodies, incumbents of public office and public services, business cooperation, and ownership over a company. Work engagement is defined broadly and includes employment, work outside the scope of employment, voluntary work, performance of a public function, and any other de facto work for the employer.
Protection is also granted to the following persons, if they establish that they have been exposed to adverse action: (i) whistleblowers’ affiliates, (ii) individuals exposed to adverse action because they were mistakenly marked as whistleblowers, (iii) individuals who have disclosed information while performing official duties, and (iv) individuals who have requested to be provided with the information.
What are the Conditions for Protection?
A whistleblower will be protected if: (i) he/she performs whistleblowing against the employer, competent state body or the public, (ii) he/she discloses information within a year from the day he/she learned about the action that is subject to disclosure, and no later than ten years from the performance of the action, and (iii) at the moment of disclosure, an average person with similar knowledge and experience as the whistleblower would believe that the disclosed information is true.
The WBPA defines whistleblowing as the disclosure of information that relates to (i) breaches of regulations, (ii) breaches of human rights, (iii) misconduct by incumbents of public office, (iv) threats to life, (v) public health, (vi) safety, and (vii) the environment, as well as (viii) the prevention of large scale damage. Such disclosure may be made to the whistleblower’s employer (internal whistleblowing), a competent state body (external whistleblowing), or to the public. The WBPA provides specific rules for each of these types of whistleblowing.
What Kind of Protection is Provided by the WBPA?
The WBPA expressly prohibits adverse action against whistleblowers and provides mechanisms for protecting whistle-blowers’ identities. Also, whistleblowers are entitled to compensation for damages according to the rules of Serbia’s Contracts and Torts Act (Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89, 57/89; Official Gazette of the Federal Republic of Yugoslavia nos. 31/93, 22/99, 23/99, 35/99, 44/99). Furthermore, the WBPA expressly prohibits actions that may prevent whistleblowing.
The WBPA defines an adverse action as any action or omission related to whistleblowing by means of which (i) the rights of whistleblowers or individuals enjoying protection as whistleblowers are jeopardized or violated, or (ii) these persons are put in a less favourable position.
Whistleblowers enjoy identity protection: persons authorised to receive information from them are obliged to protect the whistleblower’s personal data and any data that may disclose the whistleblower’s identity. This obligation extends to each and every person who may come into possession of the whistleblower’s personal data.
The employer is obliged to protect the whistleblower from adverse action and undertake all necessary measures to stop such action and eliminate the effects of the adverse action. The employer cannot take any action that would disclose the identity of the whistleblower. Also, each employer must appoint a person who will receive information and conduct procedures relating to whistleblowing. Also, the employer must inform all of its employees in writing of their rights as regulated under the WBPA; if the firm fails to do so, it will be considered to have committed an administrative offence.
A whistleblower may disclose information to the public without prior notification to their employer or to a competent state body in the following circumstances: (i) a direct threat to life, (ii) public health, (iii) safety, and (iv) the environment, (v) as well as, the prevention of large scale damage, and (vi) direct threat regarding the destruction of evidence.
Proceedings for the Protection of Whistleblowers
A whistleblower who suffered damages in relation to their whistleblowing is entitled to protection before court. The relevant proceedings are initiated by the filing of a claim within six months from the day the whistleblower learned about damage, but no later than three years from the day the adverse action was conducted. The proceeding is urgent and the extraordinary legal remedy is always allowed.
The whistleblower may request the court to: (i) determine that adverse action was taken against him/her; (ii) forbid the adverse action or its repetition; (iii) eliminate the consequences of the adverse action; (iv) compensate pecuniary and non-pecuniary damages; and/or (v) publish a court ruling.
It is worth mentioning that the burden of proof in the court procedure for protecting whistleblowers is on the defendant.
Finally, the WBPA’s implementation shall be supervised by the Labour Inspectorate. This provision is likely to be heavily criticised in public, given that the labour inspectorate does not have much experience with this topic. Many observers are likely to feel that either the Commissioner for Personal Data Protection and Information of Public Importance or the Anti-Corruption Agency would have been a much better choice for this delicate task.