The Law on Protection of Whistleblowers (Zakon o zaštiti uzbunjivača, Official Gazette of the Republic of Serbia no. 128/2014, hereinafter the “Law”) entered into force on 4 December 2014, but the implementation of the Law has been postponed for six months and will start from 5 June 2015.
Until the beginning of the implementation of the Law, the protection of whistleblowers in the Republic of Serbia remains sporadically regulated under different regulations, and afforded only to certain categories of persons, in an arguably inadequate and insufficient manner.
Effective protection of whistleblowers is one of the most important means of combating corruption. Therefore legislation such as the Law is pivotal in furthering this goal, i.e. in encouraging people in possession of certain information to “blow the whistle” on illegal and corrupt acts and persons perpetrating such acts.
According to the Law, the act of “whistleblowing” entails the disclosure of information regarding breach of regulations, violation of human rights, exercise of public authorizations contrary to the purpose for which such authorizations were entrusted, risk to life, public health, safety, environment, as well as to prevent extensive damage. The “whistleblower” is a natural person who performs the whistleblowing in relation to his/her work engagement, recruitment process, usage of the services of government and other state authorities, holders of public authorizations or public services, business cooperation and ownership over a company. The work engagement entails engagement for the employer which may be an agency of the Republic of Serbia, territorial autonomy or local self-government, holder of public authorizations or public services, legal entity or entrepreneur.
The whistleblowing can be internal, external and public whistleblowing, depending on the fact whether it entails disclosure of information to the employer, the authorized body, or the media. The Law prescribes specific obligations for employers with regards to the internal whistleblowing, and employers who employ more than ten employees are obliged to prescribe the procedure of internal whistleblowing.
The employer may not act or fail to act so as to place the whistleblower in an unfavorable position regarding the whistleblowing, especially if the unfavorable position is related to the employment, status of trainee or volunteer, work outside employment, education, training or professional development, promotion, evaluation, acquisition or loss of a vocation, discipline measures and penalties, working conditions, termination of the employment, salary and other remuneration deriving from the employment, participation in the profits of the employer, the payment of remuneration and severance payment, placement or secondment to another work position, failure to undertake measures for the protection from harassment by third persons, referral to the mandatory medical examinations or referral to the examinations for the assessment of work ability.
The Law does not prescribe the right to reward of the whistleblowers, even if the whistleblowing causes public revenues that would not have arisen otherwise. Potential whistleblowers could in practice also be demotivated by the provision of the Law that provides for prohibition of abuse of the whistleblowing.
In cases of damage suffered due to the whistleblowing, the whistleblower is entitled to the compensation of damage in accordance with the Law on Contract and Torts.
The Law also applies to the persons who are affiliated with the whistleblowers and towards whom the damaging act was undertaken.
The whistleblower against whom a damaging act was undertaken in relation to the whistleblowing is entitled to protection before the court which may be exercised by filing a lawsuit within six months from the date of knowledge of such act, i.e. within three years from the date on which the damaging act was undertaken.
The Law also contains provisions governing court proceedings regarding the whistleblowing, and the provisions of the Civil Procedure Law governing labor disputes apply mutatis mutandis. The court proceedings regarding whistleblowing are urgent, and the Review of the final and enforceable second instance decision is permitted as an extraordinary legal remedy.
Therefore the Law endeavors to provide full protection to persons reporting the suspicion on corruption and tends to remove all deficiencies of inadequate and partial protection of certain categories of whistleblowers that currently exist in the national legislation. In order to fully implement the Law, it will be necessary to undertake educational measures, legislative measures, and measures of strengthening the positive perception of the operation of courts by citizens, as well as adequate administrative and technical measures.
For example, contrary to Serbia, the neighboring Romania has had the Law on Protection of Whistleblowers in place for five years now, with a highly successful rate of implementation.