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Views/ Serbia Acts Against Corruption by Protecting Whistleblowers
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Marjan PoljakAdvokat / Senior Partnermarjan.poljak@karanovic-nikolic.com
19/12/2014
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The Parliament of the Republic of Serbia has adopted a Law on the Protection of Whistleblowers (the "Law"). The Law, which was adopted on 25 November 2014, will become applicable on June 5, 2015. This is the first time that Serbia has a law which should systematically and comprehensively provide effective protection to individuals who report suspicions of corruption. The adoption of the Law has arisen from the necessity for both detailed regulation of the protection of whistleblowers, who, until now, were only partially protected by certain provisions of separate laws, and from certain obligations to which Serbia has bound itself as a signatory to several international conventions in this area. Additionally, the National Strategy for Combating Corruption and its supporting Action Plan has also necessitated this piece of legislation, as the strategy and action plan aim to achieve a full set of anti-corruption legislation.

The Law defines a "whistleblower" as a natural person performing whistleblowing (i.e. disclosing information on a violation of regulations, a violation of human rights, acts by a public authority contrary to their entrusted purpose, etc.) in relation to a professional engagement or recruitment process, the use of services of state or other bodies, holders of positions within a public authority or public services, business cooperation and ownership rights over a business entity.

Besides whistleblowers, the Law also protects individuals who are connected to whistleblowers and suffer detrimental consequences as a result of that connection. Protection is contingent upon the provision of proof damage was incurred due to the said connection. The Law also protects individuals who can demonstrate that certain damaging actions were undertaken mistakenly due to an erroneous accusation of being a whistleblower (or an individual connected with one).

The Law guarantees protection to whistleblowers provided that (i) whistleblowing is done before an employer, an authorised body or publicly available source, in a manner prescribed by Law, (ii) the relevant information is disclosed within a one year period from when the information subject to whistleblowing was learned, but no later than ten years from the date the action was executed, and (iii) a person with average knowledge and experience similar to the whistlerblower's would have believed the truthfulness of the information, based on the data available at the time the whistleblowing occurred. 

Based on the above, the Law provides three different types of whistleblowing:

  • Internal whistleblowing, a disclosure of relevant information to the employer;
  • External whistleblowing, disclosure of information to the competent state authority (e.g. the Anti-corruption Agency etc.) and
  • Public whistleblowing, disclosure of information to the media, or other source of information generally available to the public. 

The new legislation provides special obligations for employers in regards to whistleblowing. First of all, every employer is obliged to inform, in writing, all employed individuals of their rights under this Law, and (if the employer has more than ten employees) to adopt an internal act which should regulate the procedure of internal whistleblowing. Furthermore, employers are required to protect whistleblowers, as well as to implement measures to eliminate identified irregularities regarding the information that has been provided, within the limits of its jurisdiction. The employer is specifically prohibited from taking detrimental actions against the whistlerblower, actively or by omission (e.g. regarding employment, working conditions, salary, transfer, termination of employment, etc.).

The Law also provides that, as a general rule, it is illegal for whistleblowers to publicly disclose information before notifying their employer or the competent state authority. Public whistleblowing, without a prior notification to the employer or the competent state authority, is allowed only in exceptional cases – if there is imminent danger to life, public health, security or the environment from an occurrence of large-scale damage, or if there is imminent danger of the destruction of evidence.

In cases where individual whistleblowers are exposed to repressive measures, the Law gives them the right to request protection from the court (including the adoption of a temporary injunction) within six months from the date the individual learned of actions undertaken which are of a personally damaging nature, and at latest three years following the date that the damaging action occurred. The procedure should be performed urgently, before the high court in the whistleblowers place of residence or at the place where the damaging action occurred. Furthermore, in order to facilitate the position of the whistleblower as plaintiff, the Law provides that the defendant bears the burden of proof that the damaging action was not caused by whistleblowing, provided that during the procedure the whistleblower has demonstrated the likelihood that the damaging action was indeed begat by whistleblowing.

Furthermore, the Law prescribes fines for violations ranging from RSD 50,000 - 500,000 (approx. EUR. 410 - 4,100).

Considering the fact that this is the first time that whistleblowing and protection of whistleblowers has been regulated by Serbian Law, the effects of its application in practice and the actual range of its provisions and whether its adoption will raise awareness of the importance of whistleblowers protection as a tool in the fight against corruption remain unclear.

This article can also be viewed on Global Compliance News.

 

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