This article, authored by Milena Jakšić-Papac, was originally published in the 2016 European Update Brochure published by Shepherd and Wedderburn LLP.
A law on the Protection of Whistleblowers has been applicable since 5 June 2015. This is the first step to ensuring that individuals who report suspicions of corruption are effectively protected in Serbia. The National Strategy for Combating Corruption and its supporting Action Plan necessitated the enactment of this type of legislation in order to complete the anti-corruption legal framework in the country.
The law deines a 'whistleblower' as a natural person who performs an act of 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.
Aside from whistleblowers, the law also protects individuals who are connected to whistleblowers or who are mistakenly believed to be a whistleblower and who suffer detrimental consequences as a result.
The law guarantees protection to whistleblowers provided that:
- the whistleblowing disclosure is made to an employer, an authorised body or publicly available source, and in a manner prescribed by law;
- 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
- a person with average knowledge and experience similar to the whistleblower's would have believed the truthfulness of the information, based on the data available at the time the act of whistleblowing occurred.
Based on the above, the law provides for 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.
Obligations for employers
Every employer is obliged to inform, in writing, all employees of their rights under this law, and (if the employer has more than ten employees) to adopt internal whistleblowing procedures. An employer is speciically prohibited from taking detrimental action against a whistleblower, actively or by omission (e.g. regarding employment, working conditions, salary, transfer, termination of employment, etc.).
As a general rule, it is also illegal for whistleblowers to publicly disclose information before notifying their employer or the competent state authority, save in exceptional cases – if there is imminent danger to life, public health, security or the environment, or if the destruction of evidence is imminent.
In cases where individual whisleblowers experience repressive measures, the law gives them the right to request protection from the court (including the adoption of a temporary injunction). Legal action can be taken within six months from the date the individual learned of the employer's damaging actions and, at the latest, within three years of the date the damaging action occurred. The law prescribes ines for violations ranging from RSD 50,000 - 500,000 (approx. €410 - 4,100).
This is the irst time whistleblowing has been regulated by Serbian law. Therefore, the impact that the law will have in practice remains unclear.