Country Study – Serbia
I.) Whistleblowing in general
1.) Did your country who can grade my essay – writemyessayquick.com adopt new laws following the adoption of the UN Convention edit my essay: paper editing & online proofreading service Against Corruption and the Civil Law Convention on Corruption adopted by the Council of Europe? If not, what was the reason of the negligence? If yes, please summarize the changes in your national law.
Did your country formulate reservation against the passages under the Vienna Convention of the Law of Treaties? In the past 5 years, were there any attempt to create legislation in order to protect whistleblowers in your country? If the lawmaking was not successful, please provide a short summary on the proposal and on the reasons of the failure to accept it.
Serbia signed and ratified the UN Convention Against corruption and the Civil Law Convention on Corruption by the Council of Europe. The ratification of the first took place in October 2005. and second in November 2007.
Former Socialist Federal Republic of Yugoslavia ratified the Vienna Convention of the Law on Treaties in 1972.
As there is no general practice to analyze duties after ratification of international conventions, there is no clear overview of measures taken or measures that should be taken in order to make domestic legislation fully in line with their provisions. That was the case with two mentioned conventions as well.
However, in some occasions, the Ministry of Justice, while drafting new legislation took note of compliance of some provisions with international conventions. That was the case, for example, when the Ministry drafted and the Government proposed the Law on the Anti-corruption Agency. The Ministry made reference to Article 5 of the UN Convention that also provides for the establishment of the Anti-corruption body. Furthermore, the Government of Serbia made reference to the ratified international conventions in the field of anti-corruption in answers provided to the GRECO, within the first and second round of evaluation. Such references were mostly related to the duties set by the Criminal law convention of the Council of Europe and UNCAC.
Despites the fact that there are no analyzes of duties made, it is safe to say that no legislation is passed in order to fulfil duties set by the Civil law Convention until now. Of course, in some instances, it was not necessary to do, because legislation in force is already in compliance.
2.) Is there a specific whistleblower protection Act in your country? If not, is there any intent to create such a regulation? What kind of legal regulations deal with crimes of corruption? What kind of sanctions are there against these crimes? Please check your national legislation and jurisdiction.
In the Republic of Serbia there is no general whistleblower protection act. However, there are provisions in various pieces of legislation that may serve as a basis for limited protection of whistleblowers. For example, there is a rule in Civil servants law providing the possibility for a civil servant not to obey to the illegal order of his/her superior and not to be punished because of it. On the other hand, there are also provisions related to the protection of witnesses in the Criminal procedure Code, which might be in some instances relevant for this matter (e.g. in cases where witnesses of a criminal act are at the same time whistleblowers). Furthermore, there are provisions related to reporting corruption or irregularities, providing in some instances the possibility to submit one’s report anonymously. On the opposite side, there is criminal liability for false reporting and accusation for criminal offences set both by the Criminal Code and in media regulation.
However, none of these rules sets clearly whistleblower protection. That is the reason why GRECO, in its joint first and second round evaluation of Serbia, suggested establishment of a whistleblower protection in the following way (in 2005):
98. The GET noted that there are no legal measures in place to ensure confidentiality and to protect employees in public service reporting corruption (so – called whistleblowers) from retaliation. Therefore, the GET recommends to ensure that civil servants who report suspicions of corruption in public administration in good faith (whistleblowers) are adequately protected from retaliation when they report their suspicions.”
When evaluating what Serbia did in order to comply with recommendations, the GRECO plenary concluded the following (in 2008):
91. GRECO recommended to ensure that civil servants who report suspicions of corruption in public administration in good faith (whistleblowers) are adequately protected from retaliation when they report their suspicions.
92. The authorities of Serbia indicate that appeal mechanisms were introduced in the Law on Civil Servants to allow civil servants to contest administrative decisions that may impinge on their rights, notably through the set-up of Appeal Commissions in different State authorities and public institutions. This constitutes an improvement in comparison to the situation found at the time of the on-site visit where the main channel to report allegations of corruption within public administration was through the civil servant’s immediate superior. Moreover, confidentiality applications and hot lines are now available to allow civil servants to report suspicions of corruption. Furthermore, amendments to the Law on Free Access to Information of Public Importance have been proposed to include certain provisions concerning whistleblower protection (i.e. by releasing the civil servant concerned of his/her confidentiality obligations if s/he has suspicions of corruption). Finally, further discussions and potential solutions in this area ofconcern are to take place in the context of a UNDP regional project, which is currently being developed.
93. GRECO acknowledges the different mechanisms in place/being developed to ensure confidentiality and to protect employees in public service who report corruption in good faith. GRECO further notes the ongoing discussion and legislative proposals to further regulate the protection of whistleblowers. In this connection, GRECO wishes to stress that the legislative framework to protect whistleblowers will clearly need to be coupled with adequate implementation/review mechanisms to ensure that the law will work efficiently in practice. GRECO therefore encourages the authorities to pursue their efforts in this area.
94. GRECO concludes that recommendation xxi has been partly implemented.”
The deadline to fully implement provision was the end of year 2009. As seen from the quotes above, among others, the Serbian delegation presented, as a potentially effective tool for the whistleblower protection, changes in the Law on free access to information of public importance.
It was actually a set of amendments to that law, one of them proclaiming protection from any punishment or damage of civil a servant who reports illegal practices or corruption, if only such a person had reasonable ground to believe that the information disclosed is truthful and complete. These amendments were submitted by a group of NGOs and supported by more than 30 thousand voters’ signatures in December 2007.
The provision had indeed a very limited scope of protection, having in mind that it was strictly speaking limited to the authorized civil servants, as that term is defined in other articles of Law on free access to information. In that sense, such protection was guaranteed for those persons in public institutions who are in charge to provide access to information in accordance with that law.
However, the proposal has never been submitted to the Parliament, thus the rules were violated. Furthermore, Government itself proposed its own draft amendments to the Act of Free access to information in December 2009. Government’s amendments were 90% based on those already drafted by the NGOs and the 30 thousand voters, but excluding the ‘whistleblower’ amendment. Such attitude of the government was strongly criticized by non-governmental organizations, including Transparency Serbia, but also by the relevant authority for implementation of the Act of Free access to information, the Commissioner for information of public importance. As Commissioner for information he does not have the constitutional right to put legislative amendments in procedure before Parliament (it is provided to MPs, Government, 30.000 citizens and Ombudsman and National Bank if the law concerns their field of work), another independent institution that has such authority did it – the Ombudsman.
The Serbian Ombudsman, based on its legal authorities, formulated therefore an amendment to ensure whistleblower protection in a much more comprehensive way than peoples’ initiative did. By adopting the Ombudsman’s amendment, Serbia would gain a system where distribution of information not subject to secrecy and privacy concerns is absolutely unlimited and a system where civil servants are legally protected even when disclosing information from confidential documents if such information is pointing to corruption or illicit practices. Of course, the Ombudsman’s amendment also set conditions for whistleblower protection to be guaranteed in such sensitive cases, having in mind a need to protect eventual legitimate confidentiality. This amendment, as clearly noted in the explanatory note was inspired by concepts of the UK Public interest disclosure act.
Government representatives and Parliamentary committee rejected the Ombudsman’s amendment with an absurd explanation: the issue should be regulated in another law, the one dealing with Secrecy documents. The absurdity of explanation is the fact that the Parliament discussed Secrecy law on the very same session with FOI law amendments, whereas the whistleblower protection was not mentioned in the Secrecy Act.
However, as the problem was raised in the public, one MP, coming from governmental majority, proposed his own amendment (which Government expressly agreed with), based on the Ombudsman’s. MPs (Government’s) amendment kept sharp conditions for whistleblower protection, which were necessary to protect public interest in cases of disclosure information from confidential documents. At the same time, the MPs (Government’s) amendment limited protection only to cases where a civil servant discloses documents which is already, without any doubt, under free access regime! Obviously, such “protection” has very limited, if any, positive effect. On the contrary, it may actually discourage the civil servants from disclosing documents of public interest, by asking themselves whether they fulfil the requirements.
It was not just the fact that the Serbian government did not adopt one of identified measures to provide whistleblower protection, what the GRECO should take into account when evaluating fulfilment of recommendation number 25, but also that Government and Parliament missed the opportunity to significantly improve legal framework in that sense, once they had chance to do so, on the basis of the Ombudsman’s amendment.
There was no definition of corruption in the Serbian legislation until recently, although various types of corruption were known for a long time in criminal law. The first definition comes from Law on Anti-corruption Agency, where Article 2 reads:
“Corruption” is a relation based on the abuse of office or social status and influence, in the public or private sector, with the aim of acquiring personal benefits for oneself or another.
There are various criminal offences with corruption element, as defined in Criminal Code. Among them, the most important are:
Abuse of power (Article 359)
Receiving of bribe (Article 367)
Offering of bribe (Article 368)
Trading in influence (Article 366)
Violation of law by judge (Article 360)
Bribery in relation to the voting (Article 156)
Furthermore there are other criminal offences that also might have an element of corruption.
As seen, the sanctions for corruption is always imprisonment where duration depends on the level of crime severity.
3.) Is there any anti-corruption Act? Does it include provisions on whistleblowers? Please describe the main characteristics. When was it adopted, how effective is it? Please use quotations from the press, researches, and public figures.
Serbia has plenty of acts that may fall under the definition of “anti-corruption” act. There are relevant criminal law provisions, provisions of criminal procedure code and provisions of other legislation dealing with criminal matters. There are several laws dealing with the prevention side of fight against corruption, such are Law on free access to information of public importance, Law on Public procurements, Law on political party financing and others. Until recently, there was also a Law on prevention of conflict of interest in discharge of public function.
However, the act that could be most clearly defined as anti-corruption one is Law on Anti-corruption Agency, which is in force since January 1, 2010. This law provides for the following major duties of the Agency:
Competencies of the Agency
- supervises implementation of the National Strategy for Combating Corruption (hereinafter “the Strategy”), the Action Plan for Implementation of the National Strategy for Combating Corruption
(hereinafter “the Action Plan”) and sector action plans;
- institutes proceedings and pronounces measures for violation of this Act;
- rules on conflict of interest;
- performs tasks in accordance with the law governing financing of political parties;
- issues opinions and directives for enforcing of this Act;
- launches initiatives for amending and enacting regulations in the field of combating corruption;
- gives opinions related to implementing of the Strategy, Action Plan and sector action plans,
- monitors and organises coordination of the government bodies in the fight against corruption;
- keeps a register of the officials;
- keeps a register of property and income of officials (hereinafter “Property Register”);
- extends expert assistance in the field of combating corruption;
- cooperates with other government bodies in drafting regulations in the field of fight against corruption;
- issues guidelines for developing integrity plans in the public and private sector;
- introduces and implements education programs concerning corruption, in accordance with this Act;
- keeps separate records in accordance with this Law;
- acts on complaints submitted by legal entities and natural persons;
- organises research, monitors and analyses statistical and other data on the state of corruption;
- in collaboration with competent government bodies monitors international cooperation in the fight against corruption;
- performs other tasks set forth by law.
There is no provision of whistleblower protection in that act. However, there are provisions dealing with receiving complaints related to corruption. The Article 65. reads:
Complaints Article 65
The Agency shall accept complaints from legal and natural persons, within its purview. The Agency shall not proceed on anonymous complaints.
The Agency may request from the party submitting a complaint to provide
additional information, explanations and documentation.
The Agency shall notify the complainant of the outcome of the complaint.
Having in mind that Agency started to operate only a few months ago, it is too early to have any conclusion about effectiveness of new legislation.
4.) Please examine whether the concept of public interest exists in the national law of the participant countries, and whether it can be used as a replacement of the whistleblowing scheme, or it might be complementary with it. (For instance, there is a general whistleblower act, however, the protection of public interest disclosure on wrongdoings that effects the environment is more specified, and differs from the general whistleblower protection.) We expect the participants to examine how the concept of public interest, whether explicitly or implicitly stated, informs and influences the possibility of disclosure information of wrongdoings, and how this concept influences regulatory activity in some particular context. Please search and describe at least 3 special not whistleblower, but public interest disclosure or public interest litigation scheme in your country. We advise you to look around in the field of consumer protection, environmental protection, broadcasting regulation, public health regulation; however other possible fields are welcome as well.
The concept of public interest protection is developed in various ways in the Serbian legislation. There is no general right to initiate actio popularis (i.e. by other people or entities, and not just those affected by some act or omission). The first step to influence the public on protection of public interest is through reporting the wrongdoings to the relevant body. It is not just an option for a civil servant, but it is also a duty, in particular if the wrongdoing has elements of criminal offence. There are no specific provisions for protection of whistleblowers of that kind. However, it is possible to impose measures of witness protection if necessary.
Another possibility to point out wrongdoing is the one that that includes various complaints mechanisms, i.e. for persons directly affected by such decisions. In most of the procedures and institutions it is possible to file such a complaint to the same institution where the problem occurred (e.g. in courts, to file a complaint to the court president) or in some institutions which is hierarchically above problematic one or somehow specialized for the problem (e.g. to complain to the labour inspection). Moreover, some institutions do have hot-lines and other similar mechanisms, aimed to collect complaints from any person.
As for specific legislation the situation is the following:
The law on consumer protection provides wide range of possibilities for individual consumers’ complaints. Furthermore, there is the possibility to establish specialized associations of consumers. Such organizations are given, among other rights (Article 68): to protect individual and common interests of consumers, to provide consumers information, advices and other aid in enforcement their rights, to perform independent monitoring of quality and safety of goods and services, to lodge complaints to the relevant authorities, to lodge action for protection of consumers’ rights etc. As visible, there is a basis for public interest protection through activities of consumer protection organizations, but the method is not further developed by the legislation.
The Law on protection of environment does not have provisions dealing with public interest processes. There are provisions on damage payment, providing opportunity for everyone who suffer damage. There are also provisions guaranteeing access to the documents related to the pollution of environment and those related to the inspection oversight.
Broadcasting Law provides for the establishment of an independent regulatory body, the Serbian broadcasting council. The broadcasting council is in charge of monitoring the work of the broadcasters, to issue licenses for broadcasting, to monitor implementation of advertising rules by broadcasting companies etc. Among other duties, the Broadcasting Agency is in charge of making “decisions on the basis of complaints of natural and legal entities and about complaints of broadcasters related to the acts of their competitors” (Article 8, line 7). The Agency submitted a form on its web site as a basis for such complaints. There is no special regulation on protection of those making complaints, but they can effectively stay anonymous.
In the domain of public health the Law on public health protection provides for the “right to complain” and the “right to ask for damages” (articles 39 and 40). Each health institution is obliged to appoint a “protector of patients’ rights”. The patient may submit his/her complaint to the protector any time, written or orally. The protector has to answer either immediately or within five days. These patient protectors are lawyers employed in medical institutions. There are no special provisions on whistleblowers.
5.) In countries without a specific whistleblower protection, there are often separate regulations on protecting witnesses of crimes, informants, workers pursued by employers, etc. These regulations may/could be used as a kind of whistleblowing protection.
Are there any provisions that might be used for whistleblowing in your national regulation on:
a) civil servants,
b) workers rights (Labour Law),
c) witness protection,
d) public interest or
e) any other law? If yes, please describe them.
A) As explained before, there is no whistleblower protection legislation in Serbia, but there are provisions aimed to protect civil servants, workers, witnesses and public interest in some laws. These provisions may be used for various purposes, but not always for whistleblower protection.
For example, the Law on civil servants provides protection against illegal acts of their superiors. However, the whistleblower providing information to the public determined as “confidential one” commits him/herself a criminal offence and therefore cannot ensure protection of legal rights in front of appeal commission (in disciplinary procedure) or in front of court (in case of criminal procedure). However, the issue may be treated also in a different way, having in mind the recently adopted Law on secrecy.
That law provides that is illegal to assign secrecy to the document in order to cover up illegal act. However, if someone does so, the document will be still secret, until secrecy is withdrawn.
Labour law also provides remedies for violation of workers’ rights, without any implicit or explicit mentioning of whistleblower protection.
Witness protection is regulated through the Criminal procedure code.
The most relevant legislation for public interest issues is previously Law on free access to information of public importance. That law provides for assumption that any information possessed by public authority should be publically available, whether pro-actively or on the basis of request, unless public authority deny such access on the basis of criteria set by that law.
6.) Is there any regulation that prevents public disclosures? What kinds of data are per se confident? What kind of data can be made confident? Who decides about making data confident? Is there a possibility for a review?
Serbia recently adopted Secrecy law, which replaced dozens of documents dealing with secrecy of documents.
The law contains definition of information that could be made secret. First of all, there is “information of interest for Republic of Serbia”, i.e. each information or document possessed by public authority, related to the territorial integrity or sovereignty of Serbia, protection of constitutional order, human and minority rights and freedoms, national and public safety, defence, internal affairs and foreign relations”.
The second type of information is “secret information” – the information of interest of the Republic of Serbia, declared and sign with certain confidential level, on the basis of law, other regulation or decision of relevant body issued in accordance with the law.”
Article 8 defines more precisely the secret information of interest of the Republic of Serbia. That is information which if uncovered to the unauthorized person would make damage. The additional condition is that the need to protect interest of the Republic of Serbia is greater than the interest for free access to information. The information is particularly those related to the: 1) national safety of the Republic of Serbia, public safety, defence, foreign policy, safety and intelligence.
Article 3 declares that “information signed as a secret in order to cover criminal offence, abuse of power or another illegal act or acting of public authority”. That provision is certainly of extreme importance for whistle blowing. However, the problem with this provision is the fact that there is no prescribed mechanism to remove the secrecy of such documents in case of violating the law.
There are four classes of secret information – 1. state secret, 2. top secret, 3. secret, 4. internal
According to article 9 of the act, there are several categories of persons empowered to declare secrecy:
1. Chair of National Assembly
2. President of the Republic
3. Prime Minister
4. Head of public authority
5. Public official authorized by special legislation or superior official
6. Person employed in public authority with written approval of the head of that institution
The review of secrecy could be done in several instances. According to article no. 16 and several other provisions, there are situations where secrecy stops mandatory (e.g. expire of date), publication of secret information, but also de-confidentialization.
De-confidentialization is further regulated in Article 21, and the basis for it would be a periodical review of secrecy, proposal for de-confidentialization or “decision of relevant authority”. Article 22 provides for a periodical review of all secret documents (e.g. once in 10 years for state secrets).
Article 23 regulates the de-confidentialization on the basis of proposal of the “user of secret document”, while article 24 provides for the possibility to make on the basis of control made by Office of National Security and Protection of Secret Data Council.
Article 25 regulates situations where secrecy is removed on the basis of the decision of the Commissioner for information of public importance and protection of personal data. Article 26 provides the possibility for top state officials (chair of Parliament, President, Prime-Minister) to de-confidentialize for reasons of public interest or international duties.
Finally, Article 105 (transitional provisions) provides for a mandatory review of the existing secret documents within 2 years aftre the entry into force. However, it is not clear what will happen with the documents eventually not subject to such review.
7.) A chance to evade corruption or taking part in corrupt actions as an employee could be the refusal of specific commands that result in breaking the law. Do employees have the right to reject tasks that might be unlawful? In what cases is it possible? What protection might they receive?
Serbian legislation for decades has such provisions. In current Law on civil servants, adopted in 2005, there is Article 18 with relevant provisions.
This article firstly provides the civil servant with the duty of acting upon the oral order of his/her superior, except when he or she considers such order to be contrary to the regulations, rules of profession, or potentially damageable. The civil servant should report that concern to the superior. However, if the superior repeats order in written, civil servant will have to act upon it. Only in cases when acting upon such orders would lead to punishable offence, the civil servant would have not just the opportunity, but it will be his/her duty to refuse such order and to report this to the head of the office or relevant oversight body.
The protection of civil servants will depend on the eventual consequences but also on the circumstances of the case. Obviously, the civil servant cannot be legally punished because of rejecting or reporting wrongdoing of his/her superiors. However, there is no protection if such a civil servant suffers damage somehow, on the basis of other legal ground.
Those civil servants not following the above mentioned procedure are not protected and they can be subjected in disciplinary procedure.
8.) In some professions (e. g. police officers, state servants), it is often obligatory to report misconducts and malpractices. Is there any regulation that orders the report of unlawful practices? (E. g. in the case of state servants.) What sanctions are there against those who refuse to report crimes?
Besides Article 18 of Law on civil servants, already elaborated under the previous question, there is also a provision in the Criminal Code regulating more directly this issue.
Namely Article 332, describes criminal offence of “not-reporting criminal offence or perpetuator”. Paragraph 2 of that article relates to the offence made by “official person”, including all civil servants and public officials. In case of consensual omission to report criminal offence that an official is aware of throughout its work, and if such criminal offence is potentially punishable with 5 years of imprisonment, such person risks between 6 months and 5 years of imprisonmet.
Paragraph 3 of the same Article regulates situations where such a criminal offence is one of the most severe ones (punishable by 30 to 40 years in prison).
9.) Are there public hotlines for reporting corruption or malpractices? Who operates these lines? Is it possible to report anonymously? Do you have any figures on their effectiveness and usefulness?
Various government agencies are running such hotlines. Basically, there is no specific hotline regulation, and such services are usually part of regular jobs of various oversight bodies within the government agencies, just being better promoted among citizenry. Namely, the most of the agencies do have some oversight bodies of that kind. Where special hotlines are established, the basic difference is that they are operating with toll-free numbers.
Such services were established for various purposes during the past years at the Police, Custom service, Tax administration, Ministry of education, Ministry of trade and elsewhere.
The lines are operating by civil servants of relevant agencies.
It is possible to report anonymously. However, in practice, not anonymous reports do have some advantages (possibility to check further acting, possibility to witness on eventual trial etc.). Due to nature of telephone communication, virtually any call could be conducted as anonymous one.
The reports about effectiveness and usefulness are not regularly available.
10.) In almost every organisation, there are internal channels for dealing with conflicts and regulating malpractices. Codes of conduct describe these channels and best practises. How common are codes of conduct in the private and public sector of your country? Are they obligatory? Are there any uniform codes of conduct in particular areas?
There are codes of conduct, mostly recently dated in various spheres of society. They are different in legal status, scope and approach. Codes are mandatory for those covered by them (e.g. members of professional associations, civil servants). We are not aware of any uniform codes of conduct.
It is worth to mention here Code of conduct for civil servants (covering those employed in central government administration), Code of conduct for local government officials, adopted in the vast majority of the cities and municipalities, Code for journalist profession (adopted jointly by major journalists’ associations), Code for broadcasting entities (issued by Broadcasting agency) and codes of various other professionals, issued by their organizations (medical profession, engineers, lawyers etc)
Private companies are sometimes, but still rather rare issuing some ethical policies. More often, companies with foreign capital and in particular those from the USA are attaching Code of ethics provision to labour contracts or publishing them on their web pages (e.g. US Steel Serbia).
On national level the Serbian chamber of commerce adopted the Code of corporative management and the Code of business ethics.
11.) Is whistleblowing covered in codes of conduct? Are whistleblowing cases featured in compliance/annual reports? Please contact at least three of the biggest companies of your country and three state offices and specify, whether they have codes of conduct and if they have registered any cases of whistleblowing. Please describe the regulations in those codes of conduct which can be used for whistleblowing, or disclosing information.
In general, most of the Code of conducts in public sector are poorly promoted, monitored and implemented. To certain extent, this is not the case with the Code for local government officials, where Standing conference of Serbian cities and municipalities organized a wide campaign and help with the establishment of monitoring boards in dozen of municipalities.
However, whistle blowing is usually not part of assessed codes in public sector and in professional associations.
There are however some exceptions. The code of business ethics, in Article 92 provides for secrecy of identity of the person that reports to the Chamber of commerce the violation of the Code. However, protection is not absolute in following cases: 1. When disclosure of identity is necessary for the purpose of procedure to establish violation. 2. When such disclosure is mandatory by the law. 3. When the person allows to be identified. Article 93 of that code provides for ban to take repressive measures against the whistle blower.
The Code for municipal officials does not have whistle blower provisions, but the act regulating work of municipal monitoring boards provides the possibility for anyone to report anonymously the violation of the code.
12.) Sarbanes and Oxley Act. The interpretation of the law is not evident: the hotlines under Section 301 of the SOX can or could be used by subsidiaries of a company present in the United States. Should the subsidiary company establish such channel so the parent company will suffer no harm from the sanctions by the Securities Exchange Commission? Can an employee working outside the United States submit a report through these channels?
In order to clarify these issues, we require the participants to contact at least three companies registered at the New York Stock Exchange market, and specify whether these subsidiary companies are required to comply with the Sarbanes and Oxley Act or not. If so, to what extent, and what measures were taken in order to comply with the SOX? Participants are also asked to examine whether employees at a subsidiary faced cross border jurisdictional collision because of the extraterritorial rules in the SOX.
We identified reporting mechanisms established by several US companies operating in Serbia (e.g. US Steel Serbia) for violations of their Code of conduct. Even if there is no explicit reference to SOX, it seems that the basic idea is the same.
13.) Does your national whistleblower law – or the ones that replace it or complement with it – give authorization to process personal data in order to operate whistleblowing regulation? Does your national law require specific legal norms to impose data processing in whistleblowing schemes (like Article 7 c. of the EU Data Protection Directive), or is it less flexible, and the balancing between the protection of personal data and other legitimate interests may produce a lawful reporting system (like Article 7 f of the EU Data Protection Directive.)? Please describe what are or what would be the conditions of legal data processing in a whistleblowing regulation in your national law.
Does foreign legal statute or regulation – like SOX – qualify as a legal obligation by virtue of which data can be processed lawfully? l Did your national authority (data commissionaire, information commission, etc.) responsible for the protection of personal data take a stand on the relationship of public interest disclosures and data protection? If so, please describe his/her/its position.
As explained, there is no clear whistle blower regulation in Serbia. There is the Law on personal data protection regulating conditions to collect and operate with personal data and other related issues. The Commissioner for information of public importance is also responsible for protection of personal data and performs the oversight of implementation of this law.
There are no special rules for operating with personal data of whistle blowers.
14.) Please summarize five legal cases on whistleblowing from the last 5 years. How did they become public, what were the motives of the whistleblowers? What information was made public? Did they receive any retaliation? Did they receive any help from the authorities or any support from society? Were there any legal processes?
As said, there is no legal protection of whistle blowers in general. However, there were some whistleblower-like cases, that attracted media attention.
A pupil and user of dormitory pointed on abuses committed by the director of that institution. He noticed irregularity with money collection from pupils and used free access to information law to obtain information about the use of the funds. The institution refused to provide it, but the Commissioner for information ordered to provide public support for the case. The pupil lost his scholarship for the next year due to his engagement. However, public prosecution initiated a criminal investigation and several people were charged for violations. The system of money collection also changed.
A worker of the Serbian road company reported anonymously large scale abuses with road fee collection for trucks. The company did not renew labour contract with him. Then he individually collected some evidence of abuses and tried to collect the rest of the material through free access to information law. The company denied access because of the alleged secrecy. Several months later, the police uncovered a huge organized group committing abuses and prosecution initiated process against the “road mafia”. There was no reward for the individual who pointed to the abuses first.
A member of the Railroad company management pointed to illegal public procurements at the company. He was dismissed. The investigation is ongoing as well as a trial to protect labour rights.
All mentioned cases attracted huge media interest and the support of the public for whistle blowers. The commissioner for information has also huge credit for making this cases matter of public debate.
15.) How well-known is the term whisteblowing? Are there any other expressions used for whisteblowing or any similar activities? What do they mean?
The term whistleblowing is well known among people having greater interest in the issue. In some instances terms “insider” and “source of information” are also used. There are also other words to describe such behaviour in the Serbian language, but usually they do have negative context in public discourse.
16.) Are there any figures on the incidence of whistleblowing? Is it being tracked from time to time? Please check studies, researches on this topic.
17.) Are there any figures on state funds that were saved through whistleblowing? If there are no official statistics, please check articles on whistleblowing cases.
No, there are no such statistics.
In publically known wb cases, the damage already occurred and eventually stopped after disclosing information. Therefore, one can only guess how big a damage is prevented.
Furthermore, it is not always clear to which extent the whistleblower’s role was decisive to resolve the case and whether other factors also influenced.
18.) What are the most common types of attitude towards whistleblowing in the press/generally in society? Was/is there a discussion on the usefulness of whistleblowing? Is there any fear concerning whistleblowing?
Currently, the dominant attitude is supporting. The media is ready to publish information of that kind and take the stand for the whistleblower in particular when public funds are abused.
The general discussion about the usefulness of the whistleblower is not very developed. Legislative reforms in that area, were, for example less interesting for the media than individual cases.
Concerns about whistleblowing are extremely rarely considered or discussed in the public discourse.
19.) What is the public attitude towards reporting to the police and public disclosure? Please refer to queries, researches and other figures.
We are unfamiliar with such researches. In one of the researches of Transparency Serbia, based on a national sample made in 2006, on the question “whom would you address if faced with a corruption problem”, only 11,1% named the police.
However, it is safe to say that reporting an irregularity noticed at the working place (work of colleagues) is still considered by many as something an individual should not always do. Indeed, it seems that whistle blowing would rarely take place if not at least partially caused by some other type of conflict within the organization (e.g. fired employee reports on irregularities occurred while he/she was employed).
The main reason for not making reports are safety or other personal reasons. Even if not expecting to suffer any damage, the potential reporters do not have any motivation to make such reports. Furthermore, they may often expect to be bothered later (to provide a statement in the investigation and in the court session). Therefore, such reports are more likely to be made by persons directly affected by wrongdoings.
20.) How often does your national media report whistleblowing cases? Please use the archives of your major papers, online news sites, and check cases from the last five years.
As explained before, the media provides coverage for a selected number of whistleblowing cases. For example, Ivan Ninic, the pupil and the employee of the Road company, Goran Milosevic, were several times guests at prime-time TV programs when abuses were discussed.
However, the number of whistleblowers is much bigger and most of the whistleblowers do not have any kind of media promotion, but rather decide to provide documents anonymously. It seems also that the number of those interested in blowing the whistle in the media is bigger, but that media is not always interested in making in-depth analyses of the case.
21.) Are there any non-governmental organisations dealing with whistleblowing? Who are they? What do they exactly do?
The Coalition for free access to information (dozen of NGOs) promoted the idea of a whistle blower protection through Free access to information act.
Transparency Serbia, which is also a member of the above mentioned coalition has run for several years an anti-corruption legal advisory centre. Many of the clients of TS are potential whistle blowers and TS helped them (or did it instead) to collect further information about wrongdoings, to file a complaint to the relevant bodies, to check the outcome of the complaint or to establish links with the media.
II. Features/characteristics of whistleblowing. (If there’s a plan afoot for a whistleblowing regulation, please describe the proposed measures.)
1.) Please, define the range of subjects of whistleblowing legislation. Does it cover both private and public sector? Does it cover only crimes of corruption (which are these?), or other wrongdoings as well? (E.g. danger to the environment, any kind of discrimination, etc.)
There is no clear legislation for whistleblowing, except for the already explained limited instances.
Protection under Free access to information act is limited to whistleblowing related to the public sector.
2.) Who is protected by the whistleblowing legislation? Only people who are involved in the reported case or also witnesses? What about the relatives of whistleblowers? Are there any exceptions from the scope of legislation?
There is no whistle blower legislation, except in the already elaborated, limited instances.
The protection under free access to information act is related to the whistleblower only.
3.) Please, explain the channels of disclosure. In some countries, disclosures must be made inside the organisation. In others, legislation prefers external channels (special authorities, anticorruption office). Describe the possible channels in your country. Is there a prescribed order for the use of different channels of disclosure? Are there any sanctions for ignoring the proper channels?
Serbian legislation, although poorly developed, prefers internal disclosure or disclosure to the relevant body rather than external disclosure. That is the rule in the recently adopted provision of Free access to information law.
On the other hand, for reporting criminal offence, the preferred channel is the one that goes directly to the police or prosecution office. But there is another risk – in case of fake reporting, the whistle blower will be himself criminally liable.
It is also important whether the information disclosed is protected as a secret one or not. If the former, the mechanism for protection does not exist, but there are less potential consequences if the report is made internally or to the relevant body.
4.) Turning to publicity is often the last possibility for whistleblowers. Does your national whistleblower law protect disclosures made in the media? Can the press or any other types of publicity, e.g. NGOs act as disclosure channels?
There is protection for the “source of information” also in the media legislation in general (i.e. not to disclose it). There is no special protection for whistleblowers that identify themselves. However, the actual level of protection will depend on the nature of the document disclosed (whether it is assigned as a secret one or not) and also on the fact whether there is some explicit violation of “innocence assumption”. If any of these is violated both the whistleblower and the media may suffer damage.
5.) One big problem for investigative journalism is that newspapers are often obliged by the law to disclose their informants and witnesses to the authorities. This also means that whistleblowers cannot rely on confidence of the press. Does your national law give protection to sources of the media? Please describe shortly the relevant legal background.
The law on public information in Article 32 provides protection for journalists’ secret. Journalist would not have to disclose their source of information except in cases where the criminal offence concerned is punishable with 5 years of imprisonment or more.
6.) Time is money. Whistleblowers who got fired or suspended will hardly make ends meet if they don’t receive any financial support. This calls for quick procedures. Are there any time limits for the legal procedure in your country? What are they?
The law on labour in article 195 provides that labour dispute, where employee seeks for his rights before the court should be finalized within a six months limit.
7.) Is there a specific whistleblowing / anticorruption institution or oversight body in your country? What sort of investigative power does it / do they have? Who appoints its leaders? How effective is its work? Is it independent or subordinated to the government?
There are several anti-corruption institutions in Serbia, independent from the government.
The Anti-corruption Agency is rather a new one. Nine members of its board are appointed by the Parliament on the basis of various institutions proposals. The board recruited the director and the director recruited the civil servants. Investigative power is rather limited. However, they may ask information from other bodies in particular regarding conflict of interest issues.
The Commissioner for Information of public importance and Protection of personal data is appointed by the Parliament. The Commissioner has inspection powers in the personal data protection area.
8.) People often don’t dare to make information public because they are afraid of retaliation. Therefore, protection of personal identity and data is crucial. What measures are taken in your country to ensure confidentiality and the protection of data privacy? Is it possible to report cases anonymously?
As mentioned before, Serbia recently adopted the new Law on personal data protection. However, it is still poorly implemented and some by-laws are missing, while the Commissioner has no sufficient staff to perform oversight. That makes personal data still very vulnerable.
It is possible to report cases anonymously.
9.) Do whistleblowers participate in the process following their report? Are they being informed about the proceeding? If there are no special regulations for whistleblowers, please describe the ways clients can follow the proceeding of their legal affairs.
Whistleblowers may follow the process going after their report (if identified themselves). Generally, they have to show interest in order to obtain information (to ask for it). The level of information provided to them will depend on the status of investigation and the eventual need to keep its secrecy. Only in cases when they also suffered damage because of wrongdoings, they will be officially informed about the outcome of the investigation, and will have the chance in some cases attend court processes.
10.) As mentioned before: the risk of losing one’s job or salary makes the decision whether to report or not even harder. What kind of protection do whistleblowers receive against reprisals? What kind of remedies might they get? Is there a criminal penalty against those who retaliate against whistleblowers? Do whistleblowers receive state aid?
The way of protection is not defined. Basically, they may initiate a court process if illegally dismissed as would they for any other illegal reason.
Retaliation of a whistleblower might be considered as the criminal offence “official power abuse”.
There is no state aid for whistleblowers.
11.) Whistleblowing is considered as an act made without any personal concern but for the common good. However, in some countries, whistleblowers can receive a reward for disclosing information. Is there any encouragement for whistleblowing in your country? (E. g. rewards or getting a certain amount of the money saved by the act of whistleblowing.) If yes, please describe the system of encouraging whistleblowers.
Generally not. However, it is possible to consider whistle blowing as a good work performance and to provide some indirect reward for such civil servants (e.g. good annual mark, small financial award).
Few years ago, the tax administration ran a campaign for reporting violation of the new VAT law. Reporters were eligible for small pecuniary awards if they reported that someone was operating without a fiscal cash register or did not issue receipts.
12.) To what extent does the law impose legal liability for false or malicious reporting?
It is regulated by the Criminal Code, Article 334. There are several options. For intentional fake reporting a criminal offence made by a person who identified him/herself, punishment is from 3 months till 3 years imprisonment. If an investigation is made on the basis of fake reporting, based on fake evidences, the punishment is harder (6 months / 5 years range). For fake self-reporting and for reporting a criminal offence without identification of perpetuator, the punishment is fee or up to 1 year imprisonment.
13.) What are the general ways of legal review in your country? Please describe the legal possibilities of re-examining a legally-binding verdict in your country. What are the ways of reviewing verdicts in whistleblower cases?
The legally binding verdict may be in some cases challenged through “extraordinary legal remedies”. The person whose rights are affected may also in some cases use the right to make a constitutional complaint to the Constitional court.