We are pleased to present an analysis of this important new law by one of WIN’s founding members. Bea Edwards is the International Program and Executive Director of the Government Accountability Project.
As noted in the October post by Serbian journalist Vladimir Radomirović, WIN played an important role in helping to strengthen the Serbian whistleblowing law that will take effect 5 June 2015. WIN Director Anna Myers was involved in early discussions organized by the Serbian Information Commissioner as the formal task of drafting the law began but most importantly, legal and practice knowledge was shared by experts inside and outside of the country via the WIN network throughout the process. In 2014, Ms. Myers coordinated a letter from WIN’s founding members to Serbian parliamentarians recommending some additional changes to strengthen the law. One of the suggestions – allowing the Anti-Corruption Agency to continue playing an early role in protecting whistleblowers – was heeded.
Next month, one of the world’s strongest national whistleblower protection law is scheduled to take effect in Serbia. With this law and a top-rated access to information law, the formerly war-torn country is poised to set the global gold standard for transparency – at least on paper. Since the bar is so low, even the world’s best whistleblower law still has serious flaws that could undercut its potential. Still, it would be hard to ask much more now than was produced after a two-stage process enfranchising virtually all sectors of Serbian society willing to participate. This review summarizes the law in reference to global best practices for whistleblower rights in scope of coverage, forum, rules to prevail, relief for those who win, and credible corrective action.
Even with strong legal protections whistleblowers in Serbia will face an uphill battle to claim their rights. Because the country has a recent history of extensive corruption in the privatization of state-owned enterprises, the stakes are high. Although Serbia’s Agency of Privatization was to ensure that foreign investors buying public companies were legitimate, the privatization law featured a loophole: investors were not required to fully disclose their identities and ownership structures. During the sale process, a number of well-informed workers went to the police about shadowy investors but their disclosures were not investigated. The International Consortium of Investigative Journalists recently cited a report by Global Financial Integrity showing that nearly “$51 billion in ‘illicit financial flows’ left Serbia from 2001 to 2010, the 16th highest total among 150 developing nations.” To combat the problem of corruption, the whistleblower protection law has been designed without loopholes. Now the Serbian government must ensure that come June it is implemented in reality.
Scope of coverage
The scope is remarkably loophole free, with uniform rights for all corporate and government workers, including equal rights for military, intelligence and even judges or other courtroom employees. The only disqualifier for eligibility is if the employee blows the whistle to seek an illegal benefit.
There are no loopholes based on context or formality. Limitations on the time by which a disclosure must be made — within a year of discovering evidence if within ten years after misconduct occurred – are necessary for relevance. The limitations on audience largely conform to European principles for public freedom of expression without internal notice – immediate threats to public health and safety or the environment; significant damage, or destruction of evidence. Even beyond those exceptions, public freedom of expression is protected after first making disclosures to relevant corporate or government offices.
The subject matter scope extends to illegality, abuses of authority, human rights violations, threats to public health, safety and the environment, and any “large scale damage.” Protection is not limited to final messengers. The shield applies to those associated with or wrongly perceived as whistleblowers; those who make otherwise-protected disclosures as part of their job duties; and even those requesting information that could be used for a disclosure.
The protections apply against any act or omission that places the whistleblower at a disadvantage. For insurance, the law has an airtight “anti-gag” order provision rendering null and void any portions of other laws or policies or orders that contradict the new free speech rights. It even requires every corporate employer with more than ten workers to draft and distribute to its labor force a customized version of the new law, approved by Serbia’s Ministry of Justice. Failure to do so is a misdemeanor.
The protection for confidential whistleblowing disclosures creates a new high for global standards. The law protects not only identities, but identifying information; requires disclosure of the limits for confidentiality protection; requires continued enforcement of the original confidentiality protection if the case is delegated or transferred; and requires advance notice if it is necessary to expose the whistleblower. It requires employees to protect the confidentiality of internal disclosures. Unless otherwise required by law, the law also gives confidential whistleblowers veto power over delegation of the case to another authority.
The law’s foundation is access to courts that maximize judicial independence from political pressure and hear the nation’s highest stakes cases. Significantly, the national Judicial Academy conducts training for all judges from the misdemeanor to Supreme Court level, and to make rulings every judge must first be certified after completing the training.
Rules to prevail
The statute of limitations to act on rights is six months. In order for timely cases to be eligible for protection, the law requires that the information be credible to another person with similar knowledge and experience. Although the whistleblower can be mistaken, there is no protection for knowingly false disclosures. This standard for protected activity rejects the good faith test, a lesson learned from experience that in practice put the whistleblower’s personal motives on trial as a prerequisite for protection. Rather, it reflects the criteria behind the objective “reasonable belief” test. Similar to the valid principles behind the good faith test, however, the law does not protect knowingly false disclosures.
The law has a two part burden of proof to govern who wins the case. First the employee must establish that whistleblowing probably had a connection, or was relevant, to damaging action taken against him/her. If the employee establishes relevance with a preponderance of evidence, the employer then has the reverse burden to prove it acted for independent reasons, not related to the employee’s whistleblowing.
Relief for those who win
The law provides “make whole” relief to cancel all direct and indirect effects of retaliation, as well as transfer to a new position where needed, payment of attorney fees and other costs. The provisions are particularly strong for interim relief, which the court can grant at any time before, during or after a trial. The court must act on a motion for interim relief within eight days, and an order granting it cannot be appealed. The court also can impose personal accountability through fines on those who engage in retaliation.
Making a difference
This is another area where the new law is unusually strong. Whether the employer is government or corporate, the law requires initial action within 15 days of receiving the disclosure. If there is an investigation, the whistleblower is entitled to status reports, access to the investigative file, participation in the probe, and notification of the results.
There are two core explanations for this rare opportunity to applaud a whistleblower law. The first is a genuine commitment from the top, as Serbia’s Ministry of Justice (MOJ) exercised a tireless leadership commitment to match best practices. The second reason is that the entire society eventually was enfranchised in the two-step process. The national Ombudsman and Anti-Corruption Agency led the first stage, which produced a basically solid, inspired draft law. But it reflected a small circle of stakeholders within the nation, and the result was tainted by multiple vulnerabilities that could have been disastrous. While the Ombudsman refused to participate in the second stage, the MOJ enlisted a broad working group drawing from the judiciary, whistleblowers, business, labor, NGOs, prosecutors, media and international experts. The group conducted town hall meetings throughout the nation, and worked for over a year to achieve consensus on every provision. The judges made sure that the new rights were structured for compatibility and integration into Serbia’s existing judicial channels. The result is best practices for new rights that have been customized to, rather than imposed upon, the nation’s institutions and procedures.
Although the Serbian law represents the best of the lot, that is not as impressive as it seems. As a rule, whistleblower laws to date have been unreliable, and many appear to be traps to identify dissidents. The rights do not contain an option for binding, independent arbitration frequently available as part of labor management law. The scenarios permitting media or other public disclosures exclude fear of retaliation, normally an acceptable reason to go public without first giving internal channels a chance. Due to an internal bureaucratic dispute, the only less expensive, informal administrative remedies are for disclosures of corruption. Perhaps most significant, the law does not protect public disclosure of classified information under Serbia’s secrecy laws, but there is no requirement to mark the information or provide any other notice of its secret status. Serbian law does, however, ban after-the-fact classification, a common tactic against U.S. whistleblowers.
While the Serbian law is not perfect, that is probably the case for every law, especially whistleblower laws. To add perspective to this work in progress, it should be noted that its provisions would be a great improvement for whistleblowers in the United States, Great Britain or South Africa – countries that pioneered such rights. The law’s track record will be invaluable as evidence against critics who predict the sky will fall if whistleblowers have meaningful rights. It will take effect in June, and the Ministry of Justice already has begun a comprehensive training program underway for all the nation’s judges. Now comes the hard part – turning rights into reality.