13 February 2024
Pištaljka (The Whistle) is a whistleblowing platform established in Serbia in 2010 by journalists-turned-whistleblowers. The platform publishes articles based on tips from whistleblowers and provides free legal aid, including court representation, to hundreds of whistleblowers. Pištaljka is a long-standing member of WIN and its Editor-in-Chief, Vladimir Radomirović is the current Chair of WIN’s Board of Trustees.
Written by Vladimir Radomirović [an edited version of this article first published on 14 December 2023 by UNCAC Coalition's COSP Observer - Second Edition.]
Let’s go back some 10 years ago. Pištaljka was the driving force behind the adoption of Serbia’s Law on the Protection of Whistleblowers and a key contributer to its effective implementation. This led to the law being called “gold standard’ and to it being one of the legal inspirations for the adoption of the EU Whistleblower Directive. In a process not dissimilar to advocating for a UNCAC resolution, we garnered support from the country’s leaders and ensured that the working group to draft the law included a wide range of experts and practitioners. Most importantly, the working group included whistleblowers. These efforts paid off and the law has since improved the lives of many Serbian whistleblowers by giving them a strong shield against retaliation.
Since the law was adopted, Pištaljka has published reports on how the law is working and guidance as what it is meant to do. We have also engaged in training for a variety of national stakeholders in the legal, social and governmental settings in Serbia on anti-corruption and whistleblowing alongside our core investigative activities and our work to support whistleblowers.
Fast forward to July 2023, with the prospect of a UNCAC resolution on whistleblowing and the potential to replicate our experience in the international arena. Leveraging the high regard Serbia’s law whistleblower protections, we first approached the Serbian president, a long-time champion of whistleblowing. He was very supportive and made sure that the Government backed our initiative. As key whistleblower protection experts in Serbia, we were invited to participate in the informal consultations in Vienna as part of the Serbian delegation, providing information and support to the delegates.
Pištaljka and the Government Accountability Project, including their International Director Samantha Feinstein, worked together to produce a draft resolution and we sent the draft to the WIN membership to review and to seek support from their Governments ahead of the formal negotiations to be held in Atlanta in December 2023 at the 10th Conference of State Parties (CoSP) of the UN Convention Against Corruption (UNCAC). The draft aimed to address critical issues related to whistleblower protection and support in keeping with the core principles of Article 33 of the UNCAC. It turned out that other Member States were also interested in proposing a draft resolution on whistleblower protection and in the end, while the Government of Serbia led the resolution through the formal discussions, Serbia and Palestine successfully collaborated on a merged draft that was supported by other Member States and was ultimately adopted with no objections from any of the UNCAC Members States.
What have we learned from this process?
It is always difficult to navigate the different political and social interests at stake in multilateral negotiations and find common ground between nations. This goes for all the countries in the room during the 10th UNCAC CoSP negotiations on the detail of the resolution itself, but also in their efforts to try to align these with their national systems. A few examples of where such differences came to the fore – first was the term “whistleblower” itself. The word “whistleblower” is not easily understood nor used as a legal term in many countries around the world. To find common ground, it was finally dropped from most of the resolution (to be replaced by “reporting person”) though a single reference to ‘whistleblower’ does remain in the final text that was adopted. Second, was the section on ‘burdens of proof’ that was dropped entirely. It was disappointing that the “reversed burden of proof” – in our view integral to addressing the serious power imbalance between a whistleblower and his or her employer and giving whistleblowers a fighting chance to survive, did not survive the negotiations. For some countries, this can appear a complex issue that does not fit into their domestic legal systems. We know that this is not actually insurmountable given that it is included in the EU Whistleblower Directive that covers 27 different countries, with different legal systems. However, as an agreement could not be reached it was better to drop it entirely to ensure the resolution was adopted, than to include something seriously inadequate and potentially dangerous for whistleblowers.
There are plenty of national laws, regional instruments, and international principles that do include and explain the purpose of a reversed burden of proof. These are available to anyone who wants to ensure that their country follows international legal best practice principles.
Finally, during the negotiations, we were as pleasantly surprised as to who stepped forward to support the resolution as we were let down by others whom we thought were allies on whistleblower protection. A silver lining to the stormy rain clouds that sometimes threatened the negotiations was the obvious approval of so many of the Member State representatives as to the non-politicized tenor of the negotiations. The focus on the public interest at the heart of whistleblowing meant that there was little to no polarisation of interests across traditional East-West or North-South divides.
Our truest ally throughout the process was the UNCAC Coalition. We know that this collective effort paid off because we now have the first-ever UN resolution on whistleblowing. This historic success that all countries who are signatories to the UN Convention Against Corruption have all agreed that whistleblowers must be protected. This is a vital and important accountability tool for us all to use when advocating nationally and across borders for strong protections for whistleblowers.
Check out the UNCAC Coalition’s Open Letter to UNCAC States Parties to enhance the protection of people who report corruption. The letter calls for specific measures to prioritize and strengthen whistleblower protection, among them: technical and emergency assistance, increasing public awareness and reporting in crisis. Additionally, Transparency International and Government Accountability Project’s written submission to the 10th UNCAC CoSP outlines the most critical issues that need to be addressed to enhance the protection of whistleblowers.
Spotlight photo:(from left) Vladimir Radomirović, Editor-In-Chief, Dragana Matović, Editor, and Vladimir Vinš, Assistant Minister of Justice, Government of Serbia. Credit Pištaljka