Whistleblowers gain protections

PEOPLE reporting corrupt behaviour or murky practices will get legal protection from being punished by their employers. Experts praise the new law, which will become effective on January 1, 2015, but warn that its effectiveness will be proven only after it comes into force.

“The law is the most comprehensive solution that has been introduced in Slovakia so far,” Pavel Nechala, a lawyer cooperating with ethics watchdog Transparency International Slovensko, told The Slovak Spectator. “Unlike the previous proposals, it really deals with the protection of employees when reporting on murky practices.”

The parliament passed the so-called whistleblower law drafted by the Interior Ministry on October 16, after being supported by 115 out of 128 lawmakers present. The aim is to motivate employees to report antisocial behaviour, and to improve the revealing of corrupt activities as well as the perpetrators, and thus decrease the caused damages, the ministry said in a press release.

According to the ministry, it is often company employees who possess relevant information about corruption and are in need of protection from the potential retaliation of their employer. Also Nechala says that receiving the motions directly from employees is three-times more effective than, for example, the results of investigation from an internal audit.

In order to increase the motivation of employees to submit a motion, the state will offer them free-of-charge legal protection, as well as a potential financial bonus, the TASR newswire reported.

“We want to extend guarantees to them [the employees] that their jobs and previous relations will be protected,” Interior Minister Robert Kaliňák said, as quoted by TASR. “We want them not to fear reprisals, but to come forward and report practices that are either violating the law or legal norms.”

Those who report a crime may also receive a reward in the amount of 50 times the minimum wage, which would currently be €17,600, but only after a perpetrator of a crime is sentenced, the law stipulates.

Pavol Lacko of Fair-Play Alliance considers the law “a formal step forward”. However he adds that though the new rules contain tools necessary for protecting whistleblowers, these may not be sufficient.

“They [the measures] arrive in an environment where whistleblowers are disrespected and are seen as saboteurs and not protectors of public interest,” Lacko told The Slovak Spectator.

Some opposition MPs said that the law may be abused since people will use it as a tool in their personal conflicts. Kaliňák, however, does not think so.

“There is the threat of libel and false testimony to take into account [for bogus whistleblowers],” he said, as quoted by TASR, “and it is up to the prosecutor to judge whether the report is made up or not.”

Previous attempts

Before parliament adopted the whistleblower law, the opposition had submitted several proposals on protecting people who report corruption. The ruling Smer party however did not support any of them. While the draft laws submitted by Christian Democratic Movement (KDH) and the non-parliamentary NOVA party did not deal with the problem comprehensively, the third one authored by the Ordinary People and Independent Personalities (OĽaNO) was problematic from the point of enforceability, Marta Fabianová from the Interior Ministry press department explained to The Slovak Spectator.

The law will, for example, apply not only to corruption and related crimes, as it was proposed by KDH and NOVA, but also to other serious crimes connected to non-economic or unethical behaviour and so-called serious antisocial activities (i.e. crimes committed by public officials, corruption, manipulations with public procurements and damages to the European Community, crimes where the upper limit of punishments exceeds three years in prison or where fines are higher than €50,000). Moreover, it will require the public authorities and employers with more than 50 employees to create and check an internal system to submit motions.

The law also introduces several forms of protection for whistleblowers. The decision regarding protection will be issued either by the court or the prosecutor, delivered to the employer, and will then be secured by the labour inspectorate. Since the employer will be able to determine the future of the employee who has this protection only after receiving approval from the
labour inspectorate, the employees should be protected from, for example, reduction in salary, transfer to another working position or dismissal.

The employer will always have to explain the decision concerning the change in working conditions of a protected employee. The protection will, however, not apply to cases when the employee will be deliberately absent or will be drunk at work, the law stipulates.

The new law also allows the whistleblower to remain anonymous. He or she will receive a confirmation about protection which they will be allowed to show if necessary.

Regarding the internal system of reporting corruption, this includes appointing a responsible person or department which will receive the motions. They will then investigate and the employer will have to inform the employee about the results within 10 days after the inspection is complete.

If the employers violate the rules of the internal system, the labour inspectorate will be able to fine them up to €20,000.

In addition to this, the public authorities that will establish a special anticorruption line will have to record the calls and archive them for three years, the law stipulates.

The law also contains amending proposals authored by OĽaNO (which relates to preventing the corrupt activities and education in this area) and MP Miroslav Beblavý (which concerns the ban on discrimination against whistleblowers).

“The scope of this law is considerably broad. It directly creates or changes the competences of several state bodies and affects the whole public sphere and a considerable part of the private sphere,” Fabianová said.

Despite the support of the opposition, there were some MPs who criticised the law. Independent MP Alojz Hlina, for example, said it will only support informants. He also criticised the duty to record and archive the calls to anti-corruption lines, saying it could be misused.
Hlina, together with KDH MP Pavol Zajac, also said the law will increase the administrative burden.

Nechala, however, says that revealing corruptive behaviour is also in the interest of entrepreneurs.

“The administrative burden is minimal compared with the possibility to minimise the risk of possible negative impacts in cases of revealing the murky practices of an entrepreneur,” Nechala said.

Further steps are necessary

The Interior Ministry says that it has already adopted several measures to fight corruption and increase transparency. This includes not only the whistleblower law, but also changes to public procurements, new election laws which toughened up rules for financing political parties, introduction of the ESO (an acronym for the Slovak equivalent of Effective, Reliable and Open state administration) reform, and the launch of the test operations of an electronic marketplace.

Moreover, the ministry is gradually equipping police cars with an intelligent system containing a video camera and voice recorder to prevent attempts to negotiate fines and try to change them, Fabianová explained.

According to Lacko, the effectiveness of the new whistleblower law will depend on whether those responsible will be willing to observe them. It will also be important whether these authorities will be able to persuade people to “perceive whistleblowers as their partners who help them protect the public interest and deserve recognition by society”. He adds there are many cases which indicate the opposite.

Nechala says that it is more important to investigate the cases which have already been revealed.

“The biggest obstacles when reporting corruption are fear and distrust in the actual investigation of the case,” Nechala added.