Whistleblower Protection in Southeast Europe An Overview of Laws, Practice, and Recent Initiatives BLUEPRINT FOR IN PARTNERSHIP FREE SPEECH WITH 2015 Whistleblower Protecon in Southeast Europe An Overview of Laws, Pracce, and Recent Iniaves The research for this report was conducted by Blueprint for Free Speech for the Regional An-Corrupon Iniave The views expressed in this publicaon are solely those of the author and do not necessarily reflect the views of the Regional An-corrupon Iniave or its member States. Publisher Regional An-corrupon Iniave Editor Radu Coci, Head of Regional An-corru pon Iniave - Secretariat Author Mark Worth, Blueprint for Free Speech Proofreader Vera Devine Design and Print UrbanGraf, Sarajevo Edi on 300 copies © Regional An-corrupon Iniave, 2015 All rights reserved. Any unauthorized reprint or use of this material is prohibited. CIP - Katalogizacija u publikaciji Nacionalna i univerzitetska biblioteka Bosne i Hercegovine, Sarajevo 342(73):343.352(4-12)(047) WORTH, Mark Whistleblower protecon in Southeast Europe : ≠an ≠overview of laws, pracce and recent iniaves / [author Mark Worth]. - Sarajevo : Regional An-corrupon Iniave, 2015. - 62 str. ; 25 cm Bibliografske i druge bilješke uz tekst. ISBN 978-9926-8016-1-8 COBISS.BH-ID 22149638 REGIONAL ANTI-CORRUPTION INITIATIVE Table of Contents Abbreviaons 4 Execuve Summary 5 Country Profiles 9 Albania 9 Bosnia and Herzegovina 13 Bulgaria 18 Croaa 23 Kosovo 28 Macedonia 33 Moldova 38 Montenegro 44 Romania 50 Serbia 55 Further Reading 60 Acknowledgements 61 Whistleblower Protecon in Southeast Europe in Southeast Protecon Whistleblower This designaon is without prejudice to posions on status, and is in line with UNSC 1244 and the ICJ Opinion on the Kosovo Declaraon of Independence Abbreviaons ACA: An-Corrupon Agency (Serbia) ALAC: Advocacy and Legal Advice Centre ANI: Naonal Integrity Agency (Romania) APC: Administrave Procedure Code (Bulgaria) APIK: Agency for Prevenon of Corrupon and Coordinaon of Fight against Corrupon (Bosnia and Herzegovina) BiH : Bosnia and Herzegovina BIRODI: Bureau for Social Research (Serbia) CAPC: Center for the Analysis and Prevenon of Corrupon (Moldova) C EDEM: Centre for Democracy and Human Rights (Montenegro) CPD: Commissioner for Protecon against Discriminaon (Albania) DACI: Directorate for An-Corrupon Iniave (Montenegro) MANS: Network for Affirmaon of NGO Sector (Mo ntenegro) NAC: Naonal Ancorrupon Centre (Moldova) OECD: Organisaon for Economic Co-operaon and De velopment SCPC: State Commission for Prevenon of Corrupon (Macedonia) SELDI: Southeast Europe Leadership for Development and Integrity SIPA: State Invesgaon and Protecon Agency (Bosnia and Herzegovina) SRI: Romanian Intelligence Service TI: Transparency Internaonal UNDP: United Naons Development Progr amme REGIONAL ANTI-CORRUPTION INITIATIVE Execuve Summary Whistleblowing has been demonstrated to be among the most effecve ways to expose and fight crime and corrupon. During the past decade, new whistleblower laws and pracces have been conceived in all regions of the world. Southeast Europe is no excepon. Backed by growing public support, efforts by governments and NGOs throughout the region to combat corrupon and make public administraons more transparent have opened mean ingful opportunies to improve legal protecon for whistleblowers. At the same me, government agencies, NGOs and journalism organisaons are developing new experse in receiving whistleblower disclosures and complaints, and acng upon these reports. Addionally, some employees who faced retaliaon for exposing misconduct have successfully used the courts and other means to prevent further reprisals; regain their jobs; receive financial compensaon; and fend off charges of defamaon. The public and the media are starng to recognise the value of whistleblowers and are approaching them with less scepcism. ope Sll, most Southeast European countries are at the beginning stages of assembling reliable t Eur and responsive whistleblower protecon mechanisms. As evidence of this, government and corporate whistleblowers in the region connue to be exposed to many types of retribuon, from harassment and ostracism to dismissal and physical threats. To gain insights into these and other issues, this report provides an overview of the whistleblower frameworks in 10 Southeast European countries. econ in Southeas In all but one of these countries, some concrete progress has been made over the past five ot years. Since 2011 three countries – Bosnia and Herzegovina, Kosovo and Serbia – have passed designated whistleblower laws. In five other countries, proposed la ws or legislave er Pr opons have been developed since 2013. All the while, many government instuons and NGOs have broadened their work on a range of whistleblower issues. tleblow Taken together, this progress makes Southeast Europe one of the most acve regions in the Whis world on this emerging public policy and cizen parcipaon issue. Here is a sample of recent developments in each country. Albania developed a proposed whistleblower law in 2014 that would cover public and private sector employees; give them the opon to contact the media; and pay financial rewards. This designaon is without prejudice to posions on status, and is in line with UNSC 1244 and the ICJ Opinion on the Kosovo Declaraon of Independence Bosnia and Herzegovina passed a designated whistleblower protecon law in December 2013 that covers public employees at the state level. Thus far, the government has provided protecon to two employees who exposed financial misconduct at state instuons. Bulgaria in 2014 produced opons for what would become the country’s first naonal whistleblower law. A local whistleblower system was set up in Sofia in 2013 to receive and respond to reports of wrongdoing in the city’s administraon. Croa a considered a proposed whistleblower law in Parliament in 2013. In 2014 the Ministry of Jusce released whistleblower guidelines and was analysing the country’s current legal fr amework. Kosovo adopted a law in 2011 that seeks to protect public and private sector employees who report unlawful acts. Though a stand-alone piece of legislaon, it excludes many provisions considered to be internaonal best pracce. Macedonia proposed improvements to its an-corrupon law in 2014 that would set up a whistleblower system for government and company employees. Moldova enacted a framework in 2013 to protect public employees from retaliaon and provide channels to disclose misconduct. Also that year, the government’s an -corrupon agency adopted whistleblower regulaons for its own staff. Montenegro’s new an-corrupon law, adopted in 2014, includes provisions to protect whistleblowers in the public and private sectors. In 2013, retaliang against a whistleblower was made a criminal offe nce. Romania has not undertaken efforts to improve the public sector legislaon it passed in 2004, which was the first such law in connental Europe. The government regularly tracks cases as well as its own implementaon efforts. Serbia adopted a wide-ranging law in November 2014 that seeks to protect all employees from retaliaon. The culminaon of a two-year effort by government officials, NG Os, and European and internaonal experts, the law includes many best pracces. This report provides an overview of each country’s whistleblower framework and does not present specific recommendaons. However, some important observaons emerge: Though there is a sense that some instuons are endeavouring to beer protect and compensate whistleblowers, retaliaon is sll considered common place. Insufficient informaon is available on correcve acons taken in response to whistleblower disclosures, and on the procedures for following up on them. There are not enough publicly available stascs on disclosures and retaliaon complaints, and on the outcomes of cases. Designated whistleblower instituons are lacking. This designaon is without prejudice to posions on status, and is in line with UNSC 1244 and the ICJ Opinion on the Kosovo Declaraon of Independence Not enough informaon is available on public atudes toward whistleblowing, which can hamper the development of laws and procedures that can work in pracce. The laws and procedures of many countries do not adequately disnguish employees who report wro ngdoing in the workplace (“whistleblowers”) from cizens who report crime (“witnesses”). NGOs are devong more resources to support and advise whistleblowers, invesgate their disclosures, advocate for stronger laws, and work with governments to improve protec ons. Country Profiles Albania Overview Though Albania lacks a stand-alone whis tleblower law, several pieces of legislaon include certain legal pr otecons for those who report corrupon and other misconduct to the authories . The main such law, however – the Law on Cooperaon of the Public in the Fight against Corrupon – is generally seen as ineffecve, both in terms of its provisions and implementaon. To remedy this, the government developed a dra Whistleblowing Act in 2014 in consultaon with whistleblower experts, NGOs and business organisaons. The proposed law has yet to be presented to Parliament. A number of whistleblower cases have been reported in the media in recent years. Sll, whistleblowing is a new concept in Albania, and the public generally lacks trust in official channels to report corrupon and other crimes. Some whistleblowers have faced retaliaon. Government instuons and the courts have lile praccal experience invesgang and responding to whistleblower disclosures and complaints. Current Legislaon and Regulaons