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Safe and Sound? Jury still out on Serbia’s whistleblower protection law

23. Jan 2017.
Ilustracija: Đorđe Matić
@page { margin: 0.79in } p { margin-bottom: 0.08in; direction: ltr; color: #000000; line-height: 115%; orphans: 2; widows: 2 } p.western { font-family: "Calibri", sans-serif; font-size: 11pt; so-language: en-US } p.cjk { font-family: "Calibri", sans-serif; font-size: 11pt } p.ctl { font-family: "Times New Roman", serif; font-size: 11pt; so-language: ar-SA } a:link { color: #0000ff } Marija Beretka needed to initiate three court proceedings in order to obtain protection as a whistleblower. In one ruling, the Novi Sad High Court said the police is not an authorized recipient of whistleblower reports. Serbia’s Law on Protection of Whistleblowers, which took effect in June 2015, is designed to help people who report corruption and crime from retaliation. However, more time must pass before its actual effects and benefits can be determined.

Precisely on the day when Serbia’s Law on Protection of Whistleblowers took effect, Marija Beretka reported to Novi Sad police that her superiors at the City Administration for Inspection concealed information about improperly parked vehicles. From that day onward, June 5, 2015, in addition to problems in her workplace, her legal fight began and it is still going on.

The investigation into the alleged irregularities about which Beretka warned authorities is still in progress. In the meantime she has sought protection in three separate trials. Courts have brought different decisions on her case, most recently in July 2016, when the Novi Sad Appellate Court overturned a High Court verdict ordering her to be reinstated to her previous position.

Beretka began warning managers about wrongdoing since early 2015, after which she was twice transferred to new workplaces. Still, Novi Sad courts said it was not possible to determine the moment when she had the right to obtain whistleblower protection, and therefore they could not make a firm connection between her reports and the retaliation she faced.

 

Marija Beretka and Zoran Pandurov

Further, the courts said she could not prove she reported the wrongdoing internally. The High Court even noted that the police is not an authorized agency to whom whistleblowers can report irregularities.

This case illustrates several problems with the implementation of Serbia’s whistleblower law. Other problems have arisen at the High Court in Belgrade. Still, experts and observers interviewed by the Center for Investigative Journalism of Serbia (CINS) say the law is good, though more time is needed to assess it fully.

Judge Snežana Andrejević of the Supreme Court of Cassation and member of the working group that developed the law, says court-based protections are the strongest, which is why they chose that option.

Vladimir Radomirović, another working group member and editor of the news portal and whistleblower support organization Pištaljka, says law provides an excellent basis for the institutions “to begin to act for the benefit of citizens and the public interest and not in favor of some small groups, of political or commercial nature.”


Illegal change of a workplace

 

For me it would be better if I don’t teach my children to be honest (…) but to teach them to steal, because they would do better that way.

Marija Beretka

Marija Beretka worked in the City Administration for Inspection of Novi Sad for more than 20 years. Troubles started in early 2015, when she confronted her employers with irregularities she discovered working as an inspection supervisor. At the time, she worked on sending invitations to owners of illegally parked vehicles to report to inspectors, or orders to pay fines.

Beretka told CINS that her supervisors, among other things, illegally created official notes in order to suspend the sanctions’ proceedings. She warned them several times, but the only result was harassment. Colleagues called her derogatory names, such as rat, and a some stopped to communicate with her.

“I often used to say when those men were nearby – for me it would be better if I don’t teach my children to be honest (…) but to teach them to steal, because they would do better that way. They look at me and turn heads away,” Beretka said.

The first time she was transferred to another position was in April 2015. In early June, she reported everything to the police, after which she was transferred again – this time to the City Administration for General Affairs. In both cases, “increased workload” on the new workplace was stated as the reason. She complained, but City Administration for Inspection rejected her appeal.

Beret filed a lawsuit to the Basic Court in Novi Sad on July 14, 2015, to assess the legality of the decision on change of her position. In late September the court ruled in her favor and ordered the City Administration to return her to her old job, which was later confirmed by the Court of Appeal.

Vladimir Balaban, Acting Chief of the City Administration for Inspection, did not respond to questions.


Same judge – different verdicts


Beretka has launched two parallel proceedings before the High Court in Novi Sad. In the first lawsuit, she asked the court to impose a temporary measure by which the City Administration should immediately return her to the workplace, until trial on her protection ended. Court denied her request, stating it was not proven the adverse action, that is, change of her position, occurred due the whistleblowing.

High Court Judge Jadranka Mali noted in the explanation of the verdict that “bearing in mind that disclosure of the information on violations of the regulations to a person who violated regulations (…) does not represent beginning of whistleblowing,” while the police is not “a body in whose authority is to act on whistleblowers information.” The Court of Appeal confirmed this judgment on 16 September 2015.

 

Vladimir Radomirović, Pištaljka editor

“You have a situation where the judge says that the police is not responsible for investigating crimes. Truly an absurd situation,” says Pištaljka editor Radomirović. “It is impossible that judge doesn’t know that police is an authorized body.”

Although courts are disputing Beretka’s internal whistleblowing, the law nowhere specifies that internal whistleblowing must precede external whistleblowing, in which irregularities are reported to authorized agencies.

In another proceeding before the High Court, Judge Jadranka Mali brought a different decision and ruled in Beretka’s favor, explaining that by going to the police, Beretka began the process of external whistleblowing. Therefore, the City Administration executed adverse action towards her. The judgment of April 2016 binds them to return her to work and pay compensation of 100,000 Serbian dinars (about €810).

The Appellate Court revoked this verdict on July 14, 2016, stating that her addressing to the police and transfer to the new position have nothing to do with each other. By that, the process is returned to the High Court.

Meanwhile, Beratka’s friend Zoran Pandurov asked for court protection, as a related party, stating he has experienced retaliation because he helped her.

 

254 court proceedings during the first year


The Law on Protection of Whistleblowers in Serbia was adopted on November 25, 2014, and its implementation began in June 2015. A working group consisted of people from judiciary, NGOs, governmental institutions and whistleblowers participated in drafting the Law.

Whistleblowers are people who reveal information about violation of regulations and warn of irregularities in their companies or institutions. According to the law, whistleblowers have the right to court protection if they suffer adverse actions, such as dismissal or some kind of retaliation. Separate legal action may be conducted to determine a temporary measure, which stops adverse action during the process on the protection of a whistleblower.

In the first year of implementation of the law, courts in Serbia engaged in 254 proceedings for protection of whistleblowers, of which 163 cases were resolved during this period.

 

Irena Garčević, Belgrade High Court Judge

The judges dealing with these cases have gone through special training, but the practice of decision-making has been inconsistent. Among other things, some courts have refused to provide a temporary measure for protection, citing for example that the connection between the dismissal and reporting of irregularities was not proven. Appellate courts often change decisions of the first instance, when appeal is submitted.

Belgrade High Court Judge Irena Garčević said from when the law took effect until October 31, 2016, the court had 20 proposals for a temporary measure, five of which had been adopted at the time she was interviewed for this article.

Garčević further said that eight proposals for temporary measures were rejected, but the Court of Appeal overturned three. Of these three, in two cases the first instance verdict was changed because it stated the whistleblower was not entitled to protection as adverse action was taken against him before the law took effect.

“The Court of Appeal decided that it is not a retroactive application of the law (…) because these are adverse actions that last,” explains Garčević.

As a negative example, Radomirović cites a case in which the court refused to protect a whistleblower because the employer did not state in the dismissal decision that he was fired due to whistleblowing. “No employer will do that,” he says.

Zlatko Minić of Transparency Serbia said that law is not a purpose to itself, but it is a tool that helps in the fight against corruption. He adds that it is good that there is protection of whistleblowers, but it is yet to be seen what happens with the reported cases, on which currently there is not enough information.

 


This article was produced in cooperation with the Southeast Europe Coalition on Whistleblower Protection.

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