Implementation of the Law "On Protection of Whistleblowers", Capacity Building, Amendments and Its Bylaws (AL0052)

In May 2014, NCAC and the Ministry of Justice, with the assistance of the Dutch government that is channeled through Utrecht University, began drafting the Law “On whistle blowers and the protection of whistleblowers”. This law serves at increasing transparency of public and private institutions by creating a better environment for employees to step up and denounce corruption cases. The law defines corruption related offences, delineates the competences of the internal mechanisms, and pinpoints which body should serve as the external reporting mechanisms and defines how the protection of whistleblowers should be ensured. In addition, the law applies both to the public and private sector. It was adopted in Parliament on June 2, 2016. By Decree of the President of the Republic No.9647 dated on 20.06.2016, the law was published in the Official Gazette No.115 on June 23, 2016 and it entered into force on July 8, 2016. Its legal effects extend from October 1, 2016 with the exception of legal effects for internal whistleblowing for private subjects, which start on July 1, 2017 (Note: this was a commitment of NAP 2nd 2014-2016). Objectives for this NAP’s commitment: - Drafting of bylaws, relevant instructions and reporting forms for the prosecution and investigation by HIDAACI for successful implementation of this law; - Consultations with stakeholders in Tirana and other districts for the introduction of bylaws, consultation and recommendations thereof; - Capacity building through trainings and technical assistance for staff of HIDAACI and other public administration staff about the successful implementation of the law, bylaws and regulations, preparation of job descriptions for staff responsible for receiving alerts and pursuits; - Awareness and education campaigns in the media of the law and the importance of its implementation in the fight against corruption. Status quo or problem addressed by the commitment The 2 year process of drafting the Law “On protection of whistleblowers”, as an important preventive tool and reporting of corrupt practices within the public authorities and private entities, has come to an end. The draft law was approved by the Council of Ministers on December 16, 2015; On February 17, 2016, the bill was introduced by Minister Çuçi at the Parliamentary Commission for Legal Issues, Public Administration and Human Rights, where discussions were held first in principle on the content of the draft law among the members of the Commission (rapporteur: V. Hysi) and representatives from the Ministry of Local Affairs. On March 1, 2016, the draft was discussed in principle in the Parliamentary Commission of National Security and was approved in principle. On March 7, 2016, the Parliamentary Committee for Legal Issues, Public Administration and Human Rights, in accordance with the Rules of Parliament, held a hearing with representatives of independent institutions, civil society organizations and international organizations to review the draft law "On protection of whistleblowers" (rapporteur: V. Hysi). Independent institutions that have participated directly in the Commission were: General Prosecutor, the Ombudsman, HIDAACI and Commissioner for Protection against Discrimination, and civil society representatives also took part, the Albanian Helsinki Committee, Institute for Democracy and Mediation, the Albanian Institute of Science, Partners Albania and Flag. However, comments on the draft came also from OSCE, EUD, etc. MLA, in cooperation with the Ministry of Justice as co proposers of the bill, have considered comments received from all stakeholders and reflected them in the draft. On 29 and 30 March 2016, the bill was approved in principle and article by article in the Parliamentary Commission for Legal Issues, Public Administration and Human Rights. The draft law was approved by the Parliament and comes into force in October 2016. In the forcoming, it is also expected: (i) issuance of bylaws; (Ii) strengthen capacities of HIDAACI with 7-8 people that will implement the bill. Drafting of this bill has become part of the fulfillment of the Roadmap for the five priorities recommended by the European Commission, approved by Council of Ministers Decision No. 330, dated 28.05.2014 and in fulfillment of the Crosscutting Anti Corruption Strategy for 2015-2020, approved by the Council of Ministers Decision No. 247, dated 20.03.2015. This law stipulates creation of a new mechanism of denunciation of corruption practices in the workplace by employees of a public authority or private entity in the Republic of Albania. There are some several key factors that will influence the governance of public and private institutions, increase transparency for the public and discourage corruptive practices as a result of the adoption of this law: (i) encouraging the public to actively use mechanisms of reporting and preventive corruption in the workplace; (Ii) increase transparency in public administration activities and private enterprises; (Ii) encourage cooperation with the institutions of justice; and (iii) protection of whistleblowers against retaliatory measures. Main Objective Increasing number of reports on cases of corruption in public authorities and the protection of ‘whistleblowers’.

✪9. Implement Whistleblower Protection Law

Commitment Text:

Title: Implementation of the Law 'On protection of whistleblowers', capacity building, amendments and its bylaws

In May 2014, NCAC and the Ministry of Justice, with the assistance of the Dutch government that is channeled through Utrecht University, began drafting the Law 'On whistle blowers and the protection of whistleblowers'. This law serves at increasing transparency of public and private institutions by creating a better environment for employees to step up and denounce corruption cases.

The law defines corruption related offences, delineates the competences of the internal mechanisms, and pinpoints which body should serve as the external reporting mechanisms and defines how the protection of whistleblowers should be ensured. In addition, the law applies both to the public and private sector. It was adopted in Parliament on June 2, 2016. By Decree of the President of the Republic No.9647 dated on 20.06.2016, the law was published in the Official Gazette No.115 on June 23, 2016 and it entered into force on July 8, 2016. Its legal effects extend from October 1, 2016 with the exception of legal effects for internal whistleblowing for private subjects, which start on July 1, 2017 (Note: this was a commitment of NAP 2nd 2014-2016).

Objectives for this NAP’s commitment:

- Drafting of bylaws, relevant instructions and reporting forms for the prosecution and investigation by HIDAACI for successful implementation of this law;

- Consultations with stakeholders in Tirana and other districts for the introduction of bylaws, consultation and recommendations thereof;

- Capacity building through trainings and technical assistance for staff of HIDAACI and other public administration staff about the successful implementation of the law, bylaws and regulations, preparation of job descriptions for staff responsible for receiving alerts and pursuits;

- Awareness and education campaigns in the media of the law and the importance of its implementation in the fight against corruption.

Responsible institution: Minister of state for local issues (MSLI)

Supporting institution(s): Partners Albania, media, businesses

Start date: 2016 End date: 2018

Editorial Note: For full commitment text, please refer to https://www.opengovpartnership.org/wp-content/uploads/2001/01/Albania_NAP3_ENG.pdf.

Editorial Note: This commitment is measurable, clearly relevant to OGP values as written, has transformative potential impact, and is substantially or completely implemented.

Context and Objectives

The Law 'On protection of whistleblowers', which was a commitment in the previous action plan, was adopted in June 2016.^{[Note97: The law 'On protection of whistleblowers', https://www.parlament.al/wp-content/uploads/2016/06/ligj-nr.-60-dt.-2.6.2016.pdf. ]} The law defines corruption-related offenses, identifies which body should serve as the external reporting mechanisms and defines how the protection of whistleblowers should be ensured. The law applies both to the public and private sector. It entered into force in October 2016, with the exception of legal effects for internal whistleblowing for private subjects, which entered into force on 1 July 2017. The law creates legal protections for employees to step up and denounce corruption cases.

The commitment’s objective as specified in the action plan is two-fold: to increase the number of reports on cases of corruption in public authorities, and to protect whistleblowers. To achieve this goal the commitment foresees four activities: adopt bylaws to ensure implementation of the law, consult with stakeholders, improve capacities of The High Inspectorate of Declaration and Audit of Assets and Conflicts of Interest (HIDAACI), the oversight institution, and raise public awareness about whistleblowing. These activities create the necessary environment and institutional mechanisms for the application of the law. If fully implemented, this overall commitment could have a transformative potential impact. Drafting secondary legislation, training of public servants and raising public awareness will help to ensure effective implementation of this important anti-corruption law.

This commitment is highly specific. With the exception of activities two and four (i.e. consult with stakeholders and raise awareness), all activities clearly delineate the measurable deliverables, whether it is drafting by-laws or scheduling capacity building trainings.

This commitment is particularly relevant to the OGP values of access to information, civic participation (through consultations on the draft by-laws) and public accountability (ultimately, through increased numbers of reports on corruption and other wrongdoings in the public and private sector).

Completion

The commitment has been completed. All activities foreseen under this commitment are completed. Bylaws were drafted and adopted after holding public consultations.^{[Note98: By November 2016 all by-laws and regulations were adopted to ensure implementation of the Law on the protection of whistleblowers, as follows: Council of Ministers Decision no 816 date 16 November 2016 'On the structure, selection criteria and employment issues of employees in the public institutions’ units in charge of the implementation of the law on whistleblowers and protection of whistleblowers'; HIDAACI Directive 'On the structure, selection criteria and training of employees in the private institutions’ units in charge of the implementation of the law on whistleblowers and protection of whistleblowers'; HIDAACI Regulation on the administrative investigation of the whistleblower’s request for protection from vengeance; HIDAACI internal Regulation on the administrative investigation of the whistleblower case and protection of confidentiality; Directive of the Commissioner for the right to information and protection of personal data 'On the conditions, criteria for personal data processing and timeframe in the application of the law no 60/2016'.]} By November 2016, all secondary legislation—including Council of Ministers Decision, HIDAACI Directives and the Directive of the Commissioner for the Right to Information and Protection of Personal Data—were adopted to ensure implementation of the law on whistleblower protection.

In August 2016 a local NGO, Partners Albania, launched a public invitation for comments and recommendations on the bylaws for the law on whistleblower protection.^{[Note99: Partners Albania, http://partnersalbania.org/News/konsultime-mbi-aktet-nenligjore-per-zbatimin-e-ligjit-per-sinjalizimin-dhe-mbrojtjen-e-sinjalizuesve/. ]} The draft bylaws were shared through the Partners Albania website, social media, and email. In total, the draft bylaws were sent to 1,100 civil society organizations, 250 businesses, 61 municipalities, 120 public institutions at central level and state agencies, 165 media representatives and 150 representatives of donors and international development agencies in Albania. Partners Albania carried out public consultations in Tirana. Consultations carried out with central government institutions were separate from consultations carried out with private sector representatives, media and civil society. A total of approximately 240 participants attended the consultations held in Tirana, Fier, Shkodra, Korca, and Elbasan in September 2016. Participants included local government and other state institutions, civil society, businesses, media and other stakeholders.^{[Note100: Partners Albania Facebook page, https://www.facebook.com/permalink.php?story_fbid=10154488726133955&id=46227243954. ]} Public consultation events were coordinated with HIDAACI, the National Anti-Corruption Coordinator and the Commissioner on the Right to Information and Protection of Personal Data.

Partners Albania and HIDAACI carried out a series of capacity building events. The annual 2016 HIDAACI report stated that curricula for a series of ToT (training of trainers) events was prepared in 2016.^{[Note101: HIDAACI 2016 Report, page 12, http://www.hidaa.gov.al/raportet/Raporti%20Vjetor%202016-%20ILDKPKI.docx. ]} Partners Albania experts conducted trainings for HIDAACI staff in 2017. The ToT was conducted at the Albanian School of Public Administration (ASPA). The participation of ASPA trainers enabled trainees to build their skills and capacities in order to continue carrying out trainings for civil servants in the units in charge of whistleblowing in public institutions and in private entities.^{[Note102: A total of 155 units were established in central government institutions and local government units during the reporting period, Interview with Arjola Agolli, September 2017.]}

In 2017 Partners Albania carried out two trainings with approximately 80 employees from relevant units of central and local government institutions. Additionally, in accordance with the Memorandum of Understanding (MoU) signed in July 2016, Partners Albania has continuously provided technical assistance to HIDAACI and other state institutions in all institutional steps. A study trip to the Netherlands by HIDAACI staff was also organized in the framework of Partners Albania’s project. This visit facilitated dialogue with the main Dutch institutions responsible for the implementation of the whistleblowing law. During this visit, some government institutions and private companies shared their experience on whistleblowing legal framework implementation and the challenges, using a variety of illustrative cases.

As for the fourth and final activity commitment, MSLI organized two campaigns, commenced traditional media and social media awareness raising, and set up public information billboards in major Albanian cities by July 2017. The awareness-raising activities started in October 2016, parallel with the entry of the law into force.^{[Note103: Interview with HIDAACI official, September 2017.]} An informative television spot has been broadcasted in social and traditional media.^{[Note104: Television spot, https://youtu.be/HzHMUqdQF0s. ]} This provides information on the law, which institutions are obliged to implement it, what the penalties are for not following the law’s instructions, the benefit that the law brings in the fight against corruption, and more. Additional promotional materials (e.g. flyers, City Lights billboards and posters, video adds in YouTube and social media) have been disseminated online and in the main urban centers, institutions and public spaces. Another awareness-raising campaign (consisting of Spot 2, CTL, video ads, etc.) was launched in May 2017 and is currently offering information to relevant institutional employees and the general population including procedures, concrete forms of whistleblowing in institutions, what to do in such cases, etc. The campaign’s broadcast was fully realized during June-July 2017.^{[Note105: The spot was broadcasted by national and local media (TV Klan; ABC News, Top Channel, Ora News, TVSH, Vizion Plus) and through social media. Partners Albania has communicated with several media to organize during this implementing period television interviews and participation in television programs, on this initiative at News 24 TV, Scan TV, Vizion Plus TV, Gazeta Shqiptare (Newspaper) etc.]}

Overall, the IRM researcher would like to note that Partners Albania has played a crucial role in the implementation of this commitment through a project supported by the Netherlands embassy in Tirana.^{[Note106: Review of the project dossier, enabled by Partners Albania.]}

Early Results

The commitment has established the necessary legal and institutional infrastructure for the implementation of the law, including trainings and other capacity building activities for units in charge of whistleblowing in public institutions. However, it is too soon to expect concrete cases of whistleblowing. Civil society experts suggest that further progress in the implementation of the judicial reform will likely encourage such cases due to increased trust in judicial (and other) institutions that will tackle whistleblower cases.^{[Note107: Interview with Arjan Dyrmishi, Co-coordinator of the Southeast Europe Coalition on whistleblowers protection, August 2017.]}

The implementation of this commitment in the first year is quite encouraging, particularly in view of the MoU signed between state institutions (MSLI, HIDAACI) and the civil society organization (Partners Albania).

Next Steps

In the second year of implementation, the IRM researcher recommends the Government to continue awareness-raising and training activities for the implementation of the law.

The conclusion of the current action plan (June 2018) coincides with more advanced stages of judicial reform in Albania, which is expected to increase public trust and integrity of institutions. Given the high potential for transformative impact, this IRM report strongly encourages follow-up actions in the next action plan. The responsible state institutions, in cooperation with civil society and other stakeholders (e.g. media), should focus on the monitoring and practical implementation of the law on whistleblowers in public and private sector institutions.

✪9. Implement Whistleblower Protection Law

Commitment Text:

Title: Implementation of the Law “On protection of whistleblowers”, capacity building, amendments and its bylaws

In May 2014, NCAC and the Ministry of Justice, with the assistance of the Dutch government that is channeled through Utrecht University, began drafting the Law “On whistle blowers and the protection of whistleblowers”. This law serves at increasing transparency of public and private institutions by creating a better environment for employees to step up and denounce corruption cases.

The law defines corruption related offences, delineates the competences of the internal mechanisms, and pinpoints which body should serve as the external reporting mechanisms and defines how the protection of whistleblowers should be ensured. In addition, the law applies both to the public and private sector. It was adopted in Parliament on June 2, 2016. By Decree of the President of the Republic No.9647 dated on 20.06.2016, the law was published in the Official Gazette No.115 on June 23, 2016 and it entered into force on July 8, 2016. Its legal effects extend from October 1, 2016 with the exception of legal effects for internal whistleblowing for private subjects, which start on July 1, 2017 (Note: this was a commitment of NAP 2nd 2014-2016).

Objectives for this NAP’s commitment:

• Drafting of bylaws, relevant instructions and reporting forms for the prosecution and investigation by HIDAACI for successful implementation of this law;
• Consultations with stakeholders in Tirana and other districts for the introduction of bylaws, consultation and recommendations thereof;
• Capacity building through trainings and technical assistance for staff of HIDAACI and other public administration staff about the successful implementation of the law, bylaws and regulations, preparation of job descriptions for staff responsible for receiving alerts and pursuits;
• Awareness and education campaigns in the media of the law and the importance of its implementation in the fight against corruption.

Responsible institution: Minister of State for local issues (MSLI)

Supporting institution(s): Partners Albania, media, businesses

Start date: 2016 End date: 2017

Editorial Note: For full commitment text, please refer to https://www.opengovpartnership.org/wp-content/uploads/2001/01/Albania_NAP3_ENG.pdf

Editorial note: This commitment is clearly relevant to OGP values as written, has transformative potential impact, and is substantially or completely implemented and therefore qualifies as a starred commitment.

Commitment Aim:

This commitment aimed to increase the number of reports on cases of corruption in public authorities, and to protect whistleblowers. To achieve this goal, the commitment foresaw four activities: adopt bylaws to ensure implementation of the law, consult with stakeholders, improve capacities of the oversight institution (the High Inspectorate of Declaration and Audit of Assets and Conflicts of Interest, HIDAACI), and raise public awareness of whistleblowing. These activities were meant to create the necessary environment and institutional mechanisms for the effective implementation of the law in terms of prevention and tackling of corruption cases.

Status

Midterm: Complete

The commitment was completed by the midterm. A local CSO, Partners Albania for Change and Development (Partners Albania), played a major role in the implementation of this commitment through a project supported by the Netherlands Embassy in Tirana. [58] For instance, the bylaws were drafted and adopted after holding public consultations organized by Partners Albania in September 2016 in five different locations, with 240 participants. [59]^{, [60]} Public consultation events were coordinated with HIDAACI, the National Anti-Corruption Coordinator and the Commissioner for the Right to Information and Protection of Personal Data.

Regarding capacity building, Partners Albania and HIDAACI carried out a series of trainings. The annual 2016 HIDAACI report stated that curricula for a series of train-the-trainer events were prepared in 2016. [61] Partners Albania experts conducted trainings for HIDAACI staff in 2017. A train-the-trainer was conducted at the Albanian School of Public Administration (ASPA). [62] In 2017 Partners Albania carried out two trainings with approximately 80 employees from relevant units of central and local government institutions.

Regarding awareness-raising, MSLI organized two campaigns, commenced traditional media and social media awareness raising, and set up public information billboards in major Albanian cities by July 2017. The awareness-raising activities started in October 2016, parallel with the entry of the law into force. [63] An informative television spot was broadcasted on social and traditional media. [64]

Did It Open Government?

Access to Information: Did Not Change

Civic Participation: Marginal

Public Accountability: Did Not Change

In 2017 Albania established 163 units responsible for the protection of whistleblowers in public institutions and another 446 in the private sector. HIDAACI reported that another 140 institutions failed to comply on time with this requirement. Although state institutions and other stakeholders have been mostly focused on the legal and institutional infrastructure for implementing the legal requirements, 2017 marked the first results of the implementation of the whistleblower protection legislations. Namely, eight cases of reports in state institutions have been administered by HIDAACI in 2017, which shows marginal changes in government practice for civic participation in reporting wrongdoings in institutions that are subject to this law.

Despite the importance of this commitment in creating a formal framework to strengthen the fight against corruption and other malpractices, its implementation has not yet resulted in observable changes for increased public access to information on reported cases or changed practices of public accountability.

Carried Forward?

At the time of writing this report, Albania had not published a new action plan. Given the importance of the whistleblower protection law in the fight against corruption, the government needs to continue awareness-raising and training activities for the implementation of the law. Given the first positive results in terms of the legal and institutional set up, the next steps could focus on the monitoring.

[58] Review of the project dossier enabled by Partners Albania. Besides funding from the Netherlands Embassy, the NGO had an agreement with the Commissioner for the Right to Information and Protection of Personal Data.

[59] By November 2016 all by-laws and regulations were adopted to ensure implementation of the Law on the protection of whistleblowers, as follows: Council of Ministers Decision No. 816 dated 16 November 2016 “On the structure, selection criteria and employment issues of employees in the public institutions’ units in charge of the implementation of the law on whistleblowers and protection of whistleblowers”; HIDAACI Directive “On the structure, selection criteria and training of employees in the private institutions’ units in charge of the implementation of the law on whistleblowers and protection of whistleblowers” (23 September 2016); HIDAACI Regulation on the administrative investigation of the whistleblower’s request for protection from vengeance” (September 2016); HIDAACI internal Regulation on the administrative investigation of the whistleblower case and protection of confidentiality (September 2016); Directive of the Commissioner for the right to information and protection of personal data “On the conditions, criteria for personal data processing and timeframe in the application of the Law No. 60/2016” (September 2016).

[60] Partners Albania, http://partnersalbania.org/News/konsultime-mbi-aktet-nenligjore-per-zbatimin-e-ligjit-per-sinjalizimin-dhe-mbrojtjen-e-sinjalizuesve/; also Partners Albania Facebook page, https://www.facebook.com/permalink.php?story_fbid=10154488726133955&id=46227243954

[61] HIDAACI 2016 Report, page 12, http://www.hidaa.gov.al/raportet/Raporti%20Vjetor%202016-%20ILDKPKI.docx

[62] A total of 155 units were established in central government institutions and local government units during the reporting period, interview with Arjola Agolli, September 2017.

[63] HIDAACI official, interview by IRM researcher, September 2017.

[64] Television spot, https://youtu.be/HzHMUqdQF0s