Protection of Persons Reporting Corruption (HR0031)

Measure 6. PROTECTION OF PERSONS REPORTING CORRUPTION
Implementation of the measure is under way until December 2018
Leader of the measure MINISTRY OF JUSTICE
Description of the measure
Which public issue does the measure address? A law must be passed to protect persons who report instances of corruption,
since the current model for protecting whistle-blowers is restricted to court
protection, or rather the relevant provisions are found in various laws, and
are restricted to protection in the sense of launching court proceedings for
reprisals which the whistle-blower has suffered at their place of work. An
analysis conducted by the Ministry of Justice has shown that it is necessary
to assure anonymity in order to encourage potential whistle-blowers to report
potentially illegal acts.
What does the measure include? The measure requires the establishment of working groups to draft the Act,
the production of the draft Act, and its adoption. The new Act must ensure
the construction of an institutional framework for reporting irregularities
efficiently and swiftly, and the effective legal protection of those who report
them. It must also improve the potential for exposing those guilty of criminal
acts of corruption, and raise the level of transparency, ethics and integrity in
society as a whole.
How does the measure contribute to resolving the
public issue?
The adoption of the Act should prescribe the formation of a system which
will enable potential complainants to report effectively on irregularities and
provide adequate protection for their integrity, with the aim of raising public
awareness among employees and citizens of the need to report illegal and
corrupt behaviour, and improve the accountability and transparency of the
work of the public sector in general.
45
Why is this measure relevant to the values of the
Open Government Partnership?
The measure is relevant to transparency because it contributes to publishing
information and improves public access to information, since whistle-blowers
provide the public with information which is in the public interest. Indirectly,
the measure is relevant to public accountability, because it improves the
rules and mechanisms relating to whistle-blowers, and thus holds civil
servants and officials accountable for their actions.
Additional information No extra resources are needed for the implementation of the measure.
The measure is in accordance with the following documents:
- Action Plan for 2017 and 2018, accompanying the Anti-Corruption
Strategy 2015-2020
- The Anti-Corruption Strategy 2015-2020
Activities Implementation start date Implementation end date
6.1. Drafting the Public Interest Disclosure Act Underway December 2018
Contact information
Person responsible in the body which is Leader of
the measure
Maja Baričević
Function, department Head of the Anti-Corruption Sector
Email and telephone maja.baricevic@pravosudje.hr, + 385 1 3714 204
Other participants
involved
State participants
46
NGO, private sector,
multilaterals, working groups
Number and titles of activities 6.1. Drafting the Public Interest Disclosure Act
Implementation indicators: - Setting up a working group to produce the draft Act
- Production of the draft Act
- Adoption of the Act by the Government of the Republic of Croatia
Financial resources required: Resources are guaranteed in the State Budget within the regular work of the Ministry of Justice,
activity A629000 Administration and Management.

6. Protection of Persons Reporting Corruption

Language of the commitment as it appears in the action plan:

"Measure 6. Protection of Persons Reporting Corruption" [47]

The adoption of the Act should prescribe the formation of a system which will enable potential complainants to report effectively on irregularities and provide adequate protection for their integrity, with the aim of raising public awareness among employees and citizens of the need to report illegal and corrupt behaviour, and improve the accountability and transparency of the work of the public sector in general. (…) No extra resources are needed for the implementation of the measure."

Milestones:

6.1. Drafting the Public Interest Disclosure Act [48]

• Setting up a working group to produce the draft Act
• Production of the draft Act
• Adoption of the Act by the Government of the Republic of Croatia

Start date: Underway

End date: 31 December 2018

Context and Objectives

In Croatia, whistleblower protection has been regulated for years under legislation including the Criminal Act, Labour Act, and Civil Service Act and internal regulations of public, private, and civil sectors. After conducting an analysis, the Ministry of Justice found it necessary to strengthen this legal framework as it found that whistleblowers still faced significant problems. This was a change from the Ministry’s prior position that further protections weren’t necessary given existing legislation. [49]

This commitment is a direct continuation of Milestone 1.4 from the second action plan, [50] which is also present in the Anti-Corruption Strategy from 2015-2020 [51] and its accompanying action plan. [52] As Measure 63 from the Anti-Corruption Strategy Action Plan was not completed by the set deadline, it was rolled over into the OGP action plan.

This commitment is specific and verifiable. The commitment is relevant for public accountability as it calls for mechanisms to protect whistleblowers hold public authorities swiftly accountable for misallocating funds, violating human rights, and legal infractions, If the Act on Protection of Persons Reporting Corruption is adopted and upheld, the impact of the commitment would be transformational. Whistleblowers face many hardships in Croatia–they often lose employment, struggle to find new jobs, face difficulties in achieving satisfactory results through the judicial system and receive threats and violent consequences from their accused and the public. [53] This Act offers them stronger protection and three direct modes for reporting an issue (internal, external, and public).

Potential negative aspects were voiced by the members of opposition parties in the Croatian Parliament during the discussion on the Act, [54] and reiterated by CSOs. [55] These include insufficient funding for the Office of the Ombudsman in pursuing external reports of corruption; lengthy deadlines for adopting internal regulations in public and private entities (nine months after the Act becomes fully effective); and no free legal aid or psychosocial support to whistleblowers.

Next steps

The IRM researcher proposes that the lead institution use the remaining time during implementation to:

• Ensure public and private entities subject to the Act are in compliance with its provisions, especially with adopting internal regulations and naming persons responsible for overseeing these regulations;
• Monitor and publish a report on corruption reported both externally (with the Office of the Ombudsman) and publicly after the Act comes into effect; and
• Consider international input and recommendations on drafts of the Act, e.g., from OECD, SIGMA, and/or the Council of Europe.

Relevant public administration bodies could also consider next steps:

• Train (e.g., webinars) public and private entities subject to the Act as well as persons involved in its implementation;
• Ensure the Office of the Ombudsman has enough funding to implement the Act in the upcoming years, in line with the increased scope of work;
• Create and disseminate a citizen guide about new legal provisions, using structured and easily accessible information, and encouraging anti-corruption behavior;
• Raise awareness about available methods of protection for whistleblowers; and
• Ensure participation in the legislative procedure and strengthen whistleblower protections to be in line with EU legislation. [56]

6. Protection of Persons Reporting Corruption

Aim of the commitment

The commitment sought to draft the Act on Protection of Persons Reporting Corruption, as existing protections was reduced to court protection and was regulated through several different legal acts. The commitment would ensure protection of whistleblower anonymity and set up an institutional framework for effective and swift reporting of corruption as well as opportunities to uncover those involved in it. The commitment would increase public accountability, transparency, and integrity by encouraging whistleblowing.

Did it open government?

Major

The Croatian Parliament adopted the Act on Protection of Persons Reporting Corruption on 8 February 2019. ^[18] The Act came into effect on 1 July 2019 and gave public and private entities essentially until January 2020 to be fully in compliance with the law.

The positive effects of the Act are the creation of different channels, opportunities, and capabilities of whistleblowing which may increase public accountability. The Act envisages new models of whistleblower protection besides court proceedings, including: internal reporting (requiring the creation of a “confidential person” who can receive reports within the place of employment), external reporting to the Ombudsman’s Office, and public disclosure such as through the media (only when other channels are not possible due to imminent danger). It is up to employers to regulate the whistleblowing procedure and to appoint a confidential person by creating internal bylaws.

However, opposition parties in parliamentary discussions and CSOs raised concerns about insufficient funding for the Ombudsman’s Office, overly lengthy deadlines for adopting internal regulations in public and private entities, and the lack of free legal aid and psychosocial support to whistleblowers. [19]

A marked rise in Croatians blaming insufficient whistleblower protection for not reporting corruption in a 2019 Eurobarometer survey [20] might indicate increased public awareness of whistleblowing (due to Parliamentary debate on the law) rather than increased obstacles to whistleblowing. While there is no published data on actual cases of whistleblowing since the law came into effect, anecdotal evidence points to institutional success. In one case during the coronavirus pandemic, the Ombudsman intervened to demand protection of a doctor at local hospital in Zagreb who blew the whistle on their superiors regarding the lack of medicine and food for patients. [21]

Overall, the Act has brought major results in open government by adopting and implementing legislation to increase public accountability through public and private whistleblowing mechanisms. Since the law came into force, it has been used to protect whistleblowers in at least one case where public bodies defended the right of the whistleblower to protection. It is too early to establish statistically whether the law has fundamentally changed institutional culture in favor of whistleblowers. Further steps to raise awareness and ensure internal mechanisms are in place would improve protection of whistleblowers in Croatia.