Tento portál provozuje Oživení z. s.
28.1.2021
[EN] Protection of whistleblowers in Slovakia is a hot potato passed between authorities
Domů
Blog

In 2014 Slovakia implemented a law for protection of whistleblowers, making it one of the first European countries in doing so, while in Czech Republic whistleblowers are still waiting. How does this legal protection work in Slovakia? How are whistleblowers perceived? What's crucial for people in order not to be afraid to speak up about unfairness, besides the legal protection? We have discussed these issues with Zuzana Grochalová from Transparency International Slovakia. Zuzana has been working for Transparency since 2018. She coordinates projects related to whistleblowers and oversees the safety net for whistleblowers #StojimeZaOdvaznymi (Backing Bold Ones).

Public awareness of whistleblowers is low in Czech Republic; over 70% of Czechs who participated in a survey Oživení (Revival) in June 2020 don't know who whistleblowers are. However, after clarifying the meaning of the term, two thirds of respondents had a positive feeling about whistleblowers. How are whistleblowers perceived in Slovakia? How does League of the Brave work?  

In public opinion polls we are focusing mostly on the willingness to report corruption, which is rising quite slowly - the last poll held in June 2020 showed that less than a half of respondents would report it. We are also monitoring people's awareness of the existence of the law which is protecting those who speak up against unfair practices at a workplace. In September 2019, 63% of respondents didn't know that such legal protection exists. Therefore, they don't know how to proceed, or rather how to defend themselves in case of a possible employer's retaliation. We found an interesting fact about how people perceive a colleague who would report corruption at a workplace. In 2019, almost 72% would feel positive about it and almost 18% would have a negative attitude.  The perception of whistleblowers can also be assessed through reactions to our feeds on social networks about whistleblowing or whistleblowers themselves. The number of negative reactions of people, who compare the reporting of unfair behavior at a workplace to denouncement, betrayal or disloyalty, is decreasing but it's still persisting. On the contrary, supportive and positive comments are appearing more and more often.

“Backing Bold Ones” #StojimeZaOdvaznymi initiative has been running since 2018. Since then, more than 700 companies have joined it, employing more than 200,000 employees. The initiative is aimed at civil servants and their support when they point out corruption in the public sector. They often experience threats from their superiors, isolation and they are objects of ridicule. In order to better cope with a fear of losing a job, jeopardizing a career or some negative reputation, it is the companies involved in the initiative that send a clear signal to them: they consider reporting corruption or unfair practices as a sign of professionalism, moral credit and courage. Participating companies have committed themselves to zero tolerance for corruption of those, who decide to speak out against unfairness or corruption in the workplace, to support career counseling, coaching, retraining, or offering job interviews if a career profile matches the vacant position. We have helped several people in this way since the initiative was launched. And we must not forget the preventive aspect of the initiative, which eliminates the possibility of pressure on employees to remain silent under the threat of losing their jobs.  

This is a second law that you have passed in Slovakia. In 2014 you were among first nations in Europe who adopted the law to protect whistleblowers. Five years later it was replaced.  In what regard did the first law malfunction and why was it replaced?

We began to evaluate the effectiveness of the law a year after its implementation. Our concern was that it would end up as an Act on proving the origin of property for example, where rules are established and yet the results are not visible. We analyzed how Labour Inspectorates handled the protection of whistleblowers, which falls under their administration. Our findings could be summarized in one sentence: the protection of whistleblowers exists only on paper. Poor institutional protection of whistleblowers is closely related to the already mentioned low willingness to report unfair practices in a workplace.  The law gave Labour Inspectorates more work to deal with, but these were not given more finances nor employees. Maybe that was the reason why no one from Inspectorates responded on time to our requests for advice, which we sent them under false identity. According to the first version of the law, if a whistleblower was fired he or she had only 7 days to ask for legal protection. When Inspectorates responded, in most cases they didn't find out that it could be a case of a whistleblower. Hence, we offered our help by creating a lay manual for whistleblowers and we gave training to inspectors on how to effectively defend whistleblowers.  We also collaborated on the amendment of the law which transferred the agenda of whistleblowing to a new independent Office with broader competencies, since the aforementioned data on the provided protection as well as the results of opinion polls illustrate a malfunctioning of the first act.  The agenda of protection of whistleblowers was a hot potato for employers, which was passed between different departments. This was one of the reasons why the new legislation established an obligation to appoint a person at a workplace who would be responsible for receiving the notifications, keeping their records and resolving them, and at the same time an obligation for this person to have professional prerequisites and continuous education in the pertinent field. In towns and villages, responsible people are the chief inspectors. The non-functionality of the law is also reflected in missing notifications at the prosecutor's office - before the end of 2020, we examined through the information act how the law was used by employees of the General Prosecutor's Office and those of regional and district prosecutor's offices. The data we obtained from the prosecutor's office underline formal approach to the Act on the protection of whistleblowers. Zero notifications from prosecutors about illegal activities at their workplace only adds up to recent statements of many candidates for the post of a Chief of the General Prosecutor's Office of the Slovak Republic, who had trouble explaining why almost no one spoke out publicly about unfairness. So now we know that no one spoke in private, through a key internal communication channel. And these are people whose job is to oversee the law and order of the state.

What are the competences of the new independent Office? Does it also provide methodical support and consulting, or does it only have investigative function? According to the law, it should have been constituted almost two years ago. How is the Office doing in practise to fulfill its role of protecting whistleblowers?

Main activity of the Office is to support and protect employees who report corruption and unfair practices. It should also raise awareness of legal protection. Moreover, it should offer trainings to employers in order to establish internal processes of reporting in an effective and responsive way. The Office will be also responsible for raising public awareness and for counselling in collaboration with non-governmental organisations.  The training of those in charge of receiving notifications (the so-called responsible persons in the workplace defined in the amendment) should also be provided by the new Office, which is very welcomed as the formal approach to this aspect of whistleblower's protection was confirmed by data collected from 28 key state institutions in recent years (ministries and authorities). Despite the fact that the number of trained employees responsible for receiving, verifying and keeping records of notifications in these organizations doubled in the past two years, still in 2019 one in four organizations was without a qualified staff within this field (even though the law imposes such an obligation). According to the law, NGOs also participate in filling the positions in the Office - this has already been done during the interrogation of candidates for the position of Chairman. We perceive these interviews as an example of good practice - in transparency and in providing the data about candidates, as well as in forming a Commission of experts, which recommended two of them for the election of parliament. However, up to this day the Office is still not functioning since the last government repeatedly didn't manage to appoint its Chairman. After the elections in February last year, the new coalition mentioned the start of functioning of the Office in the government's agenda - it got to the agenda of parliamentary session almost a year later - it's the 59th point on the agenda of the current session which began at the end of January and is expected to last at least two weeks. After appointing a person for a Chairman's position, the Office should start functioning within 6 months. Hence, we hope this year on the International day of whistleblowers (happening every year on 23rd of June), the whistleblowers in Slovakia would be able to turn to the new independent Office and its employees.  

How many whistleblowers filed a legal notification? Is there some statistics available?

The number of cases where a legal protection was provided per year is low. Last year it was 13 people, in 2019 it was provided to the same number of whistleblowers, actually the number has never exceeded two dozen cases per year so far. This data is not published, we request it every year through an information request. The Office will be obliged to inform the Parliament each year of its activities and management in the form of an annual report. Some states provide reward or financial compensation to whistleblowers. For example, in the USA, a whistleblower receives 30% of the recovery that the government receives. Australia, on the other hand, refuses to do so. Is compensation for whistleblowers embodied in Slovak legislation? How does this institutes work and is it used in practice? Yes, the amendment to the law also deals with remuneration for whistleblowers, but there is no legal entitlement to it. The Office can offer whistleblowers who file a qualified notification a remuneration in the amount of up to 50x the value of minimum wage. Application for remuneration can be submitted to the Office within 6 months from the day of the delivery of notification. According to the law, when deciding on remuneration, the Office shall take into account the contribution the whistleblower made towards the clarification of a serious activity undermining the functioning of civil society, uncovering its perpetrator, the whistleblower’s loss of earnings, and the range of the property protected or returned. As we are currently in a transitional period during which the amendment to the law is already in force, but the Office is not yet established, the agenda including the granting of remuneration is also covered by the Ministry of Justice of the Slovak Republic in addition to Labor Inspectorates. As the number and amount of remunerations are not published, we have also requested this information and currently are waiting for it to be available.  

In 2019, the EU Whistleblower Directive was approved. Slovak law preceded its adoption. Are there any differences between Slovak legislation and the Directive? Will there be any amendment necessary to the law in Slovakia because of the Directive, or at what stage is the amendment being prepared? What sanctions will be imposed on those who take so-called retaliation against the whistleblower? What shall be the maximum amount of the fine for the offense?

Passing of the EU Directive which extended support for whistleblowers to all countries of the Union was very much welcomed. The more states protect whistleblowers, the greater the chances that perpetrators of corruption will be tracked down. We commented on both documents regulating the protection of whistleblowers (the European directive and the Slovak amendment to the law) during their creation. The draft directive was similar to our law. When comparing them, we found very few differences. The EU proposal defines a whistleblower more broadly: in addition to employees, the directive mentions other persons too, including colleagues of whistleblowers, who assisted them with reporting of the case. The EU directive proposes to take special measures at a high level (e.g. the possibility to go directly to court). The amendment to the law focuses on the anti-social activities already carried out, while the EU directive focuses also on protection of whistleblowers who are preventing the anti-social activities. Sanctions are listed in the Act, for an offense against whistleblowers the Office may impose a fine of up to 2,000 euros - for an employer who carries out an employment action against the whistleblower without the consent of the Office, or who afflicts the whistleblower in connection with the notification, and also if the employer breaches the obligation of remaining silent of the whistleblower's identity. Higher fines, up to 20,000 euros, may be imposed by the Office on an employer who doesn't keep the whistleblower’s identity secret, who doesn't establish an internal system of notification evaluation, or if the employer does not appoint a responsible person. The Office may impose fines if the employer does not keep records of notifications and also if the employer doesn't accept and investigate every notification within 90 days of its acceptance (which can be extended by no more than 30 days).

Legal protection of whistleblowers is essential for protecting the society. However, law is not enough. According to you, what else is necessary to make people more willing to point out the anti-social activities?  

The basic condition is confidence of whistleblowers that their notifications will be investigated and unfair practices or corruption to which they point out will be punished. There is a high correlation between the willingness of potential whistleblowers to speak up about unfair practices and the confidence in particular responsible institutions. The data reflecting the confidence of Slovak citizens in the rule of law (72%) and the police (55%) in Slovakia according to the Eurobarometer at the end of 2019 are more than illustrative. The worst result since 2004, when the surveys started, was probably caused by a publication of scandalous communication of some judges, police officers and prosecutors with the now convicted M. Kočner on Threema. The data of Eurobarometer from years 2017 and 2019 evaluating the confidence of Slovaks in institutions in terms of reporting corruption are also pertinent. Only the ombudsman and the unions have seen an increase in trust. A distrust towards the police, the courts, the prosecution and the media, is growing. It is the distrust in investigation, the frustration from not punishing the perpetrators, the fear of revenge or the ignorance of the reporting mechanisms that discourage people who know about unfair practices or corruption in the workplace to speak up. At the same time, major cases have not been resolved for a long time, which has demotivated potential whistleblowers and led them to legitimate doubts as to whether their notifications would be even investigated and not whisked away. Fortunately, that has been changing since 2020. The number of year-on-year prosecutions of corruption crimes increased by more than a third last year, with indictments increased by half, reaching the highest level in the past ten years. As the new government is of an anti-corruption mindset, it has created friendly conditions for the police and for the prosecutor's office to go after hitherto untouchable people, such as controversial businessmen, but also, until recently, high-ranking public officials. We hope to see a change in the number of granted protections and in the willingness to report.  

Zuzana Grochalová from Transparency International Slovakia answered questions prepared by Lenka Svobodová from Oživení. Take a look at a short portfolio of Zuzka's work.  
We wish to express our gratitude to Alexandra Antlová, volunteer of TI Slovakia for the English translation.

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