by Arjan Dyrmishi
Center for the Study of Democracy and Governance / Coalition Co-coordinator
Albania adopted a law on whistleblowing and protection of whistleblowers in June 2016. The adoption of the law was the result of a concerted approach by EU and national institutions, supported by substantial advocacy and input from civil society.
Although there have been cases of whistleblowing in Albania, whistleblowing has never been an established social practice despite the existence of different laws that sought to either encourage whistleblowing or provide some protection to whistleblowers.
Therefore the adoption of the law is the first comprehensive approach to promote whistleblowing in Albania. The law provides for channels to report wrongdoings in both public and private domains, procedures for investigating the reported cases, procedures and mechanisms for the protection of whistleblowers as well as the institutional structures responsible for performing these tasks.
The law provided for a phased approach to implementation. In the first phase, which lasted from the adoption of the law until 1 October 2016, the different institutions tasked with the implementation of the law were required to prepare the bylaws and regulation. Starting from 1 October 2016 the law entered in full force for implementation by the public sector while for the private sector the full implementation of the law will starts in 1 July 2017.
It is important to underscore that these developments have taken place in a regional environment where, due to the serious problems with corruption, whistleblowing has been increasingly regarded by the civil society, media and international organizations as an important tool to preventing and combating corruption.
However, in four months since the entering into force of the law, the implementation appears to be meek. Although the media reports almost daily on cases of corruption and wrongdoings by different public officials and public institutions the first official whistleblowing case has not been registered yet.
This article looks at the context and processes that led to the adoption of the law, provides an overview of the main features of the law and its implementation so far, and points to the challenges and actions needed to adequately implement the law.
Context and processes that led to the adoption of the law
Whistleblowing has been increasingly recognised as an important tool to fighting corruption and other malpractices that threat or harm the public interest in both the public and private sector. Due to the secretive nature of corruption whistleblowers can provide valuable information and insight on those involved and the damage that may have been caused.
However, although corruption has grown to become one of Albania most serious problems whistleblowing has failed to become a normal practice. The main hindering factors have been the negative social attitudes towards whistleblowers and the lack of comprehensive legislation that failed to adequately protect those who have blown the whistle.
In the last few years, as anti-corruption raised high in Albania’s EU integration agenda the international pressure to adopting a dedicated legal and institutional framework to whistleblowing increased. The EU Commission identified the lack of a law on protection of whistleblowers as an omission for Albania’s preparedness to fight against corruption and commended the Albanian government to adopt a law on whistleblowing in the 2014 and 2015 annual progress reports.
The Embassy of the Netherlands in Albania supported the drafting of the law under the Dutch Rule of Law Programme. The draft was improved with the input from EURALIUS – the European Assistance Mission to the Albanian Justice System – and the civil society organizations, including the Southeast Europe Coalition for Whistleblower Protection.
Ultimately, the adoption of the law on whistleblowing and the protection of whistleblowers in June 2016 marked an important step for Albania but also for the SEE region which from the legislation perspective has become one the most active regions in the world to developing frameworks on whistleblowing.
Main features of the law
The Albanian law on whistleblowing provides for the three fundamental elements of a comprehensive whistleblower law: channels for reporting wrongdoings, procedures for the investigation of disclosures and procedures for the protection of whistleblowers from retaliation.
The law has a broad personal scope and includes all persons working in either the public or private sector. In terms of material scope the law covers only the reporting of suspected acts of corruption so in this respect it is rather limited. This decision, though, has been made based on the consideration that a wider material scope of the law would pose major problems to its implementation and that amendments to expand the scope can be made in the future as the implementation gets consolidated.
The law provides for the establishment of internal and external disclosure channels. Private entities with more than 100 employees and public entities with more than 80 employees are obliged to establish internal reporting units which are responsible also for the investigation of the cases.
However, whistleblowers can report directly to the High Inspectorate of Declaration and Audit of Assets and Conflicts of Interest (HIDAACI) in case the private or public entity fails to initiate an investigation, when there are doubts that the entity is not impartial or that evidence may be destroyed. HIDAACI serves also as the direct reporting unit even for those public and private entities with fewer employees 80 and 100 employees respectively.
The law is largely based or requirements and recommendations of international documents such as the Council of Europe Recommendation 2014/7, the United Nations Convention against Corruption, and the OECD Whistleblower Report 2012.
The law includes some of the best international practices for whistleblower protection such as:
- reliable confidentiality protection
- protection against unconventional harassment
- ban of “gag orders”
- transfer option in case the whistleblowers choose to not go back to the same working place if they fear retaliatory actions
- personal accountability for reprisals against whistleblowers
Implementation of the law so far
During the first phase of the implementation of the law the Council of Ministers, the HIDAACI, and the Information and Data Protection Commissioner (IDPC) have adopted:
- the Government Decision on the structure and criteria for the selection of employees appointed in the internal reporting units in the public entities,
- the Guidelines on the structure and criteria for the selection of employees appointed in the internal reporting units in the private entities,
- the Guidelines on the criteria for processing and retaining of personal data related to whistleblowing and the protection of whistleblowers,
- the Regulation on the investigation of cases and protection of confidentiality, and
- the Regulation on the investigation of the demands for protection from retaliation.
However, apart from the progress made with the adoption of the bylaws little has been made with regard to raising the awareness of the public. The HIDAACI has not appointed any official in charge of monitoring the implementation of the law so for journalists and other interested persons or potential whistleblowers it is very difficult to find related information.
On the HIDAACI’s official webpage there is no related information or any dedicated space on whistleblowing except for the law and the bylaws. Even an information and awareness raising video clip that was prepared in September 2016 with funding from the Netherlands Embassy in Tirana has not been uploaded to the HIDAACI’s webpage.
Against this backdrop it may not come as a surprise that although investigative journalism reports and TV programs uncover almost on daily basis cases of corruption in health, education, justice, police, local administration, Albania has yet to register its first official whistleblowing case.
Approaches and actions to facilitate the implementation of the law
Given Albania’s poor track record with the implementation of laws, as continually underlined in the EU Commission progress reports, it will be hard to imagine that the law alone will trigger whistleblowers action.
Moreover, investigating whistleblowing cases and effectively protecting whistleblowers will be challenging for a number of reasons. First whistleblowing is conceptually difficult and loaded with cultural prejudices and negative connotations. A public survey on attitudes to whistleblowing in Western Balkans conducted in 2016 has shown that only one third of the surveyed people in the region, including Albania, consider whistleblowing as acceptable.
Second, whistleblowing is risky for the politicians in high levels because it may create serious political problems, therefore there will be little or no support to promoting whistleblowing at the center of the government. As the recently discharged Minister of Justice pointed out, “the big chunks of corruption [in Albania] are being divided [with]in the government, [with]in the courts are divided the tips”.
Third, the law on whistleblowing is operationally complex to implement and requires adequate human and financial resources while the HIDAACI has not even established a dedicated department on whistleblowing. Moreover no additional budget was allocated to the HIDAACI after taking over the implementation of the law, to the contrary, its budget shrunk from €955,000 in 2016, to €938,000 in 2017.
Furthermore, given the scope of the law on corruption it is unclear how will be treated whistleblowers reports on wrongdoings of major concern such as violation of fundamental rights, dangers to public health, public safety or the environment, abuses of public authority, breaches of legal obligation, unauthorised use or waste of public funds or resources, conflicts of interest, miscarriage of justice, etc.
Therefore a concerted action of the HIDAACI, the NGOs and media is needed in order to jointly work to mitigate those risks, particularly in this early stage when whistleblowing protection mechanisms are still unreliable and failures may lead to a loss of trust in the law.
However, in the meantime, much needs to be done by the media in order to change its perspective on whistleblowing and align itself in support of the implementation of the law. With very few exceptions, the media coverage of the process of drafting and adopting the law was misinforming and incorrect.