by Dino Jahić
Center for Investigative Journalism of Serbia (CINS)
The flood of whistleblower protection laws passed in the Western Balkans in recent years grew larger on 15 June 2017, when the Republika Srpska strengthened rights for employees who report crime and corruption.
Capping several years of deliberation and debate, the National Assembly of Republika Srpska (RS) passed the Law on Protection of People who Report Corruption. This is the second such law enacted in Bosnia and Herzegovina (BiH), following a state-level law that took effect in 2014.
With two whistleblower laws now on the books in BiH, a big question remains: how much will – and can – people really be helped after they report misconduct?
Republika Srpska Justice Minister Anton Kasipović said that while the law is not ideal, it is a solid first step toward protecting employees from retaliation. Opposition parties expressed doubts that more people will report corruption because RS’s weak democratic structures may make it difficult to protect them from reprisals.
Siniša Vukelić, editor-in-chief of Capital.ba, called the law a step forward but said whistleblowers need more than just a written statement of rights. In one of several recent cases reported by the news portal, Spomenka Mekić suffered harsh retaliation for years – including dismissal, mobbing and reduction of salary – after she reported wrongdoing in the RS Protective Fund.
“People who reported corruption eventually were punished and persecuted for that,” explains Vukelić. “Until we see concrete results on the ground, it is difficult to tell how much the new law will remain a dead letter on paper and how effective it will be.”
RS’ National Assembly said it passed the law in order to “suppress corruption and provide an effective mechanism to protect the rights of people who report corruption in good faith from any form of threat or violation of these rights.”
Most importantly, the law seeks to protect employees from any adverse actions even if their report later is shown to be incorrect but they acted in good faith. Employees may make reports within their company or institution, or externally to police, prosecutors, or NGOs that focus on anti-corruption or human rights.
RS’s law includes many other European and international standards, including:
- coverage for public and private sector employees
- free legal assistance
- the option to report anonymously
- the right to be informed on case outcomes
- a right to compensation if victimized
- a broad definition of retaliation, including dismissal, transfer, mobbing, threats, harassment and denial of employment benefits
Internal reports of retaliation are handled by designated persons within companies and institutions. External reports are handled by courts. Courts must rule on retaliation complaints within 90 days. Employees can seek external protection promptly if their internal requests are not adequately handled. They also may approach courts for temporary relief to halt reprisals.
In order to obtain protection, employees must show a probable connection between their report and the adverse actions taken against them. The burden of proof then falls on the employer to show that the actions were lawful and justified.
All of this may seem solid in theory, but it will take some time before the results can be assessed. Corruption is widespread throughout the country, and there has been little or no institutional support for anti-corruption efforts. The contrary actually seems to be the case.
“Experience teaches us that there is no point in reporting corruption, sounding the alarm, going through the media,” says Vukelić of Capital.ba, citing the case of Milan Vukelić as a dramatic example.
Vukelić repeatedly reported crime and corruption in the Banja Luka Construction Bureau in Republika Srpska. He was killed by a car-bomb in November 2007. To date, his allegations are not known to have been investigated, nor have his murderers been identified, much less prosecuted and punished.
“This case itself has had a greater effect on people not to report corruption than to adopt five laws like the new one, which just give rights on the paper,” says Vukelić. “As long as police, prosecutors and other investigators do not solve major corruption cases, people will not have the courage to report corruption and to sacrifice their safety and the safety of their families. It takes a lot of work to get people to have trust in institutions.”
Under the Dayton Peace Agreement of 1995, Bosnia and Herzegovina is split into the autonomous regions of Republika Srpska and the Federation of BiH, as well as Brčko District. The country’s divided system of government makes implementing and coordinating any type of legislation extremely difficult, if not impossible – especially given the lack of political will to solve important problems such as corruption.
Accordingly, and perhaps not surprisingly, the state-level law and Republika Srpska’s law are completely different, with RS’ law resembling the 2014 legislation passed by neighboring Serbia. Neither the Federation of BiH nor Brčko District have passed a whistleblower law.
The state-level law only applies to the 22,000 public employees working in 75 state institutions. Among many provisions that are lacking, the law does not provide for court protections. The law is administered by the Agency for the Prevention of Corruption and Coordination of the Fight against Corruption (APIK).
From January 2014 to June 2017, APIK received 19 requests for granting the status of a “protected corruption informer.” Four were approved, including Danko Bogdanović, who was reinstated in June 2015 at the Indirect Taxation Authority after revealing a large-scale bribery scheme that allowed companies to pay lower import and export fees.
APIK spokesperson Sanita Sivić said the agency is aware of the law’s shortcomings. To address them, APIK proposed amendments in February 2017, including more reasonable deadlines for workplace retaliation to stop, and removing whistleblower status if it is misused by an employee.