A Law to Protect Whistleblowers

Charges would never have been laid against the 53 persons accused of damaging the state for EUR6.5 million in a highway fee scam, had National Road Company employee Goran Milosevic not taken the matter into his own hands. Having noticed certain suspicious activity, Milosevic filmed the offending trucks at toll booths, and then citing the Free Access to Information of Public Significance Act and with much trouble, managed to acquire documents which confirmed his doubts.

Once he proved the existence of a toll evasion scheme involving a entire network of people, Milosevic was fired. Of course, no one mentioned his solo investigation into corruption within the company. Instead, he was dismissed as a redundant worker, which decidedly precluded any attempt to reinstate him. Milosevic was unemployed for three years, and got his job back only after Rodoljub Sabic, the commissioner for information of public significance interceded on his behalf, and the National Road Company's management was changed.

According to Parliament Speaker Slavica Djukic-Dejanovic, the assembly's spring meeting agenda should include changes and amendments to the Free Access to Information of Public Significance Act, geared toward protecting individuals who expose corruption and abuse of authority. The need for a special legal mechanism for shielding these so-called whistleblowers has been illustrated time and again, Goran Milosevic being only one of many victims.

Ivan Ninic, a student who exposed malversations in the student housing service, ended up losing his scholarship, while some of the teachers who supported him were transferred to less comfortable posts. Many individuals have suffered the negative consequences of exposing irregularities, which has deterred many more from blowing the whistle on what they knew. However, it has taken over a year for Parliament to put on its agenda the changes and amendments to the Free Access to Information of Public Significance Act, as well as the Classification of Information Bill. Because of this delay -- whereby Parliament has also ignored its constitutional obligation to discuss this proposal sooner -- the coalition of non-government organizations which submitted both proposals in the form of a civil initiative has announced it will seek court protection.

Commissioner Rodoljub Sabic has welcomed Parliament's intention to debate the two legal acts at its first spring meeting, and has told Argus that such a move would have twofold significance. "First, because this is a civil initiative. Tens of thousands of citizens have backed these two proposals, and I believe that a democratic government owes such initiatives due respect. And second, because these are laws we very much need, I'd even say they were indispensable," the commissioner explained.

A Critical Mass

According to Commissioner Sabic, the political turmoil in Parliament and procedural problems with the different rules for composing parliamentary agendas for scheduled vs. unscheduled meetings, could partly justify the delayed vote on the two laws in question.

"I'd like to remind that these laws were proposed near the end of 2007, and that is has long been clear that their adoption would provide significant benefits, so it's high time that they be discussed. As far as the MPs themselves are concerned, of course if we exclude the possible influence of certain party heads, I do believe a 'critical mass' of consciousness and will has been reached to regulate the issues these laws deal with in a modern and efficient way," Sabic said.

The commissioner added that the legislative civil initiative to change and amend the Free Access to Information of Public Significance Act and introduce protection for informers was completely justified. Sabic also recalled that he, as commissioner for information of public significance, had for years in his reports warned Parliament of the negative repercussions due to the lack of such regulations. Although these reports were always unanimously adopted in the relevant parliamentary committee, the results were never satisfactory. Finally, said Sabic, when the authorities failed to articulate and propose these laws, the citizens did so themselves. Sabic, who participated in the expert group that prepared the model laws, believes that these proposals will prove absolutely useful, and stressed that it was high time that these, or similar but better, legal acts be considered and passed.

Speaking of the mechanisms to be introduced by the suggested legal solutions, Sabic said that they should remove the shortcomings noticed in practice so far and that, aside from protecting informers, monitoring and responsibility for law breaking are to be activated. Speaking of the second legal proposal -- the Classification of Secret Information Bill -- Sabic explained that its goal was to regulated the field of secret data as in all modern countries, and stressed that Serbia is one of the last countries in the world where this issue is "regulated" by several hundred legal acts of different weight, instead of one law. According to Sabic, most of the existing acts are outdated, some being several decades old, while others are contradictory.

Random Rules

Because Serbia has no appropriate legal framework, says Sabic, there is also nothing close to a clear and logical answer to questions regarding limiting the public's rights. There is no definition of what can even constitute a secret, of the conditions, reasons, and explanations necessary to give certain information confidential status, or of how long the status is valid. It is also unclear who is entitled to determine confidentiality, and who is responsible for controlling, and in the public interest voiding, this status. The field is in chaos and is governed by randomness, and as a result many without legitimate grounds limit the public's rights to information.

"In many cases the 'confidential' status not only lacks rationale, but is used to hide from the public facts indicating indolence, incapability, and irrationality, even corruption and crime, so the passing of a modern law on classifying secrete data would without a doubt prove very useful," Sabic said.

When asked whether the recommended instruments would suffice to protect those who reveal abuse of authority and corruption, Sabic said that the proposal would provide the country with its first ever general guarantee that individuals acting for the benefit of the public would not suffer any negative consequences, but added that it will be necessary to pass more concrete minor laws dealing with misdemeanors, criminal offenses, as well as administrative and employment responsibilities.

By persistently interceding, Commissioner Sabic managed to help Goran Milosevic regain his workplace toward the end of last year, and has also helped several other citizens who appealed to him. According to Sabic, it is not only justice that demands the introduction of a legal mechanism for protecting all those who have dared to stand up against corruption. It has been proven time and again in many countries that inside information can significantly contribute to a more efficient offensive against corruption and crime.

Honoring International Obligations

Nemanja Nenadic, the program director of the non-government organization Transparency Serbia, has also pointed out that the actions of whistleblowers do not protect only property, but people's lives as well. An example he provided is when a whistleblower reveals scams that endanger the environment and public health.

According to Nenadic, the legal protection of informants would constitute a useful step forward in fighting corruption, but also in fulfilling the country's legal obligations as per recommendations of the European Council and GREECO.

However, the NGO head is convinced that a legal clause protecting whistleblowers will not be enough, and claims that the issue requires a law of its own.

Dejan Milenkovic, the expert team coordinator of the Lawyers' Committee for Human Rights, says that public employees that disclose information must be protected when their actions are well-meant and in the public's interest, i.e. when the benefits of publicizing such information outweigh the damaging effects.

Speaking of legal possibilities, Milenkovic stressed that the protection of whistleblowers is regulated with various laws worldwide, and that some countries have included it in their acts on free access to information, as Serbia intends to do.

"Legal protection for persons with authorized access to information means that they are protected even if they have violated their legal duties by making certain information public, on condition that they did so with good intentions, believing the information to be true and the issue serious enough and of public interest," Milenkovic explained.

A Dead Letter

After his formidable ordeal, Goran Milosevic says that he is disappointed by the authorities, which not only long ignored his insistence that the toll theft perpetrators be uncovered, but also punished him by dismissing him from his job.

"The arrests [of the suspects] began on May 24, 2006, but that wasn't the end of my struggle. Quite the contrary, the most difficult part lay ahead. First the company heads ignored me, as they did the inquisitive press, and when the media increased pressure, Branko Jocic [company head at the time], tried to accommodate them, but, was pretty awkward in doing so. These interviews mostly ended in scandal," says Milosevic.

Although Milosevic published all that he had learned regarding highway fee scam on Parliament's web site, not one MP or caucus attempted to contact him. He has returned to work at the National Road Company on a six month contract, receiving no compensation for the three years he was out of work, as there were no legal grounds for this.

"Things hit rock bottom for me when after all the injustice I was finally fired [in 2005]. Yet it was precisely at the beginning of that year. . . that I had tried to involve, and check, the people who are determining the course of the country, offering my humble contribution," said Milosevic, describing what took place after he had posted the information he had acquired on the assembly's web site forum, under the heading "Crime in the state administration." His articles are nowhere to be found today, as they have been removed from the web site.

According to him, the authorities' passivity in the matter had initially motivated him to persevere in getting to the core of what was going on. However, Milosevic is now reluctant to recommend anyone follow in his footsteps. "The feeling is marvelous but short-lived. When I look around, I realize that this society has deteriorated very much."

Although three years have passed since Milosevic discovered the toll evasion scheme, the court proceedings have not yet been concluded. During this time, three of the accused have committed suicide, and one remains on the run, but none of the other defendants have been detained by the police. In the meantime, separate proceedings have been launched against Branko Jocic, who was general director of the National Road Company when the toll theft was taking place. Milosevic has also sued Jocic for libel, but Jocic has failed to attend the court sessions.

The chief evidence proving that the state had indeed been damaged for EUR6.5 million worth of toll charges -- a video cassette Milosevic made documenting the passage of the offending vehicles at the toll booths -- went missing from the Palace of Justice archives in October last year. Whether anyone has been held responsible for this remains unknown to the public.

"When I take a look today at where I was and how far I've come, how much patience and effort I invested, what I've lost and what I've 'gained,' what my family went through and how much time I spent -- I think the struggle was pointless," Milosevic says.

According to him, the legal protection of individuals who point out corruption and abuses of authority and office will be a dead letter if it is not applied in real life. Illustrating his claim, Milosevic spoke precisely of the Free Access to Information of Public Significance Act, and recalled all the difficulties the Commissioner Sabic is faced with continually. "If someone took a look at what's going on in reality, what do you think, how many people would decide to do what I have done?" Milosevic asks.

Concluding that the progress achieved in the country is below its citizens' standards and expectations, Milosevic believes that the key to solving all problems "lies in the awareness of the people, which Parliament should transmute into a law, and then into reality."