Abstract
This paper investigates the legal protection of whistleblowers in the Republic of Croatia. The first part of the paper presents an in-depth analysis of the legal framework (including both international and national sources of law), whereas the second part discusses settled case-law of national courts and of the ECtHRs. In conclusion the authors tackle the specific issue of whistleblowers within the public sector. To this end they analyse the results of a recently conducted study investigating the perception of whistleblowers in the public sector.
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Notes
- 1.
Draft of the Anti-Corruption Strategy 2015–2020, Ministry of Justice of the Republic of Croatia, p. 17, available at www.mprh.hr/lgs.axd?t=16&id=4886 (as at 11 Nov 2014).
- 2.
Association “Whistleblowers” (Udruga Zviždač) provides a phone number for reporting corruption or malpractices. The Association was founded in April 2008 in Zagreb. In about 1 year, more than 1500 people have reported corruption or malpractices. In addition to providing advice to victims, the Association speaks out publicly about concrete cases.
- 3.
GONG is a non-governmental organization founded in 1997 with the view of promoting fundamental freedoms such as electoral rights, right of access to information, financing of political parties, prevention of conflicts of interests, freedom of speech, democratization, etc. See more at GONG official website, available at www.gong.hr/en/ (as at 11 Nov 2014).
- 4.
The Association for the Protection of Mobbing Victims, official website, available at www.mobbing.hr/. (as at 11 Nov 2014).
- 5.
S Vasiljević, Tasks and challenges: Making whistleblowing work in Croatia (2010) available at www.whistleblowing-cee.org/countries/croatia/research/#1 (as at 11 Nov 2014).
- 6.
Anti-Corruption Strategy of the Croatian Parliament, Official Gazette of the Republic of Croatia (hereinafter: OG), No. 75/2008.
- 7.
Constitution of the Republic of Croatia, OG, Nos. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010, 5/2014.
- 8.
United Nations Convention against Corruption. For more visit the official UNODC webpage: www.unodc.org/unodc/en/treaties/CAC/ (as at 7 Nov 2014). Croatia transposed this Convention by an Act on the ratification of the United Nations Convention against Corruption, OG, International Treaties, Nos. 2/2005 and 1/2006. The Convention was signed by the Croatian representatives on 10-12-2003 and entered into force on 14-12-2005.
- 9.
Art. 33 of the United Nations Convention against Corruption, ibid.
- 10.
Criminal Law Convention on Corruption (ETS No. 173, Strasbourg 27-1-1999). Act on the ratification of the Criminal Law Convention on Corruption, OG, International Treaties, No. 11/2000. Equally important is the Additional Protocol to the Criminal Law Convention on Corruption (ETS No. 191) and the Act on the ratification of the Additional Protocol to the Criminal Law Convention on Corruption, OG, International Treaties, No. 3/2005.
- 11.
Criminal Law Convention on Corruption, ibid., Art. 22.
- 12.
S Vasiljević, Tasks and challenges: Making whistleblowing work in Croatia, ibid.
- 13.
Civil Law Convention on Corruption (ETS No. 174, Strasbourg 4-11-1999). Act on the ratification of the Civil Law Convention on Corruption, OG, International Treaties, No. 6/2003.
- 14.
Civil Law Convention on Corruption, ibid., Art. 9.
- 15.
Zakon o obveznim odnosima (Civil Obligations Act), OG, Nos. 35/2005, 41/2008, 125/2011.
- 16.
Recommendation on Codes of Conduct for Public Officials (Recommendation No. R (2000) 10) by the Committee of Ministers to Member States, 11-5-2000. Art. 12.
- 17.
A Rajko, ‘Zaštita “zviždača” – pravni izvori u hrvatskom pravnom poretku’ (2011a), IUSINFO, available at: www.iusinfo.hr/Article/Content.aspx?SOPI=CLN20V01D2011B418 (as at 10 Nov 2014).
- 18.
See MĐ Učur, S Laleta, Konvencije Međunarodne organizacije rada s komentarima, Zagreb, TIM press, Pravni fakultet u Rijeci, p 100-103, p 375-383.; B Buklijaš, A Bilić, Međunarodno radno pravo (2006), Split, Pravni fakultet u Splitu, p 264–271.
- 19.
ILO 158 Termination of Employment Convention (1982), available at www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C158 (as at 10 Nov 2014).
- 20.
S Vasiljević, Tasks and challenges: Making whistleblowing work in Croatia, ibid.
- 21.
Constitution of the Republic of Croatia, ibid., Art. 33:
-
1.
“Freedom of thought and expression shall be guaranteed.
-
2.
Freedom of expression shall particularly encompass freedom of the press and other media, freedom of speech and public opinion, and free establishment of all institutions of public communication.
-
3.
Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information.
-
4.
The right of access to information held by any public authority shall be guaranteed. Restrictions on the right to access to information must be proportionate to the nature of the need for such restriction in each individual case and necessary in a free and democratic society, as stipulated by law.
-
5.
The right to correction is guaranteed to anyone whose constitutionally and legally established rights have been violated by public communication.”
-
1.
- 22.
Zakon o radu (Labour Act), OG No. 193/2014.
- 23.
Zakon o državnim službenicima (Civil Servants Act), OG Nos. 92/2005, 140/2005, 142/2006, 77/2007, 107/2007, 27/2008, 34/2011, 49/2011, 150/2011, 34/2012, 38/2013, 37/2013.
- 24.
Zakon o službenicima i namještenicima u lokalnoj i područnoj (regionalnoj) samoupravi (Act on Employees and Servants in a Local and Regional Self-Government), OG Nos. 86/2008, 61/2011.
- 25.
Zakon o sustavu unutarnjih financijskih kontrola (Act on the Public Sector Internal Financial Auditing System) OG No. 141/2006.
- 26.
Zakon o trgovini (Trade Act), OG Nos. 87/2008, 96/2008, 116/2008, 116/2008, 76/2009, 114/2011, 68/2013, 30/2014.
- 27.
Zakon o zaštiti tajnosti podataka (Act on Data Secrecy Protection), OG Nos. 108/96, 79/2007; Zakon o tajnosti podataka (Data Secrecy Act), OG Nos. 79/2007, 86/2012.
- 28.
Zakon o pravu na pristup informacijama (Act on the Right of Access to Information), OG No. 25/2013.
- 29.
Kazneni zakon (Criminal Act), OG Nos. 125/2011, 144/2012.
- 30.
Zakon o kaznenom postupku (Criminal Procedure Act), OG Nos. 152/2008, 76/2009, 80/2011, 91/2012, 143/2012, 56/2013, 145/2013.
- 31.
Zakon o medijima (Act on Media), OG Nos. 59/2004, 84/2011, 81/2013.
- 32.
This provision was introduced in the Labour Act via amendments of 2003, in order to guarantee stronger protection for whistleblowers. Ž Potočnjak, ‘Prestanak ugovora o radu’ (2007) in Potočnjak Ž (ed) R adni odnosi u Republici Hrvatskoj, Zagreb, Pravni fakultet u Zagrebu, Organizator, p 394.
- 33.
Etički kodeks državnih službenika (Code of Ethics for Public Servants), OG Nos. 40/2011, 13/2012.
- 34.
Even though the provisions of the code of ethics did not use to be regarded as legal, nor connected with a legal sanction and the Constitutional Court did not deliberate about the constitutionality and legality of the ethical rules, Potočnjak believes that the ethical rules are now transforming into legal norms. See Ž Potočnjak, ‛Radni odnosi državnih službenika‛ (2007b), in Potočnjak Ž (ed) Radni odnosi u Republici Hrvatskoj, Zagreb, Pravni fakultet u Zagrebu, Organizator, p 843.
- 35.
See above.
- 36.
As regards the Code of Ethics for public servants see: MĐ Učur, ‘Etički kodeks državnih službenika – heteronomni izvor prava sa specifičnim nomotehničkim karakteristikama’ (2012), Radno pravo, 33, pp 40-50; D Juras, ‘Etički kodeks državnih službenika’ (2011), Hrvatska pravna revija, 6, pp 46-49
- 37.
G Thüsing, G Forst, Whistleblowing Around The World – A Comparative Analysis of Whistleblowing in 23 Countries (2014) (pdf material), p. 5.
- 38.
Act on Media, ibid., Art. 30 para. 5: “The court may order to a journalist to give data about the source of the information he/she made public or about the information which he/she intends to make public, if it is necessary for the protection of public interest and it is about extremely important and serious circumstances and it is determined without doubt:
There is no rational optional measure for revealing the data about the source of the information, or that the competent body from the para. 4 of this Article has already used such a measure and that the public interest based on law for revealing the data about the source of the information clearly prevails over the interest of protection of the source of information.”
Art. 30 para. 6: “The court will, bearing in mind the circumstances of the case, exclude the public during the course of the procedure and warn the present persons that they are obliged to keep as a secret whatever they have heard in course of the procedure and about the consequences of revealing the secret.”
- 39.
Zakon o zaštiti na radu (Occupational Health and Safety Act), OG, Nos. 71/2014, 118/2014, Art. 69 para. 3.
- 40.
G Thüsing, G Forst, Whistleblowing Around The World, ibid.
- 41.
cf. for the Civil Servants Act; A Rajko, ‘Zaštita “zviždača” u državnoj službi’ (2008), IUSINFO, p 3, available at www.iusinfo.hr/Article/Content.aspx?SOPI=CLN20V01D2008B27 (as at 10 Nov 2014).
- 42.
M Habazin, ’Zaštita “zviždača”’ (2010), Hrvatska javna uprava, 10(2), p. 344.
- 43.
“Criminal Procedure Act provides protection of witnesses (Arts 294–299) if it is likely that by giving a testimony or by answering any individual question, a witness might expose himself or any other person close to himself to a serious danger to life, health, physical integrity, freedom or property of considerable volume (threatened witnesses).” See more: M Škorić, ‘Croatia’ in K. Roach (ed) Comparative Counter-Terrorism Law, Cambridge University Press, 2015
- 44.
A Rajko, ‘Zaštita “zviždača” u državnoj službi’, ibid., p. 2.
- 45.
G Thüsing, G Forst, Whistleblowing Around The World, ibid., p. 14.
- 46.
USKOK (Ured za suzbijanje korupcije i organiziranog kriminaliteta) – Office for the Suppression of Corruption and Organized Crime, Law on the Office for the Suppression of Corruption and Organized Crime of the Republic of Croatia, OG Nos. 76/2009, 116/2010, 145/2010, 57/2011, 136/2012, 148/2013, (Hereinafter: Act on USKOK).
- 47.
PNUSKOK (Policijski nacionalni ured za suzbijanje korupcije i organiziranog kriminaliteta) – Police National Office for the Suppression of Corruption and Organized Crime, Regulation on the internal organisation of the Ministry of the Interior, OG Nos. 70/2012, 140/2013, 50/2014.
- 48.
Person in charge of providing information (“povjerenik za informiranje”) protects, controls and promotes the right of access to information guaranteed by the Constitution of the Republic of Croatia, Art. 38 para. 3. Croatian Parliament (Hrvatski Sabor) elects the commissioner on a five-year mandate, with the possibility of re-election. He/she is autonomous and independent in performing his/her duties and answers to the Parliament. (Art. 35 para. 1, Art. 36).
- 49.
G Thüsing, G Forst, Whistleblowing Around The World, ibid., p. 17.
- 50.
According to the explanation of this provision given in the Proposal of the Act on Changes and Amendments to the Civil Servants Act, in 2008, “for the protection of “whistleblowers” the existence of reasonable suspicion about corruption or filing of the application about that suspicion in good faith is needed […] from the protection are excluded “whistleblowers”, who make false applications, without reporting appropriate circumstances or submitting proof about it.”
- 51.
About the duty to file an application see more in the following paragraphs.
- 52.
A Rajko, ‘Zaštita “zviždača” u državnoj službi’, ibid., p. 3.
- 53.
See G Thüsing, G Forst, Whistleblowing Around The World, ibid., p. 19.
- 54.
Act on USKOK, ibid., Art. 21.
- 55.
V Grozdanić, M Škorić, I Martinović, ‘Kaznenopravna zaštita radnika prema odredbama novog Kaznenog zakona’ (2012), Hrvatski ljetopis za kazneno pravo i praksu, 19(2), p. 497.
- 56.
A Rajko, ‘Zaštita “zviždača” u državnoj službi’, ibid.
- 57.
See G Thüsing, G Forst, Whistleblowing Around The World, ibid., pp. 19–20.
- 58.
A Rajko, ‘Zaštita “zviždača” u državnoj službi’, ibid., p. 3.
- 59.
“In case of a dispute relating to putting an employee at a disadvantaged position compared to other employees as a result of an action taken on account of a founded suspicion of corruption or a report on such suspicion addressed by such employee to responsible persons or competent public authorities, which led to a violation of any of the rights of employees arising from the employment relationship, if such employee establishes facts from which it may be presumed that he or she has been treated less favourably and that his or her rights arising from the employment relationship have been violated, the burden of proof shall be shifted to the employer who must prove that the employee has not been put at a disadvantaged position compared to other employees or that no right arising from the employment relationship has been violated with regard to such employee” (Labour Act, Art. 135 para. 2).
- 60.
ECtHR, First Section, 30-09-2010, Application no. 28369/07 Vesna BALENOVIĆ against CROATIA, available at: www.sljeme.usud.hr/usud/prakESen.nsf/94b579567876f9fcc1256965002d1bf4/d38dcb5903ff80e3c12579f20047af30/$FILE/BALENOVIC%20v.%20CROATIA.doc (as at 12 Nov 2014).
- 61.
A Rajko, ‘“Zviždanje” iz perspektive slučaja Balenović protiv Hrvatske’ (2011b), Radno pravo 2, pp. 27–36.
- 62.
ŽPotočnjak, ‘Prestanak ugovora o radu’, ibid., p. 394.
- 63.
Judgement of the Zagreb Municipal Court, Pr-2631/01-43, 10-12-2002, relevant part: “In the opinion of this court, irrespective of whether the plaintiff disclosed a business secret or financial or other information which does not represent a business secret, she acted contrary to the interests of the employer […], regardless of the employer’s ownership structure and the accuracy of the published information, in that she made extremely negative statements in the media, as a result of which she primarily harmed the reputation of the employer. By making public statements in this way, the plaintiff acted contrary to the [internal regulations] on business correspondence in INA […], Rule 7 of which provides that the authority to conduct business communications and correspondence and provide information to the media lies exclusively with the general director and the director of the sector of promotional activities […], and Rule 10 of which provides that non-observance constitutes a breach of the employee’s duty, with the resultant consequences. Each of the above-mentioned breaches is, in the opinion of this court, [in itself] a sufficient reason allowing the respondent to lawfully dismiss the plaintiff […] because [she] committed particularly serious breaches of employment-related duties, as a result of which, taking into account all the circumstances and the interests of both parties, the continuation of the employment relationship is no longer possible. It is to be noted that this court cannot find a ‘civic duty’ in, or deriving from, any existing legal provision, apart from the Criminal Procedure Act, which provides that the plaintiff, as a citizen, must file a criminal complaint against the perpetrator if she considers that a criminal offence has been committed. The civic duty is thereby discharged and the competent State authorities then proceed with the investigation of the criminal offence and identification of the perpetrators. It is also to be noted that the Data Protection Act, in particular section 25, provides that revealing a business secret in a criminal complaint or when reporting an administrative offence to the competent authority or to the supervisory authority in the exercise of one’s own employment-related rights – but not to the public – is not to be treated as disclosure of a business secret.”
- 64.
Judgement of the Zagreb County Court, Gžr-176/03, 11-11-2003, relevant part: “[The first-instance court] established that the plaintiff, in her public statements in the daily newspaper Slobodna Dalmacija on 3, 4, 5, 6, 7 and 11 April 2001, expressed a whole series of negative comments and serious but flippantly made allegations about the business activities and management of the respondent, and in doing so acted contrary to the interests of her employer, and jeopardised and harmed the business reputation of the respondent[…]. Here it has to be mentioned that the first-instance court did not examine whether the plaintiff’s comments were made competently [i.e. expertly], because that is outside the scope of this labour dispute. Those are questions relating to how a company runs its business, a matter within the exclusive competence of the management board, whereas the supervisory role is exercised by the supervisory board, and not an individual employee. In this connection it has to be noted that under Art. 108 para 2. [now Art. 117 para. 2] of the Labour Act, recourse by an employee to the [competent] executive authorities does not constitute a justified reason for [his or her] dismissal[…]. [U]nder Art. 108 para 3. [now Art. 117 para. 3], recourse by an employee to the competent State authorities on account of a reasonable suspicion of corruption, or the filing by an employee of a criminal complaint in good faith on the grounds of that suspicion, does not constitute a justified reason for dismissal […]. [I]t follows that the law protects an employee only when applying to the competent State authorities, and not in respect of the media. Hence, if the plaintiff wanted to inform the public of the existence of possible irregularities and illegalities in the respondent’s operations, she could have done so by applying to the competent State authorities, which would then, pursuant to section 5 of the Media Act, be bound to make that information available to journalists…Therefore, the first-instance court correctly established that the plaintiff’s unauthorised statements in the press constituted … an important fact justifying [her dismissal]. Lastly, the plaintiff also made publicly available various financial data, data concerning the course and content of preliminary negotiations on business cooperation etc., which are mentioned in the published articles, which she was not authorised to do, and in doing so seriously breached her employment-related duties within the meaning of Rule 31 of the respondent’s [internal employment regulations].”
- 65.
Judgment of the Croatian Supreme Court, Revr-215/04-2, 24-05-2005, relevant part: “In the contested decision on summary dismissal of the plaintiff, […], the respondent, as the employer, refers, as the justified reason for dismissal, to the statements by the plaintiff in the daily newspaper Slobodna Dalmacija on 3, 4, 5, 6, 7 and 11 April 2001. It was established in the proceedings that in these statements the plaintiff made: extremely negative comments about the respondent’s business activities and the management of resources, and allegations of conduct such as manipulations and machinations in the respondent’s business affairs, as well as the covering up of crime on the part of the respondent’s administration and management. The lower-instance courts found that this kind of behaviour on the part of the plaintiff constituted a justified reason for dismissal within the meaning of Art. 107, para. 1 [now Art. 116, para 1], of the Labour Act […]. In this case, answering the following question of principle is of decisive importance: What are the repercussions of the public statements of an employee, in which extremely negative comments about the business activities and management of resources of an employer were made, both for the employment contract and for the employment relationship between the employee and the employer? And also: What is the significance of the plaintiff’s public statements in the present case? It should be noted that, in principle, public statements of this kind by an employee may have repercussions for the employment relationship, as a particularly important fact, as a result of which, while taking into account all the circumstances and interests of both parties, the continuation of employment is not possible.
In this particular case, the aforementioned statements by the plaintiff evidently damaged the reputation of the respondent, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation and be trusted in the business world. Therefore, this kind of behaviour on the part of the plaintiff has significant repercussions for the employment relationship between the parties and gives the employer a justified reason for termination of the employment contract, within the meaning of Art. 107 para. 1. [now Art. 116, para 1], of the Labour Act. This precisely, having regard to the given circumstances, constitutes a particularly important fact, as a result of which the continuation of employment is not possible.
[…] In the present case, the depiction of the employer’s business activities in an extremely negative light in the media by the employee constitutes a particularly important fact of this kind, which gives the employer a justified reason for termination of the employment contract.
The plaintiff’s reliance on her ‘civic duty’ is unfounded. In this regard the assessment of the second-instance court to the effect that the plaintiff could realise her ‘intention to prevent damage and protect the property of the respondent’ only by turning to, and lodging a complaint with, the competent State authorities, which would have resulted in that information being available to the press and other media – and could not have served as a reason for dismissal – is correct.”.
- 66.
Judgment of the Croatian Constitutional Court,U-III-3121/2005, 18-10-2006, OG No. 123/2006, relevant part: “As regards the complainant’s criticism directed against the part of the first-instance judgment referring to the notion of a ‘civic duty’, the Constitutional Court points out that the part of the reasoning in which the first-instance court notes that ‘this court cannot find a civic duty in, or deriving from, any existing legal provision, apart from the Criminal Procedure Act […]’ is [rather] unfortunately worded. This does not, however, affect the validity of that court’s legal view regarding the ‘civic duty’ of the complainant as an employee, according to which the complainant – if she considered that her employer had committed a criminal offence – should, as a citizen, have filed a criminal complaint against the perpetrator, whereupon the competent State authorities would have proceeded to investigate the criminal offence and identify the perpetrators […]. The Constitutional Court notes that the complainant justifies her conduct towards the employer (that is, her statements in the media), for which the employer dismissed her, by claiming that ‘she expressed her personal opinions primarily as a citizen’, and as an employee in the part where she objected to the ‘appropriation of State property’.
The Constitutional Court notes in this connection that a breach of an employee’s duties towards an employer cannot be justified by the right to express a personal opinion in the manner presented by the complainant in her constitutional complaint.”
- 67.
ECtHR, First Section, Vesna BALENOVIĆ against CROATIA, ibid.
- 68.
In this regard see J Omejec, Konvencija za zaštitu ljudskih prava i temeljnih sloboda u praksi Europskog suda za ljudska prava – Strasbourški acquis (2014), Zagreb, Novi informator, pp. 485-486.
- 69.
These cases are referred to in more detailed in the study Vasiljević, Tasks and challenges: Making whistleblowing work in Croatia, ibid.
- 70.
European Commission, Croatia to the EU Anti-Corruption Report, COM (2014) 38 final, Annex 11, p. 11–12.
- 71.
Labour Act, ibid., Art. 117 para. 3.
- 72.
See Balenovic case – Judgement of the Supreme Court of the Republic of Croatia, Revr-215/04 and the Judgement of the Constitutional Court of the Republic of Croatia, U-III-3121/2005.
- 73.
Judgment of the Supreme Court of the Republic of Croatia, Revr-700/06, 3-10-2007, in Crnić, I (2013) Otkaz ugovora o radu, Zagreb, Organizator, p. 185.
- 74.
Judgment of the Supreme Court of the Republic of Croatia, Revr-545/12, 19-6-2012.
- 75.
For employment relationship of civil servants see Ž Potočnjak, Radni odnosi državnih službenika (2013) Zagreb, Pravni fakultet Sveučilišta u Zagrebu, Studijski centar za javnu upravu i javne financije
- 76.
Anonymous questionnaire about the perception of civil servants employed in the Ministry of Justice. The questionnaires were sent by e-mails to 289 addresses, while 78 persons answered anonymously in an electronic or paper version, available at www.antikorupcija.hr/istrazivanja (as at 7 Nov 2014).
- 77.
At the time of writing of paper such a model was still not presented.
- 78.
European Commission, Croatia to the EU Anti-Corruption Report, COM (2014) 38 final, Annex 11, p. 12.
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Laleta, S., Smokvina, V. (2016). The Protection of Whistleblowers in the Republic of Croatia. In: Thüsing, G., Forst, G. (eds) Whistleblowing - A Comparative Study. Ius Comparatum - Global Studies in Comparative Law, vol 16. Springer, Cham. https://doi.org/10.1007/978-3-319-25577-4_3
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