The lack of protection for whistleblowers in Croatia

In Croatia, as in other countries in the region, whistleblowers are not sufficiently protected and risk to be fired and socially marginalised. H-Alter's contribution to our dossier on whistleblowing

(Originally published by H-Alter , our media partner in the ECPMF project, on October 18th, 2017)

The Croatian government has recently begun the preparatory work to draft a law on the protection of whistleblowers. According to the Action Plan for the Implementation of the Anti-Corruption Strategy for 2015-2020, the law should be approved between September and December 2018. Although a working group has already been set up, we have been unable to obtain from the Ministry of Justice any information on the timing of the preparatory work or the assumptions underlying the draft law.

The above-mentioned anti-corruption strategy recognises the fundamental role of whistleblowers in highlighting corrupt practices and in contributing to enhance transparency and political accountability. The strategy stresses the "need" to guarantee whistleblowers effective judicial protection, including measures to strengthen judicial transparency, enhance the reporting system for illegal conduct, and complete the regulatory framework to safeguard whistleblowers.

A recent case

The term "whistleblower" refers to individuals who report to the authorities or the public any offense committed against the public interest, which they have learnt about in their work, be it in the public or private sector.

The most recent whistleblowing case in Croatia involved Bruno Mirtl, a former member of the Liberal Party, who in an interview aired last October 15^th revealed that over 10 years ago he received 50,000 kuna (about 6,500 Euros) for the party's funding from Ivica Todorić, Croatia's number 1 tycoon. The day after, a police operation began aimed at the arrest of the former management of Agrokor, a consortium founded by Todorić, who managed to flee to London together with his offspring. A few days before the operation, it was announced that Agrokor – which had enjoyed privileged treatment by all Croatian governments for decades – had filed false accounts, hiding a loss of several billion Euros.

As Mirtl rightly observes, if even such a small party as his own obtained unlawful funding by Todorić, then there is no doubt that the main, more influential parties (HDZ and SDP) received much more substantial sums from the same source. His testimony could trigger a domino effect on the Croatian political scene, but at the moment it seems that anti-élite politics, with the support of media corporations, is trying to suppress the whole affair – just as it tried to avoid for decades the question of the origin of Todorić's wealth.

Poor political will

The Southeast Europe Coalition for Whistleblower Protection recently published a report titled "Protecting Whistleblowers in Southeast Europe: A Review of Politics, Cases and Initiatives". The report states that the legal and institutional framework for the protection of whistleblowers in Croatia, as well as the practices and channels for reporting illicit conduct, are "very little developed", and the political debate on the rights of whistleblowers is still in an "initial phase". "Some normative acts, such as the Labour Law or the Criminal Code, imply protection measures for whistleblowers – employed in government bodies or corporations – against retaliation at work, but their impact is limited and they are poorly applied in practice. The political will to improve the rights and protection of whistleblowers has so far proved insufficient", reads the chapter devoted to Croatia.

"The whole system is corrupt"

As early as 2013, the Ministry of Justice conducted an anonymous survey among its employees on the perception of the effectiveness of whistleblower protection. Out of 78 respondents, as many as 20 said they had learnt of corruption episodes while on the job (unfortunately, they were not asked to specify whether they had denounced them or not). However, 31 respondents said that, should they learn of illegal conduct, they would not denounce it, while 55 felt that reporting corruption might damage them. 21 stated that the whole system is corrupt, therefore it makes no sense to take action. When asked whether they deem whistleblower protection in the Croatian legal system adequate, over 90% of respondents (71 out of 78) gave a negative answer.

"In the light of the foregoing, the Independent Anti-Corruption Sector is committed to finding the right solution to allow Ministry of Justice employees to report corrupt practices that they learn about, granting them anonymity. If it turns out to be useful, this new model will also be proposed to other state bodies", are the laconic conclusions of the research. It is not known whether "the most appropriate solution" has been found, nor whether the "model" can be used by other state institutions.

The Justice Department website also provides some indications for those who decide to report corruption. Prospective whistleblowers are advised to contact the police or the USKOK (Office for Combating Corruption and Organised Crime at the Prosecutor's Office), also in anonymous form. The experience of a person who some years ago reported suspect corruption in the government of Zoran Milanović was by no means positive. "After a year, I was notified that report had been rejected. It was clear from the notice that pre-investigation activities had been carried out in a superficial way, without even checking the information I provided".

A law lost in the drawer

A version of the law on the protection of whistleblowers was presented to the Croatian public in 2013. Drafted by Dražen Gorjanski, a doctor who has been dealing with corruption in the healthcare sector for years, the text was supported by a group of civil society organisations, including "Kuća ljudskih prava" (House of Human Rights).

Gorjanski's proposal aimed at regulating the protection and status of those who denounced corruption, the reporting procedure, the obligations of the bodies responsible for receiving reports, and protection from forced hospitalisation. It also proposed to provide whistleblowers with healthcare coverage, a retirement plan equal to that of war veterans, a premium of 10% of the sum recovered following the conviction for corruption, right of priority in new recruitments, family allowances in case of invalidity or death, and social rehabilitation. It also planned to set up special legal assistance services for whistleblowers.

A year after the submission, the Labour Party sent the proposal to the parliament – albeit in a reduced version – but it did not have the strength and the time (and, perhaps, no sincere intention) to impose it on the then majority led by the Social Democratic Party. With time, the proposal went lost in the drawers of the parliament.

The wolf is sated, the sheep are anesthetised

Should the whistleblower protection law be really drafted, Andrej Plenković and his government would no doubt perceive this task as an integral part of their political work routine – to find a solution to ensure that wolves (guild owners, managers, senior political officials) remain sated and the sheep, though perhaps reduced in number, remain anesthetised.

Taking into account the constant quest to reduce workers' rights and jeopardise commons in the name of "creating a climate conducive to entrepreneurship" – a logic shared by both social democratic and right-wing governments – but also the systematic submission of institutions to the will of the party in power (an HDZ specialty), it would be naïve to expect an effective law to protect people who reveal secret ties between wolves to the detriment of the public interest.

"Despite existing regulatory solutions, the registered cases show that whistleblowers continue to face problems with reintegration into the workplace, so it is necessary [...] to increase levels of transparency, ethics, and integrity across society", states the Anti-Corruption Strategy for the period 2015-2020. "In addition to whistleblowers, more protection is needed for journalists (especially investigative journalists) and human rights defenders (if they are persecuted because of their public engagement)". In the light of the political climate in Croatia in recent years – marked by numerous attempts to exert pressures on journalists and demonise and limit the work of human rights activists, these statements cannot but elicit a bitter smile.

The weight of social stigma

Kristina Stevančević, head of the Activism and Outreach Unit of the Southeast Europe Coalition on Whistleblower Protection, talks about the persistent stigmatisation of whistleblowers: "With regard to the (non-existent) protection of potential and actual whistleblowers, the Croatian situation doesn't differ significantly from that of other countries in the region. Generally, whistleblowers and those who intend to take a step in that direction in our region aren't sufficiently represented or protected, and are often exposed to strong pressures, not just immediately after revealing unlawful acts, but also in the following years. The strong stigma on whistleblowers leads to their marginalisation not only by employers, who behave (and often are treated) as the injured party, but also by society, family, and so on. Further regulation of the system of assistance and protection in favour of whistleblowers will be useful in solving this problem. However, the current situation in Croatia and the whole region is such that whistleblowers are exposed, to a much greater degree than in other democratic countries, to pressures in the form of social stigma, difficulties in finding a new job, etc. For whistleblowers it is practically impossible to resume work, even in cases where the court rules in their favour: their reintegration into the job held at the time of the disclosure of illicit acts is impeded to such an extent as to be virtually impossible".

The voice of civil society

Ivan Novosel, an activist of the "Kuća ljudskih prava" organisation, was proposed by the Council for Civil Society Development as a member of the working group for drafting the bill on the protection of whistleblowers. We asked him some questions.

What should be the prerequisites for a good law on the protection of whistleblowers?

The new law should be based on the highest standards of human rights protection. This means that it should firstly be based on the Council of Europe and United Nations standards contained in the Recommendation CM/Rec (2014)7 by the Council of Europe Committee of Ministers and in the recommendations of the UN Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression. In developing actual solutions, such as defining and setting up whistleblower protection, the experience of countries with specific laws on whistleblower protection should be taken into account. For example, Bosnia and Herzegovina and Macedonia have relatively recently adopted similar laws, but also France and Germany have long established a well-defined whistleblower protection system implemented in several areas.

Do you think that the Croatian political élite, constantly devoted to "creating an entrepreneurial climate", is ready to approve a good law on whistleblowing, since whistleblowers pose a threat to what commonly passes for entrepreneurship in Croatia?

Bearing in mind that this legislative initiative comes from the executive power, I think we can expect Croatia to get a law on whistleblower protection, but the question remains how effective it's going to be. If the standards set out in the above-mentioned documents were complied with in the elaboration of the law, I think there would be a high probability to get a good law. However, regardless of the quality of any regulatory solution, the true test for the whistleblower protection system will be its implementation, which will show the actual political will to make it work in practice. Protection of whistleblowers is absolutely compatible with encouraging a good business climate.

As you point out, the term "whistleblowing" has a much wider meaning than simply denouncing corrupt practices. In your opinion, does it also include reporting human rights violations? One of the most tragic cases in recent Croatian history is that of Milan Levar, Croatian Army official killed in 2000 for witnessing on crimes committed during the war against the Serb population of Gospić. The murder case is still pending. Do you feel that individuals like Levar can be considered whistleblowers?

Certainly. Whistleblowing generally refers to any reporting of irregularities, including breaches of law and, above all, human right violations, which pose a threat or cause damage to the public interest, and which a public or private employee learns about on the job. Milan Levar was a whistleblower and the state should have done everything to protect him as such.

Paradigmatic cases

In Croatia, the term whistleblower is usually associated with two women involved in cases dating back to nearly two decades ago. The first is Ankica Lepej, a bank clerk who in 1997 revealed that there were 200,000 undeclared German marks on the accounts of the wife of then president of Croatia Franjo Tudjman. The system's response consisted in openly intimidating all potential whistleblowers: Ankica Lepej was immediately dismissed by Zagrebačka Banka and never found another job. For some time, opposition parties dragged her from a political meeting to another, to show their alleged determination to fight corruption and engage in favour of ordinary citizens. She was then among the members of the Council for Social Justice, set up by former president Ivo Josipović, during whose term the state of social justice did not improve at all.

In the end, Ankica Lepej became severely ill, which can be easily correlated with the tremendous pressure and the poverty that she was forced to endure because of her "recklessness". A little consolation – she is the only Croatian representative included in the list of the most famous "whistleblowers" who dared to denounce power abuses drawn by the Southeast Europe Coalition on Whistleblower Protection.

The second paradigmatic case is that of Vesna Balenović, who denounced some of the executives of the INA oil company where she was employed. She was immediately dismissed, ending up with defamation charges by then Chairman of INA's Board of Directors Tomislav Dragičević and former Minister of Finance Slavko Linić. Later on, Chairman of INA's Supervisory Board Davor Štern advanced the idea that Vesna Balenović could be re-admitted into the company as commissioner for the fight against corruption. This never happened, but Balenović has remained present in public life as founder and president of the Zviždač association which, in somehow unusual circumstances, received from INA a donation of half a million kuna (about 66,000 Euros).

INA has stopped being a public company for some time, as the administrative rights were transferred to Hungarian MOL. This deal was accompanied by extensive corruption that still weighs not only on the bilateral relations between Croatia and Hungary, but also on domestic politics and the work of the Croatian judiciary, which was originally conceived on the basis of the political needs of the HDZ and which is not equipped to face this kind of challenges. In 2011, an investigation was initiated against Ivo Sanader, former Prime Minister and President of the HDZ, suspected of taking a bribe of 10 million Euros from MOL's managing director Zsolt Hernádi in order to allow the Hungarian company to gain INA's administration rights. The criminal trial against Sanader is still pending.

Unlike Ankica Lepej, who sought support from the liberal left in her struggle for justice, Vesna Balenović turned to the right. Shortly after taking office as president of the Republic, Kolinda Grabar Kitarović appointed her commissioner for whistleblowing issues. Four months later, Balenović left office in protest, arguing that she had not even seen a glimpse of the president in the entire time she worked in her cabinet. She had obviously not realised that her only task was to be a trophy in the cabinet of the current president, whose inauguration was attended by some of the most controversial protagonists of Croatia's sluggish political and economic transition as guests of honour.