by George Potchekanski, Partner, Attorney at law
The concept is derived from the practice of the English police officer – Bobby to report an offense by blowing a whistle. Persons who report wrongdoing /whistleblowers/ play a vital role in exposing corruption, fraud and mismanagement, as well as to prevent huge damage of inaction and / or illegal actions of the administration. In most cases, the whistleblowers take great personal risk to protect the public interest. They are threatened by official harassment, dismissal from work even physical abuse.
Despite the noble idea, which stands behind whistleblowing, in Bulgaria, and most likely in many of the former Eastern European countries, whistle blowers are not referred to as role models and a champions for a better society, but rather as snitches and informants. Even though the Republic of Bulgaria is party to several anti-corruption conventions, member of The European Union and as such is subject to compliance with all EU directives, there are no comprehensive and clear procedures for the protection of whistleblowers in the existing legislation.
The main regulation in the public /government/ sector concerning whistleblowing is the Administrative Procedure Code / APC /. APC provides the possibility to signalize against corruption and violations as well as general protection from repression against whistleblowers. APC also provides a procedure for reporting as well as the obligation for the host institution to hold an internal audit as a result of the received signal. APC provides that any natural or legal person / citizen or legal entity/ and the Ombudsman can report suspicions of corruption.
The Law on Conflict of Interest provides that anyone who has information about a person who holds a public office in violation of the rules can signal an alleged conflict of interest.
However, APC does not provide for a specific body which is competent to accept the signal and check. Still, each ministry and state agency have created Service Inspectorates, which are an administrative bodies empowered to carry out checks of signals. Alerts are issued through open channels like telephone hot lines, e-mails, through the website of the government department or by mail.
None of these channels provides for a special system to protect whistleblowers and thus the sender identity is not protected and can be easily revealed. However, the Civil Service Law and the Law on prevention and disclosure of conflict of interest includes provisions on the basis of which it is prohibited to disclose the identity of the whistleblower or facts and data relating to the signal.
We must boldly underline that anonymous reports are not considered by most administrations, although experience shows that if the signal contains sufficient facts the relevant authority on its own initiative can follow up and investigate and ultimately instigate prosecution.
In contrast, many corporations in the private sector in Bulgaria and especially branches and subsidiaries of foreign companies working in Bulgaria often comply with the Sarbanes-Oxley Act passed by the US Congress in 2002, as a common reference framework and have implemented such procedures. It should be borne in mind that the company that introduces such a system should be registered as an operator of personal data under the Law on protection of personal data. But even if companies are registered as operators of personal data that does not mean that systems in place for reporting, would be adequate to the European legislation on data protection and privacy, which is imposing mandatory restrictions on such systems.
Given the lack of explicit legislation, the private sector is generally free to introduce such systems in a manner and form as each company sees fit. Although as mentioned above the whistle blowing procedures and systems implemented by the companies do not encourage anonymous reports as well. Furthermore, the absence of effective legislation means that any whistleblower can effectively be threatened led by legal action on claims of defamation.
In conclusion, the legacy of the communist era and ineffective and insufficient legislation imply that employees will rather avoid whistle blowing due to the negative repercussions they risk to face.