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Whistleblowing – legal situation in Slovenia

by Dr. Marko Petek, Partner, Attorney

In 2008 Slovenia ratified the UN Convention against Corruption. Article 33 of the Convention defines, that each country (state party) shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person, who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.

For the first time in Slovenia, the Civil Law Convention on Corruption was ratified in 2003. It defined protection of employees in way that each country (state party) shall provide in its internal law for appropriate protection against any unjustified sanction for employees, who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities.

Slovenia approached to mentioned Convention, when the Code of Ethics of Slovene Public Servants was adopted in 2001, which imposes in Article 12 a requirement on administrative bodies to ensure, that public servants, who report violations of code or other criminal offences shall not suffer any kind of damage. The code defined, that it has to be ensured, that public servants, who report in good faith any kind of irregularity or criminal offence, are protected from threats and similar acts, which endanger the performance of public tasks. This provision has no sanctions, when not obeying it.

Besides above mentioned Code of Ethics Slovene Public Servants, Slovenia also adopted Witness protection Act in 2005, which defined the protection of witnesses and other persons, who are endangered because of their cooperation in court proceedings. Protection is assured, in pre-trial procedure and as well after trial in court.

To fill the “empty area” of not having any law, which would regulate whistleblower protection and which would have also sanctions, when such rules are violated, Integrity and Prevention of Corruption Act was adopted in 2010 (and later amended). This act also brought new regulations regarding whistleblowing protection as it is defined in UN Convention against Corruption.

This act regulates the protection of persons against diverse threats, all forms of physical violence and psychological maltreatment of individuals, when such persons actively, and in good faith, desire to make an effort to prevent and detect illegal activities and their perpetrators. The provisions regulate the protection of whistleblowers of corruption cases and other illegal activities.

The act has established the Commission for the Prevention of Corruption of the Republic of Slovenia, but even before Slovenia already had an eight years history of specialized anti-corruption bodies. Commission is an autonomous and independent state body like the human rights Ombudsman, Information Commissioner or the Court of Audit, which, for   the purpose of strengthening the effective functioning of the rule of law and safeguarding it from being threatened by corrupt practices, autonomously implements its powers and carries out the tasks set out in Slovenian acts within the framework and on the basis of the relevant legislation. It has a mandate in the field of preventing and investigating corruption, breaches of ethics and integrity of public office.

Although part of the public sector, the Commission is not subordinate to any other state institution or ministry and does not receive direct instructions from the executive or the legislature. The act determines that any person may report instances of corruption in a State body, local community, by a holder of public authority or other legal persons governed by public or private law, or a practice by a natural person for which he believes that it contains elements of corruption, to the Commission or any other competent body. The identity of the reporting person, who has made a report in good faith, must not be established or disclosed. Yet, if a malicious report was filled in and if no elements of a criminal offence have been established, it is considered to be an offence punishable under the act.

When the Commission finds that the filled report contains elements of a criminal offence for which the offender is prosecuted ex officio, it informs the law enforcement authorities of this in accordance with the law governing the criminal procedure. If in connection with the report of corruption, the conditions for the protection of the reporting person or his family members are fulfilled under the law on witness protection, the Commission may submit a proposal to the Commission on the Protection of Witnesses Risk to include them in the protection program or may propose that the State Prosecutor General take urgent safeguarding measures.

An official person who has reasonable grounds to believe that he has been requested to engage in illegal or unethical conduct, or has been subject to psychological or physical violence to that end, may report such practice to the superior or the person authorized by the superior.

If the reporting persons have been subject to retaliatory measures as a consequence of filing the report, and this has had an adverse impact on them, they have the right to claim compensation from their employer for the unlawfully caused damage. The Commission can offer reporting persons assistance in establishing a causal link between the adverse consequences and retaliatory measures. If the reporting persons are public servants, and if they continue to be the focus of retaliation despite the Commission’s demand for stopping with such actions, making it impossible for them  to continue work in their current work post, they may request that their employer transfer them to another equivalent post and inform the Commission of this.

Persons in the Republic of Slovenia can report possible corruptive practice to Police, Public Prosecutor’s office and Commission for the Prevention of Corruption.

Slovenia Petek