Abstract
The role of a whistle-blower is most commonly taken on by an employee, whose duty of loyalty to the employer is in confl ict with disclosure of the employer’s wrongdoing. This requires a balance between the interests of the parties to the employment relationship, on the one hand, and the public interest, on the other hand. It was taken into account in Serbian law when defi ning the legal status of whistle-blowers, from the fragmented protection of civil servants to the adoption of the Law on Protection of Whistle-blowers (2014). After elaboration of the evolution of protection, authors identify and analyze essential elements of the whistle-blowing concept, as well as its basic functions in Serbian and foreign law. This is followed by critical re-evaluation of the key aspects of protection of whistle-blowers in the legislation and case law of the Republic of Serbia (the circle of protected persons, motives for disclosure of information, damaging actions, the burden of proof and the gradual approach in whistle-blowing). The conclusion is that Serbia has achieved a slow but steady progress in the legal protection of whistle-blowers, and that there is need for further improvement, since certain legal solutions may separate the guarantee of protection of whistle-blowers from the purpose for which it was established.
Highlights
The role of a whistle-blower is most commonly taken on by an employee, whose duty of loyalty to the employer is in conflict with disclosure of the employer’s wrongdoing
Limited to corruption cases, legal protection isn’t reserved only for people working in government authorities, autonomous provinces or local self-government units, and can be provided to people working in public enterprises and other organizations founded by the Republic of Serbia, the autonomous province or local self-government unit, as well as people working in enterprises whose founder or member is the Republic of Serbia, the autonomous province or local self-government unit
There were some delays in the development of legislation on protection of whistle-blowers in the Republic of Serbia, we can conclude that a slow but steady improvement has been achieved in creating conditions for effective exercise of freedom of expression of whistle-blowers
Summary
There is no single whistle-blowing concept in modern legislation, theory or caselaw, and a number of different functions and meanings are attributed to this idea. Civil servants have a duty to serve the community and protect all persons against illegal practices, in order to strengthen government authority and public confidence in civil service, which includes reporting of illegal actions discovered during the performance of entrusted duties This is why it should be pointed out that the whistle-blowers’ dilemma whether to report illegal activities or not, is not exclusively moral in nature, if the information indicates that a serious crime has been committed or will be committed. They’ve become common place in many government departments, where the duty to keep information confidential is confirmed by law (e.g. Law on Security Information Agency, Article 23, paragraph 2) Inserting such clauses shall not prevent disclosure of information under the Law on Protection of Whistle-blowers, since the Law expressly states that the provision from a general or individual act preventing whistle-blowing shall be null and void (Article 3, paragraph 2). The disclosed information should refer to an observed illegal, morally dubious, action
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