Pristina, April 18 2020 – Kosovo Law Institute (KLI), with the support of US State Department – International Narcotics Bureau and Law Enforcement Matters (INL) and NED, publishes the report: “Public Whistleblowing” for non-implementation of Law for protection of whistleblowers: (Analysis of implementation of Law on the Protection of Whistleblowers by public institutions).”
In the Republic of Kosovo from January 2 2019 entered into force Law No. 06/L-085 for the Protection of Whistleblowers (LPW), which has defined rules, procedures of whistleblowing, the rights and protection of whistleblowers as well as obligations of public institutions and private subjects regarding whistleblowing. LPW has defined the structure of a system of whistleblowing, and for consolidation of this system, the same law has defined concrete legal obligations for all public and private institutions. In this regard, LPW has defined that each public institutions, among others, it has a legal obligation that within the deadline of six (6) months to appoint the responsible official for the cases of whistleblowing and to notify in writing all employees regarding the procedures of whistleblowing and the rights foreseen with the LPW. Failure to implement these legal obligations within the legal deadline, according to the LPW is sanctioned as a minor offense, which procedure, the ACA is obliged to initiate within six (6) months.
In this report, KLI has monitored and researched the implementation and non-implementation of the legal obligations of the LPW by public institutions. In this regard, regarding the fulfillment of these legal obligations and compliance of legal deadlines, KLI has addressed requests for information and access to public documents, to 137 public institutions.
KLI’s findings show that not all public institutions are clear about the LPW, the manner and procedure of its functioning, as well as the obligations that these institutions have in the face of this law. Furthermore, there are some elementary misunderstandings, such as the difference between the responsible official for the cases of whistleblowing and the whistleblowers or the fact that the name of the responsible official should be known by the employees, etc. The lack of secondary legislation has also contributed to this ambiguity of public institutions. Given the fact that LPW is still in the consolidation phase, the lack of knowledge regarding the field of whistleblowing by public institutions presents a serious challenge in the implementation of LPW, especially in cases when concrete cases in public institutions of internal whistleblowing appear in public institutions.
In one case, a public institution the responsible official for the cases of whistleblowing, in the absence of knowledge on the LPW, had kept it hidden from other workers, ie for persons who could potentially appear as whistleblowers. The reasoning for this action was the intention of the public institution that the responsible official for the cases of whistleblowing “be successful at work”. Whereas, in two (2) responses received by KLI, public institutions refer to the responsible official for the cases of whistleblowing as “whistleblower”.
On the other hand, of all the institutions that have responded to the requests of KLI, at least one of them has not appointed the responsible official for the cases of whistleblowing, while in the appointment of responsible officials for the cases of whistleblowing, 23 institutions have violated the legal deadline of six (6) months after the entry into force of the LPW. Regarding the appointment of responsible officials for the cases of whistleblowing, in at least seven (7) cases, public institutions have appointed the official responsible for the cases of whistleblowing only after KLI has sent a request for information and access to public documents in the respective institutions.
Started from the fact that the responsible official for the cases of whistleblowing is appointed simply by issuing a decision by the employer, KLI estimates that the violation of the legal deadline in this case represents the non-seriousness of these public institutions in front of the LPW.
On the other hand, of all the institutions that have responded, 51 of them have announced that they have provided written instructions to the employees regarding the procedures of whistleblowing. Four (4), public institutions have not notified their employees at all regarding the rights arising from the LPW. Whereas, 17 other institutions had not respected the form of giving instructions to employees, in such a way that eight (8) public institutions have stated that the instructions have been given orally, while nine (9) others have fulfilled this legal obligation by publishing the Guideline for the Protection of Whistleblowers on their official websites. Whereas, at least six (6) public institutions, the written notification for the employees regarding the procedures of whistleblowing had done it only after the KLI had sent a request for information and access to public documents to the respective institutions.
Regarding the violations of legal obligations according to the LPW, in this report KLI has identified that in total, public institutions have finished a total of 61 misdemeanor, which are listed in a separate table.
Furthermore, of all the responses received, KLI found that in all public institutions, as internal whistleblowing was only one (1) case, while the ACA confirmed that there was another case of internal whistleblowing, as well as five (5) cases of external whistleblowing.
Based on these findings, KLI estimates that even after more than one (1) year has passed since the entry into force of the LPW, the system of whistleblowing defined by the LMS has not yet managed to consolidate. This is mainly due to the lack of knowledge of public institutions on LPW and the non-seriousness of the same to implement legal obligations according to the defined deadlines.
But, in addition to this non-seriousness, KLI considers that the ACA has deviated from its legal responsibilities as a supervisor of public institutions in the implementation of the LPW, which legal authorizations consist especially in supervising the implementation of legal obligations and initiation of misdemeanor proceedings in case of non-implementation, which initiation, the ACA has not done in any case.
LPW has had positive assessments. But as the only one, LPW does not guarantee the success of the whistleblowing field in the Republic of Kosovo, if the same is not implemented in practice. Thereupon, in order to remedy the practices of non-implementation of legal obligations by public institutions, the ACA should immediately initiate misdemeanor proceedings against all institutions that have not fulfilled these obligations.
Furthermore, download the KLI report “Public Whistleblowing” for non-implementation of Law on the Protection of Whistleblowers: (Analysis of the implementation of Law on the Protection of Whistleblowers by public institutions).”