Blow that whistle!

whistleIn April 2014, the Albanian Ministry of Justice and the Minister of State on Local Issues granted the Willem Pompe Institute for Criminal Law & Criminology the task of designing a Whistleblower Protection Law for Albania. This project was supported by the Embassy of the Netherlands in Albania and funded by the Dutch Rule of Law Programme. The team responsible for drafting the Law and the explanatory memorandum consisted of researchers from the Research Programmes UCALL and RENFORCE: François Kristen (UCALL), Eelke Sikkema (UCALL), John Vervaele (RENFORCE), Dina Siegel-Rozenblit (RENFORCE) and myself (RENFORCE). The draft Law and the explanatory memorandum were sent to Tirana in March 2015, and in the beginning of June this year, the Netherlands Embassy announced that the Albanian Parliament had approved the Whistleblower Law. The Law will enter into force once it is promulgated by the President of the Republic and published in the Official Gazette. However, it is important to note that until its publication in the Official Gazette we do not know to what extent the approved Law differs from the draft Law we submitted.

In June 2014, Albania was granted EU candidate status. As part of the preparation for the next step, which is the country’s accession to the European Union, this project intended to improve the Albanian rule of law and to reduce the degree of corruption in the public and private sectors. The content of the draft Law and explanatory memorandum is primarily based on two comparative reports and a criminological analysis of the whistleblowing phenomenon and best practices in different countries. The first of the two comparative reports compares several international instruments on whistleblower protection adopted by organizations, such as the United Nations and the Council of Europe, and reports on whistleblower protection written by organizations, such as the Organization for Economic Co-operation and Development (OECD). The second report compares whistleblower protection legislation of the USA, the UK, Romania, Slovenia and Luxembourg. These states were chosen for several reasons. Firstly, in its report ‘Whistleblowing in Europe’, Transparency International states that Luxembourg, Romania, Slovenia and the UK are the four EU countries with the most advanced whistleblowing legislation. Secondly, the UK and the USA have adopted relatively detailed and extensive whistleblower protection legislation. Thirdly, Slovenia and Romania were chosen because of their geographic proximity to Albania.

The final version of the draft Law that we submitted contains provisions with important definitions and a description of the personal and material scope of the Law. Other provisions describe internal and external reporting procedures, protection mechanisms and implementation measures. Our goal was to submit a draft Law which complied as much as possible with the criteria and guidelines provided by the reports and instruments set out in the first comparative report. The findings in the second comparative report served as an inspiration for the formulation of most of the provisions.

The draft Law has a broad personal scope including “all persons working in either the public or private sector” regardless of the kind of labour contract they have or position they hold within the organization. The draft Law also aims to protect volunteers, trainees and interns who might not be paid for their work. The broad personal scope is based on the guidelines in instruments, such as Recommendation 2014/7 of the Council of Europe, whose explanatory memorandum states that workers are usually the first to learn of any wrongdoing. Guaranteeing their protection after reporting suspicions of wrongdoings is therefore essential in the fight against fraud and corruption.

However, unlike the personal scope of the draft Law, the material scope is rather limited. Whereas most international instruments and reports favour a broad material scope which includes different wrongdoings, the material scope of the draft Law merely covers suspected acts of corruption. The decision to limit the material scope was based on the consideration that the wider the scope of the draft Law, the more capacity and resources would be needed to implement and apply the Law.

The draft Law also includes the hierarchy in internal and external reporting procedures prescribed by several international instruments. A whistleblower first needs to report a suspected act of corruption internally, meaning within his own organization. This enables the organization to properly investigate the suspicions and, if necessary, to take the measures that will be appropriate to the organization. Only in certain cases may the whistleblower turn to the designated external reporting body, which in the draft Law is the High Inspectorate of Declaration and Audit of Assets and Conflict of Interest.

Furthermore, a variety of protection measures against retaliation are included in the draft Law. A whistleblower may receive financial compensation in case of retaliation, which according to the United Nations Convention against Corruption (UNCAC) and the OECD Whistleblower Report 2012 is an appropriate remedy. In conformity with the Criminal Law Convention on Corruption the draft Law also includes measures of personal protection, such as change of identity. In addition, on the basis of Recommendation 2014/7 and the OECD Whistleblower Report 2012, the draft Law includes the possibility to transfer a whistleblower to another department of the organization if he fears retaliatory actions in his or her immediate work environment.

The project has been relevant for RENFORCE, since designing a law which regulates the reporting of corruption and the protection of whistleblowers fits perfectly within the research programme that focuses on regulation and enforcement in Europe. Furthermore, this project is not just important for Albania, which was presented with a draft Law that may contribute to the fight against corruption in that state. In addition, the project and its outcome are relevant for other EU states and even the EU itself. For them, the comparative and criminological reports as well as the draft Law and explanatory memorandum could provide guidance in the process of adopting or improving their own whistleblower protection legislation.