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When law doesn’t rule
State capture of the judiciary, prosecution, police in Serbia
Political influence
on public enterprises and media
ALAC
Advocacy and Legal Advice Centres - ALAC
LTI
Local transparency index - LTI
Analysis of the risk of corruption in public - private partnership rules

Whistleblower from Krušik

Faith of potential criminal procedure against whistleblower from „Krušik“ for „revealing of business secret“ depends on several elements. First from the fact on whether the data he provided to the press even had a status of „business secret“. Whether, in other words, that was the information with commercial value because it was not available to third persons or generally known, whether some of the competitors of „Krušik“ will receive economic benefit from revealing and whether „Krušik“ protected secret data, adopted some act to determine secrecy etc. Furthermore, if these are the„data of interest for the Republic of Serbia“, than it would be important whether the rules from the Law on Secrecy of Data were respected, and not only from the Law on Protection of Business Secret.

Other important, and in this case crucial point, is whether the published information was supposed to be proclaimed as secret at all. Namely, both mentioned laws contain the rule according to which secret information cannot be the one that is tagged as such and is used „for covering up of the criminal act, overstepping of authorities or abuse of official post or other illegal act or proceeding“. If it is determined that the secrecy in this case covers up affairs to the damage of state enterprise, than there won’t be basis for criminal prosecution of the whistleblower.

Troublewith such concept of releasing of accountability for revealing secret, is that duty of keeping secret is most likely regulated in more general manner, and not especially for these information.

Intention for adoption of such general act most likely is not hiding of illegal or damaging actions. Problem occurs in practice, when implementation of such general act, protects the secrecy of the data on specific business action that is damaging or contrary to the rules.

In such situations whistleblowers should enjoy protection, because they act in public interest. However, Ministry of Justice and National Assembly were not willing to accept proposals of Transparency Serbia during the debate. Namely, Serbian Law on Protection of Whistleblowers, although much praised, has the least one systemic loophole – whistleblowing in public interest, unfortunately, does not represent legal base ground for releasing of criminal or other responsibility. Specifically, when it comes to handling with secret data, this Law, in article 20 envisages possibility for the whistleblower to address „authorized organ“ (e. g. prosecutor, state audit, ministry), but not directly to the public or the press.

Due to that, whistleblower from „Krušik“ won’t be able to ask for protection based on that Law. However, that doesn’t mean that he/she should be charged or convicted for what he/she has done.

On the contrary, one should insist on proving of unnecessary tagging of published data as secret, as well as on freezing of procedure against him/her before this previously mentioned issue is resolved. 

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