The law “Regarding whistleblowing and the protection of whistleblowers” that was approved by Parliament last year will take effect this month. The law aims to prevent and hit back at corruption in the public and private sector, by means of protecting employees within those institutions that report such violations.
The law envisions that every public “organization,” which remains without a clear legal definition, but with more than 80 employees, and every private company with more than 100 employees should have an office called “accountability unit,” charged with monitoring and reporting violations by the staff and the management.
Once the law takes effect, the High Inspectorate of the Declaration and Audit of Assets and Conflict of Interest (ILDKPKI), which is responsible for monitoring the implementation of the law, will send every business that fulfills the criteria an official letter asking for the details of the accountability unit.
In 2016, the government presented this initiative as the latest invention in the fight against corruption. According to the government’s argument, the law was drafted with the aid of “international experts,” whose experience had been an “added value during the drafting process.”
But it seems that the only thing that this law will create is a climate in which entrepreneurs can be easily blackmailed.
The aim of the “accountability units” will be the collection and investigation of any whistleblowing or doubt from the employees:
any illegal act or failure to act according to the penal code in effect in relation to any form of active or passive corruption, abuse of office or competencies, exerting illegal influence in the execution of office or decision making, abuse of income from the state budget, including illegal profits from interests, bribery, as well as any act similar to those above.
This unit will be managed by one or more employees from the company, prepared and selected by the state (the ILDKPKI), and who will be educated in the specific way in which “whistleblowers” are to be protected.
The employee will be paid by the company and will have the duty to investigate, gather evidence and documents, while protecting the source of the evidence and respecting state secrets(!) up to denunciation at the prosecution, thus protecting the source from all possible revenge from colleagues or employers.
This seems to be the true “trick” of this law, the protection of the “rat” that is mentioned in the title of the law.
On this point, the experts have done their best: the law envisions the cancellation of any act of revenge of the company against the “rat” – no disciplinary action, no possibility of firing, transfer to another function, nor lowering their paycheck or taking away privileges.
Meanwhile, the law, if we can call it such, assumes the good faith of the whistleblower as long as the contrary hasn’t been proven. According to the law, they may even report doubts, after which it is up to the accused to prove that he didn’t commit the act of which he doubted by the whistleblower.
This is nothing but a complete overhaul of the Penal Code by means of a regular law. It is truly a masterpiece of Balkan legislation, which moves the burden of proof from the accuser to the accused.
Let’s take a simple and practical example, just to understand the effect of this law: an employee of a clothing factory, which is afraid he will lose his job because of his underperformance, contacts the accountability unit. He declares that he suspects that the owner of the tailor has given a bribe to the manager of the distributor in order to have complaints about the quality of the work. And in fact, there haven’t been any recent claims. According to Penal Code art. 164(a), active and passive corruption is punishable with a fine or imprisonment from 3 months to two years. So the colleague of the accountability unit has to investigate the employer, which needs to prove that he didn’t corrupt his client.
Proving that the corruption didn’t happen is nearly impossible. How is it possible to prove that something didn’t happen?
In the above example, the game ends with a 3–0 victory for the whistleblowing employee. Maybe the owner manages to corrupt the prosecutor, but there is a chance he will lose his contract with the distributor, who doesn’t want any legal problems. As a result, the employer will have to fire some of his employees. But, because of the whisteblowing law, he cannot fire the employee who first “denounced” him, who is not legally able to remain on the payroll for the rest of his life.
The same is not so certain for his colleague in the accountability unit, who doesn’t have the same legal protection. On the contrary, employees of the accountability unit are threatened with fines if they don’t start an investigation or suspend it without justification. All of this on the basis of the assumed good faith and suspicions of the whistleblower.
To displace the burden of proof to the accused is a juridical error, which transports Albania at least 200 years back in time. And the government should know that to find cases of abuse of office you don’t need so much complications – just look around, or read a newspaper.
But the problem is not whether this semi-law has been badly written or may not work well. This is absolutely certain: this law will produce nothing but damage, fights, social and economic destruction, inflated costs for companies, terror, fear, and a feeling of persecution.
And maybe that precisely the aim: terror, but not for everyone.
Because in fact, the Agency for Public Procurement, which has only 22 employees, won’t have an “accountability unit” or “political commissary,” as they used to be called in a different time.
