At the beginning of November 2023, the lawyer of Transparency International Slovakia, Ján Ivančík, accepted an invitation from RTVS for their programme AKTUÁLNE:24.
Below is the transcription of the interview.
We will discuss this topic with Ján Ivančík, lawyer at Transparency International Slovakia. Good afternoon and welcome.
Good afternoon.
The Interior Minister has put six police officers, led by Ján Čurilla, off-duty. In addition, he has removed the first police vice-president Branko Kišš, as well as the head of the police inspection Peter Juhás from office. However, they were all enjoying an approved status of protected whistleblowers, which ensures their protection against any illegal acts related to them, including any labour-related acts. So was it okay?
From my point of view, it is important to say what the purpose of the Whistleblower Protection Act is. The law is intended to protect people who provide information based on their employment experience that may be relevant to the investigation of anti-social activities. In human terms, this information will contribute to the clarification of corruption or serious crimes or other anti-social activities. In this case, the goal is to ensure that these people, who bring important information to the investigation, are not retaliated against by the employer. So if the employer has taken retaliatory measures against them, it is certainly not okay in view of the current legal regulation.
Of course, the protection applies to employers in all fields of business, services, institutions etc., but in this particular case we are talking about a specific section – the police.
It is certainly a specific section. We can give it a thought whether the protection afforded was relevant, whether there were indeed some purposeful acts… From my point of view, it is important to look at who is granting the protection. In this case it is the prosecution office. It provides a guarantee, an assurance that a person who believes to be clarifying anti-social activity will not be able to declare that he/she is a whistleblower and will subsequently receive that status. It is up to the prosecution office to assess the application for protection and to issue a decision. This leaves no space for any kind of arbitrariness.
The Minister argued by referring to the Section 46 of the Police Service Act. According to this provision, the Minister shall put off-duty police officers who have committed a crime. That is why the Minister believes there has been no breach of the law. On the other hand, we have the Whistleblower Protection Act, which says that a change in the employment status or in the deployment of a protected person must be approved by the Whistleblower Protection Office. Do these two pieces of legislation contradict each other?
The legal order is not created in such a way that now I interpret one law, then a different one at some other time, and then I find yet another piece of legislation on another occasion, guiding myself just by the one I have currently at hand. The legal order has clear rules. If I have a specific regulation applying to a specific case (protection of whistleblowers) that is aimed at protecting a certain category of persons and if this protection has been granted under that regulation, it is necessary to follow this particular legal regulation.
If it comes into conflict with another law, it must be interpreted. In this case, we are in a situation where the Minister should have first sought the opinion of the Whistleblower Protection Office, he should have sought approval for the next steps, and only after that he could act, in line with the opinion issued by the Office. So, in my opinion, if the Minister has omitted this step, there is a violation of the law.
If two pieces of legislation are in a conflict, how do you choose? Would a legal opinion be required? One of the affected police officers was Peter Juhás, who had not been charged of crimes as the “Čurilla group”, but the Minister argued that in his case there was no interference in employment relationship, as Juhás had been only temporarily entrusted with the function of the head of the inspection, which means replacing him was not against the law. How do you perceive this conduct?
Whenever the Minister takes a decision, it should be based on an opinion. The Minister actually says that he does have one. It will certainly be very interesting to read.
In the case of Peter Juhás, the situation is slightly different. It involves assessing whether or not the person concerned has a certain profession, job or function for a limited period of time. There is a clear difference in this case. On the other hand, we are back to a situation where we have a whistleblower enjoying legal protection that has been granted to him by the prosecution office. This means we must follow the law, which clearly states that the first thing to do is to seek an opinion from the Whistleblower Protection Office. The Office is to give the relevant permission.
In the absence of that opinion, there is a risk of falling foul of the law. The question is what the motivation is. If the Minister is really just trying to fulfil the letter of the law, the simpler course of action would be to first seek the views of the Whistleblower Protection Office. And to act only after getting this opinion, because then he would get the question “is there a risk of breaching the law?” off the table. If his motivation is different, it also leads to different results.
Could this ultimately result in a heavy fine?
Certainly, if the Office concludes that there has been a breach of the law. The Office is empowered to impose fines, even repeatedly. In this situation, the fine would be imposed on another state authority and thus, although the fine is a revenue of the state budget, it is in fact obtained just from another state administration body.
This is a cyclical problem, and it is not limited only to the protection of whistleblowers. The same problem occurs with violations of the law in the courts, for example, when there is a breach of the law by a judge. Again, the Ministry of Justice enforces a fine from a court that falls under the Ministry of Justice itself. This brings us into a vicious circle.
In Slovakia, we have been hearing about these problems for decades – that efforts will be made to recover the damages more effectively. Be it against public officials or some other categories of persons. But we have not got there yet. The question again is why this is so, and why we hear it before every election. But two days after the election, it is no longer an issue.
Thus, if there is a fine, it would not be paid directly by the Minister out of his own pocket, but by the Ministry. Some say it can reach as much as €700,000. That is already a considerable amount.
When such headlines are published in the media, foreign countries will probably draw their conclusions in this vein too. As a lawyer of Transparency, I see the need to oppose any illegal or unethical conduct. And this is something that has long been a problem in Slovakia. Even over the last three and a half years, we sometimes turned a blind eye to some actions that members of the new government are now pointing to as problematic. It is not okay when someone receives a summons to appear before a law enforcement authority and gets their door kicked down by a commando. Nor is it okay to “kick out” police officers who are protected whistleblowers and in relation to whom the Regional Court in Bratislava has already indicated that their prosecution is likely to be purposeful.
We may not turn a blind eye to any wrongdoing; this is the only way we can build the rule of law. Two years ago, the representatives of the current coalition criticised things and behaviours, such as replacements in the Judicial Council etc., while today they themselves apply them without any problems. This raises a serious question as to whether these proceedings are not purposeful.
If we look at the Whistleblower Protection Act, what is it about? Which employment-related acts does it concern? Can your employer reassign you, fire you or take part of your salary?
The aim is to make sure the employee does not end up in a worse position. This means that the employer must not reassign such employees to any other inferior position, nor suspend them from work, put them off-duty and say something like “from today on you will just read the newspaper for two months”. This is the aim. It is not allowed to take any measures against such employee – and here it is important to add we mean measures to retaliate for reporting anti-social activities.
If the employer covers it up with another reason, for example, they no longer have a relevant work or post for the person, can this be agreed on with the Office?
That is why the Whistleblower Protection Office exists. It can examine these types of conduct in detail and has the competence and capacity to do so. Today, the Office faces its greatest challenge. So far, we have said that the Whistleblower Protection Office will need to make itself known, will need to show people that its existence makes sense. There are some big cases coming up today, and they concern a large number of people as well. There really is a lot at stake, the Office itself can show that it really does have the power and the ability to protect people.
If the employer harms the employee and uses other reasons to cover it up, then, unfortunately, we will have to conclude at the end of the story that the Office has failed in its mission. But if the Office would fight and show it is a justifiable institution, then this is the right opportunity. However, we must not forget that the legislators hold considerable power and can even abolish the Office. On the other hand, we also have European legislation that sets minimum standards. If these are violated, European law is violated.
Do you see signs of violations in these cases that are happening now, that could be criticised by the European Court of Human Rights?
Not by the European Court of Human Rights itself, but we have an EU directive that has already been transposed into our legislation. One of the requirements is the obligation to provide effective protection to whistleblowers. If this protection turns out be such that a whistleblower has been afforded protection but is subsequently put off-duty despite the granted status, then we can hardly call it effective protection.
In our conditions in Slovakia – what power does the Office have at all? Can it overturn the Minister’s decision? Or will it just impose a fine, which again will only circulate within the state apparatus where one state authority pays another state authority?
You have made a very good point. The law itself says that when an employment-related act is done in violation of the law, the act is null and void.
Who will declare it null and void?
If the Minister or the Ministry do not change their rhetoric despite the appeal, then it will be up to the court to decide. At the end of the story, in my legal opinion, it is very likely that it will be necessary to compensate these people for the damages that they have suffered during the period of their employment throughout the proceedings.
Since the enforcement of the law and especially the speed of adopting decisions in Slovakia is what it is, it can take a very long time.
Legal proceedings are picking up a bit, as our data also shows. It may not be as bad as some perceive it to be. This will be another opportunity for the Slovak courts to show that we can move forward in important cases.
Thank you very much for the interview, we spoke with lawyer Ján Ivančík from Transparency International Slovakia.