Ján Gordulič (JG, host): Greetings to everyone watching the live stream. Also greetings to all you that are present here in the Old Town library on Blumentálska street. Welcome. There’s about 800 people crammed in here, the room is absolutely packed, because today’s topic is extremely strong. Let me welcome your guests as well. I’ll start from the right:
- Peter Kubina (PK, guest): attorney representing whistleblowers in court proceedings.
- Ján Ivančík (JI, guest): lawyer at Transparency International Slovakia.
- Pavel Nechala (PN, guest): anti-corruption expert and co-author of the 2015 Whistleblower Protection Act, which put us at the absolute forefront of whistleblowing laws and legislation across Europe.
- Zuzana Dlugošová (ZD, guest): President of the Whistleblower Protection Office.
Today’s topic is “whistleblowing in Slovakia – where we are and what lies ahead”. That’s where I would start. Let us start with you, Mr Ivančík, for Transparency. Why this topic of discussion, where are we and what lies ahead?
JI: Thank you for your introduction. This is the first time I’ve opened a discussion. The topic is extremely topical, extremely important. Our starting point in 2015 was that our legislative protection was at the leading level in Europe. In 2019 there was an amendment that improved the situation even more, but we at Transparency also warned that the application practice would bring problems, that is, when real complaints are lodged, taking this law to the level of practice. When those real cases came up, they automatically triggered efforts to change the legislation. The legislation has again come to a stage we could describe with words “a letter does not blush”. We even have the Whistleblower Protection Office to protect whistleblowers, and it is still something of an outlier in the European area. At the same time, we can observe that, as protection is being given to people who are already becoming visible in various cases, the question of whether the Office should also be abolished is coming to the fore very quickly, in the accelerated legislative procedure at that. In short, with the aim to get down to the very minimum of what the EU directive requires. That is why the topic is certainly important.
What is the worst alternative? What is the blackest scenario we could expect? How far could it possibly go?
JI: I think the President of the Office can explain this better. Fortunately, there already is a minimum level of whistleblower protection guaranteed at the EU level, which means it can’t be that we have to start from scratch again. However, as long as the protection only remains on paper and as long as it is not real, targeted and enforceable in practice when someone actually speaks up, so that they really feel that the competent authority can help them, it will once again be just a nice pendant on our legislation.
Mrs Dlugošová, last year we met at several events where you promoted the Whistleblower Protection Office. You have spoken to people who have made real complaints and who have actually received protection from you. This protection, to my surprise, was fast and functional. Meaning that these people could not be dismissed nor demoted. I think it involved a guarantee of keeping their jobs until things were sorted out. In the short time that your Office has been operating, i.e. two years, you have had quite nice results. Describe the results of the Office showing that its existence is not only on paper as Mr Ivančík mentioned.
ZD: From the time the Office was established in September 2021, we have been trying to communicate very actively. Although there are objections regarding the rising numbers of protected whistleblowers, this is a natural consequence of the fact that the topic of whistleblowing is coming to people’s attention, not least because of the communication efforts of the Office that has taken the issue seriously. We in the Office understand that we need to talk about the legislation – the data from times before the Office was created, even from Transparency, showed there was quite low awareness of the protection, let alone awareness of the existence of the Office. This low awareness was our starting point and gradually the curve is rising.
Were there really reservations that the number of protected whistleblowers was going up? Isn’t that a good thing?
ZD: The reason of these objections is that some protected whistleblowers are identified as persons who may abuse the protection; this casts shade on the numbers. I would not like to make any more comments on this, because it is necessary to keep saying why whistleblowing is important in the society. These are really people who can have some exclusive information about serious breaches of law. Such people need to be protected and valued because they stand up for the public interest. Not everyone has capacities to stand up and walk up to a law enforcement authority in their position to identify a serious violation of the law.
It’s difficult and annoying. Like when I deal with cars parked on the pavement. When I argue with drivers on the pavement, I experience inner turmoil, I bring it home, and I can imagine with whistleblowing it is hundreds of times more intense.
ZD: It is inappropriate to speak pejoratively about these people, indicating that they want something in return, get benefits in return, or that they are snitches. This is a question of values and a question of public interest. Yes, the numbers are going up. More and more people are turning to us. Today, the Office is dealing with around seventy cases, where we have either been approached with specific complaints or we deal with cases in which protection is granted. Where an employer has given a notice and there is a subsequent lawsuit. Or where the persons involved enjoy preventive protection in the form of protected whistleblower status, which has been heavily discussed in recent weeks; these are situations when we are involved in possible communications with the employer, or we decide on consents to employment-related acts. I think it works and there is no need to discourage people. What we have seen in recent weeks regarding the reactions of state leaders, many have also remained surprised that such legislation exists. In a way, we are also educating at political level, raising awareness about the existence of this kind of protection and its meaning in practice. It is certainly not good to make sudden changes of the legislation if we do not like the consequences of the legislation in particular cases.
I would like to point out that the seventy people you represent have already gone through some sort of process. I suppose there have been much more complaints but not all of them get to the point where it is concluded there really is something behind it. This is where many hours of work are spent.
ZD: Absolutely, there are many times greater numbers of people who contact us and only some complaints are dealt with further.
Mr Nechala, you co-authored the Whistleblower Protection Act. How satisfied were you two months ago? How did it all work?
PN: We set out for a journey. We were getting closer to some ideal.
What is the ideal?
PN: The ideal is that there is an alternative to silence. There is a culture of mindfulness, with organisations and people who notice malpractice and are subsequently willing to raise their voice.
Is there a country in Europe where this ideal has been reached, or where they come closest to it?
PN: Whistleblowing is actively used in several countries. In Slovakia we can also find examples in the private sector where employers are active in showing that it is their interest to prevent unfair practices. They explore possibilities to create a safe environment so that their employees are willing to report what they see. We need to recognise that whistleblowing substitutes control mechanisms.
There is an international organisation, ACFE, which brings together forensic auditors and issues a report every two years on the state of employee fraud. Whistleblowing has a percentage success rate of proving fraud of around 40%. This level has been roughly stable for the last decades. When we compare this with traditional control mechanisms such as management scrutiny or internal audit, it is about a third. This is a logical result because whistleblowers/employees describe what they see with their own eyes. In contrast, auditors examine circumstantial evidence and try to build from there. That is why there has been a groundswell of support for legislation that introduces safe whistleblowing.
In the USA, there are about 50 Acts at federal level alone that deal with the food industry, air transport, the banking sector and more. In Europe, it is primarily the European Court of Human Rights that has issued extensive case law in this area. This was later complemented by the directive, which sought to harmonise processes that had already been in place, and it is important to emphasise what we can expect from this legislation. We should expect two basic objectives.
The first is to stop the unfair practice from continuing and the second is to protect the whistleblower. This should not be to the detriment of the person making the complaint. Firstly, I must stress that we must not be naive in thinking that the law can protect the whistleblower. The impact of making a complaint is much wider than employment-related issues – they also involve financial, family, psychological issues and more. Many times there is no happy ending in these stories.
Therefore, if we are talking about narrowing the standard in the area of labour law or basic protection, it is really a minimum. There is also another very important element that is getting lost – trust. Without trust, people won’t lodge complaints. The President of the Office has done a lot of work to build a credible institution. Now, with these legislative changes, we are getting to a position where confidence is shaken, and it is foreseeable that this will take quite a long time to repair.
Mr Kubina, you represent clients who are a little different, as they work in the public sector. They directly opposed something that every citizen should have a stake in. How satisfied were you two months ago? How did it work? Mr Nechala mentioned that it is impossible to help these people completely, that there is 80% more of all kinds of things that we do not see but that are happening.
PK: We anticipated that it would not go smoothly, that there would be a lot of resistance. What can hardly be completely anticipated is that someone will explicitly ignore the law.
Sorry, but let us first talk about times when this has not happened yet, like August 2023. Was the protection working? Did you feel like it made sense? That you have something to rely on?
PK: We, as a law firm, have represented a number of protected whistleblowers. Including those unknown to the media, there are some 3 – 4 such cases. It’s not just me working on these cases so I don’t know the exact number. In these cases, I can say that this protection has worked exactly as it was supposed. Of course, there were efforts to circumvent it, to neutralise it, to stop it, but they failed. In one of the cases, the Office granted follow-up protection because the individual had not yet been granted the status of protected whistleblower. In this case, we were unsuccessful in obtaining an interim injunction in the first instance, and it was not until the Regional Court of Appeal that the injunction was granted. The path was not straightforward. Not in every case, but we have tested the system, and it basically works or used to work.
Now, let us go to the present. Was there any case where someone presumptuously tried to circumvent the law by removing the whistleblowers from office, as has happened recently, saying that the law did not apply to them and trying to ignore it?
PK: No such scenario as the one in the case of the Ministry of the Interior has ever happened before. I mean certainly not in the cases that we have dealt with. We have been expressly relying on the protected whistleblower status of the persons concerned and on the fact that the law is clear in this matter. When someone has this status, their employer, whoever it may be, even a very powerful government body, must seek consent from the Office. Whether or not the consent is granted will be at the discretion of the Office in an administrative procedure. The assessment is up to the Office, but the employer must take this step anyway. The Ministry did not take it and circumvented the Office. Here I would like to add that the government has turned attention to the Whistleblower Protection Office, and I consider the Office to be an innocent victim of this situation. The Office has not interfered in any way with the situation of these particular whistleblowers. I don’t want to say the Office didn’t help them at all, but it didn’t do anything for their benefit.
I’m getting lost in it. Who made them protected whistleblowers?
PK: The prosecutor. The Office had only one role in this case. To give or withhold consent to a prior action, i.e. the act of putting them off-duty. But someone should have first asked for that consent. Since no one had asked for it, the Office was out of the loop from the start in this case. I would say that the Office has undeservedly got owned, as it has not been active in this matter in any way. Even the requests that we made to suspend the effectiveness of these actions, which we made only out of procedural prudence because we believed that this motion could not be granted – but we did not want to neglect anything -, those requests were not granted by the Office.
Once you find yourself in this situation, then it is up to the courts to protect you. You can only go to court and it’s up to the courts to decide whether or not to give you an interim measure. In this case, such interim protection is really important. The protection is linked to the general Anti-discrimination Act and the sections on non-discrimination of police officers in the civil service, which is directly in the Police Service Act. Here we saw that four out of seven judges interpreted it in the same way as we and three had different interpretation. Now it is on appeal. From that perspective, I am satisfied with the outcome of the first round of trials. I’m glad the results are as they are. This confirms that protection is not straightforward. The case law to rely upon in future is still being developed. The system has been in full operation for a year, maybe two, so we are still creating the practice.
Now I would like to turn to the fifth participant of this discussion if there was someone sitting in the fifth chair. This person should be a representative of the ruling establishment, or someone from the imaginary “other side of the barricade”. Someone to give arguments why the Office should be abolished, why protection should be limited. Unfortunately, we did not succeed. Transparency contacted representatives of the Ministry of the Interior, Ministry of Justice, Ministry of the Environment, representatives from the Government Office, spokespersons, press departments… They also contacted the press departments of the SMER, HLAS and SNS parties. Members of the Constitutional Law Committee were contacted, but none of these institutions was willing and able to send a representative. So I will, at some points, speak for the government – I will play the devil’s advocate here.
Now let us look at the anti-fraud protection by the state, let us look at how state employees are protected from the state itself. Are we currently able to effectively protect these people? Let us start with you, Mr Ivančík. What do you think will happen next? Can state employees defend themselves against the state administration that is going to change the law – the law that is supposed to protect them – just to protect itself from whistleblowing?
JI: As has been already indicated, I see whistleblowing as one of the means of protection. It’s not the only tool you have if you find yourself in a situation where you become aware of some information and then try to do something about it. Whisleblowing is really a targeted tool because its aim is to make sure that you will not face the impacts at the employment level, or at least these impacts will be reduced.
Things were developing from 2015 until the establishment of a separate Whistleblower Protection Office. Before that labour inspectorates had this competence. Our experience has shown that the authorities have approached this as an extra duty to which they would not devote any extra time. It takes a quantum of time and energy to raise awareness, as the President of the Office has just said, to make people know that such protection exists, to make it effective, and labour inspectorates were not unwilling to invest this time.
Subsequently, this competence was transferred to a separate body, the Office, which took it up with vigour. If we look at figures alone, we can see that the number of whistleblowers is growing. There are a growing number of people who know about the existence of this law. And now, in my opinion, comes the third turning point, which will shake up what has been built up so far. The moment when the case is actually coming to the media. In my opinion, if somebody really wanted to know more about whistleblowing, they had to make the effort, they had to take the initiative searching for possibilities, or they had to hire an advocate who could explicitly help them and advise them to go in a particular direction. Today we really hear about whistleblower protection across the media spectrum. And when we get to the point that this topic is being discussed, unfortunately, the way it is being discussed is that some people are unwanted. These unwanted people are the reason to change the law. This is the next line of development. What will happen next? Will people be convinced that protection is really effective and how?
I will repeat the question once again. Can the state protect whistleblowers from the state?
JI: If we are talking about the legislative level, the answer is – we will see. If the question is whether an independent authority and the courts can provide protection effectively, my answer is that I firmly believe that they can. As we have heard, there are cases where this has proved to be functional, and that is the right thing. I can understand the situation when seven cases go to seven judges, their decisions will vary. What is important is that we are able to create case law that does not change every six months with various influences. In this case, the idea is to amend the law so that live cases are changed retrospectively, retroactively. This is totally unacceptable in a state governed by the rule of law. The second thing is that once the case law is established and decision-making practice is established, we really must have legal certainty that it will be followed in the future.
PK: The question was whether the protection works. From my perspective, the best evidence that it works is that there are efforts to amend the law so that it doesn’t work any more. Unfortunately. Because protection only makes sense if it actually protects the whistleblower from the most powerful. If it does not work in situations where it protects employees against the most powerful bodies of the state, then it is just an ornament that we will be showing off in the EU. I have implemented the directive, but it won’t work in reality. Ironically, I am not happy about my clients’ situation in this particular case. For future reference, though, I’m really glad that this is an occasion to test the pillars of protection. We will see whether we are a sufficiently advanced state to maintain protection in the current regime or whether we are not advanced enough to provide protection to citizens. I will say frankly that the proposed amendment makes this protection toothless.
Do you feel that we can rely on it?
ZD: I don’t just want to be a mechanical optimist. People need to be told realistically what the situation is, how legislative proposals can lower standards or even threaten them. At the same time, it should be noted that the fundamental general protection as the basic premise of the law – i.e. that it is banned by the law to retaliate against a whistleblower – continues to apply. It’s just a matter of how we get there. As other speakers here have said, it is a long haul. These standards, including some cultural change, are simply created and tested over a long period of time.
When I assumed my office, I realised that we were going to start building the first foundations and maybe even after five years they would not be completely rock-solid. It does make sense, and in many cases I have to say that we already know, based on the current legislation, that a whistleblower’s path is less thorny. The path is always a bit thorny. It would be a lie to claim: “yeah, just lodge a complaint, don’t worry, it will be easy-peasy, the Office will take you by the hand and nothing can happen to you”.
Just think of how stressful it is to be in any kind of conflict, for example when you are suing over a piece of land. All the more reason why I cannot stop stressing how important it is to support such people because they want to point something that harms the public interest, someone stealing from the public budget that belongs to us all. These people are really valuable and they sacrifice themselves. Surely it is also a question of their values, many will say that they would not be able to look themselves in the mirror. It is also their personal decision, but it is all the more our personal responsibility.
Even today, it is not true that protection is completely lost under the influence of current media cases, even under the influence of these legislative provisions. We will be very clear about where it may be under threat, where it is diminishing, but it will not disappear altogether. There will be also no fundamental changes in the operation of the Office as such, we will operate in the same way, advise whistleblowers the same things, use the same means. The Office is not fundamentally compromised by this amendment in terms of the comfort of its operation. However, we would like to point out what the concrete consequences may be for legal practice and raise a question if the institutes proposed by the government of Robert Fico, the government of Peter Pellegrini in 2015 and later in 2019, who declared determination to return to their original intentions…, if they are not somewhat dismantling these very institutes in certain specific aspects. It is a very complex issue.
There is no need to scare people that the protection will be abolished. However, its standards are being significantly lowered, particularly in the preventive component of the protection: the method when protected whistleblower status has to be obtained through prosecutors or administrative bodies. Just take an example: somebody reports a more serious corrupt activity, where there is a suspicion of a criminal offence or manipulation of public procurement, or somebody turns to the Public Procurement Authority with some serious administrative offence for which that institution would be fined – when you draw attention to such a serious misconduct, it is precisely because of the seriousness of the misconduct that the legislator has put a preventive mechanism in the law.
This mechanism was created so that you do not have to face year-long court proceedings at all. We know what it means. That is why many people just shrug it off, saying it is not worth it, if you lose your job and live five years in uncertainty about how it will turn out. This mechanism is unique in that it provides a protective shield to keep the person safe. I repeat, it does not mean that you can do whatever you want in your job and that you are not expendable. It gets into a different legal regime. The idea is that if an employer wants to arbitrarily transfer you to another position and there are clear signs that this is retaliation for what you did, the legal way for the employer to make such transfer is to first contact our Office. They have to explain the reasons and the Office, as an independent state institution, will hear both the employee and the employer, consider all facts and then grant or withhold its consent. This is the preventive protection that we are talking about and this is to be changed. The protection as such will not be abolished, only the way protection is granted. The path will be more complicated.
PN: Before we start talking about the amendment in terms of particular contents, I would like to draw attention to the formal way in which the amendment is presented. The drafters, i.e. the Government Office, specifically the Prime Minister, used a legal provision that governs the drafting of legislation, and they say that there are extraordinary circumstances, that fundamental rights are at stake, and for that reason, the inter-departmental consultation was omitted, the public was not able to participate nor comment on the changes that were being put forward. This is very non-standard. This does not normally occur, and particularly when it interferes with the specific rights of whistleblowers who have been granted protection.
There are NGOs, there are state administration bodies that use and have set up some mechanisms in connection with this piece of law, and yet they have no opportunity to comment on it – this seems rather expedient. We can find a number of such expedient measures or proposals in the draft law. The most striking is the justification for why the amendment is necessary. They say that there is an overuse of this institute, that there is even abuse, that there is a need even to compensate for the rights of employers against employees. Maybe I would agree that there is a need to equalise in some way the possibilities of using procedural tools, but on the whole they do not improve the position of whistleblowers in any way.
When the transposition of the directive into the Slovak legislation was evaluated, there were some things that could have been done better. This amendment does not bring any improvement. On the contrary, it brings a limitation of the material scope that can be reported. They are talking about factual connection – the reported issue has to be in some way related to that employer; it cannot be related to other facts. We have specific cases here in Slovakia where it was not related to the employer. We all remember the case of Rybanič, who was an employee of a bank and pointed out transactions that did not concern his employer at all. We can continue analysing the proposed amendments. Overall, however, they are fundamentally contradictory with the EU Directive, which states that countries can derogate if they guarantee a higher level of protection for whistleblowers, but they cannot reduce that scope.
Is the protection abused? How do we know? Has there ever been a case when it was shown that an employer was unfairly and unnecessarily troubled? How can we evaluate whether or not it is abused?
PN: At the very least, something should be stated in the explanatory memorandum. But there are no statistics, no data, no indication of how such abusing practices occur. I have the impression that we live in a post-factual society. We simply use some terms and use them expediently to suit our purposes and we are no longer concerned with where the truth lies and if the criteria required by the law are met.
PK: An abuse of protection in any particular case can only be assessed on the basis of the results of the criminal proceedings and the evaluation of the evidence in the criminal proceedings. For example, if it is proven that a criminal report was false, i.e. there was a false accusation, false testimony of a witness, it would not only lead to a finding that the protection was abused, but also to a criminal prosecution for perjury or false accusation.
Of course, this data is missing from the rationale for the amendment. The reason it is missing is completely logical. There has been no such case. The explanatory memorandum uses words like …the practice has shown, …everybody says, …experts assert, but nobody has ever seen any such evidence. There are really no facts provided to justify the procedure, but that is actually a general issue with all these accelerated legislative procedures. I see two fundamental problems there. One of them is retroactivity, that’s a big problem that even the Attorney General has noticed.
Just to make it clear: it is about re-inspecting the protection that has already been granted.
PK: Firstly, protection that has been granted is to be re-assessed; secondly, for a specific group of civil servants, namely members of the Police Force, it is not only to be re-assessed but even withdrawn retrospectively. The protection is directly withdrawn by one specific section of the law. The question is why.
And why? What is stated in the explanatory memorandum?
PK: Nothing. There is no reasonable explanation for this. We know why. Because the persons who are the most inconvenient for them are these 6-7 cops. But such a thing has no support whatsoever in the directive which this law implements. Politicians who previously passed this law, who voted for it, including for the preventive protection, including for the status of the Office, are now saying that the law needs to be amended, that it does not work. Even though it appears to be working. Their argument with those cops is that a cop is supposed to investigate crime, not report it. This is a very misleading argument, an argumentative foul. Not all police officers investigate crime, there are also police officers who take care of order on the streets, traffic, etc. They forget one thing in this argumentative foul. A police officer whose job is to investigate crime cannot investigate a criminal activity that is directed against them, of which they are the victims. The reason is such police officer is biased and has to be excluded. However, they have not only the right but also the duty to report and testify as a witness in respect of such a crime.
There is nothing at all to prevent, be it conceptually, or in the directive, or in the law, such police officers from receiving this protection like any other civil servant. If we exclude such a large category of civil servants from the personal scope, then we will end up in a situation where the protection is non-functional. In my experience, and in the experience of my “non-police officer clients”, the bulk of the situations that are the subject of these notices occur in the governmental sphere. As for whistleblowers that our law firm represents, I am not sure if there is any whistleblower that would be employed in the private sector.
Is it true that most of the notices are in the state administration?
ZD: It’s true. In terms of specific statistics on the protected whistleblower statuses granted, the proportion is 90%. I would add that I think there is room for fine-tuning the legislation, in particular in the process of granting the protected whistleblower status. There is room for fine-tuning in terms of more guidance, more criteria that administrative bodies or prosecutors’ offices should follow, so that the process is more predictable. I am not saying that today’s legislation allows arbitrariness, no. The criteria are clear.
However, not all the details of the process are regulated, such as exactly what the notification of the fact that protected whistleblower status has been granted should look like. All of this is open to discussion, and we even invite for such discussion and are willing to contribute to it. We have really gained a lot of experience in the last three years. In summer, we even entered into active communication with the Attorney General’s Office on these issues in order to harmonise certain types of practices. There is a large number of prosecutors who read the law, and a bird’s eye view shows that everyone reads it a little differently. On the basis of this concrete experience, we have concrete proposals and we are discussing them.
And is this discussion taking place?
ZD: Yes, it is, and politicians have stepped in it completely sideways with their amendment. In my experience and knowledge to date, the Office has not been involved in the amendment process, but neither have the prosecutors’ offices. I am convinced that it would have looked different if the prosecutors had also been consulted on this matter.
Could someone argue, for example, that you are working on your things and we deal with legal protection here, and you deal with some additional protection. I get the feeling that you are helping to protect the whistleblower until they get some official protection or how does that work?
ZD: We do a number of things on the whistleblower agenda. Not only do we help and consult with whistleblowers, but we also help and even oversee the overall infrastructure. The law entrusts the Office with overseeing compliance with the law, including, for example, the aforementioned internal whistleblowing systems, i.e. how private or public employers comply with the law in their own settings. We can impose penalties. Importantly, we are the administrative body adjudicating the case between one party and the other in proceedings in which we are granting consent to an employment-related action.
We have a number of positions where we have something to say. Legislation should be drafted in such a way that all the institutions that may come into contact with the law are involved in the consultation. Especially the institutions that work with it on a daily basis, because they know how to pick up on small details and connections. Often legislation is written so that you are surprised at the results in practice, and even the legislator is surprised at what they have passed.
Mr Ivančík, Ms Dlugošová says that there are legislative changes coming sideways that address issues that maybe do not even exist. Was there some communication in order to catch some bugs? Who was supposed to speak up in the last month, saying “I’m in charge of this, we’re already dealing with it”? If we wanted to point fingers, who should step in? On the one hand, there is a new government that is trying to… I want to put it politely… make the Whistleblower Protection Act work as they see fit. Who would be the one to say “if you want to address this, we’re already working on it”?
JI: I think that in a democratic society, everyone should have the right to be involved in the law-making process. First of all, if the standard legislative procedure was followed, there would be an inter-departmental consultation, where the various ministries or bodies concerned would comment on it. Certainly the Office would have commented, based on its practice, statistics and so on. Of course, NGOs that are dedicated to this, such as Transparency. As Mr Nechala said, Transparency has been present since whistleblowing started to be considered as something relevant. There is a huge range of people who should be involved.
Isn’t there someone in the Ministry of Justice who has that in their job description?
JI: I think all these people should, in theory, have that in their job description. It is important to say what the purpose of a legislative amendment is. The legislator starts this process with the idea that they want to have the best law possible. Obviously, the legislator should consult as many experts as possible and then make the law on the basis of that discussion.
That didn’t happen and now we are here.
PN: If you are asking who is the competent body, then it is probably the Government Office, as anti-corruption fight belongs to its task according to the Law on Determination of Competencies.
ZD: But the first law was drafted by the Ministry of the Interior.
Well, I am personally clinging to what I believe is some hope for Slovakia at the moment, which is: when the election is won and power is taken by someone with whom I don’t share my view of the world, I tell myself that we still have officials who keep their line. Ministers change above them, executors change below them, but they hold their line. Donald Trump used to call it the “deep state”. Isn’t there such an official in the Ministry or can they do anything?
PN: The rules in Slovakia are not set up so transparently that we can see how legislation is made. We have some footprint of the law, but we don’t know who wrote, for example, this law. We know that it was tabled by the Prime Minister, approved by the Government, but we have no information on how it was made, and that is true of other laws as well.
Who should point this out when a law is presented in this way?
ZD: It is a matter of normal public debate and social perception. It concerns all of us who are sitting here or who are watching. We already have a sense of when the accelerated legislative procedure is appropriate and when it is not, and this is also regulated by law. These are situations where there may be major economic damage or imminent serious threats and violations of human rights. At a glance, without some heavy scientific analysis, it is obvious that there is no such situation right now. This raises questions, it needs to be discussed. The current governing coalition is confronted with this issue and has to deal with it. When such an absurd situation arises – from our point of view – when accelerated legislative procedure is run on such issues, we need to be very clear about that.
JI: I would just have two comments on that. Misusing the accelerated legislative procedure is, unfortunately, nothing new. Looking at the statistics, since the pandemic, the number of accelerated legislative proceedings has been exponentially rising. The problem is that we’ve gotten used to thinking that it’s not a problem anymore. It has been pointed out over the years that something needs to be done about this. The new government has just continued this negative standard. Laws are being passed in quickly, in different areas. Unrelated things are coupled into one file. If we ask if there is anyone who is able to keep track of all this, I’m afraid the answer is probably “No”.
PK: I would add that the legislation regulating the conditions for the accelerated legislative procedure is quite toothless. Normally, for a law to be effective, there must be a sanction, a penalty for breaking it. In this case, the sanction is a finding of contradiction or inconsistency with the Constitution. However, we know from the case law of the Constitutional Court that the Constitutional Court has never repealed a law purely due to the legislative procedure taken. So far, the Constitutional Court has been following the doctrine that it only examines the legislation on its merits and if the Parliament approves a law by breaching the ordinary legislative procedure and taking a short-cut, it is basically its business and the Constitutional Court will not interfere in it.
The only case when the Constitutional Court repealed a law due to reasons remotely related to the legislative procedure was the so-called pro-family package, but it was only because the failure to follow the rules of the legislative procedure had led to the violation of the Section of the Constitution on budgetary responsibility. If we wanted to challenge these laws in the Constitutional Court, we would have to prove that substantive sections of the Constitution were violated by the accelerated procedure. The pleasing thing is that such cases can be found. It wouldn’t be fighting a losing battle. Unless this practice of the Constitutional Court is changed, there is in principle no limit, no barrier that would prevent the government and the Parliament from passing even 100% of laws in an accelerated legislative procedure on the basis of false and misleading justifications.
Now we have sunk into the mire of despair. Let us approach from the bottom to the surface. I’ll summarize. The law is retroactive and should not be. There is talk of abusing the protection which is not backed up by any statistics. Police officers are to be exempted from this protection. Coincidentally, 90% of protected whistleblowers are people working in the state administration. Now what to do with it? What can be done? Mr Nechala, you were there when this law was being drafted in 2014. Win an election and you can do anything. Is it true? Can’t anything be done?
PN: The paradox is that it was this government that helped to bring about the first law in 2014 and to amend the law in 2019 in order to create a separate independent office. Now they have changed their perspective. They have legitimate power; they can make such proposals. But they are doing it in a way that violates the rights of the public to participate in the legislative process. They are doing it in a way that tears down what has already been built. We are not just talking about cases of protected whistleblowing where the relevant status is granted. We are also talking about cases where this tool is routinely used to detect unfair practices without criminal reporting. It doesn’t have to be that intense. A culture of mindfulness is being built that allows to expose the various misdemeanours that occur. Right now, this paradigm is changing. Right now, a theory is being promoted through the governmental power that we don’t need this tool, that whistleblowers are not beneficial to the society. In this case, we are tearing down not only the protection for those few people concerned, but also the whole system, which has been established both in the private and the public sector.
I understand, it’s going downhill. We know this. Now what to do with it?
PN: Now there will be a legislative process that can turn out both positive and negative. I don’t know how the situation develops. MPs can propose modifications, the mover can withdraw the motion…
My only hope is that they have 76 MPs, and I think it has to be voted on by a majority.
PK: In a democracy, the majority can enforce it.
Yeah. The most we can do is appeal to the morale of six people.
PK: If we are talking about how it works within Slovakia, probably yes. You can go to protests, you can appeal to your MPs, etc. Fortunately, this law is implementing an EU directive, so there is still a safety brake in the form of a subsequent complaint to the Constitutional Court or a complaint to the European Commission.
Has this happened yet?
PK: No, because the law has not yet been passed.
So it must be passed first.
PK: Yes, but I suppose there is already some communication, if I understand correctly.
Today I saw a video of Monika Beňová in the European Parliament. Ms Beňová has always stayed away. She has always acted like “I am in SMER, but I’m not here, it doesn’t concern me”. Now she was using very strong, almost unkind words, such as “you are traitors” and so on. It seems that the struggle will be transferred there too soon or is already being transferred. Right now the debate concerned the Special Prosecutor’s Office.
PK: Yes, but in this amendment to the Whistleblower Protection Act, all the points that really matter to the movers are in conflict with the EU directive. The conflict is that they are impermissibly narrowing the scope of the directive to the detriment of the whistleblowers.
What could be the result? In Hungary, I think it was the withholding of EUR 40 million from the EU funds. In the last few days, about EUR 10 million have been released again because Hungary has re-fulfilled some condition. Is this the scenario that awaits us?
PN: Breaches of the rule of law are grounds for stopping the use of EU funds. It may end that way too. We are only at the beginning of the process. Of course, this communication takes place at different levels, both political and professional. The whole of Europe now knows what is happening in Slovakia. I also hear this from private clients who work in concerns. They ask how the situation in Slovakia is developing. It will be very important how the governing coalition reflects on this. Whether they will all push for such drastic enforcement of changes that are so markedly expedient. It is clear that they have a need to deal with some cases from the past and they are not interested in building institutions and institutes.
PK: There are basically two tools at the European Commission’s disposal. The most politically powerful penalty is the sanction for violating the rule of law, which also leads to the cessation of funding from EU funds. Then there are other instruments such as an action by the European Commission, the imposition of fines. Such processes take time.
Ms Dlugošová, do you think that the citizens are empowered enough to realise and stand up, saying “this is too much”? Do you think there is a public order to stop these laws?
ZD: As a citizen, I perceive that there is indeed some type of order by the public. As a civil servant in charge of this agenda, I would like to remind that coincidentally, we are in the phase of proper examination of the directive’s transposition. We have passed some legislation in 2015 and in 2019. Then in May this year, we amended the existing law, and many people did not even notice, because these changes were not controversial. The aim of the amendment was to be really in line with the directive, including in small details where our regulation had diverged a little.
Afterwards, the European institutions carefully read the legislation to assess it. They ask questions in terms of clarity, transparency. It’s not just whether the law is entirely technically correct, but whether it is comprehensible for an ordinary rationally minded person, so that it helps to promote whistleblowing in practice without being a bogey and encourages people to speak up.
All these criteria are used to assess our legislation. From my position, I can confirm that there is a very keen interest in this legislation and in the latest proposed changes to it. There are a number of issues which the Commission will obviously discuss very intensively. I have to say that we are not at the end of this process, and I believe that there are also people in the governing coalition who really want the system to work well.
We will keep explaining it. Because drafting of this law is missing any professional consultation. I believe that the legislation is also written in such a way that it gets unintended consequences. Perhaps even the movers themselves don’t realize that the changes are so damaging to absolutely all whistleblowers. At a first glance, it seems to be a solution for a particular group of people, but it also impacts the general population. I think that if we are talking about active citizenship, then yes, active citizenship also includes taking a keen interest in things. Indeed, this very debate is a proof that we speak up, and this is also the essence of whistleblowing.
Mr Ivančík, you are a representative of Transparency International, you have branches in different countries, do you have a branch in Romania?
JI: I have no idea, because each branch is a separate entity, we are not coordinated.
Romania went through quite a strong anti-corruption period a few years ago. If I am not mistaken, the Romanian prosecutor is now the European prosecutor in the EU. Is there anything we can learn from other countries? Are there some best practices?
JI: Definitely. Slovakia is at least a pioneer in whistleblowing at the European level, but whistleblowing certainly has a richer tradition in common law systems, i.e. in the USA, UK, etc. In continental Europe, the protection is rather provided by Labour Inspectorates. But whistleblowing as such, as I perceive it, rather derives from the common law system. So there is certainly a lot to learn from. What is important is what we have learned and what we have managed to implement. I perceive that our legislation has been at a very good level. So we should be careful and avoid giving people a signal that the legislation can be changed just to punish a particular individual.
That is exactly what I am asking. We’ve already fought some battles. There was a legislative proposal in 2014, it was passed in 2015. In 2021, a separate Office was established. It took nine years to get here and now we are dismantling it.
JI: I would pick up on the fact that as citizens we have the right to disagree and to point that out. Fortunately, we live in a democracy. The fact is that if 51% of citizens think that the Special Prosecutor’s Office or any other body is useless and elect politicians who say that if elected they will abolish this body; and there is no higher instance; this body is not protected by the Constitution; it is not covered by an international treaty; if, in short, the citizens have decided and elected someone to carry out their will, then that body will be abolished. In this respect, democracy cannot be expected to stop things from happening if there are fewer of us who disagree with something or think, for example, that protected whistleblowers should be supported – the majority of society thinks otherwise, so, unfortunately, those options are limited.
PK: And here we come to the fact that democracy is very difficult to build, to create, but very easy to tear down. Many democracies around the world have been ruined by politicians who gained power democratically, and it was the last democratic decision of their voters, but it happened.
Could it be that they will abolish the Whistleblower Protection Office?
ZD: So far I have not heard any substantive arguments on this or any other strong arguments to abolish the Office. I think the notion of the universal protection, including the existence of the Office, has not been questioned by anyone and we are ready to continue to fulfil our mission.
Do you feel that you have narrower options now? Did you feel more support before?
ZD: I think politicians have never been much interested in this. None of them or any of the political parties. It’s more about the angle of attention for this topic. This is my personal observation, now I am speaking from my personal experience. This topic is rather ignored on the political level. In the first months and years of the Office’s operation, we tried to draw attention of political parties and politicians, especially government representatives.
This has been missed out – well, the topic is broad. Whistleblowing and a culture of speaking up, of a fair working environment are being built through institutional leaders, through business directors, through ministers, through directors of state-owned enterprises and so on. That’s where it goes awry, and let’s be frank: no matter what internal guidelines a business has for employee reporting, it will not work if the director doesn’t mean it; if the director never looks into a complaint, doesn’t support the whistleblower in that difficult moment, or if the first question with a complaint is who lodged it – nobody will believe it.
You just can’t fool that. That’s why the conduct of senior management is very important, and we’ve tried to emphasise and explain it for a long time. Rather, it was more about the fact that this topic disturbs politicians or seems superfluous to them. They always have some more pressing matters, and we have tried to sort of push their attention to it to get them involved – the ministers from the previous government, who, after all, established the Office. It took a very long time to elect the first President of the Office and no one showed much interest in it. Neither did the previous government. Now we very quickly got into a different atmosphere and didn’t even have time to get acquainted. We have completely different topics on the table. It’s different with every government, but it’s not in the DNA of politicians to take an active interest in whistleblowing.
Mr Kubina, you mentioned that four judges ruled in your favour, three did not. How is this possible? Wasn’t that a very clear thing?
PK: It is important to set the record straight that the four judges who ruled in our favour said that they had jurisdiction to rule on it. And at the same time they issued an interim measure because they saw a violation of the law, i.e. a consent should have been requested but there had been no such request. The three judges who ruled against us took the position on the very first issue that they did not have jurisdiction to rule and did not even address the merits of the case. So they did not rule against us on the merits, but they relinquished their authority and said let someone else have a say, we don’t want to or we can’t.
Speaking as an attorney who is necessarily biased in favour of his clients, the point is clear to me. But I have to respect that someone may have a different view on this. If it were zero to seven, that would mean something, I would be prepared to concede that I am wrong if such conclusion is reached by a court of law against which there would be no further appeal. For the time being, it does not look like that and we have to respect that. It is an inevitable phenomenon that occurs as long as we have independent judicial decision-making.
How is it possible that they cannot rule on this? Who then has a say?
PK: In this particular case, the dilemma is whether it should be resolved by a civil court in a civil proceeding or by an administrative court. We contend it should be a civil court. Overall, the administrative court deals with a rather narrow category of proceedings. It resolves disputes on the legality of decisions and measures of public administration bodies. For example, when the tax authority assesses you for tax or some authority fines you. If you disagree, you can appeal. It is about the relationship between the state and the citizen. Police officers are in this state-citizen relationship, and it is a service relationship, which has elements of an employment relationship. It’s somewhere between an employment relationship and a public relationship.
Who has dealt with these situations so far? Someone must have dealt with it already.
PK: Here’s the difference. In this case, the legal protection is based on non-discrimination on the ground of whistleblowing, i.e. on the Anti-discrimination Act, and in our view this is an anti-discrimination case. This type of litigation is clearly entrusted to the civil courts. It results from the imperfection of the legislation that allows such a controversy in the first place. We are now developing case law. When someone faces such a situation in the future, they will have a clear answer as to whether or not this court has jurisdiction. At the moment, we are the first to seek protection in this way in such a situation. It’s a price to pay and even the 4:3 ratio is the price for being first.
You’re blazing a trail. You’re showing all the cops who know something what will happen if they speak up.
AUDIENCE QUESTIONS
1. As for the Special Prosecutor’s Office, there is an argument that the Special Prosecutor’s Office will be a victim of the decision made by the former government who put D. Lipšic in charge, and he was like cut from the same cloth. And now the Special Prosecutor’s Office will pay the price and will be abolished. On this subject, all the attention was on the police officers, whether they should have been given protection, whether it was not just that they had asked for it so that they could not be sacked, as the signals before the elections were clear. The consequence of this situation, as I feel from this discussion, may be that the amendment may pass. The Office will not be abolished, we will somehow function, something will be slightly reduced, but the atmosphere will be very destructive. This atmosphere can be very influential in making people consider whether to go for it or not. They will be less willing when they see this whole negative situation. The question is whether the police officers in question are just some kind of pretext or whether there is also something meaningful in the argument that the granting of the protection was purposeful? Wasn’t it really just about some backlash to avoid a backlash from the current governing coalition?
JG: I’ll summarize the question. Can there be any doubt that granting of whistleblower protection to the “Čurilla group” was purposeful because a change of government was already being expected, and isn’t that just why the remedies are not now being applied?
PK: My answer is a counter-question. In what sense should it be purposeful? Because the purpose of that protection is to prevent arbitrarily firing a whistleblower who has reported some criminal activity. You can’t blame someone who plays by the applicable legal rules and who asks in good faith for the protection to which they are validly entitled under the law. Everyone can doubt and everything can be doubted. I am not taking that right away from anyone, but in order to make a value judgement that this was purposeful, I need to name specific reasons. This is similar to the proposed legislation, for example, it is said that the protection is being abused. Expediency must be proved by facts, it must be shown why they should not have that right. The answer to this question is: it is expedient because police officers are supposed to investigate crime, not report it. And I answered that question before.
It’s an argumentative foul because police officers even work in an environment where the conditions are in place for them to learn about a criminal activity. If they can investigate it, they should investigate it, but if they cannot investigate it, for example because it concerns them or is directed against them for their work, then they have not only the right but also the duty to report it. And if they have that duty, then they are all the more entitled to protection, just like any other citizen.
PN: I will add one more argument. When the legislation was written, there was a lot of consideration about where to make those exceptions. We deliberately exclude the Police because these are high-risk positions where collusion can often occur. In the summer of 2023, there was a big campaign in Germany called “Votes for the Police” to get the Police Force into the German law, and it is the same in other countries.
There is no rational argument for the move brought about by this amendment to completely exclude the Police Force from the scope of this law. The breadth of complications for whistleblowers is much wider. I mentioned factual nexus as a condition for examining whether a complaint is qualified to enjoy any protection. It is also narrowed, in particular that the information is supposed to be of some quality, it is supposed to contribute to the conviction or the identification of the perpetrator, to the clarification of the crime. That’s all beyond the pale.
The approach to whistleblowing should be that it is in the interest of anyone who wants to stop malpractice to gather as much information as possible. And to evaluate this information, but to keep the whistleblower out of the process as far as it is possible, so that they are not harmed in any way. The proposed amendment leads to an entirely different direction. We add one, two, three hurdles, and if that weren’t enough, there’s a provision in that amendment that says that flagrant abuse of the law does not enjoy the protection – as if it did without that provision, yet the movers put it in there.
JI: I am not sure if it was said tonight, maybe it sort of fizzled out. It’s not up to the police officer to afford himself/herself protection. They don’t say “I choose to be a protected whistleblower and no one can fire me”. This process is guaranteed by a prosecutor. The first fact is that when I decide one day that I will be a protected whistleblower then I will become a protected whistleblower.
And the second fact is that if we really wanted to get to the point that we live in a democratic society in which there is a system of checks and balances, then if there is a flaw there are also plenty of remedies to correct it. For example, if a first instance court makes a wrong decision, I have the possibility of redress at a higher instance, etc. I feel that the discussion is getting slightly out of hand that if there is a flaw, let us make a legislative change, let us do it as quickly as possible to rectify the flaw, and in this way we are poking holes in our legislation. Even if some case law develops, by constantly changing the legislation the case law will not be applicable and I have no legal certainty as to what will happen next year.
PK: I would like to add to the question raised: the protection does not mean you are fixed in your job like in concrete. It only means that an independent institution comes into play, to which the employer has to explain their action and have it assessed to see if it is a case of retaliation. This independent institution is in this case the Office, and its task is to decide whether or not this is revenge. If it is not about revenge and the employer proves it, which they should have no problem proving, if they are really acting with honesty and integrity, they will get a consent. The consent then allows the employer to take the step that an abuser of the law would like to avoid. In this case, the employer did not even bother to ask for consent. What does that suggest?
From my point of view, it suggests that they were afraid they wouldn’t be able to prove it, so they preferred not to try. I can speculate, I don’t know. This is my personal conclusion, because if I were satisfied that I have evidence and I am acting legitimately, that I really have reasons for doing this, that I am not doing this out of revenge, then what is stopping me from turning to the Office? I’ll get that consent within twenty to thirty days. This is also a signal that someone breaks the law, and then wants to change it so that they are not in breach any more. It says more about this person than it does about those whistleblowers. Indeed, the whistleblower protection does not fix anyone in any job. This is just another misinterpretation that serves to justify such action impacting on everyone, including on whistleblowers, a lot of people we don’t know.
ZD: When I think of it, the philosophy of the current approach in the proposed amendment is exactly the opposite of what whistleblower protection legislation should aim to achieve. We are primarily challenging the whistleblower. Instead of dealing with the intervention, when we talk about balancing the rights of employers, the moment it actually happens, i.e. being subjected to the process of having an independent authority look into it, and if the authority does interfere with the rights of the employer – as this can indeed happen – then they should use all the rights, all the remedies, to defend the rights of the employer – that’s the way it’s set up.
Instead, we a priori question the whistleblower, saying that abuse is always the most probable scenario and that whistleblowing needs to be closely examined because it’s always suspicious.
Another signal that is being sent by such legislation is that we cannot trust public institutions. We know that we have a long-standing problem with trust, and when you talk about whistleblowing and building trust in our institution as well, we are not a separate story. We are communicating vessels with other law enforcement agencies, and even if the Whistleblower Protection Office has a relatively good reputation in the eyes of ordinary citizens, it does not make up for it at all when we see trust in the police, prosecutors and others being dismantled.
The story of enforcement continues through other subsequent stages of the proceedings up to the final decision of the court. This is all a very important complex of things. With the trust that we have a problem with, this way we deepen it. The message is it is not very safe to go to an independent whistleblower protection authority. We challenge the whistleblower at that early stage, which has other implications. We’re running out of time in today’s discussion, I’m not going to elaborate more on this. It’s like we’re turning this on its head.
When there was talk of abolishing the Special Prosecutor’s Office, D. Lipšic offered his resignation so that everything would not be ended because of him, so that the entire office would not be abolished because of him. Shouldn’t we also consider that because of the “Čurilla group”, the whole whistleblowing of corruption in Slovakia is under threat? Shouldn’t we separate these things? Shouldn’t we say: Okay, you want it, let’s put it on the back burner a little bit, let’s focus on making the whole thing work well. This is an exposed case, so shouldn’t we turn a little blind eye?
PK: That’s a bit of a different position. It makes a difference when someone is in charge of an authority and when someone is at the bottom of the food chain. Now we’re deciding whether such people get eaten or survive. Are we going to let them be eaten so we can have a good time? To make the protection last? How will it help us? As I implied in one of my replies at the beginning of the discussion, the protection is only meaningful if it protects a person when someone powerful wants to eat them, figuratively speaking. What signal would that send? Are we going to let six people get eaten to keep the system of the protection running on?
And the next time someone is in the same situation and the same scenario replays, will we let them get eaten too so that something survives? Then who will survive in the end? On the parallel with the Special Prosecutor’s Office, I have picked up that there is an offer on the table that if the government provides guarantees, the operation of the Special Prosecutor’s Office will not be interfered. Again the question is if such a thing is even possible. In this case, the law is intended to protect a vague number of persons for an indefinite period of time. If we let some people get eaten up now, figuratively speaking, in the name of preserving the protection, the situation will repeat itself in a year’s time and then we will have to deal with it again. That is why I think that would not be a good solution.
JG: When there was talk of abolishing the Special Prosecutor’s Office, D. Lipšic offered his resignation so that everything would not be ended because of him, so that the entire office would not be abolished because of him. Shouldn’t we also consider that because of the “Čurilla group”, the whole whistleblowing of corruption in Slovakia is under threat? Shouldn’t we separate these things? Shouldn’t we say: Okay, you want it, let’s put it on the back burner a little bit, let’s focus on making the whole thing work well. This is an exposed case, so shouldn’t we turn a little blind eye?
PK: That’s a bit of a different position. It makes a difference when someone is in charge of an authority and when someone is at the bottom of the food chain. Now we’re deciding whether such people get eaten or survive. Are we going to let them be eaten so we can have a good time? To make the protection last? How will it help us? As I implied in one of my replies at the beginning of the discussion, the protection is only meaningful if it protects a person when someone powerful wants to eat them, figuratively speaking. What signal would that send? Are we going to let six people get eaten to keep the system of the protection running on?
And the next time someone is in the same situation and the same scenario replays, will we let them get eaten too so that something survives? Then who will survive in the end? On the parallel with the Special Prosecutor’s Office, I have picked up that there is an offer on the table that if the government provides guarantees, the operation of the Special Prosecutor’s Office will not be interfered. Again the question is if such a thing is even possible. In this case, the law is intended to protect a vague number of persons for an indefinite period of time. If we let some people get eaten up now, figuratively speaking, in the name of preserving the protection, the situation will repeat itself in a year’s time and then we will have to deal with it again. That is why I think that would not be a good solution.
PN: Perhaps the question arises that the ruling coalition should say how they approach the issue of fighting corruption in general. How they perceive the whole issue. Maybe it’s not such an important topic for them, that’s why they come up with these solutions. The damage has already been done, by communicating this publicly and putting it in the context of abuse, overuse and so on. The institute as such is called into question. Now it is just a question of seeing how the legislative process ends and how big the damage will be, and then working on the issue further.
JG: I like optimistic conclusions. We are here. There is this amendment to the law. There is a lot of interest. It seems that, amid the many legislative changes that are coming, there is going to be a whirlwind. If I wanted you to persuade me to stay, to give me hope, then what can you tell me how else it might turn out? What could still happen?
JI: It is very important to me that whistleblowing is finally being talked about at all. I see this whole situation, as Mr Kubina said, in those terms. It should be used as an opportunity. Unfortunately, certain people find themselves in an unenviable situation, but the whole institute of whistleblowing is finally coming to the fore. Transparency has said all along that there has to be a big case that really convinces people that whistleblowing makes sense. Now there’s a big case with a lot of media attention, maybe it’s not an ideal case, but no case is ideal.
I absolutely agree that we should not establish institutions for institutions and institutes for institutes. It is not essential that we have whistleblowing. It is not essential that we have the Office. The important thing is that the protection works when it is supposed to work. Now is the time to fight. I see the positive side in the fact that we still have at least an EU framework that gives us certain boundaries. We can’t make up our own national rules of play. This is certainly a signal for the future that the legislative process has its limits and cannot end up completely out of place.
JG: What is positive? What would be a positive result?
ZD: If only one particular provision of this amendment would pass. At the same time, I think that this is not a lost cause and that the dialogue needs to be maintained. From the Office’s point of view, if this is an optimistic signal for anyone. We will try to do that, even though the signal from the government coalition at the moment, if we just read the government’s amendment to the law, is not very positive.
On the other hand, the process is still open. We have bodies of law protection such as the Constitutional Court, we have the European Commission entering into this dialogue, we have Slovak institutions, we have MPs, we have the President of the Parliament, we have the government, with whom we still need to have a dialogue.
I do not think we should quit because of one proposal or any attempts that maybe appear to be a threat to some fundamental principles and values. It can cause a lot of discomfort, but we must keep trying. If we all fled, there would be no one left to live in this country, and we certainly don’t want that, so we have to keep trying.
JG: What could be a positive outcome of this situation? Or if you don’t see a positive outcome, what could be positive about the whole situation?
PK: There are people, whistleblowers in general, who go and don’t give up. For those cops, maybe someone thinks it’s great and they are doing good. But it would be easier for them to give up, pack it in and go into civilian life. But what kind of signal would that leave to the others who stay in the Police Force? From my point of view, there is always the option of running away from the fight, from the country, basically surrendering in the name of perhaps a good, noble cause, or the option of not letting go, not giving up and fighting.
JG: Do you have information on how people in the Police Force are taking it? I can imagine two different ways of looking at it. One is calling them snitches and the other one is taking them for heroes.
PK: I don’t have detailed information. The Police Force is a large organization. I am sure that all opinion groups are represented there.
JG: What can be a positive outcome of what is happening?
PN: Again, I’d focus on why whistleblowing exists. Whistleblowing exists because there have always been and there will always be unfair practices. The positive thing is that it can take different forms. It can be internal within the employer or external to some control institutions or towards the media. If the first two pillars fail, whistleblowers will be all the more likely to report malpractice to the media. If this is maintained, it will be some sort of a barrier against a repetition of the past that we have experienced. The upside will be that as a society we have come some way and we are not willing to accept the behaviour and actions of temporary power holders with state resources.
JG: I want to thank you. Our time has come. Thanks to those of you who have been following us online. I thank the audience and my guests today Peter Kubina – attorney representing whistleblowers in court proceedings, Ján Ivančík – attorney at Transparency, Pavel Nechala – anti-corruption expert, and Zuzana Dlugošová – President of the Whistleblower Protection Office. Thank you all for fighting, for not leaving, and some of you are not leaving too conspicuously. I would remind you that there was an empty chair here for anyone from the Ministry of the Interior, the Ministry of Justice, the Ministry of the Environment, the Government Office, the press departments of SMER, HLAS and SNS, or the Constitutional Law Committee, but no one from those institutions took the time to come here. I also thank to the Old Town Library on Blumentálska street No. 10. I wish you a pleasant evening.
We would like to thank Eva Hochwartová, our volunteer, for transcribing the audio recording.