Mirsada Hallunaj
March, 2018
The Law on Whistleblowing and the Protection of Whistleblowers in Albania, which was adopted in June 2016 and entered into force on 1 October 2016 for the public sector and on 1 July 2017 for private entities, is considered an important tool to fight corruption and other forms of illegal behavior. Some of the most important aspects of the Law, discussed also previously, include channels for reporting wrongdoings, procedures for the investigation of disclosures and procedures for the protection of whistleblowers from retaliation.Since the beginning of the implementation of the law, public institutions with more than 80 employees and private entities with more than 100 employees have been identified and officially notified on the obligation provided by the Law to establish the internal reporting units responsible for the investigation of whistleblowing cases. So far, 164 public institutions have established these units, 5 of which have reported whistleblowing cases and investigated accordingly, while 444 private entities have established the internal reporting units.[1] So far, there is no official information about how the process has progressed for both sectors. On the public institutions, it is possible to find only spontaneous information in cases when these institutions have published the regulations on whistleblowing, but on the other side a comprehensive assessment of the process for the entire public sector or a record of the reported cases is missing. Meanwhile, regarding the private sector it seems that the process of establishing whistleblowing units has encountered some difficulties.During this first phase of the implementation of the Law the establishment of institutional mechanisms is an important process because these units will serve as the first contact for whistleblowers willing to report on suspected corruption cases. The effective fulfillment of the tasks that these units will perform, including components such as recording, reviewing and investigation of whistleblowing cases, will serve also as an indicator of the first impact of the Law.
Establishment of internal reporting units in the private entities
The initial phase of the implementation of the Law seems to have faced some challenges, especially in the private sector. Some difficulties have stemmed from technical aspects of the process. In early July 2017 the institution of High Inspectorate of Declaration and Audit of Assets and Conflict of Interest (HIDAACI) sent an official letter to all businesses with more than 100 employees demanding the establishment of the respective internal reporting units. The private businesses were also informed on the administrative and criminal liability in case of violation of the obligations described in the Law. During this period of time, the HIDAACI approved also forms and registers on whistleblowing and protection of whistleblowers.
However, after the deadline for the establishment of responsible internal reporting units expired, not all the companies have been willing to comply. Some of the businesses have considered this process as a ‘state intervention in private affairs’ and others have refused to establish the internal reporting units. Meanwhile, some other private companies have faced difficulties with regard to the composition of these internal reporting units. Since, the internal reporting unit should be composed of one or more employees, there have been cases when the designed employees have refused to perform this function. Indeed, the media reported the case of a large business with about 700 employees that sent an official response to the institution of HIDAACI asking to find an employee who not only would exercise the function of whistleblower but who also would be employed, for as long as this function was not accepted to be fulfilled by the employees of the company itself.
One of the largest companies in the food industry was found in a similar situation as it was sanctioned for not establishing this unit while it could not get any of its employees to accept to accept the position of the representative of the responsible reporting.
The HIDAACI has pointed out in the Monitoring report on budget performance for the year 2017 that it has sanctioned a number of private businesses for failing to comply with this obligation of the law on whistleblowing. However, the report misses specific data on the number of businesses sanctioned.
Thus, even though the public and private sector in Albania have already been officially notified on the obligation to establish the responsible internal reporting units, this process has not been as smooth as predicted while no cases of whistleblowing have been officially announced yet.
Awareness and cultural prejudice over the process
The difficulties to establish the reporting units stemming from the prejudices of the employees underscores the importance of the awareness raising campaigns to overcoming such prejudices but also information campaigns to better knowing and understanding the Law itself.
So far the awareness raising has been limited, in June 2017 a second awareness video clip was launched by a local NGO, following a previous one launched in October 2016. However these video clips have not been uploaded to HIDAACI’s official website and neither is there any dedicated section to whistleblowing in this website.
On the other hand these awareness raising efforts remain meagre vis a vis the misinforming position of the Albanian media which continues to report on whistleblowing by using incorrect terms adding thus the existing misunderstandings and prejudices. The media articles has reported the establishment of the internal reporting units by using wrong definitions such as “espionage structure”, the law of “spies” or the 007 of the business sector. All of these definitions influence ongoing misinformation by increasing prejudice on the content and purpose of the Law and by making in this way the awareness process a real challenge in the future.
Lack of a specific information on Whistleblowing
In the Annual Report of HIDAACI for the year 2016, whistleblowing is considered as one of the main priorities for the year 2017, but in the report there was no chapter dedicated to whistleblowing, while still on the HIDAACI official website there is no specific information regarding this priority area including: trainings on whistleblowing, persons or contact numbers with responsible persons, etc.
Despite the fact that important international institutions such as the EU, IMF and OSCE have considered the adoption of the Law on Whistleblowing as an important step for Albania’s fight against corruption, there are still no specific assessments regarding the implementation of the Law. The OECD Monitoring Report, published in November 2017, considers the process of establishing reporting units on whistleblowing as a well-advanced process, but this consideration refers only to public institutions.
It can easily be concluded that in order to have the expected results, the implementation process will require a stronger and a more concrete engagement of all stakeholders, including awareness and accurate information on whistleblowing and whistleblowers, which can also be considered as the first difficulties for the implementation of the Law. It remains to be seen how much the HIDAACI’s annual report expected to be released in the coming months will provide detailed and comprehensive information on the progress and implementation so far.
Information received by HIDAACI, February 2018