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The Act on the protection of whistleblowers (OG 46/22, hereinafter: the Act) entered into force in April 2022, and it was adopted due to the need to harmonize national legislation with the acquis communautaire, i.e. harmonization and harmonization with Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law from October 23rd 2019.

The Act establishes measures and procedures for the protection of individuals who report irregularities (colloquially: whistleblowers), to ensure the integrity of business and management, and to ensure the protection of the public interest and prevent corruption.  According to the legal definition, a detector of irregularities (a whistleblower) is a natural person who reports or publicly exposes irregularities that he or she has learned about in his work environment, which may be a person in employment, a person who has the position of self-employed person, holder of business shares, a person who is a member of the administrative, management or supervisory body of a company, including non-executive members,  and volunteers and paid or unpaid trainees, persons working under supervision and in accordance with the instructions of contractors, subcontractors and suppliers, and persons participating in any way in the activities of a legal or natural person. The aforementioned protection enjoyed by the whistleblower under the Act includes: protection of the identity of the whistleblower, protection of confidentiality, judicial protection, compensation for damages, primary and possibly secondary free legal aid and emotional support.  In order for the whistleblower to exercise the right to the aforementioned protection, it is necessary to meet two conditions: (1) the whistleblower must submit the report of irregularities through the system of internal or external reporting of irregularities or publicly expose the irregularity and (2) at the time of reporting or public disclosure the whistleblower of the irregularity  has reasonable grounds to believe that information about irregularities reported or publicly disclosed is true and falls within the scope of the Act.  It is important to emphasize that if the whistleblower reports or publicly discloses information that he knows is untrue, he can be liable for a misdemeanor (fine).

The Act, in addition to the whistleblower’s protection, provides equal protection to other persons – related and confidential persons. Related persons are accomplices of whistleblowers, relatives, colleagues, and all other persons associated with the whistleblower who could suffer retaliation in the work environment and legal entities owned by the whistleblower, for which the reporters of irregularities work or with which the reporters are otherwise connected in the work environment.  At the same time, related person is not a whistleblower, but relates to the whistleblower in a certain way – however, he is entitled to the same protection as the whistleblower if, due to this connection with the whistleblower, retaliation was committed or attempted or retaliated against him or threatened with revenge.  On the other hand, a confidential person is a natural person employed by the employer or a third natural person appointed by the employer to receive reports of irregularities, communicate with the applicant, and conduct a protection procedure regarding the report of irregularities. A confidential person and his deputy shall be entitled to the same protection as the whistleblower if, due to the receipt of the report and the act of reporting irregularities against them, retaliation was committed or attempted, or they were threatened with revenge.  Therefore, for a related and confidential person to enjoy the same protection as the whistleblower, it is sufficient for them to prove the existence of the above conditions in a degree of probability.

The Act obliges employers and public institutions to establish a system for the protection of whistleblowers, which includes reporting, processing, and handling reports and protecting the applicant from revenge and discrimination. Irregularities report the right to anonymity, confidentiality and protection of personal data, and the right to legal aid and compensation for damages in case of violation of their rights. The Act also regulates the procedure for filing complaints and the right to appeal in case of non-compliance with the rights of the applicant.

Before the adoption of the Act, the Republic of Croatia did not have a complete act that would regulate the issue of the protection of whistleblowers, but persons who report corruption were provided with protection through the provisions of certain laws - the Criminal Code, the Trade Act, the Labor Act, the Law on Civil Servants, the Law on Servants and Employees in Local and Regional Self-Government, the Law on The Protection of Data Secrecy and the Law on the System internal controls in the public sector.


In this article we will deal with the available case law that dealt with the issue of the protection of whistleblowers before the adoption of the Act and finally the practice of the European Court of Human Rights in the most famous case Balenović vs. Croatia.

Supreme Court of the Republic of Croatia

As stated above, the Labor Code (OG 93/14, 127/17, 98/19, 151/22) prescribes in Article 117, paragraphs 2 and 3 of the Code of Civil Procedure that "filing a complaint or lawsuit, or participating in proceedings against the employer for violation of the law, other regulations, collective agreements or labor regulations, or addressing workers to the competent state authorities, does not constitute a justified reason for termination of the employment contract, and that addressing workers due to a justified suspicion of corruption or in good faith reporting about that suspicion to responsible persons or competent state authorities,  it does not constitute a justified reason for the termination of the employment contract." For example, in the decision of the Supreme Court of the Republic of Croatia, the business number Revr-1167/10 of December 8th 2010, the following legal understanding is expressed in 2007, which reflects the protection of whistleblowers in the following way:

'In the proceedings before the lower courts, the following decisive facts were established: - that the plaintiff was employed by the defendant as an adviser to the director; - that the defendant exceptionally cancelled his employment contract by decision of 25 February 2009 due to committed particularly serious breaches of employment obligations; - that three important facts are cited as the reason for the extraordinary cancellation: the dissemination of the meal at the expense of the director by addressing the defendant's founder (the county and the President of the Governing Council), claims that the defendant's director is acting contrary to the law; insulting other workers and creating an atmosphere of general work distress, and insulting the director; - that the plaintiff sent a series of letters to the President of the Administrative Council of the Defendant A.P. and to the County as the founder, some of which he also made aware of the Defendant's Director himself, in which he presented his view of the omissions and irregularities of the Director, and explained in what he considers that the conduct of the Director of the Defendant is considered illegal; - that the defendant did not prove that the plaintiff insulted the workers and created general labor distress, although the lower courts found that he did not communicate with other employees orally, but only in writing, and by his conduct impaired the working atmosphere, but not to the extent that would disturb the normal course of the work process; - that it follows from the director's testimony that, if there was an insult to the defendant's director by the plaintiff, by a statement of acceptance of bribes, that this statement was made three weeks before the cancellation itself, i.e. outside the period of 15 days from the commission of the infringement. From these findings, the lower-instance courts correctly concluded that the conditions for termination of the employment contract referred to in Article 100 of the Charter of Fundamental Rights of the European Union were not met (…) and that the claim is fully well founded. The lower-instance courts analyzed in detail the contents of the plaintiff's letters and concluded on that basis that it was not a matter of spreading the meal at the expense of the director, but about the plaintiff's conduct in accordance with the provision of Art. 115 par. 3. Of the Labor Act (hereinafter: ZR), because those letters and criminal charges contain a description of the clearly stated reasoned conduct of the defendant director, which the prosecutor considers illegal. Therefore, such an address by the applicant to the authorities having direct powers and supervising the conduct of the defendant (the county and the administrative council) cannot have the significance of a particularly serious breach of work obligation or other particularly important facts which would be a justified reason for the extraordinary termination of the employment contract. Furthermore, it is a proper assessment of the lower courts that the defendant has not proved the existence of other violations of work obligations charged to the plaintiff, namely insulting workers and creating an atmosphere of general labor distress. The lower courts found that the plaintiff's conduct was not correct but did not constitute such a disturbance of order at work that would justify giving extraordinary termination of the employment contract, because it did not constitute a particularly serious breach of work obligation."

Furthermore, in the decision of the Supreme Court of the Republic of Croatia business number Revr-719/14 of 10 June 2015 it is stated that "according to the assessment of this court, the end of the fact that the plaintiff, as the head of the union, filed a criminal complaint against the president of the board of the defendant on suspicion of irregularities in the collection of union membership fees, which suspicions proved unfounded in the assessment of this court is not such a circumstance that would indicate that the continuation of employment is not possible. Namely, if and if the opposite position were taken, it would mean that workers, due to the danger that the employer would be able to successfully seek judicial termination of the employment contract, will not use their right and duty to report circumstances that they reasonably suspect have committed a criminal offence. Since the creation of such a social climate was completely unacceptable, and there is a reasonable fear that taking a different understanding than the court of the second instance took it, and which this court also considers appropriate, would create an atmosphere of fear and restraint of workers regarding the reporting of possible irregularities in the work of the company administrations, this, according to the opinion of this court, when the prosecutor filed a criminal complaint that appeared unfounded, is not a valid reason for adopting a counterclaim by the employer especially  when, in addition to the fact of filing criminal charges, the employer has not demonstrated that the fact of filing criminal charges would have some other negative public repercussions in relation to the defendant or negative consequences on his business."

European Court of Human Rights

Finally, the judgments of Croatian courts in cases of protection of whistleblowers were also subject to consideration before the European Court of Human Rights.  The most famous case was the case of Vesna Balenović v Croatia (application no. 28369/07)27.  The factual circumstances of the case are as follows:

"The applicant worked for the joint stock company INA – Industrija nafte d.d. (hereinafter referred to as "INA" or "company") from 17 June 1983 to 18 April 2001 when her employment contract was cancelled. INA was founded in 1963 and is the state oil company of the Republic of Croatia. Until July 17, 2003, the state was its sole shareholder. At the time of filing the lawsuit, 47% of INA's shares were owned by the Hungarian oil and gas company MOL, 44% owned by the Republic of Croatia (represented by the Croatian government), and 8% owned by various institutional and private investors. V.B. presented to her immediate superior, and then to the President of the Management Board and the Chairman of the Supervisory Board of INA, the data she obtained through analysis in the framework of the performance of her tasks, which related to fuel losses during transport from refineries to gas stations. She concluded that in 2000 the value of fuel lost in transport was 25,872,208.97 Croatian kuna (HRK), of which the carriers reimbursed only HRK 5,056,818.86. Her findings indicated that the relevant persons in INA proved to be quite negligent about claiming damages for residual losses. Based on her findings, the applicant produced a report entitled "Complaints in the main transport during 2000 in the Logistics Service". The applicant also requested that the public tender be suspended from 20 January 2001 for the services of external carriers. She suggested that, instead of engaging the services of external carriers, INA should develop its own. Since, according to the company's balance sheet for 2000, INA paid HRK 149,105,944.37 to various carriers, the applicant calculated that the company could have taken out a loan for the purchase or leased 232 new vehicles – a number equal to the number of vehicles used by external carriers – and within two years repay the loan. After the public tender was not suspended, the applicant appeared in the public media and several articles were published in Slobodna Dalmacija, and in her media appearances, the applicant presents, among other things, claims of illegal conduct in INA in terms of favoring external fuel carriers and "notorious fuel robbery". V.B. goes further in her accusations, claiming that individuals from INA management are also involved in a private oil transport business, and she did not hesitate to say that she suspects that some high-ranking state officials are doing the same.

In this sense, after appearing in the media, she also filed a criminal complaint with the competent state attorney's office. INA gave the applicant extraordinary termination of her employment contract due to her statements in the press - "In the aforementioned procedure, it was established that V. B. by unauthorized appearance in the daily newspaper "Slobodna Dalmacija" on 3, 4, 5, 6, 7, and 11 April 2001 presented a series of unprofessional analyses of business and accusations at the expense of ... INA's management, and has extremely negatively presented the way INA, d.d. operates, thus damaging the reputation of INA. In addition to the above... in the part of the resignation, it made publicly available data relating to the course and content of preliminary agreements on business cooperation, calculation of costs related to the turnover of goods and procurement of services by public tender, data on financial operations and financial indicators, and data due to the communication of which ... there may be damage to the economic interests of INA. Furthermore, it was established that she did not receive permission for the number of documents from INA's business premises, nor to transmit them to other persons, nor to present them in the media, as she did. It follows from the above that the same acted in the manner described, it did not comply with the Regulation on powers for business correspondence in INA-Industrija-nafte, d.d. from September 1, 1998, as well as the Ordinance on Trade Secrets of February 27, 1997, thus committing particularly serious violations of the obligations from employment prescribed by Article 31 of the Criminal Code of Bosnia and Herzegovina. V.B. applied for the protection of rights to the employer, which was rejected, and then initiated a labour dispute in order to establish the inadmissibility of the decision to terminate the employment contract. After the proceedings were conducted, the final judgment rejected the claim.

The Prosecutor also submitted a review to the Supreme Court of the Republic of Croatia, which was also rejected. In the judgment, the Supreme Court of the Republic of Croatia, among other things, states: "In the proceedings it was established that in these statements the plaintiff made a series of statements in which she expressed extremely negative assessments of the defendant's business and management, qualifications such as manipulation and malfeasance in the business of the defendant, as well as the concealment of crime by the administration and management of the defendant. The lower courts consider that such conduct by the plaintiff constitutes a justified reason for dismissal within the meaning of Art. 107 par. 1. ZR. In the present case, it is of decisive importance to answer the question in principle: - what are the consequences of the public appearance of workers in which extremely negative assessments of the business and management of the employer's funds on the employment contract and the employment relationship between the worker and the employer are presented, and then: - what is the significance of such a public statement of the plaintiff in a particular case?  In principle, it should be said that such public appearance of workers can have an effect on the employment relationship as a particularly important fact due to which, taking into account all the circumstances and interests of both parties, the continuation of the employment relationship is not possible. In this particular case, the aforementioned statement of the plaintiff obviously caused damage to the reputation of the defendant, because an employer whose management structures tolerate and encourage criminal activities really cannot be respectable and enjoy trust in the business world. Therefore, such behavior of the plaintiff leaves significant consequences on the employment relationship between the parties and gives the employer a justified reason for termination of the employment contract within the meaning of the provision of Art. 107 par. 1. ZR. Namely, it is precisely by considering the above circumstances that this represents a particularly important fact due to which the continuation of the employment relationship is not possible. In this case, the presentation of the employer's business in an extremely negative light in public media by the worker represents precisely such a particularly important fact – a fact that gives the employer a justified reason for terminating the employment contract.

It is unfounded for the revisor to refer to her "civic duty". In this direction, the proper assessment of the court of second instance is that the plaintiff had the possibility to fulfill her "intention to prevent damage and protect the property of the defendant" only by addressing and reporting to the competent state authorities, which would result in the availability of information in that direction to newspapers and other media – and could not constitute a reason for termination of the employment contract." V. B. then filed a constitutional complaint against the judgment of the Supreme Court of the Republic of Croatia, stating that her constitutional rights to equality, equality before the law, work and freedom of expression have been violated. The Constitutional Court of the Republic of Croatia rejected the applicant's constitutional complaint. In response to the applicant's claim that her employment contract had been cancelled even though she was merely fulfilling her legal duty to report criminal offences, the court noted that the applicant filed her criminal complaint (see below) only after she had made the statements in question by the media. In addition, the Court found: "In relation to the applicant's objections directed at the court of first instance's allegations relating to the institute of 'civil duty', the Constitutional Court points out that the part of the reasoning by which the court of first instance indicates 'civil duty' is that this court cannot find in any legal article or interpret it from any existing one, except from the Code of Criminal Procedure ...", is poorly worded. This does not, however, affect the validity of that court's legal position on the applicant's 'civil duty' as an employee, according to which the applicant - if she considered that her employer had committed a criminal offence - as a citizen she should have filed criminal charges against the perpetrator, which would commence the action of the competent state authorities in the possible detection of criminal offences and their perpetrators. The Constitutional Court notes that the applicant justifies her treatment of the employer (that is, her public appearances in the media), due to which her employer exceptionally cancelled her employment contract, by claiming that in the media "she expressed her personal opinions and expressions primarily as a citizen", and as an employee in the part in which she opposed "alienation of state property". In this regard, the Constitutional Court notes that the right to publicly express personal opinions in the role of a citizen cannot justify violations of the prescribed obligations of employees to the employer in the manner presented in the constitutional complaint by the applicant." The state attorney's office dismissed the applicant's criminal complaint.

Assessment of the Court - The Court found that the applicant's application was inadmissible. The essential indications from the reasoning are a) whether there was interference ... The court reiterates that Article 10 of the Convention also applies where relations between the employer and the employee are governed by private law, and that the State has a positive obligation to protect the right to freedom of expression;  b) Was the interference justified ... The Court therefore accepts that the interference was required by law and had legitimate objectives because its purpose was to protect the reputation or rights of others, namely the business reputation and interests of INA.  Where that is the case, the Court also considers that the present case, contrary to the Government's opinion, must be distinguished from Guja v. Moldova. In that case, the applicant, a civil servant, was fired for making confidential information public. For that reason, the Court was prepared to accept that the legitimate objective pursued by that interference was to prevent the disclosure of information obtained in confidence, while in the present case the legitimate objectives pursued by dismissal of the applicant were to protect the reputation and rights of others. ... The Court observes that, in her statements in the press, the applicant initially criticized INA's business policy to hire external carriers to transport their petroleum products and claimed that INA's management showed considerable negligence when it came to claiming compensation for losses incurred during the transport of those derivatives. However, later, in her statements of 7 April 2001, the applicant openly accused the INA management of fraud, stating that the management, in conjunction with the carriers, poured money out of the company by overpaying the carrier for their services and by deliberately failing to realize claims in the name of losses during transport. The Court considers that it could be argued that the open questions pointed out by the applicant are questions that may legitimately concern the public.

On the other hand, the Court also considers that at least part of the applicant's statements, those containing allegations of fraud, must have been to the detriment of INA's business interests and were detrimental to its business reputation. In this regard, the Court shares the Opinion of the Supreme Court, as pronounced in its judgment of 24 May 2005, that a company whose management structure tolerates and encourages criminal activities certainly cannot be well reputed and cannot be trusted in the business world. The Court also bears in mind the Government's claim that the applicant made her statement to the press at a sensitive time when the privatization process in relation to INA had just begun. Therefore, the applicant's freedom of expression, her right to publicly criticize the business policy of a national oil company, as well as to communicate information on alleged irregularities within that company and, more importantly, the right of the public to receive that information, in relation to requirements to protect the reputation and rights of others, must be weighed in the present case.  that is, the business reputation and interests of INA. ... while the applicant's statements partially represent value judgments (her first critique of INA's business policy in the field of transport), her allegations of fraud within INA, in the Court's opinion contain concrete factual allegations, which can be proven as such. Moreover, the applicant's allegations seem quite serious since she, in fact, accused the INA management of "sucking up assets”, a form of white-collar crime that is endemic in the transition economies of Central Europe. Therefore, these allegations require substantial justification, especially given that they were pronounced in a large circulation daily newspaper. In this context, the Court reiterates that the more serious the "accusation", the more solid the evidence should be.

The applicant, however, did not provide any evidence at all in support of her allegations of criminal conduct by INA executive officials. This was confirmed by the State Attorney's Office in its decision of 22 September 2004 dismissing the applicant's criminal charges against the appointed members of INA’s management and supervisory board.  In particular, the State Attorney's Office found that the applicant did not provide any evidence that would give rise to reasonable suspicion that the criminal offenses referred to in Article 292 (abuse of power in economic operations) and Article 294 (conclusion of a harmful contract) of the Criminal Code would have been committed, and that there was no evidence that any material gain would have been made to the detriment of INA. The Court also considers it established that the applicant was motivated to publicly disclose her own professional disagreement rather than her genuine concern for INA's business interests. The content and tone of her statements to the press, together with the absence of any factual basis for her most serious allegations, suggests that they were an unrestrained reaction to the behavior of INA management that ignored its business proposals. This finding is further supported by the fact that serious charges by the applicant against certain members of the INA management were first made in the press, and that it was only on May 9, 2001 – i.e., after she was fired – that she filed criminal charges against them with the State Attorney's Office. Therefore, although the dismissal of the applicant was a harsh penalty for her conduct, the above considerations are sufficient for the Court to conclude that the interference objected to was not disproportionate in relation to the legitimate objective pursued and can therefore be regarded as 'necessary in a democratic society', within the meaning of Article 10 of The Convention of Fundamental Rights of the European Union....  In conclusion, the court found that the application was inadmissible: manifestly unfounded in relation to Article 10 (freedom of expression - freedom to disseminate information), Article 6(1) (right to a fair trial - impartial court), Article 14 (prohibition of discrimination) and Article 13 (right to an effective remedy).


Anja JURŠETIĆ, mag.iur.