Whistleblowing in the police

The citizens of Serbia recently heard two seemingly unrelated pieces of information. First, two police officers were arrested in October 2016 on suspicion that they disclosed classified information to the public. Second, the court made the judgment that awarded the minister of interior with 2,500 euros for non-pecuniary damage compensation. The latter was the consequence of (as the court determined) the harm to the reputation of the minister of interior Nebojsa Stefanovic by the weekly magazine NIN that in June 2016 described him as the principal phantom of Savamala. The two events are connected not only due to being police-related but also because they give a clear answer to the question – what happens to those who dare to speak about misconduct within the police?

In the first case, two police officers reported to their superiors that they had been given an illegal order to accompany the prime minister on his visit to Bosnia and Herzegovina in 2015, without a clear objective. It was a verbal order given on the day of the trip: to travel without police badges, IDs and without notification of police activities in a foreign state.

The two police officers stated that during the commemoration in Potocari in 2015 as many as 19 police officers were at the event in this unclear capacity and that they were given the task to secretly record the event. They also disclosed that the ministry of interior (MoI) reports on the days in question stated the police officers were on assignments in Serbia, rather than where they really were, and that the video recordings from Potocari were used for non-police purposes.

Before going public in October 2016, the two police officers reported the mentioned irregularities to the police internal control, and they had filed criminal charges for abuse of power. However, these reports and charges remain unanswered, whereupon one of the officers was degraded, and the other was discharged. More than two months after they had disclosed the information, in the New Year’s eve, their criminal prosecution began, for the alleged disclosure of classified data.

What would have actually happened in a country that aspires to be democratic and accountable?

The two police officers would have been treated as whistleblowers, who had exhausted all the mechanisms that were at their disposal, in order to protect the public interest and to report on potential abuses of power. Whistleblowing means disclosing information about violations of the law, human rights abuses, and the exercise of power contrary to the public interest. Exactly about these misconducts the two police officers first informed their superiors and then filed criminal charges for abuse of power. Since there was no reaction by the police internal control, and the criminal charges had been dropped by the prosecution, they went public, in accordance with the Law on the protection of whistleblowers.

The two whistleblowers should have been provided judicial protection, which includes protection from retaliation and job loss. This is an obligation prescribed by the laws of the Republic of Serbia. Then, the investigative authorities and the public would have examined the allegations made by the whistleblowers, while the institution that had been accused of the abuse – in this case the police – would have the obligation to explain to the citizens whether the allegations of abuse had been substantiated or not.

This case would have initiated a review of the same or similar practices with the aim of preventing their recurrence. Namely, the official appeal submitted to the internal control states that the event in Potocari was not the only case of abuse of power and that the MoI employees have had other similar tasks, such as monitoring of individuals from the opposition. Furthermore, the appeal states that the unauthorized videos were made available to the chief of cabinet of the minister of interior.

In spite the police officers’ obligation to refuse unlawful orders, the possibilities for whistleblowing within the police and by alerting the public, and the obligation of the judiciary to protect whistleblowers in court proceedings, the Serbian judiciary opted for serving those who were suspected of violating the rules, and persecuting two police officers for the alleged disclosure of classified information.

This is particularly interesting, keeping in mind that the police officers in 2015 could not be bound by the concrete nondisclosure obligation because the classification “official” does not exist in the Serbian legal system since 2009. The criminal offense of disclosing classified data with the label “official” somehow survived in the Criminal Code. However, in its execution it is necessary that the disclosed data or documents are classified as “official” – by law, other regulation, or by the decision of competent authority based on the law, because of the possible harmful consequences for the institution.

The MoI overlooks not only the “retirement” of the concrete classifying label but also one of the postulates of data confidentiality – that classified information cannot be used to conceal a crime, abuse of power or unlawful conduct. This leads us to the conclusion that the two police officers are a part of imaginary proceedings with the sole purpose of their persecution and dismissal.

The 2016 Law on police allows for the dismissal of an employee against whom the criminal proceedings have been initiated ex officio by the prosecutor, regardless of the outcome of the proceedings. Since one of the two police officers is still employed by the ministry of interior, the prosecution’s actions will put an end to this “problem”.

Thus, the prosecution is conducting the proceeding which is obviously revenge for disclosing information that damages the reputation of the police, while, for the same reason, the minister of interior sues and wins the right to compensation for non-pecuniary damage caused by the weekly magazine NIN. Similar to the two police officers, NIN has raised whistleblowing questions – why did the police not respond to the calls from citizens on April 25 last year? Who among the high police officials ordered the unlawful conduct (the Ombudsman found that there was such an order)? And why has the internal control not been investigating this for months (as is their legal obligation)?

Since minister of interior Nebojsa Stefanovic is responsible for the performance of the police, and the police internal control is responsible to the minister, the only sensible conclusion that NIN could reach is that all of this could not be done without his knowledge. Hence, this is not about harming the reputation and honor of the minister, but about the legal and political accountability for holding a public office.

However, decision-makers in the executive branch, particularly those in the security-related ministries, cannot accept that such accountability exists at all. And they are wholeheartedly supported by the spineless judiciary. Those in power cannot accept that their power, orders, and even their desire for revenge, are limited by certain rules. The minister of interior and his colleagues cannot accept that they are supposed to provide answers to our questions, that they are obliged to act in the public interest, and that they are also accountable to us for possible misuses of power. Instead, the issue of responsibility is reduced to damages to honor and reputation.

Obviously, we are dealing with people who think they are in the public office in a private capacity, appointed by superior force, and it is, therefore, legitimate and honorable to disguise their own misdeeds. No matter how painful for the citizens it is to be exposed to such arrogance of the authorities, we will eventually get the confirmation that the public officials in question were wrong. Only then will we be able to testify who was honorable in the present days, and it is quite certain that this conclusion will be opposite to the recent conclusion of the Serbian judiciary.

Translated by Isidora Stakic

Pointpulse, 10.12.2017.

Peščanik.net, 13.01.2017.