The new Croatian Act for the Protection of Persons Reporting Irregularities came into force on 23 April 2022.

In order for the new legislation to provide the highest possible level of protection to the persons reporting irregularities (“whistleblowers”), its provisions need to be implemented correctly. One of the prerequisites for this is the provision of accessible and clear information to both the whistleblowers as well as the confidential persons on their rights and the obligations stemming from the Act.

Some of the key questions regarding the implementation of the Act are the following:

 

What are the conditions for protection of reporting persons?

 

  1. Who can report irregularities?
  2. What qualifies as “retaliation” in the sense of the Act?
  3. Under what conditions do persons reporting irregularities qualify for protection?
  4. What types of protection are available to the persons reporting irregularities?
  5. What reporting channels is the person reporting irregularities required to utilize in order to qualify for the modes of protection available under the Act?
  6. Internal reporting channels
  • What types of employees have the obligation to set them up?
  • What are the duties of the confidential person?
  1. External reporting
  • On what conditions can the whistleblower report to the Ombudswoman as an external reporting channel?
  • How to report irregularities to the Ombudswoman?
  • What does the Ombudswoman’s procedure following reports of irregularities consist of?
  • In what types of cases will the Ombudswoman not act?
  1. Public disclosure – in what cases does the whistleblower qualify for protection?
  2. How does the Act provide for the protection of the whistleblower’s identity and the confidentiality of their reports in the procedure following the reporting of irregularities?
  3. How does the Act protect whistleblowers from liability for confidentiality breaches?
  4. Remedial measures against retaliation and access to confidential advice prior to reporting – Which support measures are available to whistleblowers?

 

In the text below you can find the basic information as well as the forms intended for use by the persons reporting irregularities to the Ombudswoman as the dedicated external reporting channel and by the confidential persons receiving reports as the internal reporting channel (the forms can be accessed by clicking on the links below):

 

 

Conditions for protection of reporting persons

 

  1. Who can report irregularities?

“Reporting person’ is a natural person who reports or publicly discloses information on breaches acquired in the context of his or her work-related activities.

‘Work-related context’ means current, past, future or planned professional activities in the public or private sector through which persons

  • acquire information on breaches and
  • within which those persons could suffer retaliation if they reported such information.

The aforementioned definition covers, among others:

  • persons having the status of worker
  • persons having self-employed status
  • shareholders, persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees
  • any persons working under the supervision and direction of contractors, subcontractors and suppliers
  • any persons involved in any way in the professional activities of a natural or a legal person.

 

  1. What qualifies as “retaliation” in the sense of the Act?

“Retaliation’ means any direct or indirect act or omission occurring in a work-related context and prompted by internal or external reporting or by public disclosure, including suspensions, lay-offs, dismissals, demotions or withholding of promotion, transfer of duties, change of location of place of work, reduction in wages, change in working hours, withholding of training, a negative performance assessment or employment reference, coercion, intimidation, harassment or ostracism, as well as any other behavior or omission to act which causes or may cause unjustified detriment to the reporting person.

 

  1. Under what conditions does the person reporting irregularities qualify for protection?

Persons reporting irregularities qualify for protection under the Act provided that:

  • they had reasonable grounds to believe that the information on breaches reported or publicly disclosed was true at the time of reporting/disclosure and that such information falls within the scope of the Act
  • they reported the irregularity either internally (via the system established by their employer) or externally (by submitting their report to the Ombudswoman), or made a public disclosure.

 

  1. What types of protection are available to the persons reporting irregularities?

Persons reporting irregularities have the right to:

 

  1. protection of their identity and the confidentiality of their report
  2. court protection
  3. indemnity for the damages they might have suffered
  4. primary free legal aid in line with the provisions of the special law regulating the provision of free legal aid
  5. emotional support
  6. other support measures as part of the procedures envisaged by the Act.

 

  1. What reporting channels is the person reporting irregularities required to utilize in order to qualify for the modes of protection available under the Act?

The purpose of the Act is to provide efficient protection of the reporting persons, which includes the provision of accessible and reliable reporting channels.

Under the Act, there are three available reporting channels:

  1. internal

2. external

3. public disclosure

 

  1. Internal reporting channels: What types of employees have the obligation to set them up?

This channel entails the reporting of irregularities to the employer. The process is initiated by submitting the information on irregularities to the confidential person (i.e., the person designated by the employer to perform this duty).

Under the Act, employers with 50 or more employees have the obligation to establish an internal reporting channel, whereas those with less than 50 are given a choice of whether to do so or not. As an exception to this rule, this threshold does not apply to the employers falling within the scope of Union acts referred to in Parts I B and II of the Annex to the Act.

The reporting procedure to the internal reporting channel as well as the appointment of the person designated to receive reports of irregularities and their deputy shall be regulated by the employer’s internal by-laws. This information must be easily accessible and clear with the aim of efficiently facilitating the use of the internal reporting channel as the primary means of reporting irregularities.

 

What are the duties of the confidential persons?

The persons designated by the employers to perform the duties of the confidential persons include:

 

  • receiving the reports of irregularities and acknowledging their receipt to the reporting person within seven days of that receipt
  • undertaking immediate measures for the protection of the reporting persons
  • following-up on reports and providing feedback to the reporting person, normally within a 30-day period and no later than 90 days from the acknowledgment of receipt or, if no acknowledgement was sent to the reporting person, within the seven-day period after the report was made
  • in cases when the reported irregularity could not be resolved internally, forwarding the report, without delay, to the competent authorities
  • informing the reporting person without delay on the outcome of the procedure initiated on the basis of their report
  • reporting, in writing, to the designated external reporting mechanism on the report of irregularities received and the outcome of the internal reporting procedure within the deadline of 30 days from the day the decision on the report was reached
  • protecting the reporting person’s identity as well as the confidentiality of the information contained in their report
  • providing clear and easily accessible information regarding the reporting to the designated external reporting channel and to the competent authorities.

 

Confidential persons can use the form provided here to report to the external reporting channel (i.e. the Ombudswoman).

 

  1. External reporting – On what conditions can the whistleblower report to the Ombudswoman as the external reporting channel?

The Ombudswoman of the Republic of Croatia performs the mandate of the designated external channel for the reporting of irregularities.

The reporting person can report irregularities to the Ombudswoman either after having previously reporting them to the dedicated internal channel or directly.

 

  • How to report irregularities to the Ombudswoman?

The report can be submitted in writing or orally and must contain the information on the reporting person, the legal or natural person the report pertains to, as well as the irregularities cited in the report.

Written reports can be sent by post or submitted in person to the address Savska cesta 41/3, 10 000 Zagreb or e-mailed to info@ombudsman.hr.

We suggest the use of this form for written complaint submissions.

Irregularities can be reported orally by calling the telephone numbers 01 4851 855 or 01 4851 853 or, at the reporting person’s express request, personally, at the Ombudswoman’s office in Savska cesta 41, Zagreb. In the latter case, the Office’s designated staff must set up the meeting with the reporting person within a reasonable time frame.

Notice: Oral reports submitted via telephone will not be recorded. Instead, a written record of the telephone call will be made. The reporting person has the right to subsequently review the record and correct any errors as well as to confirm its accuracy by signing it.

 

  • What does the Ombudswoman’s procedure following reports of irregularities consist of?

Having received a report on irregularities, the Ombudswoman will acknowledge its receipt to the reporting person within a seven-day deadline. The receipt confirmation will be foregone at the reporting person’s express request and in cases when there is strong probability that it could lead to the disclosure of the reporting person’s identity.

If in their report the reporting person has made it plausible that she/he is being or might in the future be subject to retaliation for reporting irregularities the Ombudswoman will investigate the claims and undertake measures falling within her mandates for her/his protection.

Having received the report, the Ombudswoman will forward it to the competent authorities within a reasonable time frame and in a safe manner and notify the reporting person without delay. When following-up on a report, the Ombudswoman will protect the reporting person’s identity as well as the confidentiality of the information contained in the report and will prevent any unauthorized disclosure of these data as well as their sharing with any other persons, unless regulated otherwise by a special regulation or unless the reporting person consents to the disclosure of this information. The competent authorities the report was forwarded to are obliged to notify the Ombudswoman on the actions taken within a deadline of 30 days.

The Ombudswoman will notify the reporting person on the status of their case and the follow-up actions taken within a deadline of typically no less than 30 and no more than 90 days. In case of justified reasons, this deadline can be prolonged to up to six months.

Following the finalization of the proceedings, the Ombudswoman notifies the reporting person of their outcome without delay.

 

  • In what types of cases will the Ombudswoman not act?

The Ombudswoman will not follow-up on the irregularities reports in the following cases:

 

  • if, after having duly assessed the matter, she decides that a reported irregularity is clearly minor and does not require further action
  • in cases of repetitive reports which do not contain any meaningful new legal or factual information on irregularities compared to a past report in respect of which the relevant procedures were concluded.

The Ombudswoman will not conduct an investigation procedure aimed at protecting the reporting person from retaliation they are or might be suffering in their work environment in cases when court proceedings have already been instigated for that purpose.

The Ombudswoman will notify the reporting person about the reasons for forgoing following-up on their report.

  1. Public disclosure – in what cases does the person publicly disclosing irregularities qualify for protection?

‘Public disclosure’ of irregularities pertains to the making of the information on breaches available in the public domain.

A person who makes a public disclosure qualifies for protection if any of the following conditions is fulfilled:

  1. the person first reported internally and externally or directly externally (to the Ombudswoman), but no appropriate action was taken in response to the report within the deadlines prescribed by the Act

or

  1. the person has reasonable grounds to believe that
  • the breach may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage; or
  • in the case of external reporting, there is a risk of retaliation or there is a low prospect of the breach being effectively addressed, due to the particular circumstances of the case.

 

  1. How does the Act provide for the protection of the whistleblower’s identity and the confidentiality of their reports in the procedure following the reporting of irregularities?

The persons receiving irregularities reports, the confidential persons, and any other persons participating in the follow-up procedure based on the report must protect the confidentiality of the information contained therein. These data cannot be used or disclosed for any purpose beyond those necessary for the appropriate conducting of the follow-up procedure.

The reporting person’s identity, the information from which their identity may be deduced, as well as any other information contained in the irregularities report can be accessed only by the authorized staff members competent to receive and handle the reports and are protected from disclosure unless the reporting person consents to it.

As a matter of exception, the identity of the reporting person may be disclosed in cases where this is a necessary and proportionate obligation imposed by Union or national law in the context of investigations conducted by national authorities or judicial proceedings. In such cases, the competent authority will inform the reporting person in writing before their identity is disclosed, including an explanation of the reasons for the disclosure of this information, unless such actions would jeopardize the related investigations or judicial proceedings.

The same rules apply to the protection of the identity of the person named in the report as responsible for the cited irregularities.

 

  1. How does the Act protect whistleblowers from liability for confidentiality breaches?

Reporting persons will not be considered to have breached any restriction on disclosure of information and will not incur liability of any kind in respect of their report or public disclosure provided that they had reasonable grounds to believe that the reporting or public disclosure of such information was necessary for revealing an irregularity.

Reporting persons will not incur liability in respect of the acquisition of or access to the information which is reported or publicly disclosed, provided that such acquisition or access did not constitute a self-standing criminal offence.

In legal proceedings reporting persons will not incur liability of any kind as a result of reports or public disclosures under the Act. Those persons have the right to rely on that reporting or public disclosure to seek dismissal of the case, provided that they had reasonable grounds to believe that the reporting or public disclosure was necessary for the revealing of an irregularity.

Where a person reports or publicly discloses information on irregularities that includes trade secrets, and where that person meets the conditions for receiving protection under the Act, such reporting or public disclosure will be considered lawful within the scope in which such data collection, use or disclosure is prescribed or allowed by the EU or national law.

 

  1. Remedial measures against retaliation and access to confidential advice prior to reporting – Available support measures

The Ombudswoman is mandated to provide general legal information regarding the procedures and the channels for the reporting of irregularities and public disclosure as well as protection measures available to the reporting persons under the Act.

Reporting persons using internal reporting channel can request that the confidential persons receiving their reports take appropriate measures to protect them from retaliation.

Reporting persons can request protection from the Ombudswoman as the external reporting channel provided that they have made it plausible that they are or might suffer retaliation as a result of reporting irregularities. In such cases the Ombudswoman examines the report and undertakes measures for the protection of the whistleblower falling within her mandates. Following the investigation procedure, the Ombudswoman drafts a report and assesses whether the reporting person’s constitutional and legal rights have been violated.

Persons reporting irregularities can also seek court protection in a special procedure initiated by a lawsuit for the protection of a person reporting irregularities.

With the whistleblower’s consent, the Ombudswoman, as well as organizations, institutions, civil society organizations and other natural or legal persons active in the field of human rights protection and combating corruption, can participate in such court proceedings as a third-party intervener.

In the court procedure for the protection of the person reporting irregularities the court can impose interim measures in line with the provisions of the law regulating the enforcement and the securing of claims. Interim measures can be proposed prior to, during or after the end of the court proceedings, up until the moment of the realization of the enforcement. The proposal for the imposition of interim measures can contain a request to ban acts of retaliation, to remove the consequences of retaliation, to defer the implementation of decisions placing the person reporting irregularities in an unfavorable situation or violating some of his/her employment rights. The court decides on the imposition of the interim measures within a deadline of 8 days from the receipt of the request.

The person reporting irregularities is exempt from the payment of the court fees in the court proceedings initiated for their protection as well as those related to requests for interim measures.

Persons reporting irregularities have the right to request and receive primary legal aid (under the conditions laid out by the Law on Free Legal Aid; for example, that the applicant’s financial circumstances are such that the payment of professional legal assistance could jeopardize their subsistence and the subsistence of members of their household).

Primary legal aid includes the provision of general legal information and legal advice, drafting submissions before public bodies, the European Court of Human Rights and international organizations in accordance with international treaties and rules of operation of these bodies, representation in proceedings before public bodies, as well as legal assistance in out-of-court peaceful dispute settlement procedures.

The following link contains a list of all CSOs and legal clinics authorized to provide primary free legal aid: Ministry of Justice and Public Administration – CSOs and legal clinic authorized for the provision of primary free legal aid (gov.hr).

Reporting persons also have the right to access secondary free legal aid in line with the conditions set out by the Law on Free Legal Aid. Secondary free legal aid includes the provision of legal advice, drafting submissions in the procedures for the protection of workers’ rights before the employers, drafting submissions in court proceedings, legal representation in court proceedings, legal assistance in peaceful dispute settlement procedures, as well as exemption from the payment of the costs of court proceedings and the costs of the court fees.

Secondary legal aid is provided by attorneys at law. More information is available at free legal aid – Croatian Bar Association – (hok-cba.hr).