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About the Institute

  • Judicial protection and interim injunctions in the event of retaliation (Article 22 of the ZZPri);
  • Free legal aid (Article 23 of the ZZPri);
  • unemployment benefit (Article 24 of the ZZPri);
  • psychological (mental) support (Article 25 of the ZZPri);

 

Judicial protection:

 

The reporting person may seek judicial protection against retaliation by bringing an action and a motion for an interim injunction before the competent court. Retaliation can have several different types of legal consequences, most of which are related to labour law (e.g. disciplinary measures imposed on employees, written reprimand, ordinary or extraordinary termination), but a small number of which can also be related to civil law (e.g. measures against a legal person related to the reporting person (whistleblower) who is involved in the work activity as a sole proprietor), commercial law (e.g. actions against a shareholder, partner, member of a management or supervisory body) or administrative law (e.g. actions against a whistleblower who is a member of the council of a public institute or is an official who holds office).

The task of the whistleblower protection officer is to provide the reporting person with basic information on the legal options (remedies) for legal protection against retaliation under the ZZPri, as set out below (bringing an action and requesting an interim injunction, urgency of proceedings, exemption from court fees). The whistleblower protection officer may also advise the reporting person to seek assistance from the trade union or NGO concerned with the protection of whistleblowers in relation to judicial protection.

Court proceedings for the protection of reporting persons are necessary and the reporting person is exempted from paying court fees in these proceedings, which further facilitates the reporting person's access to legal remedies.

 

For example, by bringing an action, the reporting person can request:

  • a conclusion to be made that the reporting person was subject to retaliation;
  • cessation, the prohibition on further retaliation and the remedying of the consequences of retaliation against the reporting person;
  • compensation for pecuniary and non-pecuniary damage caused by the violation of rights protected by this Act;
  • publication of the judgment on identified infringements on the reporting person's rights in the media.

 

Interim injunctions may be granted in proceedings. This option can be crucial, for example, because retaliation should cease immediately. To that end, the provisions of the Enforcement and Security Act (hereinafter: the ZIZ) and the Labour and Social Courts Act (hereinafter: the ZDSS-1) shall apply. If the reporting person proves in the proceedings for granting an interim injunction that he/she filed a report before the retaliation, there is a risk that the enforcement of the claim will be prevented or substantially impeded. This is an additional statutory presumption complementing Articles 270 and 272 of the ZIZ. The reporting person must prove that he/she has been subject to retaliation by means of a certificate indicating that a report had been filed on a breach being committed before the retaliation or a certificate issued by the Commission for the Prevention of Corruption on eligibility for the protection provided under Article 18 of the ZZPri. For example, the interim injunctions that can be proposed include:

  • an injunction prohibiting retaliation;
  • an injunction to remedy the consequences caused by retaliation;
  • an injunction suspending the enforcement of decisions that disadvantage the reporting person or infringe any of his/her rights relating to the workplace.

In proceedings before a court or other authority, in respect of damage suffered by the reporting person, the damage shall be deemed to be the result of retaliation for the reported breach or public disclosure if the reporting person proves that he or she filed the report or made the public disclosure and that he or she suffered damage. In such cases, the person who implemented the measure (the employer) has to prove that it was lawful and appropriate and unrelated to the report. In practice, this means that the reporting person only has to provide facts that justify the presumption that he/she has been subjected to retaliation as a result of reporting a breach, while the burden is on the employer to prove that it has not retaliated (reversed burden of proof).

 

Free legal aid:

 

The reporting person is entitled to free legal aid in court proceedings brought against the employer due to retaliation, or in court proceedings brought against the reporting person by the employer in retaliation, or in other court proceedings relating to the reporting person's report, if he/she proves that he/she filed a report in accordance with the ZZPri prior to the retaliation. The competent authority for free legal aid gives priority to applications lodged under the ZZPri.

The decision on the application for free legal aid is taken by the competent authority for free legal aid of the court in whose territory the reporting person has his/her permanent or temporary residence or registered office, as follows:

  • the district court, in cases where the courts of general jurisdiction have jurisdiction;
  • the labour and social court, in cases of individual and collective labour disputes and social disputes;
  • the administrative court, in cases of administrative disputes; and
  • the court having jurisdiction over the constitutional complaint, the petition for review of constitutionality and legality, disputes before international courts and out-of-court settlement of disputes.

An application for free legal aid must be lodged by the reporting person in writing on the form available on the court's website[1], stating in the explanatory note that it is an application under Article 23 of the ZZPri. If the application is not filed on the prescribed form, it must contain the following information:

  • full name, tax number, personal identification number (EMŠO), address of permanent or temporary residence of the applicant;
  • information about the case;
  • an indication of the type and amount/scope of free legal aid;
  • an indication of this being an application for granting free legal aid under Article 23 of the ZZPri.

The reporting person must also prove that when filing the application that he/she, due to the breach he/she reported, has been subject to retaliation by means of a certificate confirming the filing of the report on a breach being committed before the retaliation, or a certificate issued by the Commission for the Prevention of Corruption on eligibility for the protection provided under Article 18 of the ZZPri.

The reporting person shall be entitled to free legal aid irrespective of the provisions on the reporting person's financial situation, and also in criminal proceedings and compensation disputes relating to defamation and similar offences, irrespective of the first and third indents of Article 8 and the first paragraph of Article 24 of the Free Legal Aid Act (hereinafter: the ZBPP). The following provisions of the ZBPP are therefore not relevant to eligibility for free legal aid:

  • First and third indents of Article 8 of the ZBPP:

Free legal aid under this Act is not granted in the following cases:

  • for the criminal offences of slander, defamation, libel and slander, unless the injured party can prove the likelihood that he or she has suffered legally recognised harm as a result of such acts being committed;
  • in disputes for compensation for non-pecuniary and pecuniary damage caused by defamation and the dissemination of false statements, unless the injured party can prove with a degree of probability that his or her financial or social situation has been affected.
  • First paragraph of Article 24 of the ZBPP:

When assessing whether to grant free legal aid, the circumstances and facts of the case in relation to which the applicant is applying for free legal aid shall be taken into account as conditions, in particular that:

  • the case is not manifestly unreasonable or that the applicant has a reasonable prospect of success in the case such that there is a reasonable interest to institute or participate in the proceedings or to pursue legal remedies or to respond to them in the proceedings; and
  • the case is relevant to the applicant’s personal and their social and economic situation, or the expected outcome of the case is of vital importance to the applicant or to his/her family.

 

Unemployment benefit:

 

If the employer has terminated the reporting person's employment contract and the reporting person seeks judicial protection under the ZZPri and proves, by means of a certificate issued by the Commission for the Prevention of Corruption referred to in the second paragraph of Article 20 of the ZZPri, that he or she is entitled to protection, the reporting person may exercise their unemployment insurance rights under the Labour Market Regulation Act (hereinafter: the ZUTD) as if her or his employment contract had been terminated through no fault of his or her own. According to the Act, in order to claim unemployment benefits as a support measure to protect the reporting person, the following conditions must be met:

  • the employer has terminated the reporting person's employment contract;
  • the reporting person seeks judicial protection under Article 22 of the ZZPri against retaliation;
  • the reporting person has obtained a certificate from the Commission for the Prevention of Corruption referred to in the second paragraph of Article 20 of the ZZPri regarding eligibility for protection.

 

This means that, notwithstanding the provisions of the ZUTD, the reporting person is entitled to the unemployment benefit until a final ruling is passed by the court in his or her court case. The reporting person exercises his or her right to an unemployment benefit if he or she registers in the register of unemployed persons by submitting an application to the Employment Service of the Republic of Slovenia within 30 days of the termination of his/her employment contract. He or she must explicitly state that he/she is claiming unemployment (financial) benefit under the provisions of the ZZPri and attach the necessary supporting documents (certificate of the filing of the lawsuit and the certificate issued by the Commission for the Prevention of Corruption of eligibility for protection) to the application.

Notwithstanding the provisions of the ZUTD, a reporting person who has not reached the minimum period of insurance to be entitled to unemployment benefit (a 10-month insurance period or just 6 months of insurance if under 30 years of age) will be entitled to an unemployment benefit equal to the minimum amount of the unemployment benefit provided under the ZUTD. If unemployment benefit has been paid on the basis of this Article and the recipient of the benefit is obliged to notify the court referred to in Article 22 of this Act, the court shall, in the proceedings referred to in Article 22 of this Act, decide that the unsuccessful party shall return the benefit paid out until the decision of the court is final to the Employment Service of Slovenia. The court notifies the Employment Service of Slovenia of the final decision.

 

The basis for the assessment of the right to unemployment benefit and the amount, termination and suspension of the unemployment benefit is determined by systemic regulation under the ZUTD, which applies to all issues relating to the unemployment benefit that are not explicitly determined by the ZZPri.

 

Psychological (mental) support:

Reporting persons/whistleblowers often need psychological assistance, which can cover the whole spectrum of measures, from discussions with the whistleblower protection officer or the external reporting officer to psychiatric treatment by trained professionals. If the reporting person needs professional psychological support as a result of retaliation, the Commission for the Prevention of Corruption may, at the initiative of the reporting person, the whistleblower protection officer or the external reporting officer, propose that the reporting person be treated at a mental health centre, a clinical psychological clinic or a psychiatric clinic within the public health service network.

The health service network includes psychiatric outpatient clinics, clinical psychology outpatient clinics and regional centres for adult mental health, as defined in the Resolution on the National Mental Health Programme 2018–2028. These include two types of teams: an outpatient team covering the needs of early treatment of mental disorders in adults, older people and people with alcohol dependence, as well as triage and counselling services, and a team for psychiatric treatment in groups. Psychiatric outpatient clinics are staffed by psychiatrists, who provide mental health care, as well as psychologists and clinical psychologists, who also provide psychological assistance and support.

The list of providers in the public health service network is available on the website of the National Institute of Public Health (NIJZ):

In addition to public health services, private clinics and NGOs also provide psychological support to the reporting persons. The list is available via the following link:

Psychological support and counselling can also be provided to the reporting persons by the Social Work Centres under the service provided by the Social Assistance Act (ZSV):


[1]https://www.sodisce.si/mma/prosnja-za-dodelitev-brezplacne-pravne-pomoci--obrazec/2008112715034169/?m=1227794621.

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