The whistleblower of the Italian Mafia, Roberto Saviano, has been under police protection since 2006. The Mafia has announced the hunt for him after the book Gomorrah has been published. It has become a worldwide bestseller, has been translated into 52 languages and has received numerous awards.

For 13 years, Italian law has protected Saviano and about 20 other journalists with personal bodyguards from the Italian Ministry for Interior Affairs. Part of his life is spent in Germany and the United States, where he is provided new documents and a new name after the mafia declared him a death sentence.

01/01/2020 Legislative changes regarding the perpetrators of corruption came into effect. Will such globally renowned whistleblowers appear in Ukraine?

The whistleblowers play a leading role in uncovering offenses that threaten the public interest and deplete public finances. Often, people who report crimes are under pressure from those they testify to. Previously, the law did not restrict employers from discriminating against such people, violating their labor rights, and a number of rights were not even stated in a declarative manner.

Major changes in the legal system of protection of corruption whistleblowers

Definition. The definition of “whistleblower” is reasonably specified by the fact that the reported information should become known as an insider in connection with work, professional, economic, public, scientific activity, service or training or participation in the procedures prescribed by law, etc.

Additional protection. Whistleblowers and their relatives will receive additional protection of labor rights. Forbidden negative measures of influence will include even formally legitimate decisions of the head/employer which are of selective nature. A person who applies negative measures of influence to the whistleblower must prove their validity.

Obstacles to the whistleblower.  The law prohibits interfering with the whistleblower, his/her relatives in the further pursuit of his/her work, professional, economic, public, scientific or other activity, service or training, as well as take any discriminatory measures in connection with the whistleblowing.

The rights of the whistleblower and the remuneration

The rights of the whistleblower arise from the moment when information is provided on possible facts of corruption or corruption-related offenses. If the whistleblower was pursued prior to the opening of the formal proceedings, the law would still protect him. This includes the right to free legal aid, reimbursement of attorney’s fees and legal fees, psychological assistance, security of the person and his/her relatives, confidentiality and anonymity with responsibility for violation thereof, information on the results of consideration of the disclosed information, etc.

The whistleblower, after the conviction of the court, will be entitled to 10% (not more than 3 thousand minimum wages established at the time of the crime) compensation for the crime or damage to the state (which exceeds the subsistence level for the able-bodied persons established by law at the time of the crime by 5 thousand times or more). However, provided that the information provided contained verifiable factual information, facilitated the proving of the crime, and if it came from the personal knowledge of the whistleblower and was not obtained from third parties, it was not contained in public reports, inspection results, materials, studies, information messages from authorities or the media. The only exception is if the whistleblower was the source of such information.

It is also important that the information is not known to law enforcement agencies from other sources. In addition, a person is not entitled to compensation if he/she has reported on a corruption offense within the framework of a criminal proceeding agreement or is complicit in this corruption crime and the like.

Risks

If a whistleblower discloses publicly important restricted information that is covered by state secrets, he or she may theoretically be subject to legal liability. A whistleblower determines which new delimited channels (internal, regular or external) to use for disclosing information.

Specialized anti-corruption entities, other government agencies and legal entities are required to create secure anonymous communication channels (online communication channels, anonymous hotlines, e-mail addresses, etc.) through which the whistleblower can report his/her information, guaranteed to remain anonymous.

Requirements for anonymous communication channels must be defined by the National Agency on Corruption Prevention. However, at its final press conference in December 2019, the acting chair of the Agency Natalia Novak did not mention any preparation of the NACP for changes in legislation. This case will be borne by the new chair of the National Agency.

Those who will receive and process messages from the whistleblowers should consider introducing a mechanism of a “personal account” of the whistleblower. In this way, it can be anonymized and monitored.

The NACP also has the right to inspect the organization’s work to prevent and detect corruption in public authorities, local self-government and legal entities referred to in Part 2 of Art. 62 of the Law “On Corruption Prevention”, in particular regarding the protection of whistleblowers, the establishment and operation of internal and regular channels of communication. NACP has not yet clarified on what grounds and in what ways such verification will be conducted.

However, a new section of Law 53-2, “Verification Procedure of the Whistleblower’s Report” may not be consistent with the current Criminal Procedural Code of Ukraine and will facilitate destroying evidence. It is also unclear who will be the official who will be responsible for carrying out the preliminary verification of information from the whistleblower within 10 business days. After such verification, the proceedings will be closed in the event of a lack of evidence.

When it comes to information about committing a corruption or other crime, it must be immediately forwarded to the pre-trial investigation body. The body must in accordance with Art. 214 of the CPC of Ukraine submit them to the Unified Register of Pre-trial Investigations.

The NACP should continue to work on implementing the provisions of the law and developing mechanisms to improve it in line with the first results of its application. The adopted law can only be regarded as a first step towards protecting whistleblowers who put themselves at risk. For by international standards, not only corruption reporting is considered whistleblowing, but also reporting the violation of human rights, ecology, transport, and food safety and other socially important information. Currently, the law does not provide for the protection of such categories of whistleblowers, and there is no separate comprehensive legislative act.