Protection of Whistleblowers: What Has (not) Changed?

It’s been two years since the Law on Whistleblower Protection came into force. It provides for confidentiality, security, free legal and psychological assistance, reimbursement of expenses for a lawyer, etc. Are the legal guarantees fully implemented?

In early 2021, the institution of whistleblowers was under threat. In February, MPs amended draft law No. 3450 “On Prevention of Corruption,” weakening the protection of whistleblowers. Then, we urged the President not to sign the adopted law in the second reading because it, among other things, significantly narrowed the rights of whistleblowers and did not provide for clear guarantees of anonymity of communication channels. Subsequently, Volodymyr Zelenskyy did veto the law.

On June 1, 2021, the Verkhovna Rada finally approved the law on the protection of whistleblowers, having considered the President’s proposals. One of the key requirements was to create a portal where whistleblowers could transmit messages about possible facts of corruption offenses. This should ensure high standards of information protection. The NACP is to administer the Unified Portal of Whistleblower Reports; however, the National Agency has not launched it yet.

In general, in 2021, the NACP provided support for at least 98 court cases against whistleblowers (as of November 17, 2021). Of these, 18 have been opened since the beginning of 2021, and 11 cases have been decided in favor of whistleblowers. In addition, the NACP filed 4 applications for joining cases in which proceedings were opened on the claims of whistleblowers, which were granted. However, there is a lack of information on those cases in which it was not possible to achieve a positive result for whistleblowers, with appropriate reasons for this.

Neither have there been shifts relating to the physical safety of whistleblowers outside criminal proceedings. In particular, no relevant changes have been adopted that would ensure the protection of such people and their family members and comply with international standards. In the future, legislative immunity should also be extended to those who assisted the whistleblower in the course of communication, etc. It will also be necessary to consider the possibility of obtaining the right to medical care. It is worth noting that the provision of psychological assistance already provided for in the law remains declarative due to the lack of appropriate procedures. Whistleblowers who report information containing state secret need a higher level of protection.

The question of extending legislative guarantees to whistleblowers of socially necessary information remains open, since Ukraine still has no broad definition of the “whistleblower” concept. It is critical to focus not only on protecting whistleblowers of corruption, but also of other areas: violations of human rights, ecology, food and transport safety, etc. This will be consistent with the EU Directive on the protection of information whistleblowers and leading international experience.

Among the positive aspects, it is worth noting that the National Agency continued conducting educational and explanatory activities about the institution of whistleblowers. For example, in 2021, the NACP developed a guide on cooperation with whistleblowers for authorized departments on prevention and detection of corruption working in government bodies, and also released an educational series “Whistleblower in Law” and an online course “Influence — expose.”

The National Agency also quite broadly provided explanations on the protection of the rights of whistleblowers. However, not all issues were discussed with a wide range of stakeholders.

Thus, the legislation on the protection of whistleblowers has not yet been fully implemented. To correct this situation, the following recommendations are to be considered:

• to launch a Unified Portal of Whistleblower Reports and ensure its proper functioning;
• to continue training and dissemination of information, explanatory, and training materials;
• to ensure the discussion of debatable issues of application of the legislation on the protection of whistleblowers with all stakeholders, consider the results of such discussions when preparing clarifications and recommendations of the NACP on relevant issues;
• to conduct educational work on ways to report corruption, guarantees of protection of whistleblowers and ways to implement them;
• to ensure proper communication of successful examples of protection of the whistleblowers’ rights and cases of bringing persons to justice because of whistleblowers’ reports.

In addition, judicial and law enforcement agencies need to be reformed to properly protect whistleblowers. Therefore, if all competent institutions and individuals strengthen their capabilities, the institution of whistleblowers will function better.