Let me remind you that the relevant law came into force just on the first day of the new year 2020, and since then, new challenges have awaited whistleblowers and their defenders, including among the public.
So, with what will we mark the fourth year of the whistleblower protection laws in Ukraine with? Let’s try to find it out at different levels.
In 2022, Ukraine became a candidate country for the European Union, which means that in the future, we will need to implement European legislation. One of these acts is the landmark Directive 2019/1937 on the protection of persons who report violations of the law of the European Union.
On December 17, 2022, a year passed since the deadline for the implementation of this Directive in the legislation of EU member states. Before the adoption of this document, the legislation on whistleblowers contained many gaps and the update had to change the situation.
The directive stated that there could be no recourse against the existing national legislation at the time of its adoption. Thus, EU governments were not limited by the Directive’s progressive standards and could go even further by offering even better whistleblower protection mechanisms.
However, at the time of last year’s deadline, only five EU countries had adopted the necessary legislation (Denmark, Sweden, Lithuania, Malta, Portugal).
It is a pity, however, according to the estimate of Transparency International and Whistleblowing International Network, only eight countries (Finland, Latvia, Ireland, France, Croatia, Romania, Greece, Cyprus) joined them in 2022. So, it turns out that, despite all the commitments, less than half of the EU countries — 13 out of 27 — have implemented the Directive in the year after the deadline from when it was supposed to be implemented.
The other 13 countries are currently at the stage of draft laws (sometimes — regressive ones). And one EU country — Hungary — has not even started the process of implementing the Directive into its national legislation.
Interestingly, the European Commission launched procedures to respond to violations against such EU member states back in January 2022.
By September 2022, the Commission had sent formal requests to countries that had not completed the implementation of the Directive, with a two-month deadline for a response. If their answers are unsatisfactory, the Commission may decide to refer these cases to the Court of Justice of the EU, which may already lead to the imposition of relevant fines on these countries.
Ukraine is not yet a member of the EU and, accordingly, is not obliged to implement mechanisms for processing whistleblower reports on violations of EU law. However, in the future, we will have to do it. And it will be important to prevent those mistakes and the repetition of negative experience in the implementation of the above-mentioned Directive.
What was happening in Ukraine?
Recently, the National Agency on Corruption Prevention has presented the final draft of the State Anti-Corruption Program for the implementation of the Anti-Corruption Strategy, which, according to the legislation, should be adopted in January 2023.
Some measures envisaged by the program are undoubtedly worthy of approval — for example, the development in August-October 2023 of a draft law that is designed to bring our legislation in line with international standards for the protection of whistleblowers.
This, by the way, will also apply to the points that the public has emphasized since the adoption of the specialized law — the introduction of a broad definition of the concept of “whistleblower” (so that whistleblowers of human rights, ecology, food safety and household items, public interests, etc. are subject to protection) and the extension of guarantees of whistleblower protection to persons who contributed to the implementation of the report.
Moreover, as a positive example, we can mention the planned introduction of a system of psychological assistance to whistleblowers in January-March 2024.
Today, the psychological assistance provided by law to whistleblowers is rather a declarative provision. It is needless to explain how much pressure individuals who want to tell the truth about abuse are subjected to.
In addition, the Program provides for the commissioning of the Unified Portal of Whistleblower Reports. The law on this was adopted back in summer 2021, and according to the plan in the Program, this portal should start functioning in January-February 2023, which is definitely a better option compared to the first published version of the draft program, which postponed the launch of the portal until the beginning of 2024.
However, the first draft of the program was somewhat better than the one sent to the Cabinet of Ministers. Thus, for reasons that are not obvious, a number of very positive provisions were removed from the draft State Anti-Corruption Program. Among them, for example, is the introduction of the Strategy for the development of whistleblowing and the protection of whistleblowers in Ukraine. Some indicators have also been changed, and, unfortunately, not in all cases has it made them clearer to understand or more ambitious.
But the most important flaws in the text sent for approval by the government was that it partially did not consider the proposals that had been put forward and supported by the public during public discussions.
Thus, the idea of introducing mandatory mediation of the whistleblower between them and the employer before dismissal was not considered.
It would also be necessary to distinguish between the pre-trial and judicial procedure for resolving disputes between the whistleblower and the employer, so that the NACP no longer conducts an inspection if the whistleblower goes to court. This would make it possible to better optimize the use of limited resources of the NACP in the absence of territorial bodies of the agency.
It would also be necessary to consider the possibility of obtaining the right to medical care for the whistleblower. Another positive aspect of the state program would be the fact that the consideration of whistleblower cases should be carried out only by judges prepared for this (with the appropriate certificate).
Thus, as we can see, so far, most of the problems raised in the last year’s analysis of changes regarding whistleblowers in the law “On Prevention of Corruption” by Transparency International Ukraine have not yet been solved in practice. Although the State Anti-Corruption Program has answers to some of them, we need to continue moving towards the implementation of best international practices.