On May 8, 2020, a group of MPs registered draft law No. 3450 on amendments to certain legislative acts of Ukraine concerning the regulation of certain issues of protection of whistleblowers.
This draft law stipulates amendments to the Civil Procedural Code, the Code of Administrative Justice, and the Law of Ukraine “On Corruption Prevention.” The designated committee is the Committee on Anti-Corruption Policy.
What Is It Like Now?
National and local authorities, legal entities subject to public law, etc. are obliged to create protected anonymous channels for whistleblower reports independently. The requirements for the protection of communication channels are determined by the Agency for Corruption Prevention. Legal protection of whistleblowers in the field can be assigned to both representatives of the NACP and free legal aid attorneys.
What Is Proposed?
Create a Unified Portal of Whistleblower Reports and assign the NACP as responsible for its administration. According to the explanatory note, the portal will provide:
- high standards of protection of information received from whistleblowers;
- unified approach to message processing;
- reduced risks of unsanctioned access to whistleblower reports;
- significant savings in the national budget. According to the authors’ approximate calculations, the cost of deploying a system for collecting, analyzing and storing whistleblower reports in each entity (there are more than 80 ministries and other central bodies of executive power today) is UAH 2 to 5 million. Creation of a single portal, on the other hand, may not even exceed the maximum indicated amount.
These are positive innovations. A single portal will truly be more convenient for a whistleblower, who will not have to wait for the creation of adequately protected channels in the respective agency.
Developing separate systems will require not only the allocation of significant extra funds in the time of COVID-19, but also profound competence of all developers. This will be quite difficult for local authorities, for one.
The draft law stipulates that the portal will also guarantee the whistleblowers access to information on the condition and results of consideration of their reports. The phrasing of the draft law is not clear considering the provisions of the Criminal Procedural Code. It may be unclear to the whistleblower how much information they should be able to access. The scope is determined by the prosecutor or the investigator. However, TI Ukraine has reiterated multiple times that there should be a mechanism of the whistleblower’s personal account enabling them to follow the investigation.
At the same time, it is still unclear whether this portal will be used only for reports of corruption, or for reports on the whistleblower’s rights being violated as well. In this case, there should be different data processing procedures. Perhaps, the “personal account” mechanism will be included in the Procedure for Unified Portal of Whistleblower Reports, developed by the NACP.
There are other positive aspects. In particular, the draft law proposes a clearer definition of regular communication channels and expansion of internal channels. The document also improves the procedure for inspection based on whistleblower reports.
However, there are provisions in the current law that are more favorable to the whistleblower than the draft law No. 3450 proposes.
The document suggests adding a separate provision under which a whistleblower report should be subject to consideration instead of being recognized as a “citizen appeal”: the information provided should concern a specific person.
Such a change exposes the whistleblower to the risk of receiving a claim for the protection of honor, dignity and business standing of the persons who are being reported. That is especially true if the whistleblower uses external channels for reporting, such as journalists and media.
The whistleblower may not always have enough expertise to identify the person correctly. Some schemes may be multi-layered and complex, making it difficult to establish a clear culprit. This is rather a job for pre-trial investigation agencies with various investigation methods. The whistleblower may also make a mistake in good faith and report an innocent person.
Moreover, this approach will allow opponents of whistleblower protection to talk about building a culture of “snitching”.
It is still more risky to talk about a specific culprit: if a specific person is indicated, this information can be used to identify the whistleblower, especially in times of numerous database leaks. Therefore, it is important to further consider stricter penalties for leaking information about whistleblowers.
The draft law suggests that authorities should not be obliged to submit reports to the competent authority if the whistleblower applied to the wrong jurisdiction.
It also proposes to provide legal protection for whistleblowers only by lawyers of the free legal aid system. The reasons indicated in the explanatory note include the following:
- NACP employees are not lawyers;
- the corresponding structural division of the NACP consists of only 17 people;
- the NACP does not have territorial divisions, while the free legal aid system is available in all regions of Ukraine;
- The NACP, unlike free legal aid, has the authority to check compliance with the law on the protection of whistleblowers, with mandatory orders and fines, which creates a conflict of interest and violates the principle of equality of parties in court.
While the point about the lack of resources in the NACP is certainly valid, it seems strange not to engage the NACP as a third party anymore.
Despite the proposal to remove these provisions from the procedural codes, the court may still engage an unlimited number of individuals or entities (including The NACP) as third parties without independent claims. For instance, under Article 49, part 2 of the Code of Administrative Justice: “If the administrative court (…) establishes that the judicial decision may impact the rights or obligations of individuals who are not parties to the case, the court engages such individuals to the hearing as third parties without independent claims concerning the subject of the hearing.”
Such involvement is logical, since the NACP has corresponding responsibilities for the whistleblowers. Moreover, the procedural status of such third parties (the right to review the case materials, present evidence, ask questions, give explanations to the court, and so on) cannot have such a negative impact on the process. Whistleblowers already have a hard time in court, often feeling defenseless. Setting a limit on the NACP involvement looks questionable at best.
Unfortunately, public experts were not involved in the development of the draft law. Despite the importance of certain included initiatives, the document needs to be improved.
It is also a shame that the new draft law on the whistleblowers does not introduce the so-called “broad” definition of the whistleblower, does not ensure protection after reporting something that constitutes state secret, does not establish the link between the remuneration and the amount received by the national budget, etc.
- to avoid the approach when a whistleblower report can only be considered when it concerns a specific individual;
- to reinforce penalties for leaking information about whistleblowers;
- to retain provisions on engagement of the NACP in a court hearing as a third party;
- to establish the procedure of transferring the whistleblower report from an incompetent agency to a competent one with the notification of a whistleblower, instead of stopping the consideration.
The analysis has been prepared by TI Ukraine’s legal advisor Oleksandr Kalitenko.