On December 18, draft law No.10242 was on the agenda, and the day before, the Committee on Law Enforcement had once again “resurrected” it. This time, it was allegedly done for the adoption of arrangements on the “Lozovyi’s amendments” agreed upon with international partners. However, this draft law again fails to meet either the objectives stated from the beginning, or the purpose for which it is returned to the parliament. 

If last time, the provisions on the restoration of property confiscation when concluding an agreement within corruption offenses were added to the draft law, then now, as “balancing” norms to the remaining provisions against whistleblowers and journalists, which we have already criticized, MPs propose to add norms to correct the “Lozovyi’s amendments” and improve the mandate of the SAPO on international legal assistance. 

However, these changes will still have a negative impact on the situation, and here’s why. 

1. The new “exception” that the unauthorized sale or distribution by the whistleblower of information with restricted access through the mechanism of the Law on Prevention of Corruption does not entail criminal liability, in fact, will not release the whistleblowers from imprisonment. In addition, such a change does not cover state secrets, as well as journalists. In practice, most of the information provided to journalists from closed registers (obtaining a passport of a foreign state, data on crossing the border, etc.) is not corruption, and the legislation protects only whistleblowers of corruption, and not whistleblowers of socially necessary information. Moreover, there is a narrowed interpretation by the NACP of the occurrence of the whistleblower’s status not from the moment of the report, as provided for in the law, but from the moment of its registration in the Unified Register of Pre-Trial Investigations or Unified Reporting Portal.
2. Enhancing the liability for illegal copying of information from closed registers up to 8 years in prison legalizes surveillance over whistleblowers and journalists. For the investigator to register the proceedings under the relevant Article 362 of the Criminal Code and start covert investigative (search) actions in accordance with the CPC, it will be enough to assume that the certain data disclosed in the investigation are part of the copied larger array. Such a disproportionate sanction, which turns this offense into a grave one, will have a strong “cooling effect” on future disclosures and investigations and will not solve the problem of selling closed data from registers by dishonest law enforcement officers, etc.

3. MPs want to increase the workload on the court by giving it additional powers to consider motions on the prosecutor’s obligation to complete the pre-trial investigation. To consider such motions, investigating judges will need to conduct full-fledged court hearings, study materials on the terms and their extension. This will create an additional burden, especially on the HACC, which is already overloaded with complex corruption cases. And neither this draft law nor the current legislation provides for appeals against such decisions. At the same time, such a mechanism partially duplicates the existing procedure for appealing against non-compliance with reasonable time limits under Article 308 of the CPC of Ukraine.
4. The proposed legislative provisions will not improve the powers of the SAPO in terms of international legal assistance. Although the draft law tries to give the SAPO head the authority to extradite and establish joint investigation teams, the amendments to the CPC of Ukraine are not enough. Amendments are also needed to the laws on the ratification of international treaties, which define the responsible authorities for communicating with foreign partners. Without this, foreign bodies may not recognize the legality of requests from the SAPO, as it was previously the case with the NABU.

That is why Transparency International Ukraine is still convinced that the lawmakers’ renewed attention to draft law 10242 is unjustified and undoubtedly harmful. Voting for it will not give the SAPO effective powers on extradition, but will undermine the institution of whistleblowers, the functioning of freedom of speech, and the work of journalists (including the protection of sources) in a democratic society. 

On December 4, the Verkhovna Rada failed to adopt draft law No.10242, but sent it for the second reading. We are convinced that instead of rectifying the shortcomings in the legislation, draft law No.10242 causes additional risks for the confiscation of property of corrupt officials, access to information, and protection of whistleblowers. Transparency International Ukraine calls on MPs not to consider this draft law!

On November 28, a proposal to restore the possibility of confiscating property as a punishment if a person concluded a plea agreement was added to draft law No.10242, aimed at establishing criminal liability for unauthorized interference, sale, or distribution of information processed in public electronic registers. This need arose after the Law on Deprivation of State Awards for Popularization or Propaganda of an Aggressor State came into force on November 21, which mistakenly excluded this possibility from Article 77 of the Criminal Code of Ukraine. 

We are convinced that the renewed attention to this draft law No.10242 is unjustified and even harmful because the current version causes risks in two important aspects.

1. The improvement of the mechanisms of confiscation under agreements proposed by the draft law is incomplete. The prescribed provisions do not change the basic approach to confiscation of property as a punishment, and in general, the wording of these provisions is ambiguous and may further cause additional inaccuracies in the interpretation by judges. 

This mechanism will not ensure the confiscation of all criminal assets of a person because the confiscation of property as a punishment will be applied only to the property of the convicted person. In addition, it is more appropriate to provide for the possibility of applying confiscation not only in cases where it is expressly provided for in the sanction of the article. We are convinced that to rectify the situation, more attention should be paid to special forfeiture. After the adoption of this draft law, MPs will not be able to achieve the main goal for which it was reintroduced.

2. The draft law contradicts the existing guarantees for the protection of whistleblowers and might undermine this tool, as well as the protection of the right of journalists not to disclose their sources of information. According to the proposed provisions, the dissemination of confidential information from state registers, as well as the use of such data in the preparation of journalistic materials, will become grave crimes. Accordingly, they will provide opportunities for law enforcement officers to legally monitor journalists and whistleblowers and initiate criminal cases against them.

This causes issues in ensuring freedom of speech, since most of the journalists’ investigations rely on evidence from whistleblower sources who have access to non-public databases. We are convinced that MPs should not enhance the punishment, but, on the contrary, provide for an exemption from liability for whistleblowers of socially necessary information, including state secrets, under Articles 361, 361-2, 328 of the Criminal Code.

Thus, even when reconsidered in the session hall, draft law No.10242 may become a very unsuccessful attempt by MPs to correct their mistakes, and instead cause a number of equally critical shortcomings. Currently, two more draft laws have been registered in the Verkhovna Rada, proposing to solve this unfortunate mistake. In particular, draft law No.12269 developed by Anastasia Radina and others is better in terms of restoring the possibility of confiscating the property of corrupt officials, although it needs to be finalized as well. 

Transparency International Ukraine calls on MPs not to focus on risky legislative norms, but to pay attention to the mechanisms of special forfeiture of assets, as we recommended earlier, and provide for an exemption from liability for whistleblowers of socially necessary information.

Why is the institution of corruption whistleblowers not yet fully operational? ACREC experts offer their answers and recommendations. 

Last week, the Anti-Corruption Research and Education Centre of the National University of Kyiv-Mohyla Academy presented a fresh study with key recommendations for restarting the work of the NACP in the field of whistleblower protection. What’s important, these tips follow the comments previously provided by Transparency International Ukraine experts. 

ACREC analysts suggest that the new NACP leadership reconsider its approach in particular to the Agency’s interpretation of whistleblower protection legislation, for example, in terms of avoiding the narrowing of the definition of a whistleblower. The researchers also drew attention to the factors posing a threat to the anonymity, security, and efficiency of the Unified Whistleblower Reporting Portal.  

The experts stated that the Portal only partially complied with the Guidelines on the processing of personal data within the framework of the procedure for reporting violations in the European Union. There is a separate lack of visualization for the user that the Unified Portal is an internal and not a regular channel for reporting possible facts of corruption or corruption-related offenses.  

In the future, the NACP needs to conduct a comprehensive communication campaign to popularize the Portal among potential whistleblowers and inform anti-corruption commissioners about its capabilities. 

“The policy brief from our ACREC partners is actually a roadmap of measures that the NACP can take to enhance the protection of corruption whistleblowers. They include not only training on the use of the Unified Reporting Portal, but also improving it and the relevant explanations of the NACP. The Agency’s work with whistleblowers is important and requires attention,” said Oleksandr Kalitenko, legal advisor at TI Ukraine. 

Transparency International Ukraine experts are convinced that the Agency’s continued inaction may lead to an increase in the number of cases of violating the whistleblowers’ rights, and in general, such a state of affairs may undermine public confidence in the work of the whistleblowing institution. Therefore, we hope that Viktor Pavlushchyk, the new Head of the NACP, will pay attention to this before connecting the new public authorities to the Portal.

Today, everyone can talk about corruption, but not everyone dares to act on it. Some succumb to stereotypes and consider themselves “snitches” or “informers,” others do not find guarantees that would ensure full protection of their rights. Oleksandr Kalitenko, legal advisor to TI Ukraine, told what the meaning of the term “whistleblower” is, how the law protects their rights, why it is possible to expose not only corruption, and much more in the first series of the special project #Whistleblowers by “Rubryka.”

Photo by Mykola Tymchenko, Rubryka

In international and the Ukrainian law, the concepts of “whistleblowers” are different. According to the international concept, it is a person who provides information that is detrimental to the public interest, such as traffic safety violations. In Ukraine, it is limited to corruption, i.e., the whistleblower is only the person who informs about possible facts of corruption or corruption-related offenses.

Anyone can be a whistleblower: both a water utility worker who reports untreated tap water and a waiter who reports stale fish that can result in the poisoning of visitors. However, only with guaranteed protection do people dare to testify.

Therefore, it is important to build the foundation of the institution of whistleblower, and this is precisely the broad definition. It is also crucial to disseminate it to all citizens in accordance with the best international standards and practices. And this is not only about corruption, but also about other socially important things.

Photo by Mykola Tymchenko, Rubryka

Recent opinion polls suggest that the share of ordinary citizens who feel responsible for fighting corruption is declining. Much more responsibility lies with the President, the Verkhovna Rada, the Cabinet of Ministers, anti-corruption bodies, and so on. And this is what we need to work on, including the formation of zero tolerance for corruption.

We have long been waiting for changes in the legislation that would improve the security not only of those who expose high-profile corruption, but also at a lower level. It concerns administrative offenses, for example. Another point is that whistleblowers who report a state secret need much more protection than they currently have. A person who discloses such sensitive information as a state secret in the interests of society must be sure that they will receive the necessary protection. We currently have gaps in this regard.

The full interview with Oleksandr, as well as the opinion of Andrii Biletskyi, administrative director of the ACREC Anti-Corruption Research and Education Centre, can be read at the link.

Let us remind you that the law on the protection of whistleblowers has been in force in Ukraine since January 1, 2020. This year, we celebrated the second anniversary of its entry into force and dwelled on what changed and what did not.

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.

This was done by the Shevchenko District Court of Kyiv. The court also decided to recover from the employer the lost salary for forced absenteeism.

We have repeatedly written about this case and called for justice in the case of this whistleblower, as well as for the regulation of legislation for the healthy protection of all whistleblowers.

Oleh Polishchuk worked for almost seven years as the director for preventing and counteracting corruption at SE “NNEGC “Energoatom.” During this time, he created and ensured the work of an effective anti-corruption compliance service. Thanks to this, the company has become a leader in transparency among Ukrainian SOEs.

In 2020, Oleh Polishchuk reported corruption at “Energoatom.” On the same day, the acting president of “Energoatom,” Petro Kotin, whom the report concerned, suspended Polishchuk and initiated an internal investigation. Subsequently, Polishchuk was also dismissed, and then added to the Register of Corrupt Officials.

Neither the intervention of the NACP, nor the provisions of the law on protection of whistleblowers helped to resolve the situation.

Finally, after half a year in search of a solution, Oleh Polishchuk has legal grounds to return to work and work at the enterprise where such a situation was arranged. He will continue ensuring the elimination of corruption to prove that a state-owned enterprise can be transparent and accountable.

Opinion: Anna Myers, Executive Director of the Whistleblowing International Network (WIN) and Tom Devine, Legal Director of the Government Accountability Project in Washington DC, and a Trustee of WIN.

In January 2020, Ukraine enacted landmark anti-corruption legislation including whistleblower protections unsurpassed for compliance with international best practices principles. Now Parliament has enacted amendments to Draft Law #3450 which, if signed into law, will cause Ukraine to plummet from a global role model for whistleblower protection legislation to a global embarrassment. 

Until a few weeks ago, Ukraine’s 2019 whistleblower protections set the pace globally both for fighting corruption and for freedom of speech. Then a Member of Parliament, Serhii Vlasenko, abruptly slipped poison pill amendments into Draft Law #3450 that will transform the landmark reform into the world’s crudest trap for whistleblowers – exposing and rendering them defenseless against retaliation. Any self-respecting whistleblower rights group would be duty-bound to warn anyone trying to exercise their responsibility to report corruption that doing so under these newly written conditions would be an act of professional suicide.

Draft Law #3450 started as a highly commendable effort by establishing the legal foundation for the National Agency for Corruption Prevention (NACP), to create and administer an anonymous, secure unified government-wide Whistleblower Reporting Channel (or “portal”). The portal would make it easier and safer for whistleblowers to report corruption, and reduce the risks of unauthorized access to their messages.

MP Vlasenko justified his amendments as separating “snitches” from whistleblowers. Ironically, they will force whistleblowers to be snitches to retain their rights. For all practical purposes, whistleblowers would lose all protection unless they go behind their employer’s back to the government and expose the colleagues who assisted them.

What are the devilish details behind this deception? The law does not weaken rights to public dissent, but 96% of whistleblowers first raise their concerns within the organization where they work. They do so as part of their job duties and through internal institutional checks and balances when necessary. Therein lies the Achilles heel. By the time whistleblowers go public they will already be legally defenseless against dismissal, because the amendments create a gauntlet for internal reports that is virtually impossible to survive.

First, the employee must have “conclusive knowledge” of corruption-related guilt.  The European Union’s new Directive to protect whistleblowers and consensus global standards only require a reasonable belief that the information is true. This is because whistleblowers are witnesses, not substitutes for prosecutors or courts. These amendments would require them to have much more evidence just to be eligible for any protection when reporting concerns than prosecutors need to put someone in jail.

Second, employees can only make protected reports to the organizational chief. This cancels rights for every other normal route to communicate concerns within an organization, such as to supervisors, auditors and compliance officers. If the top boss is not available, there is nowhere to turn with rights.

Even reporting to the organizational chief is not safe, however, unless the employee can prove ”conclusive knowledge” the boss is innocent of involvement with the corruption. How can an employee ever have that degree of knowledge?

The bottom line? There is no safe outlet for employees to blow the whistle where they work. They only can keep their rights by going behind their employer’s back and reporting directly to the government. In other words, if you are not a snitch, you lose your rights and are legally defenseless.

It gets even worse after going to the government. To retain rights, they must reveal their sources, including all who helped them gather evidence. Again, they will have to be snitches.  The inevitable result would be isolating whistleblowers by making them a real threat to all who assist in challenging corruption but do not want to be revealed.

This is a double-barreled attack both on protection and the effective reporting of corruption. As the first principle for whistleblower rights, solidarity is essential both for survival and for a report with the necessary evidence to make a difference. It takes a whole team to blow the whistle responsibly. If the law only protects the final messenger of the report and exposes the supporting team, it will be a powerful weapon against its own stated purposes.

These amendments defy the EU Directive’s genuine rights, which 27 EU Member States nations must adopt this year and is a criterion to approve new Members. They cannot coexist with the Council of Europe’s Committee of Ministers 2014 Recommendation the protection of whistleblowing, which Ukraine is subject along with 46 other countries in Europe. That is why the Whistleblowing International Network (WIN), with the backing of 40 whistleblower support, transparency and good government NGOs, urged President Zelensky to veto Draft Law #3450 and send it back to Ukraine’s Verkhovna Rada (Parliament) to remove the poison pill amendments while keeping the much-needed whistleblower reporting channel.

The integrity of Ukraine’s anti-corruption commitment is in President Zelensky’s hands. Unless he vetoes this outrage and sends it back to the Parliament to fix, so-called whistleblower rights will be dangerous, and Ukraine will defy the European Union’s mandate to fight corruption through freedom of speech. Whistleblowers are indeed the true Servants of the People.

If the president does not veto the adopted law “against whistleblowers,” there will be no one in Ukraine to expose corruption.

This conclusion was reached by civil society and international experts during the briefing The Law AGAINST Whistleblowers: Why the President Must Veto It?”  which took place on February 18 in the Ukrainian Crisis Media Center.

 

On February 4, the Parliament passed draft law 3450 on the protection of whistleblowers. Despite a number of positive changes, the approved provisions contain extremely critical dangers for whistleblowers and may undermine Ukrainians’ willingness to report corruption in general.

Now, a whistleblower must “know with certainty” the facts of corruption, be able to prove them and is obliged to disclose their sources. He or she must also know “with certainty” that the manager to whom corruption is reported is not involved in the offense himself/herself. In addition, MPs questioned the possibility for whistleblowers to use anonymous communication channels.

“Being a whistleblower in Ukraine is very difficult, and, unfortunately, Ukrainian parliamentarians have only worsened this situation,” said Oleksandr Kalitenko, TI Ukraine’s legal adviser. “So now our main goal is to do everything possible to ensure that the adopted negative changes do not come into force, and the institution of whistleblowers continues to develop in order to effectively fight corruption in Ukraine. This law must be vetoed and sent to the parliament for revision.”

We remind you that a number of public organizations have already called on the President to veto this law and return it for review with corresponding proposals. This call is also supported by the international community, as indicated by the letter to Zelenskyy from the Whistleblowing International Network (WIN) and a number of MEPs.

On February 16, the Whistleblowing International Network (WIN) asked President Volodymyr Zelenskyy to veto the law on whistleblowers passed on February 4.

WIN prepared a letter to the Office of the President, and Transparency International Ukraine joined the list of signatories.

In its address, WIN Board of Trustees reminds the leadership of Ukraine of the provisions of the Anti-Corruption Strategy, which, in particular, include a clause on the proper protection of whistleblowers. Like most civil society organizations in Ukraine, WIN believes that the proposed bill undermines the effective protection of whistleblowers.

WIN reminds that Ukraine has concluded an Association Agreement with the European Union and included the Euro-Atlantic integration as a value in its Constitution However, the proposed legal framework does not comply with the EU Directive on the protection of persons reporting breaches of Union law or basic tenets of international best practices principles for whistleblowing protection.

The specific concerns of the Network are as follows:

• Prohibitive conditions for protected disclosure;
• Removal of internal reporting channels;
• Requirement to reveal confidential sources.

Read more in the document.

On January 1, 2020, amendments that strengthen the protection of whistleblowers came into effect.

Therefore, for a year now, the state has guaranteed whistleblowers confidentiality and anonymity, the safety of the whistleblower and their relatives, free legal and psychological aid, reimbursement of attorney’s fees, the right to the remuneration of 10% in certain circumstances, and non-discrimination.

However, this year, unfortunately, the infamous decision of the CCU deprived the National Agency for the Prevention of Corruption of some powers in the field of whistleblowers, which negatively affected the level of their protection. And this year, there is not much information about all the success stories of protected whistleblowers.

The NAPC website states that the Agency supports 70 court cases related to the protection of whistleblowers’ rights, and 15 of them have been won.

How exactly? What does “have been won” mean? There are few answers in the public space yet. However, we hope that the NAPC will address this issue in more detail. For example, in its report for 2020. After all, real court decisions will help to create new successful cases of exposing corruption and will allow potential whistleblowers to believe that their actions will not be in vain.

TI Ukraine continues to insist on the need to introduce a broad definition of “whistleblower” as set out in the Anti-Corruption Strategy (Draft law 4135) and to create a single whistleblower reporting portal (Draft law 3450). Both of these draft laws have not yet been approved by the Verkhovna Rada.

We hope that next New Year we will have had the working portal of whistleblower messages, and the legislative framework for the protection of such brave individuals will be strengthened even more. After all, we must use all tools in the fight against corruption, and who can help us more than the people themselves?