Protection of Whistleblowers’ Rights in Corruption Cases
The Advocate Bureau of Olena Busol protects the rights of whistleblowers, including protection against dismissal or disciplinary measures
A corruption whistleblower is a person who assists in preventing and combating corruption — a person who, where there is a reasonable belief that the information is reliable, reports a violation of the requirements of the Law of Ukraine “On Prevention of Corruption” by another person, according to part one of Article 53 of the Law of Ukraine “On Prevention of Corruption.” The persons subject to the Law of Ukraine “On Prevention of Corruption” are defined in Article 3 of that Law.
At the same time, it should be taken into account that officials and officers of state authorities, authorities of the Autonomous Republic of Crimea, officials of local self-government bodies, legal entities under public law, and their structural units, if they detect a corruption or corruption-related offense or receive information about the commission of such an offense by employees of the relevant state authorities, authorities of the Autonomous Republic of Crimea, local self-government bodies, legal entities under public law, or their structural units, are obliged, within the scope of their powers, to take measures to stop such an offense and immediately notify in writing a specially authorized anti-corruption body of its commission, according to part seven of Article 53 of the Law of Ukraine “On Prevention of Corruption.”
Thus, a whistleblower is a person who, first, has become aware of a violation of the requirements of the Law of Ukraine “On Prevention of Corruption” by a person subject to that Law; second, has a reasonable belief that the information about the violation is reliable; and third, reports that violation.
It should be remembered that a person is considered a whistleblower under the conditions set out in part one of Article 53 of the Law of Ukraine “On Prevention of Corruption.” At the same time, this article contains no exceptions regarding the classification of any persons as whistleblowers.
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Term for Which a Person Receives Whistleblower Status
Article 53 of the Law of Ukraine “On Prevention of Corruption” does not define the term for which a person receives whistleblower status. Therefore, the protection guarantees provided for in parts two and three of Article 53 of the Law of Ukraine “On Prevention of Corruption” apply to a whistleblower in connection with their report of a violation of the requirements of that Law by another person, regardless of the date of such report.
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Right to Protection if the Facts Stated in the Whistleblower’s Report Are Refuted
Part one of Article 53 of the Law of Ukraine “On Prevention of Corruption” does not make confirmation of the information stated in a person’s report about a violation of the requirements of that Law by another person a condition for recognizing that person as a whistleblower. Therefore, if the facts stated in the whistleblower’s report are refuted, the person does not lose the right to protection provided for in parts two and three of Article 53 of the Law of Ukraine “On Prevention of Corruption.”
Mechanism for confirming to the head of an authority that an employee of that authority has become a whistleblower and is covered by the guarantees provided for in part three of Article 53 of the Law of Ukraine “On Prevention of Corruption”
A person is classified by the Law of Ukraine “On Prevention of Corruption” as a whistleblower if they report a violation of the requirements of that Law by another person, provided that they have a reasonable belief that the information is reliable. At the same time, the Law of Ukraine “On Prevention of Corruption” contains no additional condition requiring confirmation of the fact of reporting a violation of the requirements of that Law by another person.
Conditions for Granting Whistleblower Status
According to part one of Article 53 of the Law of Ukraine “On Prevention of Corruption,” a person who assists in preventing and combating corruption, namely a whistleblower, is a person who, where there is a reasonable belief that the information is reliable, reports a violation of the requirements of that Law by another person. Thus, a person is a whistleblower under the conditions set out in part one of Article 53 of the Law of Ukraine “On Prevention of Corruption.” At the same time, this article contains no exceptions regarding the classification of any persons as whistleblowers.
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Measures for Protecting a Whistleblower
Measures that should be taken to ensure the life, housing, health, property, and labor rights of a whistleblower include:
- where there is a threat to the whistleblower’s life, housing, health, or property — contacting law enforcement agencies;
- for the protection of the whistleblower’s labor rights:
- informing the head or employer about statutory guarantees for the protection of whistleblowers;
- warning the head or employer of the need to comply with the requirements of the first paragraph of part three of Article 53 of the Law of Ukraine “On Prevention of Corruption”;
- informing the whistleblower of the possibility of applying to the relevant court.
Costs Related to the Protection of a Whistleblower
According to paragraph 13 of part one of Article 11 of the Law of Ukraine “On Prevention of Corruption,” the powers of the National Agency on Corruption Prevention include taking measures for the legal and other protection of persons who, in good faith, report possible facts of corruption or corruption-related offenses or other violations of that Law, namely whistleblowers, and bringing to liability persons guilty of violating their rights in connection with such reporting.
According to part two of Article 53 of the Law of Ukraine “On Prevention of Corruption,” where there is a threat to the life, housing, health, or property of persons who assist in preventing and combating corruption, or to their close persons, in connection with a report made about a violation of the requirements of that Law, law enforcement agencies may apply legal, organizational, technical, and other measures aimed at protecting such persons from unlawful encroachments, as provided for by the Law of Ukraine “On Ensuring the Safety of Persons Participating in Criminal Proceedings.”
Therefore, costs related to the protection of a whistleblower are not incurred, since the implementation of such measures falls within the competence of the relevant authorities. It should also be taken into account that, under part two of Article 8 of the Law of Ukraine “On Court Fee,” a court may exempt a person from paying the court fee where the subject matter of the claim concerns the protection of social, labor, family, or housing rights, or compensation for harm to health.
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Preventing Negative Measures of Influence by a Manager or Employer
According to the first paragraph of part three of Article 53 of the Law of Ukraine “On Prevention of Corruption,” a person or their family member may not be dismissed or forced to resign, subjected to disciplinary liability, or exposed by a manager or employer to other negative measures of influence, such as transfer, appraisal, changes in working conditions, refusal of appointment to a higher position, salary reduction, and similar measures, or to the threat of such measures, in connection with that person’s report of a violation of the requirements of that Law by another person. Thus, a person may not be subjected by a manager or employer to the above-mentioned negative measures of influence or the threat of their application solely in connection with the report made, namely where there is a causal link between the report and the negative measures of influence or the threat of their application.
