Whistleblowing
and the
Right to Freedom of Expression and Information
under
the European Human Rights System
Prof. dr. Dir...
Whistleblowing
Letteralmente :
soffiare il fischietto
Lanceur d’alerte
Klokkenluider (“bell ringer”)
What is a whistleblow...
Definition
A person who exposes misconduct, or fraud, corruption,
mismanagement of alleged dishonest or illegal activity
w...
Risks
Harassment, retaliation
Disciplinary punishment
Dismissal
Criminal prosecution / conviction / emprisonment
Blacklist...
Bradley (Chelsea) Manning
Leaked military info US + video Iraq
35 year imprisonment
Request for presidential pardon
Large ...
Edward Snowden
NSA contractor
Global breach of privacy
US surveillance over digital communication
Asylum Russia
2013 Whist...
Other (famous) examples of
whistleblowers?
- Negligence
- Misuse
- Abuse of power
- Fraude
- Corruption
- Criminal acts
- ...
“Deep throat” – Watergate
Informant for Bob Woodward and Carl Bernstein of
Washington Post, 1972
Mark Felt, FBI (2005)
Ale...
Jeffrey Wiggand (1995)
Revealed that tobacco industrie had worked on
optimising addiction, being aware how lethal
cigarett...
Peter Wright (MI5, UK)
Spycatcher (1985)
Book published in Australia
Injunction, ban, gag orders in UK
ECtHR : UK breached...
Developments :
global vs national
online environment
platforms for whistleblowing
- extra exposure
- encouragement for lea...
Also journalists, mediaplatforms, NGO’s… involved
Kostas Vaxevanis
Greece, Lagarde-list (prosecuted, not convicted)
Julian...
Why whistleblowers (WB’s) are
persecuted, harassed, hunted,
imprisoned, dismissed … ?
Task : list up possible offences
tha...
- Criminal Law / Criminal procedure Code
- Breach of duty of secrecy, confidentiality
- Intelligence, National Security
- ...
- Breach of confidence
- Labour law / labour contract
- Civil servants : administrative law
- Staff regulations
- Insubord...
Manning, Snowden, Assange …
Existing WB Protection Laws in US not
efficient?
No adequate First Amendment protection
in US ...
US Supreme Court
Garcetti v. Ceballos, 04-5, 547 US 410, 2006
Government employees do not have protection from
retaliation...
Perception in Europe is that US disrespects ‘public
interest’ involved in whistleblowing or revealing
illegal activities o...
What is the situation in Europe ?
Paradox :
The PACE 2009 report says with regard to
whistleblowing protection:
“in this f...
Why should whistleblowers
be above the law?
Fressoz & Roire v. France (1999)
Publication of leaked tax files
In principle journalists are not above the law, but
… the...
International / UN
ILO Termination of Employment Convention 1982 (ILO no. 158)
Article 5 states that filing a complaint or...
International / Europe
Art. 24, 3, C, Appendix - European Social Charter 1996 (ETS No163)
Complaint or participation in pr...
International / Europe
COE COM Code of Conduct for Public Officials, Rec (2000)10
Art. 11
Duty for public officials to tre...
EU Anti-Money Laundering Directive 2005/60
Article 27
Member States shall take all appropriate measures in order to
protec...
EU Proposal for a Directive on markets in financial
instruments (repealing Directive 2004/39, MIFID),
Sec 2011 (1226-1277)...
EU Proposal for a Directive on markets in financial instruments
(repealing Directive 2004/39, MIFID)
Sec 2011 (1226-1277)
...
More EU and OLAF (European Anti-Fraud Office)
6 December 2012
The Commission issued new guidelines to remind staff
of whis...
More EU and OLAF (European Anti-Fraud Office)
6 December 2012
Reporting serious irregularities is a duty, to help the
Comm...
National laws in Europe
Most countries have “no comprehensive laws for the protection of
“whistle-blowers”, though many ha...
GAP 2013 report
In stark contrast to the United States, few European
countries have laws directly protecting whistleblower...
Council of Europe : PACE request for action – Rec. 2010
It recommends that the Committee of Ministers:
- draw up a set of ...
Actual and effective protection
for whistleblowers
ECHR?
Actual and effective protection for WB
under Article 10 ECHR?
10.1. Everyone has the right to freedom of expression
Freedo...
Actual and effective protection under
European Human Rights System ?
1. Protection of journalistic sources :
indirect prot...
Protection of journalistic sources essential for press freedom
unless ‘overriding requirement of public interest’
+ subsid...
2. Freedom of expression of civil servants
- Glasenapp v. Germany - Kosiek v. Germany (1987)
No Right of Access to Public ...
3. Freedom of expression protection of whistleblowing
Guja v. Moldova (2008)
“a civil servant, in the course of his work, ...
Other cases
Wille v. Liechtenstein (1999)
Critical lecture, no prolongation of appointment as a judge
Academic discussion,...
More cases
Peev v. Bulgaria (2007)
Employee PP office criticising Chief Prosecutor in
newspaper. Searches, confiscations, ...
More cases
Marchenko v. Ukraine (2009)
Allegations by school teacher of personal enrichment and
reprehensible conduct by s...
No violation Article 10
De Diego Nafria v. Spain (2002)
Bank employee, internal accusation of Governor of Bank of
Spain
Pe...
No violation Article 10
Grigory Pasko v. Russia (2009)
Military journalist, researcher
Disclosed dumping nuclear waste by ...
Grigory Pasko v. Russia (2009)
ECtHR : “as a serving military officer, the applicant had been
bound by an obligation of di...
4. Also employee/employer, private relations
Heinisch v. Germany (2011)
Article 10 of the Convention also applies when the...
Guja v. Moldova (2008)
Whistleblower case
Mr. Guja = head of communication of Public Prosecutor’s office
He leaked a lette...
Guja v. Moldova (2008)
Conditions – consistent application?
1. No alternative channels for the disclosure
(+ effective + p...
A European Bradley Manning?
See also report PACE 2003
Countries in which journalists have recently been subjected
to prose...
PACE Resolution 1729 (2010) – Guiding Principles
1. Whistle-blowing legislation should be comprehensive
2. Whistle-blowing...
PACE Resolution 1729 (2010) – Guiding Principles
- broad definition of protected disclosures
- WB protection to cover both...
PACE Resolution 1729 (2010) – Guiding Principles
a. - internal whistle-blowing procedures ensure
° disclosures pertaining ...
PACE Resolution 1729 (2010) – Guiding Principles
b. where internal channels either do not exist, have not
functioned prope...
PACE Resolution 1729 (2010) – Guiding Principles
Any whistle-blower shall be considered as having acted in
good faith prov...
PACE Resolution 1729 (2010) – Guiding Principles
Legislative improvements must be accompanied by a
positive evolution of t...
Some other issues / discussion
- Whistleblowing : a right or a duty?
- Internal/external?
How to evaluate internal procedu...
Some other issues
- The rights of defence of people implicated in any
allegations must be respected (Article 6 and 8 ECHR)...
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Whistleblowing and the Right to Freedom of Expression and Information under the European Human Rights System

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The EUI seminar focus on the legal framework in Europe regarding whistle-blowing, leaking confidential information, “illegal” newsgathering and protection of journalistic sources. In its Recommendation 1916 (2010) on the protection of whistle-blowers, on 29 April 2010, the Parliamentary Assembly of the Council of Europe, referring to its Resolution 1729 (2010) on the protection of whistle-blowers, has stressed the importance of whistle-blowing as a tool to increase accountability and strengthen the fight against corruption and mismanagement.

http://cmpf.eui.eu/seminars/whistle-blowing.aspx

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Whistleblowing and the Right to Freedom of Expression and Information under the European Human Rights System

  1. 1. Whistleblowing and the Right to Freedom of Expression and Information under the European Human Rights System Prof. dr. Dirk Voorhoof Florence EUI 30 September 2013 www.psw.ugent.be/dv http://cmpf.eui.eu/seminars/whistle-blowing.aspx
  2. 2. Whistleblowing Letteralmente : soffiare il fischietto Lanceur d’alerte Klokkenluider (“bell ringer”) What is a whistleblower?
  3. 3. Definition A person who exposes misconduct, or fraud, corruption, mismanagement of alleged dishonest or illegal activity within an organisation Internal / external (authorities, regulators, media …) Public interest in effective management and the accountability of public affairs and private business Reporting integrity violations Employees, civil servants, human rights defenders…
  4. 4. Risks Harassment, retaliation Disciplinary punishment Dismissal Criminal prosecution / conviction / emprisonment Blacklisting Threats Physical violence Psychological and social discomfort
  5. 5. Bradley (Chelsea) Manning Leaked military info US + video Iraq 35 year imprisonment Request for presidential pardon Large support by civil societey (BM Support Network) http://www.bradleymanning.org/ www.whistleblower.org
  6. 6. Edward Snowden NSA contractor Global breach of privacy US surveillance over digital communication Asylum Russia 2013 Whistleblower Award in Germany Now candidate for the Sakharov price of the European Parliament (proposed by Article 19) (Mandela, Taslima Nasreen, Arab spring activists, Aung San Suu Kyi…) http://rt.com/news/snowden-prize-whistleblower-germany-255/
  7. 7. Other (famous) examples of whistleblowers? - Negligence - Misuse - Abuse of power - Fraude - Corruption - Criminal acts - Irregularities
  8. 8. “Deep throat” – Watergate Informant for Bob Woodward and Carl Bernstein of Washington Post, 1972 Mark Felt, FBI (2005) Aleksandr Solzhenitsyn The Gulag Archipelago 1974 Forced labor camp system in USSR Exiled Nobel Prize Literature
  9. 9. Jeffrey Wiggand (1995) Revealed that tobacco industrie had worked on optimising addiction, being aware how lethal cigarettes were (“The Insider”) Law suits, smear campaign Sheron Watkins (Enron) Cynthia Cooper (Audit Worldcom) Coleen Rowley (FBI) Front cover Time Magazine Persons of the Year 2002 Paul Van Buitenen EC Official, irregularities and fraud EU Resignation of EC (Santer/Cresson) See also HM Tillack (ECtHR 27/11/2007, POJS)
  10. 10. Peter Wright (MI5, UK) Spycatcher (1985) Book published in Australia Injunction, ban, gag orders in UK ECtHR : UK breached Article 10 ECHR Observer, Guardian v. UK Sunday Times no. 2 v. UK ECtHR 26/11/1991 (prior restraint, public information)
  11. 11. Developments : global vs national online environment platforms for whistleblowing - extra exposure - encouragement for leaking information - citizens more becoming concerned about corruption, embezzlement and fraud in the financial sector - media / NGO’s : interesting sources
  12. 12. Also journalists, mediaplatforms, NGO’s… involved Kostas Vaxevanis Greece, Lagarde-list (prosecuted, not convicted) Julian Assange Wikileaks (asylum Ecaudorian Embassy London) Tokyo Two, Greenpeace “Informant” on whale meat embezzlement GP-staff members persecuted Searches and confiscations, pre-trial detention Prison sentence (18 m., suspended)
  13. 13. Why whistleblowers (WB’s) are persecuted, harassed, hunted, imprisoned, dismissed … ? Task : list up possible offences that whisteblowers commit
  14. 14. - Criminal Law / Criminal procedure Code - Breach of duty of secrecy, confidentiality - Intelligence, National Security - Treason, espionage, aiding the enemy - Military / Martial Law - Computer crime / Computer fraud - Data protection law / Privacy - Defamation or insult - (..)
  15. 15. - Breach of confidence - Labour law / labour contract - Civil servants : administrative law - Staff regulations - Insubordination - Theft - Tresspassing - Contempt of Court - ?
  16. 16. Manning, Snowden, Assange … Existing WB Protection Laws in US not efficient? No adequate First Amendment protection in US for WB’s !
  17. 17. US Supreme Court Garcetti v. Ceballos, 04-5, 547 US 410, 2006 Government employees do not have protection from retaliation by their employers under the First Amendment if the alleged speech was produced as part of his/her duties (5/4). Whistleblowers who want to pursue a federal case under the First Amendment must claim the memos or leaked information were part not only of the official duty but of a citizen's opinion and discourse of public relevance. This can be done by alleging that the cause for retaliation is not the text of the memo but the ideas surrounding it.
  18. 18. Perception in Europe is that US disrespects ‘public interest’ involved in whistleblowing or revealing illegal activities of US military, US diplomacy, US intelligence services… http://www.article19.org/resources.php/resource/37133/en/usa-must- respect-international-standards-on-protection-of-whistleblowers
  19. 19. What is the situation in Europe ? Paradox : The PACE 2009 report says with regard to whistleblowing protection: “in this field, Europe has much to learn from the United States”.
  20. 20. Why should whistleblowers be above the law?
  21. 21. Fressoz & Roire v. France (1999) Publication of leaked tax files In principle journalists are not above the law, but … the interest of the public can be more important than enforcement of criminal law Case showed that conviction of journalists for breach of professional secrecy and using illegaly obtained document was a violation of their freedom of expression Violation of Article 10 Also Radio Twist v. Slovakia and Dupuis v. France
  22. 22. International / UN ILO Termination of Employment Convention 1982 (ILO no. 158) Article 5 states that filing a complaint or participation in proceedings against an employer involving alleged violations of law or regulations (..) are not valid reasons for dismissal or termination of contract. Article 33, UN Convention Against Corruption 2003 (UNCAC) “Each party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention”
  23. 23. International / Europe Art. 24, 3, C, Appendix - European Social Charter 1996 (ETS No163) Complaint or participation in proceedings against an employer involving alleged violations of laws or regulations (..) are not valid reasons for termination of employment Art. 9 on the protection of employees in COE 1999 Civil Law Convention on Corruption (ETS No 174). “Each Party shall provide in its internal law for appropriate protection against any unjustified sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities”. Art. 22 COE 1999 Criminal Law Convention on Corruption
  24. 24. International / Europe COE COM Code of Conduct for Public Officials, Rec (2000)10 Art. 11 Duty for public officials to treat appropriately, with all necessary confidentiality, all information and documents acquired by him or her in the course of, or as a result of his or her employment. Art. 12 Public officials should report to the competent authorities any evidence, allegation or suspicion of unlawful or criminal activity relating to the public service coming to his or her knowledge… The investigation of the reported facts shall be carried out by the competent authorities The public administration should ensure that no prejudice is caused to a public official who reports any of the above on reasonable grounds and in good faith.
  25. 25. EU Anti-Money Laundering Directive 2005/60 Article 27 Member States shall take all appropriate measures in order to protect employees of the institutions or persons covered by this Directive who report suspicions of money laundering or terrorist financing either internally or to the FIU (Financial Intelligence Unit) from being exposed to threats or hostile action.
  26. 26. EU Proposal for a Directive on markets in financial instruments (repealing Directive 2004/39, MIFID), Sec 2011 (1226-1277) Article 77 Reporting of breaches Member States shall ensure that competent authorities establish effective mechanisms to encourage reporting of breaches of the provisions of Regulation …/… (MiFIR) and of national provisions implementing this Directive to competent authorities.
  27. 27. EU Proposal for a Directive on markets in financial instruments (repealing Directive 2004/39, MIFID) Sec 2011 (1226-1277) Article 77 (..) Those arrangements shall include at least: (a) specific procedures for the receipt of reports and their follow-up; (b) appropriate protection for employees of financial institutions who denounce breaches committed within the financial institution; (c) protection of personal data concerning both the person who reports the breaches and the natural person who is allegedly responsible for a breach (..) 2. Member States shall require financial institutions to have in place appropriate procedures for their employees to report breaches internally trough a specific channel.
  28. 28. More EU and OLAF (European Anti-Fraud Office) 6 December 2012 The Commission issued new guidelines to remind staff of whistleblowing obligations The Commission adopted new guidelines (updating those of 2004) on whistleblowing to encourage staff to come forward and report any information pointing to corruption, fraud and other serious irregularities that they discover in the line of duty.
  29. 29. More EU and OLAF (European Anti-Fraud Office) 6 December 2012 Reporting serious irregularities is a duty, to help the Commission and the European Anti-Fraud Office detect and investigate them. This duty is counterbalanced by solid protection offered to whistleblowers acting in good faith. http://europa.eu/rapid/press-release_IP-12-1326_en.htm
  30. 30. National laws in Europe Most countries have “no comprehensive laws for the protection of “whistle-blowers”, though many have rules covering different aspects of “whistle-blowing” in their laws governing employment relations, criminal procedure, media, and specific anti-corruption measures’ (Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Estonia, France, Georgia, Germany, Greece, Italy, Lithuania, “the former Yugoslav Republic of Macedonia”, the Netherlands, Norway, Poland, Romania, Serbia, Slovakia, Slovenia, Sweden, Switzerland, Turkey and the UK) PACE report’s conclusion 2009 is that much still remains to be done at the level of national legislation in European countries Other studies conclude that in Europe “whistleblowing legislation is generally fragmented and weakly enforced”
  31. 31. GAP 2013 report In stark contrast to the United States, few European countries have laws directly protecting whistleblowers. Instead of this type of US comprehensive whistleblower protection regime, most European Union nations have only a patchwork of whistleblower protections found in employment, criminal, media, and anti-corruption laws The reality in most countries in Europe is that under current law, employees who engage in effective whistleblowing have no legal protections from a retaliatory termination of their employment http://www.whistleblower.org/storage/documents/TheCurrentStateofWhi stleblowerLawinEurope.pdf
  32. 32. Council of Europe : PACE request for action – Rec. 2010 It recommends that the Committee of Ministers: - draw up a set of guidelines for the protection of whistle-blowers, taking into account the guiding principles stipulated by the Assembly in its Resolution 1729 (2010); - invite member and observer states of the Council of Europe to examine their existing legislation and its implementation with a view to assessing whether it is in conformity with these guidelines; - consider drafting a framework convention on the protection of whistle-blowers.
  33. 33. Actual and effective protection for whistleblowers ECHR?
  34. 34. Actual and effective protection for WB under Article 10 ECHR? 10.1. Everyone has the right to freedom of expression Freedom to hold opinions To express, impart and receive information and ideas + without interference by public authority + regardless of frontiers. Licensing system for broadcasting, television/cinema 10.2 Duties and responsibilities > formalities, conditions, restrictions or penalties 1. Prescribed by law 2. Legitimate aim (..) 3. Necessary in a democratic society
  35. 35. Actual and effective protection under European Human Rights System ? 1. Protection of journalistic sources : indirect protection for ‘anonymous’ WB’s Journalists cannot be compelled to give identity of source, protection against coercive or investigative measures - Goodwin v. UK (1996) : order to reveal identity / to hand over document - Tillack v. Belgium (2007) : searches and confiscations because of rumours of bribing (OLAF) Article 10 and POJS also to protect whistleblowers
  36. 36. Protection of journalistic sources essential for press freedom unless ‘overriding requirement of public interest’ + subsidiarity and proportionality + regardless of illegal or illicit origin + protection against searches / confiscations + EX ANTE review by judge/impartial body (not PP or police) Roemen and Schmit v. Luxembourg and Saint-Paul Lux. SA v. Luxembourg Ernst e.a. v. Belgium and Tillack v. Belgium Voskuil v. Nl. and Sanoma v. Nl. (Grand Chamber) Financial Times v. the UK (Interbrew / AB Inbev) Martin v. France and Ressiot v. France De Telegraaf Media v. the Netherlands (Security/Intelligence Services) Nagla v. Latvia See also Nordisk Film A/S v. Denmark (Child abuse, pedophaelia)
  37. 37. 2. Freedom of expression of civil servants - Glasenapp v. Germany - Kosiek v. Germany (1987) No Right of Access to Public Service, Article 10 not applicable in case of dismissal for expressing certain information of ideas - Vogt v. Germany (1996) Article 10 is applicable in case of civil servant expressing information and ideas. Violation Article 10 - Fuentes Bobo v. Spain (2000) Sharp criticism on management TVE, dismissal Violation Article 10
  38. 38. 3. Freedom of expression protection of whistleblowing Guja v. Moldova (2008) “a civil servant, in the course of his work, may become aware of in-house information, including secret information, whose divulgation or publication corresponds to a strong public interest” Court considered the dismissal of a civil servant who had leaked information, more specifically, a letter to the press, to be an unlawful restriction of the right of freedom of expression Violation Article 10
  39. 39. Other cases Wille v. Liechtenstein (1999) Critical lecture, no prolongation of appointment as a judge Academic discussion, chilling effect Violation Article 10 Raichinov v. Bulgaria (2006) Allegation of corruption by PPG, conviction for insult Violation Article 10 Kudeshkina v. Russia (2009) Dismissal of judge after statements in the media about corruption within Moskou judiciary Violation Article 10
  40. 40. More cases Peev v. Bulgaria (2007) Employee PP office criticising Chief Prosecutor in newspaper. Searches, confiscations, dismissal. Violation Article 10 (+ 8 +13) Frankovic v. Poland (2008) Disciplinary sanction of a doctor who in a medical report for a patient had made negative remarks about the treatment and care of the patient in a certain hospital Improper criticism of colleagues. ECtHR : to “ban any critical expression in the medical profession is not consonant with the right to freedom of expression” Violation Article 10
  41. 41. More cases Marchenko v. Ukraine (2009) Allegations by school teacher of personal enrichment and reprehensible conduct by school principal. No factual basis. One year prison sentence is disproportionate sanction Violation Article 10 Sosinowska v. Poland (2011) Doctor informed authorities about her superior and lack of quality in treatment of patients, she was reprimanded However her concern was well being of patients Violation Article 10
  42. 42. No violation Article 10 De Diego Nafria v. Spain (2002) Bank employee, internal accusation of Governor of Bank of Spain Personal attack, serious allegations, no factual basis Dismissal Poyraz v. Turkey (2010) Judicial official, controversial disciplinary investigation about a judge, comments in the media Duty of discretion, confidential information Bathellier v. France (2010), Szima v. Hungary (2012)…
  43. 43. No violation Article 10 Grigory Pasko v. Russia (2009) Military journalist, researcher Disclosed dumping nuclear waste by Russian Navy Found in possession of classified information in airport Convicted for treason through espionage for having collected secret information with the intention of transferring it to a foreign national Four years in prison
  44. 44. Grigory Pasko v. Russia (2009) ECtHR : “as a serving military officer, the applicant had been bound by an obligation of discretion in relation to anything concerning the performance of his duties” “Right balance of proportionality between the aim to protect national security and the means used for that, namely the sentencing of the applicant to a lenient sentence, much lower than the minimum stipulated in law”. No violation Article 10
  45. 45. 4. Also employee/employer, private relations Heinisch v. Germany (2011) Article 10 of the Convention also applies when the relations between employer and employee are governed by private law The State has a positive obligation to protect the right to freedom of expression, even in the sphere of relations between individuals Nurse reported shortcomings in care for elderly people First to management, later to authorities Afterwards, when nothing happened, to union, leaflets Dismissed Violation of Article 10
  46. 46. Guja v. Moldova (2008) Whistleblower case Mr. Guja = head of communication of Public Prosecutor’s office He leaked a letter to the media Letter gave evidence of influence by a Minister on Public Prosecutor and administration of justice in a corruption case Mr. Guja was dismissed because of breach of duty of professional secrecy QUESTION In what context a WB can rely on Article 10? Under which conditions/criteria?
  47. 47. Guja v. Moldova (2008) Conditions – consistent application? 1. No alternative channels for the disclosure (+ effective + protection of whistleblower) 2. Public interest in the disclosed information 3. Authenticity of the disclosed information (+ accurate/reliable) 4. Justifiable damage to employer/administration/others 5. Whether the applicant acted in good faith (motif = public interest) 6. The severity of the sanction (+ consequences) Pasko v. Russia (2009)?
  48. 48. A European Bradley Manning? See also report PACE 2003 Countries in which journalists have recently been subjected to prosecution on espionage charges should clearly and narrowly define the scope of official secrecy, in public laws and regulations, in order to eliminate legal insecurity. Due consideration is to be given to the legitimate need of the public to be informed of any illicit behaviour by State organs, including the armed forces, in particular when it constitutes a threat to human rights, the environment, or other vital interests of the people. http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileId=10312&Language=en Pasko v. Russia (2009)
  49. 49. PACE Resolution 1729 (2010) – Guiding Principles 1. Whistle-blowing legislation should be comprehensive 2. Whistle-blowing legislation should focus on providing a safe alternative to silence 3. As regards the burden of proof, it shall be up to the employer to establish beyond reasonable doubt that any measures taken to the detriment of a whistle-blower were motivated by reasons other than the action of whistle- blowing 4. Monitoring and evaluation at regular intervals by independent bodies.
  50. 50. PACE Resolution 1729 (2010) – Guiding Principles - broad definition of protected disclosures - WB protection to cover both public and private sector whistle-blowers, including members of the armed forces and special services, and focus on ° employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; °criminal law and procedure – in particular protection against criminal prosecution for defamation or breach of official or business secrecy, and protection of witnesses; ° media law – in particular POJS; ° specific anti-corruption measures COE Civil Law Convention on Corruption (ETS No. 174).
  51. 51. PACE Resolution 1729 (2010) – Guiding Principles a. - internal whistle-blowing procedures ensure ° disclosures pertaining to possible problems are properly investigated; °the identity of the whistle-blower is only disclosed with his or her consent, or in order to avert serious and imminent threats to the public interest; ° the WB legislation should protect anyone who, in good faith, makes use of existing internal whistle- blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment).
  52. 52. PACE Resolution 1729 (2010) – Guiding Principles b. where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.
  53. 53. PACE Resolution 1729 (2010) – Guiding Principles Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives. WB protection should create a risk for those committing acts of retaliation by exposing them to counter-claims from the victimised whistle-blower which could have them removed from office or otherwise sanctioned. Whistle-blowing schemes shall also provide for appropriate protection against accusations made in bad faith.
  54. 54. PACE Resolution 1729 (2010) – Guiding Principles Legislative improvements must be accompanied by a positive evolution of the cultural attitude towards whistle-blowing, which must be freed from its previous association with disloyalty or betrayal Role of NGO’s
  55. 55. Some other issues / discussion - Whistleblowing : a right or a duty? - Internal/external? How to evaluate internal procedure would not have been effective? - Employment relation as a condition to be a WB? - Can the law really protect WB’s ? Illusion of protection ?
  56. 56. Some other issues - The rights of defence of people implicated in any allegations must be respected (Article 6 and 8 ECHR) See ECtHR 16 April 2013, Căşuneanu v. Romania and ECtHR 18 April 2013, Ageyevy t. Russia. - Anonimity / identity to stay confidential - Ombudsman / audit authorities to report + protection WB - What is left of Article 10 if all ECHR-countries would have performant PA?

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