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The law on the Protection of Whistleblowers Rights was enacted in January 2020 and, therefore, is obligatory for enforcement and examination. We'll be proud of you if you get acquainted with the Law on Prevention of Corruption to the fullest - still, we are ready to ease your work and present the bullet points of the law. Why were we waiting for it for such a long time? Whistleblowers, European donors, data protection and confidentiality, right to legal assistance - all of these make you closer to safe and efficient whistleblowing.
A global project
The anticorruption strategy has its conditions: whistleblowers protection was one of them. Despite the start of the anticorruption project in 2014, an ad hoc regulation for whistleblowers was introduced only during the fall of 2019. Any reasons to be concerned? You might not trust rates of Transparency International, but with Ukraine, there are no doubts: it steadily doesn't improve its position in countering corruption. Anticorruption controlling institutions exist: it is National Anticorruption Bureau and National Agency on Prevention of Corruption.
Perception of corruption in Ukraine and its rank worldwide. Source: Transparency International
Ukraine is not alone in its initiatives: several European donors, who have their representatives in Ukraine, monitor the work of anticorruption institutions and provide professional assistance. How did the Law on Protection of whistleblower appear? Ukrainian policy and legislation should correspond to European standards and values if Ukraine wants to keep its path to European integration. That's the main reason for the partial similarity of Ukrainian law to the newest initiative from EU - EU Directive on Whistleblowers Protection of 2019th.
Before the times of single EU standards, almost every member country of the EU had its different approach to whistleblowers protection. What were the differences? The definition of whistleblower and whistleblowing, their rights regarding the revelation of confidential information, a variety of informational channels for disclosure before were specific. Currently, Ukraine is in the same situation having a mismatch with some regulations from the European Directive.
What is now regulated under the Anticorruption Law? Starting from the ban on unauthorized gifts to officials to monitoring of current anticorruption policy, ethical guidance for officials and procedures of accepting/processing whistleblower complaints. It mentions the regulation of conflict of interests as well - we'll see how effective it is.
Whistleblowers are often the only way to get the information about corrupt schemes which weren't noticed by external audit or were hidden by officials. In Ukrainian legislation, a whistleblower is an individual who is convinced in the credibility of the information he provides and reports this information to the responsible authorities if it's about corrupt or related to corrupt activities. The whistleblower can get this information due to his professional experience in public unit, about which he reports (it also applies to internships, professional advice, provision of temporary services).
How to report about the violation? The whistleblower can give the information to governmental anticorruption structures via hotlines, email or online forms or other forms of communication. Public enterprises may have their hotlines for reporting; in this case, these lines refer to internal ways of reporting.
Internal hotlines - what's that? The law separates informational channels into internal, regular and external, and whistleblower can choose the most convenient among them. Internal hotlines are those in public enterprises, regular - hotlines in anticorruption units, external - reports to media and third persons.
The choice of informational channels, however, is limited in the same way as in European law. The whistleblower should use internal or regular channels in the first place. The information can be revealed to media in case there are serious concerns about the reliability of internal channels or assigned compliance officers are likely to retaliate against the whistleblower. Same applies to situations of immediate danger.
Rights of whistleblower - what's guaranteed by the law?
- The right for the anonymous report. The information about whistleblower is kept confidential regardless of the circumstances, but this option lets the informer not leave any personal information for feedback.
- The right for feedback. Assigned compliance officers are obliged to provide the informer with information about the status of his report during 15 days - it's even faster than in the EU.
- IMPORTANT: the right for fair compensation. If a whistleblower was fired, he has a right to be reinstated. If whistleblower suffered from a financial loss - the employer can't limit the form of compensation to financial. Compensation should also apply to relatives of the whistleblower in case they suffered from retaliation.
- The right to free legal assistance and consult, or compensation for private legal assistance. Till 2019 this opportunity existed in a few European countries.
Whistleblowing - a profitable thing?
Ukrainian law is exceptional in its field - whistleblowers are up to receive a reward for provided information (10% of the whole sum of fraud). The European Directive has a radically different position - whistleblowers should act out of sincere intentions to bring justice and serve rather public than personal interest. This approach significantly decreases the number of false reports and forms a positive attitude to whistleblowers in society. In contrast, in the USA, whistleblowers can get 10-30% of the whole sum of fraud, which motivates whistleblowers to cooperate.
While it's too early to talk about the results of the Ukrainian approach, we are still curious: how much the whistleblower can "earn"? The upper limit is 14 million hryvnias, or $570,000 - it's based on 3000 average salaries in Ukraine.
What is it like?
The European Directive on whistleblowers protection is the best currently developed and enacted law, which defines the rights of whistleblowers. With a good sample existing, there is still a room for improvement in Ukrainian law. What's a mismatch in Ukrainian/European approach?
- Scope of application. Ukrainian law is aimed exclusively at anticorruption policy, while the European approach makes it possible to report on human rights violation, discrimination, environmental harm and others.
- Scope of enactment. The law on whistleblowers protection covers only public sector, European Directive - public and private, which have more than 50 employees. The limited scope of enactment means that a significant amount of whistleblowers potentially will not report on personal harm and even corrupt schemes in the companies they work.
- No obligation to inform the accused person about the information in the report of the whistleblower. Both a whistleblower and accused person have the right to access the information - it's not mentioned in Ukrainian law.
- Protection of informant. The information about whistleblower may become public in specific cases, about which he should be informed within 18 days. The whistleblower doesn't take part in a discussion regarding the disclosure; therefore, his confidentiality is questionable.
- Data protection. There is a law on the protection of personal data, which ensures that whistleblowers personal information will not be disclosed - however, his anonymity may be under the fire. Who, in which way and how many days is processing the data? What's happening with it after the investigation - all of this is explained in Austrian legislation. In Ukrainian, at this moment, no.
Not ideal, but promising - that's a current state of affairs in Ukrainian law for whistleblowers. It's crucial to talk about the importance of whistleblowers here and now. That's why we hope for a positive image of whistleblowing in Ukraine thanks to comprehensive legislation.