Who are the "whistleblowers"? How civil society guards are protected in Ukraine

The series of interviews will be opened by Andrii Biletskyi, Administrative Director of the ACREC Interdisciplinary Research and Education Center for Combating Corruption, and Oleksandr Kalitenko, Legal Adviser at Transparency International Ukraine.

Andrii Biletskyi is a Ph.D. in Criminal Law and Criminology. For several years he has been studying the protection of whistleblowers at the academic level. In addition, he participated in the development of amendments to the Law "On Prevention of Corruption" in terms of the protection of whistleblowers. Currently, as a representative of ACREC, together with the National Agency for the Prevention of Corruption, he clarifies the provisions of this Law, as well as conducts scientific and educational activities on the protection of whistleblowers. He is the Secretary of the Public Council at the NAPC.

Andrii Biletskyi

Oleksandr Kalitenko is a legal advisor to Transparency International Ukraine. Before working with TI Ukraine, Oleksandr conducted a study on the level of the legal protection of whistleblowers in each of the 27 EU countries, including human rights observance, and developed recommendations for Transparency International Latvia and later for a working expert group led by the Latvian Prime Minister for the relevant future Law of Latvia. In 2015-2016, he coordinated the They Wouldn't Be Silent information and mobilization campaign to change the negative attitude towards those who detect corruption and to support them.

Oleksandr Kalitenko

Read on the importance of the institution of whistleblowers existing in a democratic society, the rights and guarantees of their protection, the attitude of citizens to them, as well as forming the culture of exposure in the article.

— Let's explain to our readers who the whistleblowers of socially important information are.

Andrii Biletskyi: Everyone thinks that whistleblowers are people who simply detect an offense and report it to the authorities. This is not the case. The major feature of whistleblowers is that they operate inside the system. For example, I work in a factory and saw that my manager steals and sells some parts. This is an offense, and I found it inside the system. And if I report this to the plant's supervisory board, I automatically become a whistleblower. But if, for example, while walking down the street, I see someone being hit by a car and report it to the police, then I'm not the whistleblower, I'm the informer. This is the main difference between whistleblowers and informers: the whistleblower works in the system.

Oleksandr Kalitenko: In international and Ukrainian law, the concepts of "whistleblower" are different. In international practice, a whistleblower is a person who provides information about illegal activities that harm the public interest. These may be human rights violations, transport safety, food safety, and environmental crimes. That is, it's a wide range of information recognized as socially necessary. In our country, it is limited only to corruption, i.e. in our country, the whistleblower is only the one who informs about possible facts of corruption or corruption-related offenses. Abroad whistleblowers are society guards. They perform their civic duties and report unethical, wrongful, illegal activities.

— Why, in your opinion, did the parliamentarians in Ukraine pass the law №1010 "On Prevention of Corruption" with such a narrow definition, where exposing applies exclusively to corruption?

O.K.: There's an opinion that one of the purposes of such a narrow definition was to test the idea of ​​protecting whistleblowers who reveal corruption. This was necessary to test in a narrow circle of whistleblowers whether the proposed mechanisms would work, so to speak, to learn the necessary lessons. And when the mechanism will work, spread it to all whistleblowers.

By the way, in the European Union, there is a Directive on the protection of whistleblowers in a broader definition. However, states hardly implement it. Two years were allotted for its implementation, and the deadline expired on December 17, 2021. The situation is as follows: out of 27 EU countries, only five have implemented it. These are Denmark, Lithuania, Malta, Portugal, and Sweden. For example, in Estonia, the Netherlands, and France, the draft law is under discussion. The other 11 countries already have drafts submitted. But in other countries, these drafts didn't even go beyond the government. Why? This is probably a sign that EU countries aren't very serious about protecting whistleblowers yet. Although the slow implementation of the Directives is, unfortunately, not an isolated EU practice. That is to say, I cannot say that this is the situation with only this Directive. And again, I can't say that now we urgently need to approve everything, because the deadline has passed, because first of all, we have to talk about quality, about the proper level of discussion with all parties. There is no need to hurry, whistleblowers must get the level of protection they deserve.

— Why should the definition of "whistleblower" not necessarily be associated with exposing corruption? Why is it important to expand the definition?

A.B.: So far, Ukraine has followed the path of a pilot and introduced the protection of whistleblowers only for corruption offenses. However, imagine a utopian situation: Ukraine has minimized corruption to such an extent that it is no longer necessary to expose corruption on a large scale (for various reasons, for example, there are no significant corruption cases). Corruption whistleblowers are still protected by law, but there are still several problems in Ukraine: the environment, security of production, transport, and financial crimes that don't fall under the definition of corruption. How to protect these people? How to motivate them to report these crimes? With this in mind, we should take a broad approach to ensure that everyone can feel safe in reporting any information, not just corruption.

O.K.: When we talk about the broad meaning of the term "whistleblower," it can be a water utility worker who reports untreated tap water. The waiter is reporting about stale fish that can poison visitors. The pharmacist talks about the careless storage of vaccines, which turned them into poison. The security guard tells about the torture of prisoners in prisons. A conductor reports he sees that a wheel is about to fall off in a minibus. They can all help someone, or even save someone's life if they have protection. Only with guaranteed protection do people dare to testify. The potential whistleblower wonders if they will have to suffer discrimination and mobbing at work. Will they be reprimanded or blacklisted? Therefore, it's important to build the foundation of the institution of the whistleblower, and it's a broad definition. And it needs to be done per the best international standards and practices, additionally extending it to all citizens who've had the constitutional right to freely distribute information since 1996. And not only about corruption, but also about other socially important things.

— In your opinion, what is slowing down the implementation of the EU Directive on the protection of whistleblowers?

O.K.: I think the problem is that there are still negative connotations about whistleblowers. They say they are "snitches." We in TI Ukraine studied the synonyms of the word "whistleblower" in different EU countries. So in Italy, they are called spies or people through whom information leaks. That is, it's not a positive connotation. In Germany, they say a whistleblower is a person who pollutes his home. That is, as they say in Ukraine, "takes the garbage out of the house." It turns out that the connotation is negative not only in Ukraine.

Our colleagues in other countries are trying to change the perception of citizens about whistleblowers by advocating for new positive terms. For example, in Poland, there is the term "signalman," which is introduced by various NGOs, i.e. a person who signals something. This is a positive connotation. I think the problem, among other things, is that whistleblowers can still be perceived negatively, particularly in Europe.

"Attitudes towards whistleblowers are still criminalized."

— In Ukraine, too, there is still a negative connotation of whistleblowers. They are sometimes called "snitches," as in Soviet times when people were forced to talk about relatives and friends who have anti-Soviet views. Is this a deliberate or erroneous manipulation?

O.K.: Absolutely deliberate. No matter how much we want to get rid of it, no matter how much we want to talk about it, the attitude towards whistleblowers is still criminalized. People who cooperate with law enforcement have always been treated in this way. They have always been treated as "snitches," called "rats." And all this remains not only at the household level but also at the state level. For example, in the early spring of 2021, when the law on introducing the Single Portal of whistleblowers was passed, changes, proposed by People's Deputy Serhii Vlasenko, were adopted, who used rhetoric to say whistleblowers are snitches, and "we will return to 1937."

— Why are "snitch" and "whistleblower" not identical words? What is the ideological difference?

O.K.: In fact, Ukraine has taken a step forward. Back in 2011, there was a legal requirement for whistleblowers to have no selfish or personal motives. That is, if you have a poor relationship with your boss, for example, and you decide to become a whistleblower, you wouldn't receive protection. Because the boss would come and say: "And he exposes me not because he reveals the info, but because he wants revenge, we have a bad relationship." Now we have departed from this condition and in 2014 it was canceled. In my opinion, it's a step forward. This is because we no longer value motives that can be easily manipulated. The whistleblower is fighting not for their interests, but the interests of society.

A.B.: And now this burden of proof rests with the boss. It is them who must prove what motives, selfish or personal, guided the whistleblower. The whistleblower must pass the information to the relevant authorities for verification. If the authorities believe that it's enough, but at the same time a lawsuit is opened where the boss wants to punish the employee in some way, it is them who must prove that this information is true or untrue. No whistleblower has to prove it. And this is a plus. Because that's how we take the burden off the whistleblower. The best they need is to gather enough facts and documents for law enforcement. The whistleblower doesn't have to gather the evidence themselves. They must give a reason for the work of law enforcement.

O.K.: Another positive step we have taken in 2020 is that even lawful acts against a whistleblower that are discriminatory are considered negative. For example, traffic jams are frequent in Kyiv, so people may be late for work. Everyone turned a blind eye to this because they understood that a delay of 5 minutes is possible. After all, it is Kyiv. But when this person became a whistleblower and reported something to law enforcement, they were reprimanded for being late. The same, for example, with absenteeism. Imagine that a person goes to perform at an event and everything was fine before, they were let go from work earlier, and when they became a whistleblower they were accused of truancy. I give specific examples from life. Such actions are discriminatory and negative measures of influence. Because other colleagues don't suffer from the same things, and the person, until they were a whistleblower, didn't receive such treatment. It will be a great challenge for judges to learn to distinguish between such actions.

"The whistleblower is about fighting not for one's interests, but the interests of society."

— How do Ukrainians perceive whistleblowers today?

O.K.: It seems to me that there are changes in perception. Because when we started the first campaign in 2014 to promote a positive attitude towards whistleblowers, I got weird feedback, like, "Who's a whistleblower anyway?" Or they said, "Give me the whistleblower ID, I'll ride on public transport with benefits." I can't say that everything has improved dramatically now, of course, we still have to work on the changes, but it seems to me that in the context in which we lived in recent years when the issue of whistleblowers was raised by a presidential candidate, say call NABU, expose, get 10%, there has been a significant increase in the level of this topic.

However, this also had negative consequences, because it's not possible to call NABU about everything. They have their jurisdiction. Another negative development is that this discourse about reward sometimes overshadows everything else. I'm not against this 10%, because abroad there are, for example, even special companies that help whistleblowers to draw up their reports to law enforcement and accompany them legally for a certain percentage of this fee. This forms the environment. This can be beneficial for everyone because both the whistleblower receives help and society, otherwise, this crime would remain unsolved. However, people still don't understand the conditions under which this award can be obtained. We still need to make it clear to people that whistleblowers aren't immune to abuse.

"Give me a whistleblower ID, and I'll ride on public transport with benefits."

A.B.: Changes have taken place both positively and negatively. On the plus side, we have some professional whistleblower communities. Also, according to the law, this should be done by authorized persons in the authorities. Now they are beginning to get acquainted with the law, how to work with whistleblowers, their rights and responsibilities, guarantees of protection.

On the negative side, some people, learning about the existence of such a concept as whistleblowers, begin to manipulate it. They say, look, I exposed someone on mythical corruption schemes, give me 10%. And they're starting to openly spam the NAPC and tell them to be given whistleblower status and given 10% of the reward. I know two or three such stories.

So yes, there are people who just manipulate this knowledge and try to use it. There are examples when someone wants a person to be fired, transferred, or deprived of their salary, and they say: "I'm a whistleblower, and what you want to do are negative measures, and you cannot apply them to me." And then the leadership needs to prove that this person isn't a whistleblower and said it only to protect themselves, but in fact, the measures are applied to them lawfully.

— Why does society need whistleblowers? What use is it?

O.K.: If there are whistleblowers in society, a potential corrupt person will think three times whether to resort to corruption or not. Because when there are no whistleblowers, they rely on silence, and no one will say anything about them. They say you can do whatever you want, hide it, and there will be no punishment. By the way, regarding international practice: from auditors, you can learn about 14% of abuses, and from whistleblowers, up to 40%. And this is because the whistleblower knows the "inner workings" from the inside, and the auditor comes from the outside.

A.B.: An example is the MeToo movement, which has been useful to society. If the crimes hadn't been reported, the world community wouldn't have known about it and there would've been no negative consequences for violators. You can draw an analogy with exposure here. I think the existence of whistleblowers will keep everyone in shape. People will understand that it's unprofitable for them to commit any offenses because someone will find out about it and tell others. In this way, we will establish new standards of conduct not only in the authorities but also, I hope, in any structure in general.

It all starts at school: when cheating is bad, but everyone uses it and no one tells anyone about such behavior. But, for example, American universities practice the following: students are given exam sheets and allowed to fill them out anywhere on campus. That is, you can write where it's convenient, but it is forbidden to use additional literature, the Internet, and so on. Students there really don't cheat, because they know if someone sees that they're using something forbidden, they will report it and it may affect the exam score or end in expulsion. That is, whistleblowers should work not only among civil servants but also at lower levels.

"It all starts at school: when it's bad to cheat, but everyone uses it and nobody tells anyone about such behavior."

— What changes should be made at the legislative level so that whistleblowers can get real protection if needed? What is missing today?

O.K.: We've been waiting for changes in the legislation for a long time, which would improve the security not only of those who report criminal corruption crimes but also at a lower level. About administrative offenses, for example. There is also something to declare: conflict of interest, inaccurate declaration, violation of restrictions on receiving gifts, part-time work, etc. In other words, it's a very large amount of anti-corruption legislation, the violation of which can also be reported, but you will not receive the amount of protection that you would receive if you reported a criminal offense. And that, of course, can limit people.

Another point is that whistleblowers who report a state secret need much more protection than they currently have. And it also affects the level of security perception. A person who discloses such sensitive information as a state secret in the public interest must be sure that they will receive the necessary protection. We currently have gaps with this.

What we still lack is that our guarantees should apply to the close people of the whistleblower, that's a plus. However, the protection doesn't apply to those who assisted in the exposure. That is, they're neither a whistleblower nor a close person. And so far they, too, remain without legislative protection. It seems to me that if they had protection, it would be safer for whistleblowers to expose violations. Because not always one whistleblower can get all the information, sometimes they need help, but they may not get it because helpers know they won't be protected.

— On January 1, 2020, the Presidential Draft Law №1010 "On Prevention of Corruption" on whistleblowers came into force. How do you assess its implementation? Does it live up to the expectations of the expert community?

A.B.: 100% no, there's still work to be done, but there are some changes. The NAPC is now a special ombudsman. They can join a trial as a third party or defend whistleblowers. Of course, the issue is that the NAPC staff can't spread themselves too thin in all cases, as the department employs about 10 people, and it is for the entire country.

On the positive side, we have created conditions for distributing information with limited access. Yes, we still have problems with state secrets, but still, whistleblowers can use, under certain conditions, channels that they choose independently: either regular or external ones. The NAPC has also begun to apply whistleblower protection regulations. It's a well-known case when the NAPC applied instructions to the management of Energoatom regarding the whistleblower Oleh Polishchuk. There was also a case when in one of the Kharkiv universities, an order was applied to the head due to harassment of the whistleblowers at work. We see positive changes, but we still have work to do. It's unrealistic to achieve all legislative changes in two years.

O.K.: At the moment, we still have a declarative right of the whistleblower to psychological assistance, as the mechanism for obtaining it isn't specified. Also, the legislation doesn't prescribe a separate right of the whistleblower to medical care. In terms of international standards, it's a gap that needs to be addressed. I also lack information on case law. Some win, some make decisions, not in favor of the whistleblower, and here the question arises and remains open: why is this happening? Are these shortcomings in the law playing into the hands of the prosecution, or have the conditions for the whistleblower not been met properly? This needs to be further investigated.

Our judges, to put it mildly, aren't very aware of the whistleblower's status, their immunity, etc. And this question isn't the issue of two years. For example, we've had a "conflict of interest" category in our legislation for more than 10 years, and judges often still don't understand what that is. The same goes for whistleblowers. And it's an even more delicate topic. We don't have training for judges, as was the case, for example, in Serbia. It seems to me that right now this case law can be directed in the right approach for all whistleblowers.

— What are the rights and guarantees of protection of whistleblowers provided by law?

A.B.: First of all, it is the protection of labor rights. That is, the whistleblower can apply to the NAPC and obtain the appropriate status of the whistleblower. Then it will not be possible to apply negative measures of influence in any form. For example, sudden re-certification, punishments for being late for work, transfer to a lower-paid position, unjustified refusal to be promoted.

We're also talking about legal guarantees of protection, although they're still a bit difficult to work with. Because the law stipulates that the whistleblower isn't responsible for their actions, although if you look at the Criminal Code, we have only two of the nine crimes that say that the whistleblower can be released from legal responsibility. Here we're talking about guarantees to provide information anonymously and confidentially. These concepts are often confused. Anonymity means that no one knows the identity of the whistleblower, not even the ones who receive the information. Confidentiality is the person of the whistleblower is known only to the person to whom they provide information.

— What other legislative acts provide for the protection of whistleblowers?

A.B.: Code of Labor Laws, Criminal Procedure Code, Criminal Code, Civil Procedure Code, Civil Code, etc.

— What innovations does the adopted law №3450 propose to regulate certain issues of protection of whistleblowers?

A.B.: Earlier it was stated that some established bodies, such as the NAPC, NABU, and the National Police, had to create regular channels that would allow people to report information to third parties. Yes, these channels were supposed to provide an appropriate level of anonymity or confidentiality. However, none of the bodies created a channel that would meet the requirements. In practice, they simply created a Google form that allegedly allowed whistleblowers to report violations. But this method didn't maintain confidentiality or anonymity. But the Single Corruption Reporting Portal proposed by this draft law may be able to address these issues. After all, this should be the only channel for everyone that will allow building a messaging system, providing reliable protection of key whistleblower guarantees of anonymity and confidentiality.

O.K.: Of course, such a portal wasn't enough. It will be administered by the NAPC, which will implement uniform practices. In the future, it would be good to create an information commissioner who would protect whistleblowers as well as protect personal data, and take over the role of ombudsman to protect access to public information.

Andrii Biletskyi and Oleksandr Kalitenko

— In your opinion, is there currently the political will to implement all these new legislative changes to protect whistleblowers?

A.B.: It depends on whose political will. Political will, from the point of view of the body responsible for formulating and implementing policy, is more yes than no. If we talk about wider political circles, parliament, etc., then there is ambiguity, because, for example, during the adoption of the draft law №3450 we had some problems with the amendments of People's Deputy Serhii Vlasenko. They were mostly based on populist justifications. So now we probably need to keep a close eye on the vote on every whistleblower draft law.

O.K.: At first, the topic of whistleblowers was raised to a very high level, because even the president on billboards talked about 10% of the reward and called for reporting abuse to NABU. But not everything can be reported there, because NABU has limited jurisdiction. And 10% can't always be obtained as easily as it may seem. To do this, some conditions must be met. So far, it is good that positive amendments in terms of the portal have been made to the law on the prevention of corruption. But we were on the verge of losing the institution of whistleblowers altogether because Vlasenko's amendments could have destroyed it, and this, of course, doesn't add optimism about the proper political will to strengthen the institution of whistleblowers.

"We were on the verge of losing the institution of whistleblowers altogether."

— How do you assess the role of journalists and the media in the context of distributing information about whistleblowers? Has anything changed since 2014, when an information campaign was launched to increase the positive attitude towards whistleblowers?

A.B.: Of course, there are positive aspects of coverage, but there's also custom discrimination against whistleblowers in the media. I remember a case when, in 2016, Draft Law 4038a entered parliament. At that time, it was still a popular phenomenon when the Viesti newspaper was distributed near metro stations. So, one day I saw on the front page a huge headline of an article aimed at discrediting the institution of exposure. In the article, it was presented, again, through the prism of "snitching." There were many such commissioned articles even before the adoption of Draft Law 1010. Nevertheless, we can note the positive dynamics of coverage of whistleblower cases in the media, why it's important to talk about them and how they can be helped.

O.K.: It seems to me that different journalists and media show different attitudes towards whistleblowers. Some fuel negative stereotypes about them as "snitches," especially in terms of the potential reward of 10%. Others portray whistleblowers and their role positively, supporting their actions. What exactly has changed since 2014 is that the coverage of this topic has become more intense. Although there has been an increase in media coverage, there is still a need to develop a positive public opinion about whistleblowers and their contribution to society, including through the media.

— What projects do your organizations implement to strengthen the protection of whistleblowers?

A.B.: We at the ACREC Interdisciplinary Research and Education Center for Combating Corruption are implementing several projects, which are primarily aimed at expert support of the NAPC's whistleblower protection department; we create and conduct training for employees. We're writing clarifications on the protection of whistleblowers. We're also holding an international conference aimed at promoting and expertly discussing the protection of whistleblowers. And, of course, we're trying to develop the protection of whistleblowers at the scientific level. We're conducting several studies on the protection of whistleblowers not only in Ukraine but also in the world. Also, together with the NAPC, we issued a scientific and practical commentary on Ukraine's legislation on the protection of the rights of whistleblowers, which should regulate both work practice and judicial practice in this area.

Andrii Biletskyi

O.K.: I'm involved in writing a new version of the Whistleblower Corruption Handbook. It will be released by the NGO Labor Initiatives with the Center for Solidarity in Ukraine. At Transparency International Ukraine, we have several anti-corruption instructions for those who want to receive a service from the state without corruption. For example, the What Does Your School Buy? project. There, we tell citizens who don't want to pay voluntary and compulsory contributions how to check on the procurement map whether the product in question has already been purchased.

— What are the main challenges facing the expert community involved in the implementation of the institute of whistleblowers in Ukraine?

A.B.: This is the development of a communication strategy on the topic of whistleblowers. For society to begin to perceive this topic commonly and not to associate whistleblowers with "snitches," it is essential to find the right "keys." That is, it is an issue of changing the approach to understanding this phenomenon, and also establishing the understanding of whistleblowers not only in society but also among the main parties. Because if you take the Committee on Anti-Corruption Policy as an example, there are people who understand who the whistleblower is and why they need to be protected, and there are those who say, "It's not what you think, whistleblowers are underground agents of the State Department and we don't need that."

O.K.: Recent opinion polls suggest that part of ordinary citizens who feel responsible for fighting corruption is declining. Much more responsibility rests with the president, the Verkhovna Rada, anti-corruption bodies, and so on. And this is what we need to work with. How to form zero tolerance for corruption. And, of course, how to change the perception of whistleblowers and form positive connotations around them. And it would be good if society saw some high-profile examples where whistleblowers got their protection.

Oleksandr Kalitenko

— What do you plan to do next to change the consciousness and increase the exposing culture of citizens?

A.B.: We will distribute the products we produce about whistleblowers as much as possible. What should Ukraine do? I would like us to complete this pilot and start talking about applying a broad definition to whistleblowers.

O.K.: At one time we conducted several campaigns to change the attitude towards whistleblowers, to portray them as public guards. And this is something that needs to be done in the future. Information support, educational campaigns are very important. So far, however, we lack an understanding of our rights and knowledge of our rights.

Photo: Rubryka