Whistleblowers in Europe: efforts to keep Pandora's box closed
Europe's whistleblower position in a nutshell: discriminate against whistleblowers, enabling wrongdoing and corruption to not be investigated, and whistleblowers to be persecuted.
Ministers and heads of state in Europe endeavour to reduce whistleblowing around the world by setting reduced European standards, which violate international standards, while at the same time alleging to speak up in favour of reporting wrongdoing.
- Highly recommended read for this post: part 1.
- ABC: Organisation for Economic Co-operation and Development (OECD) Anti-Bribery Convention
- UNCAC: United Nations Convention Against Corruption
- ISO: International Standards Organisation whistleblower definition
- A whistleblower is any person who reports wrongdoing in good faith. Protection is mandatory.
the Council of Ministers violates the public demands for whistleblower improvement
In short: our governments violate their international obligations and our parliament demanding broad spectrum whistleblower definitions and protections.
The Council of Ministers (CoM), our national ministers deciding law at the Council of Europe (CoE), refuted the work of the Council of Europe Parliamentary Assembly (PACE), the voice of the European public, on 29 April 2020 with its recommendation 2162 (CMR20)
The PACE in its Resolution 2300 (2019): Improving the protection of whistle-blowers all over Europe (PARes) had underlined the shortcomings and dangers of inadequate whistleblower laws in Europe.
In CMR20, the CoM underlines that it advocates since 2014 against any better CoE legally binding instrument, firmly anchoring its discriminatory and corruption enabling narrative.
Given the complexity of the subject and the range of solutions adopted by the member States to protect whistle-blowers, it believes that the negotiation of a binding instrument, such as a convention, would be time consuming and there would be no certainty as to its outcome. At this stage, the Committee considers it more appropriate to encourage States fully to implement the recommendations which have been adopted by the Committee of Ministers or other bodies such as GRECO. In this connection, it points out that the relevant Council of Europe committees and bodies are ready to respond to any requests for technical assistance from member States.
In common language, our law deciding ministers find:
- defining and protecting whistleblowers to be complex;
- a good convention would take time and probably not be adopted;
- their 2014 recommendations (CMRec), which violate International instruments and standards, should be encouraged;
- they want the CoE to assist member states in implementing the 2014 human rights violating recommendations.
GRECO to market and execute whistleblower violations internationally
GRECO oversees the correct implementation of the CoE legal instruments, including the CMRec.
GRECO has in March 2022 issued a presentation Towards common standards for whistleblower protection in Europe and beyond to the Organization of American States.
In it GRECO advocates on behalf of the CoM to reduce the International whistleblower Standards and definitions. It alleges justification in the EU whistleblower directive.
GRECO claims:
CoE has called all its members (larger Europe – 47 countries) to draw on this example, PACE Resolution 2300(2019)
The PARes is the exact resolution where in point 5 member states are called to recognise any person can be a whistleblower, which the CoM explicitly rejected in favour of its CMRec.
Totally schizophrenic.
the European Committee on Legal Co-operation follows GRECO's example
In June 2022, the European Committee on Legal Co-operation (CDCJ) provided a report to the CoE, the Evaluation Report on Recommendation CM/Rec(2014)7 of the Committe of Ministers to member states (CDCJ20)
The document is an interesting mix between acknowledging the European Human Rights violations in defining and protecting whistleblowers, and still not letting go of the European mistakes on the other hand.
For instance, it recognises only:
two main issues identified in the 2019 report of the Council of Europe Parliamentary Assembly as requiring further attention with respect to the EU Directive are: > a) protecting legal entities (especially non-governmental organisations) for disclosing information on illegal practices or as “whistle-blowing facilitators” similar to the way in which journalists can protect their sources; and > b) ensuring protections for individuals working in the field of national security, including specific guidance regarding criminal prosecutions for breaches of state secrecy with access to a public interest defence.
The PARes lists 14 main recommendations, of which several have many sub recommendations. As an example, you will notice the CDCJ20 chooses to not refer recommendation 5 demanding any person can be whistleblower.
Idem in its overview of the UNCAC and ABC, CDCJ20 avoids acknowledging the CoE and EU are violating human rights in limiting the internationally recognised definition of whistleblower, reporting person and protections. In fact CDCJ20 justifies CMRec's discriminations, while acknowledging International Instruments demand any person can be a whistleblower entitled to protection:
The United Nations Office on Drugs and Crime (UNODC) published a Resource Guide on Good Practices in the Protection of Reporting Persons in 2015 which contains a number of good examples from around the world, including the work of the Council of Europe, and included a table of evaluation criteria for Recommendation CM/Rec(2014)7 (see Annex II). The Guide was designed to support the implementation of the provisions of the 2003 United Nations Convention Against Corruption (UNCAC) which provides for the protection of anyone, including witnesses and their relatives, from retaliation for reporting facts of corruption including limits on revealing their identities. By emphasising “facts concerning offences” UNCAC broadened slightly the scope of information that could be protected. However, because UNCAC relates primarily to corruption offences the emphasis taken at state level is more often focused on witness protection and the actions law enforcement can take rather than administrative protection measures and institutional capacity emphasised by Recommendation CM/Rec(2014)7 or even in the UNODC Resource Guide. Interestingly, the 2021 OECD anti-bribery recommendation refers to protecting against any retaliation, including in the workplace which further supports the importance of distinguishing between witness and law enforcement protections and whistleblower protection measures more broadly understood.
CDCJ20 aptly fails to acknowledge the UN's repeated and loud stance in the referred Resource Guide on Good Practices in the Protection of Reporting Persons, such as:
the need to provide protection for other reporting persons who would fall neither under the scope of the workplace-related whistleblower protection nor under witness protection. This would include persons who report information that is not sufficiently detailed as to constitute evidence in criminal proceedings, but still related to alleged corruption.
Also in CDCJ20's acknowledgement of the ISO standard, it aptly circumvents the ISO standard of any person can be a whistleblower. Instead, it re-justifies CMRec should govern how organisations and competent authorities handle whistleblowing concerns.
the ISO Guidance complements the principles and requirements of Recommendation CM/Rec(2014)7 and the EU Directive 2019 that should govern how organisations and competent authorities handle whistleblowing concerns by detailing a comprehensive management system.
The CDCJ20 acknowledges that the European Court of Human Rights argued under article 10 of the European Declaration of Human Rights that non limiting whistleblowing is in the public's interest
“in a democratic system, omissions of governments must be subject to close scrutiny, not only by the legislative and judicial authorities, but also by the media and public opinion”
And at the same time it vindicates CoM and EU legal instruments discriminating against media and public opinion, against much corruption discovered outside work relations.
It seems the CDCJ20 battles to justify CoM and CoE wrongdoing in the context of explicit international instruments and standards.
Or how the ego of European state ministers gets in the way of doing the right thing, which the parliament and international instruments have been demanding for over a decade.
The CoM and its organs GRECO and CDCJ really laugh at the European public.
Accountability transfers
Let's have a look at the risk of accountability in the context of implementation versus violation of the different instruments. The table below provides a personal appreciation without the nuances set out in this post series:
| convention | open | entry into force | any person | protection |
|---|---|---|---|---|
| ABC | 21 NOV 1997 | 15 FEB 1999 | YES | YES |
| CRCC | 27 JAN 1999 | 01 JUL 2002 | YES | lacking |
| CICC | 04 NOV 1999 | 01 NOV 2003 | NO | NO |
| CRCC-AP | 15 MAY 2003 | 01 FEB 2005 | YES | - |
| UNCAC | 09 DEC 2003 | 14 DEC 2005 | YES | YES |
| EWD | 23 OCT 2019 | 17 DEC 2021* | NO | lacking |
Why?
Remember the OECD Recommendation of the Council on Public Integrity (REC) ? It details how the capture of public policies by narrow interests is a vehicle for wrongdoing:
where public decisions over policies are directed away from the public interest towards a special interest, (they) can exacerbate inequalities and undermine democratic values, economic growth and trust in government.
In our leaders, our ministers, capturing public policies and unilaterally enacting laws against the public's demand and international standards, human rights violating liabilities are imposed by the CoM upon CoE member states.
By capturing public policy, our ministers provide our countries the legal tools to allow for persecution of whistleblowers. In so doing our governments, whom are all parties to the UNCAC and ABC, consider their international engagements as a to be violated doormat. The shared solutions for all humanity are to our European leaders vapourware.
It gives our governments the power to create a culture of distrust, denial of protection, and ultimately for people to see and experience the hardship which daring to speak up against wrongdoing, corruption, brings. In Europe, the alleged global front-runner for human rights, and against corruption, politicians engage a culture against transparency and accountability.
Why? What advantage do our national ministers have to impose on us legal instruments that go against their own marketing and the public interest?
Do Pandora's boxes of wrongdoing need to remain uninvestigated?
The next post goes on to examples.
- part 1 { Whistleblowers in Europe: lawmakers reduce opportunities to report wrongdoing }
- part 2 { Whistleblowers in Europe: efforts to keep Pandora's box closed }
- part 3 { Whistleblowers in Europe: how states waltz around Human Rights }
Tags: #Rights #Whistleblower
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