Whistleblowers in Europe: lawmakers reduce opportunities to report wrongdoing

This three part post is about the Council of Europe, the European Union and their member states denying whistleblower rights, and in so doing enable corruption to flourish. This part 1 discusses the legal background and relations of power.

Whistleblower definitions by the Organisation for Economic Co-operation and Development (OECD) Anti-Bribery Convention (ABC) and the United Nations Convention Against Corruption (UNCAC) and other international institutions such as the International Standards Organisation (ISO) were already discussed.

They all boil down to the definition of a whistleblower being any person who reports wrongdoing in good faith. Protection is mandatory. But what about Europe?

Whistleblower definitions by the Council of Europe and the European Union

Council of Europe – CoE

CoE Criminal Law Convention on Corruption (CRLCC) (ETS No. 173) September 27th 1999

This convention does not go on to define reporting persons or whistleblowers. In so doing it does not create any possibility to discriminate other then its article 22:

Protection of collaborators of justice and witnesses Each Party shall adopt such measures as may be necessary to provide effective and appropriate protection for: a) those who report the criminal offences established in accordance with Articles 2 to 14 or otherwise co-operate with the investigating or prosecuting authorities; b) witnesses who give testimony concerning these offences.

So anyone reporting or witnessing any of the criminal offences is presumed protected. These offences are superficially defined, leaving room for interpretation. I condense the various provisions:

the promising, offering, giving, receipt by any person, directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, for him or her to act or refrain from acting.

In particular when:

public officers, mayors, ministers or judges, including prosecutors and holders of judicial offices

commit acts of:

active or passive bribery, trading in influence, money laundering, account offences

These terms leave room for much interpretation, particularly if one is to consider the European Convention on Human Rights or any other human rights instrument.

It is clear under the CRLCC, anyone can report, and must be protected for reporting or witnessing a vast array of offences.

It is by no means as comprehensive as UNCAC or ABC, but at least it does not limit who is considered a whistleblower or witness.

CoE Additional Protocol to the Criminal Law Convention on Corruption (CRLCC-AP) (ETS No. 191)

It expands the CRLCC by adding definitions for arbitrators and jurors. It is only of interest in so far as under arbitrators is specified any member of the judiciary and by parties appointed mediators.

CoE Civil Law Convention on Corruption (CILCC) (ETS No. 174)

The CILCC does not go on to define reporting persons or whistleblowers.

It does define corruption as:

requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behaviour required of the recipient of the bribe, the undue advantage or the prospect thereof

It only provides very limited protection in its article 9 for employees:

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

Having said that, its opening article 1 offers some vague protection for victims:

effective remedies for persons who have suffered damage as a result of acts of corruption, to enable them to defend their rights and interests, including the possibility of obtaining compensation for damage

So if the whistleblower is not a victim or employee, there is no protection under the CILCC. It is also clear victims have to be provided the means for them to defend their rights, and can claim compensation.

The question here is whether whistleblowers by the act of whistleblowing do not automatically become victims if they can not provide for their defence and/or suffer hardship. I argue whistleblower are always victims.

Group of States against Corruption – GRECO

The GRECOis the CoE member states corruption watchdog. It reviews states are correctly implementing the CoE conventions and Council of Minister (CoM) legal instruments, and combats corruption within that strict limiting framework.

While the CoE has 46 member states, the GRECO has 50. That is because CoE observing states have also become a full party to GRECO.

While GRECO claims to have “zero tolerance of corruption”, it advocates through its member states reports systematically for reducing the definition of whistleblowers and their protection. Indeed, states are reviewed through by CoM imposed international instruments, which are the source of the reduction in human rights.

European citizens disagree with authorities

CoE Committee of Ministers (CoM)

The CoE Committee of Ministers (CoM) are the government ministers who are the decision-making body of the CoE. You read that right. At the CoE the non parliamentarians decide.

In 2010 a CoM whistleblower recommendation reply acknowledged:

the existing international legal framework that protects whistle-blowers from any form of retaliation, which includes, interalia, the UN Convention Against Corruption, the 1992 ILO Convention No. 158 concerning Termination of Employment, the Council of Europe’s Criminal Law and Civil Law Conventions on Corruption (ETS No. 173 and No. 174) and Article 10 of the European Convention on Human Rights concerning freedom of expression and information.

Both UNCAC and Art. 10 of the European Convention on Human Rights, and its own CoE CRLCC for that matter, recognise as whistleblower any person reporting any wrongdoing without ill intent.

The CoM first delayed providing an answer to the public's demand for a broad whistleblower convention:

The Parliamentary Assembly also proposes the drafting of a framework convention (paragraph 2.3) in this field. The Committee of Ministers may come back to this issue once it has taken a decision on the possible elaboration of guidelines.

The result came in 2014 when the CoM adopted Recommendation CM/Rec(2014)7 (CMRec). The CoM markets the CMRec publicly as “strengthen whistleblower protection laws and European standards”.

It is explicit acknowledgement by the CoM their CMRec are not international standards but European standards.

The non international standard which is set by the CMRec is to exclude many forms of whistleblowing. Such as discriminating against any whistleblowing of information obtained outside the context of one's job.

GRECO has to execute what its decision-making body demands. It doesn't prevent the CoM to then argue GRECO reports say whistleblowing can only be work related. A vicious human rights violating circle ensues of CoM saying GRECO said and GRECO repeating CoM instruments. This vicious circle fuelling human rights violations has been ongoing for a decade.

CoE Parliamentary Assembly's (PACE)

The PACE is the public's representative at the CoE. They are parliamentarians from member states. Ever since its first initiative in 2007 PACE has endeavoured to improve and widen whistleblowing. PACE realised already back then the CoE had a fundamental problem, disrespecting international instruments and standards such as UNCAC and ABC.

The PACE special rapporteur, Sylvain Waserman, presented a motion for a resolution on the subject of whistleblowers on January 23rd 2018. It was co-submitted by 51 PACE members and went through the formal process of reports, amendments, recommendations. It reached the status of resolution on October 1st 2019, and the final text was adopted the same day with a whopping 128 in favour, 0 against and 18 abstentions. Meet the Resolution 2300 (2019): Improving the protection of whistle-blowers all over Europe (PARes)

The voice of the public, the parliamentary assembly, can not be clearer on the need and willingness to improve whistleblowing protection in Europe and beyond.

Because CoE member states are subject to UNCAC and ABC, this adopted resolution is a groundbreaking attempt at brining the CoE member states in line with their international obligations. The resolution recognises there are important problems with the current legal status of whistleblowers in Europe and CoE shortcomings.

The PARes highlights the many protection shortcomings, and importantly imposes that any person can be a whistleblower.

The term whistle-blower must be broadly defined so as to cover any individual or legal entity that reveals or reports, in good faith, a crime or lesser offence, a breach of the law or a threat or harm to the public interest of which they have become aware either directly or indirectly

The PARes also criticises the subsequent EU Whistleblower directive (EWD), and in some way alerts to the problems that lawmakers are creating by enacting it.

European Whistleblower Directive (EWD)

Let's go EU heavyweight: DIRECTIVE (EU) 2019/1937 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 October 2019 on the protection of persons who report breaches of Union law. If you have not broken your tongue after reading this title, I apologise for calling it the European Whistleblower Directive (EWD).

The EWD takes over the CMRec instead of the PARes, and builds on the former's reduction of whistleblowing possibilities to further reduce possibilities to report wrongdoing:

The Directive is limited to providing for protection within its competencies – i.e., breaches of EU law.

I fail to understand why everyone applauds this discriminating, international law and human rights violating directive, which member states MUST have translated into national law by end 2021. Due to member states not doing so, it got delayed for a year till December 2022, ... and still member states have not all appropriately enacted whistleblower protection laws.

To be continued ...

Tags: #Rights #Whistleblower

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