The new Law establishes the legal status of corruption whistleblowers and the procedure for disclosures. In addition, it provides for the possibility to receive a monetary reward and introduces mechanisms for legal protection of these persons. The new amendments to the Ukrainian legislation are a continuation of a series of anti-corruption reforms, which adoption was necessary for Ukraine, in particular, for receiving the IMF monetary tranches: specifically, a specialized anti-corruption court was constituted and amendments establishing illicit enrichment as a criminal offence were introduced to the criminal law.
According to the Law, whistleblower is a natural person reporting in good faith and on reasonable grounds any factconcerning presumed corruption offences of which he/she became aware in the course of his/her labour, professional, economic, social or scientific activities, service, studies or participation in the procedures preceding such activities.
The law provides for three reporting channels:
- internal: disclosure of information to a superior or a designated person within their organization;
- external: public disclosure of information, including to the media and journalists, public associations, trade unions, etc.;
- regular: protected disclosure of information through the channels of the National Agency for Prevention of Corruption (NAPC), National Anti-Corruption Bureau of Ukraine (NABU) or any other authority which is competent in the issues related to the disclosed information.
In order to enable whistleblowers to make use of internal and regular channels NAPC, NABU, other public bodies, local government authorities, public organizations and enterprises that participate in public procurement should establish protected reporting channels for disclosures (including anonymous ones) such as on-line forms on their official web sites, hotlines and emails that guarantee whistleblowers the confidentiality of their personal data.
The corruption disclosures received via regular and internal channels are subject to a preliminary verification: anonymous ones within the term of 15 working days from the date of their receipt, which can be extended to 30 working days, whilst for the others the term does not exceed 10 working days. The verification may result in internal investigation that should be conducted within 30 working days from the date of the conclusion of preliminary verification (if necessary, its term may be extended to 45 working days) or the case may be referred to the law enforcement bodies if the disclosed information contains elements of a criminal offence. If the facts outlined in the disclosure are not confirmed the proceeding terminates there.
Apart from establishing internal channels, public bodies, local government authorities, public organizations and enterprises, participating in public procurement, should:
- provide for efficient functioning of reporting channels and processing of the reports on presumed facts of corruption;
- develop and formalize in internal regulations the procedures for the verification of such reports;
- adopt the measures for promoting the culture of encouragement of reporting on presumed facts of corruption or offences related to corruption;
- provide employees with guidance and advice on the issues related to the disclosure of such information and the subsequent protection of whistleblowers.
NAPC is also delegated the power to conduct regular verifications of the efficiency of internal channels of reporting on presumed corruption offences in such bodies and organizations. Apart from that, NAPC should maintain a roster of the received reports on corruption and maintain the statistics on the number of reports on corruption, persons convicted of corruption crimes, the information on the amount of damages and harm incurred as a result of corruption offences as well as on the number of persons in respect of whom the protection measures were applied in order to protect them from retaliation on the grounds of their disclosures.
The document significantly extends the boundaries of legal protection of the employees who make corruption disclosures:the persons who have the status of whistleblower and their close associates should not be denied the right to employment, fired or forced to resign of their own will, be subject to disciplinary proceedings or other retaliation measures (for instance, reassignment to another position or place of work (service), extraordinary professional assessment examination, change in working conditions, reduced opportunity for advancement, pay reduction, etc.) if these measures are applied by the employer because of the disclosure of an offence.
The Law also provides for the mechanisms for a financial compensation of the damages incurred by a whistleblower as a result of retaliation by his/her employer. In case the employee who made a disclosure is suspended from his/her duties through no fault of his/her own, throughout the period of suspension he/she receives the remuneration equal to his/her average wage for the past year. A whistleblower and his/her close associates who are dismissed on the grounds of a disclosure of presumed corruption offences should be reinstated in their posts and receive a compensation equal to their average wage that they should have got in the period of their enforced absence, which however should not exceed one year. If the application for reinstatement is examined for over a year through no fault of the dismissed employee, the employer should provide for the compensation of his/her wage for the whole period of enforced absence.
Furthermore, free legal assistance is guaranteed to whistleblowers and their close associates. The persons who enjoy this status will be provided with a lawyer and the protection of law enforcement bodies. If a whistleblower had to neglect his/her professional duties to make a disclosure, he/she is immune from any legal liability for the misconduct when he/she is granted the status of whistleblower.
The Law also provides for sanctions for retaliation against whistleblowers and for the reviling of information on their identity. For instance, the breach of confidentiality of personal data of a whistleblower is subject to an administrative penalty in the form of fine of one to two and a half thousand of Ukraine’s non-taxed minimal wages (from 4.7 million to 11.8 million of hryvnias or roughly from 188.000 to 472.000 USD) plus the loss of the right to hold certain positions and to engage in certain activities for the period of one year, meanwhile the unjustified dismissal of such a person is subject to criminal liability and the penalty in the form of fine of up to fifty Ukraine’s non-taxed minimal wages (up to 236.000 hryvnias or around 9.500 USD) or the loss of right to hold certain positions and to engage in certain activities for a period of up to three years or community service for the period of up to two years.
Besides the improvement of the mechanisms for the protection of whistleblowers, the new Law provides for a reward for corruption disclosures. The right to the reward is granted to a corruption whistleblower if the illegal proceed of the corruption offence and the damage incurred by the State is five thousand or more times as much as Ukraine’s non-taxed minimal wage (i.e. 23.6 million of hryvnias or nearly 945.000 USD). The amount of the reward in this case may be of up to 10 percent of the proceeds of a crime or the damage caused by it, but it cannot exceed 3.000 Ukraine’s minimal wages (14.2 million hryvnias or around 570.000 USD).
The reward, however, is not provided in case a whistleblower discloses information under a plea agreement, is an accomplice to the crime about which he/she discloses information or has to report the offence in accordance with his/her professional functions (duties).
It should be highlighted that some provisions of the Law have caused mixed public reaction. In particular, criticism was leveled at the possibility to make an anonymous disclosure of a corruption offence, provided by the Law. It outlines the minimum requirements for such an anonymous disclosure: it should contain the information on a corruption offence that should be verified and concern specific persons. This circumstance seems to increase the risks of false disclosures. At the same time, the penalties for defamation, provided by Ukraine’s criminal law appear to be not sufficient to avoid such risks: the person reporting knowingly false information may be held criminally liable and fined up to fifty Ukraine’s non-taxed minimal wages (up to 236.000 hryvnias or around 9.500 USD) or imposed conditional imprisonment of up to six months. Therefore the Ukrainian authorities have already announced an eventual necessity to revise the provisions of the criminal law in order to tighten the liability for this kind of false disclosures.
In accordance with the Law, the person who enjoys the status of whistleblower is also granted the right to refuse to provide explanations of to testify. This means that the investigation may lose its chief witness, which will considerably complicate the investigation, especially in the event of an anonymous disclosure. Such an approach differs radically from the guiding principles for drafting relevant legislation of developed Western countries. Most notably, according to the EU Directive on the protection of persons who report breaches of Union law the law enforcement bodies should have the power to ask whistleblowers to provide further details or explanation about the offences they disclose.
Finally, the conditions for paying a reward to a whistleblower are questionable. According to the provisions of the Law such a reward is given after conviction. However, the Law does not specify whether the damages of the crime incurred by the State should be compensated at the time the reward is paid. This means that according to the current version of the Law, a whistleblower may count on receiving a reward directly from the public budget of the country even if the public assets stolen in that crime are not returned to it.