Whistleblower status and reporting procedure
In accordance with Law of 4 February 2022 No. 6(I)/2022 “On the Protection of Persons Reporting Breaches of Union and National Law” (Ο περί της Προστασίας Προσώπων που Αναφέρουν Παραβάσεις του Ενωσιακού και Εθνικού Δικαίου Νόμος του 2022) the whistleblower is a natural person who discloses information that came to his/her knowledge in the exercise of his/her professional (work) duties and concerns the following violations which were or are being committed or can be reasonably expected to be committed:
- crimes or administrative offences in an area regarding the interests of the European Union, including public procurement, provision of financial services, financial products and performance of operations in financial markets, money laundering and terrorist financing, protection of confidentiality and personal data, network and information security and some others;
- acts or omissions against EU financial interests damaging them;
- acts or omissions against the rules of the EU single market, including competition rules and the rules for the provision of public aid and taxation;
- crimes, including corruption, as provided for by Cyprus’s domestic legislation;
- crimes or administrative offences which endanger or are likely to endanger the safety or health of any person;
- acts or omissions that cause or are likely to cause damage to the environment;
- acts or omissions violating any obligations imposed on legal persons.
The following persons can be considered as whistleblowers:
- employees of public or private sector organisations, civil servants;
- suppliers, contractors or subcontractors of bodies (organisations) and any persons acting under their supervision or direction;
- shareholders or persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members;
- volunteers and paid/unpaid trainees;
- former employees and civil servants;
- persons seeking employment or at other stages of pre-employment relationship.
In order to make a disclosure, these persons can:
- use internal channels if the violation can be eliminated by the in-house efforts and the whistleblower is sure that he/she does not run the risk of retaliation;
- use external channels in other cases;
- make a public disclosure, for instance, to the media, but only 1) if the disclosure made through the internal and/or external channels was not followed in due course by an appropriate response; or 2) if he/she has strong reasons to believe that it can endanger public interest or there is a serious emergency while it is highly likely that internal and/or external reporting will lead to retaliation against the whistleblower or will considerably decrease the possibility of an effective investigation of the disclosed violation.
Under the Law, the private sector organisations with at least 50 employees, the public sector organisations (regardless of their stuff numbers) and authorities should establish internal reporting channels. These should ensure the confidentiality of whistleblowers and other third persons the information about whom is contained in the reports filed and limit the access of unauthorised employees to such information.
Additionally, the body (organisation) should appoint a person (division) responsible for ensuring the functioning of the relevant mechanism.
The Law also obliges the competent authorities authorised to receive reports and controlling, overseeing or investigating the acts relevant to the area regulated by the Law to establish independent and autonomous external channels that would:
- ensure that the information is exhaustive, duly stored and its confidentiality is preserved; unauthorised officials do not have access to it and it is guaranteed that if a report is made to an unauthorised official, the relevant information will be immediately forwarded to the employee authorised to process it;
- ensure the possibility to report in writing and/or orally (by phone, voice messages, in personal reception).
The competent authorities should also appoint the employees responsible for processing the reports made through external reporting channels. These employees should attend prior specialised training while the competent authorities should periodically - at least every three years - assess the effectiveness of the reporting mechanism and response measures.
Protection of whistleblowers
According to the Law, the protection is granted to:
- the whistleblower, if he/she had reasonable grounds to believe that the information was reliable at the moment of its disclosure and used the channels provided for by the Law to make the reporting with the information falling under the scope of the Law; in this context, the protection is granted to the whistleblower who made the initial disclosure anonymously but was subsequently identified and suffered from reprisals;
- the persons who facilitated the reporting;
- the persons associated with the whistleblower who can be subject to reprisals such as his/her colleagues or relatives up to the forth degree of affinity;
- the organisations owned by the whistleblower or controlled by him/her, where he/she works or with which he/she is connected by professional relationship.
The protection of whistleblowers provides for:
- the protection of witnesses in criminal proceedings with full access to the means of legal protection and compensation for damage;
- the guarantees to access the courts to protect rights and interests;
- the provision of necessary assistance by the competent authorities to the whistleblowers to ensure their protection;
- the exemption of the whistleblower from liability for the failure to comply with the requirements concerning the confidentiality of the information disclosed or the restrictions to obtain such information due to its disclosure;
- the protection from retaliation against the whistleblower, i.e. acts or omissions that directly or indirectly inflict or can inflict an unjustified damage on the whistleblower: any reprisals against whistleblowers are inadmissible, and employers should adopt measures to protect whistleblowers from retaliation.
The Law defines retaliation as:
- dismissal or other equivalent measures;
- demotion, refusal to promote the employee or violation of other labour rights of the employee;
- changes to working conditions (range of duties, place of work, amount of wage, working hours etc.);
- refusal to transfer the employee from a fixed-term to permanent contract, if the employee had reasonable expectations in this regard, as well as failure to renew the fixed-term labour contract;
- negative assessment of performance or bad references for subsequent employment;
- inclusion in the black list based on a sectoral agreement, which can lead to the impossibility for the whistleblower to get any future employment in the sector;
- early termination of the supply or services contract;
- imposition of disciplinary sanctions;
- intimidation, coercion to certain actions;
- infliction of material and immaterial damage, including defamation, provocation of financial losses etc.;
- revocation of a licence or other authorising documents;
- referral to psychiatric or medical examination etc.
The dismissal, changes to working conditions and the adoption of other measures regarding the labour rights of the employee (servant) who has disclosed a violation is possible only if the employer manages to prove that it is not related to the disclosure.
The Law also contains provisions on criminal liability for the failure to comply with the established requirements in the case of:
- interference with reporting or processing of a report;
- retaliation against the whistleblower with regard to the disclosure of a violation he/she has made, and failure of the employer to adopt the measures to prevent or eliminate the retaliation;
- initiation of unjustified court proceedings by the employer against the whistleblower;
- failure to preserve the confidentiality of the whistleblower’s data;
- deliberate reporting of knowingly unreliable information by the whistleblower.
These offences are punished with an imprisonment of up to three years and/or a fine of up to €30,000 for natural persons, and a fine of up to €30,000 for legal persons.
At the same time, the Law provides for the possibility to halve the sanctions for those who cooperate with the investigation:
- the persons found guilty of active bribery in the event that the information provided by them allowed initiating criminal proceedings against the corrupt;
- the persons found guilty of passive bribery in the event that their cooperation with the investigation led to the initiation of criminal proceedings against the officials involved in the corruption crime with these persons returning the unlawful advantage they had gained.