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Who is a whistleblower?

published 06 April 2021 at 10:11

The Law of Ukraine “On corruption prevention” in Section VIII “Protection of whistleblowers” defines requirements for classifying a person as a whistleblower, guarantees protection, providing conditions for reporting information on possible facts of corruption or corruption-related offenses or other violations of the Law of Ukraine “On corruption prevention”.

Herewith, Ukrainian legislation distinguishes between applicants and whistleblowers. The difference between them is that anyone can report about corruption if they are convinced that their information is reliable. But it is not always the one who reports about corruption who is a whistleblower.

Whistleblower is a person who provides reliable information about corruption offense, if this information became known to this person during work, professional, economic and / or public activities.

Differences between a whistleblower and applicant are that:

1. The Law of Ukraine “On corruption prevention” has requirements for the source from which a whistleblower received / obtained information about corruption. The source of information can be:

working and professional activity – that is, when the one becomes aware about corruption offenses during work,

economic activity,

social activities,

research activities,

service or training,

participation in statutory procedures that are mandatory for the commencement of such activities, service or training.

 

2. Whistleblower has factual data on the circumstances of offense: the place of offense, time of its commission, person who committed corruption. This information can be verified and confirms possible commission of corruption. It is also possible to provide documents proving a crime.


3. Whistleblower reports about corruption using legal means. These methods are mentioned in the Law of Ukraine “On corruption prevention” (https://zakon.rada.gov.ua/laws/show/1700-18#Text).

As follows, information about corruption offences and violations can be reported through the following channels:

internal – to the head or authorized subdivision or person of the body where a whistleblower works;

regular – to specially authorized entities in the anti-corruption sphere, pre-trial investigation bodies, bodies responsible for monitoring legislative compliance in the relevant areas, other government agencies, institutions and organizations;

external – through media, journalists, public associations, trade unions, etc.

However, if a person reports information that clearly contains signs of corruption, in a letter or during a personal reception, such information is also considered as a whistleblower’s report if all of the above conditions are met.

If a person who reports about corruption offence / violation has met three conditions, he or she is considered being a whistleblower. If at least one of the points is not taken into account when reporting about corruption – a person is an applicant.

Clarifications of the National Agency on Corruption Prevention on this issue can be found at: https://wiki.nazk.gov.ua/category/vykryvachi-koruptsiyi/

State Tax Service of Ukraine by Order № 382 as of 26.03.2021 approved the list of specially authorized persons for reviewing corruption reports, who are responsible for providing methodological assistance and advice to employees on reporting about possible facts of corruption or corruption-related offenses, carrying out preliminary checkouts and verification of information stated in the corruption report, inspections and / or official investigations in case of confirmation of facts stated in the corruption report. This Order can be found at https://tax.gov.ua/diyalnist-/zakonodavstvo-pro-diyalnis/nakazi-pro-diyalnist/75310.html.

According to Article 53-9 of the Law of Ukraine “On corruption prevention”, the powers of authorized units (authorized persons) for corruption prevention and detection in protection of whistleblowers include:

1) organization of work of internal channels on notification of possible facts of corruption or corruption-related offenses, other violations of this Law, receipt, organization and processing of information reported through the relevant information channels;

2) cooperation with whistleblowers, ensuring observance of their rights and guarantees of protection provided by the law;

3) provision of employees of the relevant body or legal entity or persons who serve or train in them or perform certain work with methodological assistance and advice on reporting regarding possible facts of corruption or corruption-related offenses, other violations of this Law and protection of whistleblowers, as well as internal training on these issues.

Authorized units (authorized persons) for the corruption prevention and detection have a right to exercise their powers in the whistleblowers’ protection sphere:

1) to demand documents from other structural subdivisions of the relevant body or legal entity, including those containing information with limited access (except for state secrets) and to make or receive copies of them;

2) to invite (call in) and interrogate persons whose actions or omissions relate to facts reported by a whistleblower, including the head, deputy heads of the body, institution and / or organization;

3) to apply to the National Agency for violated rights of a whistleblower and his / her relatives;

4) to submit a file to head of the relevant body or legal entity on bringing the perpetrators to disciplinary responsibility for violation of this Law;

5) to exercise other powers stipulated by legislation, aimed at comprehensive consideration of a whistleblowers’ reports and protection of their rights and freedoms.