Article 8.4. and 13.2.
Reporting Mechanisms and Whistleblower Protection

Article provisions:
8.4. Each State Party shall also consider, in accordance with the fundamental principles of its domestic law, establishing measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions.

13.2. Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies, where appropriate, for the reporting, including anonymously, of any incidents that may be considered to constitute an offence established in accordance with this Convention.
State evaluation
Public evaluation
Ukraine has generally implemented the UNCAC requirements on reporting corruption and whistleblower protection mechanisms in national legislation. There is a certain lack of law regulation regarding specifications for reporting channels, the ways of reporting specific information, and certain guarantees for the protection of whistleblowers.
The legislation is not always successfully enforced. Despite the fact that in practice there are a sufficient number of channels for reporting corruption, insufficient guarantees of anonymity, confidentiality and the possibility to report specific information do not facilitate their active use. Despite the tangible lack of human resources, the work of the body designed to protect whistleblowers (NAPC) can be assessed positively. However, the tools available in the NAPC to protect whistleblowers are not fully effective, in particular, due to numerous opportunities to avoid liability, the prescriptions of the body are not executed. This practice, together with numerous violations of protection guarantees and occasional legal problems, are significant challenges to the effective protection of whistleblowers of corruption.

In short:

State of implementation

Legal framework
The issue of protection of whistleblowers, reports of acts of corruption, payment of a reward to whistleblowers, etc. is regulated by the Corruption Prevention Law of Ukraine. In 2019, the law was supplemented with the section on whistleblowers, so there is no widespread practice of its application yet.

According to the law, a reporter of acts of corruption (a whistleblower) can only be an individual who:

  1. Has information about the commission of an act of corruption or corruption-related offense or other violation of the Corruption Prevention Law, and is convinced of such commission;
  2. Has received such information while exercising his or her employment, professional, economic, social, scientific activity, service or training or participation in the procedures provided by law, which are mandatory for the beginning of such activity, service or training;
  3. And has reported such information.

A whistleblower can report corruption through three channels available for reporting: internal channels (to send an allegation to the body where a whistleblower works); external channels (allegations made through other persons); regular channels (allegations to the authorized bodies, namely, the Prosecutor’s Office, National Police, National Anti-Corruption Bureau of Ukraine (NACBU), State Investigation Bureau (SIB), and National Agency of Corruption Prevention (NACP)). All state bodies, local self-government bodies, and legal entities under public law are obliged to maintain and ensure the functioning of internal channels. In turn, the prosecutor’s offices, the police, the NACBU, SIB, and the NACP, in addition to internal channels, are obliged to ensure the functioning of regular channels.

Regardless of how an allegation is sent, it is to be registered in the Unified Whistleblower Allegation Portal, i.e., a special system that accumulates information about all allegations made by whistleblowers. The portal is held by the NACP, and access to the portal is limited.

A whistleblower’s allegation is considered within 10 days, and in case of confirmation of the facts an internal investigation begins, or the materials of the case are handed over to the pre-court investigation body. If a whistleblower’s allegation is based on conjecture or unconfirmed information, it is returned to the whistleblower and is considered as an inquiry made by a citizen.

Despite that the general rule sets forth reporting as a voluntary act, certain individuals are obliged to report. In particular, civil servants are obliged to report about every fact he or she discovers or every allegation he or she receives about an act of corruption offense committed by a public official.

To protect whistleblowers and their the closest, the Corruption Prevention Law provides appropriate guarantees, in particular:

  1. Protection against unlawful encroachments on life, health, property, etc. (with security, means of protection, possible change of documents and/or appearance to be provided);
  2. Protection of labor rights (impossibility of dismissal, refusal to employment, or bringing to disciplinary responsibility);
  3. The right to confidentiality and anonymity;
  4. The right to receive free legal and psychological assistance;
  5. The right to be released from legal liability (in definite cases);
  6. The right to receive an award (in the case of an allegation about an act of a corruption offense that has caused the state damage in the sum of approximately EUR 372000. The amount of an award is 10% of the damage but may not exceed approximately EUR 562000).
Implementation in practice
As mentioned above, the institute of whistleblower protection is quite new for Ukraine, which is why there is no widespread practice of using this institute yet. Therefore, the effectiveness of the new legislation and its implementation is assessed through specific cases and recently obtained statistical data.

2.1. Allegation About Act of Corruption

The current Corruption Prevention Law provides for the functioning of the Unified Whistleblower Allegation Portal. However, its creation was provided only by recently made amendments to the legislation, and as of November 2021, the Portal has not yet been created. The NACP plans to launch its full-fledged work in early 2022. Therefore, the mechanism for reporting corruption is assessed based on previous practice and available reporting channels.

Recently, civil society representatives published the monitoring report on the implementation of the Corruption Prevention Law in terms of the protection of whistleblowers by certain executive bodies. This report, in particular, examines the functioning of internal reporting channels. According to its results, the researchers concluded that as of the end of 2020, most of the analyzed bodies are fragmentally compliant with the requirements of the Corruption Prevention Law in terms of allegations of whistleblower and their protection. Experts argue that:

  • The statistical information received from state bodies shows that there is no linkage between the number of allegations and the methodological/informational work with whistleblowers. The body can receive hundreds of allegations, but provide methodological assistance in respect of a small number of them. It indicates both the poor quality of allegations and the poor level of qualification, skills of the employees of the analyzed bodies, and their non-ability to work with whistleblowers.
  • In general, the main pages of official websites of the analyzed bodies contain links to the “To report corruption” website section. These sections provide basic information for making an allegation. However, there are doubts about the anonymity and confidentiality of the reporting channels.
  • Most of the analyzed bodies have internal rules of procedures for receiving, reviewing, and verifying allegations. Moreover, most of the analyzed bodies have implemented mechanisms to encourage and cultivate a culture of reporting.

Having analyzed the regular channels of reporting that operate in the NACBU, NACP, SIB, the Ministry of Internal Affairs, and the Prosecutor’s Offices, it can be argued that, in general, they provide appropriate conditions for reporting. The NACBU, NACP, SIB, the Ministry of Internal Affairs have maintained a capacity to report through a fairly convenient and user-friendly online form on their websites, via e-mail, or by phone. The Office of the Prosecutor General and the National Police provide the capacity to report only corruption or other violations committed by specific employees of these bodies, and it is not possible to report corruption committed in other structures. All these websites retain the ability to submit allegations anonymously. Relevant sections with the facility to submit an allegation can be easily found on the official websites of all these bodies.

Despite the capacities available for reporting corruption to law enforcement authorities, there is one sufficient problem that is pointed out by whistleblowers. In particular, if a corruption allegation is submitted via e-mail, or online form on the website, or by telephone, the person will not be able to receive prompt official confirmation that his or her allegation is made. As a result, it is difficult to promptly appeal to the court the refusal of the law enforcement agency to register (or delay in registration) his or her allegation, as there is no document confirming its submission. This concern was also confirmed by representatives of some law enforcement agencies when we had a telephone conversation with them. They indicated that an official letter should be sent to the body to obtain such a confirming document.

The whistleblowers we interviewed believe that there are currently no significant obstacles to reporting.

In their views, every citizen is free to report corruption, as there are enough tools and information support for this. Nevertheless, the experts are concerned about some problems in this context:

1) Lack of mechanisms for reporting corruption related to the state secrets. Factually, the law does not regulate the specifics of reporting corruption that is related to the state secrets. That is why whistleblowers, due to fear of responsibility for the disclosure of a state secret, are reluctant to report it. Moreover, whistleblowers of such corruption are limited in their use of external channels of reporting, as the persons to whom they can report (journalists, MPs, etc.), due to law restrictions, will not be able to process such information. This problem is currently extremely pressing for Ukraine, as during the war in the east of Ukraine there are many corruption schemes related to defense procurement.
An example to emphasize this problem is the “Case of the Lviv Tank Factory”. A person anonymously reported a corruption scheme related to public procurement of engines for tanks, which caused the state losses in sum of EUR 442000. The procurement of the engines, in this case, was secret and that is why it can be assumed that the whistleblower wished to remain anonymous because he understood that he could be prosecuted for disclosure of the state secret.

2) Lack of guarantees of anonymity and confidentiality in practice. The civil society experts argue that the authorities approach the creation of reporting channels formally. As a result, e-mail boxes and allegation record books can be accessed by a wide range of people. Besides, state bodies hardly have proper software able to protect the confidentiality and anonymity of electronic messages. Subsequently, allegations are received by the authorities without proper protection. This problem, according to experts, arises due to the lack of law regulation of these issues. Neither the law nor the by-laws specify requirements for software to protect reporting channels. This situation can be explained by the lack of financing for state bodies to create adequate protection of reporting channels. That is why the NACP head believes that the creation of the Unified Whistleblower Allegation Portal will not only ensure confidentiality and anonymity but will also save significant funds of state bodies, compared to the option if each of them separately ensured the protection of channels.

For certain categories of people, there are other specific problems when they report corruption. For example, Larysa Holnyk, a judge-whistleblower, explains that a judge who is being tried for bribery (or who has faced corruption) is obliged, under the Law on the Judiciary and the Status of Judges, to report it to the High Council of Justice, as such kind of situation is understood to be the interference in the independence of a judge. In practice, consequently, the person a judge-whistleblower reports can get aware of the allegation made against him or her (for example, the chairman of the court, representatives of the judiciary). Thus, almost immediately after reporting, such a judge is more likely to be subjected to negative measures against him or her.

2.2. Protection of Whistleblowers

2.2.1. Instruments for Protection of Whistleblowers

The guarantees for whistleblowers set forth by the Corruption Law are violated quite often. Even during the short period of validity of the Ukrainian legislation on the protection of whistleblowers, several examples of such violations have already happened. Given this, it is crucially critical to ensure the effective functioning of the protection tools.

The NACP is the authorized body for the protection of whistleblowers. To exercise these powers, the NACP applies two main tools, namely, prescriptions and representation in court hearings.

1) Prescriptions. The prescription of the NACP is a law requirement addressed to the heads of state bodies, enterprises, institutions to eliminate violations of the law, conduct an internal investigation, bring law-breakers to justice, etc.. In the context of the protection of whistleblowers, a prescription is an operational measure taken by the NACP to respond to violations of whistleblowers’ rights, as its application requires only the will of the NACP. Nevertheless, the practice of prescriptions is not widely applied. According to statistical data, in 2020, the NACP made only 5 prescriptions aiming at the protection of whistleblowers.
The most famous case of application of the NACP’s prescription is the case of Oleg Polishchuk, a whistleblower. Mr. Polishchuk worked as an anti-corruption commissioner at the “Energoatom”, a big state-owned enterprise. In 2020, he reported facts of possible corruption offenses committed by the management of the SOE. After that, he was brought to disciplinary sanctions and dismissed, despite significant progress made in creating an effective compliance system in the enterprise. In March 2021, the NAPC issued two prescriptions, particularly, one prescription was made in respect of the Cabinet of Ministers requiring to conduct an internal investigation of the dismissal; and another one was directed to the head of “Energoatom” with a demand to reinstate the whistleblower. According to the results of the prescription, the Cabinet of Ministers commenced an internal investigation, which is still ongoing. Instead, the acting head of the enterprise (against whom the allegation was made) did not execute the prescription to reinstate Mr. Polishchuk. Consequently, the NACP drew up an administrative protocol against the head for non-compliance with the prescription, nevertheless he was not brought to justice. Later, the court revoked that prescription.

Another example of the application of a prescription by the NACP is the case of Larysa Holnyk, a judge-whistleblower. Ms. Larysa is a judge who reported corruption committed by the mayor of Poltava and the court administration. After that, the head of the court and colleagues started exerting pressure on her. In particular, she was illegally deprived of part of her court remuneration and pressured by various measures. In 2020, the NACP made a prescription in respect to the new head of the court requiring to pay the unpaid sum of a judge’s remuneration to Ms. Golnyk and to conduct an internal investigation against the former head of the court and other judges who exerted pressure on the whistleblower. Consequently, Ms. Golnyk was paid her money, but, according to her, the internal investigation was not actually conducted and the NACP did not respond properly.

Given examples lead to a conclusion that the prescriptions made by the NAPC are exercised partially, but, according to the whistleblowers, they nevertheless remain the operative tool for the restoration of their rights. In general, it can be argued that compliance with the prescription depends only on the will of the person to whom it was sent. This practice is primarily due to the lack of real responsibility for non-compliance with prescriptions. The reasons for this are:

  • Low extent of liability for non-compliance with prescriptions. The maximum sanction provided by the Code of Administrative Offenses is EUR 160. At the same time, the average fine applied by the courts in 2020 is only EUR 58.
  • Poor prosecution in courts for non-compliance with a prescription. In 2020, only 10 people were brought to justice in 50 cases (40 cases were closed by the court). In Section __ you can find more about the problems with bringing to administrative responsibility.
  • Cancellation of prescriptions by courts. Experts also believe that the reasons for non-compliance with prescriptions may be procedural errors made by the NACP during the issuance of prescriptions and lack among NAPC employees of experience in the application of the concept of prescriptions.

2) NAPC as a party to the litigation. To protect whistleblowers, the NACP often acts in litigation as a third party on the whistleblower’s side. Litigation involving the NACP mainly concerns the restoration of the violated rights of a whistleblower or appeals against prescriptions. The activity of the NACP in the use of this tool deserves a positive assessment. According to statistical data, in 2020, the NACP participated on the side of the whistleblower in 70 cases heard in courts. The effectiveness of this tool can be concerned, as it significantly increases the chances of whistleblowers to succeed in the case. In 2020, out of 23 court cases, the NACP succeeded in 15 cases.

A well-known example of the NACP involvement in the case of whistleblower protection is the case of Oleh Polishchuk. The court challenged the disciplinary sanction against Mr. Polishchuk and the closure of the dismissal proceedings by the National Police. In this case, the court sided with the whistleblower and, as Mr. Polishchuk points out, the NACP helped to represent his interests in court quite actively and efficiently.
Although it should be noted that the whistleblowers’ views on the activity of the NACP in court proceedings on their side differ. Thus, the judge-whistleblower Ms. Holnyk argues that the NACP did not take an active part in her cases, and some activity could be observed in cases that were of interest to the NACP.

Given that whistleblowing court practice is just beginning to take shape, the NACP's involvement in court cases is important. However, the NACP representatives have recently stated that they wish to hand judicial representation over free legal aid centers (LACs). Such statements have been sharply criticized by the civil society experts and whistleblowers, because, firstly, at the stage of formation of judicial practice it is necessary to involve as many resources of the profile body as possible, and secondly, the LACs are not much trusted by whistleblowers.

2.2.2. Methodological support of whistleblowers and NAPC capacity

Given the novelty of whistleblowing in Ukraine, it is essential to disseminate information about it to the public and provide methodological support. This function is performed by the NACP and, it should be noted that it copes with it quite well. Yes, the official NACP website provides clarifications on key issues related to whistleblowers and their protection. In 2020, an educational series about whistleblowers was released and a short-term training program on “Organization of work with whistleblowers in a state body” was developed . The NACP has also recently issued a practical guide for anti-corruption commissioners on working with whistleblowers. In addition, the NACP together with the public and international partners held an international conference on the protection of whistleblowers.

All whistleblowers we interviewed are generally positive about the work of the NACP. They talk about trust in this body and the good enough qualifications of employees. The whistleblowers claim that despite certain problems in the work of the NACP, the activities of the body are very important to ensure their guarantees. However, despite the many positive reviews, it is also necessary to point out certain problems in this context, namely:

1) Lack of resources. According to the experts, the NACP has limited resources to protect whistleblowers. In particular, the profile department employs only 9 people who have 70 cases. In addition, there is a problem with the protection of whistleblowers in the regions, as the NACP is located in Kyiv and has no regional offices. Thus, whistleblowers in the regions are actually in a worse position compared to whistleblowers in the capital.

2) Discrediting whistleblowers by the NACP. Despite the NACP’s being quite active in protecting whistleblowers, there are cases when the body has discredited whistleblowers it supported.

The first example is the case of Roman Marzhan, a whistleblower-prosecutor, who reported corruption schemes in the regional prosecutor’s office. After Mr. Marzhan reported and obtained the status of a whistleblower, the NACP drew up an administrative protocol against him for violation of the requirements for the prevention and settlement of conflicts of interest. As a result, the whistleblower appealed these protocols in court and won the case, but disciplinary proceedings were initiated against him in the prosecutor’s office. However, the most important thing in this situation is not so much the prosecution of the whistleblower as the public communication runs the NACP. The NACP posted information about the administrative protocol on its Facebook page with the full name and position of the whistleblower, which could have negatively affected Mr. Marjan’s reputation, like those his allegation was made against could use the post to discredit him.

The case of Oleh Polishchuk, we described above, is similar. Following the reporting corruption, the NACP included Mr. Polishchuk in the register of corrupt officials. The formal reason for his inclusion in the register was the violation of the Corruption Prevention Law in terms of his failure, being an anti-corruption commissioner, to create protected channels for reporting corruption. The ground for such entry to the register was the Order by the Director of “Energoatom” (against whom the allegation was made) “To exercise disciplinary measures” according to which Oleh Polishchuk was dismissed, and which he together with the NACP appealed to court.

By such actions performed by the NACP, whistleblowers are subjected to additional pressure. The information that the NACP applies similar measures against whistleblowers is used by the people, against whom whistleblowers report, to discredit the whistleblowers in the eyes of the public. Such practice of the NACP is not widespread, but even in some cases, it brings enough trouble to whistleblowers. Even in cases where there are grounds for bringing whistleblowers to justice, the NACP should avoid public disclosure of this information, as the harm to the whistleblower may outweigh the public interest in the disclosure of such information.

2.2.3. Pressing Issues of Whistleblower Protection

The introduction of law novels is almost always accompanied by problems with their implementation in practice. This has also happened in the context of whistleblower protection. We have singled out the most pressing and important problems of this institute among those pointed out by experts and whistleblowers themselves:

1) No exemption from court fees. The Corruption Prevention Law enshrines the whistleblower’s right to reimbursement of court fees. That is, the return of funds paid to the state in cases involving the protection of the rights of whistleblowers. However, such a legal construction does not look successful given the practice of application.

For example, Ms. Larysa Holnyk filed a lawsuit to defend herself as a whistleblower with a claim for recognition of the actions of her former leadership as a negative measure of influence, demanding compensation for non-pecuniary damage and unpaid judge’s remuneration. The court, in turn, demanded Ms. Golnyk to pay a court fee of EUR 650 (while the minimum wage in Ukraine was about EUR 200).
Even though in Ms. Golnik’s case, the court artificially increased the fee by separating the claims, this situation can still clearly demonstrate the problem. It is the very requirement for whistleblowers to pay court fees, with whistleblowers usually going to court to protect their violated rights (such as labor), and not always having the necessary funds to pay the fee. In such cases, the fee reimbursement mechanism does not work, as the whistleblower can count on it only after the court decision.

2) Lack of medical and psychological care. Free medical care for whistleblowers is not provided by law at all. At the same time, free psychological assistance, although provided, is not provided in practice due to the lack of a body to provide it and the lack of state budget funding.

3) Lack of protection for whistleblowers who reported an act that is not a crime. Despite the Corruption Prevention Law envisaging the right of all whistleblowers (both those who reported crimes and those who reported administrative, disciplinary offenses, etc.) to be provided with individual bodyguard protection it is provided only to persons who report corruption criminal offenses. The problem lies in the contradiction of the legislation, as the procedure for granting such kind of protection is established by another, special Law on Ensuring the Safety of Persons Participating in Criminal Proceedings. In the sense of this law, a whistleblower is a person who reported corruption criminal crime but not another corruption offense. Thus, persons who report, for example, inaccurate information submitted in declarations, conflicts of interest, or other violations of the Corruption Prevention Law, cannot receive adequate individual protection. Moreover, the NACBU experts and staff argue that the Law on Ensuring the Safety of Persons Participating in Criminal Proceedings is outdated and needs to be significantly improved, as it does not provide adequate protection for participants in criminal proceedings.

Practices

positive

negative

The creation of the Unified Whistleblower Allegation Portal will ensure proper confidentiality and anonymity of allegations, as well as save the budget funds.
Capacities for reporting corruption are provided at a sufficient level. Everyone can choose the method and channels for reporting.
The NACP actively uses available tools to protect whistleblowers. The work of the body in this direction can be assessed quite high. Methodological support for whistleblowers and dissemination of information on the importance of reporting corruption is provided by the NACP at a good level.
State bodies have only partially complied with the requirements to create appropriate conditions for reporting corruption. Some law enforcement agencies do not comply with the requirements for the establishment of regular reporting channels.
There are obstacles to reporting corruption when it comes to the state secrets. Guarantees of anonymity and confidentiality of such allegations are not fulfilled in practice. Due to the novelty of the institution of whistleblowers, certain specific problems arise when reporting corruption.
Protection tools do not always apply effectively. Due to the lack of liability, compliance with the NACP’s prescription depends solely on the will of the person against whom it was made.
Lack of resources undermines the NACP’s effectiveness in protecting whistleblowers. Discrediting whistleblowers by the NACP itself negatively affect the reputation of whistleblowers and exert pressure on them.
Due to the novelty of the institution of whistleblowers, in practice, certain problems prevent whistleblowers from exercising their rights to receive adequate protection.
State evaluation will be published soon.

In short

State of implementation

Legal framework

Legal framework after State evaluation.
Implementation in practice

Implementation in practice after State evaluation.

Practices

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Actual research and materials
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