Article 8.4. and 13.2.
Reporting Mechanisms and Whistleblower Protection

The issue of protection of whistleblowers, reports of acts of corruption, payment of a reward to whistleblowers, etc. is regulated by the Law On Prevention of Corruption. 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. 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 (NABU), State Bureau of Investigation (SBI), 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 NABU, SBI, 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.

To protect whistleblowers and their closest, the Law On Prevention of Corruption 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.

As mentioned above, the institute of whistleblower protection is 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.

Allegations About Acts of Corruption

The current Law On Prevention of Corruption establishes a Unified Whistleblower Reporting Portal. At the time of writing this report, the portal itself has been created and officially transferred to the NACP. The portal had a test-mode with 9 agencies connected to the test environment for a while. The National Agency had set up a working group that worked to ensure that the portal is put into commercial operation within the timeframe set out in the State Anti-Corruption Program for 2023-2025 (July-August 2023). Finally, on 6 September 2023, the NACP launched the promised Portal, where citizens can report corruption cases they have detected. So far, only two agencies have been connected, but over 92,000 more organisations will be added within 180 working days. This portal is a convenient tool that minimises the human factor and prevents interference with the system and information leakage. Any person who becomes aware of a corruption or corruption-related offence can report it through the portal. During the first month (September 2023), 345 appeals were already recorded, of which 84 are being processed and 47 have already been reviewed by the relevant authorities. Recently, civil society representatives published the monitoring report on the implementation of the Law On Prevention of Corruption 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 were fragmentally compliant with the requirements of the Corruption Prevention Law in terms of allegations of whistleblowers and their protection.

Having analyzed the regular channels of reporting that operate in the NABU, NACP, SBI, the Ministry of Internal Affairs, and the Prosecutor’s Offices, it can be argued that in general, they provide appropriate conditions for reporting. The NABU, NACP, SBI, and 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. Prosecutor General Office 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.

The whistleblowers we interviewed for this report 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 in support of this. Nevertheless, the experts are concerned about some problems in this context:

1. Lack of mechanisms for reporting corruption related to state secrets

Factually, the law does not regulate the specifics of reporting corruption related to 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 corruption linked to state secrets 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, since many corruption schemes related to defense procurement have emerged since 2014 and they have only gained momentum after 2022.

2) Lack of guarantees of anonymity and confidentiality in practice
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. The creation of the Unified Whistleblower Allegation Portal should not only ensure confidentiality and anonymity but also save significant funds of state bodies, compared to the option of each of them separately ensuring the protection of reporting channels.

Protection of Whistleblowers
The guarantees for whistleblowers set forth by the Corruption Prevention 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 on 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 prescriptions is the case of a whistleblower who worked as an anti-corruption commissioner at a big state-owned enterprise. In 2020, he reported facts of possible corruption offenses committed by the management of the enterprise. After that, he received disciplinary sanctions and was dismissed, despite significant progress made in creating an effective compliance system in the enterprise. In March 2021, the NACP issued two prescriptions, 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 the enterprise with a demand to reinstate the whistleblower. According to the results of the prescription, the Cabinet of Ministers commenced an internal investigation, which was terminated because the provision on the basis of which the NACP issued the order was declared unconstitutional. Instead, the acting head of the enterprise (against whom the allegation was made) did not execute the prescription to reinstate the whistleblower. Consequently, the NACP drew up an administrative protocol against the head for non-compliance with the prescription. Soon after, the whistleblower reported that with the assistance of the NACP as a third party in the case, the court declared the dismissal illegal. Such court decisions are an important signal to all heads of state institutions that their illegal actions against whistleblowers will have concrete consequences and will not be ignored by the NACP. In November 2022, the decision to reprimand the whistleblower was recognized as illegal and was revoked by the Supreme Court.

Another example of the NACP's prescription is the case of a whistleblower judge, who exposed corrupt practices by the mayor of Poltava and the court's management. After that, the judge was subjected to pressure from the head of the court and her colleagues. In particular, they were illegally deprived of part of their court remuneration and were pressured in various ways. In 2020, the NACP issued an enforcement prescription to the new head of the court, ordering him to pay the whistleblower lost court fees and conduct an internal investigation into the former head of the court and other judges who had put pressure on the whistleblower. Ultimately, the judge managed to get their lost money back, but according to them, the internal investigation was not actually conducted and the NACP did not respond properly.

The provided examples lead to the conclusion that the prescriptions made by the NACP are exercised partially, but according to the whistleblowers interviewed, 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).
• Cancellation of prescriptions by courts.
• Procedural errors made by the NACP during the issuance of prescriptions.
• Lack of experience in the application of the concept of prescriptions among NACP employees.

2) NACP 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 can be assessed positively. According to statistical data, in 2020, the NACP participated on the side of the whistleblower in 70 cases heard in courts. The this tool significantly increases the chances of whistleblowers to succeed in the case; in 2020, out of 23 court cases, the NACP succeeded in 15 cases.
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 to free legal aid centers (LACs). Such statements have been sharply criticized by 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 very trusted by whistleblowers.
Methodological support of whistleblowers and NACP’s 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. 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 as well as a practical guide for whistleblowers, which provides an algorithm for reporting and answers to various questions. In addition, the NACP together with the public and international partners in 2022 held the second international conference on whistleblower protection.

All whistleblowers we interviewed are generally positive about the work of the NACP. They emphasize their trust in this body and good enough qualifications of employees. The whistleblowers claim that despite certain problems in the work of the NACP, the activities of the body are important to ensuring 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 interviewed experts, the NACP has limited resources to protect whistleblowers. In particular, as of 2022, the specialized department employed only four people who were supposed to provide defense in 69 cases. In 2022, the courts made 14 decisions in favor of the whistleblowers. 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.

Discrediting whistleblowers by the NACP. Despite the NACP being active in protecting whistleblowers, there are cases when the body has discredited the whistleblowers it supported. The case of the whistleblower of the big state-owned enterprise we described above is one example. Following the reporting of corruption, the NACP included this whistleblower in the register of corrupt officials. The formal reason was the violation of the Law On Prevention of Corruption. As an anti-corruption commissioner at the enterprise, the whistleblower allegedly failed to create secure channels for reporting corruption. The director of the company (against whom the charges were brought) issued an order "on the application of disciplinary measures", according to which the whistleblower was dismissed, and which they and the NACP challenged in court. Through 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. This practice of the NACP is not widespread, but it is troublesome 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.

Implementation in practice after State evaluation.