Explainer: How Ukrainian Anti-Graft Law Reinforces Whistleblower Protections, Yet Demands Further Action Features
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Explainer: How Ukrainian Anti-Graft Law Reinforces Whistleblower Protections, Yet Demands Further Action

Since the 2014 Revolution of Dignity, Ukraine has taken significant strides to improve its anti-corruption legislation. Ukrainian lawmakers and experts have been studying and implementing international best practices in developing progressive anti-corruption laws. One such development was the introduction of the Law On Corruption Prevention, which established new legal and organizational principles for corruption prevention and included provisions for whistleblower protection.

According to the Law On Corruption Prevention, a whistleblower in Ukraine is an individual who meets the following criteria:

  • They possess information about corruption that they consider reliable.
  • They intend to report this information.
  • They obtained this information during their work, professional or economic activities, public engagement, scientific pursuits, or while serving or undergoing training, including mandatory procedures for commencing activities, completing service, or training.

The law defines three types of channels through which a whistleblower can report corruption facts: internal, external, and regular.

“Internal,” in this context, refers to protected or anonymous reporting by whistleblower to their manager — an authorized person/organization, or the entity where the whistleblower works, serves, or studies. The “external” channel involves reporting information through individuals or legal entities, such as media, journalists, public associations, trade unions, etc. “Regular” channels are used when the whistleblower wishes to report corruption in a protected or anonymous manner to institutions such as the prosecutor’s office, the National Police, the National Anti-Corruption Bureau of Ukraine, the State Bureau of Investigation, or the National Agency on Corruption Prevention.

The Law On Corruption Prevention also establishes the legal status, guarantees of activity, and protection features for whistleblowers. Ukrainian anti-corruption legislation ensures state protection for whistleblowers and their relatives, with clear methods of protection outlined. This includes legal, organizational, and technical measures by law enforcement agencies to safeguard the life, housing, health, and property of the whistleblower and their relatives. Whistleblowers are entitled to free legal assistance, and the National Agency on Corruption Prevention can participate in the process of addressing violations of the whistleblower’s rights if they are unable to defend their rights independently.

To safeguard the whistleblower’s identity, it is prohibited to disclose information about the whistleblower or their relatives to third parties not involved in the review, verification, and/or investigation of the corruption fact reported. In the event of a disclosure, the whistleblower must be notified no later than 18 working days prior to the disclosure.

Whistleblowers in Ukraine have a range of rights under the anti-corruption legislation. These rights include being notified about their rights and duties, submitting evidence, receiving confirmation of the acceptance and registration of their notification, providing explanations or testimonies (or refusing to do so), receiving free legal assistance, maintaining confidentiality, anonymity, and security for themselves and their relatives, protection of property and housing, reimbursement of expenses related to protection, psychological assistance, exemption from legal liability, and receiving information about the review, inspection, and/or investigation of the reported corruption fact.

These rights come into effect once the whistleblower acquires whistleblower status, which occurs when the individual reports information about a potential corruption fact or corruption-related offense.

The Law On Corruption Prevention also addresses the protection of the whistleblower’s labor rights. It stipulates that the whistleblower and their close relatives cannot be denied employment, fired, subjected to disciplinary action, or face other negative measures due to their whistleblowing activity. In the event of a suspension, the whistleblower is entitled to a wage guarantee equivalent to their average salary for the last year. The law ensures that the whistleblower and their close relatives cannot be denied contracts, employment, administrative services, or other benefits based on their reporting of corruption facts. The law guarantees the restoration of the whistleblower’s violated rights and immediate reinstatement if they were fired or transferred to a lower-paid position due to their reporting. The whistleblower may also be entitled to monetary compensation if they were wrongfully dismissed due to reporting a corruption fact or corruption-related offense.

The law includes provisions regarding the whistleblower’s right to receive a reward. A whistleblower may be entitled to 10 percent of the monetary amount of the corruption crime or the damages caused to the state, provided that the amount exceeds five thousand times the subsistence minimum for able-bodied persons. However, the reward is subject to limitations and cannot exceed three thousand times the minimum wage established at the time of the crime.

Regarding the whistleblower’s responsibility, the Law On Corruption Prevention specifies that reporting possible corruption facts or corruption-related offenses cannot be considered a violation of confidentiality conditions in civil, labor, or other agreements. Thus, whistleblowers cannot be held civilly liable for property and/or moral damages resulting from their reporting. However, knowingly making a false report is an exception, and inaccurate information provided by a whistleblower must be refuted.

Despite the clear legislative regulation of whistleblowers in Ukraine, there are still some problematic aspects concerning their status in criminal proceedings. The law currently designates whistleblowers as “applicants” in criminal proceedings to ensure their state protection (Law On Corruption Prevention Amendments of October 17, 2019, No. 198-IX). However, experts argue that this legislative approach is erroneous as whistleblowers can also be witnesses who provide information leading to the disclosure of corruption offenses committed by third parties. This creates an imbalance in the provision of state protection for individuals with information about corruption facts and the whistleblowers themselves.

Another problematic aspect relates to the procedure for rewarding whistleblowers, where the court determines the size of the reward based on the monetary amount of the corruption crime or damages caused to the state. This discretion in determining the reward criteria leads to various debatable aspects when assigning and paying the whistleblower’s reward.

Dr. Olha Chernovol is a Ukrainian licensed attorney who is currently completing a postdoctoral fellowship at the University of Ottawa, where she works with Professor Jennifer Quaid on her SSHRC-CRSH funded project exploring non-trial resolutions in anti-corruption matters. She is also a fellow at the University of Ottawa’s Human Rights Research and Education Centre. Chernovol and Quaid are currently researching the issues discussed in this article, and are working to addressing the challenges and improving the functioning of the whistleblower system in Ukraine.