While in Slovakia, several prominent police investigators, protected by whistleblower status, were dismissed by the new government in complete disregard of the law. These are just a few recent cases drawing attention to the legal security of whistleblowers in Central Europe.

People who report unlawful activities and abuse of law, such as corruption, fraud, and business malpractice in their workplace or to authorities or disclose it to the public, deserve legal protection as they help detect threats or harm to the public interest.

The European Union has developed a common framework for the protection of whistleblowers and introduced a directive in 2019. Although the directive has generally been transposed in most of EU countries by now, national regulations and practical experiences are diverse throughout the region. As a consequence, whistleblowers are often discouraged from reporting their concerns for fear of retaliation.

Better keep your head down or you may be called a dirty prostitute

In a recent Romanian case, Mara Paraipan, a former Ministry of Transport official, was demoted following her complaint to the country’s National Anticorruption Directorate. As Context.ro revealed, she reported that her superiors asked her to approve funding for infrastructure projects that would have defrauded taxpayers of millions.

She told Context that her superior put pressure on her, but she resisted as her conscience doesn’t allow for her to overlook how public money was spent. In March 2023, she was transferred to an inferior position and department. In an attempt to regain her old position, Paraipan filed two lawsuits against the ministry.

She lost both, although the court did determine that her superiors’ actions against her represented an act of retaliation. Paraipan appealed both rulings. When asked about the matter, representatives from the Ministry of Transport stated that she should have kept her head down and refrained from asking any questions. Paraipan appealed both rulings.

In Slovakia, two employees of the Foreign Ministry, Zuzana Hlávková and Pavol Szalai, brought to light suspicious orders made during the Slovak presidency in the Council of the European Union in 2016. They faced serious consequences as they had to leave their jobs, and the case never led anywhere. This was the case where then-PM Robert Fico attacked journalists covering the case, calling them “dirty anti-Slovak prostitutes”.

The Whistleblower Protection Office was established in Slovakia in 2021, with the aim of providing protection in cases such as those above. If a person contacts the office, he/she can be granted the status of a whistleblower (in the Slovak language this is translated as the one who reports on anti-social behaviours).

A person with this status cannot be fired now and his/hers job description and details cannot be changed by the employer, without explicit consent from the Office.

However, representatives of the state recently showed the public what they think about these lines in the law. Several police investigators around Ján Čurilla, who have in the past several years worked on the most explosive cases of corruption and organized crime with links to the previous Fico governments, have been previously granted the status of whistleblowers by the Office, as they faced backlash from within the law enforcement agencies and they reported on the crimes from within.

The same was true for Peter Juhás, a policeman who previously led the team that investigated the Ján Kuciak and Martina Kušnírová murder case and who, until November 6th, led the police inspection – the unit responsible for investigating the crimes of other policemen.

Despite this, the new Interior Minister Matúš Šutaj Eštok suspended the investigators around Ján Čurilla and replaced Peter Juhás. The lawyers of Ján Čurilla claimed the suspension is not valid as the Whistleblower Protection Office was not even consulted.

The Whistleblower Protection Office claims any acts against protected whistleblowers without its agreement are invalid by law, pointing out that the Minister “even proceeded against the methodological guidelines of the Ministry of the Interior itself,” and threatens the ministry with a high fine.

The investigators were unable to enter their workplace when they tried to continue the work. But in two cases courts dismissed the suspension of the investigators, due to the whistleblower’s protection status and issued precautionary measure that two of the investigators has to be allowed back to work. Ministry of interior informed that it will file appeal to the second instance court.

Paper rights

The EU Whistleblower Directive refers primarily to a work-related context: the directive protects persons working in the private or public sector who acquired information on breaches in a work-related context, including employees, their colleagues, shareholders, administrative, management or supervisory body, volunteers, trainees and persons working for subcontractors.

The Directive defines the framework for setting up easily accessible reporting channels, underlines the obligation to maintain confidentiality and the prohibition of retaliation against whistleblowers, and establishes targeted protection measures.

Member states had until the end of 2021 to transpose the directive into their national laws. However, several failed the deadline. In January 2022, the Commission sent letters of formal notice to 24 Member States, then later during the year sent reasoned opinions to 19 Member States (among others Bulgaria, Czechia, Hungary, Poland, Slovakia, Romania) for not fully transposing the regulation.

Finally, in February 2023, the European Commission decided to refer Czechia, Hungary, and Poland (among other member states) to the Court of Justice for failure to transpose the directive.

The Hungarian Parliament adopted the Whistleblowing Act in May 2023; in the Czech Republic, the Whistleblower Protection Act came into force in June 2023. In Poland, although initial work on the legislation began two years ago, the bill, which has been changed several times, has still not passed all the required consultations, nor has it received final approval from the chancellery.

In Bulgaria, the National Assembly of Parliament formally adopted legislation transposing the EU Directive in January 2023, which was then enacted. In fact, this law was part of the anticorruption package required by Brussels to free the billions allocated to Bulgaria for the Resiliation and Reconstruction Plan.

Although Slovakia was one of the first European countries to have protection for whistleblowers enshrined in law in 2015, the amendment to the law in accordance with the wording of the EU directive was only approved in May 2023.

Romania already had a dedicated whistleblowing law for public servants and several sectoral-based protections. The legislation that adopted the EU Directive passed in June 2022.

What is regulated?

According to the Directive, organizations must implement internal reporting channels that provide for anonymous reporting if this is allowed under national legislation, protect the identity of the reporter and parties mentioned in a report, and is not accessible to non-authorized staff members.

Such reporting channels should allow reports to be made orally or in writing. Organizations must also appoint a dedicated person or department to handle incoming reports. It applies to companies in the private and public sector with 50 or more workers, and all public institutions.

In Hungary, municipalities with a population below 10,000 are exempt from setting up such a system, but entities subject to the anti-money laundering law, such as financial institutions, accountants, auditors, and law firms, are included even if they employ fewer than 50 people.

In Bulgaria, the Commission for Protection of Personal Information is the body designated to collect reports from whistleblowers and dispatch them to the competent authorities – ministries, commissions, agencies, and law enforcement bodies.

In Hungary, reports can be made either anonymously or under the whistleblower’s name. In the Czech Republic, anonymous reporting is also permitted and protected, but in a more narrow sense. In other countries, however, e.g. Romania, and Bulgaria, reporting anonymously is restricted.

In Romania, whistleblowers are required to first report internally to the relevant institution or to the National Integrity Agency before going to the press.

The Directive also sets requirements regarding protective measures concerning the reporter and other individuals involved in the report, such as the accused. The Whistleblower Directive explicitly states that the whistleblower cannot face negative consequences because of their report, e.g. the termination of employment, reduction of wages, any kind of discrimination, intimidation, withholding training, cancellation of a license etc.

In Hungary, if such violations do occur, and the employee takes legal action, it is the employer’s obligation to prove before the court that the measures were not taken because of the report. The Czech Republic only allows the whistleblower to seek adequate compensation in court if he or she has suffered non-pecuniary damage as a result of the retaliatory measure following his or her notification.

It is up to each member state to define how the reporting channels will be established, provided that protections to ensure confidentiality and anonymity are incorporated. The Directive obliges member states to impose effective and proportionate sanctions on companies and public bodies that do not adhere to the reporting system, including failing to maintain the confidentiality of whistleblowers and hindering attempts to report breaches.

Whistleblowers are critical for journalists

Central European investigative outlets agree that whistleblowers and confidential sources significantly help them in finding important stories, and all have several examples where a source provided invaluable help.

In 2021, the Investigative Center of Ján Kuciak received information that as much as 24 million euros, which were meant to help alleviate pressure on employers during the Covid-19 pandemic, might have ended up in shell companies. After investigating the case, we indeed found out millions did not help employers retain employees but rather ended up on the accounts of shell companies owned by imaginary foreign owners with zero actual employees.

The case is being investigated to this day; several state employees from the local Bureau of Labour who approved the payments were charged, as well as several people who were identified by police as the members and leaders of the criminal group that misappropriated and laundered these stolen millions.

Atlatszo was informed about two illegal waste storages this year by external sources: in the outskirts of the village of Abasár, behind a former army barracks, about a thousand barrels of battery waste is stored in a hall.

In the building, without fire protection, are not only barrels full of battery cells but also a large amount of scrap metal from the Samsung battery factory.

In another village, Iklad, huge quantities of battery cells are stored in an abandoned industrial site, where otherwise only plastic, rubber, and textile waste would be stored. Barrels of discarded batteries and bags covered in black dust with Korean writing are piled up in the halls of the plant. The buildings at both sites have an extremely strong chemical smell.

Investigace.cz revealed that Andrej Babiš, Czech Prime Minister, sent almost CZK 400 million through his offshore companies, which he then used to buy real estate on the French Riviera, including the Chateau Bigaud. According to experts, this operation bore the hallmarks of money laundering. The covert operation came to light years later thanks to leaked documents from the Panamanian law firm Alcogal, obtained by the International Consortium of Investigative Journalists (Pandora Papers).

VSquare investigated a troll farm for six months in 2020 and learned that the troll action was aimed at undermining the government’s sugar tax project and promoted a campaign prepared for Coca-Cola by a PR company.

Had it not been for information from a whistleblower who knew the behind-the-scenes operation of the farm, the material would never have been written. It was his information that gave rise to the journalistic investigation and became the basis for the article.

Sometimes, the police make you famous

Investigative outlets in the region receive leaks on a regular basis: some of them receive tips a couple of times a week, while other may recieve them once every three months.

’However, only a few eventually become whistleblowers’ – claims Konrad Szczygieł, journalist from frontstory.pl and vsquare.org. – This is due to the nature of the information provided – often, the information provided by whistleblowers is insufficient to base an article on and involves issues where it is impossible to find additional sources to confirm the source’s account.

An additional difficulty is that the person providing the information often stops after a single interaction and does not give journalists the opportunity to find out additional details that may be relevant to the case.’

Tomáš Madleňák from the Investigative Center of Ján Kuciak says, ‘The biggest issue is that very seldom are these people willing to go on record, so we cannot speak of them as about whistleblowers in the narrow sense, but rather as confidential sources. That means their information needs to be verified and then we protect their anonymity with a great deal of effort.” He says it has not happened to them that they were required by any authorities to reveal their sources.

As he said, „in Slovakia, journalists do have a right to protect their sources, even during criminal proceedings and testimonies. Therefore the authorities do not even try to pry this kind of information from journalists.”

Attila Biro (context.ro) has a different experience: „I have encountered a situation where a public institution refused to give me access to public documents and demanded that I disclose the identity of a whistleblower who provided me with information. I did not reveal the whistleblower’s identity. Such practices are not uncommon in Romania, where authorities often seek to uncover the identities of those who expose wrongdoing.”

„We have had a few requests to provide the documents from Pandora Papers” says Zuzana Šotová (investigace.cz) „ but since they are not ours to give, we just instructed the people asking to go to International Consortium of Investigative Journalists. In any case, source protection is defined by law in the Czech Republic, so we don’t have to provide any information unless a court orders us to do so.”

Atlatszo in Hungary, actually became well known due to a case when police demanded the editor-in-chief disclose the identity of an informant back in 2011.

Tamás Bodoky remembers he was visited by the Budapest Police Headquarters organized crime department without announcement right after he established Atlatszo and was summoned to a hearing as a witness because of an article about a hacker case.

Referring to the Hungarian law, the European Convention on Human Rights, and the practice of the European Court of Human Rights, he refused to reveal the source. „Right after the case, we developed a proposal to modify the media law, and some months later, the government amended the law that resembled Atlatszo’s proposal.

They introduced that sources must be identified only if they could provide irreplaceable evidence in a crime investigation. At the end, it turned out as a successful story for us”. 

The European Commission is currently performing a conformity analysis of national whistleblower regulations and will provide an implementation report to the Council and the Parliament by the end of the year.

Source: Átlátszó.hu - republished with permission