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Resolution 1729 (2010) Final version
Protection of “whistle-blowers”
1. The Parliamentary Assembly recognises
the importance of whistle-blowers – concerned individuals who sound
an alarm in order to stop wrongdoings that place fellow human beings
at risk – as their actions provide an opportunity to strengthen
accountability and bolster the fight against corruption and mismanagement,
both in the public and private sectors.
2. Potential whistle-blowers are often discouraged by the fear
of reprisals, or the lack of follow-up given to their warnings,
to the detriment of the public interest in effective management
and the accountability of public affairs and private business.
3. A series of avoidable disasters has prompted the United Kingdom
to enact forward-looking legislation to protect whistle-blowers
who speak up in the public interest. Similar legislation has been
in force in the United States of America for many years, with globally
satisfactory results.
4. Most member states of the Council of Europe have no comprehensive
laws for the protection of whistle-blowers, though many have rules
covering different aspects of whistle-blowing in their laws governing employment
relations, criminal procedures, media and specific anti-corruption
measures.
5. Whistle-blowing has always required courage and determination
and whistle-blowers should at least be given a fighting chance to
ensure that their warnings are heard without risking their livelihoods
and those of their families. Relevant legislation must first and
foremost provide a safe alternative to silence and not offer potential
whistle-blowers a “cardboard shield” that would entrap them by giving
them a false sense of security.
6. The Assembly invites all member states to review their legislation
concerning the protection of whistle-blowers, keeping in mind the
following guiding principles:
6.1. Whistle-blowing
legislation should be comprehensive:
6.1.1. the definition
of protected disclosures shall include all bona fide warnings against various
types of unlawful acts, including all serious human rights violations
which affect or threaten the life, health, liberty and any other
legitimate interests of individuals as subjects of public administration
or taxpayers, or as shareholders, employees or customers of private companies;
6.1.2. the legislation should therefore cover both public and
private sector whistle-blowers, including members of the armed forces
and special services, and
6.1.3. it should codify relevant issues in the following areas
of law:
6.1.3.1. employment law – in particular protection
against unfair dismissals and other forms of employment-related
retaliation;
6.1.3.2. criminal law and procedure – in particular protection
against criminal prosecution for defamation or breach of official
or business secrecy, and protection of witnesses;
6.1.3.3. media law – in particular protection of journalistic sources;
6.1.3.4. specific anti-corruption measures such as those foreseen
in the Council of Europe Civil Law Convention on Corruption (ETS
No. 174).
6.2. Whistle-blowing legislation should focus on providing
a safe alternative to silence.
6.2.1. It should give appropriate
incentives to government and corporate decision makers to put into
place internal whistle-blowing procedures that will ensure that:
6.2.1.1. disclosures pertaining to possible problems are properly
investigated and relevant information reaches senior management
in good time, bypassing the normal hierarchy, where necessary;
6.2.1.2. the identity of the whistle-blower is only disclosed with
his or her consent, or in order to avert serious and imminent threats
to the public interest.
6.2.2. This legislation should protect anyone who, in good faith,
makes use of existing internal whistle-blowing channels from any
form of retaliation (unfair dismissal, harassment or any other punitive
or discriminatory treatment).
6.2.3. Where internal channels either do not exist, have not
functioned properly or could reasonably be expected not to function
properly given the nature of the problem raised by the whistle-blower,
external whistle-blowing, including through the media, should likewise
be protected.
6.2.4. Any whistle-blower shall be considered as having acted
in good faith provided he or she had reasonable grounds to believe
that the information disclosed was true, even if it later turns out
that this was not the case, and provided he or she did not pursue
any unlawful or unethical objectives.
6.2.5. Relevant legislation should afford bona fide whistle-blowers
reliable protection against any form of retaliation through an enforcement
mechanism to investigate the whistle-blower’s complaint and seek
corrective action from the employer, including interim relief pending
a full hearing and appropriate financial compensation if the effects
of the retaliatory measures cannot reasonably be undone.
6.2.6. It should also create a risk for those committing acts
of retaliation by exposing them to counter-claims from the victimised
whistle-blower which could have them removed from office or otherwise
sanctioned.
6.2.7. Whistle-blowing schemes shall also provide for appropriate
protection against accusations made in bad faith.
6.3. As regards the burden of proof, it shall be up to the
employer to establish beyond reasonable doubt that any measures
taken to the detriment of a whistle-blower were motivated by reasons
other than the action of whistle-blowing.
6.4. The implementation and impact of relevant legislation
on the effective protection of whistle-blowers should be monitored
and evaluated at regular intervals by independent bodies.
7. The Assembly stresses that the necessary legislative improvements
must be accompanied by a positive evolution of the cultural attitude
towards whistle-blowing, which must be freed from its previous association
with disloyalty or betrayal.
8. It recognises the important role of non-governmental organisations
in contributing to the positive evolution of the general attitude
towards whistle-blowing and in providing counselling to employers
wishing to set up internal whistle-blowing procedures, to potential
whistle-blowers and to victims of retaliation.
9. In order to set a good example, the Assembly invites the Council
of Europe to put into place a strong internal whistle-blowing procedure
covering the Organisation itself and all its partial agreements.