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Reply to Recommendation | Doc. 13949 | 25 January 2016
Improving the protection of whistle-blowers
1. The Committee of
Ministers has carefully examined Parliamentary Assembly Recommendation
2073 (2015) on “Improving the protection of whistle-blowers”. It
has brought it to the attention of the governments of member States
and forwarded it to the Steering Committee on Media and Information
Society (CDMSI), the European Committee on Legal Co-operation (CDCJ),
the European Committee on Crime Problems (CDPC) and the Group of
States against Corruption (GRECO), for information and possible
comments.
2. The Committee of Ministers notes that the protection of whistle-blowers
is rooted in the jurisprudence of the European Court of Human Rights
on Article 10 of the European Convention on Human Rights. The Court has
consistently held that in a democratic system the acts and omissions
of governments must be subject to close scrutiny, not only by the
legislative and judicial authorities, but also by the media and
public opinion.
3. In this regard, the Committee of Ministers recalls that the
existing international legal framework that protects whistle-blowers
from any form of retaliation, includes also, inter
alia, the UN Convention Against Corruption, the ILO Convention
No. 158 (1982) concerning termination of employment and the Council
of Europe’s Criminal Law and Civil Law Conventions on Corruption
(ETS No. 173 and No. 174). Furthermore, the Committee notes that
GRECO has constantly held that laws and practices which encourage
civil servants and private employees to challenge and signal corruption
and other related wrongdoing they see or suspect in their workplace
can be effective tools in the fight against corruption.
4. The Committee of Ministers recalls its Recommendation CM/Rec(2014)7
to member States on the protection of whistle-blowers which represents
a major international advance in that it establishes a comprehensive
set of principles to guide member States when reviewing relevant
legislation and institutional set-ups aimed at protecting those
who alert the public and/or competent authorities to potential threats
or harm to the public interest. Furthermore, Recommendation CM/Rec(2015)5
of the Committee of Ministers on the processing of personal data
in the context of employment provides that where employers implement
internal reporting mechanisms the confidentiality of whistle-blowers
should be ensured as well as the protection of personal data of
all parties involved.
5. Regarding the Parliamentary Assembly’s recommendation to draft
a framework convention, the Committee of Ministers notes that Recommendation
CM/Rec(2014)7 was only adopted in 2014. It recalls that the recommendation
includes a principle on information relating to national security,
defence, intelligence, public order or international relations of
the State. Without ruling out the possible preparation of a convention in
the longer term, the Committee of Ministers considers it more appropriate,
at this stage, for the Council of Europe to continue to support
the promotion and implementation of Recommendation CM/Rec(2014)7.
6. The Committee of Ministers notes that the CDCJ has adopted
an action plan for this purpose, that a series of actions have already
been taken and that a guide to facilitate the implementation of
the recommendation by member States is presently being elaborated.
The CDCJ is also ready to provide legislative advice and offer training
and awareness-raising to national authorities and other relevant
bodies relating to public interest disclosures and the protection
of whistle-blowers. The Committee of Ministers will expect the CDCJ
to indicate to it when it considers that a more formal review of
the implementation of the recommendation should be undertaken. Meanwhile,
it encourages GRECO, within the limits of its Statute, to follow
developments regarding the recommendation’s implementation in the
area of corruption and other related misconduct.
7. Finally, bearing in mind the Assembly’s concerns as regards
the whistle-blowing rules applicable in the Council of Europe, the
Committee of Ministers considers that the relevant internal rules
of the Council of Europe concerning whistle-blowing should be in
line with Recommendation CM/Rec(2014)7, in so far as it is relevant.
The Committee recalls that in its reply to Parliamentary Assembly
Recommendation 1916 (2010) on “The protection of whistle-blowers”,
it had invited the Secretary General to examine the existing internal
Council of Europe framework as regards whistle-blowing. The Secretary
General has accordingly put in place measures to encourage whistle-blowers
to come forward and to protect them.