Step 1: Cancel/Amend the NACP’s Explanatory Note dated 12.06.2023 No. 2 “Regarding the Legal Status of a Whistleblower” that interprets the provisions of the Law on the conditions for a person to acquire whistleblower rights and guarantees
The NACP’s legal position on the conditions of acquisition of whistleblower’s status needs to be changed: currently, a person acquires whistleblower status only if the pre-trial investigation body entered information into the Unified Register of Pre-Trial Investigations. This means that the status is granted only after the investigation found reasons to open a criminal case based on the whistleblower’s report.
Obtaining whistleblower status should not be tied to the legal qualification of the information in the report. For whistleblower status, what only matters is that the reporting person is a real “insider” (works, studies, serves, volunteers, etc. in the respective organization), and the report contains information about possible violations of the law (details about the circumstances of the offense: place and time, perpetrator, etc.).
That is, even if upon further review it is determined that there are no grounds to open a disciplinary or criminal case, or the qualification of the act does not fall under the list of corruption offenses – the person who reported the possible facts should retain their legal status as a whistleblower. These changes are necessary to bring the NACP’s legal positions in line with the Law of Ukraine “On Corruption Prevention”, EU Directive 2019/1937 “On the protection of persons reporting breaches of Union law”, and best global whistleblower protection practices.
Step 2: Urgently Address Deficiencies of the Unified Whistleblower Reporting Portal
The functionality and web content of the Portal need significant improvements. First and foremost it is necessary to:
- Optimize the Portal’s functionality by creating a whistleblower’s personal account with the ability to choose the recipient for corruption reports; ability to preview information before sending the report.
- Display on the Portal’s homepage information about its purpose as an internal reporting channel, as well as security measures to protect user data.
- Configure access levels so that only officials directly handling the report have access to whistleblower reports.
- Adapt the Portal’s technical specifications to comply with the European Union’s guidelines on personal data processing.
- Verify that the Cyber Security Certificate ensures anonymity protection via cryptographic and technical methods for encrypting user IPs.
Step 3: Prepare and Propose Amendments to the Law of Ukraine “On Corruption Prevention”
To establish the Portal as the sole reporting channel, the list of reporting channels needs to be expanded by including structures of the Verkhovna Rada of Ukraine and other oversight bodies. Consideration should also be given to broadening the definition of a whistleblower, as well as clearly defining rules for reporting classified information.
Step 4: Reinvigorate Civil Society Engagement
The practice of open dialogue and consultations with civil society organizations must be reinstated. It is recommended to introduce regular outreach events to keep close ties with whistleblower protection advocates.
Step 5: Relaunch the Information Campaign
The focus should shift towards guaranteeing anonymity and robust legal safeguards for Portal users, rather than emphasizing the NACP’s role in launching it. There is a pressing need to organize educational initiatives (webinars, trainings, etc.) highlighting the Portal’s capabilities, as well as establishing a support channel for prompt user inquiries.
Step 6: Appoint a Qualified Whistleblower Protection Lead
The NACP’s Explanatory Note of 12.06.2023 No. 2 “On the Legal Status of a Whistleblower”, which contradicts the Law of Ukraine “On Corruption Prevention” by misinterpreting the legal nature of whistleblower protections, stems from a lack of relevant expertise among recent NACP leadership overseeing this area following Serhiy Derkach’s team’s departure 8 months ago. The newly appointed lead must possess perfect qualifications and be capable of dealing with the challenges facing the whistleblower protection division.