Overview of whistleblower protection

2. International instruments and guidelines

International institutions such as the Organisation for Economic Co-operation and Development (OECD) and the Council of Europe have repeatedly pointed out that adequate protection of whistleblowers is a critical tool for addressing corruption and malpractice and for protecting the financial interests of the European Union. There have been several interventions aimed at urging States to adopt specific regulatory provisions on whistleblowing, and some protection standards have been included in international instruments and guidelines:

• the OECD’s “Recommendation on Improving Ethical Conduct in the Public Service, including Principles for Managing Ethics in the Public Service”, of 1998 (article 4); 

• the Civil Law Convention on Corruption issued by the Council of Europe on November 4, 1999, which required the Member States to introduce adequate protection mechanisms for employees who, in good faith, report corruption (article 9);

• the United Nations Convention against Corruption of 31 October 2003, which requires the Member States to provide protection mechanisms for people who report facts of corruption (article 32 and 33);

• the OECD “Recommendation of the Council on Guidelines for managing conflict of interest in the public service” of 28 May 2003, which includes general principles to encourage the adoption by States of WB procedures that provide, on the one hand, the protection of whistleblowers from retaliation and, on the other, rules to prevent any abuses of the reporting mechanisms;

• Council of Europe Civil (ETS No. 174) and Criminal Law (ETS No. 173) Conventions on Corruption of 2003;

• 2009 OECD Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions;

• 2011 OECD Guidelines for Multinational Enterprises;

• the Council of Europe Recommendation [CM/Rec(2014)7] of 30 April 2014, on the protection of Whistleblowers;

• 2015 United Nations Convention against corruption (article 33): “Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention”.

• the OECD report of March 2016: "Committing to Effective Whistleblower Protection";

• the Council of Europe “Protection of Whistleblowers: a Brief Guide for Implementing a National Framework” of August 2016, which identifies three different categories: “open whistleblower”, whose identity is known; “confidential whistleblower”, known only by a small circle of subjects with control duties; “anonymous informants”, whose identity is unknown or covered by anonymity.

Some NGOs and international organisations have developed guidelines and best practices for the creation of a comprehensive national framework for protecting whistleblowers: 

• Transparency International: International Principles for Whistleblower Legislation.

• Government Accountability Project: International Best Practices for Whistleblower Policies.

• Open Society Justice Initiative: Global Principles on National Security and the Right to Information (“Tshwane Principles”).

• Organisation of American States: Model Law to Facilitate and Encourage the Reporting of Acts of Corruption and to Protect Whistleblowers and Witnesses.

• OECD for G20: Study on G20 Whistleblower Protection Frameworks, Compendium of Best Practices and Guiding Principles for Legislation.

• 2015 United Nations resource guide on "Good Practices in the Protection of Reporting Persons". 

• Council of Europe: Recommendation on the Protection of Whistleblowers adopted by the Committee of Ministers in April 2014 CM/Rec(2014)7.

The European Court of Human Rights established that the protection of freedom of expression (article 10 ECHR) also extends to those persons (whistleblowers) who report to the dedicated authorities illegal behaviours occurring in the workplace, whether they are public or private employees.

Compare with the judgment Guja vs. Moldavia, no. 14277/14, sentence 12 February 2008.