Today, 7 November 2017
A number of concerned organisations signed a joint WIN letter to the relevant Ministers of the Polish Government expressing deep concerns about the draft provisions purporting to offer “whistleblower protection” as contained in the Draft Law on Transparency in Public Life. We urge the Polish Government to reject these as not fit for purpose.
07 November 2017
The organisations and leaders within WIN, the Whistleblowing International Network, have worked in the field of public interest whistleblower law and practice for close to 40 years. Our expertise has been sought by national governments and judicial and law enforcement authorities, amongst many others around the world, looking to enhance their legal and institutional protections for whistleblowing. Our members have played a leading role at the Council of Europe, the European Union, the OECD and the United Nations as part of their mandates to support good governance and democratic accountability, the rule of law and human rights.
We write to express our unqualified agreement with the attached concerns expressed by the Fundacja im. Stefana Batorego (Stefan Batory Foundation), Helsińska Fundacja Praw Człowieka, (The Helsinki Foundation for Human Rights) and Instytut Spraw Publicznych (Institute of Public Affairs) about draft provisions of a “whistleblower” law recently proposed by the Minister, Special Services Coordinator, in the draft law on transparency of public life. The proposal purports to provide whistleblower protection for those who report evidence of certain criminal offences to the prosecutor. These provisions do not fall within the definitions nor spirit of legal whistleblower rights in any other country. Even if relevant, the provisions fail to meet even one of some 20 internationally accepted legal standards and best practices for whistleblower protection, and appear to violate European standards which includes the most recent 2015 PACE Resolution and Recommendation on Improving the Protection of whistleblowers.
At best, if adopted this would be a witness protection law for criminal prosecutions, a related concept with only a narrow overlap to whistleblower rights. Unfortunately, if this legislation were proposed in our countries, we would be duty bound to warn even criminal witnesses against using it. It is a witness control proposal, not one even for effective witness protection let alone for whistleblower protection. At best, it would provide a temporary reprieve against employment retaliation, with an open season on the witness a year after the prosecution ends. In the meantime, the prosecutor could remove the protection at whim, without any judicial or other appeal. That means if the witness did not testify however instructed, the prosecutor could throw the witness to the wolves — exposing him or her to an employer’s unrestrained revenge. Indeed, this total power over witnesses would undermine the credibility of any testimony they provide and actually make it more difficult to obtain convictions.
We strongly urge the Government of Poland to reject this proposal on the basis that it:
- is not whistleblower protection;
- is not effective witness protection;
- dangerously undermines its own limited aim of bringing successful prosecutions for such offences;
- risks seriously eroding trust in Polish law enforcement authorities and therefore the willingness the public to engage in tackling corrupt conduct;
- reinforces the negative stereotype of a whistleblower as a state-informant, only motivated by egoistic or political intentions; and
- undermines any realistic efforts by the Government of Poland to encourage genuine whistleblowing about a wider range of public interest issues including potentially serious risks to health and safety, environmental damage, or breaches of other legal or regulatory violations that can result in significant damage or harm.
We urge the Government of Poland to engage in a full and robust process of consultation with civil society and social partners across the public and private sectors in Poland for a law consistent with international standards under UN Convention Against Corruption. These are no mystery. For example, the attached evaluation criteria are consistent with the Council of Europe’s Committee of Ministers Recommendation on the protection of whistleblowers and its Explanatory Memorandum, which build on the work done by the G203 and the OECD, and all leading organizations within WIN, amongst others.
Last week (24 Oct 17) the Parliament of the EU voted by a majority of 399 to 101 in favour of adopting the Committee of Legal Affairs’ Report on implementing comprehensive whistleblower protection across the EU and which called on the European Commission to “present before the end of this year  a horizontal legislative proposal establishing a comprehensive common regulatory framework which will guarantee a high level of protection – in both the public and private sectors as well as in national and European institutions”. The European Commission is now in the process of analysing the nearly 6,000 responses it received from across Europe, the vast majority (99.4%) in favour of strengthening whistleblower protection. An EU Directive would also recognise the importance of providing coherent protection across Europe, because whistleblowers can and do disclose information that reveals damage or harm caused across borders and in different member States. It is therefore in the interests of all EU Member States to get this right.
Whistleblowing is freedom of speech where it counts the most for society, not prosecutorial control of witness’ testimony. As NGOs committed to that principle, we would warn any whistleblowers in our respective nations not to use this law if it were available. Its seductive title is a trap to place whistleblowers at the mercy of any prosecutor’s agenda.
To be consistent with European and global norms for legitimate rights, this proposal should be withdrawn. If Poland is serious about protecting whistleblowers, it should start fresh from a foundation of international consensus criteria reinforced by public participation. The current proposal is false advertising that will fool no one. We pledge our full cooperation and support for any government efforts to establish legitimate whistleblower rights.
We trust that our submission will be duly considered by policymakers and legislators in Poland during their deliberations and importantly in considering the purpose of whistleblower protection in a democratic society. We believe that in rejecting these particular provisions, Poland is in a much stronger position to begin to discuss the value and importance of whistleblowing in a way that will have the greatest chance to strengthen democratic accountability and good governance in the interests of the Polish people in the years to come.
Public Concern at Work, United Kingdom
Government Accountability Project, USA
Open Democracy Advice Centre, South Africa
Transparency International Ireland, Ireland
Oživení, Czech Republic
Centre for Free Expression, Canada
Eurocadres, Belgium -Founder of WhistleblowerProtection.EU
FreePress Unlimited, Netherlands
Stefan Batory Foundation, Poland
Article 19, United Kingdom
Sciences Citoyennes, France
Please note these organisations include the founding members of the Whistleblowing International Network (WIN – http://www.whistleblowingnetwork.org); those organisations that participate as members of the Network; and those affiliated to the Network who support WIN’s aims and objectives.