Whistleblowers between “practice and grammar”. IPN interview with ombudswoman for children’s rights Maia Bănărescu.

IPN: Law No. 122 of 2018 concerning whistleblowers entrusted the ombudsperson with the task of protecting these. The goal of our discussion today is to see to what extent the whistleblowing mechanism works, including as regards the participation of concrete persons. As they don’t know much about this area in society, I ask you to start from the beginning: Who are whistleblowers? Why should they be protected?

Maia Bănărescu:
The law says the whistleblowers are first of all the citizens who reveal manifestations of corruption, violations in the field of the environment, the basic human rights and freedoms, violations related to national security and other irregularities, actions or inaction that threaten or affect the public interest.

Regrettably, there is confusion about the status of whistleblower. Any disclosure in the public sphere is often mixed up with whistleblowing without taking several fundamental aspects into account. To be a whistleblower, it is not enough to provide information about illegal practices. Reference should be also made to the institution, public or private entity for which the person has worked for at least 12 months. Another condition is for the revelation to contain information or evidence about the illegal practices and real, imminent or potential damage to the public interest. Also, the person who makes disclosures should give his/her name and should also put the signature in case of a written notice. Therefore, not anyone can be a whistleblower.

IPN: Does the necessity of offering them protection appear when the disclosures they make generate dangers?

Maia Bănărescu:
Yes, something like this. The necessity of protecting whistleblowers appears when their approaches generate a reaction of revenge on the part of those who are denounced.

IPN: We thus speak about a whistleblowing mechanism that consists of other components too …

Maia Bănărescu:
The revelation of illegal practices can be internal (communicated to the employers). In this case, the employers are the authority responsible for the examination of disclosures. In the second case, when the disclosure is external (which is it is communicated to examination authorities) and public, the National Anticorruption Center deals with this.

The revelations are then added to the Register of Disclosures about Illegal Practices and Warnings and this action offers the employee the status of whistleblower.

IPN: Which is the examination authority?  

Maia Bănărescu:
The authorities responsible for the examination of disclosures about illegal practices are the employers, in the cases of disclosures about internal illegal practices, and the National Anticorruption Center, in the case of disclosures about external illegal practices. Respectively, the status of whistleblower can be recognized by the employer or NAC, the employer of the examination authority ensuring the recording of disclosures about illegal practices, by the person or subdivision entrusted with such a task, in the Register of Disclosures about Illegal Practices and Warnings.

The illegal practices are disclosed in written form, on paper, being signed by the employee, or through the electronic system of online disclosures, or it is communicated to the anticorruption hotlines of employers, the warnings examination authorities.

There are yet some nuances. Last year, after problems related to the provision of protective equipment and irregularities in the activity of some of the medical institutions were reported by the press or made public through the social media, medical staffs started to be subject to pressure, intimidation, threats withy dismissal or with criminal cases. The Ombudsperson treated these signals as external disclosures, asking the authorities and institutions to stop their persecution by a public call.

The Ombudsperson’s Office created also a platform for communicating with whistleblowers.  As part of the project “Curbing Corruption by Building Sustainable Integrity in the Republic of Moldova” that was implemented with support from UNDP and the Ministry of Foreign Affairs of Norway, a new application was developed on www.ombudsman.md through which whistleblowers can file an online application to obtain protection from the Ombudsperson’s Office and an online training course. The institution worked out and disseminated a series of informative materials about the Ombudsperson’s duties related to the protection of whistleblowers.

Within the given UNDP project, an information campaign was conducted in support of whistleblowers from among doctors, with a video and a number of informative materials on the issue being disseminated.

IPN: Shall we understand that the intervention of those who seek justice is classed as internal if the shortcomings are removed at employer level. What if this does not intervene for different reasons? When does the disclosure become the Ombudsperson’s preoccupation?

Maia Bănărescu:
The Ombudsperson does not have powers to examine the disclosures and these cannot be within the Ombudsperson’s remit. The investigation of revelations is the responsibility of the examination authorities. The Ombudsperson intervenes only to protect the employer when this is subject to revenge following external and public disclosures about illegal practices. It is noteworthy that under the law, the protection of whistleblowers is ensured by the employer, in the case of internal disclosures about illegal practices, by administrative actions, so as to stop retaliation against employees by ensuring their protection.

The Ombudsperson can examine a case when there is information about the taking of retaliation or intimidation actions, but the will of the person whose rights were violated expressed in written form is of crucial importance for the Ombudsperson to examine the case and to contribute to protecting the persons in accordance with Law No. 52/2014 on the Ombudsperson.

In our activity, we had situations when we learned from the mass media about serious human rights violations, but the involved persons didn’t want our institution to intervene. It was something else in the case of pressure and intimidation against medical staff witnessed last year. We didn’t ask for the consent of persons as it wasn’t an individual case, but a phenomenon that reached proportions in the given period.

IPN: However, the person’s request is the main element that makes the Ombudsperson’s mechanism functional

Maia Bănărescu:
Exactly. If the request meets particular admissibility criteria. There is also the other side of the coinThere were cases when persons revealed illegal practices only after they became the subjects of disciplinary proceedings or criminal cases started in accordance with the law. Claiming that they are whistleblowers, they asked for protection so as to “ease” their initial problem. The determination of good faith with which an alleged whistleblower acted is not a simple issue. What are the criteria? How should we determine if the disclosure of an illegal practice that represents a threat or a damage caused to the public interest was made with good faith?

It should be noted that the Ombudspersons’ Office investigates cases according to the procedures typical of a National Human Rights Institution and does not substitute other institutions whose duty is to finally solve a problem of the kind. We are an extra-judiciary, mediation body.

IPN: The statistics you offered to us show that since 2018, when the protection of whistleblowers was made the responsibility of the Ombudsperson’s Office, the Office has registered only 11 protection requests. Should we understand that the whistleblowing mechanism is not really functional or is even nonfunctional?

Maia Bănărescu:
The problem has a number of aspects. Among these are the level of acceptance in society of whistleblowing, absence of knowledge about the mechanism for protecting persons who made disclosures, the low level of implementation of the recommendations of the Ombudsman’s Office, frequent treatment of cases as labor relations or classical labor disputes.

Among these, I think the lack of knowledge about Law No.122 of 12.07.2018 is the main problem. There is also the fact that amendments to the related framework weren’t made so that this offers efficient mechanisms for implementing Law No. 122.

If the mechanisms for protecting whistleblowers was known, the recommendations of the Ombudsperson’s Office would be accepted and judges would examine some of the lawsuits through the angle of Law No. 122, not only through the angle of the Labor Code.

In fact, I would recommend the National Institute of Justice to include the subject of protection of whistleblowers in the professional improvement program intended for judges.

As to the functionality of the whistleblowing mechanism in the Republic of Moldova, I think this can be efficient if the provisions of Law No 122 are known and obeyed. The mechanism will be nonfunctional as long as the institutions with duties in the field ignore it for various reasons, such as ignorance, unwillingness, resistance to new, etc.

IPN: Does the Ombudsperson’s Office has sufficient resources and tools to ensure the protection of whistleblowers?

Maia Bănărescu:
Regrettably, after the adoption of the law on whistleblowers, our institution wasn’t allocated additional financial resources for the purpose and the number of personnel units wasn’t increased. At the same time, the personnel of the Ombudsperson’s Office need specific training in the field for ensuring the protection of whistleblowers.

The biggest problem is the fact that the implementation of Law No. 122 depends on a number of institutions, not only on the Ombudsperson’s Office. Simultaneously, even if Law No. 52 offers the Ombudsperson more methods of interference for defending the rights, freedoms and legitimate interests of the persons whose rights are violated, we met with the refusal of some of the authorities to have a constructive dialogue with the Ombudsperson’s Office for launching the procedure for mediation and amicable settlement of a conflict so as to avoid evident revenge against whistleblowers.

We can also speak about the different interpretation of Law No. 122 by different payers that are or can be involved in the implementation of this law or in the monitoring of its implementation.

IPN: How does the Ombudsperson’s Office act in cases when persons who make revelations about illegal practices that represent a threat or damage to the public interest are subject to retaliation?

Maia Bănărescu:
I will remind that retaliation, in accordance with Law No. 122 is any form of vengeance, pressure, disadvantaging or discrimination at the workplace in connection with the made warnings. The forms of retaliation are: firing, suspension, revenge, refusal to promote to a post or to training, repressive transfer, annulment of bonuses, concessions or other benefits, harassment or another repressive treatment and also threatening with such acts.

In the case of public disclosures of illegal practices, it is very important that the
Ombudsperson’s Office make sure that the private individual our intervention. It is as important for the examination authorities, such as the National Anticorruption Center, to examine the cases if these contain constitutive elements of a contravention or offense.

As regards cases of retaliation for the made disclosures, the most difficult ones are those in which legal action is taken in revenge, as the petitioner considers. These cases are more difficult as the Ombudsperson’s Office does not have powers to intervene in the trial. At the same time, the taking of legal action is not regarded as a form of revenge at the workplace, under Law No. 122. But we do not want to believe that it is possible to take legal action over the disclosure of illegal practices.

IPN: Which are the methods applied by the Ombudsperson’s Office to ensure the protection of whistleblowers?

Maia Bănărescu:
Following the examination of applications submitted by beneficiaries, the Ombudsperson’s Office presents proposals and recommendations for rehabilitating the persons whose rights and freedoms were violated to the authorities and/or responsible persons.

Furthermore, the Ombudsperson’s Office can go to court to defend the interests of the petitioner or can intervene in the process to present conclusions for defending the rights, freedoms and legitimate interests of persons.

The Ombudsperson can make approaches to the responsible authorities for instituting disciplinary or criminal proceedings against the person holding a responsible post who committed irregularities that generated violations of human rights and freedoms.

Last but not least, the Ombudsperson can contribute to amicably settling conflicts between public authorities and private individuals. There is yet the risk that the whistleblowers will have too big expectations of us, especially if the employers and the courts of law hesitate to examine the cases through the angle of the law on whistleblowers and regard these rather as ordinary work disputes, through the angle of the Labor Code.

Practice shows the most efficient intervention methods for protecting whistleblowers include the conciliation of the sides (mediation), presentation of recommendations and filing of a lawsuit.

In general, the recommendation is the basic instrument of the Ombudsperson’s Office. It should be noted that the Ombudsperson cannot oblige.

IPN: Late Mihail Cotorobai said the appropriation of public funds and corruption are serious hindrances to the realization of human rights in the Republic of Moldova. Currently, the people expect more than ever firm actions to fight corruption. How should the authorities treat the whistleblowing mechanism in relation to the planned relevant actions?

Maia Bănărescu:
I’m sure that this should be strengthened, if the new parliamentary majority aims to take determined action to root out corruption. The active citizens, with social responsibility, should be supported as a collateral measure coming from down. That’s why this mechanism can and should be strengthened and promoted, including by improving the legal framework.

Last but not least, the mechanism for protecting whistleblowers by the Ombudsperson’s Office should be strengthened by increasing the number of employees who are to be trained in this field and, evidently, by allocating budget funds needed for  fulfilling the duties and for carrying out promotion activities, etc.

It is also very important for the disclosures to be examined with increased attention by the responsible institutions for the whistleblowing mechanism not to be treated formally. I even wonder, if there are statistics about the number of examined warnings since Law No. 122 took effect and how many of them turned out to be true, in how many cases the persons to blame for appropriation and damage caused to the state and society were held accountable?

These statistics should be compiled by NAC as this is the institution that examines the disclosures of illegal practices.

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