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TRANSPARENCY INTERNATIONAL LATVIA ON THE NEW WHISTLEBLOWING LAW

The new Whistleblowing Law of the Republic of Latvia (hereinafter – Whistleblowing Law) came into effect on 4 February 2022. It was drafted to transpose Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (hereinafter – Directive). The new Whistleblowing Law is based on the previous law, which entered into force in 2019, and expired with the new Whistleblowing Law.

Transparency International Latvia (TI Latvia) participated in drafting the new Whistleblowing Law both with suggestions and recommendation at the stage of preparation of the text of the draft law, and with recommendations and proposals for modifications in the Parliament State Administration and Local Government Commission (hereinafter – the Commission). Read more about the proposals submitted to the Commission here. For more information on the most important changes and innovations in the new Whistleblowing Law, see TI Latvia’ s legal consultant’s Krista Asmusa publication in “Jurista Vārds”.

TI Latvia’s input

TI Latvia’s involvement in the drafting of the new Whistleblowing Law has facilitated inclusion of carious important aspects to encourage and support the effectiveness of the Whistleblowing Law in the interests of whistleblowers.

Obligation of the authorities to recognize the application as a whistleblower report

Until now, the Whistleblowing Law has provided that if a person has submitted an application without indicating that it is a whistleblower report, the competent authority may propose that the application be recognized as a whistleblower report. Such a procedure provided for the right, but not the obligation, for the authorities to recognize the application as a whistleblower report in the event that the applicant did not include this indication in the application. The fact that the authorities were not obliged to do so led to situations where a person receives a formal reply to an application indicating the possibility to address the institution with a whistleblower report, even though the initial application already met the characteristics of a whistleblower report. Such a procedure created obstacles to the implementation of the purpose of the Whistleblowing Law – to ensure adequate protection of whistleblowers.

The new Whistleblowing Act, after TI Latvia’s recommendation, addresses this issue by replacing the right with an obligation of the competent authority to propose the recognition of an application as a whistleblower report if the application appears to meet the characteristics of a whistleblower report.

Legal authorization of associations and foundations

Under the previous Whistleblowing Law, associations and foundations, including TI Latvia, could apply to an institution or court on behalf of a whistleblower who is a member or person whose interests it represents under the statutes and to defend the whistleblower’s rights and legitimate interests. The Whistleblower Contact Point interpreted this provision in such a way that the right to represent whistleblowers in institutions or courts can only be exercised through a duly issued mandate (power of attorney).

Given TI Latvia’s experience in protecting and supporting whistleblowers, it is clear that such regulation did not achieve the best possible outcome for the involvement of associations and foundations in the implementation of the whistleblowing system. Consequently, after TI Latvia’s suggestion, the new Whistleblowing Law has been supplemented with a legal mandate for associations and foundations, including TI Latvia, to represent the interests of whistleblowers, without the need for an additional authorization document.

The new regulation opens up more opportunities for TI Latvia to further cooperate with whistleblowers, as whistleblowers are exempted from the obligation to formalize TI Latvia’s involvement in whistleblowing cases with a power of attorney. Instead, TI Latvia has the right to communicate, file applications and take other actions on behalf of and for the benefit of the whistleblower, both within the authorities and in court.

Next steps to improve regulation

Although some of TI Latvia’s recommendations were not supported by the Commission, TI Latvia believes that a number of issues described in the recommendations still need to be addressed in the further development of the whistleblowing system. Also, the new regulation, although even stronger and more specific in content than the previous one, still has some shortcomings, which TI Latvia describes below.

Mandatory indication of the whistleblower report

Current Whistleblowing Law stipulates in several norms the obligation of a person to include in the whistleblower report a direct indication that it is the whistleblower report. TI Latvia suggested resolving this situation, as it has often been observed in practice that a person, due to ignorance, negligence or error, does not include an indication that the application was intended to be a whistleblower report and hence the person could receive the legally guaranteed protection. Consequently, there is a risk that a person’s application will be considered on the merits in accordance with the regular application procedure.

The purpose of the Whistleblowing Law is to promote whistleblowing in the public interest and to ensure the establishment and operation of whistleblowing mechanisms and the adequate protection of whistleblowers. This goal cannot be fully achieved if citizens are expected to be able to identify whether or not a particular situation is basis for a whistleblower report and to know the nuances of the formal requirements for the whistleblower report. According to TI Latvia, the interests of whistleblowers are better protected if the authority is obliged to assess the substance of the report, whether or not it is called the whistleblower report.

Contradiction about the information to be included in the whistleblower report

Article 7 (9) of the Whistleblowing Law provides that the authority shall provide information to the public about violations which the whistleblower has helped to detect, [..] unless the whistleblower objects to disclosure. However, according to Article 6 (3) the whistleblower shall indicate in the whistleblower report whether, in case a violation is established, it is permitted to publish information regarding the violation.

It can be concluded that in one provision the whistleblower has a positive obligation to indicate that they want the information to be published if a violation is found; otherwise the information would not be published. While the other article provides that if a person does not wish to disclose information, they are obliged to object.

Given the purpose and spirit of the Whistleblowing Law, which is to protect whistleblowers, only the person’s active consent to the publication of information should be required, not the non-objection.

The state-provided legal aid also to relatives and related persons

Article 10 (1)(3) of the new Whistleblowing Law stipulates that the whistleblower, their relative and related person have the right to state-provided legal aid in the cases and in accordance with the procedures specified in this Law and other regulatory enactments. However, Article 14 of the Whistleblowing Law, which describes in more detail the right to state-provided legal aid, does not provide for the application of the norm to related persons. For comparison, Article 12 (protection of identity), Article 13 (protection against adverse consequences), Article 15 (exemption from legal liability) and Article 16 (exemption from state fee and out-of-court administrative proceedings) of the Whistleblowing Law include a direct reference to their application to related persons.

The annotation to the new Whistleblowing Law provides an answer to this situation, saying that under the Whistleblowing Law and the State Ensured Legal Aid Law, relatives and related persons are not entitled to state-provided legal aid but are entitled to protection against adverse consequences if the consequences are caused by whistleblowing.

It is possible that a solution can be found in the future to improve the wording of Article 10 of the Whistleblowing Law, because the current wording stipulates that “[…] a relative and a related person have the right to: 3) the state provide legal assistance; ” may seem confusing if the relatives and the related parties do not have such rights under this Law or other regulatory enactments. In addition, due to the fact that protection against adverse effects is provided directly through the courts, the relatives of the whistleblower and the related persons are less protected, as they are not guaranteed state-provided legal aid in proceedings to remedy the adverse effects.

Expanding the competence of associations

Currently, the Whistleblowing Law provides for the involvement of associations and foundations in supporting whistleblowers and those who wish to become a whistleblower. Although existing or potential whistleblowers are the ones most likely to seek help, given the new legal mandate for associations and foundations to represent whistleblowers in institutions and courts, it is worth considering extending this mandate to not only whistleblowers but also relatives. and related persons and parties.

Public whistleblowing

The Whistleblowing Law provides for public whistleblowing as one of the mechanisms. However, the Law does not specify how a public whistleblowing may take place.

In the recitals of the Directive, a public whistleblowing is defined as the dissemination of information in a public domain, for instance, directly to the public through online platforms or social media, or to the media, elected officials, civil society organizations, trade unions, or professional and business organizations.

TI Latvia has noted that public authorities do not have a full understanding of what constitutes a public whistleblowing. The authorities tend to refer to the fact that information about the violation has been disseminated outside the workplace, which they automatically consider to be a public whistleblowing, and therefore refuse to pursue the whistleblower’s report further.

In TI Latvia’s view, a public whistleblowing must involve the person directly disseminating the information. Consequently, it would be useful to consider the inclusion of a public whistleblowing in the list of terms in the Whistleblowing Law or another type of explanation of what specifically and under what circumstances constitutes a public whistleblowing.

Recognition as a whistleblower report in the internal whistleblowing system

As indicated above, the new Whistleblowing Law provides for an obligation for the competent authorities to propose the recognition of an application as a whistleblowing report if the application appears to meet the characteristics of a whistleblower report. However, the Law does not provide for the extension of this obligation to applications received in the internal whistleblowing system. Therefore, in TI Latvia’s opinion, it would be useful to provide the same regulation for the processing of reports in the internal whistleblowing system.

Conclusions

Latvia is still one of the European leaders in terms of whistleblowing regulation, but this does not exclude the possibility to go further, develop and improve the regulation in order to further promote whistleblowing and protection of whistleblowers. TI Latvia will continue to work with whistleblowers and will continue to represent the interests of whistleblowers in future policy-making and legislative processes.

 

Drafting of this Article is financed by Society Integration Foundation from Latvian state budget allocated by the Ministry of Culture. Transparency International Latvia is responsible for the content.

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