EU Review Wrongly and Superficially Applies ECtHR Precedent on Whistleblowing

By Flutura Kusari

The report drawn up by law professor Jean Paul Jacqué that reviews EULEX’s handling of the whistleblowing case of Maria Bamieh (briefly explained below) reveals that European Union institution employees reporting irregularities do not enjoy protection under the right to freedom of expression. The expert’s narrow and wrong interpretation of whistleblowing protection could discourage other EU employees from voicing their concerns on matters of public interest.

Findings of the report

Jean Paul Jacqué’s review on the handling of corruption allegations within the European Union Mission in Kosovo (EULEX), published on 14 April 2015, raises serious concerns regarding whistleblower protection at the European Union level.

Federica Mogherini, High Representative of the European Commission, called for the review following a series of articles published by the daily newspaper Koha Ditore in Prishtina, Kosovo. These articles were based on leaked documents written by UK prosecutor Maria Bamieh and alleged that EULEX international staff were bribed and colluded with accused individuals; Bamieh had requested for internal investigations, but her requests had been refused. After EULEX suspended her for leaking information, an allegation that both Bamieh and the local newspaper deny, she blew the whistle publicly by accusing the mission of neglecting her request for an internal investigation.

Jean Paul Jacqué, law professor at the University of Strasbourg and author of books on human rights, international and constitutional law, undertook the task of reviewing the handling of corruption allegations focusing on the administrative procedure established within EULEX and treatment and protection of the involved persons.

The report finds Bamieh’s accusations of a cover up within the mission to be unfounded even though doing so was not within the terms of reference for dealing with actual allegations of corruption. The media reported extensively on the findings of the report, focusing mainly on the political effects, though the report lacks scrutiny from a human rights’ perspective.

The last part of the report deals with the right to freedom of expression and provides an analysis as to whether Bamieh could be considered to be a whistleblower. In examining this question, Jean Paul Jacqué applied the leading cases of the European Court of Human Rights on whistleblowing protection: Guja v. Moldova (application no. 14277/04, 12 February 2008) and Heinisch v. Germany (application no. 28274/08, 21 July 2011).

The report wrongly applied these two cases to determine whether Bamieh could be considered to be whistleblower. A short description of the facts of the cases is provided below to understand their context.

In Guja v. Moldova, the applicant Iacob Guja was dismissed from his position as the Head of the Press Department of the Moldovan Prosecutor General’s Office for leaking two documents contrary to internal regulations revealing that Vadim Mişin, the Deputy Speaker of the Parliament had exercised pressure on the Public Prosecutor’s Office. Based on article 10 of the ECHR, he complained to the ECtHR, who found a violation of the right to freedom of expression.

The test established by the ECtHR in this case comprised six criteria that should be established for a whistleblower to claim protection under Article 10 of the ECHR: whether the whistleblower had alternative channels for disclosure, public interest regarding the disclosed information, authenticity of disclosed information, detriment to the employer, whether the whistleblower acted in good faith, and the penalty imposed.

In Heinisch v. Germany, the applicant Brigitte Heinisch was a geriatric nurse at a nursing home. She raised concerns about shortcomings in the provided care and consequently brought a criminal complaint accusing the company of knowingly failing to provide the promised high quality of care. She successfully brought the case to the ECtHR, claiming a violation of Article 10 of the ECHR where the ECtHR applied the same test as in Guja v. Moldova.

While Jean Paul Jacqué’s report refers to these two cases, it nevertheless fails to apply the six criteria correctly, since it mentions four of the Guja v. Moldova principles but only examines three, while omitting the other three.

Whistleblower Status Assessment

Public interest – the report’s assessment erroneously confuses this principle with the criterion of good faith (motive of the whistleblower). According to the report, “she [Bamieh] stated that she had chosen this solution on account of her suspension. If that were the case, she would not have been acting in the public interest.” The Court, however, established that when assessing public interests, one should consider whether the public has a legitimate interest in being informed of important matters (see §88 in Guja v. Muldova). The information provided by Bamieh concerning EULEX’s failure to properly handle her request for internal investigations, which is also confirmed with the review report, is clearly a matter of public interest.

Alternative channels for disclosure – the report states that Bamieh could not be considered to be an external whistleblower because “the information was disclosed to the public before the international procedures and judicial proceedings were completed”. Firstly, it is not clear why the report made a distinction between internal and external whistleblowers. Secondly, whether international or judicial procedures have been concluded is not an ECtHR requirement. The Court has instead established that when the prescribed procedure for reporting such matters is unavailable and the alternatives are ineffective, external reporting, even to newspapers, could be justified. The report confirms that EULEX operated without any rules on whistleblowing and consequently the reporting alternatives were ineffective because, as the report bears out, an investigation should have been opened from the outset, which did not happen.

Authenticity of disclosed information – the report initially mentions but fails to apply this principle when evaluating Bamieh’s status. Neither EULEX nor the EU review report contested the authenticity of the documents leaked to media.

Good faith – as mentioned above, the report wrongly applied this principle. The ECtHR has established that an act motivated by personal grievance, personal antagonism or with the expectation of personal advantage would not justify a particularly strong level protection ( Guja v. Moldova § 77). The report suggests that Bamieh blow the whistle because of her suspension. While the motive behind such an action is not easily established, it is incorrect to suggest that since it is a matter of fact (as the report confirmed) that she made the request for an internal investigation two years before she was suspended.

Penalty imposed – the report neither refers to nor applies this principle. In assessing the sanction, the ECtHR considers the repercussion on the applicant’s career and the chilling effect upon other employees. Bamieh was suspended several days before her contract expired and was accused of “gross misconduct” without the results of investigations concerning who had leaked the documents. Bearing in mind that to date, neither EULEX nor the EU review report has ascertained the identity of the leaker of the document, the sanction could negatively affect the future career of Bamieh.

Detriment to the employer – the report neither mentions nor applies this principle. The ECtHR has found that it is in the public’s interest to maintain confidence in public institutions (Guja v. Moldova §90). The conclusion drawn by newspapers that a few employees of EULEX are allegedly corrupt certainly had a negative effect on public confidence in rule of law institutions. However, the public interest in being informed on how EULEX handles allegation for internal corruption is important in a democratic society and might even outweigh interests in safeguarding public confidence in this mission.

Conclusion

Reporting misconduct or illegal practices, otherwise known as whistleblowing, is a crucial procedure for holding public and private institutions accountable. Whistleblowers in Europe and around the world have been encouraged to come forward with a guarantee of protection under national and international legal frameworks.

It is unfortunate that Jean Paul Jacqué’s report reveals that EU institutions employees reporting irregularities do not enjoy the right to freedom of expression as guaranteed by these very institutions.

In determining whether a person enjoys the status of whistleblower, the report failed to strike a proper balance between the right to freedom of expression of the employee and the rights of the employer. The report has wrongly and only partially applied the six-criteria test established by the landmark ECtHR case Guja v. Moldova by omitting most of the criteria and by failing to provide a thorough analysis based on facts.

A flawed and narrow application of ECtHR case law on the protection of whistleblowing employees of the EU could discourage other employees from voicing their concerns on matters of public interest.