Adopt and promote whistleblower protection legislation (CZ0031)

What is the public problem that the commitment will address? Society has a distorted (negative) perception of whistleblowers, which does not reflect their real contribution to detecting illegal acts and preventing other illegal situations. Whistleblowers are often exposed to retaliation and condemnation by society. This situation results in a reduced incentive for potential whistleblowers to report violations of law in the public interest.

What is the commitment? The commitment consists of legislative, educational and media activities aimed at improving the social perception of whistleblowers.

How will the commitment contribute to solving the public problem? The adoption of the Act on the Protection of Whistleblowers will implement 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. The bill also proposes establishment of the Agency for the Protection of Whistleblowers, which will, among other things, be responsible for collecting and publishing data on whistleblowing, provide expert advice in this area and raise general awareness of the issue. The adoption of the bill will be accompanied by a media campaign with the aim to correct the notion of whistleblowing and specify which scope of offences the Whistleblowers Protection Act will apply to. The project entitled "Intensifying the fight against corruption by raising public sector awareness with focus on judges, law enforcement agencies and public administration", which is part of the Good Governance programme, will address the issue of whistleblowers’ protection: a) media campaign including preparation of a brochure, b) international conference for experts, c) comparative study to share good practice abroad, d) statistical monitoring of reports of cases raised by whistleblowers, and e) training of experts (public prosecutors, judges).

Why is this commitment relevant to OGP values? Transparency: Increasing the motivation of potential whistleblowers (or reducing their hesitation) as a result of increasing awareness of whistleblowing issues in Czech society should lead to increased fight against illegal activities (including corruption), about which society will be informed Page 12 (of 24) through the media and the website korupce.cz. Civic participation: The increase in the initiative of whistleblowers is aimed at increasing the level of civic participation in public affairs as a result of the adoption of the Whistleblowers Protection Act and as a result of raising awareness of issues in society. Whistleblowers will be more motivated to detect wrongdoings of their employers and will be entitled to publish information about the breach if the conditions set by law are met. Public accountability: Raising awareness of whistleblowing aims, among other things, at combating infringements by civil servants and introduces the "system of control" by public employees. Corruption practices with a negative impact on society as a whole should thus be more easily detected and prosecuted.

Additional information  The objectives of whistleblowers’ protection are part of the Government Anti-Corruption Conception for 2018 to 2022.  The commitment contributes to the UN Sustainable Development Goal 16 through its Target 16.5 Substantially reduce corruption and bribery in all forms. In terms of overlap with other sustainable development goals, whistleblower protection is one of the key areas, similar to environmental protection. Increasing the detection of infringements in this area is thus one of the objectives of the whistleblowers protection agenda.  The creation of comprehensive and effective legal regulations of whistleblowing also corresponds to the recommendations of the ODIHR or of the OECD Working Group on Bribery.

Milestone activity with a verifiable deliverable Start date: End date: Adoption of the law on the protection of whistleblowers 17. 12. 2021 Media campaign to support the adoption of the law on the protection of whistleblowers 1. 11. 2020 31. 3. 2022 Implementation of the project "Intensifying the fight against corruption by raising public sector awareness with focus on 30. 4. 2023 Page 13 (of 24) judges, law enforcement agencies and public administration"

Action Plan Review

Commitment 2: Raising awareness on whistleblowers

Commitment #2: Raising awareness on whistleblowing

(Ministry of Justice, Working Commission for Whistleblowing)

For a complete description of the commitment see commitment #2 in the action plan.

Context and objectives

This commitment comes under the broader context of the EU Directive on whistleblower protection which should be transposed into national law by the end of 2021, and the objectives of the 2018-2022 Czech Government Anti-Corruption Conception. [19] The previous action plan included a commitment on awareness-raising activities, which had limited implementation after the new EU Directive on whistleblowing interrupted the process of adopting draft legislation into national law. [20]

This commitment is a continuation of the commitment in the previous OGP action plan. The commitment seeks to complete the adoption of the law on whistleblower protection. This law aims to establish accountability through a legal framework to protect whistleblowers in the Czech Republic for the first time. The commitment also aims to raise awareness of the law and implement a project which will have a media campaign, organise expert conferences, conduct a comparative study of good practices, do statistical monitoring and run training(s) of prosecutors and judges.

The objective of this commitment is to address the negative perception of whistleblowers in the Czech Republic and, subsequently, enhance accountability in public institutions and private workplaces by enabling more whistleblowers to come forward safely to report wrongdoing, violations and illegal acts in their places of work. To date, awareness raising on this topic has been led by civil society organisations (CSOs) and international organisations. [21] A 2020 civil society poll revealed that 71 per cent of Czechs do not know what a whistleblower is, and that often negative impressions come to mind. [22]

As part of the process to develop this action plan, the government took forward the proposal by civil society for a continuation of the commitment on awareness raising of whistleblower protection. [23]

Potential for results: Substantial

The adoption of the law on protecting whistleblowers will provide for the first time a legal framework that has substantial potential for results in this policy area and open government value of public accountability. It would give confidential protection for whistleblowers within public institutions and larger private organisations, requires the establishment of internal whistleblowing notification processes, and establishes a whistleblower protection agency which can receive notifications from whistleblowers before such cases are taken up by authorities such as the police. [24] This could mark a significant shift in practice in government institutions and larger private organisations in the way that they deal with reports of wrongdoing and ensuring public accountability. In fact, in 2020, 55 per cent of Czechs said they would not know where to report a case of corruption should they experience or witness it. [25]

The media campaign activities have a budget of US$180,000 and will be conducted by a consultant for the Ministry of Justice, aiming to reach a minimum of 1,000 public officials, produce more than 100,000 leaflets for the wider public, and develop a ‘viral’ social media campaign video. [26] Results from the campaign could lead to a reduction in the number of Czech citizens who do not know what a whistleblower is (71 per cent according to a civil society poll [27]), as well as improve the perception of who a whistleblower is. Civil society polling has shown that when the public understand what a whistleblower does, their impressions of them improve. [28]

The training of judges and prosecutors and expert conferences could aid the understanding of the law and the role of whistleblowers to core stakeholders who will apply the law. On a practical level, the provision of training and adequate resourcing for HR staff in public institutions and private organisations would also be beneficial to ensure the successful application of the law. Appropriate financial support for the new agency may be necessary for it to function properly and for the public to see that the new legislative framework for whistleblowers is taken seriously. [29]

A subsequent result from the adoption and implementation of the law, trainings and a media campaign could be an increase in the number of whistleblowers coming forward. Monitoring and publishing statistics on whistleblowing by the new agency will be the first time that the Czech Republic has collected and published official statistics on whistleblowing. No official statistics are held by government on whistleblowers or whistleblowing cases, but civil society groups have estimated there are about 30 cases each year. [30] Transparency International’s Legal Advice Centre gave legal advice to 371 clients and took on 35 corruption cases in 2019 (although these may not all be cases of whistleblowing), an increase on the year before. [31]

Opportunities, challenges and recommendations during implementation

While the adoption of a new law presents an opportunity for delivering ambitious results, CSOs identified and campaigned on weaknesses to the whistleblower protection draft law that may reduce some of its effectiveness in delivering substantial results, regardless of the awareness-raising activities. These include concerns around the independence of the agency that will receive notifications, financing the implementation of new public bodies, and around the lack of tools or technology that would protect the anonymity of whistleblowers. [32] Estonia’s latest action plan, for example, establishes confidential hotlines and will ensure officials are trained in how to deal appropriately with whistleblowing cases. [33]

Regarding the awareness-raising activities, while both the Ministry and civil society groups recognise the limited capacity for the Ministry to conduct a media campaign on its own, [34] some CSOs question the effectiveness of bringing in a consultant to run the public awareness campaign which is done in parallel by CSOs. [35] A strong media campaign and vocal support from business and institutions could foster a culture in favour of whistleblowing, as seen through Ireland’s OGP commitment from its 2014-2016 action plan. [36]

On the other hand, there is an opportunity for the comparative study of best practices to provide guidance and influence implementation of the whistleblower protection law in the Czech Republic, particularly on issues raised by civil society. The study could look at the functions and operations of any independent agency on whistleblower protection, the best mechanisms for ensuring whistleblowers can provide information in a confidential (and/or anonymous) manner. The study could also cover common concerns about implementation, including how to best conduct whistleblower disclosures and remedies in a timely manner, how to ensure rapid intervention, effective mechanisms to give whistleblowers free legal support and advice, the best way to produce and publish regular statistics, and how to train stakeholders including judges and prosecutors. [37] Some studies have highlighted practices in countries like France, Ireland and the Netherlands which have whistleblower protection mechanisms. [38] The Dutch agency for whistleblowers is expected to advise and support whistleblowers, and investigate retaliation complaints and reports of wrongdoing. [39] In Ireland, employees who disclose information according to the law are protected from a wide range of reprisals, as well as from civil liability and criminal prosecution. [40] France guarantees the confidentiality and anonymity of whistleblowers and in Estonia, anonymity can be lifted only with consent of the whistleblower. [41]

Results Report

Commitment 2. Raising Awareness on Whistleblowers

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Substantial

● Completion: Limited

● Did it open government? Marginal

The commitment sought to adopt a comprehensive legal regulation of whistleblower protection, accompanied by awareness raising and capacity building. Parliament discussed the draft law on whistleblowing in May 2021, but the October 2021 parliamentary elections halted the adoption of the new legislation and subsequent activities. After the elections, the Ministry of Justice prepared a new draft law on whistleblowing, which is currently (at the time of drafting this report) being discussed in Parliament. [28] The new draft envisages the establishment of secure and confidential reporting channels and whistleblower protection mechanisms. The Ministry of Justice would be responsible for collecting and publishing data on whistleblowing, providing expert advice, and raising awareness of the issue. Experts and civil society organizations (CSOs) noted that the draft law excludes anonymous reports and reports of misdemeanors from whistleblower protection, limiting the scope of protection. [29] The Government Council for Coordination of the Fight against Corruption (an advisory body to the government) has also recommended broadening the scope of the draft law. [30]

The European Commission noted the delay in adopting a law (the deadline was December 2021). [31] The obligation to transpose the EU Whistleblower Directive [32] continues to motivate public authorities to engage in the agenda and adopt internal reporting mechanisms. (In February 2023, the European Commission referred the Czech Republic and seven other member states to the European Court of Justice for failure to transpose and notify national measures transposing the EU Directive on Whistleblowing.) [33]

A CSO representative said that the missing legal regulation and corresponding legal uncertainty opened the door for private companies to offer services setting up whistleblower protection mechanisms for public authorities, particularly municipalities. [34] In response, the Ministry of Justice organized eight online trainings for municipalities and other interested parties from November 2021 to March 2022, [35] which were attended by more than 20 participants. In November 2022, CSOs experienced in organizing trainings on whistleblowing trained the trainers from the Ministry of Justice. [36]

In December 2021, the Ministry of Justice published guidance clarifying which provisions of the EU Whistleblower Directive would be directly applied, the authorities that are obliged to adopt an internal reporting mechanism, how to adopt and operate internal reporting mechanisms, and how to deal with whistleblower reports. [37] A CSO representative welcomed the adoption of the guidance as it helped to prevent legal uncertainty and possible litigation. [38] While ministries and other state authorities already had some internal reporting mechanisms in place, a CSO representative said the guidance has been particularly useful to municipalities with no or little previous experience with whistleblower protection. [39]

The awareness-raising campaign envisaged in the action plan did not happen as the Ministry of Justice waited for the adoption of new legislation. However, in December 2021, the Ministry launched a new website dedicated to whistleblowing that includes information for citizens and potential whistleblowers and a form to report illegal behavior. [40] The Ministry received 28 reports so far through this form. [41] The procurement procedure for the production company to raise awareness is currently taking place. [42] According to CSO representatives, it is not imperative to await adoption of legal regulation to enhance public awareness on whistleblowing. [43] In the past two years, CSOs have been particularly active in leading awareness-raising campaigns and providing legal and other support to whistleblowers. [44] In 2022, the Ministry of Justice, in cooperation with CSOs, published a comparative study on good practices in awareness raising on whistleblowing and conducted further training of trainers for municipalities. [45]

Stakeholders transferred the incomplete activities (adopting comprehensive legal regulations for whistleblowing and ensuing activities, including public-awareness campaigns, training professionals, and data collection) to a commitment to enhance whistleblower protection in the next action plan. [46]