Finding Justice for Whistleblowers
by Peter Noorlander
Whistleblowers are of crucial importance to journalists. They have helped break stories ranging from the Enron scandal in the United States—which revealed corporate malpractice on an (until then) unprecedented scale—to Israel’s then-secret nuclear weapons program in the 1970s.
Yet, despite their importance in helping journalists break important stories in the media, whistleblowers are uniquely vulnerable. They often lose their jobs and when the information they reveal is deemed sensitive to national security, and many risk imprisonment. The situation of the two best-known whistleblowers of our time—Edward Snowden and Chelsea Manning—best illustrates this vulnerability.
But even outside the context of national security, whistleblowers struggle to protect their rights. While many countries have enacted laws and regulations to protect whistleblowers and ‘public-interest disclosures’, as the technical term goes, this legal protection frequently falls short in practice.
Such is the case with Jacob Guja, a whistleblower from Moldova whose legal battle led to the Grand Chamber of the European Court of Human Rights and a landmark judgment by that court.
Jacob Guja was the head of the Press Department of the Moldovan Prosecutor General. In 2003, following a speech by the President of Moldova in which the president urged prosecutors not to tolerate political interference, Guja gave a newspaper two letters that had been sent by public officials to the Prosecutor General’s office. The letters—one sent by the Deputy Speaker of Parliament and the other from a vice minister—urged the Prosecutor General to intervene in the case of four police officers charged with illegal detention and ill-treatment of detainees. Guja thought they were a perfect illustration of the sort of political pressure put on prosecutors that the President had recently spoke out against.
The newspaper ran a series of reports on the issue.
The news reports angered the Deputy Speaker, who demanded that Prosecutor General ‘deal with’ those responsible for leaking his letter to the media. After being exposed as the whistleblower, Guja told the Court that he “believed … that if each of us were to help uncover those who abuse their position in order to obstruct the proper administration of justice, the situation would change for the better.” He was fired.
Guja challenged his dismissal in the Moldovan courts but was unsuccessful, and then appealed to the European Court of Human Rights. In February 2008—nearly five years after his dismissal—the Court ruled resoundingly in Guja’s favour. As the first case concerning whistleblowers to reach the Court, the decision laid down a number of important principles concerning the clear public interest of the information concerned. The Court ruled that that Guja acted in good faith and that he could not have reported the matter to any of his superiors. He was awarded €18,000 in compensation.
But Court’s landmark ruling wasn’t the end of Jacob Guja’s travails. He wanted his job back, and so his lawyers filed a request with Moldova’s Supreme Court of Justice to review its 2003 ruling against him. In May 2008, Moldova’s Supreme Court agreed with the ECHR’s ruling and ordered his reinstatement. Guja then met with the Prosecutor General, who reportedly requested that Guja resign, but eventually, and grudgingly, accepted Guja back in his job. However, Guja was not assigned any work and was also denied a security badge. This meant that every morning he would turn up and be forced to wait for the head of security to let him into the building. He was given a desk in a shared office and when other employees left, for example for a meeting, he would be asked to wait outside in the corridor – sometimes for several hours – until they got back. This went on for a few weeks.
Eventually, Guja received a letter from the Prosecutor General telling him that he had been dismissed. The letter explained that because all civil servants are hired by the Director of the Public Service—in this case, the Prosecutor General—their employment technically ceases whenever a director leaves and a new one is appointed. It happened that there had just been a change of Prosecutor General and so Jacob Guja’s employment had technically been terminated.
Guja protested that there had been two changes of Prosecutor General since 2003 and no staff had ever been made redundant as a result—but to no avail. His appeal against this dismissal was finally rejected by the Supreme Court on 29 April 2009. His case remains pending before the Council of Europe’s “Committee on the Execution of Judgments,” a committee within the Council of Europe that supervises the execution of ECHR judgements and mandated to ensure that states abide by the European Court’s rulings.
Jacob Guja’s case is not an exception. Even when courts find in their favour, many whistleblowers are not reinstated in their jobs and even struggle to find employment elsewhere. And domestic states will sometimes try to wriggle out of rulings by the European Court, or implement rulings minimally—which is why it is important to follow up with the Committee on the Execution of Judgments,
It is disproportionately hard for whistleblowers to get the protection that they need, as Jacob Guja’s six-year struggle illustrates. This means that individuals who witness wrongdoing still hesitate to come forward, and issues that should be debated in the media are not.
However, there is increasing awareness at the international level that something needs to change. In 2010, the OECD published a compendium of best practice and guiding principles for legislation on the protection of whistleblowers. This came at the request of the Seoul G20 Summit and signified an understanding that better protection was needed. In April 2014, following several years of work and negotiation, the Council of Europe adopted a Recommendation urging all its member states to enact strong whistleblower protection laws, including a stipulation that,
“Whistleblowers should be protected against retaliation of any form, whether directly or indirectly, by their employer and by persons working for or acting on behalf of the employer [including] dismissal, suspension, demotion, loss of promotion opportunities, punitive transfers and reductions in or deductions of wages, harassment or other punitive or discriminatory treatment . . . In legal proceedings relating to a detriment suffered by a whistleblower . . . it should be for the employer to establish that the detriment was not so motivated.”
On the same day, the Council also adopted a Declaration on the protection of journalism and safety of journalists and other media actors. The Declaration expresses strong concern about the safety of journalists and others who inform public debate or perform watchdog functions, and urges States to put in place an effective system for protecting them. The Declaration furthermore urges States to refrain from subjecting them to judicial intimidation, in particular through disproportionate use of criminal law provisions relating to defamation, national security or terrorism. While this Declaration does not refer to whistleblowers as such, arguably they are included through the mention of “others who contribute to inform the public debate and persons performing journalistic activity or public watchdog functions,” which includes whistleblowers.
Moves such as these come too late for Jacob Guja—and some may complain that the Recommendation does not go far enough (there is a significant carve out for national security interests)—but they provide strong backup for whistleblowers who are in court now and are a significant step in the right direction.
This article was originally published as part of our Journalism in Europe: Discussion Series.
Peter Noorlander is CEO of the Media Legal Defence Initiative – www.mediadefence.org - which provides legal aid to independent media outlets and journalists under threat.