In the lifecycle of any given social change, it’s never easy to pinpoint the dividing line that separates the before from the after. Only upon reflection, sometimes years or decades later, can one look back and recognize the transformative moment and place.
For me, it was November 17, 2016 in Room ASP 3H of the European Parliament in Brussels.
From the dais, Croatian immunologist Dr. Srecko Sladoljev had just finished telling the audience his story. Calmly and with purpose, Dr. Saldoljev explained how after he exposed a questionable swine-flu vaccine on the verge of widespread distribution in his country, he was bullied, suspended and physically prevented from entering his workplace.
Everyone in the room was so shocked they were speechless. That was until Parliament Member Benedek Javor, himself a public health activist, broke the silence. “God…,” said Javor, visibly humbled and lowering his head, “F—ing tough.”
You don’t often hear a Member of the European Parliament use such language – not publicly, anyway. Something about what Dr. Sladoljev said, and the way he said it, moved Mr. Javor to abandon decorum and express an honest, spontaneous human reaction.
Any reasonable person hearing Dr. Sladoljev’s story would respond the same way. The idea that a person could be punished because he or she tried to save lives goes against every pillar of democracy, human rights and morality that society has been working toward for centuries.
Why was this a transformative moment and place? Something about what Javor said, and the way he said it, indicated a change in thinking, a change of direction. In a roomful of EU officials and associated Brussels stakeholders, an unspoken consensus coalesced: protecting whistleblowers was an idea and a policy that the EU finally should make its own.
I say “finally,” because it was 2008 when the European Court of Human Rights first ruled that public-interest whistleblowing is protected under Article 10 of the European Convention on Human Rights. And because it was 2009 when the EU enacted its Charter of Fundamental Rights, which codified the rights of freedom of expression, protection from unjustified dismissal, and effective remedies.
Despite these protections, Europe still lacked adequate legal coverage to make a difference for thousands of people who committed professional suicide when they committed the truth. No one seemed inspired enough by their suffering to do anything about it.
The long period of apathy officially came to an end this past April 23, when the European Commission released a draft law intended to strengthen whistleblower protections throughout the EU.
Formally known as a Directive, the proposal contains most, though not all, prevailing standards for whistleblower legislation. However, unless some critical loopholes are closed, whistleblowers still could fall victim to reprisals and court actions.
Debates and compromises in the EU’s three policy-making agencies – the Parliament, Commission and Council – will determine the Directive’s final makeup, or whether it passes at all.
EU institutions rarely are ahead of the curve, policy-wise. This issue is no exception. The Commission, whose leaders are not directly elected by the people, waited until 16 of the EU’s 28 countries enacted their own whistleblower provisions before even proposing a law of its own.
What finally pushed the Commission to act? One need to look no further than the first sentence of its press release announcing the proposed Directive:
“Recent scandals such as Dieselgate, Luxleaks, the Panama Papers or the ongoing Cambridge Analytica revelations show that whistleblowers can play an important role in uncovering unlawful activities.”
The Commission is stating the obvious. Still, it deserves credit for putting forth a proposal that – if improved in certain spots – would greatly benefit all employees while recognizing the essential role of citizens to expose and fight corruption when regulators cannot, will not, or do not know how to do it on their own.
Hopefully the Directive will not only standardize whistleblower rights but also provide the mechanisms to protect employee and citizen speech and, if need be, compensate victimized whistleblowers.
After countless failures of current legislation to provide protection, even the oft-cited “success stories” in Europe are prime arguments for reform.
In Ireland, Anna Monaghan, a mother of nine in her 50s, was harassed, bullied and suspended from her job in 2014 after alleging mistreatment of residents at Áras Chois Fharraige Nursing Home. Inexplicably, the Workplace Relations Commission rejected her claim of whistleblower retaliation. The Labour Court corrected the error, astutely labeled the “disciplinary” action taken against her retaliation, and awarded her €17,500 in compensation. Amidst the two-year legal struggle, however, Monaghan left her job due to the toxic work environment.
In Luxembourg, Antoine Deltour and Raphaël Halet were charged with a laundry list of crimes in 2015 following the LuxLeaks disclosure. Following a series of appeals, Luxembourg’s Court of Cassation overturned Deltour’s conviction three years later – but only due to the herculean efforts of his attorneys William Bourdon and Philippe Penning.
In Bosnia, which has applied for EU membership, the family-run mining company Tuzla Kvarc suffered serial retaliation – almost too systematic to believe – after reporting a government bribery scheme in 2015. Its director faced bogus criminal charges, company assets were seized, its mining license and bank accounts were frozen, police conducted nuisance inspections, its assistant director was falsely linked to an Islamic terrorism group, and its office building was burned and demolished to smithereens. Following a two-year public campaign, most of the legal actions were lifted. By then, the company had to be sold, many workers lost their jobs, and its director essentially was forced into retirement.
In Serbia, an official EU candidate country, Marija Beretka endured a series of topsy-turvy, sometimes contradictory rulings in several courts before an appeals judge in 2017 ordered her reinstated to her job in the city Novi Sad. Bizarrely, one judge ruled against her after reasoning that the police are not authorized recipients of whistleblower reports. Two years and three separate courts later, Beretka was compensated a grand total of €810 for “mental pain.”
These Rube Goldbergian paths to “victory” are phony models of justice. In these and many other cases, the cost of winning is far too great.
We hope the EU enacts a law that streamlines the road to meaningful redemption. Better yet, the law should prevent retaliation in the first place – before it has a chance to destroy lives and careers.