In April 2014 amendments were made to the legislation regulating the whistle blower protection issues in Georgia. Number of the recommendations that IDFI had been advocating for already in February this year were taken into consideration. Nevertheless many important topics are still left out of the legislation. At this point we would like to assess the final text of the law and highlight the positive changes as well as the gaps in the legislation.
The positive changes introduced by the amendment are as follows:
- The law introduces the so called ‘confidentiality presumption’ principle, meaning that the identity of the whistleblower is kept secret unless otherwise indicated by the individual himself explicitly and in the written form;
- Protection from coercion, intimidation, retribution or any other illegal action is granted not only to the whistleblower himself but also to his close relatives;
- Moreover individuals are protected even if the information disclosed is not correct. Of course in this case the individual should not be aware of the false character of the information;
- The ambiguity linked with the form of disclosing information has been addressed. It is now explicitly stated that the disclosure can be done in written or in oral, online, via telephone, fax or etc;
- Different rules are applicable when the information disclosed is linked with the Ministry of Internal Affairs or the Ministry of Defence
- The term ‘disclosure appeal’ has been change with the one of ’disclosure notice’ which is legally more precise.
Despite the above mentioned there are number of fundamental flaws in the legislation that need to be addressed. Precisely:
- There is no separate legal act regulating the whistleblower protection issues in Georgia. Instead the topic is included in the law on the Conflict of Interests and Corruption in the Public Service. Hence the issue is fragmentarily regulated
- According to the legislation in force whistleblower can only be a serving or a former public official. This circle is narrow when compared to the best practices (e.g. UK, USA, Canada, Japan). Precisely the experts, specialist or volunteers working for certain public institutions as well as private sector employees are exempt from the scope of the law (this is due to the fact that the issue is regulated by the law on the Conflict of Interests and Corruption in the Public Sector);
- The restriction of the law according to which the whistleblower is allowed to disseminate information through media or civil society only in two months after the case reviewing authority had made the decision is unjustifiable. It is important for the individual to have the freedom of action and proper leverage in cases when the authorities refrain from or unjustifiably procrastinate decision making on the case;
- No provisions guaranteeing damages or covering the court or solicitor expanses of the whistleblower is foreseen by the law.
The effective implementation of the legislation is no less important than the provisions of the law itself. To this aim awareness rising activities and trainings should be conducted. Disclosing the information through special hot lines or online should also be made possible. Moreover it is advisable for the relevant institutions to regularly publish the information on the cases disclosed by the whistleblowers. This will inter alia serve the aim of the increasing public control on the issue.