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About the Draft Legislation on Whistleblowing

About the Draft Legislation on Whistleblowing

We consider a fundamental shortcoming of the draft legislation that it assigns the task of investigating complaints and announcements of general interest to authorities which are already in charge of handling similar reports related to corruption under the current legislation. The draft legislation should depart from assuming that new information and data that have so far gone undisclosed will come to light in the new system. To ensure that such information of general interest does come to the surface, an effective system to investigate complaints and announcements and an adequate protection of whistleblowers is needed. However, the draft legislation fails to actually create these effective mechanisms and protection measures. Instead, the only thing the draft does is enabling potential whistleblowers to request, under a different title, already existing authorities to take measures or launch procedures that already exist under the current legislation. This results in nothing less than self-contradiction which the draft fails to resolve.

That is, if current procedures, administrative and institutional solutions are satisfactory in disclosing cases of corruption and abuse of power, then there is no need for the new draft legislation. Now this statement must obviously be wrong, because legislators expect this very draft to roll back latency so typical of corruption and to lead to a surge in essential information that authorities need to pursue abuse of power. The only way to manage, process and investigate this influx of new information is if besides currently existing solutions, innovative and highly effective administrative and/or procedural solutions are put in place. In lack of salient and effective protection for whistleblowers, for example, we cannot possibly expect to see a tide of new information. Even more so than naivety, it is a blatant professional mistake to suppose that citizens will be able and willing to report information implying corruption or abuse of power in significantly greater quantities if they are to bear all the possible consequences: loss of job, isolation, becoming victims, etc. Unless a novel procedure for the “protection of public interest” is introduced and a well-prepared professional organization specifically designated to carry out these procedures is set up, nothing can guarantee that the likely influx of announcements will be thoroughly investigated.

It is clear that under the draft legislation, the Commissioner for Fundamental Rights becomes the key figure in handling and inquiring into announcements of general interest. For example, section 17 of the draft rightly authorizes the Commissioner for Fundamental Rights to exercise control over announcements of general interest which other state organs failed to investigate. Apart from that, the draft legislation does not specify any other tasks of the Commissioner; neither does it provide the Commissioner with any powerful tool to combat corruption.

As a result, rather than stepping up the fight against corruption, the draft legislation can facilitate that cases of corruption go unpunished. Below you can read all of our observations regarding the draft legislation in detail as well as our proposals for procedural and institutional solutions that we deem necessary in the fight against corruption but which are not put forward by the draft legislation.

The full position paper (in Hungarian) can be reached here.

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