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FROM GUJA TO HALET: THE LONG MARCH OF WHISTLEBLOWER PROTECTION BEFORE THE COURT OF STRASBOURG

Updated: Apr 13, 2023

This article compares two landmark decisions of the Grand Chamber of the European Court of Human Rights (ECtHR) to explore the evolution of whistleblower protection in Europe. Specifically, it examines the Guja v. Moldova ruling in 2008 and the Halet v. Luxembourg decision of 2023, both of which focused on the level of protection afforded to whistleblowers. In Guja, the Court established six criteria to assess whether the interference with an individual's freedom of expression, as protected by the European Convention on Human Rights (ECHR), was justified and necessary. In Halet, the Grand Chamber had the chance to further elaborate on those criteria. As this article argues, the judgments of the Grand Chamber strengthen the case law of the ECtHR and are of great importance for the protection of whistleblowers in Europe.

1. Introduction

Despite the growing recognition of the critical role played by whistleblowers, leakers, and investigative journalists in promoting transparency, accountability, and good governance, these individuals often face severe retaliation from both government authorities and corporate entities for their disclosures.[1] In this context, this article will compare two landmark decisions of the European Court of Human Rights (ECtHR) to explore the evolution of whistleblower protection in Europe.

In 2008, the ECtHR issued a landmark ruling in Guja v. Moldova,[2] in which the Grand Chamber considered the case of a whistleblower who was a public official. Guja, who headed the press office department of the Attorney General, handed over two letters received by the office to a newspaper. Based on these letters, the newspaper published an article indicating the extensive scale of abuses committed by public authorities, including the actions of the deputy speaker of the parliament. However, Guja was dismissed from his post because he did not consult with prosecutors and disclosed classified documents.

The Court established six criteria on the basis of which it assessed whether the State party's interference with the individual's freedom of expression, as protected by the European Convention on Human Rights (ECHR), was justified and necessary.[3] Firstly, the ECtHR considered the manner in which the whistleblower discloses irregularities, i.e., whether they reported the irregularity internally, externally, or made a public disclosure. Secondly, it established that to be relevant the information disclosed must be authentic. Thirdly, the Court affirmed that there must be a public interest in the disclosure. The fourth criterion referred to weighing whether the benefit that the disclosure has accrued outweighs any harm suffered by the reported person/subject as a result of the disclosure. The fifth element to be considered relates to the motivation of the whistleblower – whether or not acted in "good faith".[4] Finally, the sixth criterion is to take into consideration the severity of the sanction imposed on the whistleblower and the assessment of its impact.

Article 10(1) guarantees the right to freedom of expression. These rights also include the freedom to hold opinions and to receive and impart information without interference from public authorities. Article 10(2) contains a limitation clause allowing for the restriction of these freedoms: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary for a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The ECtHR has always taken care to ensure predictability and uniformity in its rulings; therefore, in each subsequent whistleblower case[5] in which the violation of Article 10 of the Convention was examined, the Court assessed the interference based on these six criteria established in the Guja judgment.

After that, the ECtHR announced its judgment in Halet v. Luxembourg.[6] It was another verdict of the Grand Chamber, which concerned the extremely famous “LuxLeaks” scandal, which concerned tax optimization carried out by the global consulting company PricewaterhouseCoopers (PwC) for large, global enterprises (e.g., Ikea and Apple).[7] For an analysis of the Halet case, see the article published on the Corporate Crime Observatory by David Banisar.[8] Halet revealed confidential documents that contained details of tax settlements of his employer’s clients. He was fired from his job and sentenced by the criminal court to a 1,000 euro fine for violating professional and business secrets. For an analysis of the implication of criminal responses to reporting actions and a detailed exploration of the Luxleak case see the recent work of Vozza and Turksen.[9]

After exhausting all the available domestic remedies, Halet filed a complaint with the ECtHR. In the first instance, the Court’s Chamber ruled that there was no undue State interference with the applicant’s freedom of expression and concluded that the value of the documents disclosed by the applicant was not significant and that the public interest in disclosure was insufficient to outweigh the damage suffered by the private employer.[10] This first judgment raised concerns that it could have significantly weakened the protection of whistleblowers in Europe.[11]

The case Halet was referred to the Grand Chamber, even if the chances of success were uncertain. However, the Grand Chamber positively dealt with the case for the applicant, which means it found that there had been an unjustified interference with the freedom of expression guaranteed by Article 10 of the ECHR. It was found that the damage suffered by PwC did not outweigh the public interest value of the disclosures. The sanction suffered by the applicant was, in theory, harmless, but the very fact that it was a criminal penalty could have a chilling effect and was a definite ailment for the applicant.[12]

The judgments of the Grand Chamber strengthen the case law of the ECtHR. These decisions are of great importance for several reasons: if a case is re-examined under Article 43 of the Convention, the Grand Chamber will hear the case from the beginning, unlike in appeal or cassation proceedings; due to the composition of the Grand Chamber,[13] the Court itself places great emphasis on the predictability of its decisions and considers the judgments of the Grand Chamber with great attention; moreover, the Grand Chamber only deals with matters of the utmost importance,[14] and requests for referral to the Grand Chamber are considered positively extremely rarely – only 4.98% of applications considered by the Grand Chamber are accepted.[15] As a result, referral to the Grand Chamber is seen as a way to develop the philosophy and jurisprudence shaping the content of the Convention.[16] In such a context, the Halet judgment is particularly relevant in that the Grand Chamber had the chance to further elaborate on the above-mentioned six criteria determining the admissibility of interference with a whistleblower's freedom of speech as established in Guja. Given the intricate nature of legal cases and the complexity of their outcomes, it is opportune to conduct a brief comparative analysis of Gujaand Halet aim to understand the nuances of their respective decisions and the impact of their outcomes.

2. Guja and Halet: Connections and Divergences

The Grand Chamber, in the Halet case, based its examination of the facts on the six criteria laid down in the Gujajudgment but also tried to update them taking into consideration technical, societal, and economic evolution that had taken place during the last 15 years. It follows an examination of the ways in which the Court has interpreted these six criteria in these two landmark decisions.

As regards the first criterion to assess the violation of the freedom of expression, which concerns the channel used to report irregularities, since the Guja judgment, it has been repeatedly stressed that priority should be given to internal reporting channels, then to reports to the competent authority and then to the public only if the usefulness of the first channels is manifestly unfounded. However, it is worth remembering that such internal reporting mechanisms must exist and function properly. The Court considered that the direct use of external channels might be justified in certain cases. In both Guja and Halet cases, information was disclosed directly to the press. In Halet, the Court held that the disclosure in question was consistent with its established case law, as it was deemed necessary to ensure adequate publicity and effectively inform the public.[17]

With reference to the second criterion, which is the necessity of the authenticity of the information disclosed, in Guja, the ECtHR pointed out that the exercise of freedom of expression entails duties and responsibilities and that any person who decides to disclose information has a duty to verify, to the extent permitted by the circumstances, that the information is accurate and reliable. Where a whistleblower has diligently taken steps to verify, to the best of their ability, the authenticity of the information disclosed, the protection granted under Article 10 of the Convention cannot be denied. Whistleblowers seeking protection must behave responsibly and try to verify, where possible, whether the information they wish to disclose is authentic before it is made public. In Halet, there was no dispute about the authenticity of the disclosed documents. In assessing the third criterion, which is the whistleblower’s “good faith,” the Court examined whether the whistleblower was motivated by personal gain, had a personal grudge against his employer, or had another ulterior motive. The criterion of good faith is linked to the criterion of the authenticity of the information disclosed, considering that a complainant whose allegations were based on mere rumor and who had no evidence to support it cannot be regarded as a bona fide applicant. In Guja, the Court examined whether the application was motivated by personal gain, had a personal grudge against his employer, or had any other ulterior motive.[18] In Halet, the Court held that the criterion of good faith was met, and it was found that the applicant had not acted with a view to making a profit or to harming his employer.[19]

Concerning the public interest, which is the fourth criterion on the basis of which the Court makes its assessment, in the context of matters concerning the right to freedom of expression, the public interest concerns matters that affect society to such an extent that it can legitimately take an interest in them, which attract its attention or which affect it to a significant extent, especially since they affect the well-being of citizens or the life of the community. In whistleblower protection cases where confidential information obtained in the workplace is disclosed, the Court focuses on determining whether such information is in the ‘public interest’, meaning that the scope of information in the public interest is defined in general terms. In Guja, the Court considered that the report made by a civil servant or an employee in the public sector related to potential illegal conduct or wrongdoing in the workplace should, in certain circumstances, be considered a protected disclosure. This action may be necessary when the employee or civil servant in question is the sole individual or part of a small group of people who possess knowledge of ongoing events in the workplace. In such circumstances, they are in the best position to act in the public interest by informing their employer or the public at large.[20] In Halet, the ECtHR determined that taxation is an issue that is of significant interest to the wider community. It was observed that the accessibility of tax-related information and the publication of decisions regarding tax assessments can facilitate public discourse on this topic, which is undeniably in the public interest.[21]

Harm to the employer, the fifth criterion of analysis, constitutes an interest that must be weighed against the public interest in the information disclosed. The criterion of damage may have a public dimension (if the employer is a public entity) or a private dimension, causing financial or reputational damage. The Court considers that, apart from the mere detriment to the employer, these harmful effects, taken as a whole, should be taken into account when assessing the proportionality of the interference with the right to freedom of expression of whistleblowers, who are protected under Article 10 of the Convention. In Guja, the Court determined that the disclosure of information regarding coercion and misconduct within the Prosecutor's Office was of such significant importance to a democratic society that it superseded the need to maintain public trust in the Prosecutor General's Office.[22] Similarly, in Halet, the Court concluded that the public's interest in the release of information outweighed any detrimental effects experienced by PwC. This decision was made despite the applicant's breach of professional confidentiality and theft of documents.[23]

In relation to the last criterion about the severity of sanctions, the Court notes that they can take various forms – professional, disciplinary, and criminal. In previous cases, the Court has held that dismissal without notice is the most severe possible sanction in labor law and that the use of criminal charges has a chilling effect on society as a whole[24]. In the context of whistleblower protection, the Court pointed out that using criminal proceedings to punish the disclosure of confidential information was incompatible with exercising freedom of expression. In conclusion, it follows from the Court’s case law that the nature and severity of the penalties imposed must be considered when assessing the proportionality of the interference with the right to freedom of expression. In Guja, the applicant was terminated from his employment for violating the Press Department's Rules of Procedure. He was not charged with any criminal offenses. The Court concluded that this retaliatory measure had adverse effects on his career and may have discouraged others from reporting similar breaches.[25] In Halet, the applicant was both dismissed from his job and convicted in criminal proceedings. The Court deemed that the initiation of criminal proceedings alone cannot be justified and that this action had detrimental effects on potential whistleblowers.[26]

In the context of applying the new interpretation in Halet, the Grand Chamber focused on balancing PwC’s damage in relation to the existing public interest in the disclosures and the severity of the sanctions. The remaining elements (the applicant’s good faith, the veracity of the disclosures, and the channel of notification chosen) and their interpretation by the national courts were accepted by the ECtHR. It was concluded that the information disclosed was clearly in the public interest, noting the fact that the disclosure was made through data theft and a breach of professional secrecy. It has been made clear that the public interest in disclosing this information outweighs all harmful effects[27]. Given the role of whistleblowers, any excessive reduction in the smell of their speech hinders or paralyzes the activity of future disclosures by whistleblowers. As mentioned earlier, the penalties imposed had a chilling effect. The Court considered that the applicant’s conviction for the offense was not adequate.[28]

3. Conclusion

The Grand Chamber’s judgment in Halet deserves approval in that the lower Chamber’s judgment might have represented a dangerous precedent that could have disrupted the handling of whistleblower cases in the States Parties to the Convention. It is important that freedom of expression is interfered with as little as possible in a democratic society, especially in the case of whistleblowers who unveil controversial issues that often happen under a veil of shadow. It is worth remembering that based on Article 32(1) of ECHR, the Court interprets the provisions of the Convention, so the members of the Council of Europe must also interpret its provisions in given cases in accordance with the case law of the ECtHR.

Moreover, the decision of the Grand Chamber in Halet may serve as a leading precedent that has innovated Guja and that will be used for the assessment of the violation of the freedom of expression in potential future cases concerning whistleblowers. As a matter of fact, the Grand Chamber’s judgment is an essential instrument to resolve doubts in the interpretation of the Convention and to deal with questions of general importance.

4. References

Sources:

  • Andreadakis S. and Kafteranis D., Halet v Luxembourg’: The Final Act of the Luxleaks Saga, Oxford Business Law Blog2023.

  • Banisar D., The European Court of Human Rights Protects Luxleaks Whistleblower. Corporate Crime Observatory. 2023.

  • Bourdon W., Shall whistleblowers’ protection be extended?, Corporate Social Responsibility and Business Ethics Blog, 17 December 2020.

  • Bowers S., Former PwC employees face trial over role in LuxLeaks scandal, The Guardian 2016.

  • Costa J.P., The judgments of the Grand Chamber delivered after reference, in Lucius Caflisch, Luzius Wildhaber (eds.) Liber Amicorum Luzius Wildhaber: Human rights: Strasbourg views=Droits de l'homme. 2007.

  • Drzemczewski A., The European Human Rights Convention: Protocol No 11 – Entry into Force and First Year of Application, Human Rights Law Journal 1, 2000.

  • Ring D. and Grasso C., Beyond Bribery: Exploring the Intimate Interconnections Between Corruption and Tax Crimes, Law and Contemporary Problems. 2023, p. 12.

  • Yurttagül H., LuxLeaks Scandal and Corporate Whistleblowing: Reflecting on ‘Halet v Luxembourg’, Oxford Business Law Blog 2021.

  • Vozza D. and Turksen U., When the State Keeps It on the Hush: On the Limits to the Punishment of Whistleblowers, in Costantino Grasso (ed.) Whistleblowers: Voices of Justice, forthcoming (2023).

Judgments:

  • Guja v. Moldova 12 February 2008, Application no. 14277/04, HUDOC.

  • Wojtas – Kaleta v. Poland 16 July 2009, Application no. 20436/02, HUDOC.

  • Heinisch v. Germany 21 July 2011, Application no. 28274/08, HUDOC.

  • Gawlik v. Liechtenstein 16 February 2021, Application no. 23922/19, HUDOC.

  • Halet v. Luxembourg 11 May 2021, Application no. 21884/18, HUDOC.

  • Halet v. Luxembourg 14 February 2023, Application no. 21884/18, HUDOC.

Further Material:

[1] See D. Ring and C. Grasso, Beyond Bribery: Exploring the Intimate Interconnections Between Corruption and Tax Crimes, Law and Contemporary Problems. 2023, p. 12. https://scholarship.law.duke.edu/lcp/vol85/iss4/2/. [2] Case of Guja v. Moldova 12 February 2008, Application no. 14277/04, HUDOC, https://hudoc.echr.coe.int/eng#{%22appno%22:[%2214277/04%22],%22itemid%22:[%22001-85017%22]}. [3] See § 74 - §78 Guja case. [4] For a discussion on the requirement of good faith in the area of whistleblowing see William Bourdon, Shall whistleblowers’ protection be extended?, Corporate Social Responsibility and Business Ethics Blog, 17 December 2020, available at https://corporatesocialresponsibilityblog.com/2020/12/17/bourdon-whistleblowers-protection. [5] See, for example, Case of Wojtas – Kaleta v. Poland 16 July 2009, Application no. 20436/02, HUDOC, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-93417%22]

}; Case of Heinisch v. Germany 21 July 2011, Application no. 28274/08, HUDOC, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-105777%22]}; Case of Gawlik v. Liechtenstein 16 February 2021, HUDOC, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-208280%22]}. [6] Case of Halet v. Luxembourg 14 February 2023, Application no 21884/18, HUDOC, https://hudoc.echr.coe.int/eng#{%22appno%22:[%2221884/18%22],%22itemid%22:[%22001-223259%22]}. [7] See more: https://www.theguardian.com/world/2016/apr/24/luxleaks-antoine-deltour-luxembourg-tax-avoidance-pricewaterhousecoopers-trial [8] See D. Banisar ‘The European Court of Human Rights Protects Luxleaks Whistleblower’, (Corporate Crime Observatory, January 2023), www.corporatecrime.co.uk/post/ecthr-luxleaks-whistleblower. [9] See D. Vozza and U. Turksen, When the State Keeps It on the Hush: On the Limits to the Punishment of Whistleblowers, in Costantino Grasso (ed.) Whistleblowers: Voices of Justice, forthcoming (2023). [10] Case of Halet v. Luxembourg 11 May 2021, Application no. 21884/18, HUDOC, https://hudoc.echr.coe.int/eng#{%22languageisocode%22:[%22ENG%22],%22appno%22:[%2221884/18%22],%22documentcollectionid2%22:[%22CHAMBER%22],%22itemid%22:[%22001-210131%22]}. [11] H. Yurttagül, LuxLeaks Scandal and Corporate Whistleblowing: Reflecting on ‘Halet v Luxembourg’, Oxford Businness Law Blog 2021, https://blogs.law.ox.ac.uk/business-law-blog/blog/2021/07/luxleaks-scandal-and-corporate-whistleblowing-reflecting-halet-v. [12] §204-§205 Halet case. [13] See article 26 of Convention. [14] See: A. Drzemczewski, The European Human Rights Convention: Protocol No 11 – Entry into Force and First Year of Application, HRLJ 2000, Nr 1. [15] See more: Practice followed by the panel of the Grand Chamber when deciding on requests for referral under article 43 of the convention, 2 June 2021, European Court of Human Rights, https://www.echr.coe.int/documents/note_gc_eng.pdf, § 9, p. 4. [16] J.-P. Costa, the judgments of the Grand Chamber delivered after reference, [in:] Liber Amicorum Luzius Wildhaber, Kehl 2007, p. 136. [17] §172 Halet case. [18] § 93 Guja case. [19] §174 Halet case. [20] § 72 Guja case. [21] § 185 Halet case. [22] § 91 Guja case. [23] § 202 Halet case. [24] See: S. Andreadakis, D. Kafteranis, ‘Halet v Luxembourg’: The Final Act of the Luxleaks Saga, Oxford Business Law Blog 2023, https://blogs.law.ox.ac.uk/blog-post/2023/02/halet-v-luxembourg-final-act-luxleaks-saga. [25] See § 95 Guja case. [26] See § 151, 205 Halet case. [27] § 202 Halet case. [28] § 205 Halet case.


Suggested Citations


Bluebook: Jakub Bouhnouni, From Guja to Halet: The Long March of Whistleblower Protection before the Court of Strasbourg, CORPORATE CRIME OBSERVATORY, (April 11, 2023), www.corporatecrime.co.uk/post/guja-halet-whistleblowers


Harvard: Bouhnouni, J. (2023) ‘From Guja to Halet: The Long March of Whistleblower Protection before the Court of Strasbourg’. Corporate Crime Observatory. Available at: www.corporatecrime.co.uk/post/guja-halet-whistleblowers


OSCOLA: Jakub Bouhnouni, ‘From Guja to Halet: The Long March of Whistleblower Protection before the Court of Strasbourg’, (Corporate Crime Observatory, 11 April 2023), www.corporatecrime.co.uk/post/guja-halet-whistleblowers


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