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At the end of 2023 (decision of November 27, 2023), with formal notification delivered on March 22, 2024, the Inter-American Court of Human Rights ruled that Ecuador violated the freedom of expression and numerous other human rights of a military officer who reported corruption and was detained, sanctioned, threatened, and even attacked publicly by the President of Ecuador for it.
The case links human rights, especially freedom of expression, with fighting corruption. It advances human rights-based whistleblower standards set out by the UN and the European Court of Human Rights, going beyond the restrictive approach of the ECHR in areas such as public disclosure and good faith, and sets detailed normative standards for states to adopt on reporting and protection systems.
Background: Reporting Corruption and Retribution
The case began in November 2001 when Navy Captain Julio Rogelio Viteri Ungaretti, an Ecuadorian military officer working as a Naval and Military Defense Attaché at the Embassy of Ecuador in London reported corruption that he witnessed to a senior official in the military and the Ambassador. Shortly after, he submitted the reports his allegations were published in the media.
Following the media reports, he faced numerous serious sanctions and threats which should be depressingly familiar to all whistleblower professionals. He was ordered to return to Ecuador where he was detained and faced a disciplinary board which sentenced him to 15 days of “strict arrest” for violating the Military Discipline Regulations rules on making false statements, insulting, violating military discipline, and failing to follow orders. He was ordered not to speak to the press about the allegations or his treatment. Following the detainment, he returned to London but was relieved from his post there and ordered to return to Ecuador. On his return, he was detained three more times for short periods including for speaking to the press. Further, he and his family were subject to surveillance, threats and harassment including gunshots outside their house. He was declared persona non grata by the Navy, and he was excluded from the list of officers eligible for promotion and sent to a remote office for an administrative post with little to do with his previous employment. He also faced charges of mismanagement as well as a revision in taxes. To top it off, President Gustavo Noboa publicly stated: “the captain is a nutcase, nobody is after him, only the ghosts are after him." Eventually, this forced him to resign his job.
Legally, his efforts for vindication were mostly unsuccessful. The Court for the Judicial Review of Administrative Action in March 2002 rejected his petition for a constitutional remedy. The Constitutional Court in an amparo petition in August 2003 set aside the arrest orders on his case for the detainments but did not address the other issues. The acts he reported to the anti-corruption authorities were investigated and found to have merit but were dismissed. By then, he had returned to London with his family and he successfully petitioned the UK for asylum based on the “extensive pattern of harassment” he and his family had received and the central role of the military in the country. However, this resulted in loss of employment for him and his wife and after a series of unrelated jobs, he went to work in Equatorial Guinea.
Appeals to the Inter-American Human Rights System
The Inter-American human rights system is based on the American Convention on Human Rights. [1] The process has two tiers: The Inter-American Commission on Human Rights (IACHR) and the Inter-American Court on Human Rights (IACtHR). The Commission is the lead body for human rights under the Convention and it receives petitions from individuals for justice and reparations. It investigates, holds hearings, and can issue reports with findings and recommendations for states and can issue precautionary measures ordering countries to stop ongoing violations and investigate violations. It receives between 2,000 and 3,000 petitions each year and faces a substantial backlog in reviewing and completing reports.[2] It also has several thematic special rapporteurs including on freedom of expression.[3]
The Court hears and decides cases, issues advisory opinions, monitors compliance and orders provisional measures to urgently prevent serious harm to individuals. Only states or the Commission can bring a case before the Court to decide formally on violations of human rights. The Commission refers approximately 30 cases each year to the Court. The Court has developed extensive case law protecting freedom of expression for the past 30 years.[4]
In January 2002, Viteri Ungaretti filed a petition with the Commission arguing that numerous of his human rights under the Convention had been violated because of the retaliation he faced following his disclosures to his superiors and the media: right to life, humane treatment, personal liberty, fair trial, privacy, freedom of expression, family, children, property, equal protection, and judicial protection. He also asked for precautionary measures to order the government of Ecuador to protect the life and safety of himself and his family and investigate his treatment, which the Commission granted in February 2002 and kept until he was granted asylum in the UK.
The Commission began its formal review of the petition in March 2010, and in 2015 it found that there was a prima facie case for violations of Articles 5 (humane treatment), 7 (personal liberty), 13 (Freedom of Thought and Expression), 22.1 (Freedom of Movement and Residence), 8 (Right to a Fair Trial), and 25 (Right to Judicial Protection) of the Convention.[5] It noted that the case was brought in the context of a government whistleblower reporting corruption and being subject to retaliation.[6]
In March 2020, the Commission released its merits report which concluded that the rights of Captain Viteri Ungaretti and his family had been violated.[7] The central starting point of the Commission’s analysis focused on whether whistleblower complaints are protected by freedom of expression and whether any restrictions are justified under Article 13 of the Convention.[8] Article 13(1) states inter alia:
Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
Article 13(2) provides for restrictions in a form similar to but somewhat stronger than the ECHR:
The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. respect for the rights or reputations of others; or
b. the protection of national security, public order, or public health or morals.
The Commission also referred to some of its previous work on corruption and whistleblowers including its 2018 resolution that it is “essential to create an environment free from intimidation for the exercise of freedom of expression by those who investigate, report and denounce acts of corruption, and that the safety of individuals involved in denouncing corruption, such as public officials…”[9] and its 2019 report that FOE plays a “fundamental role” in reporting corruption which obliges the state to take measures to protect it.[10] Based on these, it stated that reporting of corruption enjoyed special protections.
The Commission found that Ecuador had violated the right of freedom of expression by both punishing Viteri Ungaretti for his initial reports and prohibiting him from making further public statements about the case. It decided that military discipline cannot be used as a justification for restricting military personnel from reporting corruption if they had a reasonable belief they were true and constituted a specific threat to a public interest.[11] It also found that the absence of a protection mechanism violated the duty of the state to protect whistleblowers.
On the other issues raised on Viteri Ungaretti’s treatment, the Commission found that the detentions violated his right to personal liberty as they were not justified because the objective was to punish his talking to the media.[12] It also found violations of his personal integrity due to the lack of protections from harassment that caused them to seek asylum in the UK,[13] as well as violations of his right of movement,[14] and right to justice due to the limited remedies given him by the courts.[15]
The Commission recommended that Ecuador give full compensation to him and his family, and establish protection mechanisms for all whistleblowers who “by reason of their employment or institutional position, expose irregularities, acts of mismanagement, acts of corruption, violation of human rights, violations of humanitarian law and other seriously affected public interests”[16], including the armed forces, adopt legal revisions to implement the decision, and conduct training of the armed forces on whistleblowers.[17]
The Decision of the Inter-American Court
In July 2021, the Commission petitioned the Inter-American Court of Human Rights, requesting the Court review the case. The focus of the submission was on the relationship between freedom of expression and democracy, in relation to reporting corruption within the armed forces and the protection of whistleblowing as a freedom of expression right.[18]
On March 22, 2024, the Court announced its decision, following two years of hearings and submissions.[19] In the decision, the court made a connection between corruption and human rights and set new standards relating to whistleblower protection for the Inter-American System. The standards could be considered an improvement on the ECtHR caselaw. They are both more prescriptive for states and less creating hurdles for whistleblowers to surmount to be protective.
Corruption and Human Rights
The Court first began with an assessment of the impacts of corruption on democracy and human rights. It found that freedom of expression is a cornerstone of a democratic society and that without it, systems for reporting can be weakened and authoritarian systems can take control.[20] The Court noted that corruption can undermine the democratic order and rule of law and reduces resources available that are necessary to human rights such as essential services, which increases discrimination. Corruption especially affects vulnerable groups, who are often the first to suffer its impacts.[21]
Based on these impacts, the Court highlighted the importance of countries “taking measures to create a safe and enabling environment for civil society, whistleblowers, witnesses, activists, defenders of human rights, and other civil society actors” with the aim of protecting civil society from threats from their anti-corruption efforts.[22] The measures should ensure the rights to seek, receive and impart information, public participation, and fair trials and should enable an independent media and pluralistic media environment.[23]
Freedom of Expression and Whistleblowing
Public interest in corruption
The Court then turned specifically to the freedom of expression issues in the case. The Court reiterated its existing case law that speech of public interest enjoys greater protection to promote greater debate.[24] There is a legitimate interest in “information on staying informed, in knowing what affects the functioning of the State, or affects rights or general interests or entails important consequences” and includes such as relating to the acts of public officials.[25]
Based on this, it stated that the revealing of corruption is a “clear public interest” because it relates to the actions of public officials and their impact on human rights. Thus, the reporting of corruption is “especially protected” speech under the Convention.[26]
Reasonable conviction of reliable and accurate information and no good faith
Under international and many regional laws, public officials have the right and duty to report corruption if they have a “reasonable conviction” that it has occurred.[27] In order to meet this standard, they must “careful verify that the information is accurate and reliable, to the extent permitted in the circumstances”. Importantly, it is not required that the whistleblower “establishes the authenticity of the information disclosed.”[28] In adopting this standard, the court refers to the standards adopted by the ECtHR in Guja and Halet.[29]
However, an important aspect of the decision is that it does not include the requirement that the whistleblower is acting in “good faith”, a common but controversial standard which is often used to impugn the motives of the whistleblower and is found in the UNCAC and the OAS Model Law. This is also an improvement of the criteria set by the ECtHR which includes both a reasonable belief in the accuracy of the information and a good faith examination of the motives of the whistleblower.
Channels
States must set up internal and external channels for disclosures as a means to guarantee freedom of expression for whistleblowers and promote reporting of corruption.[30] Referring to the EU Whistleblowing Directive, the Court set out basic criteria for the channels:
independent and impartial
guarantee the confidentiality of the identity of the reporter
issue and acknowledgement of receipt of the complaint within a short period of time
provide a definitive response to the complaint within a reasonable time
ensure the information on their existence and functioning is clear and easily available to all public officials[31]
Need for protection mechanisms
Countries are required to take positive measures to encourage whistleblowing and protect whistleblowers. In order to ensure that the freedom of expression rights of whistleblowers are protected, they must refrain from legal and administrative acts that promote or encourage retaliation and must adopt “necessary and reasonable measures to prevent or protect the rights of those who find themselves in such a situation, as well as, when necessary, to investigate facts that harm them.”[32] The Court further highlighted “the importance of protection against retaliation for acts of corruption in order to promote a culture of public accountability and integrity and to avoid an intimidating effect on potential future whistleblowers.”[33]
The protectionism mechanisms should include the following measures:
protect the identity and confidentiality of whistleblowers
adopt measures to preserve their personal integrity
prevent their punishment or unjustified dismissal because of the allegations
provide them with legal advice in relation to the allegations
protect them from further civil or criminal liability when the allegations were made in reasonable belief of their occurrence
provide for corrective measures to respond to acts of retaliation
include preventative measures against the existence of a real and immediate risk to the whistleblower[34]
Public Disclosure
Public disclosure is also an area of improvement over existing international and regional standards. The Court, citing the ECtHR cases, ruled that when the mechanisms are non-existent, or not perceived to be effective or reliable or do not provide sufficient protection, whistleblowers can use other avenues to convey the information, including public disclosure.[35] In addition, it noted that there may be other “valid reasons” that a whistleblower may prefer to go to the media rather than use official channels and mechanisms, citing a recent report by UNESCO.[36]
Classified information
Noting that some public employees may have a duty of confidentiality and be prohibited from disclosing information due to laws and regulations, the Court found that there are limits to the restrictions. It referred to international standards on national security such as the Tshwane Principles[37] and clarified that classification must be “precisely and clearly limited to information whose disclosure poses a real and identifiable risk of significant harm to a legitimate national security interest.”[38] Further, some restrictions such as those that “reporting of crimes or provide for public access to information concerning human rights violations or corruption violate international standards on freedom of expression. This is equally important in cases of institutions such as the armed forces.“[39]
Decision for Viteri Ungaretti
Based on these criteria, The Court found that Viteri Ungaretti’s had a “right and duty” to report whistleblowing and his disclosure to military and civil authorities was justified and protected freedom of expression.[40] The state also failed its duty to freedom of expression was violated by the imposition of the four arrests.[41] The Court also found that three periods of imprisonment violated Article 7 of the Convention on the right to personal liberty. It found that:
A restriction on personal liberty as a consequence of the denunciation of these facts is contrary to the interest of any democratic society in having a public debate on alleged acts of corruption and in being able to scrutinize the activities of the public authorities. In this line, the Court not only considers contrary to the Convention the imposition of sanctions for reporting acts of corruption, when there is reasonable conviction of their occurrence but also reiterates that States must adopt protective measures in favour of whistleblowers.[42]
Other Convention Violations
The Court also considered arguments under Article 26 of the Convention on the impact of on the working life of Viteri Ungaretti and his family which were not fully discussed in the Commission phase of the process. Article 26 requires that states take efforts to progressively “achieve the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States”. This includes the right to work.
Citing previous case law, the Court recognised that the right to work includes job stability and requires employers to provide sufficient reasons for dismissals and appeals mechanisms to ensure that the decisions are not arbitrary or contrary to law. Further, states cannot interfere with a person’s employment, depriving them of a job.[43] The Court found that Ecuador had violated both their rights by his dismissal from the position, removal to the remote post, the forced resignation, and the impact on their employment after their asylum in the UK.[44] This is an important linkage of whistleblowing as a civil and political right of freedom of expression and social and economic rights held by employees. Two of the judges strongly dissented to this section.
Further, the Court in a very brief analysis also found that Ecuador violated his right to public participation under Article 23 of the Convention. The Court said that the termination of his post in London was arbitrarily motivated by his freedom of expression rights.[45]
Finally, the Court also found violations of the Rights of Movement and Resident, Personal Integrity, Protection of Family and Rights of the Child under the Convention for the inability of the family to return back from the UK, separation of the family due to the arrests and the asylum bid bad necessary by the harassment the family faced at home.[46]
Reparations and Non-Repetition
The Court ordered a number of reparations for Viteri Ungaretti and his family. These include:[47]
Compensation for violation of his employment stability but recognising that it would not be possible for him to return to military service.
A right to return to Ecuador with guarantees of an effective security mechanism for returning to their old residence or voluntary resettlement in another area country including relocation expenses.
$9,000 to pay for physical, psychological and/or psychiatric care for all members of the family.
Publication in the Official Gazette of the judgement and in a media outlet of wide national circulation, as well as on the website and five times on the social media outlets of the different military branches for one year.
A public apology to Viteri Ungaretti and his family in a high-level ceremony, which acknowledges he had a right to speak out against corruption and emphasises the right of whistleblowers to report corruption and be protected.
Monetary reparations for Viteri Ungaretti and his family for violations of their rights totalling $120,000 which seems low for over 20 years of harassment and exile.
The Court also ordered the state to take a number of measures to ensure non-repetition:
It found that since the decision, Ecuador had adopted several measures on reporting and protection of whistleblowing, including the Criminal Code and Organic Law on Citizen Participation and Social Oversight.[48] However, it found that internal channels for Armed Forces are inadequate and ordered Ecuador to “establish an independent and impartial body with the mandate to receive complaints about alleged acts of corruption in the Armed Forces.”[49] Ecuador must adopt legal changes to ensure that internal and external channels of the Armed Forces for reporting corruption guarantee the protection of identity and personal integrity and prevent reprisals.[50]
Training for Armed Forces on protection of whistleblowers and standards for protection.[51]
This part of the decision is disappointing. The legal system of whistleblowers in Ecuador is far below the standards set out in the decision. Further, the requirements only focus on corruption rather than a broad concept of whistleblowing in the public interest and only make mandates on the Armed Forces instead of ensuring the whistleblower systems are adopted nationwide as recommended by the Commission.
Conclusion
The decision sets an important precedent linking freedom of expression and whistleblower protection. It goes beyond existing cases in setting new standards for whistleblower protection and reporting mechanisms. In particular, the absence of the good faith requirement, the more open standards on public disclosure, and the setting of normative standards for reporting and protection mechanisms go beyond existing international standards.
It is hoped that the case will spur regional mechanisms, as well as countries in Latin America to push for the adoption of strong whistleblowers laws which incorporate all of the standards. Currently, many countries in the region have little or no protections. This occurred after the Court adopted a groundbreaking decision on freedom of information in 2005, resulting in nearly all countries in the region now having comprehensive laws on access to government information.
Finally, it is hoped that the case will spur international organisations, especially UN bodies, to improve their standards and increase their efforts to ensure that all countries adopt strong whistleblower protections as set out in the UNCAC.
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Suggested citation
Bluebook: David Banisar, Inter-American Human Rights Court Sets Standards for Protecting Whistleblowers in Corruption Cases, CORPORATE CRIME OBSERVATORY, (May 10, 2024), www.corporatecrime.co.uk/post/ichr-ungaretti
Harvard: Banisar, D. (2024) ‘Inter-American Human Rights Court Sets Standards for Protecting Whistleblowers in Corruption Cases’. Corporate Crime Observatory. Available at: www.corporatecrime.co.uk/post/ichr-ungaretti
OSCOLA: David Banisar, Inter-American Human Rights Court Sets Standards for Protecting Whistleblowers in Corruption Cases,’ (Corporate Crime Observatory, 10 May 2024), www.corporatecrime.co.uk/post/ichr-ungaretti
[1] American Convention on Human Rights "Pact of San Jose, Costa Rica", Nov. 22, 1969 1144 U.N.T.S.123; O.A.S.T.S. No. 36; 9 I.L.M. 99 (1970)
[2] See Inter-American Commission on Human Rights, Annual Report 2021 (OAS 2022), Chapter II
[4] See Catalina Botero, The Inter-American Legal Framework regarding the Right to Freedom of Expression (OAS 2009)
[5] Inter-American Commission on Human Rights, Report No. 36/15, Petition 717-05. Admissibility. Julio Rogelio Viteri Ungaretti and family. Ecuador. July 22, 2015, para 50
[6] Ibid, para 33
[7] Inter-American Commission on Human Rights, Report No. No. 8/20. Case 12.999. Merits Report. Julio Rogelio Viteri Ungaretti and family. Ecuador. 3 March 2020. (Merits Report)
[8] Ibid, para 33
[9] IACHR, Resolution 1/18, Corruption and Human Rights (2018)
[10] IACHR, Corrupción y derechos humanos: Estándares interamericanos (Doc OEA/Ser.L/V/II, 6 December 2019)
[11] IACHR Merits Report, Viteri Ungaretti, para 53, 56
[12] Ibid, paras 77-83
[13] Ibid, paras 103-106
[14] Ibid, paras 84-86
[15] Ibid, paras 87-107
[16] Ibid, para 108(2-3)
[17] Ibid, para 108(4)
[18] IACHR, Press Release: IACHR refers case on Ecuador to the Inter-American Court, No 180/21 (16 July 2021); Inter-American Court on Human Rights, Annual Report 2021, p. 38
[19] Inter-American Court of Human Rights, Case of Viteri Ungaretti et al. v Ecuador, Preliminary Objections, Merits, Reparations and Costs. Judgement of 27 November 2023 (2024) (IACtHR decision)
[20] Ibid, para 79
[21] Ibid, paras 81-84
[22] Ibid, para 85
[23] Ibid
[24] Ibid, para 88
[25] Ibid, para 88
[26] Ibid, para 89
[27] Ibid, para 90, 92
[28] Ibid, para 92
[29] European Court of Human Rights, Halet v Luxembourg no. 21884/18, (14 February 2023), para. 124
[30] Inter-American Court of Human Rights, Case of Viteri Ungaretti et al. v Ecuador, Preliminary Objections, Merits, Reparations and Costs. Judgement of 27 November 2023 (2024) (IACtHR decision), para 94
[31] Ibid, para 95
[32] Ibid, para 93
[33] Ibid, para 96
[34] Ibid, para 96
[35] Ibid, para 97
[36] Ibid; See Eduardo Bertoni, Journalism and whistleblowing: an important tool to protect human rights, fight corruption, and strengthen democracy (UNESCO CI-2022/WTR/3, 2022).
[37] The Global Principles on National Security and the Right to Information (The Tshwane Principles). (OSJI, 2013). Available at https://www.justiceinitiative.org/publications/global-principles-national-security-and-freedom-information-tshwane-principles
[38] Inter-American Court of Human Rights, Case of Viteri Ungaretti et al. v Ecuador, Preliminary Objections, Merits, Reparations and Costs. Judgement of 27 November 2023 (2024) (IACtHR decision), para 98
[39] Ibid, para 99
[40] Ibid, para 107
[41] Ibid, paras 100-112
[42] Ibid, para 123 (informal translation)
[43] Ibid, para 138
[44] Ibid, paras 140-144
[45] Ibid paras 145-147
[46] Ibid, paras 168-182
[47] Ibid, paras 198-207
[48] Ibid, para 212
[49] Ibid, para 214
[50] Ibid, para 215
[51] Ibid, para 217 Disclaimer
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