Reassessing the framework for the protection of civil servant whistleblowers in the European Court of Human Rights
| Date | 01 September 2021 |
| DOI | 10.1177/09240519211044955 |
| Published date | 01 September 2021 |
| Author | Dimitrios Kagiaros |
| Subject Matter | Articles |
Reassessing the framework for
the protection of civil servant
whistleblowers in the European
Court of Human Rights
Dimitrios Kagiaros
School of Law, Durham University Durham, UK
Abstract
The European Court of Human Rights (ECtHR or Court) has included civil servant whistleblowers
in the protective ambit of Article 10 of the European Convention on Human Rights. The article
argues that the Court should revisit its approach to proportionality in such cases. When determin-
ing whether a restriction to a civil servant whistleblower’s free speech was necessary in a demo-
cratic society, the Court weighs what the article identifies as the quasi-public watchdog function of
whistleblowers (namely their role in imparting information on matters of public concern) against
their duties and responsibilities as civil servants. In some instances, the Court gives primacy to
whistleblowers’duties of loyalty to the government over their contribution to the accountability
of public bodies. The article challenges this approach on the basis that it fails to adequately con-
sider the key justification that underpins the Court’s recognition of whistleblowing as speech,
namely the audience interest in receiving the information the whistleblower discloses. The article
argues that the Court should give primacy to the watchdog function of whistleblowers. It con-
cludes by making suggestions on how the ECtHR can adopt a more principled approach to pro-
portionality in whistleblowing cases.
Keywords
Freedom of expression, Article 10 ECHR, whistleblowers, public interest disclosures,
proportionality
Corresponding author:
Dimitrios Kagiaros, Durham University Law School, Palatine Centre, Durham, DH1 3LE, UK.
Email: dimitrios.kagiaros@durham.ac.uk
Article
Netherlands Quarterly of Human Rights
2021, Vol. 39(3) 220–240
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519211044955
journals.sagepub.com/home/nqh
1. INTRODUTION
Whistleblowing is increasingly understood as a necessary safeguard against corruption and a crucial
component of good governance.
1
Both the European Union (EU) and the Council of Europe (CoE)
have prompted their respective Member States to adopt robust whistleblower protection frame-
works,
2
in recognition of the fact that ‘whistleblowers play an essential role in any open and trans-
parent democracy’.
3
For the CoE, the existence of effective safeguards at the domestic level
protecting whistleblowers from retaliation constitutes ‘a genuine democracy indicator’.
4
Protections for whistleblowers are also a matter of fundamental rights. The European Court of
Human Rights (ECtHR or Court) has held that employment-related sanctions or criminal prosecu-
tions
5
against whistleblowers for disclosing public interest information can violate freedom of
expression.
6
Whistleblowing is thus viewed as a form of expression that attracts protection
Convention’s free speech provision.
7
Accordingly, due to the qualified nature of Article 10
ECHR, any detriment to which a whistleblower is exposed for bringing attention to organisational
misconduct must satisfy the test of proportionality in order to comply with the Convention.
The manner in which the Court carries out the proportionality test in cases relating to civil
servant whistleblowers is the focus of this article. The Court recognises that civil servants are in
many cases best placed to act in the public interest by sharing vital information on government
wrongdoing.
8
The Court, however, also acknowledges the interest in preserving State secrecy
9
and the fact that civil servants must ‘help and not hinder’
10
the democratically elected government
of the day. Civil servants are thus bound by heightened duties of loyalty, discretion and moderation
towards their institution.
11
In the final stage of its proportionality analysis,
12
the Court weighs these
1. The Parliamentary Assemblyof the Council of Europe suggests that ‘the term whistle-blower must be broadly defined so
as to cover any individual or legal entity that reveals or reports, in good faith, a crime or lesser offence, a breach of the
law or a threat or harm to the public interest of which they have become aware either directly or indirectly’,see Council
of Europe Parliamentary Assembly Resolution 2300: Improving the protection of whistle-blowers all over Europe (1
October 2019) para 5.
2. See Council of Europe Parliamentary Assembly (n 1) and Directive (EU) 2019/1937 of the European Parliament and of
the Council of 23 October 2019 on the protection of persons who report breaches of Union law (2019) OJ L305/17.
3. Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report by Rapporteur
Sylvain Waserman of 16 March 2018. For a discussion on the contribution of whistlebowers to transparency more
broadly, see also Inger Høedt-Rasmussen and Dirk Voorhoof, ‘Whistleblowing for Sustainable Democracy’(2018)
36 Netherlands Quarterly of Human Rights 3.
4. Council of Europe Parliamentary Assembly (n 1) para 1.
5. For an overview of the retaliation that whistleblowers face see Fred Alford, Whistleblowers: Broken Lives and
Organizational Power (Cornell University Press 2001).
7. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights,
as amended) Article 10.
8. Guja v Moldova (n 6) para 72.
9. ibid para 71. From the Court’s broader case law, see also Stoll v Switzerland App No 69698/01 (ECHR, 10 December
2007) para 155.
10. Guja v Moldova (n 6) para 71.
11. ibid.
12. The Court’s approach to proportionality is highly contested, particularly by scholars who subscribe to a ‘rights as
trumps’understanding of rights, most commonly associated with Ronald Dworkin, Taking Rights Seriously (Harvard
University Press 1977). For an overview of these critiques from the perspective of Article 10 ECHR see Stavros
Kagiaros 221
To continue reading
Request your trial