Providing an Alternative to Silence:
Towards Greater Protection and Support for
Whistleblowers in the EU
COUNTRY REPORT: CYPRUS
This report belongs to a series of 27 national reports that assess the adequacy of
whistleblower protection laws of all member states of the European Union.
Whistleblowing in Europe: Legal Protection for Whistleblowers in the EU,
published by Transparency International in November 2013, compiles the
findings from these national reports. It can be accessed at
www.transparency.org
and
www.transparencycyprus.org
All national reports are available upon request at
xx@xxxxxxxxxxxx.xxx.
1
Providing an Alternative to Silence: Towards Greater Protection and Support
for Whistleblowers in the EU
National Report for the Republic of Cyprus
1. Introduction
The analysis of the concept of whistleblowing as can be observed in the legal order
and the social community of the Republic of Cyprus, can not be conducted in
isolation from the European dimension. The combined influence originating from the
Council of Europe,1 the European Union 2 and GRECO3 has been instrumental in
reshaping the legal status of the protection afforded to individuals disclosing sensitive
information about wrongdoings within different organizations. The European impact
has been instrumental in defining in more detail and clarity the phenomenon of
transparency and accountability, thus raising awareness for the useful role that can be
performed through whistleblowing for promoting an ethos of openness and
1 Committee on Legal Affairs and Human Rights, Council of Europe's Parliamentary Assembly
(PACE), Council of Europe, Report on the Protection of Whistleblowers, 2009, available at
http://fairwhistleblower.ca/files/fair/docs/ti/Council_of_Europe_Draft_WB_Resolution.pdf; Resolution
1729 (2010)
Protection of “whistle-blowers”
Assembly debate on 29 April 2010 (17th Sitting.
Text
adopted by the Assembly on 29 April 2010 (17th Sitting), available at
http://assembly.coe.int/main.asp?link=/documents/adoptedtext/ta10/eres1729.htm See als
o
Recommendation 1916 (2010), available at
http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta10/EREC1916.htm
2 Rohde-Liebenau B., Whistleblowing Rules: Best Practice; Assessment and Revision of Rules
Existing in EU Institutions, European Parliament, Directorate General Internal Policies of the Union,
Budgetary Support Unit, Budgetary Affairs, IPOL/D/CONT/ST/2005_58, N° PE 373.735, Brussels,
2006
3 Council's Group of States Against Corruption (GRECO). See foe example the Second Evaluation of
Compliance Report on Cyprus, 2008, Recommendation 30 et seq., available at
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round2/GrecoRC2(2008)1_Cyprus_EN.pdf
2
legitimacy. However, it must be pointed out that the positive changes have been
apparent predominantly in the legislative level and much less in the social perception
level. Put differently, the debate about issues relating to the specific protection of
whistleblowers has not entered in the public forum and the established perception is
that external sources, in this case European supranational or intergovernmental
organizations, have required from the Republic of Cyprus to fill in the preexisting
gap. It is this dichotomy applicable to the effectiveness of the European influence that
must be assessed in the future in terms of additional steps to be taken for improving
the status quo. It is indicative to mention the call by the Environment Commissioner
Charalampos Theopemptou4 for a public interest disclosure legislation, which if in
existence could have prevented the devasting explosion at the military base in Mari on
the 11th July 2011 that killed thirteen people and destroyed the main electricity supply
station.
At this stage two preliminary clarifications must be made, one conceptual and one
methodological. From the conceptual perspective, a distinction must be drawn
between internal and external whistleblowing. In the former instance, the person
revealing sensitive information relating to wrongdoing in the legal sense is a member
of the same organization. In the instances of external whistleblowing, the person in
question is external to the organization under scrutiny. The preceding distinction is
crucial, since in the case of internal situations the relationship is founded on the
employment connection, thus triggering the protection mechanisms applicable for
employees. In Cyprus, the distinction is paramount since there is considerable, yet in
need of codification and improvement, protection for internal whistleblowers
4 July 28th 2011, Cyprus Mail Interview, “Time to Legalize Whistleblowing”, available at
http://www.thefreelibrary.com/'It's+time+to+legalise+whistleblowing'.-a0262673773
3
especially if those are employed in the public sector. There is weaker protection for
private sector workers involved in internal whistleblowing and even weaker
protection for external whistleblowers that are not satisfying the employee criterion.
From the methodological perspective, there is almost absolute lack of sources in
Cyprus regarding whistleblowing, thus the research has ben based on national reports
and primary review and analysis of the legislative and juridical framework. Therefore,
the desk review, the legal review and the analysis of the social perceptions and
indicator relating to the concept of whistleblowing have taken place on the basis of all
available material and after conducting primary level research into the legislative
framework.
Moreover, the level of protection has been elevated in relation to civil servants, while
in the private sector there has been lack of equivalent progress. There is, therefore, a
combined protective effect for whistleblowers resulting from a plethora of legal
sources 5 and its quality depending on the criterion of ‘identity’: more thorough
protection for civil servants than for private sector employees. 6 Accordingly, the
public sector worker is in a better position to reveal important information relating to
wrongdoings in the public sector, than an employee in the private sector. As will be
explained, the protection for employees in the private sector is not crystal clear and
needs to be supplemented.
5 Primarily from the Public Service Law, Law 1/90, article 69A and Parts VI and VII and also from
article 369 Criminal Code and The Law on the General Principles of Administrative Law, Law 158/99.
6 The applicable protection results from the Unfair Dismissal Law, Law 24/67 (as amended). See also a
potential source of protection under article 19 Constitution safeguarding freedom of expression, which
in conjunction with the decision of the Supreme Court in
Yiallouros v. Evgenios Nicolaou Civil Appeal
No 9931, Judgment of 8 May 2001, where human rights in general were found in certain instances to
create horizontal effect between individuals.
4
Surmising, there is a hierarchy of protective intensity whereby the internal situations
prevail over external situations, the public sector worker is protected in a more
complete and comprehensive manner than an employee in the private sector, and the
legal changes resulting from European influence that have been favoring
whistleblowers have dominated over the social debate as to the need for furthering the
phenomenon of whistleblowing.
2. Compilation, Description and Assessment of Whistleblowing Protection Laws
In terms of methodological approach, the present report is addressing the issues set
out in the relevant part of the directions given and relating to the preceding heading,
with a direct reference in parenthesis to the supplementing questions raised at the
relevant questionnaire.
The legal framework lacks a specific legislation that offers independent stand-alone
protection to whistleblowers. This legislative gap is the result of a choice made by the
State as regards the method of compliance with its international and European legal
obligations and undertakings. The preceding omission is being partly compensated by
the combined effect of different independent yet mutually impacting legislative acts.
Needless to say, the lack of a
lex specialis negates the need for analyzing whether
there is universality of application or mere sectoral (public and private) scope of
application. (Q1)
The amalgam of legislative acts containing provisions relating directly or indirectly to
the protection of whistleblowers is founded on the sector-related scope of application.
5
Therefore, there is difference in scope of application of the existing legislative acts on
the basis of the identity criterion, whereby the outcome is more thorough protection
for civil servants than for private sector employees. In addition, the other crucial
distinction is that made in the introductory part of the report and relating to internal
and external aspects of whistleblowing. In the case of Cyprus, the existing legislative
acts are exclusively focused on internal situations, whereas for external situations the
protection in limited and untested. For example, if there is an instance of
whistleblowing in the public sector and the person concerned is an employee of the
State, then the protection granted is substantive. It stems from the
Public Service
Law,
Law 1/90 (as amended), article 69A and Parts VI and VII and also from article
369 of the
Criminal Code (cap 154) and perhaps the
Law on the General
Principles of Administrative Law,
Law 158/99. If the instance involves an
employee of the private sector, the applicable legislation is the
Unfair Dismissal
Law,
Law 24/67 (as amended), with the protection afforded being indirect and of
unclear nature. In cases of hybridity, where the whistleblower does not satisfy the
substantive criterion of being an employee, the protection afforded could stem from
article 19 of the Constitution safeguarding freedom of expression. (Q2)
In detail, the
Public Service Law,
Law 1/90 (as amended), article 69A and Parts VI-
VII provide the point of reference for public sector employees. Article 69A was
introduced in 2003 by the
Public Service (Amending) (no. 3) Law (Law 183
(I)/2003) and provides that:
“an employee that during the course of performing his duties becomes aware or has
reasonable cause to believe that an act of corruption or bribery by another employee
6
has taken place…
is obliged to report in writing to the responsible authority to which
he reports, providing all the necessary evidence in support of his claim” (as translated
by the author, emphasis added).
Therefore, article 69A creates an obligation to the civil servant to report in writing
any instances of corruption, thus in the event that an employee complies then that
person is to regarded as acting in accordance with the legal obligation resulting from
art. 69A and as a corollary can not be prosecuted. In a way, this provision offers a
shield to the civil servant to safeguard from prosecution and/or disciplinary actions,
by imposing an obligation to report to the responsible authority. Moreover, article 73
that lists the conditions for disciplinary action expressly provides (73 (1) (b)) the need
for action or omission amounting to breach of duty or obligation of a civil servant.
Therefore, a civil servant that is complying with the obligation arising from art. 69A,
can not be the subject of disciplinary investigation since the basic precondition of
article 73 is not met. In addition the law introduced in 2004 to ratify the Civil law
Convention on Corruption (
Law 7 (III)/2004) in article 7 provides that a person that
has imposed an unjustified punishment on a whistleblower for reporting corruption,
commits an offence that could lead to the imposition of prison sentence and/or
pecuniary fine. Moreover, the possibility for civil law action is always possible for the
victimized whistleblower.
In terms of supplementing legislative measures relating to the public service sector,
reference must be made to article 369 of the
Criminal Code (cap 154) stating:
“Every person who, knowing that a
person designs to commit or is committing a
felony, fails to use all reasonable means to prevent the commission or completion
7
thereof, is guilty of a misdemeanor”.
Therefore, the criminal code in effect imposes an obligation on civil servants and
private sector workers equally, to report on individuals committing or designing to
commit a felony, thus creating a solid defense against any prosecution based on their
whistleblowing activities. It is apparent that the provision in the criminal code is
predating the amended art. 69A of the
Public Service Law and is a provision of
general scope that did not at the time had in mind the protection of whistleblowers. It
can be stated that an amendment in the criminal code that would make express
reference to whistleblowers could be beneficial and instrumental in creating a culture
of transparency and accountability through the medium of active citizen reporting on
crimes and corruptive practices. Such an amendment can be twofold: making it a
criminal offense to prosecute or victimize whistleblowers and to make it a criminal
offense if someone that becomes aware of the design to commit or actual committing
of a
misdemeanor fails to report it. The latter introduction will expand the range of
criminal activity that will relate to whistleblowing obligation, while the former will
strengthen the ethos of protecting those courageous individuals that decide to report
on criminal activities. It is important to repeat that the
Criminal Code provision of
art. 369 applies equally to private sector employees and also to hybrid cases, as those
were defined supra, where the employee criterion is absent.
In relation to the Criminal Code, important is the provision in article 105 where it
creates a criminal offense for the failure of a civil servant to report any attempt to
influence him in the course of his duties. This provision does not relate to corruption
and/or bribery but to attempts to influence the process of recruitment, promotion and
evaluation of civil servants.
8
Finally, reference can be made to the
Law on the General Principles of
Administrative Law,
Law 158/99, which provides a codification of the preexisting
case law principles governing judicial review under article 146 Constitution. It is of
indirect relevance to public sector employees that are whistleblowers in the sense that
article 8 provides for legal boundaries that must guide administrative action and art.
48 for the abuse of power by public authorities, thus creating a further preemptive
shield against disciplinary action targeting civil service whistleblowers.
With reference to private sector workers, as stated previously, article 369 of the
Criminal Code is relevant, as is the
Unfair Dismissal Law (
Law 24/67 (as
amended)), with the protection afforded being indirect and of unclear nature. This is
the case, since the legislation lists a number of grounds on which an employer can
rely to dismiss an employee lawfully. In that list no express reference is being made
to whistleblowers, but there is unfortunately room for such interpretation. In detail,
the law lists among others as ground for lawful dismissal the behavior of the
employee (article 5 (f)) which is such that can no longer enable the relationship
between employee and employer and also the disciplinary offenses of the employee in
accordance with internal company rules. It would have preferable if an express
provision is included whereby the dismissal of whistleblowers is prohibited, thus
removing any room for interpretation. Nonetheless, the provisions of the
Unfair
Dismissal Law,
Law 24/67 (as amended), have to be construed in conjunction with
article 369 of the
Criminal Code thus creating a justifying basis for considering the
whistleblowing activity as superior to any internal regulations of the company in the
event that a felony is committed. Nonetheless, the overall protection is substantially
weaker in comparison to that offered to civil servants.
9
The overview of the applicable legislation can not be complete if reference is not
made to a very important and interesting decision of the Supreme Court that related to
whistleblowing. That decision is
Yiallouros v. Evgenios Nicolaou7 the Supreme Court
examined the issue of phone tapping between two individuals on the basis of
suspicion of corruption in the public service and found for the horizontal effect of the
constitutional provisions in arts. 15, 35 and 17 Constitution that create triangular
relationships with the State and give rise to a right to sue for compensation despite of
the lack of a legislative provision. That remarkable finding was supported by the
analysis of
Klass v. FRG.8
In the landmark decision
Yiallouros v. Evgenios Nicolaou9 it has been held “that a
violation of human rights is an actionable right which can be pursued in civil courts
against those perpetrating the violation, for recovering from them, inter-alia, just and
reasonable compensation for pecuniary and non-pecuniary damage suffered as a result
and or other appropriate civil law remedies for the violation”.10 Therefore, the right to
pursue civil proceedings for human rights violations is as a corollary expanded in the
horizontal sphere between individuals and is thus exercisable both against the State
and private persons. The case therefore established that the violation of the plaintiff’s
right to the private life and the right to secrecy of correspondence and
communications, as guaranteed by the Cypriot Constitution, provided him with an
7
Yiallouros v. Evgenios Nicolaou Civil Appeal No 9931, Judgment of 8 May 2001.
8
Klass v. FRG, A 28 para 64, (1979).
9
Yiallouros v. Evgenios Nicolaou Civil Appeal No 9931, Judgment of 8 May 2001
10 As accurately summarised in Report by the Republic of Cyprus, On the Implementation of the
ICSECR, March 2009,
http://www.olc.gov.cy/olc/olc.nsf/0/0aa954e8aee4b23bc225758d001bf48b/$FILE/Answers%20to%20I
ssues%20-%20Questions.pdf, p. 6.
10
actionable right. Therefore, victims of human rights violations are entitled to rely
directly on the provisions of the Constitution and the European Convention on Human
Rights. The case concerned the action for compensation brought against Mr.
Yiallouros for tapping telephone conversations made by complainant from his service
phone, without the consent or the knowledge of the victim or the persons conversing
with the latter over the telephone. The Court held that there was a direct breach of art.
15 on privacy, irrespective of the fact that the motive of Mr Yiallouros was to reveal
anomalies, omissions and / or improprieties resulting in unlawful enrichment of the
victim. The Supreme Court held in the criminal trial11 that took place firstly that Mr.
Yiallouros’ actions constituted first and foremost a criminal offence under
the Penal
Code, Cap. 154, as amended, as it amounted to an abuse of authority and that he was
thus rightfully suspended and removed from his position and duties, respectively. In
the subsequent 1992 criminal appeal,12 where Mr. Yiallouros attempted to base his
defence to criminal charges brought against him for the same set of circumstances, on
the truth of the content of the magnetic tapes, the Supreme Court held that Mr.
Yiallouros’ actions constituted a gross breach of Article 15
and the Executive
Engineer’s right to privacy under it and therefore the magnetic tapes, which were a
by-product of such a breach, were rendered absolutely inadmissible as evidence.
Evidence received or secured through the breach of fundamental rights and liberties
of the person cannot be admissible for any reason whatsoever.
11 (1990) 3 CLR 3532. As analysed in Apostolou, G., “Defamation & Privacy Laws in the Republic of
Cyprus”, available at http://apostoloulaw.com/pdf_Defamation_Article.pdf
12 (1992) 2 CLR 147. As analysed in Apostolou, G., “Defamation & Privacy Laws in the Republic of
Cyprus”, available at http://apostoloulaw.com/pdf_Defamation_Article.pdf
11
In the following civil action,13 Mr. Yiallouros appealed to the Supreme Court against
the first instance finding ordering the award CYP£5.000 to the victim in general
damages for non-pecuniary damage or moral damage suffered. The appeal was
dismissed by the Supreme Court that held that a plaintiff would be allowed to an
award of general monetary damages, wherever there is a breach of a human right
causing damage but where that breach does not also constitute a tort / civil wrong.
The justification used by the Court was that of ‘triangular situations i.e. tritenergia (in
Greek)’, whereby the Constitutional provision on the right to privacy becomes a third
‘party’ to a civil action that lacks legislative regulation, thus creating such a right of
compensation simply because of the importance of the affected right. The case is
potentially problematic for whistleblowers but only where they also violate the law in
order to substantiate their accusations. The decision is far more important as a tool for
protecting whistleblowers from persecution and unfair dismissal by their employers
on grounds of whistleblowing activity. The possibility of actionable rights in
horizontal relations where there is no express provision recognizing such an
actionable right (as is the case with whistleblowing), creates an interesting protective
option.
In relation to amendments and tabled legislation and regulations pending after 2007, it
must be clarified that there has been no development despite calls for removing the
requirement of art. 69A
Public Service Law (Law 1/90) for written submission of
reports relating to corruption and bribery. The written form is possibly creating an
obstacle for the reporting since it could be interpreted as requiring the whistleblower
to reveal his identity. The fact that such reports must be made in written form was
13
Yiallouros v. Evgenios Nicolaou Civil Appeal No 9931, Judgment of 8 May 2001
12
criticized in the GRECO Evaluation Report (paragraph 90)14 and led to the adoption
of recommendation vi.15 The authorities had decided to maintain the requirement of
written reporting as provided for in the law. However, they had also indicated that
during training of public employees it would be highlighted that in urgent cases the
written form would not be necessary. GRECO had stressed in the Compliance
Report16 that the measure taken was of an informal, administrative character and that
the law remained the same. This constituted a contradiction that could generate
problems in practice. GRECO was therefore not convinced that the measure taken
would satisfy the objective of the recommendation, unless the law was amended
accordingly. In conclusion, GRECO welcomed the decision to allow whistleblowers
to report also orally where the circumstances so require. However, it invited the
authorities of Cyprus to consider further the implementation of this recommendation,
which was considered partly implemented.
In responding to the argument, the Cypriot authorities submitted that by virtue of the
existing provisions of the Public Service Law, a person may give information about
suspected corruption in writing without identifying himself/herself (anonymously),
whereas in the absence of such a requirement, the identity of the whistleblower would
be automatically revealed if such information were given orally. Moreover, the
authorities claim that the system would be more open for misuse, if the requirement
was abolished. Besides, the competent authorities have an obligation to act upon
every report (whether written or oral). The authorities also stress that the General
Audit Office has an obligation to investigate any written or oral complaint and/or
14 Council's Group of States Against Corruption (GRECO). See foe example the Second Evaluation of
Compliance Report on Cyprus, 2008, Recommendation 30 et seq., available at
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round2/GrecoRC2(2008)1_Cyprus_EN.pdf
15 Ibid.
16 Ibid.
13
report made to it and, furthermore, that the Police has introduced a direct phone line
for the anonymous oral reporting of any suspected offence. Finally, the authorities
reiterate that it is now the practice, during training seminars for public servants, to
stress that in urgent cases they can avoid the written form of reporting, if they believe
it is more appropriate under the particular circumstances to do so.
Regardless how reasonable the preceding argumentation may be, as the measure of
encouraging oral submission of complaints has no legal basis and contradicts the legal
provision contained in the
Public Service Law (art. 69A), the interpretation of
section 81(2) of the
Public Service Law, which according to the authorities, implies
that a report, whether written or oral, shall immediately be investigated by the Public
Service Committee, seems to be creating unnecessary confusion and mixed standards.
(Q12)
The Republic of Cyprus has no independent authority that receives and investigates
complaints about whistleblowing, nor is there any exclusive jurisdiction for such a
task. On the contrary, there is a variety of agencies dealing with such cases with the
Public Service Commission being the point of reference for civil servants and the
police for all other instances, while the General Audit Office is also responsible in
cases relating to allegations of financial nature. (Q4)
In the event of retaliation against whistleblowers, the civil action as expanded in the
case of Yiallouros analysed supra is a possible remedy, while there is criminal
liability under the law introduced in 2004 to ratify the Civil law Convention on
Corruption (
Law 7 (III)/2004). In article 7 it provides that a person that has imposed
an unjustified punishment on a whistleblower for reporting corruption, commits an
offence that could lead to the imposition of prison sentence and/or pecuniary fine.
14
(Q5)
There has been no official assessment of the protective system to date, except in the
form of the national reports submitted to GRECO where descriptive reference to the
system is being made, yet with no actual assessment as to its efficacy and
effectiveness. Unofficially, there have been calls for introducing a specific legislative
provision by the Environment Commissioner Charalampos Theopemptou 17
advocating for a public interest disclosure legislation, which if in existence could have
prevented the devasting explosion at the military base in Mari on the 11th July 2011
that killed thirteen people and destroyed the main electricity supply station.
(Q6)
In terms of disclosures expressly covered under whistleblowing, those include
corruption and bribery in accordance with Article 69A of the
Public Service Law
(Law 1/90):
“an employee that during the course of performing his duties becomes aware or has
reasonable cause to believe that an act of corruption or bribery by another employee
has taken place…
is obliged to report in writing to the responsible authority to which
he reports, providing all the necessary evidence in support of his claim” (as translated
by the author, emphasis added).
Any other activities are possibly covered under the general provisions mentioned
earlier (Criminal Code, Unfair Dismissal) but no express reference is made to
whistleblowing therein. (Q7)
17 July 28th 2011, Cyprus Mail Interview, “Time to Legalize Whistleblowing”, available at
http://www.thefreelibrary.com/'It's+time+to+legalise+whistleblowing'.-a0262673773
15
In terms of individuals covered as whistleblowers, under the
Public Service Law
1/90, the term employee includes anyone possessing a positions permanently,
temporarily or by way of substitution (article 2). This definition excludes non-
traditional employees of the State, while in relation to the private sector the absence
of specific legislation seems to render the issue obsolete. (Q8)
In addition the law introduced in 2004 to ratify the Civil law Convention on
Corruption (
Law 7 (III)/2004) in article 7 provides that a person that has imposed an
unjustified punishment on a whistleblower for reporting corruption, commits an
offence that could lead to the imposition of prison sentence and/or pecuniary fine. The
legislation does not explain the scope of unjustified punishment, but an interpretation
can be made with article 79 of the
Public Service Law (Law 1/90) that lists the
possible sanctions that can be imposed against civil servants in disciplinary
proceedings. Those include demotion, firing, unwanted transfer, stripping of job
duties or benefits, reduction of pay, financial penalty equal up to three monthly
salaries and forced retirement. The threat for such action is not included in article 7 of
Law 7 (III)/2004. (Q. 9)
In terms of express protection granted to whistleblowers for good-faith disclosures
found to be incorrect or inaccurate, there is no such provision. (Q. 10) In relation to
the burden of proof, in both public and private sectors (
Public Service Law 1/90 and
Unfair Dismissals Law 1967), that rests with the employer. (Q. 11) As far as to
whether the legislation includes any internal or external disclosure mechanisms, the
legislative framework makes no such specific provision. (Q13) The same unfortunate
16
lack of reference applies in relation to hotlines, (Q15) remedies available to
whistleblowers, (Q16) and to participation to follow-up reforms. (Q17) As regards
classification of information on the basis of confidentiality, there seems to be an
unclear state of affairs since art. 69A
Public Service Law 1/90 does not provide for a
hierarchy of information and thus for the specific prohibition to disclose confidential
information. Nonetheless, the same law provides in article art. 60 that any written or
oral information that a civil servant possesses as a corollary of exercising his duties, is
confidential and is prohibited to be communicated to any person but for the proper
exercise of service duty or after the written approval of the relevant authority.
Therefore, the communication of any information that relates to the obligation of the
civil servant under art. 69A “an employee that during the course of performing his
duties becomes aware or has reasonable cause to believe that an act of corruption or
bribery by another employee has taken place…
is obliged to report in writing to the
responsible authority to which he reports,
providing all the necessary evidence in
support of his claim” (emphasis added), is implying that there is no type of
information that can be excluded from disclosing. Furthermore, the
Criminal Code
(cap 154) in art. 50A provides that the disclosure of information relating to the
defense of the State is a criminal offense, with the exception of where the recipient is
duly authorized to handle such information. Therefore, the whistleblowing that has as
a recipient an individual within the same service is likely to exclude any criminal
liability, as the
Public Service Law 1990 excludes any disciplinary offense.
Nonetheless, special attention must be paid to the more specific provision of the
Criminal Code (cap 154) relating to the disclosure of official secrets. Art. 135
provides:
17
“Any person employed in the public service who publishes or communicates any fact
which comes to his knowledge by virtue of his office,
and which it is his duty to keep
secret or any document which comes to his possession by virtue of his office and
which it is his duty to keep
secret, except to some person to whom he is bound to
publish or communicate it is guilty of a misdemeanor.
A prosecution for an offence
under the provisions of this section shall not be commenced except by, or with the
consent of, the Attorney General”.
It is therefore apparent that the disclosure of even state secrets within the service that
one is serving will not constitute a criminal offense, while the possibility of a
prosecution for borderline cases is controlled by the Attorney General that has the
sole responsibility for initiating criminal prosecution in this case. In the exercise of
his duties the Attorney General is bound to take into account the broader public
interests and the positive impact that the revelation of the information might have.
There is nonetheless limitation to the protection granted, since that extends only to
case relating to corruption and bribery. With reference to the private sector, no similar
protective provision is being mad and there is therefore a considerable gap in the
protection afforded to whistleblowers. (Q.14).
Finally, there is clearly considerable legal protection granted to whistleblowers in the
event of prosecution, on the basis of the right to a fair trial guaranteed fully under the
Constitution (articles 11, 12 an 30). In the event of disciplinary action, the decisions
of the Public Service Commission are subject to appeal before the Supreme Court
(art. 73-86
Public Service Law 1990). (Q. 18)
Surmising, the protection levels created by the complex and multi-sourced legislative
18
framework are primarily limited to the public sector. The dichotomy of protection
between public and private sector is stark and the private sector seems to be
unnecessarily and unjustifiably overlooked. In addition, the protection in the public
sector is limited to cases concerning bribery and corruption, thus excluding any other
variations of illegal activity, while at the same time the emphasis of the system is
placed on the employee quality. Moreover, the procedural aspects of protection to
public sector whistleblowers are founded on the written submission of information,
with the law requiring an amendment to expressly enable oral communications and
unanimity. Finally, the system needs to be supported with auxiliary provisions
relating to the status of whistleblowers and to mechanisms for faster communication
with the authorities both internally and externally to the organization concerned.
3. Perceptions and Political Will
It must be clarifies from the outset that in the case of Cyprus there has been no study
or statistics (Q23) exploring the public or intra-institutional attitude towards
whistleblowers, while at the same time the small size, population and closeness of the
Cypriot society must be taken into account.
In terms of perceptions, the cases where whistleblowers were involved are normally
kept from the public eye, with their anonymity being protected. There has been one
notable recent instance where a civil servant posted at the Agriculture Ministry made
written accusations against colleagues and the Minister for nepotism in relation to
appointments of workers on hourly rate. The name of the civil servant (Mr. Dimitriou)
was made public most likely by his own intention in order to attract the support of the
press, which actually happened primarily because he was to face disciplinary
proceedings. The press, the majority of the political parties and the Attorney General
19
praised him for his action and a criminal investigation that resulted in prosecutions
was the outcome. The saga was interesting also because the Minister was not
prosecuted and was himself the institutionally responsible for dealing with the written
information that Mr. Dimitriou provided while at the same time there was serious
grounds for believing that the minister should have been aware of the nepotism (Q22).
(Q19) 18 From this case it becomes clear that when the media is involved, the
whistleblower is perceived as an important person committed to fighting corruption.
However, the press and the public tend to approach such cases with a rigid criterion of
political affiliation, thus always questioning the motives of the whistleblower and
frequently associating his actions with his political affiliation. In a small country and
with a closed society such personal information is easy to obtain, thus placing the
whistleblower amid the heated blaming debate of the political parties. This factor
represents the main barrier to whistleblowing. (Q19) In terms of ‘labeling’ the
whistleblower, the perception is dependent on political affiliations and can range from
the classical ends of the spectrum, namely ‘snitch’ (karfi in Greek) or ‘hero’. (Q19,
21) The same applies equally to the political elite, which approaches the matter from
the perspective of having potential for political gain or loss.19 (Q20)
Surmising, the political and public perceptions of whistleblowers are primarily
politically influenced and there is frequent disclosure of information on the basis of
anonymity. The whistleblower is seen favorably or negatively, depending on the
political motivation associated with his actions, thus most often than not rendering the
best available option being the maintenance of anonymity.
18http://www.sigmalive.com/news/local/202514;http://m4trix87.wordpress.com/οι-αθώοι-και-οι-
θεματοφύλακες-των-θεσ/
19 Ibid.
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4. Strengths, Weaknesses and Recommendations
There is no move for legislative change relating directly to whistleblowers, although
there are various initiatives taking place aiming to have an impact on corruption.
These take the form of creating a system for declaring financial assets for public
figures and individuals holding public office, yet those initiatives are not directly or
indirectly related to enhancing the protection for whistleblowers.
The main strength of the Cypriot system is its willingness to correspond through
implementation to calls for change coming from Europe. The creation of a European
obligation that requires the strengthening of the support and protection for
whistleblowers, will certainly impact on the Cypriot legislative framework. In terms
of positive elements that can be traced in the Cypriot system, the point of reference
has to be the introduction of art. 69A
Public Service Law 1/90 that expressly
addresses the issue of whistleblowing. Nonetheless, the positives end there since there
is need for careful and structured reform rather than an unsystematic connection of
whistleblowing with corruption. In other words, there needs to be an examination of
the phenomenon of whistleblowing on its own right and not as a mere tool for
reporting on corruption.
In terms of content, the protection levels created by the complex and multi-sourced
legislative framework are primarily limited to the public sector. The need for a
lex
specialis that would apply equally to the private sector is paramount. The dichotomy
of protection between public and private sector is stark and the private sector seems to
be unnecessarily and unjustifiably overlooked. In addition, the protection in the public
sector is limited to cases concerning bribery and corruption, thus excluding any other
variations of illegal activity, while at the same time the emphasis of the system is
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placed on the employee quality. Moreover, the procedural aspects of protection to
public sector whistleblowers are founded on the written submission of information,
with the law requiring an amendment to expressly enable oral communications and
unanimity. Finally, the system needs to be supported with auxiliary provisions
relating to the status of whistleblowers and to mechanisms for faster communication
with the authorities both internally and externally to the organization concerned.
Therefore, the hierarchy of protective intensity whereby the internal situations prevail
over external situations, the public sector worker is protected in a more complete and
comprehensive manner than an employee in the private sector, need to be eradicated
through centralization and streamlining of the legislation. The legal changes that
would be resulting in favoring whistleblowers can find their source in the European
influence (EU, Council of Europe) and will need to dominate over the social debate as
to the need for furthering the phenomenon of whistleblowing.
5. References and Sources
Committee on Legal Affairs and Human Rights, Council of Europe's Parliamentary Assembly (PACE),
Council of Europe, Report on the Protection of Whistleblowers, 2009, available at
http://fairwhistleblower.ca/files/fair/docs/ti/Council_of_Europe_Draft_WB_Resolution.pdf
Resolution 1729 (2010)
Protection of “whistle-blowers”
Assembly debate on 29 April 2010 (17th
Sitting.
Text adopted by the Assembly on 29 April 2010 (17th Sitting), available at
http://assembly.coe.int/main.asp?link=/documents/adoptedtext/ta10/eres1729.htm
See
also
Recommendation
1916
(2010),
available
at
http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta10/EREC1916.htm
Rohde-Liebenau B., Whistleblowing Rules: Best Practice; Assessment and Revision of Rules Existing
in EU Institutions, European Parliament, Directorate General Internal Policies of the Union, Budgetary
Support Unit, Budgetary Affairs, IPOL/D/CONT/ST/2005_58, N° PE 373.735, Brussels, 2006
Council's Group of States Against Corruption (GRECO). See foe example the Second Evaluation of
Compliance Report on Cyprus, 2008, Recommendation 30 et seq., available at
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round2/GrecoRC2(2008)1_Cyprus_EN.pdf
July 28th 2011, Cyprus Mail Interview, “Time to Legalize Whistleblowing”, available at
http://www.thefreelibrary.com/'It's+time+to+legalise+whistleblowing'.-a0262673773
Yiallouros v. Evgenios Nicolaou Civil Appeal No 9931, Judgment of 8 May 2001.
22
Klass v. FRG, A 28 para 64, (1979).
Report by the Republic of Cyprus, On the Implementation of the ICSECR, March 2009,
http://www.olc.gov.cy/olc/olc.nsf/0/0aa954e8aee4b23bc225758d001bf48b/$FILE/Answers%20to%20I
ssues%20-%20Questions.pdf, p. 6.
Apostolou, G., “Defamation & Privacy Laws in the Republic of Cyprus”, available at
http://apostoloulaw.com/pdf_Defamation_Article.pdf
Second Evaluation of Compliance Report on Cyprus, 2008, Recommendation 30 et seq., available at
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round2/GrecoRC2(2008)1_Cyprus_EN.pdf
http://www.sigmalive.com/news/local/202514;http://m4trix87.wordpress.com/οι-αθώοι-και-οι-
θεματοφύλακες-των-θεσ/
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Views expressed in the report are the author’s own, and may not necessarily
reflect the views of the organisation for which they work. Transparency
International cannot accept responsibility for any use that may be made of the
information contained therein.
The project has been funded with support from the European Commission. The
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responsible for any use that may be made of the information contained therein.
With financial support from the Prevention of and Fight against Crime Programme of the European Union.
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Transparency International Cyprus
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