Russia – Whistleblowing Protection

According to the latest report by the Russian branch of the anti-corruption NGO Transparency International entitled “Protection of corruption whistleblowers”, there is virtually no legal protection for whistleblowers in Russia according to the existing legislation. However, legal protections for victims and witnesses in the Russian Federation can be found in the following instruments:

  1. The Constitution of the Russian Federation;
  2. The Criminal Code of the Russian Federation;
  3. The Code of criminal procedure of the Russian Federation;
  4. The Federal Law from the 20th of August 2004, N 119-FZ “about state protection of victims, witnesses and other participants of the criminal judicial proceedings”;
  5. The State program providing protection for victims, witnesses and other participants of the criminal judicial proceedings;
  6. The Government Decree of the Russian Federation from the 27th of October 2006, N 630 “About security measures for participants of the criminal judicial proceedings”;
  7. The Determination of the Constitutional Court of the Russian Federation from the 11th of July 2006, about the rights of victims of criminal cases to get acquainted with files;
  8. The Government Decree of the Russian Federation from the 17th of August 2007, N 522 “About determining the level of harm made to human health”;
  9. The Government Decree of the Russian Federation from the 11th of November 2006, N 664 “About the Rules of payments to victims, witnesses and other participants of criminal judicial proceedings as a state protection”; and
  10. The Government Decree of the Russian Federation from the 3rd of March 2007, N 134 “About protection of information for protecting victims, witnesses and other participants of the criminal judicial proceedings”.

The most applicable law to whistleblowers is the “on government protection of victims, witnesses and other participants of judicial proceedings on criminal cases.” To be the subject of government protection under this law, the whistleblower must go public and participate in a long and arduous trial. Corporate whistleblowers are barely protected under the law. The law is supposed to offer government assistance in finding another job, however, according to Transparency International, there are no working means of such assistance.

Whilst there is no specific legislation in relation to Whistleblowing in Russia, more general protection mechanisms as they relate to expression and information can be found in the following areas:

  1. Anti-Corruption Mechanisms;
  2. Witness Protection;
  3. Media Law and Protections for Journalists;
  4. Civil Defamation Law;
  5. Protection of Personal Data;
  6. Labor Law Protections; and
  7. Key Players.

I. Anti-Corruption Mechanisms

In 2006 Russia adopted important international conventions relating to anti-corruption as created by the United Nations and the Council of Europe. Russia is, however, yet to introduce national legislation which formally adopts the anti-corruption mechanisms as set out in the conventions into domestic law. It was assumed that whistleblowing would be one of the concepts infused into Russian legislation but this has not occurred.

In September 2008 the National Anti-Corruption Council approved a package of anti-corruption bills, which had been submitted by President Medvedev to the State Duma. The draft legislation was approved in its first week of reading and introduced a norm for the mandatory reporting of cases on corruption, graft, abuse of power or abuse of resources by public officials.

On 11 December 2008 at a meeting of the State Duma working group on anti-corruption, it was decided to remove a model for whistleblowing from the text of the anti-corruption legislation prepared for the second reading. The resulting legislation, the Federal Law on Anti-Corruption 2008, does not include a reference to whistleblowers. The only state protection offered under this law is for civil servants who report on offers of corruption made to him/her (but not to other civil servants).

Anti-corruption in the public sector

In the public sector, there are phone hotlines and e-mail addresses that the general public can use for placing complaints against public officials. However, under its anti-corruption mandate, the General Prosecutor’s Office is collecting such information regardless of the position a person willing to report corruption holds. For example, in September 2007, the Office of Prosecutor General in Sverdlovsk opened a hotline through which citizens could report on corrupt officials. Some experts claim, however, that this was nothing but an attempt to collect so-called “kompromat” on local bureaucrats on the eve of the December 2007 parliamentary election and obtain an instrument of control over regional authorities. It is very likely that this initiative will be replicated in other regions.

In practice, the internal reporting mechanism for public sector corruption does not have a professional, full-time staff and does not receive regular funding.

Anti-corruption in the private sector

Private sector employees who report cases of corruption, graft, abuse of power, or abuse of resources are not protected from recrimination.

However, largely unnoticed, many Russian companies are beginning to do something outside of any legislative regime. They are strengthening corporate governance by creating clearer separation of board and management competencies and responsibilities, introducing International Financial Reporting Standards (IFRS), creating greater transparency of accounts, disclosure of shareholders and nominating independent directors to the board. At the management level, they are introducing ethical codes, internal audit procedures and diverse ways for employees to raise concerns about non-compliance. TNK-BP has appointed an “anti-corruption manager” whose role is not so much to police employees as to help them understand the basic principles of responsible business.

Obstacles to effective anti-corruption mechanisms

A current attitude towards corruption in Russia and lack of will power to prevent it creates major obstacles to any effective instruments of combating it.

According to a PricewaterhouseCoopers report on corporate anticorruption activities in 14 countries released in February 2008, managers in BRIC countries (Brazil, Russia, India, China) consider corruption a natural and ineradicable phenomenon. Accordingly, the effectiveness of corporate anti-corruption programs in these countries is significantly lower than in other parts of the world.

In May 2008, Ernst & Young experts approached 1186 directors and top managers of financial and legal departments of private businesses in 34 countries. Over 60 percent of respondents appraised the problems posed by bribes and corruption as critical and very critical. The data compiled in Russia in the meantime differed: National anti-corruption legislation was viewed as efficient by 85 percent of Europeans but by only 26 percent of Russians.

II. Witness Protection

In 2005 a long delayed law on witness protection was passed. Implementation of the new legislation was granted a significant amount of funding between 2006 and 2008 (approximately US$30.6 million).

In November 2006 the Russian government approved rules for applying security measures to witnesses and victims who, if need be, could be provided with a new name, new place of residence, new job and even a new face for the purpose of protection.

III. Media Law and Protection for Journalists

Government regulation

Since 2003, the government has controlled directly or through state-owned companies, all of the national television networks. Only a handful of radio stations and publications with limited audiences offer a wide range of viewpoints.

Discussion on the internet is ostensibly free, but the government devotes extensive resources to manipulating information available.

Since Russia’s independence in 1991, the government has initiated several structural reorganisations of the regulatory bodies in the country’s media sphere. The latest restructuring took place in 2008 with the creation of the Ministry of Telecommunications and Mass Communications. It regulates mass media, communications and IT activities together with four subordinated federal agencies (Federal Agency on Press and Mass Communications; Federal Agency on IT; Federal Agency of Communications and Federal Control Service in the Sphere of Communications; IT and Mass Communications).

Media Law – protection of journalists?

It has been said that the Mass Media Law is “one of Russia’s most liberal laws and one of the world’s most advanced laws regulating the field”. Nevertheless, in practice, the legislation has made little headway in the development of a strong, independent fourth state in Russia.

Journalists, editors and media outlets in Russia enjoy certain privileges that under particular circumstances protect them from the need to check the truthfulness of the information that they disseminate and from related accusations of violating the law. They are all listed in Art. 57 of the Mass Media Law.

Article 49 of the Mass Media Law outlines a code of behavior for journalists in Russia that includes an obligation to obtain prior permission when it appears that a report might be an invasion of privacy. While arguably such guidelines for professional ethics might be desirable, one commentator has suggested that “the imposition of such government standards suggests a relationship between journalist and government that is reminiscent of the sometimes velvet, sometimes steel, prison of the past”. Under Article 48, if journalists fail to meet their responsibilities, they can be stripped of their accreditation.

It may be noted here that Article 1521 of the Civil Code provides for a possibility to disseminate information about the private life of a person and his/her pictures in cases where “it is necessary to protect public interests.” In such instances, prior permission may not be required.

Even though the Mass Media Law has been heralded as a “breakthrough”, in practice, journalists are at great risk if they attempt to usurp the government’s control of the media.

At least 19 journalists have been killed since Putin came to power, including three in 2009, and in no cases have the masterminds been prosecuted. The brutal attack on Kommersant journalist and blogger Oleg Kashin in November 2010 was only one of many such incidents during the year, and demonstrated the dangerous conditions for reporters in Russia. The authorities have further limited free expression by passing vague laws on extremism that make it possible to crack down on any speech, organization, or activity that lacks official support.1

The Russian Federation joined the Istanbul Action Plan at the time of its official launch in September 2003. However, Russia did not complete the full programme. It submitted a self-assessment report, but did not attend a review meeting. As a result, no recommendations were adopted and no

monitoring was carried out. It is expected, however, that the Russian Federation will be subject to an anti-corruption review in the framework of its accession to the OECD, which commenced in 2008.

Protection of sources

There was a proposal at the beginning of 2009 for a new law, which would allow reporters investigating corruption in Russia to be protected. Under the proposed legislation, they would be able to apply for special protection like witnesses in Court. This was merely proposed and no legislation to this affect has been passed.

Part 2 of Article 41 of the statute “On the mass media” demands that the editorial office protects the confidentiality of sources except in cases where a corresponding demand comes from the court of law in relation to the case that it is dealing with.

IV. Civil Defamation Law

As central as the Mass Media Law may be to the legal framework around mass media in

Russia, it is not the only legislation of importance in this area. In particular, Russia’s civil defamation law has been a source of concern both in the international community and internally to Russia as well. Indeed, when Russia first joined the Council of Europe in 1996, a great deal of skepticism surrounded Russia’s ability to meet its obligations under the European Convention of

Human Rights (ECHR), especially the rights relating to freedom of the press as found under Article 10 of the ECHR42.

The fundamental legislative base for civil defamation claims is found in Articles 150-152 and 1099-1101 of the 1995 Civil Code of the Russian Federation. A summary of the relevant articles is provided below.

Article 150 sets out a number of protectable interests, such as dignity of personality and privacy, only reputation (honor and good name, and business reputation) are afforded detailed codification.

Article 152(1) establishes the necessary elements of a successful civil defamation claim in Russia, namely:

  1. dissemination of a communication concerning the plaintiff;
  2. that is defamatory; and
  3. is false. As interpreted by the Russian Supreme Court, falsity is presumed, with the burden of proof resting on the defendant to prove otherwise.

Remedies

The remedies available to a successful plaintiff in a civil defamation suit are compensation for non-economic harm (moral damages), the amount of which is left for the court to determine. Additional remedies are provided for by Article 152 of the Civil Code, which include retraction, right of reply if the defendant is a mass media organization, and monetary compensation.

Interaction with the Criminal Code

It is not infrequent for lawsuits based on civil defamation claims to also include other related claims, namely insult and invasion of privacy. However, since neither of these claims is outlined in the Civil Code, Russian courts look to the Criminal Code when considering these claims.

Article 130 of the Criminal Code

The offense of insult is described as “the demeaning of the honor and dignity of another person, expressed in an indecent form.”

Article 137 of the Criminal Code describes an invasion of privacy as follows:

“The illegal gathering or dissemination of information about the personal life of a person without that person’s permission which information constitutes a personal or family confidence, or the dissemination of such information…by means of the mass media, if such actions are undertaken for reasons of financial gain or personal benefit and cause harm to the rights and legal interests of citizens.”

In addition to the Civil Code and the Criminal Code, the Mass Media Law discussed above also has relevance to civil defamation cases. In particular, under Article 46 of the Mass Media Law, someone identified in a defamatory statement has a right of reply, even if that statement is factually correct. Furthermore, the Mass Media Law reaffirms the availability of monetary compensation for moral damages even in lawsuits defended by journalists and media organizations.

2005 Supreme Court Explanation

It was not until recently, with the promulgation of the Russian Supreme Court’s 2005 Explanation that the civil defamation law began to embrace the plurality principle by accepting multiple sources of law for consideration. Prior to that time, the Supreme Court did not deviate from the autonomy principle with respect to civil defamation and ordinary courts did not recognize external norms as applicable to such cases either.

In addition to accepting the plurality principle, the 2005 Supreme Court Explanation is also significant in its specific mandate to ordinary courts to internalize the European Court of Human Rights interpretations of Article 10 of the ECHR55. Prior to 2005, one of the most criticized aspects of Russia’s civil defamation law was its approach to the fact/opinion distinction, namely the treatment by Russian courts of all “communication” as subject to Article 152 of the Civil Code.

The 2005 Supreme Court Explanation marked a change in approach to this issue. Significantly, the Supreme Court took the position that going forward Russian courts must distinguish between allegations of fact from statements of opinion, with opinion being excluded entirely from the scope of Article 15257.

However, one caveat to this broad exclusion should be noted. Although statements of opinion are no longer subject to Article 152 defamation claims, the Supreme Court left open the possibility for an opinion to be the basis for a claim resting on insult. Also important to the 2005 Supreme Court Explanation’s statements concerning the fact/opinion issue is the proclamation, set forth for the first time, that defamation plaintiffs must bear the burden of proof with respect to showing that the communication at issue is defamatory.

Another significant aspect of the 2005 Supreme Court Explanation is the clarification that it provides in terms of distinguishing defamation claims from claims of invasion of privacy, a distinction often lacking in the practice of the courts.

Finally, in the 2005 Explanation the Supreme Court also placed two new criteria for ordinary courts to consider in their determination of monetary awards for moral harm. In particular, the Supreme Court indicated that the amount should be “proportionate” to the harm itself. Secondly, the amount must not “encroach on the freedom of mass information”. Although these are rather vague as far as standards go, it does show the Russian Supreme Court taking into account that unduly high damages might overburden the mass media.

V. Protection Of Personal Data

The agency responsible for regulating the protection of personal data in Russia is the Federal Service for Supervision in the sphere of Communications, Information Technology and Mass Communications (also known as Roscomnadzor). Violations in the area of protecting personal data are administrative liabilities. Fines for such violations are 5,000-10,000 rubles for the company and 500-1,000 rubles for the company’s chief executive. However, every instance of the violation may receive a separate fine.

Roskomnadzor passes all documentation for the discovered violations to The Office of the Public Prosecutor. The Public Prosecutor is authorized to make decisions regarding filing charges for administrative violations. The final decision on charging fines belongs to the courts.

Companies are required to notify the Roscomnadzor about using personal data in its activities. Article 22 of the Law on Personal Data appears to exclude companies working only with the personal data of their employees from this requirement. However, in practice, the Roscomnadzor often demands this notification regardless. According to Article 22 transferring this data to a bank for purposes of transferring salaries to bank accounts, or transferring information to state agencies when submitting information about employees, becomes an exception to the exception. Therefore, in order to avoid unnecessary arguments and fines, they suggest filing the notification.

VI. Labor Law Protections

The Labor Code of the Russian Federation contains the following relevant provisions in relation to the protection of employees in the context of personal information:

Chapter 14. Protection Of Personal Information Of An Employee

Article 85 – Concept of personal information of an employee. Processing of personal information of an employee.

Personal information of an employee is defined as information required by an employer because of the labor relationship and that refers to a specific employee. Processing of personal information of an employee is reception, storing, combining, sharing or any other usage of personal information of an employee.

Article 86. General requirements to processing personal information of an employee and warranties of protection of this information

To guarantee human rights and freedoms of a citizen, employers and their representatives must follow the general requirements listed below during processing of personal information of an employee:

  1. processing of personal information of an employee can be performed only to assure compliance to laws and other legislative standard acts, aiding employees in employment, education and promotion, assuring personal safety of employees, control of quality and quantity of performed work and guaranteeing safety of organization’s property;
  2. an employer must follow regulations of the Constitution of the Russian Federation, this Code and other federal laws for determination of volume and content of processed personal information of an employee;
  3. all personal information of an employee can be received only directly from employees. If personal information of an employee can be only received from a third party, then the employee must be notified of it in advance and written permission of the employee is required. Employers must inform employees about purpose, possible sources and means of receiving personal information and about the type of necessary personal information and the consequences of a refusal of an employee to provide a written permission on receiving of necessary personal information;
  4. an employer has no right to receive and process personal information about political, religious and other convictions of an employee and personal information about the private life of an employee. According to Article 24 of the Constitution of the Russian Federation, an employer has right to receive and process personal information about the private life of an employee only with written permission of an employee and only in cases when this information is relevant to job relationship;
  5. an employer has no right to receive and process personal information of an employee about membership of an employee in professional organizations, public organizations and about activities of an employee in trade unions, except cases specified by a federal law;
  6. an employer has no right to base on personal information of an employee that was received electronically or as a result of automated processing in making decisions concerning the employee;
  7. protection of personal information of an employee from improper usage, damage or loss must be guaranteed by an employer. The order of this protection is specified in federal law;
  8. employees and their representatives must be acquainted with documents of an organization that regulate order of processing of personal information of employees and with rights and obligations of employees in this area. Confirmation of employees is required after this acquaintance;
  9. employees must not renounce their rights on keeping and protection of their secrets; and
  10. employers, employees and their representative must together work on the development of measures for protection of personal information of employees.

Article 88. Sharing personal information of an employee

An employer must follow the below regulations in all cases of sharing personal information of an employee:

  1. an employer must not share personal information of an employee with a third party without written permission of an employee, except in cases when this is necessary to prevent a threat to health and life of an employee and except cases, specified by federal law;
  2. an employer must not share personal information of an employee for commercial purposes without written permission of an employee;
  3. an employer must warn entities who are receiving personal information of employees that this personal information can be used only for purposes it was provided for. Entities that receive personal information of an employee must keep secrecy (confidentiality) of this personal information. This statement doesn’t govern cases when personal information of an employee is shared according to federal laws;
  4. an employer must perform transition of personal information of an employee within one organization according to local standard acts of this organization. Confirmation of an employee about acquaintance with this act is required;
  5. an employer must allow access to personal information of an employee only to authorized entities and these entities have right to receive only personal information of an employee that is required for their specific functions;
  6. an employer must not demand information about state of health of an employee, except information that is relevant to question of capability of performing job functions by an employee; and
  7. an employer must share personal information of an employee with representatives of employees in order, specified by this Code, and limit this information with personal information that is required by functions of these representatives.

Article 89. Rights of employees for guaranteeing protection of their personal information that is stored by employer.

To guarantee protection of their personal information that is stored by employer, employees have the following rights:

  1. right to receive complete information about their personal information and processing of their personal information.;
  2. right of free access to their personal information, including right of receiving copies of any record where their personal information is contained, except cases specified by federal law;
  3. right to choose representatives for protection of their personal information;
  4. right to access medical information relevant to their personal information with aid of a medical specialist of their choice;
  5. right to demand exclusion or correction of incorrect or incomplete personal information and information that was processed with violation of requirements of this Code. If an employer refuses to exclude or correct personal information of an employee, then an employee has right to inform employer in written form about disagreement and provide correspondent reasons for this disagreement. A notice by an employee, expressing point of view of the employee can be added to personal information of estimative type;
  6. right to demand from employer informing of all entities who were previously given incorrect or incomplete personal information of an employee about all exclusions, additions and corrections in personal information of an employee; and
  7. right to appeal to court about any non-legitimate actions or inactions of an employer relevant to processing and protection of personal information of an employee.

Article 90. Responsibility for violation of regulations relevant to processing and protection of personal information of an employee

Entities that are guilty of violation of regulations relevant to receiving, processing and protection of personal information of an employee may bear criminal, civil, administrative or disciplinary responsibility according to federal laws.

Chapter 38. Liability Of An Employer To An Employee

Article 234. Liability of an employer to repair the damage caused by illegal revocation of the right to labor

In all events of illegal revocation of the right to labor the employer is obliged to reimburse underpaid wages to the employee. The employer is to bear this liability if the employee has not received wages due to the following reasons:

  1. illegal removing the employee from the job, dismissal or transfer to another job;
  2. refusal of the employer to fulfill or untimely fulfillment of decisions of labor disputes authorities or a governmental labor inspector on reinstating the employee on the work;
  3. delay of transfer of employment record book to the employee, incorrect or illegal inputs about dismissal; and
  4. other events specified by federal laws or collective labor contracts.

Article 237. Restitution of moral damage inflicted to an employee

The moral damage inflicted to an employee by illegitimate activity or omission of an employer is repaired in terms of money at the amount fixed upon agreement of labor contract parties.

In event of any disputes the moral damage inflicted to the employee and the amount of compensation will be established by court in regardless the type of damage.

The State has control over the observance of the Labor code and other legal acts containing labor regulations (Article 353).

VII. Key Players

In Russia, the following organisations are the leading think tanks in the area of whistleblowing protections and freedom of speech in general:

NGOs Web Address Email
Transparency International www.transparency.org.ru info@transparency.org.ru
Glasnost Defense Foundation www.gdf.ru fond@gdf.ru
Levada Centre www.levada.ru direct@levada.ru
The Moscow Bureau for Human Rights www.antirasizm.ru humanrights@list.ru
SOVA Centre www.sova-center.ru mail@sova-center.ru
Russian Union of Journalists www.ruj.ru ruj@ruj.ru

1 Freedom House, 2011