A very flawed whistleblowers protection law has been proposed in Spain. The law would not only insufficiently protect whistleblowers but also undermine citizens’ rights and actually trump the disclosing to the public opinion and justice of wrongdoings and abuses. Xnet launches today a campaign to rise awareness on the issue and is preparing amendments to fix it.
Lurking behind the appearance of a law we have long been calling for, one that protects whistle-blowers and citizens denouncing corruption, and that also amends the functioning of organisms that spawn corruption, is a perverse proposal of megalomaniac and antiquated authoritarianism.
In general the law is based on a profoundly erroneous and dangerous notion which we have been fighting against for some time, namely that institutions can monitor themselves. They do it better than citizens can. But it is more than amply demonstrated that only citizen scrutiny can put an end to corruption.
The proposal presented by the party Ciudadanos wants to do the opposite. It wants to create an all-powerful organism supported by the “coercive fines it imposes and sanctions within its jurisdiction”. This institution would be exclusively run by high-level officials with absolute power to investigate, monitor and pursue any person without any guarantees of legal protection and with no oversight from any system of checks and balances.
As for the whistle-blower protection announced in the title, this is restricted to public servants and public office holders. Ordinary citizens are in danger of suffering reprisals. Moreover, the private sector is not included, although investigations frequently start here. We are well aware of this because it was by means of the “Blesa emails” that Xnet drew the public’s attention to the Bankia case.
Furthermore, whistle-blowers are explicitly denied anonymity when they denounce corrupt practices, and this makes them still more vulnerable. Yet anonymity is the only real protection that a whistle-blower can be offered, and it is also recognised as the just and necessary channel for prosecution procedures in Spain and organisations like the United Nations.
- https://www.fiscal.es/fiscal/PA_WebApp_SGNTJ_NFIS/descarga/instruccion03_1993.pdf?idFile=12794dc6-9acc-4da0-bbc1-daf779e2f084 [in Spanish]
This draft law once again means that the fate of the whistle-blower is determined by blind faith in the institutions instead of permitting the anonymity which we can guarantee for ourselves. This fact is what has brought us to this point.
We have carried out in-depth studies on the importance of the whistle-blower’s having control over his or her privacy by means of anonymity:
And, as if all this were not enough, the draft law introduces elements of political persecution by creating lists of whistle-blowers, which means opening files on them and stigmatising them in perpetuity, adding elements that are entirely unrelated with corruption. These include notions like disrespect for the constitution or sedition, astutely camouflaged among well-known words like “terrorism”. These files are to be kept by the proposed organism.
Furthermore, the law uses just one term, “denunciante” (person who reports a crime) but, unfortunately, this also has negative historical connotations (“informer”). In other countries there has been an effort to promote and make acceptable the person who brings cases of corruption and abuse to light. For some three centuries a different term with positive connotations has therefore been used, as is the case with “whistle-blower”, in the Anglo-Saxon countries, and “lanceur d’alert” in France (which is translated as alertador in Spain and, literally, as “person who sounds the alert” in English).
Finally, it revamps the Transparency Law but without correcting its failings such as the fact that it allows the creation of records on people and private entities on the pretext of transparency but without any logical connection with the fight against corruption. This makes ordinary citizens even more vulnerable.
This situation is aggravated with the lobbies register which, in this case, far from regulating the abuses of big companies, is designed to undermine civil society and its work of monitoring the laws that affect everyone and that are being influenced precisely by lobbies. Instead of considering as obligatory legal data on, and publication of the agendas of officials and high-level public office holders, it particularly focuses on people who challenge the institutions and who, depending on the government of the day, can be seen as “dissidents”.
In a nutshell: STASI
But, as is always the case, there are some good things too:
- The possibility of reprieve in cases of illegal financing for, and corruption of parties has been eliminated;
- The subsidiary civil liability of parties and trade unions in crimes of corruption is covered in the law (we can’t dance in the streets yet, but it’s better than nothing);
- The limits to preliminary investigation recently introduced in the Criminal Procedure Code are abolished (that was easy).
We have contacted parliamentary groups to find out their position regarding the situation and what alternatives they have to offer. We do this with the greatest concern and sense of urgency because almost all of them have voted in favour of going ahead with processing this draft law.