• Moldova’s efforts from the perspective of the OECD Anti-Corruption Network. Case study: Protection of whistleblowers

    Moldova’s efforts from the perspective of the OECD Anti-Corruption Network. Case study: Protection of whistleblowers
    by
    19 September 2022 | 14:26

    Moldova has shortcomings in ensuring the practical application of whistleblower protection, appointing and promoting prosecutors on merit and on the basis of clear procedures, sanctioning corruption offences or investigating and prosecuting high-level corruption, says the Organisation for Economic Co-operation and Development Anti-Corruption Network’s country monitoring report. In contrast, Moldova was praised for having up-to-date anti-corruption policies or for effectively identifying and prosecuting the proceeds of corruption. Transparency International Moldova has analysed the report and comes with a number of recommendations for the authorities.

    In 2020, Moldova joined the Istanbul Anti-Corruption Action Plan, a peer review programme of the Organisation for Economic Co-operation and Development (OECD) Anti-Corruption Network for Eastern Europe and Central Asia, and participated in piloting the 5th round of monitoring.

    Our country was assessed in 13 areas of anti-corruption activities, based on indicators and benchmarks agreed by the participating countries: Anti-corruption policies, conflicts of interest, disclosure of assets and interests, protection of whistleblowers, independence of the judiciary and prosecution, integrity in public procurement and business, sanctioning corruption offences, holding legal persons accountable, recovery and management of proceeds of corruption, investigation and prosecution of high-level corruption and specialised investigative and prosecutorial bodies.

    Moldova’s strengths and weaknesses

    The country monitoring report was made public in June 2022.In line with the pilot procedure, the scores awarded were not made public, but strengths, the indicators for which the country scored the highest, and weaknesses, the indicators for which the country scored the lowest, were listed.

    Thus, Moldova obtained the highest scores for the following indicators:

    • Anti-corruption policies are up-to-date, evidence-based and include key areas of corruption risk;
    • Anti-corruption policy making is inclusive and transparent;
    • regular monitoring and evaluation of anti-corruption policies is ensured;
    • impartial and vigorous enforcement of conflict of interest regulations is ensured;
    • disclosure of assets and interests is applied to high-risk positions;
    • the allocation of cases between judges is transparent and objective – court decisions are open to the public;
    • procurement challenges are resolved;
    • limitation and investigation periods do not prevent effective accountability of legal persons;
    • the functions of identifying, tracing, administering and recovering illicit assets are carried out by specialised officials;
    • the identification and tracing of proceeds of corruption are effective.

    The lowest scores were obtained for the following indicators:

    • Effective mechanisms are in place to ensure that whistleblower protection is enforced in practice;
    • the public is aware of and has confidence in existing protection mechanisms;
    • the judicial mandate is guaranteed in law and practice;
    • appointment and promotion of prosecutors is based on merit and clear procedures;
    • the allocation of cases between prosecutors is transparent and objective;
    • prosecutors can challenge the orders they receive;
    • dissuasive and proportionate sanctions are applied for procurement violations;
    • business integrity;
    • sanctioning of corruption offences;
    • investigation and prosecution of high-level corruption;
    • anti-corruption specialisation of prosecutors is ensured;
    • staff of specialised anti-corruption bodies are impartial and autonomous from external and internal pressure.

    Case study: Protection of whistleblowers

    Transparency International (TI) Moldova analysed the monitoring report. “Obviously, as long as the scores given to Moldova per indicator are unavailable, we cannot insist that any one area of performance is the most problematic. However, certainly, in this respect, the Protection of Whistleblowers, an instrument that remains less exploited by Moldova, can serve as a case study”, states a TI Moldova analysis.

    The protection of whistleblowers is dealt with under the Integrity Act, No 82/2017, as a measure to ensure institutional integrity. The cited law, in art. 18, also contains some beginnings of regulation of the field. These beginnings have been developed by a special law – Law No. 122/2018 on integrity whistleblowers. Thus, Moldova is one of the few countries with a law dedicated to this policy, TI Moldova notes.

    The law aims to increase the cases of disclosure of illegal practices and other disclosures of public interest by promoting the climate of integrity in the public and private sectors, ensuring the protection of whistleblowers against retaliation in the context of examining public interest disclosures of illegal practices and preventing and sanctioning retaliation against whistleblowers.

    “As noted in the OECD Report, Moldova’s legal framework extends to most potential whistleblowers in both the public and private sectors and provides for the possibility of reporting through different channels. Public institutions are required to establish internal reporting mechanisms. The law prohibits reprisals against whistleblowers and contains safeguards against disclosure of their identity. However, some of the provisions of the law are not sufficiently clear and leave room for interpretations that would harm whistleblowers. The law does not provide for important protection measures such as consultation, interim protection, state-guaranteed legal assistance, compensation, reintegration, medical and psychological assistance. Anonymous warnings are also not allowed. The National Anti-Corruption Centre (CNA) and the People’s Advocate (Ombudsman) are central authorities responsible for receiving external warnings and protecting whistleblowers. However, these authorities do not have sufficient staff dedicated directly to these issues, and the Ombudsman also complains of a lack of adequate legal powers. As a result, overall public confidence in the system appears to be low, as evidenced by the low number of whistleblowers. Moreover, no comprehensive statistics are available, due to the lack of any authority responsible for collecting and analysing data relevant to the field,” the TI Moldova analysis states.

    “Basically, we cannot disagree with the conclusions of the assessment – the whistleblower institution has not been sufficiently popularized and explained, employees mostly do not perceive this institution as a genuine mechanism to react to illegal practices in institutions, and the mechanisms created (if they have been created) are not sufficiently safe or do not provide security to potential whistleblowers,” TI Moldova notes.

    Conclusions and recommendations

    TI Moldova, after analysing the monitoring report, has drawn up a number of conclusions and recommendations for the authorities. “In general, Moldova will have to examine in detail all the findings of the OECD, but also to intervene in the areas that have been found problematic,” TI Moldova notes.

    In particular, with reference to the Protection of Whistleblowers, TI Moldova recommends the responsible authorities to exercise parliamentary control over the implementation of Law No. 122/2018, as well as its ex-post impact assessment, as it is necessary to analyse the achievement of the objectives of the law, the impact of the law on society in general, but also on specific groups, sectors and areas. TI Moldova also states that the consequences of the law, the economic, financial, social, administrative and other effects, as well as the reasons that delayed or jeopardised the implementation of the law should be analysed.

    At the same time, TI Moldova recommends examining the OECD recommendations and reconsidering the regulatory framework in this area based on international standards, raising public awareness of integrity warnings as a tool to prevent corruption, as well as popularising the tool through application guides, application templates, offering the possibility of submitting applications online, publicising the results obtained in the implementation of the policy, as well as additional training of specialised staff dedicated to the field.

    This material was published within the framework of the project “Mobilizing civil society to monitor and report on the integrity of state institutions and anti-corruption activities in Moldova” implemented by Transparency International – Moldova, with the financial support of the Criminal Justice and Law Enforcement Section of the Embassy of the United States of America in Chisinau.

    AUTHOR MAIL sabinrufa1@gmail.com

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