Ukraine - Whistleblowing Laws in Europe: An international guide

As Ukraine is not a Member State of the EU, the answers to the following questions are given in accordance with national legislation.

1) Local Laws

a) Has the country implemented any laws / regulations on whistleblowing (Local Law)?

Yes, on October 17, 2019, the Ukrainian Parliament introduced amendments to the existing Anti-Corruption Law. These amendments – known as the Whistleblowers Law (the Law) – entered into legal force on January 1, 2020. The Law applies to state bodies, local self-governmental bodies, state-owned companies and other representatives of the public sector. It also applies to large businesses: companies participating in public procurement valued at more than UAH20 million (approximately USD715,000).

2) Scope of application

a) What types of wrongdoings are covered by the Local Law? Does it cover breaches of EU law?

The Law covers cases of corruption and other wrongdoings connected to corruption.

b) Personal scope

  1. Does the Local Law apply to reporting persons working in both the private and public sectors?

  2. The Law gives a broad definition of the term whistleblower. A whistleblower is an individual who became aware of certain information in the course of their work-related activities, professional, commercial, social, academic (scientific) activities, service or education, or by participating in some processes prescribed by law, which are necessary before engaging in any of the above-mentioned activities. Therefore, this definition may include the individuals listed in the question, working in both the private and public sectors.

  3. Does the Local Law apply only to breaches that the reporting person became aware of in a work-related context?

  4. No, an individual can obtain information regarding any breaches, not only within their work-related activities.

  5. Does the Local Law also protect: facilitators; people connected to the whistleblower and who could suffer retaliation in a work-related context; and legal entities the whistleblower owns, works for, or is otherwise connected with?

  6. No, the Law only protects the reporting person and their relatives. According to the Law, relatives are members of the family and other close relatives.

c) Does the Local Law require specific conditions to protect reporting persons?

Yes, the whistleblower must report reliable information. However, the Law protects the whistleblower from the moment they report. At the point of reporting it is difficult to assess the reliability of the information. Therefore, the person might enjoy protection even if the information is unreliable.

3) Reporting channels

a) Does the Local Law allow anonymous reports? How are companies/agencies meant to handle them?

Yes, the Law allows corruption to be reported anonymously, by protected online channels, anonymous hotlines, email, etc. Anonymous reports are examined in case the information concerns a specific person and contains factual background that can be checked and proven. Such anonymous reports shall be examined 15-30 days after the report is made. If the information is confirmed, the head of the respective company/agency will take measures ensuring cessation of the violation, eliminating any adverse effects and ensuring disciplinary responsibility of those who have committed the breaches. If evidence of a criminal or administrative offence is found, the appropriate counter-corruption authorities will be informed.

b) Is there a duty of confidentiality and any derogation from this duty?

Yes, it is forbidden to disclose any information regarding the identity of the whistleblower and their close relatives (or other information which might lead to disclosing their identities) to third parties which are not involved in reviewing, examining and/or investigating reports. Additionally, as a rule, this information should not be disclosed to those whose actions or omissions are the subject of the reports. An exception to this rule can only be established by law, and in this case, the whistleblower must be notified in writing about the disclosure of their identity.

c) Public disclosures: does the Local Law provide for this possibility?

Yes, this option is available for whistleblowers. It is also possible to publicly disclose information with restricted access under one of the following conditions:

  • Reporting through other channels was not effective within the time limit set for the verification or investigation of the report.
  • Reporting through internal channels will not be effective, since the information in a report is a matter of public interest and the right of the public to be aware about this information prevails over the potential harm from its disclosure.
  • The whistleblower or their relatives have been dismissed from work (position), subjected to disciplinary sanctions, or other negative measures or discrimination measures have been taken against them in connection with the whistleblower’s report.
  • Other channels for corruption reporting are absent.
  • There is a real threat of destruction of documents or evidence regarding the information reported.

4) Reporting channels: internal

a) Is there an obligation for private and/or public legal entities to establish channels and procedures for internal reporting and follow-ups?

Yes, the Law creates an obligation to establish channels and procedures for internal reporting. This obligation is imposed on the public sector and private companies participating in public procurements valued at more than UAH20 million (approximately USD750,000).

b) Do internal reporting channels need to allow reporting in writing, orally or both?

The Law provides for reporting in writing and orally.

c) Procedures for internal reporting and follow-up: does the Local Law require legal entities to adopt internal reporting systems with the following elements?

  1. Channels able to ensure the confidentiality of the identity of the reporting person and the protection of third parties mentioned in the report:

  2. Yes, the channels for internal reporting must be secured and provide the opportunity for anonymous reporting.

  3. Acknowledgement of receipt of the report to the whistleblower within seven days of receipt:

  4. The Law does not establish an obligation to acknowledge receipt of the report. The Law only requires the whistleblower to be notified of the results of a preliminary examination of their report within three days from the moment of completion of such examination. The preliminary examination shall be conducted within 10 days. At the same time, the whistleblower is entitled to receive information on the receipt of a report and its status. This can be done through filing an application, the answer to which is given by the respective authority within five days from the moment of receiving the application.

  5. The designation of an impartial function/team to manage follow-ups on reports and maintain communication with the whistleblower:

  6. Legal entities shall designate a special department or a certain official. The powers and duties of these departments/officials include organising channels of internal reporting, receiving, reviewing and examining reports, co-operation with whistleblowers. These departments or officials shall be accountable only to the head of the organisation involved company.

  7. Any other follow-up requirements including those for anonymous complaints:

  8. According to the results of a preliminary verification of the report, one of the following decisions can be made to:

    • Launch an internal investigation, if the facts stated in the report are confirmed or if the reliability of such information shall be further verified.
    • Pass the materials to the law enforcement authorities.
    • Close the investigation if the reliability of the information contained within the report is not proven.
  9. A reasonable timeframe to provide feedback, not exceeding three months from acknowledgment of receipt or if no acknowledgement was sent, three months from the expiry of the seven-day period after a report is made:

  10. The whistleblower shall be provided with detailed written information regarding the results of the preliminary examination within three days from the date of its completion.

  11. Providing clear and easily accessible information on internal reporting procedures and external reporting procedures to competent authorities and/or EU institutions/bodies:

  12. The Law contains no such requirement. However, individuals who are in charge of work with whistleblowers should provide guidance and consult other employees and workers on the procedure to report corruption.

  13. Should legal entities take any additional measures in order to comply with the above requirements?

  14. In addition to creating channels for reporting, it is necessary to introduce mechanisms to promote and create a culture of reporting breaches related to corruption. It is also important to define internal procedures for receiving, reviewing and examining the reports, as well as responding to whistleblowers in detail.

5) Reporting channels: external

a) Has the country designated a competent authority to receive and investigate whistleblower disclosure and retaliation complaints?

The main state body designated to protect whistleblowers is the National Agency on Corruption Prevention.

b) Is an independent and autonomous external reporting channel already established in the country?

Yes, the National Agency on Corruption Prevention along with law enforcement authorities have protected email addresses, telephone lines and feedback forms on their official websites, enabling a person to file a report.

6) Processing of personal data

a) Is personal data concerning the reports processed in compliance with local and EU legislation such as EU Regulation 2018/1725 and local privacy laws?

Personal data concerning reports shall be processed in compliance with general requirements under Ukrainian privacy legislation.

7) Record keeping of reports

a) Is there any obligation regarding record keeping of reports as provided for by the EU Directive?

Materials of preliminary and internal investigations on reported corruption cases are retained for three years from the date of receipt.

8) Protection

a) Is there any difference between whistleblower protections in the private and public sectors?

No, the Law makes no differentiation in this regard.

b) Are whistleblowers protected against all forms of retaliation including threats and attempts of retaliation? Which forms of retaliation are expressly indicated?

The whistleblower or their relatives cannot be: refused employment; dismissed or forced to resign; subjected to disciplinary sanctions or other negative measures by the head or employer (e.g. relocation, additional performance evaluation, changing working conditions, refusal to appointment to a higher position, reduction of wages); or face the threat of similar negative measures.

c) Does the Local Law provide for any other measures of support such as those indicated in the EU Directive?

In addition to protecting labour rights as mentioned above, the whistleblower enjoys the following rights:

  • To be notified of their rights and obligations under the law.
  • To receive free legal assistance.
  • To be granted protection, including the protection of their relatives and property, in the event of a threat to life or health).
  • To receive reimbursement of expenses.
  • To receive psychological support.

In addition, the National Agency on Corruption Prevention may represent the whistleblower before the courts.

d) Does the Local Law provide for the necessary measures to prohibit any form of retaliation against whistleblowers?

The whistleblower or their relatives cannot be: refused employment; dismissed or forced to resign;, subjected to disciplinary sanctions or other negative measures by the head or employer (e.g. relocation, additional performance review, changing working conditions, refusal to appoint to a higher position, reduction of wages); or face the threat of similar negative measures.

According to the Criminal Code of Ukraine, illegal dismissal of an employee from work for personal reasons or corruption reporting is a criminal offence.

e) Does the Local Law provide for any remedial measures, including interim relief measures?

The whistleblower or their relatives who were dismissed from work because of filing a report shall be immediately reinstated in their former job (position), and must be paid the average wage for the whole period of the forced absence, but not for more than one year.

In addition, the whistleblower or their relatives who are appointed to another permanent lower paid job (position) because of filing a report shall be immediately reinstated at their former job (position), and be paid the difference in salary for the duration of the lower paid job, but not for more than one year.

If the application for the reinstatement of the whistleblower or their relatives at their former jobs (positions) is considered for more than one year for reasons beyond their control, they shall be paid the average wage for the entire period of forced absence. If there are grounds for reinstating the employee and/or their relatives against whom a report was filed, they shall be paid compensation of six months’ average wage in the case of refusal of reinstatement, or two years’ average wage in the case of impossibility of reinstatement.

f) Does the Local Law provide for exemptions from liability for whistleblowers?

Yes, the whistleblower is not legally liable for the report, despite the possible breach of service, civil, employment or other duties and obligations. The report cannot be considered a violation of any non-disclosure agreement (NDA). The whistleblower is exempted from civil liability for property and/or non-pecuniary damage caused by the report.

g) Does the Local Law provide for sanctions against natural and legal persons that violate whistleblowers’ protection or the duty of maintaining the confidentiality of their identity?

Yes, administrative liability is provided for disclosure of the identity of the whistleblower. These actions are subject to a fine of from UAH17,000 (approximately USD608) to UAH42,500 (approximately USD1,520), with the deprivation of the right to occupy certain positions or engage in certain activities for a term of one year.

h) Does the Local Law provide for sanctions in case of false reports?

In case of intentional false reporting, the whistleblower may incur civil liability for pecuniary and/or moral damage resulting from the report.

9) Other issues

a) Under the Local Law, is adopting a whistleblowing system relevant to assess the adequacy of a compliance program? Does this have any value to mitigate or eliminate criminal liability for legal entities?

Yes, if a company official commits a crime of corruption, the court shall evaluate the measures taken by the company to prevent the crime (including adoption of a whistleblowing system) in considering the application of criminal law measures (e.g. a fine).

b) Does the Local Law or another law in your country provide for whistleblower reward programs?

Under certain conditions, whistleblowers are entitled to receive a 10% reward but only after the court establishes a conviction. The whistleblower may be rewarded if they reported a corruption offense that amounts to UAH10.5 million (approximately USD376,000) or more. However, in any case, the amount of the reward may not exceed UAH14.1 million (approximately USD505,000).

While determining the specific amount of the reward, the court shall take into account the following criteria:

  • The uniqueness of the information i.e. the information is unique and not accessible from other open sources.
  • The importance of the information i.e. the information must contain factual data that can be verified and contribute to proving a crime.

In the absence of at least one of the above criteria, the court shall refuse payment of the reward.

Under any circumstances, the following persons are not entitled to a reward: any person who is an accomplice to a crime or has reported corruption; and any person who reported corruption as a whistleblower while having the opportunity to make an official report about a detected crime when exercising their official duties.

c) Can companies benefit from any incentives in the case of voluntary self-disclosure of violations they became aware of following an internal report?

The Law does not establish any specific benefits for companies. However, if a company official commits a crime of corruption, the court will evaluate the measures taken by the company to prevent the crime in considering the application of criminal law measures (e.g. a fine).

d) Will implementing the EU Directive create any issues with obligations provided for under other laws / regulations?

This does not apply in the Ukrainian jurisdiction.


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