Oversight framework of intelligence services
Protecting whistleblowers
“Whistle-blowers should be strongly protected and
whistleblowing mechanisms should be strongly encouraged. Reports on internal and external whistleblowing
should be sent to an independent supervisory body. The
press and their sources should be protected in their reporting on the activities of the intelligence and law enforcement agencies.”
Korff, D. et al. (2017), p. 12
“The law should require public authorities to establish internal procedures and designate persons to receive protected disclosures.
States should also establish or identify independent bodies to receive and investigate protected disclosures. Such
bodies should be institutionally and operationally independent from the security sector and other authorities
from which disclosures may be made, including the executive branch.”
Tshwane Principle 39 A and B(i)
The ECtHR addressed matters relating to whistleblowing
by civil servants in Guja v. Moldova269 and Bucur and
Toma v. Romania.270 The latter relates specifically to
whistleblowing by a member of an intelligence service
regarding the unlawful interception of communications.
In deciding whether a sanction against a whistleblower
is a justified interference with their freedom of
expression, the ECtHR considers the following matters:
•• whether the whistleblower had alternative
channels for the disclosure,
•• the public interest in the disclosed information,
•• the authenticity of the disclosed information,
•• the detriment to the affected institution,
•• whether the whistleblower acted in good faith, and
•• the severity of the sanction.
The French law on intelligence protects whistleblowers.
If confronted with suspected wrongdoing, a staff
member of the intelligence service can contact the
CNCTR, which can then bring the case before the
Council of State and inform the prime minister.271 As
of March 2017, the procedure has not yet been used.272
In Germany, a whistleblower mechanism provides
for the possibility for intelligence service staff to
approach the Parliamentary Control Panel. 273 In the
269 ECtHR, Guja v. Moldova [GC], No. 14277/04,
12 February 2008, paras. 70-78.
270 ECtHR, Bucur v. Romania, No. 40238/02, 8 January 2013,
paras. 94-119.
271 France, Interior Security Code, Art. L. 861–3. See also
Foegle, J.-P. (2015).
272 France, DPR &CNCTR (2017).
273 Germany, Parliamentary Control Panel Act
(Kontrollgremiumgesetz), 29 July 2009, s. 8 (1).
Netherlands, the new Act on the Intelligence and
Security Services 2017 assigns the competence to
investigate reported wrongdoing to the CTIVD. 274 In
Belgium, when dealing with denunciations made by
whistleblowers wishing to complain about their own
administration, the Standing Committee I handles the
individual complaint but focuses on the improvement
of the efficiency of the intelligence services. Upon
receiving a denunciation, it launches an investigation.
The results of the investigation are shared with the
whistleblower in general terms. They are also reported
to the head of the relevant service, the competent
minister and parliament. Finally, the general findings
are made public.275
FRA asked different actors about possible provisions
regarding whistleblower protection within the
intelligence services. Provisions for such protection
are prescribed in the legislation of four of the
seven Member States researched. The respondents
generally did not express specific or clear opinions
regarding whistleblower protection provisions, and
indicated that they lacked knowledge about the
respective national context.
The interviewees did tend to agree on one aspect: that
efficient whistleblower protection in the intelligence
services requires a specific regime, different from those
for other governmental institutions. In some Member
States, recent legislative reform efforts included
discussions of this issue, but they are not necessarily
reflected in the enacted legislation. Otherwise,
however, opinions on the issue of whistleblower
protection generally varied, and also differed among
respondents from the same Member State.
“It is not regarded as being very effective. For this reason,
the political demand has been made time and time again
that comprehensive protection for whistleblowers is
needed.” (Expert body)
“Well, we have no whistleblower protection. In general,
there is no such protection and this is a real problem.”
(Data protection authority)
“There are always calls for a whistleblower law in [country].
I do not consider this to be necessary. We do not need such
a law.” (Academia)
274 The Netherlands, Act on the Intelligence and
Security Services 2017 (Wet op de inlichtingen- en
veiligheidsdiensten 2017), Art. 97 and Arts. 125-131.
275 In total, the Standing Committee I received 22 complaints or
denunciations, see Belgium, Standing Committee I (2016),
p. 7.
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