CYIL vol. 15 (2024)

HARALD CHRISTIAN SCHEU of Balenovic v. Croatia , the ECtHR applied only three Guja criteria, namely the authenticity of the information disclosed, the nature of the channels used to disclose the information, and the situation of the whistleblower as an employee. In the case of Medžlis Islamske Zajednice Brčko and others v. Bosnia and Herzegovina , 18 the ECtHR had to deal with the application of the Islamic Community in Brčko District (Medžlis Islamske Zajednice Brčko) and three other non-governmental organizations of ethnic Bosniaks from the same district. In civil proceedings, the applicants had been found liable for defamation after publicly accusing the candidate for the post of director of a local radio and television station of making anti-Muslim statements. However, having found that the applicants were not employees of the broadcaster and therefore acted only as a “vehicle for communication”, the Grand Chamber did not see the need to consider whether other Guja criteria, such as the existence of alternative channels, were met. 19 Generally speaking, rather than following the systemic solution developed in the case of Guja v. Moldova , the ECtHR’s case law often seems to be inspired by an ad hoc balancing approach, resulting in decisions which are applicable only to the individual case. 20 However, from a methodological perspective, the ECtHR has never openly revoked the Guja approach and has continued to be guided by the ambition to offer a concise solution model. 1.3 The different standards Comparing ECtHR case law with the Whistleblower Directive, we can point out four crucial differences. First, the ECtHR has repeatedly confirmed that external reporting must be understood as “a last resort”. 21 Only when reporting to the superior or other competent persons and bodies within the organization is clearly impracticable, may the whistleblower disclose the information to the public. 22 In the case of Matúz v. Hungary , 23 the ECtHR ruled in favor of a whistleblower who was a journalist at a state television station, taking into account, inter alia, that the complainant disclosed information about alleged censorship at the television station only after he had first unsuccessfully approached the company’s president. The ECtHR found it decisive that the television company had not offered the whistleblower an effective alternative channel. 24 Thus, while the ECtHR case law implies the subsidiarity of external disclosure in relation to internal reporting channels, the Directive provides for the equal status of internal and external whistleblowing. Actually, the first proposal for a Whistleblower Directive was designed in line with this requirement as it provided for protection only in cases where the whistleblower had used internal tools before going public. This prioritization seemed logical since one of the main objectives of the Directive was to ensure the establishment of 18 ECtHR, Medžlis Islamske Zajednice Brčko and others v. Bosnia and Herzegovina (Application no. 17224/11 , Judgment of 27 June 2017). 19 Medžlis Islamske Zajednice Brčko and others v. Bosnia and Herzegovina , para. 80. 20 SCHEU, H. C. Whistleblowing z pohledu evropské ochrany lidských práv. Právní prostor ( 23.3.2016), available at https://www.pravniprostor.cz/clanky/ostatni-pravo/whistleblowing-z-pohledu-evropske-ochrany-lidskych-prav. 21 For some doubts about the subsidiarity of external channels, see COLNERIC, Ninon. Does the case law of the European Court of Human Rights show that the Convention States of the European Convention on Human Rights must prescribe priority of internal whistle-blowing as a rule? Arbeit und Recht . 2018, vol. 66, no. 12, pp. 232–239. 22 Guja v. Moldova , para. 73. 23 ECtHR, Matúz v. Hungary (Application no. 73571/10, Judgment of 21 October 2014). 24 Matúz v. Hungary , para. 47.

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