The General Prosecutor’s Office will have to reassess whether to recognize its employee as a whistleblower

LVAT decided that the decision not to grant whistleblower status is unmotivated and unfounded, therefore it is annulled, and the General Prosecutor’s Office is obliged to make a new decision in accordance with the provisions of the Whistleblower Protection Law.

This decision of LVAT is final and non-appealable.

“College of Judges of the Supreme Administrative Court of Lithuania in 2024 March 27 made a decision to satisfy my complaints in 2022. I drew the attention of the employer, as well as the courts that examined the complaints, that certain provisions of the Law on Electronic Communications of the Republic of Lithuania (ed. from 12.01.2021) regarding the provision of the data listed in Annex 1 of this law to the competent authorities may be in conflict with the Court of Justice of the European Union (hereinafter – CJEU). in 2021 March 2 For a preliminary ruling issued by the Grand Chamber in the case HK vs Prokuratuur (No. C-746/18).

In response to the notices, my employer in 2022 January 13 applied to the Ministry of Justice of the Republic of Lithuania, requesting to assess the circumstances of legal regulation and to inform about the decisions made regarding the conflict of European Union and national legal norms, including the application of national implementation measures in the implementation of ECtHR decisions. The employer is obliged to make a new decision regarding the 2021 December and 2022 In January, the information provided in my reports is in accordance with the provisions of the Law on the Protection of Whistleblowers of the Republic of Lithuania”, said Š. Simon.

Š. Šimonis submitted reports to the General Prosecutor’s Office about the decision of his immediate superior to cancel the decision to suspend the pre-trial investigation and transfer this investigation to another prosecutor.

The applicant stated that the senior prosecutor is unjustifiably trying to influence the subordinate prosecutors to apply to the judge of the pre-trial investigation regarding the receipt of data (mobile communication tiles). In the applicant’s assessment, this situation contradicts the CJEU 2021. March 2 to the explanations formulated in the decision.

The disputed decision recognized that the main violation reported by the applicant is a potentially illegal decision of the higher prosecutor, but the information provided by the applicant does not meet the criteria of public interest and the violation indicated by the applicant cannot be associated with fundamental constitutional values.

As reported by LVAT, prosecutor Š. Šimonis did not agree with the conclusion that the information he provided does not correspond to the public interest and that the violation he indicated is not related to fundamental constitutional values.

In the applicant’s assessment, the 2002 Act is not properly applied in Lithuania. July 12 The provisions of Article 15, paragraph 1 of the Directive of the European Parliament and of the Council on the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), associated with Articles 7, 8, 11 and Article 52, paragraph 1 of the Charter of Fundamental Rights of the European Union.

Based on the provisions of the Law on the Protection of Whistleblowers, the applicant also requested to oblige the defendant to make a decision on the status of the whistleblower, as he provided information about the violations in order to protect the public interest.

LVAT decided that the circumstances indicated in the petitioner’s reports to the respondent and their connections with the public interest in ensuring the rights of suspects during the pre-trial investigation were not properly and thoroughly evaluated, as, in essence, the petitioner argued.

“In the reports, the applicant presented arguments related to the possibly violated public interest, i.e. that the strategy of organizing pre-trial investigations may unreasonably limit the constitutional rights of suspects (data and privacy protection), but the General Prosecutor’s Office did not properly and thoroughly assess the factual circumstances specified by the applicant and their connection with the public interest ensure the rights of suspects during the pre-trial investigation. Personal correspondence, telephone conversations, telegraphic messages and other communications are inviolable. Information about a person’s private life can be collected only by reasoned court decision and only in accordance with the law. The law and the court protect that no one experiences arbitrary or illegal interference in his personal and family life, an attack on his honor and dignity,” the court announced.

CJEU 2023 September 7 in the decision AG v. General Prosecutor’s Office of Lithuania, noted that, as far as the goal of prevention, investigation, detection and prosecution of criminal acts is concerned, according to the principle of proportionality, only the fight against serious crimes and the prevention of a serious threat to public safety can justify the extensive provisions of Articles 7 and 8 of the Charter restrictions on the fundamental rights enshrined in Articles, such as those related to the storage of traffic and location data.

After evaluating the jurisprudence of the Constitutional Court, the European Court of Human Rights and the CJEU, the LVAT concluded that the arguments regarding the grounds for granting whistleblower status must be based on the analysis of relevant legal provisions and factual circumstances, and the relevant conclusions cannot be formal, incomplete and based on assumptions and general statements.

In the assessment of LVAT, the contested decision of the General Prosecutor’s Office did not meet these requirements.

Court of First Instance in 2022 Š. Šimonios’ complaint was rejected as groundless. The Vilnius Chamber of the Administrative Court of Regions, having assessed the legal regulation of the dispute, i.e. the provisions of the Whistleblower Protection Law and the factual circumstances of the case, stated at that time that the applicant was not legally and reasonably recognized as a whistleblower.

The Law on Protection of Whistleblowers in force in Lithuania enshrines the protection mechanism of persons who have submitted information about a violation in an institution with which they are connected or were connected by service or employment relations or contractual relations.

The law also establishes the rights and obligations of persons who report violations in institutions, the bases and forms of their legal protection, as well as the means of protection, promotion and assistance of these persons, in order to create adequate opportunities to report violations of the law that threaten or violate the public interest, to ensure prevention and disclosure of such violations.

A whistleblower is a person who provides information about a violation in an institution with which he or she is connected or has been connected by service or employment relationships or contractual relationships (consulting, contract, internship, practice, volunteering, etc.), and who is recognized as a whistleblower by the competent authority.

A criminal act, administrative offense, official misconduct or violation of work duties, as well as a gross violation of mandatory professional ethics norms or other legal violation that threatens or violates the public interest, about which the reporter learns from his/her own or have a service, employment relationship or contractual relationship with this institution.

According to the law, information about violations is provided due to danger to public safety or health, life or health of a person; environmental hazards; obstructing or unlawfully influencing investigations conducted by law enforcement authorities or courts in the administration of justice; financing of illegal activities; illegal or non-transparent use of public funds or assets; illegally acquired property; concealing the consequences of the committed violation, preventing the determination of the extent of the consequences; other violations.