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What Makes Effective
Whistleblowing
Global Comparative
Studies from the Public
and Private Sector
Edited by
Carmen R. Apaza
Yongjin Chang
What Makes Effective Whistleblowing
Carmen R. Apaza • Yongjin Chang
Editors
What Makes Effective

Whistleblowing
Global Comparative Studies from the Public
and Private Sector
Editors
Carmen R. Apaza Yongjin Chang
Universidad Privada Norbert Wiener Faculty of Global Management
Lima, Peru Chuo University
Tokyo, Japan
ISBN 978-3-030-40199-3 ISBN 978-3-030-40200-6 (eBook)

https://doi.org/10.1007/978-3-030-40200-6
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Contents
1 Effective Whistleblowing Conceptual Framework 1

Carmen R. Apaza and Yongjin Chang
2 Whistleblowing in Belgium 11
Frankie Schram
3 Whistleblowing in Brazil 31
Carmen R. Apaza
4 Whistleblowing in Finland 49
Olli-Pekka Viinamäki, Niina Mäntylä, and Annukka Jokipii
5 Whistleblowing in Japan: The Case of Masaharu Hamada 71

Yongjin Chang
6 Whistleblowing in the Philippines 87

Gerald Glenn F. Panganiban
v
vi Contents
7 Summary and Conclusions101

Carmen R. Apaza, Yongjin Chang, Frankie Schram, Gerald
Glenn F. Panganiban, Olli-Pekka Viinamäki, Niina Mäntylä,
and Annukka Jokipii
Index113
List of Tables
Table 2.1 Organisation of the channels in the Flemish whistleblowing

system17
Table 2.2 Summary table of the case 26
Table 2.3 Effectiveness indicators of the case 26
Table 7.1 Effectiveness indicators in the study of whistleblowing cases 110
Table 7.2 Assessment of effectiveness in the study whistleblowing cases 112
vii
Introduction
In recent years whistleblowing has been crucial to uncovering corruption

scandals all over the world. For instance in the previous edition of this
book, four cases from Peru, South Korea, Thailand, and the United States
were analyzed. Each case was analyzed applying Apaza and Chang’s
(2011) effective whistleblowing conceptual framework, which identifies
five elements of effectiveness in whistleblowing that are relevant in all
democracies: type of whistleblowing, coverage by mass media,
documentation of evidence, retaliation, and legal protection. In all
instances, authorities successfully prosecuted or punished prominent
public figures in spite of high-level corruption and official cover-ups. Each
case had strong political, legal, and social repercussions that at least
promised permanent reforms.
In this edition, five more cases from Belgium, Brazil, Finland, Japan,
and the Philippines are analyzed applying the aforementioned
whistleblowing conceptual framework. Hence, in the first chapter we
revise the five factors of effectiveness in whistleblowing and explain the
methodology to conduct the research. Then, the cases of Belgium, Brazil,
Finland, Japan, and the Philippines are described and analyzed in the
second, third, fourth, fifth, and sixth chapters, respectively. Chapter 7
assesses the effectiveness of the whistleblowing process in each case and
analyzes the comparative findings including additional appropriate
ix
x Introduction
benchmarks for reform. Based on the results, it suggests improvements in

whistleblower protection systems for each country that may be applied in
other countries as well.
Reference
Apaza, C., & Chang, Y. (2011). What makes whistleblowing effective:
Whistleblowing in Peru and South Korea. Public Integrity, 13(2), 113–130.
CHAPTER 1
Effective Whistleblowing Conceptual

Framework
Carmen R. Apaza and Yongjin Chang
Abstract Apaza and Chang develop an analysis framework for effective

whistleblowing that contains five crucial factors: (1) the type of whistle-
blowing (Internal and External Whistleblowing), (2) the role of the mass
media (use of mass media to disclose corruption), (3) the documentation
of evidence (collection of supporting documentation before blowing the
whistle), (4) the form of retaliation (inappropriate work assignments or
transfer, threats of physical harm, harassment, humiliation, or isolation,
etc.), and (5) legal protections (whistleblowing protection laws issued and
implemented).
Keywords Framework • Effective • Whistleblowing • Legal

protections • Mass media • Retaliation • Documentation of evidence
C. R. Apaza (*)
Universidad Privada Norbert Wiener, Lima, Peru
Y. Chang
Faculty of Global Management, Chuo University, Tokyo, Japan
e-mail: yongjin.01g@g.chuo-u.ac.jp
© The Author(s) 2020 1

C. R. Apaza, Y. Chang (eds.), What Makes Effective Whistleblowing,
https://doi.org/10.1007/978-3-030-40200-6_1
2 C. R. APAZA AND Y. CHANG
Whistleblowing is a crucial mechanism in the fight against corruption. It

is specially critical for public corruption because whistleblowing disarms
corruption (Perez 2018) through the revelation of secret wrongdoings
and operations that affect a whole nation (Guerrero 2018).
Whistleblowing is the disclosure of illegal, immoral, or illegitimate
practices by employee(s), former or current, of public or private organiza-
tions to persons or organizations that may be able to take or initiate some
action (Near and Miceli 1985; Figg 2000).
Whistleblowers are source of valuable information that neither the gov-
ernment nor the public can get from oversight systems. Moreover, they
are knowledgeable people who know precisely what their organizations
are doing. Thus, whistleblowing is an important means of improving gov-
ernment transparency and accountability (Apaza and Chang 2011;
Rosenbloom 2003; Jos 1991; Rosen 1998).
However, whistleblowing is not always welcomed by organizational
members and puts the person in very dangerous situations depending on
legal protection or organizational culture. But, in spite of the fact that
there is still negative belief in whistleblowing, whistleblowing is socially
desirable and positively influence employees, organizations, and society
(Culiberg and Mihelic 2017). This can be reflected by both the increasing
whistleblowing actions and whistleblowing research in the world.
Indeed, after the first edition of this book, whistleblowing actions and
whistleblowing research increased significantly. This happened not only
because more and more whistleblowers from the public and private sectors
decided to blow the whistle but also because an increasing number of
researchers analyzed the process. For example, whistleblowing and social
action against corruption in Latin America (Salas 2017), serious public
wrongdoings in Australia (Cassematis and Wortley 2013), whistleblowing
process in Norwegian labor market (Skivenes and Trygstad 2017), whis-
tleblowing intentions of public accountants in Indonesia (Latan et al.
2018), whistleblowing intentions in South Africa and Mauritius (Pillay
et al. 2018), propensity of whistleblowing in China, Taiwan, and the USA
(Hwang et al. 2013), moral reasoning and retaliation on whistleblowing
in New Zealand (Liyanarachchi and Newdick 2009).
In most of those cases there was a positive action against the wrongdo-
ing. Hence, they were somehow effective. But what is exactly effective
whistleblowing?
1 EFFECTIVE WHISTLEBLOWING CONCEPTUAL FRAMEWORK 3
1 Effective Whistleblowing

In the first edition of this book we identified five factors that define effec-
tive whistleblowing: type of whistleblowing, role of mass media, docu-
mentation of evidence, retaliation, and legal protection (Apaza and Chang
2017). These factors were determined by a careful study of the theory
existed then.
In this regard, we found that Near and Miceli (1995) defined effective-
ness in whistleblowing as “the extent to which the questionable or wrong-
ful practice (or omission) is terminated at least partly because of
whistle-blowing and within a reasonable time frame” (p. 681). Likewise,
Dworkin and Baucus (1998) suggested that effectiveness is attained “if the
organization launched an investigation into the whistleblower’s allega-
tions—on their own initiative or required by a government agency, or if
the organization took steps to change policies, procedures, or eliminate
wrongdoing” (p. 1289). In the same sense, Ellison, Keenan, Lockhart,
and Van Schaik (1985) suggested that successful whistleblowing should
have two components: the activeness of the purpose and the influence
in others.
Based on those previous findings, and critically analyzing whistleblow-
ing cases in Peru, South Korea, Thailand, and the USA, we found that an
effective whistleblowing is a disclosure of a wrongdoing mainly done
through mass media coverage such as TV and internet), that led to: (i)
government or non-governmental investigation, (ii) to take steps to
change policies or procedures, and (iii) to terminate the wrongdoing
within a reasonable time frame (Apaza and Chang 2017). Accordingly, we
suggested 5 factors of effective whistleblowing:
1. Type of whistleblowing (Internal and External Whistleblowing)

An internal whistleblowing is the person who discloses the infor-
mation following the procedures of his/her organization. In con-
trast an external whistleblower is a person who reports an
organization’s illegal, immoral, or illegitimate workings to someone
outside the organization (Dworkin and Baucus 1998). Unfortunately,
in both cases whistleblowers usually suffer retaliation in differ-
ent levels.
But by looking at the results of the whistleblowing (i.e. investiga-
tions done, organizational positive changes implemented as a
consequence of the disclosure), external whistleblowing is more

effective than the internal one (Rothschild and Miethe’s 1999;

Dworkin and Baucus 1998). For example, corruption cases in Peru
and South Korean got attentions after blowing the whistle through
mass media (Apaza and Chang 2017).
2. Role of mass media
The use of mass media to disclose corruption highly depends on
social and cultural aspects, which may affect whistleblowers’ deci-
sion on whether to blow the whistle. For instance, in societies where
a high percent of the population watches popular national TV news
programs, such as in Peru, whistleblowers would prefer to blow the
whistle through this channel (Apaza 2017). However, in a culture
where people highly value group loyalty and safe face, like in Japan,
people would use other channels (Davis and Konish 2007).
But most of the effective whistleblowing started from the mass
media and nowadays more and more whistleblowers are choosing
mass media to blow the whistle (Dworkin and Brown 2013). In
most cases the whistle firstly was blown through internal channels
but then turned to external ones (Nielsen 2018; Callahan and
Dworkin 1994; Dworkin and Brown 2013).
3. Strong evidence
Strong evidence is necessary to initiate any kind of investigation
specially in the legal environment. Hence, whistleblowers need to
collect all the supporting documentation and even they need to be
cautious about determining when to blow the whistle (Devine
2017) because it may be long and may be “a tortuous path of litiga-
tion” (Rosenbloom 2015, p. 146), Actually, because during the liti-
gation the information will be exposed to hard scrutiny,
whistleblowers need to double check the veracity and relevancy of
their information before blowing the whistle (Amoedo 2017).
One thing to take into consideration is that having good quality
evidence usually lead whistleblowers to blow the whistle through
external means (Near and Miceli 1995; Dworkin and Baucus 1998).
This has been totally be proven in the Brazilian case about the huge
Odebrecht corruption scandal that negatively impacted all Latin
America. The whistleblower had objective evidence of all the cor-
ruption process (see the Brazil chapter).
To sum up, acquiring strong evidence should be the first element
when whistleblowers decide to blow the whistle (Apaza and
Chang 2011).
4. No retaliation
An effective whistleblowing means that the whistleblower did not
suffer a brutal retaliation. But in the real world a whistleblower
always suffers a certain level of retaliation, which may be defined as
an undesirable action taken against a whistleblower (Rehg et al.
2008). These actions include intimidation (Guerrero 2018) nega-
tive performance appraisals, inappropriate work assignments or
transfer, threats of physical harm, harassment, humiliation, or isola-
tion (Park et al. 2018), sent to jail (Jakes 2003), dismissal or even
killed (Devraj 2003).
When the whistle was blown through internal channels public
organizations common retaliations include: denial of a job promo-
tion (Apaza 2008), dismissal or forcing to resignation (Jos et al.
1989) or to retire (Rothschild and Miethe 1999).
But when the whistle was blown through external channels, orga-
nizations used more comprehensive forms of retaliation against
external reporting (Dworkin and Baucus 1998).
In any case, retaliation frequently happens after the whistleblow-
ing (Guerrero 2018; Kenny et al. 2018), and it is closely associated
with whistleblowing intention (Cho and Song 2015). Nevertheless,
in the dimension of an effective whistleblowing retaliation should be
prevented through a well-established and implemented whistle-
blowing legal protection system (Apaza and Chang 2017).
5. Legal protection
The existence of a legal protection system for whistleblowers is basic
for an effective whistleblowing. Recently many whistleblowing pro-
tection laws have been issued and implemented (Amoedo 2017).
Based on our case studies we find that whistleblowing were more
effective in countries where there was a legal protection system
already implemented for whistleblowers.
Usually, a legal protection system for whistleblowers reduces the

chances of retaliation against whistleblowers by their employers or col-
leagues (Guerrero 2018) and can change “organizational culture to view
whistleblowing as a civic obligation and public virtue, rather than insubor-
dination, snitching, or tattling” (Rosenbloom 2003, p. 133). The main
purpose of whistleblowing legislation is to defend whistleblowers from
reprisals (Vandekerckhove 2010; Rosenbloom 2015). Also, the existence
of an adequate legal protection law influences in the decision of
whistleblowers whether to blow or not the whistle (Chang et al. 2017;

Mesmer-Magnus and Viswesvaran 2005; Rothschild 2008).
But apart from the existence of a legal protection system for whistle-
blowers, it is important to consider the present and positive influence of
independent, fair, and strong, law enforcement agencies (Amoedo 2017;
Johnson 2004). This is very important for effective whistleblowing, For
instance in Brazil, the investigation of the expensive Odebrecht corrup-
tion scandal was positively influenced by an effective law enforce-
ment system.
But unfortunately, only a few countries, such as the United Kingdom,
South Africa, the United States, Canada, and Japan have comprehensive
laws (Banisar 2006; Kaplan 2001), others have sectorial laws (OCDE
2011), and others don’t have any protection law for whistleblowers. But,
we don’t only need comprehensive laws (National Whistleblower Center
2019) but we also need the establishment of a comprehensive protection
system to adequately implement the whistleblowing protection law. It
means that the existence of an independent law enforcement agency and
an independent judicial system is also crucial (see more in the Brazil
chapter).
To sum up, the aforementioned five factors were considered for analyz-
ing effective whistleblowing in the first edition of this book. In this new
edition we apply the same factors and discover new ones through the study
of whistleblowing cases from Belgium, Brazil, Finland, Japan, and the
Philippines.
2 Methodology
To evaluate the aforementioned factors influencing effective whistleblow-
ing, we apply the case study method, as in the previous edition. A case
study is an empirical inquiry that investigates a contemporary phenome-
non within its real-life context, especially when the boundaries between
phenomenon and context are not clearly evident (Yin 2003, p. 13, 2009,
p. 18). The case study method is well suited to whistleblowing research
because it can show conditional findings in detail and can examine interac-
tions of a cause-and-effect relationship (Jensen and Rodgers 2001).
Moreover, the case study method helps to do an in-depth study of an
organization culture (Benson and Ross 1998), which is crucial for under-
standing why whistleblowers decide not to blow the whistle within their
own organizations.
Case analysis enables scholars to build concepts and theories of public

administration research with systematic knowledge (Rosenbloom 1994)
and can help practitioners understand “what to do and what to avoid,
what works and what does not in specific circumstances” (p. 44). Likewise,
George, Bennett, Lynn-Jones, and Miller (2005) also identified four
strengths of case study methods: (1) achieving “high levels of conceptual
validity” (p. 19); (2) identifying “new variables and hypotheses through
the study of deviant or outlier cases” (p. 20); (3) examining “the opera-
tion of causal mechanisms in individual cases in details” (p. 21); (4)
accommodating “complex causal relations” (p. 22).
Even though somehow case studies are criticized because of selection
bias, degree of freedom, generalizability of case study results, and lack of
replicability (Rosenbloom 1994; George et al. 2005; Jensen and Rodgers
2001), we believe that the case study method is a suitable method to study
whistleblowing.
To sum up, applying the case study method, this study considers five
units of analysis referring to effective whistleblowing in Belgium, Brazil,
Finland, Japan, and the Philippines.
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CHAPTER 2
Whistleblowing in Belgium
Frankie Schram
Abstract In recent years a whistleblowing legislation in the public sec-

tor has been developed in Belgium on the federal and Flemish level. In
both systems an important place is given to the ombudsman institutions,
because they can give legal protection to the whistleblower. In the given
case, it is shown that whistleblowing can move towards a more ethical and
effective decision making process. It makes also clear that the use of media
as channel for whistleblowing creates a pressure to change things in pub-
lic sector. From the point of legal protection it finds his limits in the free-
dom of expression. Civil servants must exercise restraint so as not to
unnecessarily jeopardize the public’s belief in the public sector.
Keywords Whistleblowing legislation • Belgium • Public sector •

Ombudsman • Legal protection • Media • Pressure • Freedom of
expression
F. Schram (*)
Faculty of Social Science, Public Governance Institute, University KU Leuven,
Leuven, Belgium
e-mail: Frankie.schram@kuleuven.be
https://doi.org/10.1007/978-3-030-40200-6_2
12 F. SCHRAM
1 Introduction
1.1 Belgium, a Federal State

According to Transparency International Corruption Perceptions Index
2019 Belgium has a score of 75 on a scale of 0 (very corrupt) and 100
(very clean) (Transparency International 2020). Regarding previous
indexes Belgium obtained slightly better results this time. Although
Belgium has obtained a whistleblowing legal framework on the federal and
Flemish level, the better results cannot be subscribed to this. Belgium can
be considered as an old democracy with some control mechanisms (con-
trol by the Court of Audit for the federal administration and the adminis-
trations of regions and communities), structures and democratic culture
where the rule of law is consolidated. Belgium is indeed a federal state of
a special kind with three communities and three regions. Communities
deal with language, culture and education; regions deal with matters
linked to a territory. There is the Flemish community (Dutch speaking)
and the Flemish region, the French community (French speaking) and the
Walloon region, the German speaking community (German speaking) and
the Brussels-Capital region (bilingual). Each region has its own parlia-
ment, government, public administration and civil service. Regions and
communities have attributed powers, the federal level has everything that
is not attributed and competences that are expressly attributed to the fed-
eral level.
The Belgian federal system has some specific characteristics. One of
them is that the legal acts of the federal state (laws) and of the communi-
ties and regions (decrees and ordinances) have the same legal value.
Another feature is the asymmetric structure of the Belgian federal system:
in Flanders the institutions of the Flemish region and of the Flemish com-
munity are assimilated, although this is not the case for the French com-
munity and the Walloon region. But because of a lack of money the French
community has transferred powers to the Walloon region and the French
community commission of the Brussels Region. The result of the federal
system is a very high complexity of the structure of the Belgium state
(Deschouwer 2013, pp. 211–222; Deschouwer and Reuchamps 2013,
pp. 261–270).
2 WHISTLEBLOWING IN BELGIUM 13
1.2
Belgium and the Fight Against Corruption
The UNO, the Council of Europe, the European Union and the OECD
developed some instruments to avoid corruption. Belgium was party with
all these initiatives.
On 17 December 1997 Belgium signed the Convention on combating
bribery of foreign public officials in international business transactions.1 The
Ratification Act received royal approval on 9 June 1999.2 Belgium depos-
ited its ratification instrument with OECD on 27 July 1999. To meet the
requirements of this Convention, but also to modernise the Criminal
Code’s provisions on bribery, the Belgian Parliament adopted two Acts.
The first is the Bribery Prevention Act of 10 February 1999 which entered
into force on 3 April 1999.3 This Act amended in particular the provisions
contained in Title IV of the Criminal Code in Articles 246–252 of Chapter
IV on “The Bribery of Public Officials”. The second Act is that of 4 May
1999 Establishing the Criminal Liability of Legal Persons, which entered
into force on 3 August 1999. This Act established the criminal liability of
legal persons that are subject to the provisions of the Bribery Prevention
Act of 10 February 1999.
The main objectives of the amendments to the Criminal Code are
threefold.4 The first objective was to cover new offences contained in the
OECD Convention and not previously covered by Belgian legislation
(bribery of foreign public officials and international civil servants), as well
as other offences such as bribery of an applicant for a public function, trad-
ing in influence and private corruption. The second objective was to fill
some gaps in the field of sanctions, primarily by adapting penalties to
current penological trends higher minimum and maximum penalties for
sentences involving deprivation of liberty and for fines), by introducing
new administrative sanctions against public works contractors who engage
in bribery, and by amending the Income Tax Code to limit the tax deduct-
ibility of bribes. The third objective was to broaden the extraterritorial
jurisdiction of Belgian courts, in particular as regards bribery involving
1
http://www.olis.oecd.org/olis/1997doc.nsf/43bb6130e5e86e5fc12569fa005d004
c/5005eebd0c0be05880256754005d2ba0/$FILE/04E81240.ENG
2
Official Gazette, 20 November 1999, addendum, 26 March 2002.
3
Official Gazette, 23 March 1999.
4
Parliamentary documents, Chamber, 1997–1998, no. 1664/3, 3–8.
14 F. SCHRAM
foreign public officials.5 By this law the basic concepts were clarified, and
the terminology modernised. It enabled the receipt of bribes, trading
influence, corruption of candidates for public office, corruption of foreign
civil servants and of officials of international organisations and corruption
in the private sector to be made criminal acts. The Act also provides that
“secret commissions” may no longer be tax-deductible where they are
paid in connection with obtaining or retaining public procurement con-
tracts or administrative authorisations.6
Belgium ratified the Council of Europe Criminal Law Convention on
Corruption.7 The Ratification Bill was signed by the King on 19 February
2004.8 Belgium signed also on 7 March the Additional Protocol to the
Criminal Law Convention on Corruption9 and has ratified it on 26
February 2009. Belgium signed the Council of Europe Civil Law
Convention on Corruption10 on 8 June 2000 and has ratified it on 12
March 2007.
Belgium is also member of GRECO (Group of States against
Corruption). GRECO was conceived as a flexible and efficient follow-up
mechanism, called to monitor, through a process of mutual evaluation and
peer pressure, the observance of the Guiding Principles in the Fight against
Corruption and the implementation of international legal instruments
adopted in pursuance of the Program of Action against Corruption. Full
membership of the GRECO is reserved to those who participate fully in
the mutual evaluation process and accept to be evaluated. Belgium was the
fourth country to be evaluated in the first evaluation round of GRECO.11
5
OESO, Belgium—Phase 1 Bis: Report on Implementation on the OECD Anti-Bribery
Convention, Parijs, 2000, 21 p., http://www.oecd.org/dataoecd/13/7/2385130.pdf;
OESO, Steps taken and planned future actions by participating countries to implement the
Convention on combating bribery of foreign public officials in international business transac-
tions, Parijs, juni 2005, 7, http://www.oecd.org/dataoecd/50/33/1827022.pdf
6
Evaluation Report on Belgium adopted by the GRECO at its 4th Plenary Meeting
(12–15 December 2000), nr. 10, 4; http://www.greco.coe.int/evaluations/cycle1/
GrecoEval1Rep(2000)1E-Belgium.pdf
7
http://conventions.coe.int/Treaty/EN/Treaties/Html/173.htm
8
Official Gazette, 10 May 2004.
9
http://conventions.coe.int/Treaty/en/Treaties/Word/191.doc
10
http://conventions.coe.int/treaty/en/Treaties/Word/174.doc
11
Evaluation Report on Belgium adopted by the GRECO at its 4th Plenary Meeting
(12–15 December 2000), http://www.greco.coe.int/evaluations/cycle1/GrecoEval1Rep
(2000)1E-Belgium.pdf and Compliance Report on Belgium adopted by GRECO at its 14th
Plenary Meeting (Strasbourg, 7–11 July 2003).
Belgium was the tenth GRECO member to be examined in the Second

Evaluation Round.12
According to its Statute, the aim of the GRECO is to improve its mem-
bers’ capacity to fight corruption by monitoring the compliance of States
with their undertakings in this field. In this way, it will contribute to iden-
tifying deficiencies and insufficiencies of national mechanisms against cor-
ruption, and to prompting the necessary legislative, institutional and
practical reforms in order to better prevent and combat corruption.
GRECO is responsible, in particular, for monitoring observance of the
Guiding Principles for the Fight against Corruption and implementation
of the international legal instruments adopted in pursuit of the Program
of Action against Corruption (PAC).
Belgium has signed the United Nations Convention against Corruption13
on 10 December 2003 and has ratified it on 25 September 2008.
On the EU-level Belgium has signed, ratified14 and implemented the
first and second protocol to the Convention on the Protection of the Financial
Interests and the Convention on the fight against corruption involving offi-
cials of the European Communities or officials of the Member States of the
European Union.15
In the Criminal Code there were also special provisions against bribery
and abuse of power. The Code’s provisions on bribery, which dated already
from 1867 has not been substantially amended till the Bribery Prevention
Act of 10 February 1999. In the Criminal Code there was only a limit
vision on corruption. Corruption was limited to bribery in the public
sphere. From the Bribery Prevention Act of 12 February 1999, the con-
cept was extended also to the private sphere. Before that Act there were
several gaps in these provisions, especially as regards the facts and conduct
capable of being the subject of a criminal charge. In addition, the existence
12
Second Evaluation. Evaluation Report on Belgium adopted by GRECO at its 21st Plenary
Meeting (Strasbourg, 29 November—2 December 2004), http://www.greco.coe.int/evalu-
ations/cycle2/GrecoEval2Rep(2004)1E-Belgium.pdf
13
h t t p : / / w w w. u n o d c . o r g / p d f / c r i m e / c o n v e n t i o n _ c o r r u p t i o n / s i g n i n g /
Convention-e.pdf
14
Law of 17 February 2002, Official Gazette, 15 May 2002.
15
Council Act 97/C 195/01 of 26 May 1997 drawing up, on the basis of Article K.3 (2)
(c) of the Treaty on European Union, the Convention on the fight against corruption involv-
ing officials of the European Communities or officials of Member States of the European
Union, Official Journal C 195 of 25 June 1997 and the Second Protocol, Official Journal C
221/02 19 July 97.
16 F. SCHRAM
of a corruption pact had to be proved, which rendered prosecution diffi-

cult. Moreover, owing to their size, especially in the field of real estate,
major town-planning projects created conditions favourable to the growth
of corruption.16
1.3 Whistleblowing Legislations
From 2000 on, more attention was paid to the ethical behaviour of civil
servants as a correction mechanism of the introduction of the New Public
Management in the federal and Flemish administrations. Deontological
codes were worked out, values were made a priority, training sessions were
organised for civil servants. In the same movement, whistleblowing legal
frameworks were created first at a Flemish level in 2004 and later in 2013
at a federal level (Schram 2017, pp. 601–703).
Long before whistleblowing legal frameworks were worked out, all civil
servants and public officials already had the duty to report crimes they
come across during the fulfilment of their mandate to the Crown
Prosecutor (article 29 Criminal Procedure Law). In practice this article
remains irrelevant to the realities of malpractice in administration, regard-
less of whether the wrongdoing constitutes a crime or questionable
behaviour.
Both the Flemish and federal whistleblowing framework are worked
out on different levels, where the intention of the legislator is for report-
ing to be done first on the first level (the level of the proper administration
or internal audit17), secondly on a second level (the level of the Ombudsman
function). There is the possibility of going directly to the public prosecu-
tor when the irregularity is to be considered a crime (Table 2.1).
The Flemish whistleblowing framework is not to be found in one single
legal text: parts of it can be found in the Flemish Personal Statue (VPS),
in a protocol dated 4 July 2005 between the Flemish Ombudsman and the
16
Evaluation Report on Belgium adopted by the GRECO at its 4th Plenary Meeting (12–15
December 2000), nr. 7, p. 3, http://www.greco.coe.int/evaluations/cycle1/GrecoEval1Rep
(2000)1E-Belgium.pdf
17
Established in the Decision of the Flemish Government dated 8 September 2000 estab-
lishing and organising the functioning of the Internal Audit of the Ministry of the Flemish
Community entity, O.J. 24 October 2000. It was transformed into Audit Vlaanderen from 1
January 2014 by the Decree of 5 July 2013 (Audit Decree) and the Decision of the Flemish
government of 14 March 2014 concerning the establishment of the internal autonomous
agency “Audit Vlaanderen”, O.J. 1 April 2015, 20.019. Some articles are transposed to the
Administrative Decree of 7 December 2018, OJ 19 December 2018.
Table 2.1 Organisation of the channels in the Flemish whistleblowing system

Internal External
Inside the Inside the Autonomous Service Linked to the

Not
organisation administration audit function linked to the judicial power
linked
Legislator to the
public
sector
Hierarchy Spreekbuis Audit Ombudsman Article 29 Code Media
Vlaanderen Court of of Criminal
Audit Procedure
(Public
prosecutor)
Central Service
for the Combat
of Corruption
(Police)
Flemish Government regulating the protection of whistleblowers,18

between the Flemish Ombudsman and the Internal Audit Office and in
the Decree dated 7 July 1998 establishing the Flemish Office of the
Ombudsman.
The choice for The Flemish Ombudsman as a channel for whistleblow-
ing was not an obvious choice. The Choice of the Flemish Government
was essentially based on the wish of the Flemish Government not to create
new institutions (Schram 2005, p. 154).19 As justification for the choice it
was pointed out the independence of the Ombudsman Office and his con-
nection with the Flemish Parliament. According the Explanatory
Memorandum the Flemish Ombudsman has enough authority, expertise
and means to examine complaints from civil servants about irregularities.
Finally, the discretion with which the Ombudsman Service can deal with
such reports was cited as reason for this choice.
1.4 The Studied Case

The case studied is the most famous today and is situated within the
Flemish administration: the case of Rudy Aernoudt. Rudy Aernoudt was
18
At this moment replaced by the Protocol dated 9 May 2014 regulating the protection of
Whistleblowers, http://www.vlaamseombudsdienst.be/ombs/nl/nieuws/pdf/20140509_
klokkenluidersprotocol.pdf
19
Explanatory Memorandum, Parl. Doc. Vl.Parl. 2002–2003, nr. 1658/1, 3–4.
18 F. SCHRAM
Chief Economist of the European Commission and (Adjunct)-Chief of

Cabinet of the Walloon Minister of Economy Serge Kubla (1999–2003)
and of the federal (2003) and later Flemish (2004–2006) Minister of
Economy Fientje Moerman. In 2006 he became Secretary-general of the
Flemish Department of Economy, Science and Innovation.
As Secretary-general of the Flemish Department of Economy he dis-
tanced himself from the Flemish Minister of Economy, Science and
Innovation, whose chief of cabinet he had been (ita 2007). The problems
between the two people were not new. As Secretary-general he wrote a
note to his minister where he asked her cabinet to adopt the procedure
with regard to missions after the minister has made a voyage to Canada
that was extremely expressive. He labelled the unforeseen expenditure as
‘substantially out of proportion”. Aernoudt refused to budget for it and
pay the amounts. In response, the minister took the responsibility on the
budget travel expenses from him and he got the department of Foreign
Affairs (Department International Vlaanderen). There were problems
with a lot of consultancy contracts where the existing legislation was not
followed, and the Foundation Hercules was created against the advice of
several people.
He reformed the working of his department without the consent of the
other Secretary generals of the Flemish administration. His way of work-
ing created a lot of resistance. Internal Audit examined 28 complaints
against him, and the report was not favourable for him (svh 2007;
Tegenbos 2007). In December 2006 he filed a complaint with the Flemish
Ombudsman about unethical practices within the cabinet of the Minister
of Economy (De Standaard 2007). He received the protection that can be
given to whistle-blowers by the Flemish Ombudsman.
On 11 September 2007, before the final report of the Flemish
Ombudsman (Belga 2009a, b, c; wwi/svh 2007), an article was published
in the journal Le Soir, where Aernoudt heavily criticised the policy within
the Flemish government. He talks about the unnecessary creation of
structures only to nominate political friends and about giving contracts to
friendly experts. In the interview it was not clear if Aernoudt talked as a
private person or as secretariat-general of the department. At the same
time, a petition circulated on the internet calling for Aernoudt to be prime
minister (De Morgen, Internetpetitie wil Rudy Aernoudt als premier, De
Morgen 2007a).
These facts led to the dismissal with cause of Rudy Aernoudt by the
Flemish government (Belga 2007; rbo/wle. 2007). Aernoudt went to the
Labour Court of Brussels and he fought his resignation. The Labour

Court ruled in its judgment that the dismissal of Aernoudt was justified.
According to the Labour Court “does the freedom of thought and the free-
dom of expression, guaranteed by the Constitution not that it is forbidden for
a person to do prejudice to the authority and the good name of his employer,
the more we are talking about public figures.”20 The court also ruled that in
his capacity as Secretary general of a department of the Flemish adminis-
tration Aernoudt has the duty of restraint and discretion. The interview in
Le Soir was considered to be an infringement of these duties (Belga 2009a,
b, c; belga/vsv 2009; g.teg., svh 2009). The Labour Court considered
that he had behaved disloyally in relation to the Flemish Government and
that he had undeniably broken the trust of his employer, which justified
the dismissal as an urgent reason (Trends 2010).
Aernoudt went to appeal (Belga 2009a, b, c; belga/ka/sam 2009) and
in its judgement dated 3 September 2010, the Labour Court of Appeal of
decided in his favour.21 The Labour Court of Appeal ruled that Aernoudt
had not respected the deontological code of Flemish civil servants by not
making clear that he expressed his criticism of the Flemish government as
a private person, giving the impression that he expressed himself in his
capacity as Secretary General (belga/sps 2010; kld 2010). Then the Court
considered that the grounds for Aernoudt’s dismissal, namely the interview
and the petition “Aernoudt prime minister”, are not enough to proceed
with the weighty decision of dismissal: “The Flemish government had to
make a balance exercise if by this error immediately made the cooperation
impossible and in doing so, given the tense relationship between the Secretary
General Aernoudt and the minister Fientje Moerman (Open VLD), the court
decided not only to rely on the vision of the last one. The Flemish Government
could have obtained greater objectivity by hearing Mr Aernoudt and his point
of view more into consideration”, is explained in the judgement.22
The Court recognised that there was an infringement of the deonto-
logical code and agreed that a sanction was possible for this, but the
choice of a dismissal was disproportionate given the concrete circum-
stances. At the end the Court awarded him a termination payment, but
20
Labour Court of Brussels, 29 January 2009, nr. 1588/08, own translation.
21
Labour Court of Appeal Brussels, 3 September 2010, nr. 2009/AB/52094.
22
Labour Court of Appeal Brussels, 3 September 2010, nr. 2009/AB/52094, own
translation.
20 F. SCHRAM
his claim for compensation for damage to reputation was rejected (Het
Nieuwsblad 2010).
The Flemish Parliament had, on initial application of Filip Dewinter
(Vlaams Belang) asked for a screening as a reaction to the Moerman case.
In its report dated 17 July 2008, the Court of Audit confirmed the facts.
The Court of Audit examined the 68 consultancy assignments, worth 1.7
million euros, which the Flemish cabinets awarded between July 22, 2004,
the beginning of the Leterme I government (22 July 2004 to 26 July
2007) (which was succeeded by the Peters I government in July 2007),
and 31 December 2007. In his report dated 17 July 2008, the Court of
Audit showed that the Moerman-case was not an isolated case. At the
award of contracts bumped the trust relationship between the consultant
and the Minister more than once with the principle of competition. Apart
from the consultants, the cabinets paid 3 million euros to experts (Het
Laatste Nieuws 2008).
In 2011 it was made public that the Brussels Prosecutor’s Office
believed that criminal offences had been committed for the award of a
consultancy contract by the Cabinet of the Cabinet of former Flemish
Minister Fientje Moerman (De Morgen 2009). It prosecuted the consul-
tancy office and one of the policy advisors to Moerman, Guy Serraes
(Open VLD). According to the Public Prosecutor’s Office the award of
that contract was rigged and played the consultancy Office in collusion
with Serraes. There might even have been faked documents.
2 Analysis
The events in this case took place at high levels of government and had an
important political repercussion. It is one of the rare cases where whistle-
blowing has direct results because actions were taken almost immediately.
One specific thing about this case is that it is about a ministerial cabinet
in general and one minister in particular. In Belgium ministerial cabinets
plays a very dominant role in political life and this has been frequently
criticised. Ministerial cabinets are the personal collaborators of the Minister
and must be loyal to the political vision of the Minister and the political
party he or she is a member of. Cabinets monopolise all major policy
preparation tasks and form a parallel bureaucracy that duplicates the exec-
utive tasks of the administration. The pressure from the cabinets would
demotivate officials. Cabinets would further play a central role in the
politicisation of the civil service. Finally, the existence of cabinets forces

higher civil servants in a marginal position.
2.1 Type of Whistleblowing
Former Secretary General Aernoudt denounced unethical behaviour in
the cabinets of the Flemish ministers. He declared that consultancy con-
tracts were awarded to a limited group of friendly consultants with no
guarantee of quality for a considerable amount of money. Several channels
for whistleblowing are provided in the Flemish whistleblowing system.
The whistleblowing system was developed to prevent information about
irregularities being made public immediately. There are internal channels
(to the superior, to the internal audit office23) and external channels
(Flemish ombudsman, public prosecutor). In the case of Aernoudt it was
logical, he didn’t use the internal channels for two reasons. In the first
place he had no superior in the administration, and he couldn’t go to the
internal audit office because at that moment it wasn’t competent to do
audits within the ministerial cabinets. The only possibility was to use the
external channel of the Flemish Ombudsman. Contrary to the original
proposals it is possible to address the Flemish Ombudsman directly,
although in theory the whistleblower has first to address his complaint to
the administration or if this is not possible to address the internal
Audit office.
2.2 Role of Mass Media

Where in principal the whistleblowing system guarantees discretion, it was
Aernoudt himself who made the irregularities public in an interview in the
newspaper Le Soir. Other newspapers had picked up the story, but it was
in the first place the dismissal of Aernoudt himself and later of the minister
that made the news. Strangely enough the actions of the Flemish govern-
ment in reaction to the report of the Flemish Ombudsman did not receive
so much attention nor the corruption investigations by the judiciary
23
From 1 January 2013 there is also the possibility to use a unique hotline called Spreekbuis
that also can receive questions and notifications on integrity. It’s a frontoffice that redirects
to the right ‘backoffice’. Within Spreekbuis there is also room for guidance.
22 F. SCHRAM
system. Nevertheless, Aernoudt’s complaint was one of the most high-

profile files in the media that the Flemish Ombudsman Service ever had at
the time.
2.3 Documentation of Evidence
Aernoudt’s whistleblowing was primarily supported by the fact that he was
a former chief of cabinet who knew the internal working of the Flemish
cabinet very wells: he was a good witness. Also, the facts that were sued,
were not so difficult to be proven. The laws on public procurement are
very clear and if they are followed properly, available documentation must
back that up. The report of the Flemish Ombudsman (De Morgen 2007)
and of the Court of Audit showed clearly that there are big problems with
the Flemish cabinets. The Flemish Ombudsman states in its conclusions
that the regulation or at least the application of Article 8 of the Cabinet
decision and the reporting on the size and composition of the cabinets are
insufficiently transparent. According to him, there is a grey area around
the contracts for cabinets and that is counterproductive for the legitimacy
of the operation of ministerial cabinets. He gives seven recommendations.
Some of these related to the public procurement rules. The Flemish
Ombudsman says that the legislation should be applied correctly, also by
the cabinets. Minister Moerman has defended herself by saying that the
legislation does not apply to consulting contracts from cabinets to external
experts. But according to the Flemish Ombudsman, it is also the case
because they also work with public money and are also part of the Flemish
government. Cabinets should set an example, just because they are very
visible to the citizen. The recommendations go further than only applying
the law correctly. The practical handling and monitoring of public pro-
curement must be done more carefully. In these cases, case documents
were lost in the departure of a cabinet collaborator. The Flemish
Ombudsman recommended better archiving and handover process for
changes of staff in the cabinets. Also, mandatory reporting to the Flemish
Parliament can be improved further and made more complete (Flemish
Ombudservice 2008).
2.4 Retaliation
Aernoudt lost his position as secretary general. But as the result of the
report of the Flemish Ombudsman, his former minister Moerman must
leave office because of fraud, trickery and serving herself, her family and
friends with tax-payer’s money at a time when the Flemish government

presented itself as acting according to good governance (De Morgen 2007).
2.5 Legal Protection
The Flemish Ombudsman is the only actor in the Flemish whistleblowing
system that can provide protection for whistle-blowers. Elements of the
protection can be found in the VPS, the Ombuds decree and the protocol
between the Flemish government and the Flemish Ombudsman.
According to the VPS, a whistleblower cannot be subjected to a disci-
plinary sanction or another administrative measure, within 2 years after he
has asked for protection. The government must prove that when it takes a
disciplinary sanction it is not because of the whistleblowing (VPS, § 1,
Article II.4).
The protocol specifies that in case of a disciplinary sanction, this must
be immediately suspended. In the meantime, the Ombudsman examines if
that procedure or measure is related to the whistleblowing. In both cases
the measure can be continued if it turns out that it is not related to the
whistleblowing. If there is a relation, the Flemish Ombudsman recom-
mends that the measure has to be reviewed or that the disciplinary proce-
dure must be completed. This is only a recommendation and the
administration can choose not to follow it. In that case the Flemish
Ombudsman will report to the minister who is responsible for the general
policy relating to human resources and to the functional competent
minister.
Another aspect of protection is the secrecy of the whistle-blower’s iden-
tity. Originally, that was a weak point in the protection. In principle when
protection was given, the name of the whistleblower had to be given to
the administration immediately. This point has already been criticised
along with the elaboration of the whistleblowing system (Schram 2005).
In 2012 the Ombuds decree was changed so that the Flemish Ombudsman
does not have to disclose the identity of the whistleblower when he starts
with his investigation.24
Also, now a civil servant can be reemployed in another administration.
24
Decree of the Flemish Parliament of 9 November 2012 relating to changing the decree
of 7 July 1998 establishing the Flemish Office of the Ombudsman, Official Journal 7
December 2012.
24 F. SCHRAM
The protection is not an option in cases where one aims to benefit per-
sonally from the message or when it is in bad faith. It is also excluded in
case of false reporting.
2.6 Impact and Resulting Reforms

In the end, Aernoudt’s whistleblowing resulted in structural and organisa-
tional changes in the cabinets of the members of the Flemish Government.
It also affected the entire administration, because the administration
became fully responsible for public procurement and not the cabinets. The
irregularities were not necessary completely ended, but considerable guar-
antees were built into the system to prevent them.
The fact that a Minister had to leave office was also a clear signal for the
other ministers.
On 19 October 2007, the Flemish Government converted the recom-
mendations of the Flemish Ombudsman into a number of concrete mea-
sures and intentions. Some measures had already been decided, but some are
now put under scrutiny. Others are new (De Gendt and De Maesschalck 2008).
1. No use of external consultants for the cabinet

New • Starting from 1 January 2008 no cabinets may use exter-
nal consultants. If a minister needs an expert, then he must recruit a
regular staff member. Current contracts are retained but are
not renewed.
New • Each year, the Flemish Government has to give a list of all
members of staff on the cabinets and on study assignments to the
Flemish Parliament.
2. To better follow up the law on public procurement
Decided Earlier • Monitoring of the correct application of the
law on public procurement should be strengthened. That is a task
for the inspection of finances, the controllers of commitments, the
authorising officers, the Court of Audit and file handlers in the
administration itself.
Decided Earlier • All new level A staff members must undergo an
initiation training course on public procurement. Anyone who must
officially unsubscribe and award public contracts, should follow an
advanced course.
New and to Develop Further • The administrative preparation to
write a service contract and award it should not happen completely
within a Cabinet. It must be done by competent civil servants of the
departments.
New and to Develop Further • Cabinet members may only be

members of a jury in public procurement in an advisory capacity.
They may not sign award reports anymore.
3. Better organisation of the cabinets
New • The internal control of a cabinet will be tightened. So, the
person who places an order, will no longer be the same as the person
who pays the order, and there will be a different person to monitor
a file where someone is occupied.
New • When a cabinet member is absent for a long period or
leaves the cabinet, the cabinet secretary is responsible for tracking,
classifying and archiving the files, so that no more pieces can be lost.
4. New task of internal Audit
New and to Develop Further • The Internal Audit of the Flemish
Administration (IAVA)25 can now also execute forensic audits of the
cabinets. That means they can conduct an administrative inquiry in
order to establish whether the regulation has been followed in finan-
cial or legal disputes or irregularities. Such an administrative investi-
gation of a cabinet can only be requested by the Prime Minister or
the Flemish Government.
New and to Develop Further • After the administrative inquiry,
IAVA shall provide a report to the applicant of the command, to the
members of the Audit Committee and to the Court of Audit. If the
examination shows that there are potential offences, the
administrator-general of IAVA informs the public prosecutor.
5. Deontological code for cabinet collaborators
New and to Develop Further • There will be a code of ethics for cabi-
net appointees. The code will contain rules of conduct on the right
to speak and duty to speak, honesty, consumer focus, objectivity,
economic management of resources, avoiding conflicts of interest
and the non-use of prior knowledge.26
To sum up, See below a summary table of the case (Table 2.2) and an
effectiveness indicators table of the case (Table 2.3).
25
IAVA was reformed into the Agency Audit Flanders on 1 January 2014, an internal
autonomous agency without legal personality. Decision of the Flemish Government of 18
October 2013 establishing of the internal autonomous Agency “Audit Flanders” and chang-
ing different decisions, O.J. 28 November 2013, 92.203.
26
See: Internal order VR 2007/40: Deontological code for staff members of the cabinets
of the members of the Flemish Government: Omzendbrief VR 2007/40: Deontologische
code voor de personeelsleden van de kabinetten van de leden van de Vlaamse Regering,
http://vademecum.vandenbroele.be/entity.aspx?id=106
26 F. SCHRAM
Table 2.2 Summary table of the case
Initial Charges by secretary general of unethical behaviour in the cabinets of

whistleblowing the Minister of the Flemish Government and especially in the cabinet
of the Minister of Economy and Innovation
Resulting reforms Better oversight of the cabinets’ work
Type of External:
whistleblowing - Flemish Ombudsman
- Interview in newspaper
Role of mass The mass media created an external pressure not only because of the
media facts, but also because the whistle-blower was dismissed and because
the Flemish parliament exerted pressure on the minister because of
her ministerial responsibility.
Documentation The Flemish Ombudsman and the court of audit have access to all
of evidence documents and could also talk to every person to collect evidence of
what had gone wrong.
Retaliation Whistle-blower lost his job.
Legal protection Protection from the Flemish Ombudsman, although that seemed not
to be effective. Certainly, the trust between a high-ranking civil
servant and his minister is essential. When that trust is not there
anymore, dismissal is unavoidable, although a fair procedure must be
followed.
Table 2.3 Effectiveness indicators of the case

Indicators Belgium—Flanders
Reforms of Minister must leave office—Development of deontological codes

wrongdoing from direct collaborators of the ministers—Stronger
organizational management and audit function
External Through interview in newspaper—To complaint to Flemish
whistleblowing Ombudsman
Extensive mass media The whistleblower has searched the press and the case received a
coverage lot of attention in press and other media.
Strong evidence Control of documents by the Flemish Ombudsman and the court
of audit
Legal protection Strong whistleblower protection system, but weak in reality
against retaliation
3 Conclusion
The most important element for protection is that the identity of the whis-
tle Although we did not carry out thorough research into every whistle-
blowing case in the Flemish administration and government, it seems that
whistleblowers who had a high position tend to be more effective in
changing organisational practices. But whistleblowers at a high level in
administration also experience more extensive retaliation than whistle-
blowers at lower levels, although whistleblowing is also very risky for them
because it will considerably change their lives. In practice, patterns of
retaliation by management against the whistleblower do not vary depend-
ing on whether the whistleblower reports internally or externally. We must
stress that only the Flemish Ombudsman can provide legal protection and
it is not clear how this protection can be enforced before the courts.
In this case the objective evidence (documents) was extremely impor-
tant for the success of whistleblowing in a fraud case. Convincing evidence
is an important indicator. In this case the Flemish government has taken
action very quickly. The question is, however, whether these measures
have also really changed the culture. In any case, protection of the whistle-
blower does not seem to be easy to achieve, even when it is the administra-
tion and government that has to give reasons that measures, or procedures
taken against a whistle-blower found has nothing to do with the
whistleblowing.
For that reason, the number of whistleblowers is low even though there
is a legal framework with a protection dimension and there are proper
channels to whistleblower is not revealed.
A very important aspect of a well-functioning whistleblower system is
the fact that the institutions that examine the complaint have the capacity
to do that. Therefore, a lot of reservation can be made for the Ombudsman
function. It is not because the Ombudsman is competent with normal
complaints, that the Ombuds office is also competent in practice dealing
with whistle-blower complaints. There is need for specific knowledge and
competences that were not available within the Ombuds services.
Therefore, the Flemish Ombudsman has made a Protocol with Internal
Audit. In practice, the Flemish Ombudsman relies very heavily on the
research capacity of Internal Audit. In my view the two must be separated
and in both cases, lead to an independent examination. The Federal
28 F. SCHRAM
Ombudsman has hired someone specially for forensic audits to solve the
problem. Both Ombudsmen have defended the choice for their office by
saying that they have the capacity although this was not the case. In the
Aernoudt case the examination did not cause problems due to the media
attention and the necessary means were made available.
References
Belga. (2007, September 16). Vlaamse regering ontslaat topambtenaar Rudy
Aernoudt. De Standaard.
Belga. (2009a, January 29). Aernoudt krijgt ongelijk in zaak tegen ontslag.
Belga. (2009b, October/2007). Ombudsman heeft onderzoek klacht Aernoudt
afgerond. De Standaard.
Belga. (2009c, January 31). Rudy Aernoudt gaat in beroep in zaak rond ontslag.
De Standaard.
belga/ka/sam. (2009, February 1). Rudy Aernoudt gaat in beroep in zaak rond
ontslag. De Morgen.
belga/sps. (2010, September 7). Ontslag Aernoudt als Vlaams topambtenaar niet
gewettigd. De Morgen.
belga/vsv. (2009, January 29). Ex-topambtenaar Aernoudt krijgt ongelijk in ont-
slagzaak. De Morgen.
De Gendt, M., & De Maesschalck, F. (2008, juli 15). Blikvanger: Vlaamse
Ombudsdienst. ‘Kabinetten moeten het goede voorbeeld geven’. Dertien, 3(11).
De Morgen. (2007a, September 10). Internetpetitie wil Rudy Aernoudt als pre-
mier. De Morgen.
De Morgen. (2007b, October 10). Moerman neemt ontslag na kritisch rapport
ombudsman. De Morgen.
De Morgen. (2007c, September 17). Ombudsman bevestigt wanpraktijken
cabinet-Moerman. De Morgen.
De Morgen. (2009, December 23). Huiszoeking in zaak-Moerman. De Morgen.
De Standaard. (2007, September 18). Moerman wil snel 'volledige klaarheid
scheppen'. De Standaard.
Deschouwer, K. (2013). The Belgian federation. A labyrinth state. In W. Swenden,
J. Loughlin, & J. Kincaid (Eds.), Routledge handbook on regionalism and feder-
alism (pp. 211–222). London: Routledge.
Deschouwer, K., & Reuchamps, M. (2013). The Belgian federation at a crossroad.
Regional and Federal Studies 2013, 23(3), 261–270.
Flemish Ombudservice. (2008). Year report 2007. Brussels: Flemish Ombudservice.
g.teg., svh. (2009, January 29). Aernoudt krijgt ongelijk voor rechtbank.
Het Laatste Nieuws. (2008, July 17). Het Laatste Nieuws.
Het Nieuwsblad. (2010, September 7). Ontslag Aernoudt als topambtenaar was
ongewettigd. Nieuwsblad.
ita. (2007, April 25). Van man achter de schermen tot bekende Belg. De Standaard.
kld. (2010, September 7). Ontslag Aernoudt als topambtenaar was ongewettigd.
De Standaard.
rbo/wle. (2007, September 16). Vlaamse regering zet Rudy Aernoudt aan de
deur. De Standaard.
Schram, F. (2005). Integriteitsbeleid en klokkenluiders in het Vlaamse gewest.
Burger, Bestuur & Beleid, 2(2), 146–162.
Schram, F. (2017). Zwijgen en spreken binnen een overheidscontext. Een verhaal van
spreekrechten, spreekplichten, zwijgrechten en zwijgplichten. Brussels: Polteia.
svh. (2007, September 18). 'Interne audit’ naar functioneren departement
Aernoudt. De Standaard.
Tegenbos, G. (2007, September 25). Interne audit scherp voor Aernoudt. De
Standaard.
Transparency International. (2020). Corruption perceptions index 2019. Opgehaald
van Transparency International. The global coalition against corruption.
https://www.transparency.org/cpi2018
Trends. (2010, Septembre 7). Exclusif: Rudy Aernoudt gagne en appel contre la
Flandre. Trends.
Vlaamse regering ontslaat Rudy Aernoudt. (2007, September 16). De Morgen.
wwi/svh. (2007, October 9). Ombudsman verwijt Fientje Moerman onbehoor-
lijk bestuur.
CHAPTER 3
Whistleblowing in Brazil
Carmen R. Apaza
Abstract Apaza analyzes the Odebrecht corruption scandal that is glob-

ally considered as one of the biggest corruption case in history because it
has been causing strong political and economic repercussions not only in
Brazil but also in many Latin American countries. This corruption scheme
was uncovered by Operation Car Wash (Lava Jato in Portuguese) in
2014. The Lava Jato operation arouse as a result of an investigation of
money laundering initiated in 2008 when Hermes Freitas Magnus blew
the whistle on money laundering committed by a network of politicians,
public officials and money launderers. The investigations not only checked
the validity of the whistleblowing but also led (and still is leading) to the
uncovering of the big corruption network including the political and busi-
ness elite not only in Brazil but also in many other countries.
Keywords Odebrecht • Corruption • Brazil • Lava Jato • Hermes

Freitas Magnus • Whistleblowing
C. R. Apaza (*)
Universidad Privada Norbert Wiener, Lima, Peru

https://doi.org/10.1007/978-3-030-40200-6_3
32 C. R. APAZA
1 Introduction
In recent times in Brazil the most significant case of corruption, involving
both the public and the private sector, is undoubtedly the case of
Odebrecht, which has been deeply investigated and punished due to whis-
tleblowing mechanisms. The case initiated in 2008 when Hermes Freitas
Magnus, a businessman owner at that time of a small company, thought
that his company was being used by a network of politicians, public offi-
cials and money launderers to launder money, and so he immediately com-
municated this to the Federal Police.
After receiving all documents of Magnus’ denunciation, investigators
managed the investigations as an ordinary one. Hence it took almost six
years until they decided to intervene through the Lava Jato operation. The
operation uncovered a complex corruption network that included elite
politicians and the largest Construction Company in Brazil, Odebrecht.
The investigations also revealed the weakness of the anticorruption sys-
tem, which facilitated the endemic public corruption in the country.
According to Transparency International, Brazil has a rank of 35 on a
scale of 0 (very corrupt) and 100 (very clean). In previous indexes Brazil
obtained similar low scores.1 These low scores may have been explained by
the critical corruption situation in the public and private sector of the
country. Nevertheless, Brazil is making efforts to fight corruption and
money laundering especially in the aftermath of this whistleblowing case
as described and analyzed below.
2 Description of the Case

The Odebrecht scandal that has been causing a political earthquake in
Brazil and in many Latin American countries was uncovered by the Lava
Jato operation as mentioned above. But investigators would not have been
able to uncover the corruption scheme if they would not have had relevant
information about the wrongdoing. This information was given by a
whistleblower that couldn’t imagine the great repercussion his whistle-
blowing would have.
1
Transparency International. Corruption Perceptions Index 2018.
3 WHISTLEBLOWING IN BRAZIL 33
2.1 Socio-Political and Legal Context of the Case
Socio-Political Context
Brazil boasts a diverse economy with strong energy, metal and agricultural
industries. It has a vibrant democracy with strong constitutionally guaran-
teed civil rights allowing the press to vigorously report on government
performance and controversies. However, media ownership is highly con-
centrated and is often biased to the interests of their owners. For instance,
a local newspaper in the state of Parana published in 2016 a list of judges,
prosecutors and civil servants earning more than the legal maximum salary
leading to 37 lawsuits against the newspaper initiated by judges and public
prosecutors.2
At the political level, at the time of the whistleblowing 2008, President
Luiz Inácio Lula da Silva was in charge. He was elected in 2003 and con-
tinued for two consecutive periods until 2010. His government imple-
mented popular social programs such as the Bolsa Familia aimed at
providing financial aid to impoverished Brazilian families. Hence the over-
all outlook for Brazil in 2008 was positive.3 But, there was a myth that
corruption was systemized in Lula’s administration,4 which was finally
uncovered by the Lava Jato operation.
Legal Context
Brazil is a signatory to the OECD Anti-Bribery Convention and the
United Nations Convention Against Corruption (UNCAC). The country
has a set of good anticorruption laws. For instance, the Clean Company
Act (Law No. 12,846) is one of the toughest anticorruption laws in the
world, but its enforcement is inconsistent. The Act holds companies
responsible for the corrupt acts of their employees.5 Moreover, the Act
establishes that giving gifts is illegal and uncommon when doing business
and establishing relationships. Likewise, under the Act, bid rigging and
fraud in public procurement, direct and indirect acts of bribery, and
attempted bribery of Brazilian public officials and of foreign public offi-
cials are illegal.6
2
GAN Business Anticorruption Portal. Brazil Corruption Report. Civil Society.
3
Americas Society—Council of the Americas. February 19, 2008.
4
Nacla—Reporting on the Americas since 1067. June 17, 2019.
5
The Clean Company Act (Law No. 12,846), Article 3.
6
The Clean Company Act (Law No. 12,846), Article 5
34 C. R. APAZA
The Criminal Code (Decree-Law No. 2.848 as amended up to Law

No. 12.234) contains provisions establishing penalties for misconduct,
such as embezzlement of public funds, extortion, public graft, breach of
public duty, passive and active bribery, bribery in international business
transactions and violation of confidentiality of an offer tendered in com-
petitive bidding.7
Whistleblower protection is minimal. For instance, standard protection
to witnesses is provided in the criminal law and in other laws, such as the
law on civil service, access to information and the anticorruption law. They
make references to the obligation of civil servants to report corruption
and irregularities and to the role of companies in encouraging the report-
ing of irregularities internally.8 Nevertheless, as in other Latin American
countries, Brazil still lacks a law that protects whistleblowers from retalia-
tion and ensures that the information disclosed will be dealt with
confidentially.
The judiciary in Brazil is formally largely independent, but is hampered
by corruption and limited capacity. Companies operating in Brazil are
most likely to encounter corruption at local levels of the judiciary. The
Brazilian judiciary is heavily overburdened and bureaucratic, leading to
lengthy processes and a backlog of unheard cases.9 The Supreme Court, as
well as state and federal courts, is overloaded with cases and decisions that
can take many years, especially because procedural rules allow for numer-
ous appeals.10
Within this socio-political and legal context, the whistle was blown and
the following investigations uncovered the endemic corruption scheme
in Brazil.
2.2 The Whistle Is Blown

In 2008 Hermes Freitas Magnus, a businessman and owner of a modest
company, anonymously denounced a corruption scheme to judge Sergio
Moro. “Someone gave me judge Sergio Moro’s email and so I sent him all
7
Criminal Code (Decree-Law No. 2.848 of December 7, 1940, as amended up to Law
No. 12.234 of May 5, 2010)
8
Transparency International. Anticorruption Helpdesk. Brazil: Overview of Corruption
and Anticorruption.
9
GAN Business Anticorruption Portal. Brazil Corruption Report. Judicial System.
10
Transparency International. Anticorruption Helpdesk. Brazil: Overview of Corruption
and Anticorruption. Judiciary
the information. He answered me quickly saying “It is not I whom you

should denounce this but thank you for all the information. I will send the
denunciation to the competing police authorities,” he revealed in an
exclusive Internet interview to Bom Dia Brasil.11 The case then was sent to
Federal Police and also to the Public Prosecutor’s Office in Londrina,
State of Parana, Brazil, for the corresponding investigations. He denounced
that former Federal Congressman and businessman Jose Janene and
Alberto Youssef, a money launderer, were attempting to launder money in
his company Dunel Industria & Comércio. To support his denunciation
Magnus sent documents and messages to police investigators in an anony-
mous way.
In 2008 Magnus was searching investors for his company. He needed
money to invest in expensive equipment. In this process he met Janene, a
possible investor who had an investing company called CSA Project
Finance (in reality it was a front for a money laundering network12). They
both agreed to meet at a café in a luxurious hotel in Sao Paulo, next to the
building of CSA Project Finance. They had a number of business meet-
ings, and in this process, Magnus found that Janene used the CSA to
launder money (about 1.16 million Brazilian reals monthly13). Moreover
he discovered that Janene and Youssef used the CSA to make business
with Petrobras (Brazil’s state-run oil company), where they had a partner,
Paulo Roberto Costa, then Director of Provision between 2004 and
2012.14 Magnus met all these people at the CSA building. At the begin-
ning he did not have any idea about the illegal business they were involved.
He didn’t even know that Janene was a Federal politician.15
Magnus had three meetings with Paulo Roberto Costa in the CSA. After
those meetings, Janene offered to invest one million Brazilian reals (about
US$ 243,000) in Magnus’ company Dunel Industria & Comércio. But
Magnus perceived that Janene and Youssef wanted to use his company to
launder money. “During the time they invested in my company. They did
nor make any deposi/paymentt through a bank; only cash money.”16
Moreover, one day when he went to pay at CSA, he saw they were fill-
ing money into a Mitsubishi L200. “The money moved freely at the
11
Bom Dia Brasil, April 13, 2017.
12
Brazil 247. January 29, 2015.
13
Veja, August 22, 2014.
14
Estadao. October 14, 2014.
15
16
Bom Dia Brasil, April 13, 2017.
36 C. R. APAZA
CSA. They paid politicians, who made a line to receive money.”17

Furthermore, during the meetings with Janene, Magnus heard suspicious
conversations that led him realize that they were actually laundering
money and that they were trying to use his company to this end.
The Federal Police and the Public Prosecutor’s Office’s investigations
led to the identification of four criminal groups led by Alberto Youssef,
Carlos Habib Chater, Nelma Mitsue Penasso Kodama y Raul
Henrique Srour.18
At the end of 2008, Enivaldo Quadrado, a Janene’s operator, was
arrested in the International Airport of Sao Paulo when he was attempting
to leave the country carrying 361,400 euros. According to Magnus the
money was for Janene’s wife who was in Portugal.19 Enivaldo’s arrest was
the first sign that the investigations were progressing. But this was just the
beginning.
2.3 Investigations
After the whistle was blown the Federal Police and the Public Prosecutor’s
Office initiated investigations leading to the arrest of Enivaldo Quadrado,
a Janene’s operator, by the end of 2008.
During 2011 and 2012 the federal court authorized precautionary
measures, telephone and emails interceptions. With these measures they
could learn the modus operandi of Janene and Youssef and their link with
Paulo Roberto Costa, former Director of Provision of Petrobras.
In July 2013, investigations were intensified. Youssef, expert in laun-
dering money, was a key piece to uncovering at that time thought a mod-
erate money laundering. But no operation was executed at that time. The
big intervention was executed in 2014.
In March 2014, Brazilian officials from the Federal Police, the Public
Prosecutor’s Office and the judiciary decided to conduct the first big
operation called Lava Jato (car wash). Hence, they intervened a gas station
that had a currency exchange office, where Janene and Youssef, denounced
by whistleblower Magnus, allegedly laundered money. The operation
found evidence confirming those allegations. For instance, in the compa-
ny’s computers, officials found an email revealing that Alberto Youssef had
17
18
Diario La República, March 17, 2019.
19
bought an unexplained gift of a Land Rover for Paulo Roberto da Costa,

at that time Director of Provision at Petrobras. Hence, Youssef was
arrested, and after many interrogations, it was revealed that the two Latin
American construction giants (i.e. Odebrecht and Andrade Gutierrez) had
formed a “construction club” to get millionaires construction contracts
with Petrobras in exchange of the payment of expensive kickbacks to
Petrobras’ high-level officials. Investigators found that Marcelo Odebrecht,
CEO of Odebrecht, had founded that corruption scheme that included
high-level government officials linked to the former Brazilian President
Luiz Inácio Lula da Silva.
Overall the Lava Jato operation resulted in the intervention of about 30
people who were put into jail, including Alberto Youssef and the former
Petrobras executive Paulo Roberto Costa. They signed plea-bargain agree-
ment in order to reduce their years in prison. Their confessions involved
high-level Brazilian politicians including former presidents Fernando
Henrique Cardoso, Luiz Inácio Lula da Silva, Fernando Collor de Mello
and Dilma Rousseff.20
On June 19, 2015, Brazilian officials arrested Odebrecht and nine of
his employees. They also arrested the CEO of Andrade Gutierrez, alleging
they both helped to mastermind a cartel that stole billions of dollars from
state-run oil company Petrobras with the help of corrupt politicians to
whom they paid kickbacks.21 They both were involved in the development
of stadiums and infrastructure for the 2016 Olympics in Rio de Janeiro. A
month before the arrest Brazilian prosecutors had opened a preliminary
probe into former Brazilian President Luiz Inácio Lula da Silva for influ-
ence peddling (a crime in Brazil). They were investigating allegations that
Mr. da Silva helped Odebrecht win contracts in Cuba and Angola, among
other countries. However, Mr. da Silva denied any involvement in the
alleged scheme.22
In 2016 Odebrecht and other company executives agreed to sign deals
with Brazilian investigators, agreeing to confess to corruption and to iden-
tify corrupt officials in exchange for shorter prison sentences. Hence, on
December 1, 2016, Odebrecht signed a plea-bargain agreement.23 He
then revealed the names of high-level politicians to whom he had paid very
20
Notimérica, March 17, 2017.
21
The Wall Street Journal, June 19, 2015
22
The Wall Street Journal, June 19, 2015.
23
The Wall Street Journal, December 1, 2016.
Another random document with
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A SMALL HOUSEBOAT
ON THE
YANGTZE KIANG.
If China cannot boast of its roads, it may claim to be a country of

waterways, rivers and canals forming the chief means of
communication. The country being so large, travellers have to spend
much time in going from place to place, and living accommodation
has to be provided on the boats. It is very rough. The illustration
gives a good specimen of a small boat which may be hired for a
journey. The mat roof is placed over the open part at night. In the
daytime this space is occupied by the rowers. In the night they roll
themselves up in their wadded quilts and sleep there. In China there
is no privacy, but much curiosity. No part of your boat, although you
have hired it, is sacred to you; the boatmen pass in and out of what
you may regard as your cabin without consideration for you. Mrs.
Bishop put up curtains around her cabin to shut out prying eyes, and
as far as they could the people respected her evident desire to be
alone.
A SMALL HOUSEBOAT
ON THE
YANGTZE KIANG
A FOOT BOAT FOUND
IN CENTRAL CHINA.
The oars are worked by the feet instead of the arms. The sides of
this one are beautifully carved and lacquered, and protection from
the sun and rain is provided by a roof of mats, the universal form of
shelter and protection on the water.
A FOOT BOAT FOUND
IN CENTRAL CHINA
HSIN TAN RAPID
ON THE
YANGTZE RIVER.
The rapids on the river give rise to a considerable amount of

occupation for men called Trackers, whose occupation is the
dragging of boats up-stream through the wild and dangerous waters
of the rapids. These men live in huts on the river banks as close to
the water’s edge as possible. A group of their huts is to be seen on
the left of the picture, and on the extreme left, almost too small to be
visible, are four hundred trackers dragging up a boat. At the top and
foot of every rapid on the Yangtze are to be found one or more Red
Lifeboats, which are most efficiently and admirably manned and
maintained at the cost of Benevolent Guilds—one of the many
charitable guilds in the country—for the purpose of assisting the
crews of boats which get into difficulties. Boats are frequently
wrecked in their passage, and the Red Lifeboat has saved the lives
of many foreigners in the accidents attendant upon their passage of
the Rapids.
HSIN TAN RAPID
ON THE
YANGTZE RIVER
A BOAT ON THE MIN
RIVER, USED FOR
RUNNING THE RAPIDS.
The Min River, called also the Fu, is a western tributary of the Upper
Yangtze, but a great river in itself. Of the boat’s four sails the lowest
is of bamboo, and is let down at night to protect the boatman and his
family. The feature of the boat is its high prow, for protection against
the rocks and rushing water.
A BOAT ON THE MIN
RIVER, USED FOR
RUNNING THE RAPIDS
PART OF A FRINGE
OF JUNKS OR RIVER BOATS
AT WAN HSIEN.
Illustrating the enormous traffic on the Yangtze. This fringe of

boats, closely packed, extends for two miles along the river bank,
and is an evidence of the great trade and prosperity of Wan Hsien.
PART OF A FRINGE
OF JUNKS OR RIVER BOATS
AT WAN HSIEN
THE BRIDGE OF
TEN THOUSAND AGES,
FOOCHOW.
A country of waterways must be a country of bridges, but the

beauty of the bridges in China is quite a surprise to the traveller. The
straight bridge of the illustration given here is built upon enormously
solid piers, which are often monoliths. The roadway is constructed of
single blocks thirty feet long. The balustrade, as well as the roadway,
is solid stone. This is the oldest form of bridge in the country, and the
bridge in the picture is one of the oldest bridges.
THE BRIDGE OF
TEN THOUSAND AGES,
FOOCHOW
A BRIDGE AT WAN HSIEN
OF THE
SINGLE ARCH TYPE.
One enters almost every town or village, when travelling by water,

under a bridge of one arch, which may be anything from fifteen to
thirty feet high and of a most graceful form. These bridges are
constructed of blocks of granite cut to the curve of the bridge, and a
flight of steps leads to the crown of the arch. In the illustration the
steps are clearly shown leading to the house at the top. A most
graceful and beautiful bridge.
A BRIDGE AT WAN HSIEN
OF THE
SINGLE ARCH TYPE

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Global Comparative Studies From The

What Makes Effective

ISBN 978-3-030-40199-3 ISBN 978-3-030-40200-6 (eBook)

Cover illustration: Pattern © Melisa Hasan

1 Effective Whistleblowing Conceptual Framework 1

5 Whistleblowing in Japan: The Case of Masaharu Hamada 71

6 Whistleblowing in the Philippines 87

7 Summary and Conclusions101

Table 2.1 Organisation of the channels in the Flemish whistleblowing

In recent years whistleblowing has been crucial to uncovering corruption

benchmarks for reform. Based on the results, it suggests improvements in

Effective Whistleblowing Conceptual

Carmen R. Apaza and Yongjin Chang

Abstract Apaza and Chang develop an analysis framework for effective

Keywords Framework • Effective • Whistleblowing • Legal

© The Author(s) 2020 1

Whistleblowing is a crucial mechanism in the fight against corruption. It

1 Effective Whistleblowing

1. Type of whistleblowing (Internal and External Whistleblowing)

effective than the internal one (Rothschild and Miethe’s 1999;

Usually, a legal protection system for whistleblowers reduces the

whistleblowers whether to blow or not the whistle (Chang et al. 2017;

Case analysis enables scholars to build concepts and theories of public

Cassematis, P., & Wortley, R. (2013). Prediction of whistleblowing or non-­

Jos, P. H. (1991). The nature and limits of the Whistleblower's contribution to

Abstract In recent years a whistleblowing legislation in the public sec-

Keywords Whistleblowing legislation • Belgium • Public sector •

1.1 Belgium, a Federal State

Belgium was the tenth GRECO member to be examined in the Second

of a corruption pact had to be proved, which rendered prosecution diffi-

Table 2.1 Organisation of the channels in the Flemish whistleblowing system

Inside the Inside the Autonomous Service Linked to the

Flemish Government regulating the protection of whistleblowers,18

1.4 The Studied Case

Chief Economist of the European Commission and (Adjunct)-Chief of

Labour Court of Brussels and he fought his resignation. The Labour

politicisation of the civil service. Finally, the existence of cabinets forces

2.2 Role of Mass Media

system. Nevertheless, Aernoudt’s complaint was one of the most high-

friends with tax-payer’s money at a time when the Flemish government

2.6 Impact and Resulting Reforms

1. No use of external consultants for the cabinet

New and to Develop Further • Cabinet members may only be

Table 2.2 Summary table of the case

Initial Charges by secretary general of unethical behaviour in the cabinets of

Table 2.3 Effectiveness indicators of the case

Reforms of Minister must leave office—Development of deontological codes

Abstract Apaza analyzes the Odebrecht corruption scandal that is glob-

Keywords Odebrecht • Corruption • Brazil • Lava Jato • Hermes

© The Author(s) 2020 31

2 Description of the Case

2.1 Socio-Political and Legal Context of the Case

The Criminal Code (Decree-Law No. 2.848 as amended up to Law

2.2 The Whistle Is Blown

the information. He answered me quickly saying “It is not I whom you

CSA. They paid politicians, who made a line to receive money.”17

bought an unexplained gift of a Land Rover for Paulo Roberto da Costa,

If China cannot boast of its roads, it may claim to be a country of

The rapids on the river give rise to a considerable amount of

Illustrating the enormous traffic on the Yangtze. This fringe of

A country of waterways must be a country of bridges, but the

One enters almost every town or village, when travelling by water,

1 Effective Whistleblowing Conceptual Framework 1

5 Whistleblowing in Japan: The Case of Masaharu Hamada 71

6 Whistleblowing in the Philippines 87

7 Summary and Conclusions101

Table 2.1 Organisation of the channels in the Flemish whistleblowing

Cassematis, P., & Wortley, R. (2013). Prediction of whistleblowing or non-