For the deniers of anonymous reporting, it does not matter what is reported, however serious it may be. It matters who denounces, because knowing who the complainant has been, the facts are covered. They want to know who is reporting because in this way the complainant is pressured, discredited and re-apprehended, or accused of falsehood. The message is: find a lawyer to defend you, you will find out. This is what we comment on too many occasions in the Valencian Anti-Fraud Agency.
The whistleblower is denounced for breaking the law of silence, for safeguarding the interest of all, for defending ourselves against fraud, irregularities and corruption.
The deniers reject the anonymous complaint, although it is provided for in the special legislation and is applied by the jurisprudence that expresses the evolution in the application of the laws adapting the right to the demands and social realities.
The Tributaria Agency and the Labour and Social Security Inspectorate, to give two examples, recognize anonymous reporting in Spain, as this is, for obvious reasons, very useful.
The tax law does not specify who can file a tax complaint with the Administration, so the complaint can be anonymous; that is, the complainant may not disclose his or her identity. The fact that the identity of the complainant is not recorded does not represent any obstacle to taking into account the complaint and examining the documentation provided and, if appropriate, initiating the corresponding verification and investigation actions by the competent authorities.
The Labor and Social Security Inspectorate has a complaints box, to which to go to notify all behaviors that imply job insecurity in employment and to inform any unfair situation that a worker may suffer, offering the possibility of communicating from anonymity the situations of labor abuse and non-compliance.
The National Commission on Markets and Competition (CNMC) also has its own complaints box, which allows anonymity, in order to detect and, where appropriate, prosecute and sanction infringements of competition law.
With regard to the prevention of money laundering, the obliged subjects (financial and credit institutions, insurers, investment services and reciprocal guarantee companies, among others) must establish an internal complaints channel so that employees, agents or managers can communicate, even anonymously, any relevant information about possible infringements. in this field.
Since 2015, the Ministry of the Interior itself has set up an anonymous complaints box for terrorism cases.
Similarly, in terms of data protection, anonymous complaints are allowed, which contributes to better protection of whistleblowers and facilitates the reporting of more cases. This is a good opportunity for companies to address their problems internally before they move abroad.
For its part, the Criminal Chamber of the Supreme Court, in an important judgment whose rapporteur was Judge Vicente Magro, Judgment No. 35/2020 of February 6, 2020, validates an anonymous complaint as the origin of an internal investigation in a company to uncover a fraud, referring to Directive (EU) 2019/1937 and the channels of complaint, to which it qualifies as highly effective in the start of the notitia criminis, because they promote- says the sentence, the due police investigation and the discovery of illicit or criminal practices. It adds that an anonymous complaint does not preclude a criminal investigation, but requires only a reinforced analysis for its taking into account, which weighs the coherence and plausibility of the data. This Judgment includes a doctrine that is a continuation of others, also issued by the Criminal Chamber of the Supreme Court, such as Judgment No. 54/2019 of February 6, 2019 and Judgment No. 318/2013 of 11 April.
Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law, commonly referred to as the Whistleblower Directive, warns, in its first lines, that persons working for or in contact with a public or private organisation in the context of their work activities, they are often the first to be aware of threats or harm to the public interest that arise in that context. When reporting breaches, such persons act as whistleblowers and therefore play a key role in uncovering and preventing irregularities and protecting the well-being of society. However, potential whistleblowers often give up reporting their concerns or suspicions for fear of retaliation. In this environment, there is a growing need to recognize the importance of providing effective protection to whistleblowers.
This Directive entered into force in Spain on December 17, 2019 and its deadline for transposition into Spanish law expired on December 17, 2021, with the European Commission reprimanding Spain for that reason.
Both the aforementioned Directive and the United Nations Convention against Corruption, both directly applicable throughout Spain, that since December 17, 2021 and this since its ratification by the Congress of Deputies according to publication in the BOE of July 19, 2006, make anonymous reporting possible.
In development of this United Nations Convention and in anticipation of the aforementioned Directive, the Valencian Anti-Fraud Agency is created by law approved in the Valencian Parliament on November 28, 2016, as an independent public institution with functions of prevention and promotion of integrity and public ethics, investigation of complaints, protection of whistleblowers and sanctioning capacity.
The Anti-Fraud Agency, in accordance with its regulatory law and its implementing regulations, which is available in the Code for the Fight against Fraud and Corruption that publishes and periodically updates the BOE, admits complaints and communications made by any person, both nominal and anonymous, in the latter case with full guarantees through the electronic complaints mailbox of its website. This complaints channel also operates as a virtual office for public employees who inform the Agency of irregularities that it is aware of or to which it has had access.
It is a secure and confidential telematic channel, which allows intercommunication, because for each communication that is made, an alphanumeric code is automatically assigned through which the complainant, anonymous or not, can access the system and interact with the official staff of the Agency, which also has the status of public authority.
After verification of their plausibility, those communications that contain a sufficient description to identify the fact or conduct and that are within the scope of action of the Anti-Fraud Agency are investigated. Communications that are unfounded or notoriously false, or that violate fundamental rights, are not admitted and are exempted in any case from the obligation to verify. In these cases, the Agency may sanction these conducts or refer the relevant actions to the Public Prosecutor’s Office or the judicial authority.
Not only within this framework does the Valencian Agency act, but all the anti-fraud offices and agencies constituted and in operation in the Autonomous Communities do so: the Anti-Fraud Office of Catalonia, that of the Balearic Islands and the newly created Andalusian Office, which recognize anonymity in their complaint boxes as a perfectly valid way of transferring relevant information on facts that threaten the general interest and the common good.
The same has also been done for some time by bodies created in several City Councils, such as those of Barcelona and Madrid, to which are now added several public administrations of the Valencian territory that are signing protocols with the Valencian Anti-Fraud Agency, to this end and under the commitment of public integrity. Complaint boxes allow the participation of society, bring citizens closer to public administrations and increase trust in institutions.
Likewise, many civil organizations defend anonymous reporting, such as Transparency International, which expressly states that national legislation must include mechanisms to receive and manage anonymous complaints, since in some cases this is the only way to publicize irregularities without suffering reprisals.
Recognizing the possibility of anonymous reporting is the best way to protect the reporting person. The vast majority of public employees do not dare to report for fear of being reprisals, being common in these cases the cruelty in their capacity as complainants, witnesses or experts.
Requiring the complainant to identify himself discourages complaints because it leads those who witness facts or have certain information to continue looking the other way to avoid problems, allowing the corrupt to continue with their traps, knowing that the people around them do not dare to take the step.
In response to those who fear the damage that an anonymous complaint could cause, it should be remembered that it does not itself initiate a procedure automatically, but is a source of information, which requires a correct and necessary examination by the receiving body or authority, since it incites, or not, to the ex officio action of esta, after the analysis of plausibility of the facts. Such an analysis or assessment is assessed as a whole, together with other indications or evidence.
Despite all the above, they, the deniers, who are interested in keeping things as they are, will continue to deny the anonymous complaint, denying it for themselves and for their own.
Anonymous reporting is helpful. No one has to fear if they have their things in order. The question is: do we want to fight corruption?
Teresa Clemente García
Deputy Director and Director of Legal Affairs of the Valencian Anti-Fraud Agency
