Photo by Michal Andrysiak
While Snowden risked his life to enlighten the world about the NSA, the ‘little guys’ who disclose corruption and wrongdoing at their jobs face huge obstacles in Germany, where whistleblower protection is virtually non-existent.
Working in a home for bed-ridden, sick elderly patients is a demanding job by any measure. But to work in a home which is chronically understaffed to the point that residents are lying in their own vomit and urine – that’s when it becomes unbearable. For Brigitte Heinisch (photo), a carer in a Berlin home belonging to the state-owned health care company Vivantes, workplace conditions became so bad she was compelled to act. She and her colleagues were so overworked they became sick; staff were expected to document care that hadn’t even been provided. Her numerous complaints to Vivantes management went unheeded.
Finally, in 2005, she felt compelled to file a criminal complaint against Vivantes for failing to fulfil basic standards of care. “I would have made myself criminally responsible if I had continued to work in those conditions – also ethically and morally,” she explains. “There really wasn’t much of a choice. Basically, they wanted to make a profit, at the cost of dependent, highly vulnerable people.”
Little did she know that her story would become one of the most important cases of whistleblowing in Germany to date. Vivantes reacted to the criminal charges by firing Heinisch without notice. She received no severance pay. Meanwhile, the public prosecutor’s office deemed the case unimportant and discontinued its investigations. For the next six years, Heinisch went from one German court to the next – but the judges always ruled that her act of lodging a criminal complaint against Vivantes was a “compelling reason” for them to fire her. Supported by friends and the Verdi trade union, Heinisch was finally able to get her case heard by the European Court of Justice in Strasbourg. In a groundbreaking decision in 2011, the court blamed Germany and ruled that publicly disclosing serious problems at one’s workplace fell under freedom of expression and could not be used as grounds for dismissal. In 2012, Heinisch took Vivantes back to court and won €90,000 in severance pay. The ruling appears to have strengthened the position of other whistleblowers in Germany. “There have been numerous cases in the labour courts that have referred to my case,” says Heinisch.
A truckful of spoiled meat
But workplace whistleblowers still have trouble finding their way back into their career. Heinisch stopped working altogether because of the immense stress caused by the entire saga. She’s not the only one. Brandenburg trucker Miroslav Strecker suffered serious consequences after exposing criminal activity by one of his employer’s clients. In 2007, he discovered he was delivering a truckload of years-old slaughterhouse remains, the kind of ‘meat’ that is only allowed to be used in pet food, to a sausage factory in Bavaria. He reported the factory to the authorities, who ended up uncovering the far-reaching Gammelfleisch (rotten meat) scandal – including the discovery of hundreds of tonnes of old meat and offal in Berlin döner kebabs. Strecker was later recognised for his “civil courage” with various awards. Yet he still faced problems with his employer: squealing on a customer is a no-no. After the revelations, he took time off from work due to a shoulder operation. Once back on the job, Strecker says his employer deliberately gave him the deliveries involving the most heavy lifting. He was eventually fired and had to fight for severance pay in court. He now works as a bus driver in Brandenburg.
In Germany’s pro-industry culture, where those who report criminal activity at their workplace are still called Nestbeschmutzer or ‘nest dirtiers’, whistleblower protection legislation remains virtually non-existent. The Beamtenstatusgesetz of 2009 protects civil servants who report gross misconduct and corruption to state prosecutors, but there is nothing similar for the private sector.
As a signatory of the G20’s Anti-Corruption Action Plan, Germany promised to implement whistleblower protection by the end of 2012. This obligation and the Heinisch decision in Strasbourg prompted the SPD (then still in opposition), the Greens, and Die Linke to attempt to pass a law protecting Hinweisgeber (a neologism meaning ‘tip givers’) in the Bundestag in June 2013. This was thwarted by Angela Merkel’s government – ironically, just days after Snowden’s revelations on the NSA came to light – with the justification that current labour law sufficiently protects whistleblowers (and now that the SPD is in the governing coalition, they suddenly agree!).
Heinisch is jaded about the judicial and political system in Germany: “It quickly became clear to me that state prosecutors were working for business interests – by simply dropping cases, or just not following up. I was invited for a talk with the Greens and everything was just wishy-washy. It wasn’t about actually helping the whistleblowers.” She is a member of the non-profit Whistleblower Network, but finds their tactics too timid: “I’m a little more radical when it comes to pursuing our demands. I said we should just get as many whistleblowers as possible together in a protest camp out in front of the Reichstag for a week. But a lot of people didn’t want to do that. There’s no other way. Politicians just represent the interests of business, that’s the way it is.”
You can’t fight the system
Guido Strack, founder of the Whistleblower Network, who himself lost his job and was subjected to a Kafkaesque legal nightmare after he exposed waste and corruption as an EU official, is equally pessimistic. The affair and associated stress destroyed his career, destroyed his marriage and weakened his faith in “the system”. In an interview with filmmaker Ian Hawkins, he summed up his sentiment: “If you do something that they don’t like, then you are considered to be someone going against the system. And then the system fights back with every means it has. I thought it was a just system and that you could achieve something if you do the right thing. I don’t think that any more.“
Corruption in the courts
To Andrea Fuchs, a former stockbroker who reported insider trading at DG Bank in Frankfurt 18 years ago, the situation for whistleblowers in Germany is “disastrous”. According to her, even countries without the reputation of being strong democracies, like Indonesia, have a functioning whistleblower protection law. Her actions destroyed her career in banking forever. In an immensely complicated legal ordeal in eight courts that continues till this day, Fuchs was officially fired 19 times from the same job, even though she says the grounds for her dismissal were dismissed in court each time. She hasn’t worked in 18 years. Germany’s highest court, the Constitutional Court, refused to hear her case without even giving a reason. For her, the German system is riddled with corruption: for example, she once received an anonymous letter stating that a labour court judge who had heard her case had also worked on the arbitration board of DG Bank.
Lobbyists and politicians are scared their shadowy sources of side income will be exposed. It's corruption, plain and simple.
Like Heinisch, Fuchs is hoping the court in Strasbourg will serve justice after nearly two decades – lawyers are currently assessing the viability of her case. “Europe needs to give the Germans a slap on the hand!” Meanwhile Fuchs, also a member of the Whistleblower Network, is advising three people who have not yet gone public with their accounts of corruption in the organisations they work for.
What is Germany’s problem with whistleblowers? Fuchs believes the “experience of the Third Reich and the GDR left people with the [negative] idea of the ‘informant’, hence the reluctance to protect people making claims against wrongdoing. But it’s all an excuse for the lobbyists and the politicians who are scared their shadowy sources of side income will be exposed. It’s corruption, plain and simple.”
For the sakes of those who’ve sacrificed their careers and even marriages to expose uncomfortable truths, let’s hope the spirit of the Age of the Whistleblower ushered in by Edward Snowden will rub off on Germany for good.
Originally published in issue #130, September 2014.