The Berlin Spectator
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Mark Worth: Germany Loves Whistleblowers – Unless They are German

From average citizens to grassroots activists to the highest levels of government, Germany has had a long and devoted love affair with the three most influential whistleblowers of our time. But the country is not quite as enthusiastic when it comes to similar figures on its own turf.

Julian Assange, Chelsea Manning and Edward Snowden were nominated for the Nobel Peace Prize by 17 Bundestag members last month – in recognition of their “immense personal sacrifices.” The German Green Party sponsored the Anything to Say? statue of the three bronzed heroes, which premiered at Berlin’s Alexanderplatz before being displayed at Dresden’s Theaterplatz.

Candlelight vigils, public protests, Facebook campaigns, Halloween masks, petition drives, and hand-painted signs hanging from apartment buildings across the country have lauded and memorialized Assange, Manning and Snowden for many years now. Germany has proudly embraced its fast-growing international reputation as a hotspot and safe haven for whistleblowers, hacktivists, Internet radicals and other dissenters. The Guardian called Berlin a “refuge” for “digital exiles,” and hailed its “growing community of surveillance refuseniks.”

While many controversial international figures – and even fugitives – have been applauded by the German public and establishment alike, the same cannot be said for homegrown whistleblowers.

Tales of Whistleblower Retaliation

Without any known exception, Germany has not protected – much less honored or cast in bronze – any German citizens who have exposed crime, corruption or public health risks. At least over the past 25 years, no public whistleblowers in Germany have been spared career damage, financial harm or personal ruin. For them – unlike Assange, Manning and Snowden – their personal sacrifices have gone uncompensated and unappreciated.

Far beyond being fired from their jobs, German whistleblowers have been sued, harassed, prosecuted, investigated for treason and publicly slandered. One had his home raided by the police. Another reportedly was poisoned.

These tales of whistleblower retaliation seem incongruous in a country whose Constitution enshrines freedom of expression, where media freedom ranks 13th out of 180 countries, and where the police politely help protesters block traffic for their demonstrations.

But the stories are more believable considering Germany has among the weakest legal rights and protections for whistleblowers in all of Europe, according to research conducted for the E.U.. In terms of protecting its own citizens from retaliation, Germany ranks behind the likes of Chile, Kosovo, Malaysia, Tunisia, Ukraine and Zambia.

It wouldn’t be surprising if you have not heard of any of these cases. Most of them have been scantily covered by the media or ignored outright.

Long Roads to Uncertain Justice

Germany is home not only to some of Europe’s most underreported whistleblower cases, but also some of the lengthiest and most vindictive.

Brigitte Fuzellier’s story begins in 2010, when she revealed evidence of financial irregularities within the Paraguayan operations of Kolping International, a large Catholic charity based in Cologne.

Fuzellier, a charity leader and community worker who has lived in Paraguay since 1987, said Kolping misspent German and EU public funds earmarked for education and training projects for needy local communities. An official investigation confirmed much of what Fuzellier reported. Kolping was forced to repay some of the funds, in what became a public scandal in the German media.

But the German public is almost completely unaware of the decade-long revenge campaign that ensued. Kolping and people associated with the organization immediately began retaliating against Fuzellier – by firing her, leveling false allegations against her in the media, filing a series of lawsuits and criminal charges, and convincing Paraguayan judges to ban her from leaving the country. In one criminal case, she was only spared from prison thanks to an international fundraising campaign that helped her pay a €27,000 fine.

Saddled with massive legal fees, her reputation besmirched, and blocked from running her previously successfully Eco-Loofah business, Fuzellier has lost nearly everything. Banks have seized several properties. Her business, which once employed hundreds of native Macá tribe members in Paraguay, has been destroyed. There have been two armed kidnapping attempts on her daughter by unknown culprits who remain at-large.

The German Foreign Office has refused to talk to Fuzellier, much less help her. She was even turned away when she personally presented herself at the German Embassy in Asunción. Because it only has been publicly reported in Spanish and German, Fuzellier’s case is not well known to the broader public.

“I lost everything, and it’s still not finished,” Fuzellier, a grandmother in her late 50s, told Deutsche Welle. “I haven’t really had any interest in Kolping for years, but they never stopped. My reputation is being broken, my finances, my health, everything. A normal person would probably have committed suicide by now with all the stress.”

Meanwhile Kolping, which is closely linked to Germany’s ruling Christian Democratic Union, continues to receive millions of Euro in public support each year from the German Ministry of Economic Cooperation and Development.

Even longer than Fuzellier’s ordeal is the case of Andrea Fuchs. While working as a stockbroker at Frankfurt’s DG Bank in 1996, Fuchs reported evidence of insider trading and other suspicious activity surrounding a stock deal valued at 400 million Deutschmarks (about €200 million). DG Bank – now known as DZ Bank, the second-largest bank in Germany – fired her after being subjected to an elaborate harassment campaign.

The retaliation, according to an internal bank document, reportedly included denying Fuchs vacation days and business trips, giving her “trivial tasks to prevent her from participating in the normal course of business,” reducing her customer base “bit by bit,” referring customers to her colleagues, and coming up with accusations of poor performance.

Fuchs reportedly has filed some 50 lawsuits and other legal actions over issues including unfair dismissal, and unpaid wages and benefits. Germany’s Constitutional Court denied Fuchs’ appeal in December 2016, ruling that her right to “freedom of expression was secondary to the interests” of the bank.

German courts also didn’t protect Brigitte Heinisch’s free-speech rights, but she took her case to a higher authority and ultimately achieved justice – though at a high personal price. Her struggle began in 2005, when she was fired from a Vivantes nursing home in Berlin after reporting negligent care of elderly men and women. “Residents were only showered once a week and sometimes spent hours lying in their faeces before being washed and their bed cleaned,” Heinisch told authorities.

An official inspection of the facility two years earlier found understaffing, unsatisfactory care and poor documentation of services provided to residents. Heinisch continued to tell managers about the problems, to no avail. She finally filed a criminal complaint with the police, but when prosecutors refused to file charges against Vivantes, she was fired without notice and given no severance pay.

Several levels of German courts rejected her unfair dismissal claim, with judges ruling Vivantes had a “compelling reason” to fire her because she filed a criminal complaint against the company.

Heinisch appealed her case to the European Court of Human Rights in Strasbourg. In 2011 the court awarded her 15,000 Euro in compensation and ruled Germany violated her right to freedom of expression granted the European Convention on Human Rights. In 2012 Vivantes agreed to pay her 90,000 Euro in damages and give her a positive employment certificate.

Whistleblowers as Official Enemies

German officials and institutions have not just failed to come to the defense of whistleblowers. In several cases they have gone on the offensive against their own citizens by deploying police, prosecutors, judges and other authorities.

Virtually unknown outside of the small German state of Saarland is the case of wildlife biologist Dr. Daniel Hoffman. Saarland’s Environment Ministry fired and filed a criminal complaint against Hoffman in 2017 after he alleged irregularities with the approval of about 30 wind turbines in Lautenbach, near Germany’s border with France and Luxembourg. Hoffman gave internal documents to local activists showing the turbines were approved even though the public comment period was still open and environmental impacts had not been assessed fully.

Escalating matters, a local judge signed a warrant leading to an armed search of Hoffman’s home and the home office of anti-windmill activist Michael Marx. Police seized a computer as well as a camera that a bystander was using to film the raid, according to a local attorney working on the case.

Law enforcement also was used to target activists and journalists who exposed the German government’s plans to expand Internet surveillance. In 2015 Berlin police filed a criminal complaint against Markus Beckedahl and Andre Meister of the German news and digital rights organization Netzpolitik. Prosecutors investigated Beckedahl and Meister for potentially committing treason because they wrote about the secret budget of Germany’s domestic surveillance agency, the Office for the Protection of the Constitution.

Unlike most other whistleblower cases in Germany, this scandal made international headlines and caused great embarrassment to high-ranking officials. Within a month after the story went viral, Justice Minister Heiko Maas fired chief federal prosecutor Harald Range.

Though the investigation was dropped, the initial impulse by police and prosecutors to take action against the journalists presented still-lingering questions about Germany’s commitment to transparency, tolerance for dissent, and guarantee of media freedom. The controversy was reminiscent of the 1962 “Spiegel Affair,” when the owner, two editors and a journalist at the Spiegel news magazine were arrested for treason following an article about a lack of readiness of Germany’s military forces.

Official Inaction, Media Apathy

Many other cases reveal weak protection and support for homegrown whistleblowers – as well as a lack of media coverage that is tantamount to a blackout:

  • Fresh memories remain of the Gammelfleisch – “rotten meat” – scandal in Bavaria. In 2007, truck driver Miroslav Strecker discovered that cattle eyes, years-old offal and other petfood-grade “K3” products were being secretly relabeled and sold as edible meat. After authorities learned more than 100 tons of slaughterhouse remnants were sold to döner kebab restaurants, company owner Wolfgang Lermer was sentenced to two years in prison. What is not widely known is that the company retaliated against Strecker by giving him blatantly unpleasant work assignments until he quit. After a period collecting unemployment, he reportedly found a job as a bus driver.
  • In 2015 an employee at a state-run wastewater treatment plant near Munich alleged misconduct by the CEO, including ordering employees to do construction work on his home and helping him move. He said the CEO’s office was ornately decorated, and that he hired his wife to manage the human resources department and took her on company trips. The two were fired – but so was the whistleblower, after he was mobbed and intimidated by managers and colleagues. He went to court but settled for €2,000 in damages, a decision he says he regrets. (Details are being withheld to protect the parties.)
  • Berlin paramedic Sascha Lex was fired without notice in 2014 after he told authorities that ambulances often were improperly disinfected and serviced. He said a premature baby may have died because of a lack of equipment. Lex filed an unfair dismissal case with the Berlin Labor Court, which held a hearing in August 2015. Little more is known about the case because the ambulance company theatened to sue Lex if he talked about the case publicly. The company also successfully pressured some German media outlets to remove certain details about Lex’s disclosure. The status of his case is unknown.
  • In 2016 several German media outlets reported authorities were investigating the alleged poisoning of an engineer working on the Berlin Brandenburg Airport. The man reportedly became ill and collapsed at work after drinking a cup of coffee that contained a “deadly substance.” Journalists speculated the engineer was targeted because he had reported evidence of corruption at the scandal-plagued airport, which has yet to open due to mismanagement and misconduct. As shocking as this case is, it essentially was a one-day story that the German media did not follow up. The man’s name was never published.

Whistleblowers ‘do not need special regulations’

In a rare public event on the subject, German elected officials and authorities made their opinions about whistleblower protection very clear on March 16, 2015.

During a hearing at the Bundestag that day, remarks by Joachim Vetter, head of Germany’s Federation of Labor Court Judges, help explain why Brigitte Heinisch, Dr. Daniel Hoffman, Andrea Fuchs and other whistleblowers have been confronted with legal dead-ends.

“Currently,” Vetter told officials and citizens in attendance, “protection for whistleblowers is guaranteed for all employees. This is why whistleblowers do not need special regulations.”

Vetter was one of the witnesses called by the ruling Christian Democratic Union to speak against a proposed whistleblower protection law. Three months after the hearing, and for the third time since 2009, the CDU rejected the measure.

Supporters of stronger whistleblower rights were greatly outnumbered at the hearing by opponents, who included representatives from corporate giants Daimler and Siemens, and industry groups such as the German Trade Association and Confederation of German Employers’ Associations. Heribert Jöris of the Employers’ Confederation said permitting employees to report crimes to the media or the public would be “very dangerous.”

These detractors were unanimous in their view that Germany didn’t need a law to protect employees and citizens who report misconduct. They were adamant, despite research by the respected anti-corruption group Transparency International – headquartered just down the street from the Bundestag – that whistleblower rights in Germany are among the weakest in the EU. Transparency International also found Germany ranks lower than Australia, China, India, Indonesia, Japan, South Africa, South Korea, the UK and US.

Vetter’s comments were the most surprising. Many of the Labor Court judges who are members of his organization have ruled against whistleblowers who sought reinstatement and compensation for retaliation. Some judges have said the interests of employers, coupled with employees’ loyalty duty, can outweigh an employee’s right to report misconduct to authorities or the public. This is contrary to standards developed by the UN, Council of Europe, Transparency International and many other organizations.

Germany also falls far short of a new E.U. Directive on whistleblowing that was passed last October. The Directive requires all E.U. countries to enact laws protecting all employees from all forms of retaliation by December 2021. Based on the poor outcomes of many past whistleblower cases, and considering the staunch official opposition to strengthening whistleblower rights, Germany has a lot of catching up to do.

The German version of this article can be found here.

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