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09.09.2016

Luxemburg: Whistleblowers condemned in LuxLeaks Trial, Journalist Acquitted

by Annelies Vandendriessche
On June 29th 2016, the Correctional Tribunal of Luxembourg reached a verdict on the charges brought against Antoine Deltour, Raphaël Halet and Edouard Perrin in the so-called LuxLeaks Trial. The trial concerned the leaking of over 45 000 pages of confidential documents by the three men, which revealed the tax deals concluded between large multinational companies and the Luxembourgish tax authorities (For further information on the trial, see: "The LuxLeaks Trial" by Annelies Vandendriessche.

Deltour and Halet were condemned on charges of domestic theft (Article 464 Criminal Code), fraudulent access to a database (Articles 509-1 until 509-7 Criminal Code), breach of professional secrecy (Article 458 Criminal Code), violation of trade secrets (Article 309 Criminal Code), and laundering and possession of illegally obtained material (Article 506-1 Criminal Code). Deltour was condemned to a suspended prison sentence of 12 months and a €1500 fine, Halet to 9 months and a €1000 fine, and both to the joint payment of a symbolic euro damages to their former employer, consultancy firm Pricewaterhouse Coopers (PwC), civil party to the proceedings.

The journalist Perrin was acquitted, the Tribunal dismissed all charges of complicity to the acts of Halet, resulting also in acquittal on the charge of laundering and possession: he himself was not bound by professional secrecy or trade secrets, his proposition to Halet to create the mailbox later used for the transmission of the confidential documents could not be considered aiding and abetting, and no initiative on the part of the journalist could be discerned from either Halet’s testimony or the e-mail exchange between them.

Neither Deltour nor Halet denied stealing confidential documents from their former employer and deliberately transferring them to Perrin for disclosure in the media. They claimed to have acted out of conviction, denouncing fiscal optimisation practices they believed morally objectionable. The question at hand therefore concerned whether legal justifications exist for these actions, removing their illegality after the fact. Two justifications were put forward: they asked to be judged as whistleblowers, and relied on the ‘state of necessity’.

According to the Tribunal the ‘state of necessity’ could not be relied upon in the case at hand since first, Deltour faced no imminent danger, second, other choices were available to him, and third, proportionality was not respected since the interest sacrificed by the offense must be inferior or equivalent to the value sought to preserve. He could presumably have divulged information without illegally removing documents, or by only handing over a small number of documents.

Though the Tribunal affirmed that Deltour and Halet were indeed whistleblowers, it concluded that no protection for whistleblowers applicable in the case at hand can be found in Luxembourgish law, European law, or Article 10 of the European Convention on Human Rights (ECHR). Luxembourgish legislation protects employees from reprisals, but only when denouncing illegal activity to the competent authorities.

At European level, despite an expressed wish to increase protection of whistleblowers, currently no legal norm with that purpose exists. Finally, according to the Tribunal if Article 10 ECHR protected Deltour and Halet from criminal prosecution for their acts, the Council of Europe (CoE) would not have found it necessary to issue a recommendation to its Member States, holding the current legal regime insufficient for protecting whistleblowers, whilst setting out principles to increase their protection (For further information, see “Committee of Ministers describes the protection of journalism and safety of journalists as alarming and unacceptable” by Katrin Welker. These justifications therefore in the view of the Correctional Tribunal do not apply to the offenses committed by Deltour and Halet and can not remove their illegality.

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The judgment is available in French language here.

The contents of the stolen documents leaked to the press can be consulted as part of the LuxLeaks investigative project of the International Consortium of Investigative Journalists (ICIJ), of which Perrin is a member, here.

Annelies Vandendriessche is a doctoral candidate at the Faculty of Law, Economics and Finance of the University of Luxembourg under the supervision of Prof. Dr. Mark D. Cole, Professor for Media and Telecommunication Law at the University of Luxembourg.



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