Presumption of innocence
The principle that a person accused in a whistleblower report is deemed innocent until misconduct is proven, and is entitled to fair, confidential and unbiased treatment throughout the entire reporting procedure.
The presumption of innocence is a fundamental principle of the rule of law that extends beyond criminal law into whistleblower protection: as long as a reported breach has not been substantiated through a careful internal investigation, the accused person must not be treated as guilty. A report initially establishes only an initial suspicion, not a finding of fact. The reporting office and the staff handling the case are therefore obliged to investigate with an open mind, objectively and without prejudgement, weighing incriminating and exonerating circumstances equally.
The presumption of innocence gives rise to a bundle of concrete protective rights for the accused person. These include protection of their identity and personal data under the confidentiality requirement, the right to a fair procedure including the right to be heard, protection against unfounded reprisals, and the principles of data minimisation and purpose limitation under the GDPR. Information about the report may only be made accessible to those responsible for handling it; the accused person is generally heard only once doing so no longer jeopardises the investigation.
While the German Whistleblower Protection Act primarily protects the reporting person, it expressly does not exclude the rights of those affected by a report. Section 33 HinSchG refers to the rules that continue to apply for the protection of affected persons, in particular the confidentiality of their identity (Section 8 HinSchG) and data protection law. Knowingly false reports are not protected and may give rise to claims for damages under Section 38 HinSchG. A balanced case handling that upholds the presumption of innocence is therefore also a precondition for the legal soundness of the entire whistleblowing system.
Legal Basis
Section 33 HinSchG in conjunction with Section 8 HinSchG; Art. 6(2) ECHR; Recital 100 and Art. 22 of the EU Whistleblower Directive (EU) 2019/1937
Practical Example
A report arrives via the internal whistleblowing system alleging that a head of procurement accepted a bribe from a supplier. As the officer handling the internal reporting office, the compliance officer documents receipt, keeps the accused person's name strictly confidential and restricts access to the case to the investigation team. She first secures objective evidence such as award and payment records before hearing the head of procurement, and avoids any premature personnel measures. Only after the investigation has produced solid evidence does she initiate proportionate follow-up measures; if no breach is found, the case is closed without consequence and without any disadvantage to the accused.