Jugendamt, Human Right of Access to Public Documents and Good Administration

Knowledge will forever govern ignorance, and a people who mean to be their own governors,
must arm themselves with the power knowledge gives. A popular government without popular
information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.

-- James Madison --

auf Deutsch über das gleiche Thema: http://wkeim.bplaced.net/files/familienrecht.htm

Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, 9. March 2012

European Parliament
Committee on Petitions
Rue Wiertz
B-1047 BRÜSSEL

Copy: MEP Philippe Boulland, MEP Mrs Erminia Mazzoni, MEP Rainer Wieland, Parliamentary State Secretary of Justice Dr. Max Stadler, Commissioner for Human Rights of the Council of Europe CDH 116/11, Commission on European Family Law (CEFL)

Jugendamt, Human Right of Access to Public Documents and Good Administration (Petition Number 0748/2012)

Dear Mr. Boulland, dear Mrs Mazzoni,

I am a German Citizen and retired college lecturer.

I refer to the investigations of the European Parliament concerning 120 petitions about the Jugendamt. The petitions raise the question if the European Convention of Human Rights, the UN Convention on the Rights of the Child and the European Charter of Fundamental Rights are violated. It is shocking that nothing is done with these structural problems. Petitioners report on denials of access to documents and unfair treatment.

I asked the Parliamentary State Secretary of Justice Dr. Max Stadler, MEP Wieland and the parliament Bundestag to implement the report CommDH(2007)14 about Germany of the Commissioner for Human Rights of the Council of Europe (Appendix E) and guarantee real independence of judges according to Recommendation No. R (94)12 and PACE Resolution 1685 (2009) to cure the problems. The Human Right Commissioner suggested to strengthen the mandate of the German Institute for Human Rights with regard to structural and factual monitoring, develop the national action plan on human rights. Judges and administration should be educated in human rights.

The human right of access to public documents (ICCPR, European Court of Human Rights ) is recognized as precondition for democracy and essential in the fight against corruption.

18. June 2007 I wrote to MEP Rainer Wieland (Appendix N), that Germany was least developed in Europe looking at the human right of access to public documents (Appendix G, H) and mentioned the Bamberg Declaration (Appendix X). But the situation got even more serious.

Now many countries outside Europe are more advanced then Germany looking at freedom of information, transparency and fight of corruption.

84 states with approx. 5.5 billion inhabitants give better access to information then the federal Freedom of Information Law in Germany (http://www.rti-rating.org/country-data/).
more than 115 states (http://right2info.org/laws) with more then 5.9 billion inhabitants adopted Freedom of Information (FOI) laws or provisions in constitutions.
5 German states with half of the population lack FOI laws.
The UN Convention against Corruption is ratified by 160 states with more then 6.5 billion inhabitants, but not by Germany (Appendix A). Germany did not ratify the Criminal Law Convention on Corruption and does not follow Recommendation Rec(2003)4 on common rules against corruption in the funding of political parties and electoral campaigns of the Council of Europe as GRECO (Group of States against Corruption) suggested 4. December 2009 (Appendix B, Appendix C).
Germany is the only state in Europe which has not ratified any of these to conventions against corruption (Appendix D).

In January 2012, Transparency Germany published the National Integrity Report (NIS): - 84 weaknesses in the fight against corruption (Appendix Y). The report is part of an initiative of the European Commission in the fight against corruption. Germany has to improve the federal FOI law, adopt FOI laws in 5 federal states (Bundesländer), ratify CoE and UN conventions against corruption and improve transparency of sideline jobs for members of parliaments and funding of political parties to catch up with other states (see weakness no. 2, 3, 4, 8, 34, 35 and 52 of the NIS).

German authorities both legislative, executive power and judiciary do not respect the human right of access to public documents a precondition of democracy. Even the public, NGOs and the press are not able to recognize the problem. This is unlike all other civilized countries, e. g. Europe, OSCE and OECD and is not acceptable for non-Germans.

Parliamentary State Secretary of Justice Dr. Max Stadler did not answer the question by www.abgeordnetenwatch.de when Germany will adopt (better) FOI laws and ratify the anti-corruption conventions (Appendix 4) and implement the suggestions of the Commissioner for Human Rights of the Council of Europe (Appendix 3). MEP Rainer Wieland did not answer these questions (Appendix 5)

51 states participate in the Open Government Partnership (OGP) for transparent accountable governments. This OGP initiative wants governments to commit to openness, participation for citizens, fight against corruption and use of new technologies. But Germany does not participate, even it would be very necessary.

This rejection of the human right of access to information and transparency in Germany is outstanding in EU, Europe, North- and South America and the civilized world. However German politicians deny these facts and do nothing about the problem.

Therefore the European Court of Human Rights (ECtHR) is important. In Article 8 of the ECHRFF family rights are protected. Article 10 ECHRFF secures Freedom of Information. However the ECtHR has an overload of cases and demands that all domestic remedies must be tried first. i. e. national courts up to the highest level. The costs of domestic remedies are unreasonable high, because a lawyer has to be hired for higher courts.

The Human Rights Commissioner of the Council of Europe visited Germany and published the report CommDH(2007)14 with many suggestions, i. e. promote independent extrajudicial complaints bodies and educate judges and administration in human rights (Appendix H). However the national parliament Bundestag rejected even to discuss (Appendix P) these suggestions and petitions to 11 local parliaments where rejected (Appendix Z).

UN, OSCE and AOS Special Mandates for Protecting Freedom of Expression confirmed in Joint Declaration of 6. December 2004, that access to information is a human right: (Appendix 1):

"The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions."

The federal FOI law violates the principle of maximum disclosure. 5 federal states violate the human right of access to public documents. i. e. no FOI law is adopted.

The "General Comment No. 34 on Article 19 of the ICCPR" confirms this (Appendix J):

"18. Article 19, paragraph 2 embraces a general right of access to information held by public bodies. Such information includes all records held by a public body, regardless of the form in which the information is stored, its source and the date of production."
"19. (.) States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation."

The UN Human Rights Committee decided that the International Covenant on Civil and Political Rights (ICCPR) Article 19 (3) recognizes the right of individuals and the media to receive state-held information without requiring a demonstration of direct interest (Appendix L).

The European Court of Human Rights recognizes the human right of access to public documents (Appendix M).

The CoE Human Rights Commissioner suggested to educate administration and judges in international law and human rights (Appendix E). The refusal to give access to the reason of Bavaria not to follow these suggestions (Appendix F), shows that this suggestion is important.

However the denial of the human right of access to public documents is just the tip of the iceberg.

In direct contact with administration the right to good administration according to Recommendation 1615 (2003) of the Parliamentarian Assembly of the Council of Europe and CoE Recommendation Rec(2007)7 on good administration and Charter of Fundamental Rights of the European Union in EU is missing in Germany, i. e.

Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time (Article 41 (1))
The right of every person to be heard (Article 41 (2))
The right of every person to have access to his or her file (Article 41 (2))
The obligation of the administration to give reasons for its decisions (Article 41 (2))
Right of access to documents (Article 42)
Ombudsman (Article 43)

According to CoE RECOMMENDATION No. R (85) 13 an independent Ombudsman for public administration should be empowered "to investigate and give opinions when human rights are involved". Germany is the only country in Europe which "reserved the right to comply with it or not" (Appendix E). The Parliamentary Assembly confirms in in Recommendation 1615 (2003) the importance of the institution of ombudsman within national systems for the protection of human rights and the promotion of the rule of law, and of its role in ensuring the proper behaviour of public administration (Appendix F).

Administration and Jugendamt are not subject to investigations and control of an independent ombudsman. German authorities claim that courts guarantee the rights of citizens. However most victims can not risk to go to court, because of high costs.

But German judiciary lacks independence according to Art. 6 European Convention on Human Rights and Fundamental Freedoms (ECHRFF)) to protect citizens rights and human rights against the "Jugendamt" and other authorities.

But Article 2 of the Treaty on European Union reads:

"The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities."

Unfortunately only new members are evaluated and must adopt these norms. Germany violates e. g. the following international principles:

Independence of judges, i. e. separation of powers is not done, violation of Art. 6 of European Convention on Human Rights i. e. Recommendation No. R (94)12 and PACE Resolution 1685 (2009) (see Appendix O, Q)
Human right of access to public documents (information) is still lacking in 5 of 16 states (länder) (see Appendix 2), which is found all over Europe and the civilized word.
Decriminalisation of punishment of defamation (insult, libel) according to OSCE (Appendix S, T). Up to now 180 000 accused i. e. 20 % of criminal prosecution cases are insult (Appendix U). Even sending copies of petitions about decriminalization of defamation and suggestions of the Human Rights Commissioner CommDH(2007)14 was answered by a threat of insult accusation (Appendix V and W).

It seams that no progress has been made since 21. October 2007 when the “Bamberg Declaration” (Appendix X) concluded: Within the framework of the child and youth protection in Germany, especially on the part of the youth welfare offices, there are violations of Human Rights, in particular of Article 3, Article 6, Article 8, Article 13 and Article 14 of the European Convention of Human Rights.

Without improving respect of human rights in Germany, petitions will continue. Foreigners and a growing number Germans will not accept human right violations.

I have written two dozen petitions to German parliaments on separation of powers, human rights and good administration without result (Appendix 2).

I appreciate that the European Parliament looks into these human right violations and visited Germany.

Sincerely,

Walter Keim

Copy: German Institut for Human Rights, Menschenrechtszentrum, BMJ, Lehrstuhl für Menschenrechtsbildung, Menschenrechtsbeauftragter der Bundesregierung, Ausschuss für Menschenrechte und Humanitäre Hilfe

Appendices: