Group of States against corruption (GRECO)
DIRECTORATE GENERAL ON HUMAN RIGHTS AND LEGAL AFFAIRS
DIRECTORATE OF MONITORING
Council of Europe
F-67075 Strasbourg Cedex
Copy: European Union Agency for Fundamental Rights (FRA),
Secretary General CoE Thorbjørn Jagland
DG1/WR/er PO 775: GRECOs focus on parliaments, judges and prosecutors in
2014
Dear Mr Rau,
thank you for acknowledging the receipt of my letter dated 31.
March 2013 about access to public information [3].
The documentation was duly noted and put on file for future reference.
You add that current focus is on the prevention of corruption in respect of
members of parliament, judges and prosecutors and Germany will undergo
evaluation under this thematic frame in the course of 2014.
According to Article 10 of the United Nations Universal Declaration of Human
Rights, Article 6 of the Convention for the Protection of Human Rights and
Fundamental Freedoms and Council of Europe Recommendation No. R (94)12
judiciary has to be independent.
However in many German federal states (Länder) judges are hired, promoted
and supervised by government [1].
Especially the history behind supervision of judges is embarrassing.
When administrative courts were founded, there was no supervision of judges,
because it would have been a disadvantage for citizens who complain against
the administration lead by the government. However the dictator Hitler
added supervision of courts. Before the Prussian
administrative courts (Preußischen Oberverwaltungsgericht) have been without
supervision since 1875, as well as e. g. administrative courts in Saxony.
But § 7 sentence 1 of the first regulation ("Durchführungsverordnung) of 29.
April 1941 of the decree of the fuehrer ("Führer-Erlass") on the
establishment of the administrative court of the Reich (Imperial Law Gazette
RGBl I S. 201: Erste DV = RGBl
I S. 224) gave the minister of justice of the Reich supervision rights
[2].
The suggestion to adopt European and international standards is always
rejected by parliaments by quoting Article
97 of the Basic Law: "Judges shall be independent and subject only to
the law." [4] It seems
enough that independence is on paper to convince politicians and public.
Today a majority of both law scientists, lawyers and politicians reject
international law and prefer to defend this invention of supervision of
judges of the dictator Hitler.
Obviously judges are in fact subject to the government (to be hired,
promoted and supervised) and therefore not free to apply the law in favour
of citizens complaining at courts against governments. In cases Keim ./.
Germany VG 2 A 85.04, 1
BvR 1981/05, 1 BvR 2565/05, VG
2 A 55.07,1 BvR 238/09 and Walter
Keim ./. Freistaat Bayern Az. M 17 K 12.3408 show, that judges do not
respect the human right of access to information incorporated with the rank
of a law by ICCRP and ECHR.
If independence of judiciary is not yet part of the GRECOs investigations I
would like to suggest to add it.
Keim, Walter (24. August 2012): Access to Information: GRECO failed in
Second Evaluation Round and must therefore do better in Third Round: http://wkeim.bplaced.net/files/foi-greco.htm
Keim, Walter (25. February 2012): Rejection of Suggestions of
Commissioner for Human Rights by German Parliaments, Freedom of
Information and Separation of Powers: http://home.broadpark.no/coe_result.htm