auf Deutsch:
http://wkeim.bplaced.net/files/if-dimr-pbt.htm123 session: Access to Information Law is missing in 3 German states
Access to information is part of
freedom of expression, together with an active citizenry, and thus
one of the preconditions for ensuring a vibrant and well-informed
democracy. NGOs demand of the governments to respect and comply with
their obligations following national and international standards.
First
Baltic Sea NGO Forum 2001
Walter Keim, participant of the Baltic
Sea NGO Forum
Opplandsveien 210
NO-4885 Grimstad, 30
April 2018
auf Deutsch:
http://wkeim.bplaced.net/files/if-dimr-pbt.htmResult: Published on session 123 page for Germany see text: “Info from Civil Society Organizations (for LOIPR) Submission on access to information”
Access to public documents is a human right according to Article 19 CCPR
3 states in Germany violate the human right of access to public documents found for 5.9 billion i. e. 84 % of the worlds population
The rank of CCPR as a law is de facto not respected
Recommendations:
Germany has to adopt access to informations (ATI) laws in all 16 federal states and improve federal ATI law to meet international standards
Withdraw reservation on Article 19 of CCPR
The rank of CCPR and other UN conventions in German law must be respected and should be improved.
The recommendations of the Human Rights Commissioner of the Council of Europe, e. g. educate administration and judges in international law i. e. CCPR should be done.
Judges should not be hired, promoted and supervised by the executive power i. e. Resolution 1685 (2009) and Recommendation No. R (94)12 of the Council of Europe should be followed.
CCPR, International Covenant on Economic, Social and Cultural Rights, other UN conventions and the European Convention of Human Rights should be included in the Internet collection of the "laws of Germany" (www.Gesetze-im-Internet.de and http://bundesrecht.juris.de).
The German Institute of Human Rights should monitor human rights in Germany.
Defamation should be decriminalized.
I refer to the 6. report according to Article 40 of the International Covenant on Civil and Political Rights, reporting to the Human Rights Committee (CCPR) dated 31. March 2010 (1). The EU Fundamental Rights Agencysuggested to contact the Council of Europe (2), answering a complaint on lack of Freedom of information in Germany (3). The GRECO (Group of States against corruption) did not observe that access to informations laws was missing in 5 states in Germany (N).
Freedom of Information (including access to public documents) is part of Article 19 the International Covenant on Civil and Political Rights (ICCPR), which Germany has signed.
The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression reported e. g. in E/CN.4/1998/40, 28 January 1998 and E/CN.4/2000/63, 18 January 2000 and A/HRC/14/23 20 April 2010 that access to public documents is a human right.
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: (4):
"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 "General Comment No. 34 on Article 19 of the ICCPR" confirms this (5):
"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."
Germany tried to remove the human right of access to public
documents and other human rights (13)
from the Draft
General Comment No. 34 on Article 19 ICCPR (see page 17 reference
14). Decriminalization of defamation and abolition of prison
sentences (Article 49) is objected. Access to public documents is not
considered a fundamental right according to the German Basic Law. The
ICCPR has only the rank of a law. Therefore it is suggested to remove
access to public documents from the ICCPR.
The states Lower Saxony,
Saxony and Bavaria
have been informed several times about the human right access to
public documents. However these states continue to violate this human
right and access laws are not given (6).
The
NGO "Bündnis für Informationsfreiheit in Bayern" has
collected many examples of denial of access (10).
Reference 7 gives additional examples
of denial of access to public documents.
The UN Convention against Corruption of 14. December 2005 has been ratified by 158 states. However Germany could not ratify because bribery of members of parliament is not a criminal act. This law would have to be given by parliamentarians itself.
The Group of States against Corruption (GRECO) of the Council of Europe saw deficiencies combatting corruption in Germany and made 2016 suggestions on transparency of financing of parties (K), because the federal parliament Bundestag had refused 2011 (see "Ausschussdrucksache 17(4)283 des Innenausschusses") to comment the suggestions GrecoEval3(2009)3 with the majority of the governing coalition parties of CDU/CSU and FDP (M)
More then 125 states with 5.9 billion i. e. 84 % of the world population adopted either FOI laws or constitutional provisions (I). Citizens in 5 states in Germany with half of the population lack this human right.
Paragraph 118 of the State report reads: "CCPR is part of
German justice system as federal law. Therefore it is binding for
federal states." But this is not respected by German
administration and courts.
Therefore German courts may decide
against human rights if there is a conflict, e. g. the highest Court
in the German land Rhineland-Palatinate
LG Mainz (1 QS 25/98) stated that the court can not give
access to documents (as the European Convention of Human Rights would
demand), because it is the parliament, which would have to give this
right. This court expresses here that they are not allowed to do what
human rights would say.
Internet pages "laws in Internet"
(www.Gesetze-im-Internet.de
and http://bundesrecht.juris.de)
do not contain the CCPR. Therefore I have 28.
April 2007 suggested to add it together with other human
rights covenant. The answer 14. July 2007 says
that the capacity was not big enough. It is difficult to believe
this as reason.
Court cases Walter
Keim ./. Germany VG 2 A 85.04
and VG 2 A 55.07 show that the
Administrative Court of Berlin (Verwaltungsgericht Berlin), and the
Higher Administrative Court (Oberwaltungsgericht) and later the
Constitutional Court (Verfassungsgericht)
in cases 1 BvR 1981/05, 1 BvR
2565/05 and 1 BvR 238/09 that
the human rights character of access to public documents of the CCPR
is ignored (7). Many applications
referring to the CCPR are denied without even discussion. This proves
that the rank of CCPR being a law is ignored (7).
The
ICCPR human right access to public documents is rejected by the
German government, because it is considered no fundamental right of
the German Basic law (constitution) (13).
The
reservation on Article 19 CCPR restricts foreigners rights in
Germany.
The federal law of Freedom of Information has too
many exceptions and violates international principle of maximum
disclosure. Comparison with laws from 111 other countries places
Germany on 105th
rank, i. e. 5.9 billion people have better access laws(J).
The Report
of the Human Rights Commissioner of the Council of Europe 2006
suggests to educate administration and judges in human rights e. g.
CCPR (8). Unfortunately both the
federal and local parliaments refused to consider this proposition
(9).
Judges
at administrative courts are hired, promoted and supervised by the
executive power and are not independent according to Article 14
CCPR (11).
In approx. 50 States access to public documents is found in the constitution. Approx. 110 states have adopted access to information laws. In Europe basically Belarus and 3 German states are missing. After India in 2005, China in 2008, Russia in 2010 and Brazil soon (BRIC countries) adopt laws on access to information only some countries in Africa and the Middle East are missing.
In many states – e. g. for the European Convention of Human Rights - international conventions have a higher rank compared to laws e. g. Austria, Switzerland and Norway (12).
The Human Rights Commissioner of the Council of Europe suggested to give the German Human Rights Institute the task to monitor human rights in Germany (F).
Recommendations summarized:
Germany has to adopt access to informations (ATI) laws in all 16 federal states and improve federal ATI law to meet international standards
Withdraw reservation on Article 19 of CCPR
The rank of CCPR in German law must be respected and should be improved.
The recommendations of the Human Rights Commissioner of the Council of Europe, e. g. educate administration and judges in international law i. e. CCPR should be done.
Judges should not be hired, promoted and supervised by the executive power i. e. Resolution 1685 (2009) and Recommendation No. R (94)12 of the Council of Europe should be followed.
CCPR, International Covenant on Economic, Social and Cultural Rights and the European Convention of Human Rights should be included in the Internet collection of the "laws of Germany" (www.Gesetze-im-Internet.de and http://bundesrecht.juris.de).
The German Institute of Human Rights should monitor human rights in Germany.
Defamation should be decriminalized.
Yours sincerely,
Walter Keim
Copy: Human Right Commissioner of the CoE, Fundamental Rights Agency, Ausschuss für Menschenrechte und Humanitäre Hilfe, German Institute for Human Rights, OSCE
Consideration of reports submitted by States parties under article 40 of the Covenant CCPR: http://www.ccprcentre.org/doc/HRC/Germany/CCPR_C_DEU_6_en.doc
26.03.2007: German Human Rights Institute is responsible for human rights in Germany: http://wkeim.bplaced.net/files/eu-hra-070329.pdf
01.03.2006: Access to Information and other Violations of Human Rights in Germany : http://wkeim.bplaced.net/files/eu-hra-complaint.htm
2004 International Mechanisms for Promoting Freedom of Expression: JOINT DECLARATION http://merlin.obs.coe.int/iris/2005/2/article1
General Comment No. 34 on article 19 by the Human Rights Committee: http://www2.ohchr.org/english/bodies/hrc/comments.htm
Summer 2008: 5 federal states (lander) ignore the human right of access to public documents: http://wkeim.bplaced.net/files/ifg-5-laender-en.htm
Administration and jurisprudence about freedom of information: http://wkeim.bplaced.net/files/ifg-material.htm
Petition realisation of the suggestions of the Human Right Commissioner of the CoE: http://wkeim.bplaced.net/petition_gg.htm
Rejection of the suggestions of the Human Right Commissioner of the CoE by parliament Bundestag and 8 länderparliaments: http://wkeim.bplaced.net/coe_resultat.htm#antworten
Bündnis für Informationsfreiheit in Bayern: (In)transparenz in Bayern: http://www.informationsfreiheit.org/3964.html
Separation of powers in Europe: http://wkeim.bplaced.net/files/separation_of_powers.htm
Geiger, Grundgesetz und Völkerrecht, 5. Auflage, S. 160; Schweisfurth, Völkerrecht, S. 202; Nowak, CCPR-Commentary, Second editition, Art. 2, Rn. 55
11. February 2011: Germany asked to remove the human right of access to public documents and other human rights: http://wkeim.bplaced.net/files/German_comments_on_Draft_General_Comment_No.34.pdf
HUMAN RIGHTS COMMITTEE. DISCUSSIONS ON DRAFT GENERAL COMMENT NO. 34- MEETING NOTES (18 MARCH – 24 MARCH 2011): http://freedominfo.org/documents/HRCnotesMarch2011.pdf
X. Baltic Sea NGO Forum, Final Statement, WS III: Human rights: http://www.bsngoforum.org/files/Final_statement.pdf
We urge the CBSS to create an Ombudsman for Human Rights.
In each country of the Baltic Sea Region, there shall be installed independent national Human Rights Institutes according to the Paris principles.
The workshop recommends that the Baltic Sea NGO Network oversee the implementation of the Universal Periodic Review (UPR) process in each country of all the CBSS member states.
X. Baltic Sea NGO Forum: The role of international lawmakers and their respective influence on national legislation on access to information: http://wkeim.bplaced.net/files/ATI-BSNF.htm
Telepolis (15.04.2002): Freedom of Information is a Human Right (Informationsfreiheit ist ein UN Menschenrecht): http://www.heise.de/tp/deutsch/special/frei/12314/1.html
Telepolis (08.06.2002): Bananas Republic Germany (Bananenrepublik Deutschland): http://www.heise.de/tp/deutsch/special/frei/12689/1.html
Telepolis (03.05.2002): What can a Citizen Achieve? (Was kann der einzelne Bürger bewirken? Interview mit Walter Keim): http://www.heise.de/tp/r4/artikel/12/12456/1.html
Tagesspiegel (l 8.12.2006): President of the ECHR exhorts Germany (Europäischer Menschenrechtshof: Präsident ermahnt Deutschland).
Overview: Human right of access to information in EU, Council of Europe and UN: http://wkeim.bplaced.net/foil.htm#eu
REPORT BY THE COMMISSIONER FOR HUMAN RIGHTS MR THOMAS HAMMARBERG ON HIS VISIT TO GERMANY: http://wkeim.bplaced.net/files/Bericht-des-Menschenrechtskommissars.html: Strengthen the mandate of the German Institute for Human Rights with regard to structural and factual monitoring and in respect to its consultative role in the process of drafting legislation with human rights relevance.
21.12.2003: Petition Violations of
Human Rights in Germany: Invitation of the Human Rights Commissioner
of the CoE to Germany:
http://wkeim.bplaced.net/petition_me-en.htm
Human Right Violations in Germany:
Freedom of Opinion, Information, Association, Family Life and Right
to Fair Trial:
http://wkeim.bplaced.net/files/de_human_rights.htm
Legal framework for the right of access to information: http://right2info.org/laws
Right to Information Rating: http://www.rti-rating.org/country-data/
GRECO GrecoRC3(2016)5eng Final Germany (18. Mrach 2016): Third Evaluation Round. Second Compliance Report on Germany. ”Incriminations (ETS 173 and 191, GPC 2)”: https://rm.coe.int/16806c6398
Freedom of Information missing in South Germany: http://wkeim.bplaced.net/foi-laws-eu-de.gif
Lobbypedia - GRECO: http://www.lobbypedia.de/index.php/GRECO
Keim, Walter (24. August 2012): GRECO failed in Second Evaluation Round and must therefore do better in Third Round : http://wkeim.bplaced.net/files/foi-greco.htm
30. August 2012: Mr. Frank La Rue, UN Special Rapporteur: 5 German states fail to respect human right of access to information, found for 84% of the worlds population
[Freedom of Information] [Petitions] [Constitutional complaint] [Human rights] [Homepage]
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Colours on picture: dark green: FOIA enacted. Yellow: pending law. FOIA= Freedom of Information Act
