From: wkeim@broadpark.no [walter.keim@gmail.com]
To: [intl_foia@mailman.epic.org]
Sent: 28. September 2004 ("Right to Know" Day)
Subject: [Intl_FOIA] Who supports Access to Information for Germany?

Hi all,

Is there somebody out there who has better experiences?  

Access to information is a human right according to to the International Covenant on Civil and Political Rights (ICCPR) and the jurisdiction of the European Court of Human Rights (ECtHR). This is the basis of the following petitions and complaints  national, regional and global:

27 complaints about lack of human right of access to information in Germany in the years 2001 to 2013:
  1. Petition to European Parliament: http://wkeim.bplaced.net/petition_eu.htm#ARTICLE19 (27 December 2001): Support in words, but no action.
  2. Complaint to German Constitutional Court: http://wkeim.bplaced.net/v-klage_en.htm#ARTICLE19. Dismissed without giving a reason. 
  3. Petition to German Parliament: http://wkeim.bplaced.net/petition_ifg.htm#ARTICLE19 on Freedom of Information: After 3 years a law, but international standards not met.
  4. Petition the UN Petition Team: http://wkeim.bplaced.net/petition_un.htm#ARTICLE19: No support.
  5. Complaint to UN Human Rights Committee: http://wkeim.bplaced.net/files/un-0509.htm: No answer.
  6. Complaint to United Nations High Commissioner for Human Rights: http://wkeim.bplaced.net/files/un-complaint.htm, http://wkeim.bplaced.net/files/un-0509.htm: No answer.
  7. Question to EU Commission: http://wkeim.bplaced.net/files/eu-complaint.htm: No support.
  8. Complaint to the Council of Europe http://wkeim.bplaced.net/files/coe-complaint.htm. Monitors Germany.
  9. Petition to German Parliament: http://wkeim.bplaced.net/petition_me-en.htm on human rights: No support.
  10. Complaint to Administrative court: Case VG 2 A 85.04: Walter Keim vs. Federal Republic of Germany on Freedom of information and Constitutional Complaint Freedom of Information 1 BvR 1981/05:  No legal basis for such a application.
  11. Complaint to the OSCE (Organization for Security and Co-operation in Europe): http://wkeim.bplaced.net/files/osce-complaint.htm (10. December 2004): Monitors Germany.
  12. UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression: 10 December 2004, 1. July 2006, 1 March 2007: No answer.
  13. Petition to 12 German Lander (federal states): http://wkeim.bplaced.net/files/050731bl-en.htm: 4 laws passed in 2006.
  14. 07. Sep. 2005: Petition to German Parliament to add access to public information to constitution: No support
  15. Complaint to the European Court of Human Rights (ECHR): http://wkeim.bplaced.net/files/echr-complaint.htm (11. November 2005): 02. September 2008: ECHR: "(T)he court found that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention".
  16. Petition to European Parliament on human rights: http://wkeim.bplaced.net/files/petition-hr.htm (10. December 2005): Not even admitted.
  17. Petition to the PACE (Parliamentary Assembly of the Council of Europe): http://wkeim.bplaced.net/files/pace-complaint.htm (1. January 2006). No decision on admission yet. (No answer: http://wkeim.bplaced.net/files/pace1202.htm)
  18. Submission to EU Network of independent experts on fundamental rights: http://wkeim.bplaced.net/files/eu-network-basic-rights.htm (1 June 2006): Funding stopped.
  19. 1. July 2006: Will the International Helsinki Federation for Human Rights (IHF) support human rights in Germany?: http://wkeim.bplaced.net/files/ihf-complaint.htm: Focus on other states.
  20. 1 March 2007: Will the EU Fundamental Rights Agency collect quality data on human rights and fundamental rights in member states?: http://wkeim.bplaced.net/files/eu-hra-complaint.htm: No mandate for individual complaints.
  21. Complaint to ECHR (European Court of Human Rights): Keim (II) v. Germany Appl. No. 31583/07 at the European Court of Human Rights: http://wkeim.bplaced.net/files/egmr-klage-en.htm: Not successful.
  22. 6. February 2008: Petition to German federal Parliament: Germany should Sign and Ratify the Council of Europe Convention on the Access to Official Documents.
  23. 19. August 2009: Keim (III) v. Germany ECHR Appl. No. 46953/09 access to income of MPs sideline jobs. Not admitted.
  24. 24. April 2012: X. Baltic Sea NGO Forum supports Access to Information: The role of international lawmakers and their respective influence on national legislation on access to information. 
  25. 14. September 2012: Parallel Report to the Human Rights Committee on the occasion of the consideration of the Sixth Periodic Report of Germany during the Committee’s 106th Session. 106th session (15 October - 2 November 2012) in Geneva was ignored.
  26. Baltic Sea NGO Forum (18. September 2012): Submission for the Sixteenth Session of the Working Group on the Universal Periodic Review: Germany : http://wkeim.bplaced.net/files/foi-upr-de.htm
  27. Complaint to Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

ARTICLE 19 provided information showing the recognition of "Freedom of Information as an Internationally Protected Human Right" according to Article 19 of the International Covenant on Civil and Political Rights (ICCPR). In fact I would not have had the courage to write these petitions and complaints without your publications.

Although the human right of freedom of information is in more then 90 countries all over the world with 5.5 billion inhabitants both Germany authorities and international institutions seem not actively to support it:

  1. The petition to the EU Parliament is admissible and concludes: Improving the protection of the rights and interests of citizens of the Member States of the Union is listed in Article 2 as an objective of the Union. (see page 7/173 doc. A5-0318/2000): http://wkeim.bplaced.net/files/petition_eu_admission.pdf. However this objective is not actively supported, a consultation of the German Parliament is not started, i. e. Germany can proceed violating Freedom of Information.
  2. The German Constitutional Court does not admit the complaint and gives no reason for this decision: http://wkeim.bplaced.net/files/030310bvg-en.htm .
  3. It took 3 years for the German Parliament to answer the petition dated 21. December 2001. The Committee of Petitions supported the petition 1. December 2004 and suggested to send it to the government "to be taken into account". The parliament was debating it's own draft law, with too many exceptions and expiring after a trial period (see section 15). The president of the German parliament send the Petition of 22. December 2004 to chancellor Schröder. An answer should be given within 6 weeks. At last the parliament (Bundestag and Bundesrat) adopted a Freedom of Information law.
  4. Obviously the UN Special Rapporteur is committed. But this commitment of is not followed up by the UN Petitions Unit: http://wkeim.bplaced.net/files/030425un.htm.
  5. The Human Rights Committee of the UN does not observe that Germany reports false: http://wkeim.bplaced.net/files/031029EFIL.htm about Freedom of Information.
  6. The United Nations High Commissioner for Human Rights did not answer up to now: http://wkeim.bplaced.net/files/un-040816.htm. Will UN take their responsibility according to ICCPR seriously? The last attempt is dated 19. October 2005. The concluding observations do not mention Freedom of Information.
  7. The EU Commission does not promote Freedom of Information in Germany and tolerates member states not respecting human right and fundamental rights of the Charter of the EU. It is suggested to contact the CoE. The EU Ombudsman http://wkeim.bplaced.net/files/eu-complaint_614_2004_TES.htm suggests to contact the Council of Europe: http://wkeim.bplaced.net/files/eu-040607.pdf. However Freedom of Information is only a fundamental right in EU but has been forgotten in the European Convention of Human Rights: http://wkeim.bplaced.net/020106coe.htm. Recommendations are not followed and are not even translated by Germany: http://wkeim.bplaced.net/020106coe.htm.
  8. Will the Commissioner for Human Rights of the CoE promote Freedom of Information: http://wkeim.bplaced.net/files/coe-031128.htm? Here is a contribution  to a survey on FOI in Europe about Germany.
  9. There was no progress on the petition on human rights of 21. December 2003 to the German parliament. Therefore the administrative court was asked for support: http://wkeim.bplaced.net/files/vg-entwurf-en.htm. The administrative court in did not support the idea of a fair answer in case VG 2 A 85.04: Walter Keim vs. Federal Republic of Germany. There is no right to get a fair justified answer according to the decision 1 BvR 1553/90 of the constitutional court.
  10. The Administrative Court in Berlin ruled 9. May 2005 not to admit the denial of access to be taken to court: There is no legal basis for such a application, i. e. international treaties are violated. This was appealed in a Constitutional Complaint 18. August 2005, but not admitted.
  11. The OSCE Representative on Freedom of the Media is monitoring the situation of media in all 55 OSCE participating States, including Germany.: http://wkeim.bplaced.net/files/osce-050106.htm. Country report 2007 (Walter Keim mentioned).
  12. No answer at all from the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.
  13. 8 German lander (federal states) have adopted FOI laws, 2 are working on draft laws and 8 lander have voted against FOI and do not have FOI laws at all. 8 federal states (lander) continue to violate the human right of access to public documents.
  14. German Parliament considered it not necessary to secure access to information in the constitution.
  15. The European Court of Human Rights accepted a complaint dated 23. November 2005, which got Registration No. 41126/05 was given by ECHR. How many years will it take to decide on this case?
  16. On 16 January 2006 the Committee of Petitions of the European Parliament wrote that EU/OSCE human rights principles are not yet covered by EU legislation and did not consider the petition. The Committee is useless to promote human rights.
  17. PACE (Parliamentary Assembly of the Council of Europe) accepted a Petition which was transmitted to competent PACE committee 13. January 2006.
  18. The EU Network of independent experts on fundamental rights answered 16.June 2006: The contract of the EU Network of Independent Experts on Fundamental Rights finishes in September 2006 and will not be renewed.
  19. Will the International Helsinki Federation for Human Rights (IHF) support human rights in Germany? Information is gathered and problematic issues raised in our publications and meetings with authorities. However funding has been stopped.
  20. What will the Fundamental Rights Agency (FRA) of the EU do? Answer: FRA seems not to be allowed to monitor member states.
  21. A decision of the ECHR on admissibility took 3 years: 02. September 2008: ECHR: "(T)he court found that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention" .
  22. 24. July 2010: Germany has no plans to sign the Convention on the Access to Official Documents.
  23. 10. December 2009: Keim (III) v. Germany ECHR Appl. No. 46953/09 access to income of MPs sideline jobs. Not admitted.
  24. 24. April 2012: X. Baltic Sea NGO Forum supports Access to Information: CCPR submission and UPR submission
  25. 106th session (15 October - 2 November 2012) in Geneva ignored the human right of access to information.
  26. Sixteenth Session of the Working Group on the Universal Periodic Review: Germany

The Commissioner for Human Rights of the Council of Europe planned to consider the material in the context of a visit to Germany which was planned in 2005. The visit took place in 2006. The Commissioner made many suggestions e. g. that the German Human Rights Institute should monitor, development of national action plan on human rights.

So up to now little progress is visible, the only result achieved is an investigation on who is responsible for the lack of Freedom of Information in 5 of 16 states in Germany: http://wkeim.bplaced.net/I_accuse.htm.  

Up to 2003 civil society in Germany did not support FOI sufficiently. However in April 2004 German NGOs worked out their own draft FOIA and started a campaign: http://www.pro-information.de/ which was necessary for progress to work out a law. A bill was passed 2005 in the federation. However international standards with respect to maximum disclosure and low fees were not met, 78 % of the world population have better laws. 2006 a Society for Freedom of Information was founded.

Both EU (EU Commission, EU Parliament, EU Council, IHF, Fundamental Rights Agency), Council of Europe, OSCE, OECD, PACE and UN (HRC, OHCHR, UPR) ignore that FOI is still missing in 5 of 16 federal states.

Regards,  

Walter Keim
Support freedom of information: http://wkeim.bplaced.net/foi.htm#e-mail, http://wkeim.bplaced.net/files/osce-complaint.htm
Support patients rights:  http://wkeim.bplaced.net/patients.htm#e-mail

 

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