Ähnlicher Stoff auf Deutsch: http://home.broadpark.no/~wkeim/files/de_menschenrechte.htm

Walter Keim, E-mail: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, 27. February 2004
 

Commissioner António Vitorino
Justice and Home Affairs
European Commission 
B-1049 Brussels 
Belgium 

Access to Public Documents and Fundamental Rights in Germany

Sir,

I appreciate that the European Commission suggested 1993 in Communication 93 (191) freedom of information i.e. access to public documents. Later the Charta of the 
EU Article 42 and Article 255 of the Treaty on European Union were updated and it was successfully implemented: http://europa.eu.int/comm/secretariat_general/sgc/acc_doc/index_en.htm

In environmental matters freedom of information is implemented according to a EU directive (Council Directive 90/313/EEC).  This was adapted not 31. December 1992 but two years too late on 15. July 1994. German bureaucracy tried to hinder Germans with help of high costs to use freedom of information. It was prohibitive to have to pay even if the
access was denied. I appreciate that the European Commission won (Case C-217/97) at the European High Court to achieve that Germans could benefit from freedom of information in environmental subjects.

Communication 93 (191) included mainly plans for EU, but the Commission proposed that member states should also recognize freedom of information: http://home.broadpark.no/~wkeim/files/KOM(93)161.pdf. Today the Commission is relaying on the CoE: http://home.broadpark.no/~wkeim/330166.htm. But the CoE has no mandate to examine or intervene in individual cases: http://home.broadpark.no/~wkeim/files/coe-031128.htm

I suggested Freedom of Information for member states to the Convention: http://home.broadpark.no/~wkeim/020427eu.htm. But I understand that the Convention failed that member states give Freedom of Information to its own citizens.

Most European countries have implemented access to public documents according to Recommendation No. R (81) 19 of the Council of Europe from 1981, making this a success story in democratic progress: compare map March 2000 and map today: http://home.broadpark.no/~wkeim/foi-europe.gif. But there are unfortunately a few exceptions: http://home.broadpark.no/~wkeim/foi-laws-eu-de.gif. Unfortunately Germany does not even translate recommendations of the CoE: http://home.broadpark.no/~wkeim/020106coe.htm

The governments of Switzerland: http://www.ofj.admin.ch/bj/de/home/themen/staat_und_buerger/gesetzgebung/oeffentlichkeitsprinzip.html, Serbia http://www.yumediacenter.com/english/mom/2003/7/m280703e.html#vest1, Macedonia and Montenegro have sent draft Freedom of Information laws to parliament. Germany (in the federation and 12 of 16 lander) and Luxembourg are now competing to be the last in Europe regarding Freedom of Information.

The German government has promised a Freedom of Information Law since 1998 (in German: "Informationsfreiheitsgesetz"). 2001 a draft has been presented so long. Therefore one should expect that the government is aware that Freedom of Information is missing.

But in its report to UN on ICCPR: CCPR/C/DEU/2002/5 of 4 December 2002 http://193.194.138.190/tbs/doc.nsf/(Symbol)/CCPR.C.DEU.2002.5.En?Opendocument Germany claims in point 240 to comply with ICCPR Article 19 (2) and Freedom of Information. It is referred to of Article 5 of the Basic Law. I complained to the UN about this: http://home.broadpark.no/~wkeim/files/un-complaint.htm

But this is wrong because the Article 5 of the Basic law (In German: Informationsfreiheit) states expressively: "from generally accessible sources", i. e. does not provide access to public documents. Therefore Freedom of Information is missing in Germany. 

In this report to UN on ICCPR: CCPR/C/DEU/2002/5 of 4 December 2002 German government writes in point 3 of the preliminary remarks:

Article 1 para 1 of the Basic Law reads as follows: "The dignity of man is inviolable. To respect and protect it is the duty of all state authority." This principle follows from Article 1 of the 1948 Universal Declaration of Human Rights. In Article 1 para 2 of the Basic Law, "the German people … acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world".

Those who write this know about Article 1 para 3 says: (but who bites the hand which feeds him?)

The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.

In other words the legislative the executive and the judiciary are only bound by what follows i. e. basic rights, not Article 1 para 2 i. e. human rights. Therefore German courts decide against human rights if there is a conflict, e. g. the highest Court in the German land Rhineland-Palatine LG Mainz (1 QS 25/98) stated that the court can not give access to documents (as 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. Therefore human right violations are well documented: http://home.broadpark.no/~wkeim/files/de_human_rights.htm in many cases. On the other hand courts are faithful to laws from pre-democratic times: The Long Arm of the (Nazi) Law: http://home.broadpark.no/~wkeim/files/bockmann_nazi_law.htm

The deeper problem is Germans history. Never have Germans been able to create democracy by there own strength. Germans seem not to know human rights and are faithful to their history where authorities have privileges unknown in the other democracies in Europe. One of these privilege is that it is the authority (government/ administration, parliament and court) who decides whether to answer or to give a reason for the decision. This is considered unfair treatment by international standards, but is accepted by German population. Most of Germans will have to develop from servile spirits to humans.

The legislature, the executive, and the judiciary in Germany do not give a guarantee to always support human rights (That were the words the state used against critics). The European Convention on Human Rights and Fundamental Freedoms (ECHRFF), International Covenant on Civil and Political Rights (ICCPR) and the Charter of Fundamental Rights of the EU are not followed. But "normal Germans" seem not to care: That's what they are used to, that's how it always has been in Germany. I understand that I am by many seen as very "un-normal" and "difficult", because I know about and fight for international standards and human rights. I am told "stop talking about foreign and international laws, which have nothing to say in Germany, because Germany is a sovereign country". How can the government write Germans acknowledge human rights? The government itself does not even answer letters about this.

Germany has signed the ICCPR but rejected to comment up to now this violation of human rights in petitions I filed. Therefore I asked for access to information, cornering the communication between parliament and ministry regarding these petitions. Both parliament and ministry refused access:

My investigation why Germany (in the federation and 12 of 16 lander) is the only OECD country, only civilized country and only developed country without freedom of information seems to indicate that government, parliament, legal system and the public including the press does not (want to) know that Germany will soon be the only country in Europe without Freedom of Information.

Traditionally it is up to the authorities (government/ administration, parliament and courts) to decide if they answer or if the answer is fair i. e. gives a reason.

Please observe:

This lack of fair treatment makes a discussion impossible. Therefore I would appreciate if the European Union could strengthen citizens rights in member states to the level of the Charter of Fundamental Rights. The European Court of Human Rights has sentenced Germany many times because of unfair trials.

I have informed the Human Rights Commissioner http://home.broadpark.no/~wkeim/files/coe-complaint.htm who will examine the material in the context of a visit http://home.broadpark.no/~wkeim/files/coe-031128.htm. But who will invite the Commissioner for Human Rights: the government, the BMJ, the Committee of Petitions, the Committee of Human Rights, the Deutsche Institut für Menschenrechte (Human Rights Institut), the Forum für Menschenrechte or the UN?

The only means of complaint on individual level against the lack of access to public documents I am aware of is a complaint to the European Court of Human Rights. Unfortunately I had to start at the district court in Berlin: http://home.broadpark.no/~wkeim/files/verwaltungsgericht-en.htm. This complaint is about Freedom of Information and fair answers to petitions. My petition filed 21. December 2001 on Freedom of Information has not been answered. The Committee is waiting to get an answer from the Ministry of Interior, but the Ministry of Interior writes not to have received the petition to comment on it: http://home.broadpark.no/~wkeim/files/040125bmi.htm (Sorry in German only). Is this deadlock serious enough, that the administrative court will consider it unfair: http://home.broadpark.no/~wkeim/files/verwaltungsgericht-en.htm ? Will the administrative court demand, that the Committee of petitions confirms receipt of the petition on human rights dated 21.12.2003?

On the way to the European Court of Human Rights I am forced to have a lawyer at the "Oberverwaltungsgericht". In order to save my lawyer from a berufsverbot I have done a intervention at the Bundesgerichtshof (Case 1 ZV 65/02: "Krumbiegel scandal" ) http://home.broadpark.no/~wkeim/files/031224anw.htm, because I assume that the lawyers monopoly according to the law on legal advice from 1935 http://home.broadpark.no/~wkeim/files/de_legal_advice_law_overview.htm will not fall soon enough.

The German Institute of Human Rights (Deutsches Institut für Menschenrechte) was founded on the basis of suggestions of the UN resolution 48/134 of 20. December 1993 and Recommendation No. R (97) 14.  The first director Percy MacLean (now again judge at the Verwaltungsgericht Berlin) had to resign, because he monitored human rights in Germany (how UN wished). Their opponents favoured to monitor international developments. (See his article: Das Deutsche Institut für Menschenrechte - Vision und Wirklichkeit: Wie soll es nach dem erzwungenen Rücktritt des ersten Direktors weitergehen? Vision and reality: How to proceed?).  Especially steering members Mrs. Dr. Hanna-Beate Schöpp-Schilling and Mrs. Barbara Unmüßig opposed to monitor human rights in Germany. I have asked for access to these documents arguing I need access to strengthen my knowledge for this complaint. I am afraid UN has self to make an effort, because up to now access is denied. I perceive this as a scandal and have therefore informed both the press, NGOs and half of the members of the federal parliament. Nothing happened: Is this considered "normal" in the human rights phobic atmosphere in Germany?

Germany is the only country in Europe, which reserved the right not to comply with CoE Recommendation (85) 13 of appointing an independent Ombudsman. The Committee of Petitions should be the Ombudsman in Germany, but does not show up when the European Ombudsmen Conference by the Council of Europe Commissioner for Human Rights is hold. Therefore they have no chance to learn something there.

Freedom of information is not the only human right violated in Germany. Both freedom of opinion, freedom of association and fair trial are violated: http://home.broadpark.no/~wkeim/files/de_human_rights.htm. Watchdog documents additional violations of Human Rights.

I was confronted with these problems because it is not easy for Germans to get to know own legal rights, because of a monopoly on legal advice hold by lawyers, according to the Law on Legal Advice from 13. December 1935: http://home.broadpark.no/~wkeim/files/de_legal_advice_law_overview.htm 3.

Strange court decisions http://home.broadpark.no/~wkeim/files/bockmann_nazi_law.htm 2 are still possible due to this laws from pre-democratic times. I understand that the integration helper worked for a project funded by the EU. Why is there no possibility to complain to EU bodies in order to protect EU projects from old German laws? German "legal systems Robin Hood" is fighting against 1 this law at the European Court for Human Rights and the German constitutional court filed 6 April 2000. The constitutional court uses the means of unfair treatment, i. e. not deciding on the subject, thus stopping the case from being filed to the European Court for Human Rights. Germany is the only country in the world where it is forbidden to altruistically give free legal advice. This law is still in force, because the Allies forgot to remove it after the Second World War.  It is a scandal that Judicial branches in Germany still obey Adolf Hitler's laws..

The forced membership in the German lawyers bar (Rechtsanwaltskammer) violates Article 20 (2) of the UN Declaration of Human Rights ("No one may be compelled to belong to an association."). Lawyers who are critical to the German legal system can be fired from the bar with the help of a monopoly dating back to a law on legal advice from 1935, which means a Berufsverbot. The German bar (Bundesrechtsanwaltskammer) is the successor (see § 233 BRAO), of the Reichs-bar (Reichs-Rechtsanwaltskammerder) from 18. March 1933 and constituted (Reich-Rechtsanwaltsordnung) on 13. December 1935. The lawyers bar in Cologne tries (See Krumbiegel Scandal) to fire a lawyer, who promotes Human Rights and his clients interests in clear words. Many citizens protest: Solidarity with RA Claus Plantiko: (click and add line shift) Letter to lawyers bar (Rechtsanwaltskammer). Here is an intervention.

With the exception of
one article, German press does not report on this case. International public and international press seems not to know about this. Outside Germany this is totally unknown according to the Internet.

Article 6 (1) of the Treaty on European Union (TEU) lists the principles common to the Member States: liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. In EU COM (2002) 247: Communication from the Commission - A project for the European Union chapter 1.2 The Union must build up an EU-wide area of freedom, security and justice. reads: "The European area of freedom, security and justice thus provides a guarantee for the principles of democracy and respect for human rights".

Germany abuses its sovereignty to disrespect: (See Petition: http://home.broadpark.no/~wkeim/petition_me-en.htm)

In 2004 there will be 460 million Europeans in EU member states. Will Germans be outnumbered enough that you have the courage to propose directives securing access to public documents so all Europeans come closer to enjoy Freedom of Information? Will you have the courage to propose an independent European Ombudsman, Europeans can complain to about human right violations in member states?

How will the fundamental rights be secured in member states to provides a guarantee for the principles of democracy and respect for human rights?

I am looking forward to receiving your answer.

Sincerely,

Walter Keim
Human Right violations in Germany: http://home.broadpark.no/~wkeim/files/de_human_rights.htm
Support freedom of information:
http://home.broadpark.no/~wkeim/foi.htm#e-mail, http://home.broadpark.no/~wkeim/petition_un.htm, http://home.broadpark.no/~wkeim/petition_eu.htm
Who is responsible for the lack of freedom of information: 
http://home.broadpark.no/~wkeim/I_accuse.htm
Support patients rights:
http://home.broadpark.no/~wkeim/patients.htm#e-mail

Enclosure:

  1.  Dr. Niehenke: Fight against the Law of Legal Advice
  2.  Sueddeutsche Zeitung 14 June 2003: The Long Arm of the (Nazi) Law (“Der lange Atem eines Nazi-Gesetzes“)
  3.  The Law of Legal Advice of 13. December 1935: http://home.broadpark.no/~wkeim/files/031213rberg-en.htm
  4.  Petition to German parliament on violations of human rights: http://home.broadpark.no/~wkeim/petition_me-en.htm

Answer:


Visitor No. since 30. November 2003

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