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, 10. December 2004 (Human Rights Day) [added January 2005]

  

Miklos Haraszti  
OSCE Representative on Freedom of the Media    

Office of the OSCE Representative on Freedom of the Media
Kaerntner Ring 5-7, Top 14,2.DG 
A-1010,Vienna
Austria

 Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression
c/o Office of the High Commissioner for Human Rights
United Nations Office at Geneva
United Nations Office at Geneva
8-14 Avenue de la Paix
CH-1211 Geneva 10, Switzerland



Access to Public Documents (in 12 of 16 German Lander e. g. Baden-Württemberg) and Other Human Rights Missing in Germany

Sir,

I appreciate the Joint Declaration by UN, OAS, OSCE Rapporteurs on International Mechanisms for Promoting Freedom of Expression of 6 December 2004 showing your commitment to the right to access to information: http://merlin.obs.coe.int/iris/2005/2/article1:

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.

I refer to your task [and mandate]as OSCE Representative on Freedom of the Media to observe relevant media developments in OSCE participating States and, in close co-ordination with the Chairman-in-Office, to advocate and promote full compliance with OSCE principles and commitments in respect of freedom of expression and free media.

I also refer to the task of the UN Special Rapporteur "to seek and receive credible and reliable information from governments and non-governmental organizations and any other parties who have knowledge of these cases; and to submit annually to the Commission a report covering the activities relating to his or her mandate, containing recommendations to the Commission and providing suggestions on ways and means to better promote and protect the right to freedom of opinion and expression in all its manifestations." 

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 in the OSCE area. 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 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.

Fortunately the federal parliament (Bundestag) will discuss a law by its own initiative 17. December 2004. I appreciate that CoE is observing the situation in Europe and hope that CoE will take a close look at the outcome: http://home.broadpark.no/~wkeim/files/coe-031226.htm.

Unfortunately the state parliament of Baden-Württemberg voted against access to public documents. The suggestion to translate recommendations of the CoE was turned down due to costs. In protest I gave up my address in Baden-Württemberg.

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. [According to the Federal constitution protection law § 4 (2) there are "Among the liberal democratic basic order in the sense of this law (...): g) those human rights which are part of the Basic Law". Since access to documents is missing in the German Basic Law (Constitution), it is neccessary to add this human right in order to give Germans the same human rights as citizens in other civiliezed countries.] 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 not able to live human rights but they 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..

Please observe:

This lack of fair treatment makes a discussion impossible. Therefore I would appreciate if you could mention these problems in your reports and discussions with the German government. The European Court of Human Rights has sentenced Germany many times because of unfair trials.

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 will have to start at the district court in Berlin: http://home.broadpark.no/~wkeim/files/verwaltungsgericht-en.htm. 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.

Germany is the only country in Europe, which reserved the right not to comply with CoE Recommendation (85) 13 of appointing an independent Ombudsman to observe human right violations. 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.

The German Institute of Human Rights (Deutsche Institut für Menschenrechte) was founded on the basis of suggestions of the UN Resolution 48/134  and CoE 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 and CoE wished). There 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?). 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?

12 december 2004 the Internationalen Liga für Menschenrechte (International League for Human Rights) honoured Percy MacLean with the "Carl-von-Ossietzky-Medaille" for his merits to support human rights in Germany.

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. 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 used the means of unfair treatment, i. e. not deciding on the subject until 29. July 2004, thus stopping the case from being filed to the European Court for Human Rights.

Unfortunately the German Constitutional Court failed 29. July 2004 to declare the Law of Legal Advice of 13. December 1935 (69 years ago!) unconstitutional: http://www.forumjustizgeschichte.de/Wasch_mir_den_P.198.0.html. The result is very simplified that judges now can give free altruistic advice. Therefore the "Robin Hood" of German legal system has to use a case before the European Court of Human Rights: http://home.broadpark.no/~wkeim/files/bockmann_nazi_law.htm to overcome this Nazi law from 13. December 1935, which is unnecessary restricting Article 47 of the Charter of Fundamental Rights of the European Union: "Everyone shall have the possibility of being advised, defended and represented." 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 reform of the law from 1935 http://home.broadpark.no/~wkeim/files/031213rberg-en.htm seems to fail: http://www.adversario.de/article254.html .

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.

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.

[The German Crimanal Code punishes if Germans communicate violation of international treaties or violations of the democratic constitutional order "a foreign power" (Section 93 (2) and Section 97a):

Section 93 Definition of State Secret

(1) State secrets are facts, objects or knowledge which are only accessible to a limited category of persons and must be kept secret from foreign powers in order to avert a danger of serious prejudice to the external security of the Federal Republic of Germany.

(2) Facts which constitute violations of the independent, democratic constitutional order or of international arms control agreements by virtue of having been kept secret from the treaty partners of the Federal Republic of Germany, are not state secrets.

Section 97a Betrayal of Illegal Secrets

Whoever communicates a secret, which is not a state secret because of one of the violations indicated in Section 93 subsection (2), to a foreign power or one of its intermediaries and thereby creates the danger of serious prejudice to the external security of the Federal Republic of Germany, shall be punished as a traitor (Section 94). Section 96 subsection (1), in conjunction with Section 94 subsection (1), no. 1, shall be correspondingly applicable to secrets of the type indicated in sentence 1.

German law does not protect “Whistleblowers” releasing wrongdoing by public bodies, as UN, OSCE and AOS propose, but punishes them as "traitor".

The German Crimanal Code punishes insult in section 185 and defamation in section 187 which is contrary to international standards e. g. JOINT DECLARATION 2002 by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression. Details are worked out at the Regional Conference on Defamation and Freedom of Expression, Strasbourg, 17-18 October 2002.]

As shown by the Schavan case, Berufsverbote from the cold war time are back in Baden-Württemberg (Germany): http://www.gegen-berufsverbote.de/lib/international/chronoenglish.html.

Unfortunately I got no answer from UN to my complaints 27. February 2004: http://home.broadpark.no/~wkeim/files/un-complaint.htm and 16. August 2004: http://home.broadpark.no/~wkeim/files/un-040816.htm.

EU has repeatedly send me to the Council of Europe regarding Access to information: The Commission 8 May 2002 and the EU Ombudsman: 7. June 2004 have suggested to contact the Council of Europe regarding human right violations in Germany.

As suggested by EU I have informed the Human Rights Commissioner of the Council of Europe: http://home.broadpark.no/~wkeim/files/coe-complaint.htm who will review this material in the context of a future visit: http://home.broadpark.no/~wkeim/files/coe-031128.htm. In addition I have informed the Council of Europe about the situation in Germany: http://home.broadpark.no/~wkeim/files/coe-031226.htm in the context of a survey. I appreciate that the Human Rights Commissioner will look at the information in the context of a survey, but I am not sure if he gets invited. No German organisation has given a positive answer to me. Has UN/OSCE the possibility of a visit or manage a invitation?

The President Luzius Wildhaber of the European Court of Human Rights (ECHR) criticized the German government and the German constitutional court. The fact that judgments of the European Court of Human Rights are not followed by German courts shows lack of commitment to Europe: http://www.spiegel.de/politik/deutschland/0,1518,327801,00.html. Germany violates Article 46 of the European Convention of Human Rights to obey judgments.

Unfortunately Germany does not follow the conventions of the Council of Europe here. Therefore I would like to ask UN/OSCE for support.

Since I have no possibility to even get an answer from government, parliament (it took 3 years here) and constitutional court, I would like to suggest your support to advocate and promote full compliance with UN/OSCE principles.

Any other action to promote Freedom of Information in Germany is welcomed, so all Europeans come closer to enjoy Freedom of Information.

I am looking forward to receiving your answer.

Sincerely,

Walter Keim
In my opinion Germany must be sentenced: http://home.broadpark.no/~wkeim/files/041106btf-en.htm
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
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/de_legal_advice_law_overview.htm
  4.  Petition to German parliament on violations of human rights: http://home.broadpark.no/~wkeim/petition_me-en.htm
  5.  In my opinion Germany must be sentenced: http://home.broadpark.no/~wkeim/files/041106btf-en.htm

Copy: Bundeskanzler, Landtagspräsident von Baden-Württemberg, Ministerpräsident von Baden-Württemberg, Committee of Petitions of German Federal Parliament, Verwaltungsgericht Berlin

Development:

 

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