Draft: This complaint will be lodged after a similar complaint to the European Court of Human rights is decided on.

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Walter Keim, Email: walter.keim@gmail.com
Almbergskleiva 64
NO-6657 Rindal
Norway


Human Rights Committee c/o OHCHR-UNOG,
Petition Team
United Nations Office 
8-14 avenue de la Paix 
CH-1211 Geneva 10,
Switzerland



Individual Complaint: Denial of Access to Information

 

I ask the Centre for Human Rights of the United Nations to process this individual complaint according to the Optional Protocol to the International Covenant on Civil and Political Rights of the ICCPR (International Covenant on Civil and Political Rights).

I am a citizen of Germany. Germany has signed the ICCPR and Optional Protocol including the human right of Freedom of Information including access to documents of public administration. The German Parliament has implemented the Covenant into German law published in German law magazine (BGBl. 1973 II S. 1534)

More then 100 States adoptet FOI laws. Bavaria lacks a FOI law, to access public documents of all sectors. The report CommDH(2007)14 of the Human Rights Commissioner Thomas Hammarberg about his visit to Germany 9. – 11. and 15. – 20. October 2006 suggests to add human rights to the core curricula in the legal education and practical training of lawyers and educate judges and administration in human rights. The petition II/VF.0993.15 to the parliament in Bavaria suggests to follow the recommendation and educate judges and administration in human rights. 3. July 2008 the parliament answered: "The petition is finished on the basis of the statements of the government." This means the suggestions are dismissed. Both the parliament Landtag, the ministry of justice (Justizministerium) and ministry of interior (Innenministerium) refused to give access to these statements, because it was written for the parliament. 13. December 2011 access was again requested, because the human right of access to information is recognized by more then 115 states with 5.9 billion inhabitants. These requests were rejected 23. January 2012 and 31. January 2012 with insufficient reasons. On 14. July 2012 a complaint to the administrative court in Munich was filed.
13 June 2013 the court ruled to deny access e. g. because: Judgement BVerwG, of 16.09.1980, BVerwG 1 C 52.75 says that ECHR does not include access to public documents only access to generally accessible sources (e. g. newspapers). An appeal was filed 25 July 2013. The appeal was denied 14. February 2014. Therefore a constitutional complaint 1 BvR 897/14 has been necessary and was filed 17 March 2014. On 13. January 2016 the Constitutional complaint was rejected.

Domestic juridical/administrative remedies have have been exhausted:

The Complaint of 14. July 2013 to the Administrative Court (Verwaltungsgericht) München case VG München Keim ./. Bavaria Az. M 17 K 12.3408 1 applies for:

Access to statements of the government to reject the proposals of the CoE Human Rights Commissioner Thomas Hammarberg according to ICCPR

The Administrative Court (Verwaltungsgericht) München case VG München Keim ./. Bavaria Az. M 17 K 12.3408 denied access to documents 13. June 2014:

 Access is denied. The complainant has to pay the costs. .. The amount of controvercy was set to € 5000.- (twelve thousand EURO). Appeal is denied 2

The complaint of 25. July 2013 7 against the denial of appeal was answered with judgement 14. February 2014 of the Higher Administrative Court (Verwaltungsgerichtshof) BayVGH BayVGH Az. 5 ZB 13.1559 reads:

The appeal is rejected by sentence which is final." 3

The rejection of the appeal fails to meet international standards. 4

The complaint to the constitutional court of 17. March 2014 was rejected 13. January 2016:

According to § 93 b in connection with 93 a BVerfGG (Federal Constitutional Court Act) the dicision is: The complaint is not accepted. A reason is not given according to § 93 d Abs. 1 Satz 3 BVerfGG ("gemäß § 93 b in Verbindung mit 93 a BVerfGG (..wird) einstimmig beschlossen: Die Verfassungsbeschwerde wird (..) nicht zur Entscheidung angenommen. Von einer Begründung wird gemäß § 93 d Abs. 1 Satz 3 BVerfGG abgesehen"). 5

§ 93a and 93b BVerfGG (Federal Constitutional Court Act) read:

"Article 93 a

(1) A constitutional complaint shall require acceptance.
(2) It shall be accepted
(a) in so far as it has fundamental constitutional significance,
(b) if this is indicated in order to enforce the rights referred to in Article 90 (1) above; this can also be the case if the complainant suffers especially grave disadvantage as a result of refusal to decide on the complaint.

Article 93 b

The chamber may refuse to accept the constitutional complaint or accept it prior to a decision in the case of Article 93c below. Otherwise the panel shall decide on acceptance.

Article 93 c

(1) If the conditions of Article 93 a (2) (b) above are fulfilled and if the constitutional issue determining the judgment of the complaint has already been decided upon by the Federal Constitutional Court, the chamber may allow the complaint if it is clearly justified. This decision is equal to a decision by the panel. A decision stating, with the effect of Article 31 (2) above, that a law is incompatible with the Basic Law or with other Federal law shall be reserved for the panel.
(2) Articles 94 (2)-(3) and 95 (1)-(2) below shall apply to the above procedure."

showing that access to documents was not considered relevant and important enough to accept the complaint.

The Council of Europe and UN secure access to information in conventions. Afterwards it is possible to complain to international bodies. 6

The X. Baltic Sea NGO Forum, Tuesday, 24th April 2012, 11:00-12:45 gave material for 2nd session WS III Human Rights about: Freedom of access to information:

X. Baltic Sea NGO Forum 2012, in WS III Human Rights: Freedom of information recommended in the Final Statement that the Baltic Sea NGO Network oversee the implementation of the Universal Periodic Review (UPR) process in each country of all the Council of Baltic Sea States (CBSS) member states:11

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”.

Due to the lack of an access to information law in Bavaria and elsewhere in Germany I have also been the victim of several refusals of access to documents from 2001 to 2005:

However cases Keim v. Germany: Appl. No. 41126/05, Keim (II) v. Germany Appl. No. 31583/07 and Keim ./. Germany (III) No. 46953/09 at the European Court of Human Rights did not help. The European Court of Human Right recognises access to public documents for the press, NGOs and whatchdogs, but seems not to include individuals

High costs unreasonably high barrier to justice restricting direct participation according to ICCPR Article 25: "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly". The higher administrative court did not remove this barrier and the Constitutional Court did not find it unconstitutional.

8. May 2003 it was written that I was demanding FOI laws in Germany. This is false as the facts of my complaint show: I simply complain that I am the victim of denials of access and ignoring  the ICCPR by German administration and courts.

It is true that I have written petitions suggesting that parliaments give Freedom of Information laws. However this is a citizens right, which can not be used to exclude me from complaining to UN on a different basis i. e. being a victim.

Background

Freedom of Information also called access to public documents is an essential aspect of transparency which is itself an essential part of democracy. This citizen right is adopted in more then 125 states around the world, many of which consider it a constitutional basic right.

Germany is in 4 of 16 states up to now the only major country in EU, Europe, OSCE, OECD and developed civilized countries without Freedom of Information. Therefore 40 % of the population in Germany lack Freedom of Information in communities, counties and federal states.

All over Europe access to public documents was adopted on the basis of recommendation 81 (19) of CoE of the year 1981. On Balkan only Montenegro is missing. Will German states fall back the last Balkan state? Will European standards of citizen rights have a chance in German states?

I would like to emphasize that the right to information is part of the right to freedom of expression, which is confirmed by international human rights laws, specifically by the International Covenant of Civil and Political Rights (article 19), and the Universal Declaration of Human Rights (article 19), all of them ratified by Germany and incorporated into German law. German states violate the covenant.

The Charter of Fundamental Rights of the EU gives Freedom of Information in Article 42, access to documents in Article 41 (2), the right to complain in Article 43 (Ombudsman) and the right to fair answers within reasonable time in Article 41 (1). The "European Codex of god Administration" defines latest two months to get an answer (Article 17).

As European my opinion is that Germany should respect the fundamental rights of the Charter of the European Union. Unfortunately German administration abuses national sovereignty to deny fundamental rights of the  Charter of Fundamental Rights of the EU.

The sentences of the administrative courts do not take into account the human right of Freedom of Information according to Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR) (BGBl. 1973 II S. 1534). This violates. Article 1 (2) Basic Law:

"(2) The German People therefore acknowledge inviolable and inalienable human rights as the basis of every human community, of peace, and of justice in the world."

It is not in accordance with the acknowledgement of human rights, that the administrative courts even did not look at all to the question of human rights violations.

Further the administrative court Berlin ruled 9. May 2005 not to admit the administrative denial of access to be taken to court. Ignoring the ICCPR totally the court said there is no "legal basis" to ask for access to documents. According to the court the case raises no principle constitutional questions. The administrative court ruled that an appeal is not allowed. The amount of controversy was set to € 12 000.-. The loss at the lower administrative court will cost approximately € 600.- which corresponds to 20 days in Prison. The high amount of controversy makes it not affordable for me to complain to higher administrative court, because the costs would be more than € 3000.-.

Unfortunately there are many more human rights violations in Germany, which are ignored by the authorities, the press and the public. The administrative court approved that my petition of 21 December 2003 on Human Right violations in Germany is not even answered. Germans do not have the right to get a fair justified answer to petitions (1 BvR 1553/90).

Article 5 (1) Basic Law on freedom of expression reads: 

"(1) Everyone has the right to freely express and disseminate his opinion in speech, writing, and pictures and to freely inform himself from generally accessible sources."

The lack of access to documents weakens my communicative competence, which I need in order to complain to the UN, WHO, Council of Europe and EU.

The International Covenant on Civil and Political Rights (ICCPR) Article 19 (2), describes the human right of freedom of information, with has the rank of a federal law: 

"(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." 

None of the exceptions of Article 19 (3) are appropriate in this case:

"(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The report (UN Doc. E/CN.4/1999/64, para. 12) illustrates that the access to public is included in article 19:

[T]he Special Rapporteur expresses again his view, and emphasizes, that everyone has the right to seek, receive and impart information and that this imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems - including film, microfiche, electronic capacities, video and photographs - subject only to such restrictions as referred to in article 19, paragraph 3, of the International Covenant on Civil and Political Rights. 

UN, OSCE and AOS conform in their Joint Declaration of 6. December 2004, that Access to Information is a human right:

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.

In "Freedom of Information: A Internationally Protected Human Right" by Toby Mendel, it is shown that both OAS (in America) and OAU (in Africa) protect Freedom of Information in their areas. In Europe UN has a duty to do to protect this human right.

In Article 1 (2) Basic Law the German people acknowledges human rights. This acknowledgment is violated by the administrative courts.

The relation between International law and federal law is described in Article 25 Basic Law:

"The general rules of international law shall "be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory."

Summary

"The Universal Declaration of Human Rights (1948) gives in clear and simple language the basic rights which everybody is entitled to.

PREAMBLE

To sum up one must say that Germany abuses it's sovereignty to deny Germans the human right of freedom of information. Therefore I am as German a second class citizens in the EU and Europe. Even worth: EU citizens, who move to Germany loose the human right of freedom of information, which they had in the country they come from. The mothers and fathers of the wrote they were "animated by the purpose to serve world peace as an equal part in a unified Europe," (Preamble Basic Law), not the continuation of authoritan pieces (as the only country in Europe): The "Amtsgeheimnis" (official secrecy) as relict of Prussian authorial state, which puts secrecy higher than democratic participation and human rights of citizens.

This complaint is published here: http://home.broadpark.no/~wkeim/files/un-2016.html.

Sincerely,


Walter Keim
Almbergskleiva 64
NO-6657 Rindal
Norway
E-Mail: walter.keim@gmail.com
Human Right violations in Germany: http://home.broadpark.no/~wkeim/files/de_human_rights.htm
Support Freedom of Information: http://home.broadpark.no/~wkeim/foil.htm#e-mail
Support Patients' Rights: http://home.broadpark.no/~wkeim/patients.htm#e-mail

Copy: OHCHR-UNOG G/SO 215/51 GERM ES, EU Commission, EU Parliament, EU Council, Council of Europe, OSCE, OECD and UN

Result:

List of appendices:

  1. Complaint of 14. July 2013 to the Administrative Court (Verwaltungsgericht) München case VG München Keim ./. Bavaria Az. M 17 K 12.3408: 1. http://home.broadpark.no/~wkeim/files/vgm-2012.htm

  2. Judgement of the The Administrative Court (Verwaltungsgericht) München case VG München Keim ./. Bavaria Az. M 17 K 12.3408 denied access to documents 13. June 2014:: http://home.broadpark.no/~wkeim/files/vgm-urteil.pdf

  3. Judgement 14. February 2014 of the Higher Administrative Court (Verwaltungsgerichtshof) BayVGH BayVGH Az. 5 ZB 13.1559: http://openjur.de/u/680803.html

  4. Basis for Constitutional complaint 2014: http://home.broadpark.no/~wkeim/files/vgm-130706.htm

  5. 29. September 2005: The complaint is not accepted by the Constitutional Court: http://home.broadpark.no/~wkeim/files/2016-Beschluss_Bundesverfassungsgericht.pdf

  6. The Council of Europe and UN secure access to information in conventions: http://home.broadpark.no/~wkeim/files/enforce_access_to_information.html

  7. Freedom of information recommended in the Final Statement that the Baltic Sea NGO Network: http://home.broadpark.no/~wkeim/files/foi-upr-de.htm

  8. Toby Mendel: Freedom of Information as an Internationally Protected Human Right, http://www.juridicas.unam.mx/publica/rev/comlawj/cont/1/cts/cts3.htm und  http://home.broadpark.no/~wkeim/files/Mendel-627.htm

  9. Petition on Human Rights Violations in Germany: http://home.broadpark.no/~wkeim/petition_me-en.htm

  10. Letter to "Robin Hood" of German justice system 19. October 2003: http://home.broadpark.no/~wkeim/files/vg-031019.htm, letter to second lawyer: http://home.broadpark.no/~wkeim/files/vg-050510.htm

  11. Costs € 770.-: Case VG 2 A 85.04: Walter Keim vs. Federal Republic of Germany: http://home.broadpark.no/~wkeim/files/vg-051112-en.htm

  12. Doctors Court denies access to documents: http://home.broadpark.no/~wkeim/files/0511labw-en.htm

  13. 20. December 2005 the Constitutional Court dinies to admit constitutional complaint of 3. November 2005

  14. 08. May 2003: "Not sufficiently showed that you are personally affected of a violation of the ICCPR": http://home.broadpark.no/~wkeim/files/030508un.pdf.

 

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Picture: Dark green: Law in effect. Bright green: Freedom of information in constitution only. Yellow: Pending law. FOIA= Freedom of Information Act

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