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
 

Mr. Sergio Vieira de Mello
United Nations High Commissioner for Human Rights     Human Rights Committee
OHCHR-UNOG                                                OHCHR-UNOG
8-14 Avenue de la Paix                                         8-14 Avenue de la Paix
CH-1211 Geneva 10, Switzerland                            CH-1211 Geneva 10, Switzerland

Access to Public Documents Missing in Germany: Report CCPR/C/DEU/2002/5

Sir,

I would like to draw your attention to session 16 March to 3 April 2004 and hope that the concluding observations of the Human Rights Committee will follow up the commitment of the Special Rapporteur to Freedom of Information.

Article 19 paragraph 2 (Freedom of information) of the ICCPR ( International Covenant on Civil and Political Rights) gives the freedom "to seek ... information". According to the Special Rapporteur clearly the right to seek information includes access to information held by public authorities, as the following excerpt from his report, in 1999 (UN Doc. E/CN.4/1999/64, para. 12), illustrates:

"[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."

Article 2 paragraph 2 and 3 of the ICCPR binds states and gives citizens rights for remedies:

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

According to NGO ARTICLE19 Freedom of Information is widely recognized as human right: "Freedom of Information: An Internationally protected Human Right" by Toby MENDEL.

The governments of Switzerland, Serbia and Montenegro have sent draft Freedom of Information laws to parliament. Germany (in 12 of 16 lander) and Luxembourg are now competing to be the last in Europe regarding Freedom of Information.

Switzerland. reports 06/09/99 in point 170 of report CCPR/C/CH/98/2 on plans for a Freedom of Information law, which now have passed government and one chamber of parliament..

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 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.

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. 

Will the UN Human Rights Commission understand that the report is incorrect? In session 80: http://www2.ohchr.org/english/bodies/hrc/hrcs80.htm the subject will be discussed.

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 6 in many cases. On the other hand courts are faithful to laws from pre-democratic times: The Long Arm of the (Nazi) Law. 2 This law has not been considered unconstitutional by the constitutional court.

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 this violation of human rights in petitions I wrote. Therefore I asked for access to information, cornering the communication between parliament and ministry regarding these petitions. Both parliament and ministry refused access:

I seek this information for 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.

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.

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. 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 ZU 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 (Deutsche Institut für Menschenrechte) was founded on the basis of suggestions of the UN (UN resolution 48/134 of  20. December 1993) 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 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?). 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?

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.

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 about international standards.

It is not easy for Germans to get to know own 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 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".

Unfortunately the Petition Team does not follow the commitment of the Specail Rapporteur, see complaint of 18. April 2001 (see link: http://home.broadpark.no/~wkeim/petition_un.htm). First the coordinator of the Petitions Team objected that "Domestic juridical/ administrative remedies do not appear to have exhausted" (see link: http://home.broadpark.no/~wkeim/files/030425un.htm), which seemed to acknowledge that access to information is a human right. But then the complaint was denied, because: it is "Not sufficiently showed that you are personally affected of a violation of the ICCPR" (see link: http://home.broadpark.no/~wkeim/files/030508un.pdf). Since 8 denials of access to documents are listed, it seems that the human right of freedom of information (as defined by the Special Rapporteur) is not followed up.

The complaint is caused by denials of access to public documents. But your employee Markus Schmidt (German citizen) accuses me of misuse, because he misunderstands the complaint that it demands new laws. I simply demand that Germany is granting the rights of the ICCP, which have been transformed to a German law. May be Germany has found a trick to sign the ICCP, but not to have to follow it. But I protest against this typical German attitude to suppress complaints and ask for a new treatment by an unbiased official.   

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/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.  Decision of Rhineland-Palatine LG (higher court) Mainz (1 QS 25/98): http://home.broadpark.no/~wkeim/files/lg_mainz-en.htm
  6. Human right violations in Germany: http://home.broadpark.no/~wkeim/files/de_human_rights.htm


Copy: UNHCR-Special Rapporteur (7. Nov. 2003), Human Rights Committee (18. Nov. 2003)

 

Visitor No. since 13. November 2003

[Back to page on Freedom of Information]    [Human Right Violations in Germany]   [Law on Legal Advice]    [Petitions]    [Back to Homepage]