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Will the Constitutional Court support an "area of freedom, security and justice" with a "guarantee for the principles of democracy and respect for human rights", according to Com 2002/0247 which EU is building up with the help of the Fundamental Rights Agency?

Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, 18. August 2005

Constitutional Court
(Bundesverfassungsgericht)
Postfach 1771
D-76006 Karlsruhe




Constitutional Complaint Freedom of Information 1 BvR 1981/05

 

 

of Walter Keim, Torshaugv. 2 C, N-7020 Trondheim

- Complainant –

 

against

 

1. Judgement of the Administrative Court (Verwaltungsgericht) Berlin VG 2 A 85.04 of 25. April 2005

    - Appendix A -

 

2. Judgement Higher Administrative Court (Oberverwaltungsgericht) Berlin-Brandenburg OLG 3 L 30.05 of 7. July 2005, arrived 20. July 2005

   - Appendix B

 

What happened so long?

I am German citizen and refer to the website of the UN: http://www.runiceurope.org/german/menschen/udhr_template.htm. It says (translated from German):
 

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

You can claim these basic rights. These rights are your rights.

Make yourself familiar with them. Help to promote and defend these basic rights for yourself and your fellows"

PREAMBLE

 

I have tried to do this:

 

The complaint to UN on the lack of Freedom of Information in Germany of 18. April 20021 was not processed because:

"Domestic juridical/administrative remedies do not appear to have exhausted ... or showed that remedies would be ... ineffective."6

The constitutional complaint of 5. May 2002 2 was not accepted 28. May 20024 because:

.. in matters of petitions the way to the administrative courts is open. Therefore the complaint cannot be processed, because lower courts are not used sufficiently.
("Ferner dürfte in Petitionsangelegenheiten der Rechtsweg zu den Verwaltungsgerichten geöffnet sein, sodass die von Ihnen vorgetragene Petitionsangelegenheit mangels Rechtswegausschöpfung unzulässig wäre").

The Administrative Court (Verwaltungsgericht) Berlin ruled 25. April 2005 in case Walter Keim ./. Germany VG 2 A 85.04 of 4. February 2004 on access to documents:

 "The complaint is rejected. The complainant has to pay the costs. ... According to § 124 a Abs. 1 Satz 1 VwGO a appeal is not allowed". The amount of controversy was set to € 12000.- (twelve thousand!)

The judgement of the Higher Administrative Court (Oberverwaltungsgericht) Berlin-Brandenburg OLG 3 L 30.5 of 7. July 2005 reads:

The complaint against judgement of 25. April 2005 is rejected by sentence which can not be appealed.

Short argumentation

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 60 states around the world, more then half consider it a constitutional basic right.

Germany is in 12 of 16 states up to now the only major country in EU, Europe, OSCE, OECD and developed civilized countries without Freedom of Information. Therefore 70 % 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) 8 implemented into German law, see German Law Journal (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."

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."

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. It is wrong, that the Constitutional Court Germans removed 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: http://home.broadpark.no/~wkeim/files/un-complaint.htm, WHO, Council of Europe and EU.

(...)

The International Covenant on Civil and Political Rights (ICCPR) 8 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 "Access to Information on Government Action, especially from the Media Point of View" from
Thorsten Ader and Max Schoenthal
9, Institute of European Media Law (EMR), Saarbrücken/Brussels this basis of Freedom of Information in international law is described.

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

(...)

 

In addition to Freedom of Information Germany violates the Human Rights freedom of opinion, freedom of assembly, and right to fair trial 7 and has been sentenced many time at the European Court of Human Rights.

Detailed Substantiation

A detailed substantiation why the legislative and executive power in 12of 16 German states does not guarantee to always be committed to Human Rights and does not respect 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 is explained in the complaint to UN of 18. April 2002 1 and the complaint to the constitutional court of 5. May 2002 2 .

Summary

To sum up one must say that Germany abuses it's sovereignty to deny Germans the human right of freedom of information. Therefore Germans are second class citizens in the EU. 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 constitution 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/verfassungsbeschwerde-en.htm.

Sincerely,


Walter Keim
Torshaugv. 2 C
N-7020 Trondheim
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, UN and 20. August 2005 as E-Mail to Parties and Committee of Petitions of Federal Parliament Bundestag.

Result:

List of appendices:

A.  Judgement of the Administrative Court (Verwaltungsgericht) Berlin VG 2 A 85.04 of 25. April 2005: http://home.broadpark.no/~wkeim/files/vg-urteil.pdf
B: Judgement Higher Administrative Court (Oberverwaltungsgericht) Berlin-Brandenburg OLG 3 L 30.05 of 7. July 2005, arrived 20. July 2005: http://home.broadpark.no/~wkeim/files/050707ovg.pdf

  1. Complaint to UN, dated 18. April 2002: http://home.broadpark.no/~wkeim/petition_un.htm
  2. Constitutional Complaint of 5. May 2002: http://home.broadpark.no/~wkeim/v-klage.htm
  3. Petitions about Patient's Rights and Freedom of Information: http://home.broadpark.no/~wkeim/petitionen.htm
  4. Rejection of constitutional complaint dated 28 May 2002: http://home.broadpark.no/~wkeim/files/020528bvg.pdf
  5. Administrative Case VG 2 A 85.04: Walter Keim vs. Federal Republic of Germany: Freedom of Information (including access to public documents): http://home.broadpark.no/~wkeim/files/verwaltungsgericht-en.htm
  6. Answer of the UN of 3. June 2002: http://home.broadpark.no/~wkeim/files/020603un.pdf
  7. Petition Human Rights Violations in Germany: http://home.broadpark.no/~wkeim/petition_me-en.htm
  8. Internationalen Pakt über bürgerliche und politische Rechte (IPbürgR), (BGBl. 1973 II S. 1534) http://www.vilp.de/localizationfull?id=63&lang=de 
  9. Access to Information on Government Action, especially from the Media Point of View" from
    Thorsten Ader and Max Schoenthal, Institute of European Media Law (EMR), Saarbrücken/Brussels: http://www.obs.coe.int/oea_publ/iris/iris_plus/iplus2_2005.pdf.en
  10. 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

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