Rejection of Suggestions of Commission for Human Rights by German Parliaments

Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives.
A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.
-- James Madison --

auf Deutsch: http://wkeim.bplaced.net/coe_resultat.htm

English summary of letter in German

Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, 25. February 2012

Commissioner for Human Rights
of the Council of Europe
Council of Europe
F-67075 STRASBOURG CEDEX

Copy: Parliamentary State Secretary of Justice Dr. Max Stadler, Commission on European Family Law (CEFL), MEP Rainer Wieland

Rejection of Suggestions of Commissioner for Human Rights by German Parliaments, Freedom of Information and Separation of Powers

Summary:

Commissioners suggestions are rejected by 12 German parliaments. The rank of Human Right Conventions has not been respected.
84 states with 5.5 billion inhabitants give better access to information then the federal Freedom of Information Law in Germany. More then 115 states with more then 5.9 billion inhabitants adopted FOI laws or provisions in constitutions. 5 German states with half of the population lack FOI laws.
The UN Convention against Corruption is ratified by 158 states with more then 6,5 billion inhabitants, but not by Germany.
Germany did not ratify the Criminal Law Convention on Corruption and does not follow Recommendation Rec(2003)4 on common rules against corruption in the funding of political parties and electoral campaigns of the Council of Europe as GRECO (Group of States against Corruption) suggested 4. December 2009. Germany is the only state in Europe which has not ratified any of these to conventions against corruption (Appendix AA).
EU does not care about these transparency preconditions of democracy and lack of separation of powers.

Dear Mr. Hammarberg,

18. November 2003 (Appendix B) and 21. November 2006 (Appendix C) I informed the Commissioner for Human Rights of the CoE about structural problems in Germany. You visited Germany 2006 and published 11. July 2007 report CommDH (2007)14 with suggestions (Appendix A). The report addresses problems by practical suggestions. From the perspective of real live experience I focused on the following extracts:

35: The Commissioner also stresses the importance of training judges and prosecutors working in courts at Länder and local levels on the European Convention on Human Rights in order to strengthen its direct national implementation. The Commissioner is aware of the involvement of the Federal Ministry of Justice in the development of the new Council of Europe Programme for Human Rights Education for Legal Professionals (HELP) and he encourages German authorities to take an active part in its implementation. (..)With regard to legal studies at universities, the Commissioner notes with regret that international human rights law appears to be often taught as an optional part alone. He encourages the German universities to integrate human rights in the core curricula of legal studies.
46 Extending the infrastructure of human rights education would further strengthen the integration of human rights into professional career tracks. The Commissioner encourages the incorporation of human rights as a core component in professional training in law enforcement, for teachers as well as practitioners in the social and health sectors. In addition, government officials in general, as well as parliamentarians on federal and state levels, would benefit from human rights training adapted to their area of work.
47. Although Germany has taken many initiatives in relation to the UN Decade for Human Rights Education, so far it has not developed a comprehensive, effective and sustainable national action plan for human rights education.
52. Accordingly, the Commissioner strongly encourages the German authorities to further develop the national action plan on human rights as a co-ordinated process for the continuous improvement of human rights protection in Germany.

and recommendations:

2. Consider the establishment of parliamentary human rights committees at Länder level.
3. Promote the independence of extrajudicial complaints bodies, when possible, and ensure that complaints are handled on the basis of clear procedures.
5. Strengthen the mandate of the German Institute for Human Rights with regard to structural and factual monitoring and in respect to its consultative role in the process of drafting legislation with human rights relevance.
8. Intensify and enhance the integration of human rights teaching methods in pre- and in-service training of school teachers and strengthen the institutionalisation of human rights education for other professions.

During the hearing in the German parliament Bundestag am 15. October 2008 of the 8. Report of the Federal Government on Human Rights Policy Mrs Frauke Seidensticker from the German Institute for Human Rights regretted that there was no discussion of report CommDH (2007)14 of the commissioner for Human Rights of the CoE Thomas Hammarberg (Appendix N).

The report deserves better. Therefore these suggestions and recommendations were included in petitions to the federal parliament Bundestag (Appendix 15) and 11 parliaments of federal states (Länderparlamente) (z. B. Appendix 16) in order to promote the report.

According to CoE RECOMMENDATION No. R (85) 13 an independent Ombudsman for public administration should be empowered "to investigate and give opinions when human rights are involved". Germany is the only country in Europe which "reserved the right to comply with it or not." German administration refers to courts to secure citizens human rights. Therefore these petitions suggest to strengthen the separation of powers according to CoE recommendations. Judges manly in states (Bundesländer) should no longer be hired, promoted and supervised by executive power to become really "independent and subject only to the law" see Article 97 Basic Law.

The suggestion to provide to the general public easily accessible information on the available extrajudicial complaints bodies is expended to administrative transparency, i. e. the human right of access to public documents.

The answers are very disappointing:

21. August 2007: Petition to German parliament Bundestag: Realization of the suggestions of the Commissioner of Human Rights, strengthening the rank of the convention and judicial independence (Appendix 15). Answer of 13. May 2008: There is no reason to do what is suggested therefore the petition is closed (Appendix 1).
28. September 2007: Petition to parliament Landtag in Baden-Württemberg on human rights and juridical independence (Appendix 16). Answer of 16. April 2008: The petition cannot be helped (Appendix 2).
Similar petitions to Bavaria. Answer of 03 July 2008: There is no reason to realize the suggestions (Appendix 3). Access to the reason is rejected 3 times by parliament and government. (Appendix 25).
Berlin: 19. November 2007 the petition is rejected since there is no need (Appendix 4).
Brandenburg: 11. April 2008: The Committee of petitions will not act. (Appendix 5)
Hessen: 03. April 2009: Petition is considered finished (Appendix 6).
Sachsen-Anhalt: 05. February 2008 parliament Landtag declares the petition closed, without doing something with the problems. (Appendix 7).
Niedersachsen: 07. May 2008 the parliament Landtag finds no reason to support the cause (Appendix 8).
Rheinland-Pfalz: 02. September 2008: MPs accept that the suggestions of the Human Rights Commissioner are not realized (Appendix 9).
NRW: 08. April 2008: There is no reason to act (Appendix 10).
Sachsen, 28. April 2008: There is no reason to discuss the voluminous contributions about human rights (Appendix 11).
Saarland: 19. December 2008: Committee joins the comment of the government and closes the petition (Appendix 12).

Only few parliaments even comment on the suggestions. All parliaments refuse to support the suggestions.

As parliaments ignored the suggestions, copies of some petitions were sent direct to a few courts. In a letter of 8. January 2008 the president of the court (LG) Zweibrücken threatened with punishment for defamation (Appendix 13), for sending a copy of petition E 72/08 I.1.1/osw: "Suggestions of the Human Rights Commissioner, independent justice" to judge Raphael Mall. 25. March 2008 the president was asked to withdraw this threat (Appendix 14) because of freedom of opinion.

The European Convention on Human Rights has the rank of a law. However the convention is missing on the side "laws-on-internet" (www.gesetze-im-internet.de, http://bundesrecht.juris.de). Therefore it was suggested 28. April. 2007, to add it to site www.gesetze-im-internet.de under federal law. The federal Ministry of the Justice refuses adding the convention because lack of capacity (Appendix 24).

The Committee on Economic, Social and Cultural Rights of the UN in the Forty-sixth session, Geneva, 2-20 May 2011 delivered report E/C.12/DEU/CO/5: "Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant" with "Concluding observations of the Committee on Economic, Social and Cultural Rights":

7. The Committee remains concerned that the provisions of the Covenant have not
been invoked before the national courts of the State party.
The Committee urges the State party to take all appropriate measures to
ensure effective applicability of the provisions of the Covenant in national
courts, including by raising awareness of this obligation and the provisions of
the Covenant among judges, lawyers and other officials involved in law
enforcement.

More than 158 countries with 6,5 billion inhabitants ratified the United Nations Convention against Corruption (UNCAC) (Appendix K). Germany did not ratify this convention because of insufficient rules on bribery of members of parliaments. MPs protect themselves in order to be able to accept bribery without prosecution .

The Group of States against Corruption (GRECO) of the Council of Europe saw deficiencies combating corruption in Germany and made 2009 suggestions on transparency of financing of parties. The federal parliament Bundestag refused 2011 (see "Ausschussdrucksache 17(4)283 des Innenausschusses") to comment these suggestions with the majority of the governing coalition parties of CDU/CSU and FDP (Appendix 21).

Stuttgart 21 is an urban development and railway transport project in Stuttgart as part of the Stuttgart–Augsburg new and upgraded railway project in Baden-Württemberg and Bavaria in Germany. It consists of the replacement of the tracks and platforms of Stuttgart Hauptbahnhof, the city's main railway station, with new infrastructure mainly located underground. The project has been under development for more than a decade and construction work began in February 2010. Since the summer of 2010, its development has been highly controversial with some politicians and the public (Appendix O, Appendix V, P, Q).

The Stuttgart 21 project has been a controversial issue among politicians and locals since the idea of a through station for long distance trains - running under the existing station - was first noted in the mid 1980s. Since 2009 numerous protests against the disputed project have taken place. More than 50,000 people demonstrated against Stuttgart 21 on October 1st, 2010. On September 30, 2010, hundreds of demonstrators were injured when the police used water cannons, pepper spray and batons against peaceful protesters. The following day, more than 50,000 people took part in the largest demonstration against the project so far.

The reason for the protests are lack of possibilities of participation and lack of transparency. Stuttgart21Leaks.tk published reports about internal documents that show that both the public, parliaments and sometimes even governments did not get the necessary information to decide (Appendix R, T, U).

Democracy requires an informed citizenry with access to public information. In order to try to get access to information about costs of Stuttgart 21 applications were filed to the Ministry of Traffic (Verkehrsministerium), Railway-directorate (Eisenbahn-Bundesamt), Court of Auditors (Rechnungshof), Parliament (Haushaltsausschuss des Bundestages) and the Prime Minister of the Land Baden-Württemberg (Appendix 22).

The Ministry of Traffic refused access to report about costs and benefits of new railway from Wendlingen to Ulm (Gutachten "Neubewertung der Nutzen-Kosten-Analyse der Neubaustrecke Wendlingen-Ulm") because it was considered a business secret. The Railway-directorate and the Court of Auditors answered not to know about this report.

Other applications for access to information are refused due to various reasons. Business secrecy is often used e. g. by the ministry of traffic (BMVBS). Even total costs covered by 95 % of public funding is tested as business secret by the state owed railway company. The supervision of railway (Eisenbahn-Bundesamt) denies access to avoid disadvantages for supervision ("nachteilige Auswirkungen auf Kontroll- und Aufsichtsaufgaben"). The parliament Bundestag refuses access because of parliamentary tasks ("Wahrnehmung parlamentarischer Aufgaben"). The human right of access to information is denied by all. Necessary transparency in a democracy is not reached.

Even an Application to access why Bavaria rejects the suggestions of the Human Rights Commissioner was rejected (Appendix 24).

More then 115 states (http://right2info.org/laws) with more then 5,9 billion inhabitants adopted FOI laws or provisions in constitutions. Therefore it is necessary to adopt FOI laws in 5 of German states with half of the population. Info Europe and the Centre for Law and Democracy have analyzed 89 FOI laws. Germany reached place 85, i. e. at the bottom (Right to Information Rating: http://www.rti-rating.org/country-data/ ). 5.5 billion have better access laws.

Therefore access to information applications can not be used to obtain a minimum of democracy and e. g. get access to information about the Stuttgart 21 railway project (Appendix 22).

Does EU help?

The European Union is originally intended to guarantee the free movement of goods, capital, services, and people
in order to create an internal free market.

But Article 2 of the Treaty on European Union reads:

"The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities."

Unfortunately only new members are evaluated and must adopt these norms. Germany violates e. g. the following international principles:

Independence of judges, i. e. separation of powers is not done, violation of Art. 6 of European Convention on Human Rights i. e. Recommendation No. R (94)12 and PACE resolution 1685 (2009) [see Appendix E: http://wkeim.bplaced.net/files/separation_of_powers.htm, Appendix L, M, O]
Human right of access to public documents (information) is still lacking in 5 of 16 states (länder) (see Appendix 16), which is found all over Europe and the civilized word.
Decriminalisation of punishment of defamation (insult, libel) (see OSCE results Appendix F, G, H). Up to now 180 000 accused i. e. 20 % of criminal prosecution cases are insult (Appendix 18: http://www.eucars.de/images/stories/insult_eng.pdf). Even sending copies of petitions about defamation and suggestions of the Human Rights Commissioner was answered by a threat of insult accusation (Appendix 13 and 14).

This was also transmitted to the European Parliament and the EU Commission 17. October 2007 (Appendix Z) without reaction.

Germany does not follow international standards on separation of powers. Judges at administrative courts are hired, promoted and supervised by the executive power and are not independent according to Art. 6 of European Convention on Human Rights(Appendix E).

Decriminalisation of libel/insult is not done in Germany.Punishment and public prosecution of libel and defamation no longer done in most European states. The UK has since 1927 reduced punishment for defamation and only written "Libel" under special circumstances remains. Since 1997 only 1 to 5 convictions per year. The German statistics show 50.00 cases for 1927 for libel. I the year 2005 more than 180.000 cases occurred with a raising tendency. Most OSCE states have decriminalised insult (Appendix F, G, H).

EU was reminded that the human right of access to public documents is not respected i 5 German states (Bundesländer). This was transmitted to the EU Commission, the EU Parliament, the European Union Agency for Fundamental Rights (FRA) (KOM(2005)) and the EU Ombudsman. The answers prove that EU does not even comment to Germany but refers to the Council of Europe for reactions. (Appendix 23).

Germany has to improve the federal FOI law, adopt FOI laws in 5 local states (Bundesländer), ratify CoE and UN conventions against corruption and improve transparency of funding of political parties and sideline jobs of members of parliaments to catch up with other states (see weaknesses no. 2, 3, 4, 8, 34, 35 and 52 of National Integrity Report Transparency Germany, January 2012, Appendix AB).

I refer to the investigations MEP Philippe Boulland of the European Parliament concerning 120 petitions about the Jugendamt. The petitions raise the question if the European Convention of Human Rights, the UN Convention on the Rights of the Child and the European Charter of Fundamental Rights are violated, because of structural problems. Petitioners report on denials of access to documents and unfair treatment.

Parliamentary State Secretary of Justice Dr. Max Stadler was asked by me to implement the report CommDH(2007)14 about Germany of the Commissioner for Human Rights of the Council of Europe (Appendix E) and guarantee real independence of judges according to Recommendation No. R (94)12 and PACE Resolution 1685 (2009) to cure the problems (Appendix AC).

To sum up, for to catch up with Europe and the world Germany should:

Seriously consider the suggestions of the Commissioner
Adopt FOI laws according to international standards
Ratify the UN Convention against Corruption
Transparency of political parties and sideline jobs of members of parliaments
Follow GECOs suggestions on Recommendation Rec(2003)4 on common rules against corruption in the funding of political parties and electoral campaigns and ratify the Criminal Law Convention on Corruption.

Sincerely,

Walter Keim

Copy: Deutsches Institut für Menschenrechte, Menschenrechtszentrum, BMJ, Lehrstuhl für Menschenrechtsbildung, Menschenrechtsbeauftragter der Bundesregierung, Ausschuss für Menschenrechte und Humanitäre Hilfe

Appendices: