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Will the European Court of Human Rights 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: email@example.com
Torshaugv. 2 C
N-7020 Trondheim, 11. November 2005 [added 22. Nov. 2005]
European Court of Human Rights
Council of Europe
Walter Keim v.
Germany Appl. No. 41126/05:
Complaint Access to Information and Fair Trial
of Walter Keim, Torshaugv. 2 C, N-7020 Trondheim
1. Judgement of the Administrative Court (Verwaltungsgericht) Berlin VG 2 A 85.04 of 25. April 2005
- Appendix 4 -
2. Judgement Higher Administrative Court (Oberverwaltungsgericht) Berlin-Brandenburg OLG 3 L 30.05 of 7. July 2005, arrived 20. July 2005
- Appendix 6
3. Judgement of German Constitutional Court (Bundesverfassungsgericht) in case Constitutional Complaint Freedom of Information 1 BvR 1981/05:
According to § 93 b in connection with 93 a BVerfGG (Federal Constitutional Court Act) the decision 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")
- Appendix 8 -
4. Access to documents of Doctors court Baden-Württemberg (Landesberufsgericht für Ärzte) asked for 10. October 2005, denied 2. November 2005. Constitutional Complaint 1 BvR 2565/05 dated 3. November 2005 [and second demand for access in additional letter 11. November 2005]
- Appendix 15 -
I apply for to ANNUL the above mentioned judgements, because of violation of the European Convention on Human Rights and Fundamental Freedoms.
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.
- Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, (...)"
I have tried to do this:
The complaint to the UN Petition Team on the lack of Freedom of Information in Germany of 18. April 2002 was not processed because:
"Domestic juridical/administrative remedies do not appear to have exhausted ... or showed that remedies would be ... ineffective."
The constitutional complaint of 5. May 2002 1 was not accepted 28. May 2002 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").2
[On 7.July 2002 the Human Rights Committee c/o OHCHR-UNOG was informed that domestic juridical/administrative remedies are not effective. But the complaint was denied, because: it is "Not sufficiently showed that you are personally affected of a violation of the ICCPR". 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. In addition I was accused of misuse. UN did not answer to my follow-up letters of 27 February 2004, 16. August 2004 and 1 June 2005 and 15. November 2005].
The Complaint of 4. February 2004 to the Administrative Court (Verwaltungsgericht) Berlin case Walter Keim ./. Germany VG 2 A 85.045 applies for:
According to German law i. e. Gerichtskostengesetzes (GRK) § 13 the amount in controversy shall be according to the value it has for the complainant. Since the complainant is living in the European "area of freedom, security and justice" (not recognized by Germany) where both a fair answer within reasonable time and the 15 copies this case is about are free. Therefore 19. October 2004 it was applied for 10.- amount in controversy.
The Administrative Court (Verwaltungsgericht) Berlin ruled 25. April 2005 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!)4
The complaint of 7. July 2005 to the Higher Administrative Court (Oberverwaltungsgericht) Berlin-Brandenburg OLG 3 L 30.55 was rejected:
The complaint against the judgement of 25. April 2005 is rejected by sentence which can not be appealed.6
The constitutional complaint of 18. August 2005 to the German Constitutional Court (Bundesverfassungsgericht) 1 BvR 1981/057 was refused pointing to § 93a and 93b BVerfGG without giving any further reason.
§ 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 or is considered to have been decided on before.
Already the first judgement of the Administrative Court (Verwaltungsgericht) Berlin 25. April 2005 shows that juridical remedies are ineffective. The sentence says that there is no legal basis even to ask for access of documents, i. e. Article 10 of the European Convention on Human Rights and Fundamental Freedoms (ECHRFF) is totally ignored. The costs of the this lower administrative court are 770.- see account of the court 27. October 2005.
I contacted the "Robin Hood" of German justice system 19. October 200312. He estimated an amount of controversy of 4000.- and costs of approx. 2180.- for both lower and higher administrative court, because a defeat was sure.
During the proceedings at the administrative court documents of the Petition on Human Rights Violations in Germany: Invitation of the Human Rights Commissioner 7 where available, showing that German authorities are human rights phobic. The term "human rights" is never used in their files. Access to these documents cost approx. 770.- (see account of the court 27. October 2005 on the basis of amount of controversy 12,000.-) because the case was lost totally. That corresponds to approx. 30 days in jail asking for access to documents (which is a UN human right) and a fair answer within reasonable time (which is a fundamental right in the EU Charter of basic rights). That shows how German courts defend the old-fashioned authoritarian state by high costs.
The second lawyer I contacted12 after having lost the first round could only promise me a defeat The higher administrative court the costs to pay him and the court would have been more than 2.607,65 in addition plus costs for travelling (i. e. corresponding approx. 140 days in jail, see http://www.prozesskostenrechner.de/) on the basis of an amount of controversy of 12,000.- At the higher administrative court a complainant must have a lawyer.
High costs are a unreasonably high barrier to justice restricting direct participation. Every citizen shall have the right and the opportunity, without unreasonable restrictions to take part directly in the conduct of public affairs. The higher administrative court did not remove this barrier and the Constitutional Court did not find it unconstitutional, violating Article 6 (fair trial) and Article 13 (effective remedy before a national authority) of the ECHRFF.
On the other hand German courts are still faithful to Adolf Hitlers Nazi law on legal advice of 1935. (See complaint to ECHR Götz Bockmann of 13. November 2002, appl. no. 40901/02) 10. This law makes Germany is the only country in the world where it is forbidden to altruistically give free legal advice.
Freedom of Information also called access to public documents is an essential aspect of transparency which is itself an essential part of democracy and recognized as internationally protected human right by UN, AOS, the Organization of African Unity, The Commonwealth and OSCE16 . This fundamental human right is adopted in more then 60 states around the world by laws, many of which consider it a constitutional basic right.
I have been the victim of many denials of access, among them:
These 4 examples are just the tip of the iceberg, as "Critique of Patients Rights in Germany on the basis of a real case" proofs and documents 11: . Denial of access to documents is at all levels common.
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.
Therefore I complaint to the EU Commission about the lack of access to public documents in Germany, who answered 14 July 2005:
"I would like to stress you that, if a person considers that his or her fundamental rights have been violated, the possibility of appealing to the European Court of Human Rights, after exhaustion of all domestic remedies, offers him or her garanteed protection as the ultimate means."
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.
[On10. December 2005 a petition on human rights violations in germany see Article 6 (1) of THE TREATY ON EUROPEAN UNION:
"The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States."
was filed. On 22. Feb. 2006 the Committee of Petitions answered: "The European Parliament (has no) authority to interfere with national legislation of member States". "You may lodge an application with the European Court of Human Rights".]
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 sentences of the administrative courts do not take into account the human right of Freedom of Information according to Article 10 of the ECHRFF. The International Covenant of Civil and Political Right is 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.-.
The Higher Administrative Court in Schleswig-Holstein (see judgement of 22. June 2005, Az: 4 LB 30/04) ruled that to sell goods which do not meet weight requirements is a secret not to be disclosed: ""Consumer protection is not of constitutional rank. It must step back because ownership (Art. 14 of the Basic Law) is protected by the constitution. Therefore ownership is in this case stronger." The application of access to public documents showing what authorities have measured was turn down although there is a Freedom of Information law in force in the state of Schleswig-Holstein.
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 necessary to add this human right in order to give Germans the same human rights as citizens in other civilized countries. Unfortunately therefore 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."
In Article 1 (2) Basic Law the German people acknowledges human rights. This acknowledgment is violated by the administrative courts and the constitutional court.
Violations of the Human right of Freedom of information is just the tip of the iceberg: The first director of the German Human Rights Institute Percy MacLean was forced to resign, because he wanted to survey (as the Council of Europe in Recommendation No. R (97) 14 and UN in Resolution 48/134 of 20. December 1993 wished) human rights in Germany. Therefore I did my own survey (see appendix 10) 10. Germany's Constitutional Court decreed that European Human Rights' Court judgments were not binding in German domestic courts: 2 BvR 1481/04. Germany violates Article 46 of the European Convention of Human Rights to obey judgments. This violation of the European Convention of Human Rights was noticed internationally and countries like Russia and the Turkey asked way they had to obey judgements.
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) 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.
Article 13 of the American Convention on Human Rights (ACHR),17 a legally binding treaty, guarantees freedom of expression in terms similar to, and even stronger than, the UN instruments. In a 1985 Advisory Opinion, the Inter-American Court of Human Rights, interpreting Article 13, recognised freedom of information as a fundamental human right, which is as important to a free society as freedom of expression. The Court explained:
At the regional level, the right of access to government
information has also been recognized by this Commissions
African counterpart. The African Commission on Human and
Peoples Rights has not yet had an opportunity to decide, in
its adjudication procedure, whether the Banjul
Charter on Human and Peoples' Rights grants a right of access
to official information. The Commission has nevertheless held,
like its Inter-American counterparts, that Article 9 of the
Charter protects not only the free speech rights of the speaker,
but also the rights of those interested in receiving information
and ideas. Thus, in a case against Gambia, the Commission held
that the politically motivated harassment and intimidation of
journalists not only deprived them of their rights to
freely express and disseminate their opinions, but also the
public, of the right to information.
More recently, the African Commission expressed its position, and its interpretation of Article 9, on the right to information in its Declaration of Principles on Freedom of Expression in Africa, which contains a comprehensive statement of the principles applicable in this area. Principle IV of the Declaration provides as follows:
1. Public bodies hold information not for themselves but as custodians of the public
good and everyone has a right to access this information, subject only to clearly
defined rules established by law.
2. The right to information shall be guaranteed by law in accordance with the
following principles: everyone has the right to access information held by public
bodies; everyone has the right to access information held by private bodies which
is necessary for the exercise or protection of any right
The Commonwealth, a voluntary association of 54 countries based on historical links, common institutional and legislative frameworks and shared values, has taken concrete steps during the last decade to recognise human rights and democracy as a fundamental component of its value system. In 1991, it adopted the Harare Commonwealth Declaration which enshrined its fundamental political values, including respect for human rights and the individual's inalienable democratic right to participate in framing his or her society.,37
In March 1999, a Commonwealth Expert Group adopted a document setting out a number of principles and guidelines on the right to know and freedom of information as a human right, including the following:
The European Court of Human Rights has considered claims for a right to receive information from public bodies in at least three key cases, Leander v. Sweden,25 Gaskin v. United Kingdom26 and Guerra and Ors. v. Italy.27 In each case, the Court found that the guarantee of freedom of expression did not include a right to access the information sought. The following interpretation of the scope of Article 10 from Leander features in similar form in all three cases:
By using the words, "in circumstances such as those of the present case", the Court has not ruled out the possibility of a right to freedom of information under Article 10. However, given the specific nature of the requests which were rejected in these three cases (see details below), it would be a very limited right.
The Court did not, however, refuse to recognise a right of redress in these cases. Rather, in all three cases, it found that to deny access to the information in question was a violation of the right to a private and family life under Article 8 of the Convention.
In view of the fact that both UN, AOS, OAU and OSCE recognize access to public documents as fundamental human right and its implementation in all European states (law or constitution) apart from Luxemburg, Montenegro, Malta (for journalists only) and Cyprus (for journalists only) it is time that the ECHR adjusts to the development.
According to second sentence of the ECHRFF: "Considering the Universal Declaration of Human Rights (UDHR) proclaimed by the General Assembly of the United Nations on 10 December 1948;" with the UDHR stating: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world," there is no doubt that these rights are "inherent, equal and inalienable. i. e. connected to birth independent of states.
Personally I am living in the European "area of freedom, security and justice" with a "guarantee for the principles of democracy and respect for human rights", according to Com 2002/0247 (not recognized by Germany). Why should Europeans (in basically only one major country) be second class people? Why should I (having to visit my mother, who has given me the task to look after and protect her interests 9) become a second class citizen crossing the German border into Germany, regaining "inherent, equal, inalienable" rights by (happily) leaving Germany again?
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.
The legislative, executive and judicial 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), the Charter of Fundamental Rights of the EU and Article 6 (1) of THE TREATY ON EUROPEAN UNION is explained in detail in the complaint to the constitutional court of 5. May 2001 2 .
To sum up one must say that Germany
abuses it's sovereignty to deny Germans the human right of
freedom of information. I loose the human right of freedom of
information visiting Germany and trying to act on behalf of my
mother, who has given the authority to me to act on her behalf.
Therefore I become a second class citizens in Germany compared to
other states in Europe and citizens living outside Germany. 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
authoritian 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://wkeim.bplaced.net/files/echr-complaint.htm.
Torshaugv. 2 C
Human Right violations in Germany: http://wkeim.bplaced.net/files/de_human_rights.htm
Support Freedom of Information: http://wkeim.bplaced.net/foil.htm#e-mail
Support Patients' Rights: http://wkeim.bplaced.net/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 to Parties and Committee of Petitions of Federal Parliament Bundestag.
List of appendices:
17 Adopted at San José, Costa Rica, 22 November 1969, entered into force 18 July 1978.
18 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, 13 November 1985, para. 30.
25 26 March 1987, Application No. 9248/81, 9 EHRR 433.
26 7 July 1989, Application No. 10454/83, 12 EHRR 36.
27 19 February 1998, Application No. 14967/89.
28 Leander, para. 74.
37 Commonwealth Heads of Government Meeting, 20 October 1991, paras. 4 and 9. See also the Millbrook Commonwealth Action Programme, Commonwealth Heads of Government Meeting, 12 November 1995.
38 Quoted in "Promoting Open Government: Commonwealth Principles and Guidelines on the Right to Know", background paper for the Commonwealth Expert Group Meeting on the Right to Know and the Promotion of Democracy and Development, London, 30-31 March 1999.
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