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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

Case Against Germany: No Right to Information Law in Bavaria Breaches Right to Freedom of Expression

Enforcement of the Human Right of Access to Information in Bavaria/Germany

I emigrated from Bavaria in 1982 also because of lack of transparency. It was almost impossible to obtain the necessary information to safeguard own interests.

More than 120 States adopted FOI laws, covering more than 88% of the worlds' population. In Europe and Central Asia 46 countries covering 98% of the population have adopted FOI laws at national level. Bavaria lacks a FOI law, to access public documents of all sectors.

The Council of Europe and UN secure access to information in human right conventions. Domestic juridical/administrative remedies have to be exhausted first. Afterwards it is possible to complain to international bodies. In 3 German states a general access to information law is missing. The X. Baltic Sea NGO Forum examined the "The role of international lawmakers and their respective influence on national legislation on access to information" and suggested juridical remedies. A Parallel Report to the Human Rights Committee and a submission to Universal Periodic Review was sent but not taken into account.

The Free State of Bavaria rejects the recommendations of the Commissioner for Human Rights of the Council of Europe and refuses access to the reasons. Therefore, a complaint against Bavaria was filed 14. July 2012. The appeal was denied 14. February 2014. A constitutional complaint 1 BvR 897/14 has been necessary and was filed 17 March 2014 and can be supported her. 13. January 2016 the Constitutional complaint was rejected. Therefore, a complaint to European Court of Human Rights and a complaint to UN Human Rights Committee was filed. 29. June 2019 the Centre for Law and Democracy send a detailed complaint to Human Rights Committee c/o OHCHR-UNOG, Petition Team. Annexes. The Human Rights Committee sent the communication to Germany in February 2020. Case Against Germany: No Right to Information Law in Bavaria Breaches Right to Freedom of Expression Germany will now have six months to respond according to the Committee's rules of procedure. Germany answered August 2022 to CCPR communication 3708/2020 Walter Keim. 7. November 2023 a letter was send to CLD about Family rights in Germany, communication with the Council of Europe and comparison of access to documents in Bavaria and Norway

Juridical remedies

Germany ratified International Covenant on Civil and Political Rights (ICCPR) and European Convention for Human Rights (ECHR). According to Article 46 ECHR Germany is bound by decisions of the European Court of Human Rights (ECtHR). Domestic juridical/administrative remedies must be exhausted in order to complain to the UN Human Rights Committee [5] and the European Court of Human Rights [6].

Conventions of UN and Council of Europe

Access to documents of public administration is a human right according to the International Covenant on Civil and Political Rights (ICCPR) [1, 4, 5] and jurisdiction [6] of the European Court of Human Rights (ECtHR) on the basis of the European Convention for Human Rights (ECHR) [2] and is seen as a precondition for democracy and important in the fight of corruption.

UN, OSCE and AOS confirm in their Joint Declaration by the Three Special Mandates for Protecting Freedom of Expression 6. December 2004, that Access to Information is a human right: [3]:

„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."

The "General Comment No. 34 on Article 19 of the ICCPR" says [4]:

"18. Article 19, paragraph 2 embraces a general right of access to information held by public bodies. Such information includes all records held by a public body, regardless of the form in which the information is stored, its source and the date of production."
"19. (...) States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation."

The federal Freedom of Information law (IFG) in Germany violates the principle of maximum disclosure of public documents. 130 states with more than 5.5 billion [9, 10] inhabitants adopted better ATI laws. 3 German states do not have ATI laws at all. 125 states [11] with 5.9 billion inhabitants i.e. 84 % of mankind adopted ATI laws or secured access to information in their constitutions. Can this human right be enforced by courts?

Complaint against Bavaria

More then 110 States adopted FOI laws. In Europe and Central Asia 46 countries covering 98% of the population have adopted FOI laws at national level. 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 adding 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 proposes following 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 [7] access was again requested, because the human right of access to information is recognized by more than 115 states [11] 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 [8].
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. Complaints to ECtHR and the UN Human Rights Committee are filed.



Sources:

  1. Access to information is a human right according to UN: https://www.right2info.org/international-standards#section-1

  2. Access to information in ECHR: https://www.right2info.org/international-standards#section-5

  3. UN, OSCE and AOS Joint Declaration by the Three Special Mandates for Protecting Freedom of Expression 6. December 2004: http://merlin.obs.coe.int/iris/2005/2/article1

  4. "General Comment No. 34 on Article 19 of the ICCPR": http://www2.ohchr.org/english/bodies/hrc/comments.htm

  5. Complains to UN Human Rights Committee: http://right2info.org/cases#section-6

  6. Jurisdiction European Court of Human Rights (ECtHR): http://right2info.org/cases#section-2

  7. Application for access of the reasons why the suggestions of the Human Rights Commissioner have been rejected: http://wkeim.bplaced.net/files/ifg-einsicht.htm

  8. Complaint Administrative Court (Verwaltungsgericht) Munich: http://wkeim.bplaced.net/files/vgm-2012.htm

  9. Access to Information Laws: http://right2info.org/access-to-information-laws

  10. FOI Laws: Counts Vary Depending on Definitions: http://www.freedominfo.org/2011/10/foi-laws-counts-vary-slightly-depending-on-definitions/

  11. Constitutional Provisions, Laws, and Regulations: http://right2info.org/laws


Answers to complaint (VG Munich Az. M 17 K 12.3408):


Follow-up:


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Colours on picture: dark green: FOIA enacted. Yellow: pending law. FOIA= Freedom of Information Act