Ähnlicher Stoff auf Deutsch: http://wkeim.bplaced.net/files/de_menschenrechte.htm
Will the EU Network of independent experts on fundamental 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 and COM(2005)280?
Walter Keim, E-mail: email@example.com
Torshaugv. 2 C
N-7020 Trondheim, 1. June 2006
Network of independent experts on fundamental rights
Administrative Research Coordinator
Centre de Philosophie du Droit
Université catholique de Louvain
Collège Thomas More
Place Montesquieu, 2
B- 1348 Louvain-la-Neuve
I appreciate the commitment of the EU Network of independent experts on fundamental rights to human rights and fundamental rights including access to public documents.
This information is send to support the annual report assesses the situation of fundamental rights on the basis of an analysis of the legislation, the case-law and the administrative practice of the national authorities of the Member States. The objective of the report is to inform the institutions of the state of play regarding fundamental rights in Member States.
I am German citizen, but in 2002 I gave up my address in Germany in protest against human rights violations14 in Baden-Wurttemberg and Germany (g) (which I tried to make pubic authorities aware of 9).
On the basis that new EU members have obligations to ensure e. g. access to information and other human rights I would like to draw your attention to the situation in Germany.
In report 2003/2237(INI), 9 March 2004 (Chapter KK), and FINAL report A5-0230/2004, 5 April 2004 (Chapter 49) the European parliament states: "The European Parliament notes that in Germany there is no law ensuring access to documents of public authorities at the national (i.e. federal) level and that only four of the federal states have enacted such legislation".
In the field of access to information, there have been developments in Germany:
Unfortunately both the EU Commission and the EU Council do not actively support the "area of freedom, security and justice" with a "guarantee for the principles of democracy and respect for human rights", according to Com 2002/0247 when it comes to access to information. Both EU Commission (on 8 May 2002)4 and the EU ombudsman suggested 7. June 2004 that concerns may be brought to Council of Europe.
In order to promote fundamental and human rights I suggest that the EU Network mentions this in its annual reports thus informing German parliaments.
I refer to the Joint Declaration by UN, OAS, OSCE Rapporteurs on International Mechanisms for Promoting Freedom of Expression of 6 December 2004 showing your commitment to the right to access to information: http://merlin.obs.coe.int/iris/2005/2/article1:
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.
Most European countries have implemented access to public documents according to Recommendation No. R (81) 19 of the Council of Europe from 1981, making this a success story in democratic progress. This can be seen comparing the map of access laws March 2000 and map today in the OSCE area. But there are unfortunately a few exceptions in south Germany. Unfortunately Germany does not even translate recommendations of the CoE(e).
The governments of Serbia (2004) and Montenegro (2005) were the last countries in Europe to adopt Freedom of Information laws. Germany (in 10 of 16 lander) and Luxembourg are now competing to be the last in Europe regarding Freedom of Information.
The German government has promised a Freedom of Information Law since 1998 (in German: "Informationsfreiheitsgesetz"). 2001 a draft has been presented. Therefore one should expect that the government is aware that Freedom of Information was missing in 2002. The government never proposed a Freedom of Information law to the federal parliament.
Fortunately the federal parliament (Bundestag) discussed a law by its own initiative 17. December 2004 and adopted it summer 2005. Unfortunately international standards of maximum disclosure have not been met.
I appreciate that CoE is observing the situation in Europe and hope that CoE Human Rights Commissioner will take a close look at the outcome5 . But he is dependent on a invitation. But who will invite him? I have written to the government, the Committee of Petitions, the Committee of Human Rights, the Deutsche Institut für Menschenrechte (Human Rights Institute), the Forum für Menschenrechte and the UN. But nobody answered.
Unfortunately the state parliament
of Baden-Württemberg voted 2002 and 2005 against access to
public documents. The suggestion to translate recommendations
of the CoE was turned down due to costs. In
protest I gave up my address in Baden-Württemberg. The Green
party suggested an access law autumn 2005. But the majority of
the parliament is against the proposal (meeting 1. December
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. I complained to the UN (f) .
In the 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. 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. 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(g) in many cases. On the other hand courts are faithful to laws from pre-democratic times: The Long Arm of the (Nazi) Law (Sueddeutsche Zeitung 14 June 2003)11.
At Sant Anna die Stazzema, 560 women, children and men, unable to flee, were murdered in a bestial manner by SS troops (m). In Italy 10 SS murderers where sentenced to jail for lifetime for crimes committed 12. August 1944 in Sant´Anna for more than 60 years ago. But Germany does not extradite them to Italy. Public prosecutor Gernot Blessing in Stuttgart/Germany is not prosecuting them up to now. Therefore a sentence in Germany is hindered. The families of the victims are denied access to documents. I have complaint against public prosecutor Gernot Blessing (l) because I was denied access to documents and my complaint was not dealt with for 2 years.
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 not able to live human rights but they 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 rights13 (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 up to now this violation of human rights in petitions I filed. Therefore I asked for access to information, cornering the communication between parliament and ministry regarding these petitions. Both parliament and ministry refused access. I have been the victim of many denials of access(a):
I filed a complaint to the Administrative Court (Verwaltungsgericht) Berlin about refusal of access to documents 1, 2 and 4 above(a). Already the first judgement of the Administrative Court (Verwaltungsgericht) Berlin case VG 2 A 85.04 of 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. the ICCPR is totally ignored. Article 20 (3) of Basic Law for the Federal Republic of Germany: "the judiciary shall be bound by law and justice" is violated. The ICCPR is ratified by Germany and incorporated in German law according to Article 59 (2) of the Basic Law.
The case went to the Higher Administrative court and 18. August 2005 to the Constitutional Court and is now at the European court of human rights (d) .
During the proceedings at the administrative court documents of the Petition on Human Rights Violations in Germany: Invitation of the Human Rights Commissioner 9 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.- (on the basis of amount of controversy 12,000.-) because the case was lost totally. That corresponds to approx. 38 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 costs of the this lower administrative court are 770.- see account of the court 27. October 2005.
My investigation13 why Germany (in 10 of 16 lander) is the only OECD country, only civilized country and only developed country without freedom of information seems to indicate that government, parliament, legal system and the public including the press does not (want to) know that Germany will soon be the only country in Europe without Freedom of Information..
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 (g).
The only means of complaint on individual level against the lack of access to public documents I was aware of is a complaint to the European Court of Human Rights. Unfortunately I had to start at the district court in Berlin (d) . On the way to the European Court of Human Rights I was 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 ZV 65/02: "Krumbiegel scandal" ) (h). because I assumed that the lawyers monopoly according to the law on legal advice from 1935 (8) will not fall soon enough.
Germany is the only country in Europe, which reserved the right not to comply with CoE Recommendation (85) 13 of appointing an independent Ombudsman to observe human right violations. 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.
The German Institute of Human Rights (Deutsche Institut für Menschenrechte) was founded on the basis of suggestions of the UN Resolution 48/134 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 and CoE 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?). 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?
12 december 2004 the Internationalen Liga für Menschenrechte (International League for Human Rights) honoured Percy MacLean with the "Carl-von-Ossietzky-Medaille" for his merits to support human rights in Germany.
In the report E/2002/22, E/C.12/2001/17, COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, REPORT ON THE TWENTY-FIFTH, TWENTY-SIXTH AND TWENTY-SEVENTH SESSIONS, (23 April-11 May 2001, 13-31 August 2001, 12-30 November 2001) Germany is mentioned on page 98:
"654. While welcoming the recent establishment of the German Institute for Human Rights, the
Committee notes that the Institute's functions appear to be limited to research, education and the
provision of policy advice, and that it does not enjoy the powers often associated with national
human rights institutions, such as the power to investigate complaints, conduct national inquiries
and formulate recommendations for employers and other actors. In the context of the Covenant,
these limitations are especially regrettable because economic, social and cultural rights receive
less attention and enjoy fewer safeguards than civil and political rights in the State party.
655. The Committee reiterates its concern about the lack of any court decisions in which
reference is made to the Covenant and its provisions, as indicated by the statement made by the
State party in its written replies to the list of issues (E/C.12/Q/GER/2) and as confirmed by the
delegation during its dialogue with the Committee. The Committee is concerned that judges are
not provided with adequate training on human rights, in particular on the rights guaranteed in the
Covenant. A similar lack of human rights training is discerned among prosecutors and other
actors responsible for the implementation of the Covenant.
656. The Committee expresses its concern that there is no comprehensive and consistent
system in place that ensures that the Covenant is taken into account in the formulation and
implementation of all legislation and policies concerning economic, social and cultural rights."
Since the German Institute of Human Rights is not allowed to monitor human right violations in Germany I have published my own investigation on Human Right Violations in Germany: Freedom of Opinion, Information, Association and Right to Fair Trial (g). However the press is not interested. Therefore I have send copies sent to: Bundeskanzler, Bundestagspräsident, Verfassungsgericht, German Human Rights Commissioner, 26. October 2003, German Ministry of Justice (27. October 2003), Committee for Human Rights (1. November 2003), Klaus Stoltenberg (BMJ), Ltd. Regierungsdirektor Detlef Brandner (Regierungspräsidium Karlsruhe), Minister of Interior Volker Bouffier in Hesse and Kultusministerin Karin Wolff in Hesse. But nobody answered.
I was confronted with these problems because it is not easy for Germans to get to know own legal rights, because of a monopoly on legal advice hold by lawyers, according to the Law on Legal Advice from 13. December 1935 (8).
Strange court decisions The Long Arm of the (Nazi) Law (Sueddeutsche Zeitung 14 June 2003)11 are still possible due to this laws from pre-democratic times. German "legal systems Robin Hood"12 is fighting against 12 this law at the European Court for Human Rights11 and the German constitutional court filed 6 April 2000. The constitutional court used the means of unfair treatment, i. e. not deciding on the subject until 29. July 2004, thus stopping the case from being filed to the European Court for Human Rights.
Unfortunately the German Constitutional Court failed 29. July 2004 to declare the Law of Legal Advice of 13. December 1935 (70 years ago!) unconstitutional(o). The result is very simplified that judges now can give free altruistic advice. Therefore the "Robin Hood" of German legal system has to use a case before the European Court of Human Rights11 to overcome this Nazi law from 13. December 1935, which is unnecessary restricting Article 47 of the Charter of Fundamental Rights of the European Union: "Everyone shall have the possibility of being advised, defended and represented." 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 reform of the law from 1935(q) failed in 2005 (q) because of new elections of the federal parliament.
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.
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 19358, 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)(h) 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). Therefore I made an intervention.
The health system suffers from structural problems. In a petition 2005 I made the following suggestions:
Germany signed the United Nations Convention against Corruption on 9 December 2003, but did not ratify it up to now. A central register of corruption has not been raised and whistelblowers are not proteceted, see criminal code.
The German Criminal Code punishes if Germans communicate violation of international treaties or violations of the democratic constitutional order "a foreign power" (Section 93 (2) and Section 97a):
Section 93 Definition of State Secret
(1) State secrets are facts, objects or knowledge which are only accessible to a limited category of persons and must be kept secret from foreign powers in order to avert a danger of serious prejudice to the external security of the Federal Republic of Germany.
(2) Facts which constitute violations of the independent, democratic constitutional order or of international arms control agreements by virtue of having been kept secret from the treaty partners of the Federal Republic of Germany, are not state secrets.
Section 97a Betrayal of Illegal Secrets
Whoever communicates a secret, which is not a state secret because of one of the violations indicated in Section 93 subsection (2), to a foreign power or one of its intermediaries and thereby creates the danger of serious prejudice to the external security of the Federal Republic of Germany, shall be punished as a traitor (Section 94). Section 96 subsection (1), in conjunction with Section 94 subsection (1), no. 1, shall be correspondingly applicable to secrets of the type indicated in sentence 1.
German law does not protect Whistleblowers releasing wrongdoing by public bodies, as UN, OSCE and AOS propose, but punishes them as "traitor".
The German Crimanal Code punishes insult in section 185 and defamation in section 187 which is contrary to international standards e. g. JOINT DECLARATION 2002 by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression. Details are worked out at the Regional Conference on Defamation and Freedom of Expression, Strasbourg, 17-18 October 2002.
As shown by the Schavan case(k), Berufsverbote from the cold war time are back in Baden-Württemberg17 and Hesse (Germany). This Berufsverbot was confirmed 15. March 2006, see chronology here. Does the administrative court respect human rights?
Unfortunately I got no answer from UN to my complaints about the lack of access to information 27. February 2004(f) and 16. August 2004 and therefore tried again 14. October 2005.
EU has repeatedly send me to the Council of Europe regarding Access to information: The Commission 8 May 2002 and the EU Ombudsman: 7. June 2004 have suggested to contact the Council of Europe regarding human right violations in Germany.
As suggested by EU I have informed the Human Rights Commissioner of the Council of Europe(t) who will review this material in the context of a future visit(5). In addition I have informed the Council of Europe about the situation in Germany(u) in the context of a survey. I appreciate that the Human Rights Commissioner will look at the information in the context of a survey, but I am not sure if he gets invited. No German organisation has given a positive answer to me. Has EU the possibility of a visit or manage a invitation?
The President Luzius Wildhaber of the European Court of Human Rights (ECHR) criticized the German government and the German constitutional court. The fact that judgments of the European Court of Human Rights are not followed by German courts shows lack of commitment to Europe(v). Germany violates Article 46 of the European Convention of Human Rights to obey judgments.
Here is the comment of German authorities to the Caroline
judgement(w): 3. chapter: German
minister of justice says that judgements of the European Court of
Human Rights are not binding for Germany ("Brigitte Zypris
[Ministry of Jusitce] wies auch darauf hin, dass die Straßburger
Entscheidung keine bindende Wirkung für deutsche Gerichte
This was the answer to the suggestion of Germany press that the government should complain against the Caroline judgement. The German Press Council supported this critic of human rights (x): and sees a danger for press freedom (x) .
Unfortunately Germany does not follow the conventions of the Council of Europe here. Since the EU Commission and the EU Council do not actively 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 I would like to ask the EU Network of independent experts on fundamental rights for support to appropriate actions towards German parliaments.
Since I have no possibility to even get an answer from government, federal parliament on human rights (it took 3 years on freedom of information) and no fair answer from constitutional court, I would appreciate your support to report and advocate full compliance with CoE/EU/UN/OSCE human right principles.
Any other action to promote Freedom of Information and other human rights in Germany is welcomed.
Promotion of human rights in Germany: http://wkeim.bplaced.net/files/pace-complaint.htm, http://wkeim.bplaced.net/files/echr-complaint.htm, http://wkeim.bplaced.net/files/un-0509.htm
Human Right violations in Germany: http://wkeim.bplaced.net/files/de_human_rights.htm
Support freedom of information: http://wkeim.bplaced.net/foi.htm#e-mail
Who is responsible for the lack of freedom of information: http://wkeim.bplaced.net/I_accuse.htm
Support patients rights: http://wkeim.bplaced.net/patients.htm#e-mail
List of appendices: Internet publications:
Copy: Bundeskanzler, Landtagspräsident von Baden-Württemberg, Ministerpräsident von Baden-Württemberg,Committee of Petitions of German Federal Parliament and 12 German states (Länder)
Visitor No. since 10. October 2005
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Colours on picture: dark green: FOIA enacted. Yellow: pending law. FOIA= Freedom of Information Act