Access to Information, Transparency and Anti-corruption Treaties in Germany

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 über gleiches Thema: http://wkeim.bplaced.net/files/130105aa.html

Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, 31. March 2013

To
Secretary General Thorbjørn Jagland,
Council of Europe
Avenue de l'Europe
F-67075 Strasbourg Cedex

Copy: Commissioner of Human Rights CoE, EU Commission, President of Federal Republic of Germany, President of Bundestag Lammert, Chancellor Merkel

What can be done to improve the human right of access to public documents, transparency and fight against corruption in Germany?

Dear Mr. Jagland,

EU, PACE, CoE Commissioner for Human Rights, ECHR, OSCE and UN HRC did not help. Therefore I would like to draw your attention to access to public information (ATI) in Germany.

Summary:

German authorities (government, parliaments, courts) abuse national sovereignty e. g. to deny citizens in 5 Germany federal states the human right of access to public documents. Transparency and fight of corruption does not follow international standards [A]
EU does not observe the problem but refers to CoEs "well established mechanisms" [B]. The CoE Human Rights Commissioner took notice.
However GRECO failed to observe the problem of Freedom of Information laws in 5 federal states in the of the Second Evaluation Round (report RC-II (2007) 3E) [C].
The CoE Human Rights Commissioner was asked to take up this problem, but did not mention it in his report [D, E]. ECHR does not recognize ATI as human right for citizens only for the press, NGOs and "watchdogs".
PACE did not answer a petition on the problem [F]
UN HRC praises (the not existing) high human right standards in EU and ignored a CCPR submission about the lack of the human right if access to information in Germany

Therefore it is necessary that CoE supports ATI in Germany using its possibilities.

The human right of access to public documents (International Covenant on Civil and Political Rights, European Covention of Human Rights) is recognized as precondition for democracy and essential in the fight against corruption.

10 years ago development showed (Appendix G: Will Germany abandon Freedom of Information? Appendix H: Banana Republic Germany), that Germany was least developed in Europe.

Many petitions and complaints to German authorities (government, administration, parliaments, courts, NGOs) 2001 to 2012 did not help [A].

Now many countries outside Europe are more advanced then Germany looking at freedom of information, transparency and fight of corruption.

88 states with approx. 5.5 billion inhabitants give better access to information then the federal Freedom of Information Law in Germany (http://www.rti-rating.org/country-data/).
More than 120 states (http://right2info.org/laws) 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 more than 160 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's answer 29. December 2011 and 29. June 2012 shows that no progress has been made. GRECO submitted 28. Nov. 2012 a Non-Compliance report.
Germany is the only state in Europe which has not ratified any of these to conventions against corruption.

GRECO concludes 29. December 2011 in report Greco RC-III (2011) 9E that Germany has implemented or satisfactorily dealt with only four of the twenty recommendations contained in the Third Round Evaluation Report (Appendix 3). Germany reported 29. June 2012 at the latest that no progress was made. Therefore GRECO submitted 28. Nov. 2012 the Non-Compliance Greco RC-III (2012) 15E.

Germany has to improve the federal FOI law, adopt FOI laws in 5 federal states (Bundesländer), ratify CoE and UN conventions against corruption and improve transparency of sideline jobs for members of parliaments and funding of political parties to catch up with other states in Baltic Sea, Europe, America, OSCE, OECD and WTO (see weakness no. 2, 3, 4, 8, 34, 35 and 52 of National Integrity Report by Transparency Germany).

The documentation that access to public documents is a human right has become stronger:

UN, OSCE and AOS Special Mandates for Protecting Freedom of Expression confirmed in Joint Declaration of 6. December 2004, that access to information is a human right: (Appendix J):

"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 federal FOI law violates the principle of maximum disclosure. 5 federal states violate the human right of access to public documents. i. e. no FOI law is adopted.

The "General Comment No. 34 on Article 19 of the Covenant on Civil and Political Rights (ICCPR)" confirms this (Appendix K):

"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 UN Human Rights Committee decided that the International Covenant on Civil and Political Rights (ICCPR) Article 19 (3) recognizes the right of individuals and the media to receive state-held information without requiring a demonstration of direct interest (Appendix L).

The European Court of Human Rights recognizes the human right of access to public documents (Appendix M).

The CoE Human Rights Commissioner suggested to educate administration and judges in international law and human rights (Appendix E). The refusal to give access to the reason of Bavaria not to follow these suggestions (Appendix F), shows that this suggestion is important.

In the context of the 106th CCPR session HRC (Human Right Committee) did not observe that the human right of access to public documents is violated in Germany

"Parlamentwatch" offers a possibility to ask questions to members of parliament. Unfortunately only a minority of the political parties in the federal parliament and federal states were willing to strengthen transparency and anti-corruption (Appendix O).

Germany is the only country ignoring the demand of the first Baltic Sea NGO Forum to adopt the human right of access to public documents (Appendix N).

Germany violates international human right standards. I ask you to help Germany to catch up with transparency and anti-corruption norms in the other European states.

Sincerely,

Walter Keim

Copy: Transparency International, European Commissioner for home affairs (EU COM(2011) 308: Fighting Corruption in the EU), OSCE, OECD, The European Union Agency for Fundamental Rights (FRA), German Institute for Human Rights, Menschenrechtszentrum, BMJ, Lehrstuhl für Menschenrechtsbildung, Menschenrechtsbeauftragter der Bundesregierung, Ausschuss für Menschenrechte und Humanitäre Hilfe,

Appendices:

Published on Internet:

Many petitions and complaints to Germany authorities (government, administration, parliaments, courts, NGOs) 2001 to 2012 did not help: http://wkeim.bplaced.net/files/foi-de.htm
1. September 2012: EU does not Support the Human Right of Access to Public Documents in member states. http://wkeim.bplaced.net/files/foi-eu.htm
24. August 2012: GRECO failed in Second Evaluation Round and must therefore do better in Third Round : http://wkeim.bplaced.net/files/foi-greco.htm
11 July 2007, CommDH(2007)14: REPORT BY THE COMMISSIONER FOR HUMAN RIGHTS MR THOMAS HAMMARBERG ON HIS VISIT TO GERMANY 9. – 11. and 15. – 20. October 2006: https://wcd.coe.int/ViewDoc.jsp?Ref=CommDH(2007)14&Language=lanEnglish
Result of report of Commissioner of Human Rights: http://wkeim.bplaced.net/coe_result.htm
Petition to PACE: Access to Information and other Violations of Human Rights in Germany: http://wkeim.bplaced.net/files/pace-complaint.htm. No answer: http://wkeim.bplaced.net/files/pace1202.htm
13. December 2011: Application to access documents telling why suggestions of Commissioner of Human Rights are refused: http://wkeim.bplaced.net/files/ifg-einsicht.htm
heise.de: Verabschiedet sich Deutschland vom Informationsfreiheitsgesetz? http://www.heise.de/tp/deutsch/special/frei/12314/1.html
heise.de: Bananenrepublik Deutschland: http://www.heise.de/tp/r4/artikel/12/12689/1.html
21. December 2004: Joint Declaration by the Three Special Mandates for Protecting Freedom of Expression UN, OSCE and OAS: http://merlin.obs.coe.int/iris/2005/2/article1
"General Comment No. 34 on Article 19 of the Covenant on Civil and Political Rights (ICCPR)": http://www2.ohchr.org/english/bodies/hrc/comments.htm
January 2012, Transparency Germany: - 84 weaknesses in the fight against corruption (conventions against Corruption to be ratified, improve FOI laws): http://www.gp-f.com/en/ak.php#231
UN Human Rights Committee decisions: http://right2info.org/cases#section-6
The European Court of Human Rights cases according to Article 10 of ECHR: http://right2info.org/cases#section-2
24. April 2012: X. Baltic Sea NGO Forum. The role of international lawmakers and their respective influence on national legislation on information access (pdf) http://wkeim.bplaced.net/files/ATI-BSNF.html
15. February 2012: Will political parties strengthen transparency and anti-corruption? http://wkeim.bplaced.net/files/120215questions.html
14 July 2012: Enforcement of the Human Right of Access to Information in Bavaria/Germany http://wkeim.bplaced.net/files/enforce_access_to_information.html

Result/Answers:

European Union Agency for Fundamental Rights (16. April 2013): "We regret to inform you that our mandate does not give us the authority to monitor particular EU Member States for the purposes of determining the existence of human rights violations."
GRECO (03. May 2013): Receipt of letter acknowledged and duly noted for future reference.

Development: