Access to Information is missing in the 6. state report of Germany according to Article 40 of the Civil Convenant CCPR

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

Parallel Report to the Human Rights Committee
on the occasion of the consideration of the
Sixth Periodic Report of Germany
during the Committee’s 106 th Session
submitted by:

Walter Keim, participant of the Baltic Sea NGO Forum
Torshaugv. 2 C
N-7020 Trondheim, 16th June 2011 [updated 14. September 2012]

auf Deutsch: http://wkeim.bplaced.net/files/if-dimr-pbt.htm

Human Rights Institute
(Deutsches Institut für Menschenrechte)
Zimmerstr. 26/27
D-10969 Berlin

Committee of Human Rights (Ausschuss für Menschenrechte und humanitäre Hilfe)
Federal Parliament Bundestag
Platz der Republik 1
D-11011 Berlin

Copy: Transparency, Greenpeace, Deutsche Gesellschaft für Informationsfreiheit, Humanistische Union, netzwerk recherche, Mehr Demokratie

[Nobody answered, therefore this letter was sent directly to the Human Rights Committee]

106 session: Access to Information is missing in the 6. state report of Germany according to Article 40 of the Civil Covenant CCPR

Germany has to adopt access to informations (ATI) laws in all 16 federal states and improve federal ATI law to meet international standards
Withdraw reservation on Article 19 of CCPR
The rank of CCPR in German law must be respected and should be improved.
The recommendations of the Human Rights Commissioner of the Council of Europe, e. g. educate administration and judges in international law i. e. CCPR should be done.
Judges should not be hired, promoted and supervised by the executive power i. e. Resolution 1685 (2009) and Recommendation No. R (94)12 of the Council of Europe should be followed.
CCPR, International Covenant on Economic, Social and Cultural Rights and the European Convention of Human Rights should be included in the Internet collection of the "laws of Germany" (www.Gesetze-im-Internet.de and http://bundesrecht.juris.de).
The German Institute of Human Rights should monitor human rights in Germany.
Defamation should be decriminalized.

I refer to the 6. report according to Article 40 of the International Covenant on Civil and Political Rights, reporting to the Human Rights Committee (CCPR) dated 31. March 2010 (1). The EU Fundamental Rights Agencysuggested to contact the Council of Europe (2), answering a complaint on lack of Freedom of information in Germany (3). The GRECO (Group of States against corruption) did not observe that access to informations laws are missing in 5 states in Germany (N).

1. Access to public documents is a human right according to Article 19 CCPR

Freedom of Information (including access to public documents) is part of Article 19 the International Covenant on Civil and Political Rights (ICCPR), which Germany has signed.

The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression reported e. g. in E/CN.4/1998/40, 28 January 1998, E/CN.4/2000/63, 18 January 2000 and A/HRC/14/23, 20 April 2010 that access to public documents is a human right.

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: (4):

"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" confirms this (5):

"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."

Germany tried to remove the human right of access to public documents and other human rights (13) from the Draft General Comment No. 34 on Article 19 ICCPR (see page 17 reference 14). Decriminalization of defamation and abolition of prison sentences (Article 49) is objected. Access to public documents is not considered a fundamental right according to the German Basic Law. The ICCPR has only the rank of a law. Therefore it is suggested to remove access to public documents from the ICCPR.

2. Five states (Länder) violate the human right of access to public documents

I have informed the states Hesse, Lower Saxony , Saxony, Bavaria and Baden-Württemberg several times about the human right access to public documents. However these states continue to violate this human right and access laws are not given (6).

The NGO "Bündnis für Informationsfreiheit in Bayern" has collected many examples of denial of access (10). Reference 7 gives additional examples of denial of access to public documents.

The UN Convention against Corruption of 14. December 2005 has been ratified by 158 states. However Germany could not ratify because bribery of members of parliament is not a criminal act. This law would have to be given by parliamentarians itself.

[The Group of States against Corruption (GRECO) of the Council of Europe saw deficiencies combatting corruption in Germany and made 2009 suggestions on transparency of financing of parties (K). 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 (M)]

[More than 115 states with 5.9 billion i. e. 84 % of the world population adopted either FOI laws or constitutional provisions (I). Citizens in 5 states in Germany with half of the population lack this human right.]

3. The rank of the ICCPR is not respected in praxis

Paragraph 118 of the State report reads: "CCPR is part of German justice system as federal law. Therefore it is binding for federal states." But this is not respected by German administration and courts.

Therefore German courts may decide against human rights if there is a conflict, e. g. the highest Court in the German land Rhineland-Palatinate LG Mainz (1 QS 25/98) stated that the court can not give access to documents (as the European Convention of 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.

Internet pages "laws in Internet" (www.Gesetze-im-Internet.de and http://bundesrecht.juris.de) do not contain the CCPR. Therefore I have 28. April 2007 suggested to add it together with other human rights covenant. The answer 14. July 2007 says that the capacity was not big enough. It is difficult to believe this as reason.

Court cases Walter Keim ./. Germany VG 2 A 85.04 and VG 2 A 55.07 show that the Administrative Court of Berlin (Verwaltungsgericht Berlin), and the Higher Administrative Court (Oberwaltungsgericht) and later the Constitutional Court (Verfassungsgericht) in cases 1 BvR 1981/05, 1 BvR 2565/05 and 1 BvR 238/09 that the human rights character of access to public documents of the CCPR is ignored (7). Many applications referring to the CCPR are denied without even discussion. This proves that the rank of CCPR being a law is ignored (7).

The ICCPR human right access to public documents is rejected by the German government, because it is considered no fundamental right of the German Basic law (constitution) (13).

The reservation on Article 19 CCPR restricts foreigners rights in Germany.

[The federal law of Freedom of Information has too many exceptions and violates international principle of maximum disclosure. Comparison with laws from 111 other countries places Germany on 105th rank, i. e. 5.9 billion people have better access laws(J).]

4. Recommendations

The Report of the Human Rights Commissioner of the Council of Europe 2006 suggests to educate administration and judges in human rights e. g. CCPR (8). Unfortunately both the federal and local parliaments refused to consider this proposition (9).

Judges at administrative courts are hired, promoted and supervised by the executive power and are not independent according to Article 14 CCPR (11).

In approx. 50 States access to public documents is found in the constitution. Approx. 90 states have adopted access to information laws. In Europe basically Belarus and 5 German states are missing. After India in 2005, China in 2008, Russia in 2010 and Brazil soon (BRIC countries) adopt laws on access to information only some countries in Africa and the Middle East are missing.

Germany's report should have been given 1. April.2009. The report was registered 18. April 2011 at UN.

In many states – e. g. for the European Convention of Human Rights - international conventions have a higher rank compared to laws e. g. Austria, Switzerland and Norway (12).

The Human Rights Commissioner of the Council of Europe suggested to give the German Human Rights Institute the task to monitor human rights in Germany (F).

Recommendations summarized:

Germany has to adopt access to informations (ATI) laws in all 16 federal states and improve federal ATI law to meet international standards
Withdraw reservation on Article 19 of CCPR
The rank of CCPR in German law must be respected and should be improved.
The recommendations of the Human Rights Commissioner of the Council of Europe, e. g. educate administration and judges in international law i. e. CCPR should be done.
Judges should not be hired, promoted and supervised by the executive power i. e. Resolution 1685 (2009) and Recommendation No. R (94)12 of the Council of Europe should be followed.
CCPR, International Covenant on Economic, Social and Cultural Rights and the European Convention of Human Rights should be included in the Internet collection of the "laws of Germany" (www.Gesetze-im-Internet.de and http://bundesrecht.juris.de).
The German Institute of Human Rights should monitor human rights in Germany.
Defamation should be decriminalized.

Yours sincerely,

Walter Keim

Copy: Human Right Commissioner of the CoE, Fundamental Rights Agency, Ausschuss für Menschenrechte und Humanitäre Hilfe, Dr. Valentin AICHELE, Legal adviser, German Institute for Human Rights, OSCE, Mr. Frank La Rue, UN Special Rapporteur

References:

Consideration of reports submitted by States parties under article 40 of the Covenant CCPR: http://www.ccprcentre.org/doc/HRC/Germany/CCPR_C_DEU_6_en.doc
26.03.2007: German Human Rights Institute is responsible for human rights in Germany: http://wkeim.bplaced.net/files/eu-hra-070329.pdf
01.03.2006: Access to Information and other Violations of Human Rights in Germany : http://wkeim.bplaced.net/files/eu-hra-complaint.htm
2004 International Mechanisms for Promoting Freedom of Expression: JOINT DECLARATION http://merlin.obs.coe.int/iris/2005/2/article1
General Comment No. 34 on article 19 by the Human Rights Committee: http://www2.ohchr.org/english/bodies/hrc/comments.htm
5 federal states (lander) ignore the human right of access to public documents: http://wkeim.bplaced.net/files/ifg-5-laender-en.htm
Administration and jurisprudence about freedom of information: http://wkeim.bplaced.net/files/ifg-material.htm
Petition realisation of the suggestions of the Human Right Commissioner of the CoE: http://wkeim.bplaced.net/petition_gg.htm
Rejection of the suggestions of the Human Right Commissioner of the CoE by parliament Bundestag and 8 länderparliaments: http://wkeim.bplaced.net/coe_resultat.htm#antworten
Bündnis für Informationsfreiheit in Bayern: (In)transparenz in Bayern: http://www.informationsfreiheit.org/3964.html
Separation of powers in Europe: http://wkeim.bplaced.net/files/separation_of_powers.htm
Geiger, Grundgesetz und Völkerrecht, 5. Auflage, S. 160; Schweisfurth, Völkerrecht, S. 202; Nowak, CCPR-Commentary, Second editition, Art. 2, Rn. 55
11. February 2011: Germany asked to remove the human right of access to public documents and other human rights: http://wkeim.bplaced.net/files/German_comments_on_Draft_General_Comment_No.34.pdf
HUMAN RIGHTS COMMITTEE. DISCUSSIONS ON DRAFT GENERAL COMMENT NO. 34- MEETING NOTES (18 MARCH – 24 MARCH 2011): http://freedominfo.org/documents/HRCnotesMarch2011.pdf
X. Baltic Sea NGO Forum, Final Statement, WS III: Human rights: http://www.bsngoforum.org/files/Final_statement.pdf

We urge the CBSS to create an Ombudsman for Human Rights.

In each country of the Baltic Sea Region, there shall be installed independent national Human Rights Institutes according to the Paris principles.

The workshop recommends that the Baltic Sea NGO Network oversee the implementation of the Universal Periodic Review (UPR) process in each country of all the CBSS member states.

X. Baltic Sea NGO Forum: The role of international lawmakers and their respective influence on national legislation on access to information: http://wkeim.bplaced.net/files/ATI-BSNF.htm

Internet publications:

Telepolis (15.04.2002): Informationsfreiheit ist ein UN Menschenrecht: http://www.heise.de/tp/deutsch/special/frei/12314/1.html
Telepolis (08.06.2002): Bananenrepublik Deutschland: http://www.heise.de/tp/deutsch/special/frei/12689/1.html
Telepolis (03.05.2002): Was kann der einzelne Bürger bewirken? Interview mit Walter Keim: http://www.heise.de/tp/r4/artikel/12/12456/1.html
Tagesspiegel (l 8.12.2006): Europäischer Menschenrechtshof: Präsident ermahnt Deutschland.
Tabellarische Übersichten: Menschenrecht Informationszugangsfreiheit im Bundesgesetzblatt (BGBl.): http://wkeim.bplaced.net/IFG.htm#Europarat
REPORT BY THE COMMISSIONER FOR HUMAN RIGHTS MR THOMAS HAMMARBERG ON HIS VISIT TO GERMANY: http://wkeim.bplaced.net/files/Bericht-des-Menschenrechtskommissars.html: 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.
21.12.2003: Petition Violations of Human Rights in Germany: Invitation of the Human Rights Commissioner of the CoE to Germany:
http://wkeim.bplaced.net/petition_me-en.htm
Human Right Violations in Germany: Freedom of Opinion, Information, Association, Family Life and Right to Fair Trial:
http://wkeim.bplaced.net/files/de_human_rights.htm
Legal framework for the right of access to information: http://right2info.org/laws
Right to Information Rating: http://www.rti-rating.org/country-data/
GRECO (4. December 2009): GRECO Evaluation Report on Germany on Incriminations (ETS 173 and 191, GPC 2): http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoEval3(2009)3_Germany_One_EN.pdf
Freedom of Information missing in South Germany: http://wkeim.bplaced.net/foi-laws-eu-de.gif
Lobbypedia - GRECO: http://www.lobbypedia.de/index.php/GRECO
Keim, Walter (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

Development:

Publication of this document and meeting at Human Rights Committee, 106th session (15 October - 2 November 2012), Geneva
Keim, Walter (7. November 2012): Will OSCE Support the Human Right of Access to Public Documents?

Answer:

14. September 2012, Human Rights Committee: "Thank you for this report. I will ensure it is put on the website. Please follow the usual practice and send 7 hardcopies for the members of the Committee by the deadline indicated in the note for NGOs."
Human Rights Committee CCPR/C/DEU/CO/6 (2012): Concluding observations on the sixth periodic report of Germany, adopted by the Committee at its 106th session, 15 October to 2 November

"The State party should widely disseminate the Covenant, the two Optional Protocols to the Covenant, the text of the sixth periodic report, the written responses it has provided in response to the list of issues drawn up by the Committee, and the present concluding observations so as to increase awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations operating in the country, as well as the general public".

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