Freedom of 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/if-ngo.htm

Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, 17. May 2012

To the Private Office of the President of the Assembly
Parliamentary Assembly
Council of Europe
Avenue de l'Europe
F-67075 Strasbourg Cedex

Copy: Secretary General CoE Thorbjørn Jagland, Commissioner of Human Rights CoE, EU Commission, President of Federal Republic of Germany, President of Bundestag Lammert, Chancellor Merkel, GRECO

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

Freedom of Information, Transparency and Anti-corruption Treaties in Germany

Dear Mr. Sich,

thank you very much for your information dated 13 February 2006 that the petition "Access to information" in Germany [2] has been transmitted to the competent Committee of the Parliamentary Assembly [1].

However I can not see to have received a decision on admission.

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.

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

84 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 115 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 158 states with more then 6,5 billion inhabitants, but not by Germany (Appendix A).
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 (Appendix B, Appendix C).
Germany is the only state in Europe which has not ratified any of these to conventions against corruption (Appendix D).

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 has to report on progress 30. June 2012 at the latest. But nothing happened up to now.

51 states participate in the Open Government Partnership for transparent accountable governments. This OGP initiative wants governments to commit to openness, participation for citizens, fight against corruption and use of new technologies. But Germany does not participate, even it would be very necessary.

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 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 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 ICCPR" confirms this (Appendix J):

"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.

"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).

I ask the competent Committee of the Parliamentary Assembly to help Germany to catch up with 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: