ICCPR Complaint Freedom of Information

Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, 19. October 2005 [added 3. Nov. 2005]

Human Rights Committee c/o OHCHR-UNOG,
Petition Team
United Nations Office
8-14 avenue de la Paix
CH-1211 Geneva 10, Switzerland
Fax. No. (41-22) 917 9022

Complaint Freedom of Information

Sir,

I ask the Centre for Human Rights of the United Nations to process this individual complaint according to the Optional Protocol to the International Covenant on Civil and Political Rights of the ICCPR (International Covenant on Civil and Political Rights).

Germany has signed the ICCPR and Optional Protocol including the human right of Freedom of Information including access to documents of public administration. The German Parliament has implemented the Covenant into German law published in German law magazine (BGBl. 1973 II S. 1534)

I am the victim of several refusals of access to documents:

For documents of petition 13/824 of 20. October 2001 to Landtag Baden-Württemberg both the parliament and ministry of internal affair refused to give access to documents.
Petition Freedom of Information 21. Dec. 2001 to Bundestag (Appendix: http://wkeim.bplaced.net/petition_ifg.htm#einsicht).
Petition Freedom of Information 20. Dec. 2001 to Landtag Baden-Württemberg (Appendix: http://wkeim.bplaced.net/petition_bw.htm#einsicht).
Petition Patients Rights 25. Oct. 2001 to Bundestag (Appendix: http://wkeim.bplaced.net/petition4.htm#einsicht).
[Access to documents of Doctors court Baden-Württemberg (Landesberufsgericht für Ärzte) asked for 30. October 2005, denied 2. November 2005. Constitutional Complaint 3. November 2005. 20. December 2005 the Constitutional Court denies to admit constitutional complaint of 3. November 2006¹⁷.]
[Added 2008: The parliament of Bavaria wrote 03. July 2008 that the suggestions of the Human Rights Commissioner of the Council of Europe will not be implementes. Acces to the reason of this decision was denied 3 times].

Domestic juridical/administrative remedies have been tried:

The constitutional complaint of 5. May 2002³ was not accepted 28. May 2002 because:

.. in matters of petitions the way to the administrative courts is open. Therefore the complaint cannot be processed, because lower courts are not used sufficiently.
("Ferner dürfte in Petitionsangelegenheiten der Rechtsweg zu den Verwaltungsgerichten geöffnet sein, sodass die von Ihnen vorgetragene Petitionsangelegenheit mangels Rechtswegausschöpfung unzulässig wäre").⁴

The Complaint of 4. February 2004 to the Administrative Court (Verwaltungsgericht) Berlin case Walter Keim ./. Germany VG 2 A 85.04 ⁵ applies for:

The Committee of Petitions has to confirm the receipt of the "Petition on Human Rights Violations in Germany: Invitation of the Human Rights Commissioner" ¹³ of 21. December 2003.
To sentence the committee of petitions to give a fair answer to petition of 21. December 2001, because there is no answer up to now which is contradictory to Article 17 Basic Law (Right to Petitions).
To sentence the committee of petitions, to give access to documents of exchange of information between ministry and committee of petitions, according to letter of 27. February 2003 . The committee of petitions did not give access and this is in contradiction to Article 5 Basic Law (Freedom of Information) in connection to Article 1 (2) Basic Law (Human Rights), Article 25 Basic Law (International law precedes federal law) and ICCPR Article 19 (International Covenant on Civil and Political Rights (ICCPR): Human Right Freedom of Information). (This has happened often in several petitionen e. g. of 25. October .2001 )
Sentence the ministry of Justice to give access to documents according to application of 16. October 2003 . The rejection violates Article 5 Basic Law (Freedom of Information) in connection to Article 1 (2) Basic Law (Human Rights), Article 25 Basic Law (International law precedes federal law) and ICCP ⁸ Article 19 (ICCPR: Human Right of Freedom of Information).
The lack of Freedom of Information in Germany is unconstitutional because it is in contradiction with Human Rights.
Amount in controversy will be specified looking at international rules, because German bureaucracy has tried to hinder the human rights of access by high costs.

According to German law i. e. Gerichtskostengesetzes (GRK) § 13 the amount in controversy shall be according to the value it has for the complainant. Since the complainant is living in the European "area of freedom, security and justice" (not recognized by Germany) where both a fair answer within reasonable time and the 15 copies this case is about are free. Therefore 19. October 2004 it was applied for € 10.-

The Administrative Court (Verwaltungsgericht) Berlin ruled 25. April 2005 on access to documents:

"The complaint is rejected. The complainant has to pay the costs. ... According to § 124 a section 1 sentence 1 VwGO a appeal is not allowed". The amount of controvercy was set to € 12000.- (twelve thousand EURO!) ⁶

The complaint og 17. July 2005 ⁷ judgement of the Higher Administrative Court (Oberverwaltungsgericht) Berlin-Brandenburg OLG 3 L 30.5 of 7. July 2005 reads:

"The complaint against judgement of 25. April 2005 is rejected by sentence which can not be appealed." ⁸

The complaint to the constitutional court of 18. August 2005 ⁹ was rejected 29. September 2005:

According to § 93 b in connection with 93 a BVerfGG (Federal Constitutional Court Act) the dicision is: The complaint is not accepted. A reason is not given according to § 93 d Abs. 1 Satz 3 BVerfGG ("gemäß § 93 b in Verbindung mit 93 a BVerfGG (..wird) einstimmig beschlossen: Die Verfassungsbeschwerde wird (..) nicht zur Entscheidung angenommen. Von einer Begründung wird gemäß § 93 d Abs. 1 Satz 3 BVerfGG abgesehen")¹⁰.

§ 93a and 93b BVerfGG (Federal Constitutional Court Act) read:

"Article 93 a

(1) A constitutional complaint shall require acceptance.
(2) It shall be accepted
(a) in so far as it has fundamental constitutional significance,
(b) if this is indicated in order to enforce the rights referred to in Article 90 (1) above; this can also be the case if the complainant suffers especially grave disadvantage as a result of refusal to decide on the complaint.

Article 93 b

The chamber may refuse to accept the constitutional complaint or accept it prior to a decision in the case of Article 93c below. Otherwise the panel shall decide on acceptance.

Article 93 c

(1) If the conditions of Article 93 a (2) (b) above are fulfilled and if the constitutional issue determining the judgment of the complaint has already been decided upon by the Federal Constitutional Court, the chamber may allow the complaint if it is clearly justified. This decision is equal to a decision by the panel. A decision stating, with the effect of Article 31 (2) above, that a law is incompatible with the Basic Law or with other Federal law shall be reserved for the panel.
(2) Articles 94 (2)-(3) and 95 (1)-(2) below shall apply to the above procedure."

showing that access to documents was not considered relevant and important enough to accept the complaint.

[I contacted the "Robin Hood" of German justice system 19. October 2003 ¹⁴. He estimated an amount of controvercy of € 4000.- and costs of aprrox. € 2180.- for both lower and higher administrative court, because a defeat was sure.]

Already the first judgement of the Administrative Court (Verwaltungsgericht) Berlin 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.

During the proceedings at the administrative court documents of the Petition on Human Rights Violations in Germany: Invitation of the Human Rights Commissioner ⁷ 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.- (see account of the court 27. October 2005 on the basis of amount of controversy € 12,000.-) because the case was lost totally. That corresponds to approx. 30 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.]

[The second lawyer I contacted¹⁴ after having lost the fierst round could only promise me a defeat The higher administrative court the costs to pay him and the court would have been more than € 2.607,65 in addition plus costs for travelling (i. e. corresponding approx. 140 days in jail, see http://www.prozesskostenrechner.de/) on the basis of an amount of controversy of € 12,000.- At the higher administrative court a complainant must have a lawyer.]

High costs unreasonably high barrier to justice restricting direct participation according to ICCPR Article 25: "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly". The higher administrative court did not remove this barrier and the Constitutional Court did not find it unconstitutional.

On the other hand German courts are still faithful to Adolf Hitlers Nazi law on legal advice of 1935. (See complaint to ECHR Götz Bockmann of 13. November 2002) ¹¹. This law makes Germany is the only country in the world where it is forbidden to altruistically give free legal advice.

8. May 2003 was written that I was demanding a FOI law in Germany. This is false as the facts of my complaint show: I simply complain that I was the victim of denials of access and ignoring the ICCPR by German administration and courts.

It is true that I have written petitions suggesting that parliaments give Freedom of Information laws. However this is a citizens right, which can not be used to exclude me from complaining to UN on a different basis.

Background

Freedom of Information also called access to public documents is an essential aspect of transparency which is itself an essential part of democracy. This citizen right is adopted in more then 60 states around the world, many of which consider it a constitutional basic right.

Germany is in 12 of 16 states up to now the only major country in EU, Europe, OSCE, OECD and developed civilized countries without Freedom of Information. Therefore 70 % of the population in Germany lack Freedom of Information in communities, counties and federal states.

All over Europe access to public documents was adopted on the basis of recommendation 81 (19) of CoE of the year 1981. On Balkan only Montenegro is missing. Will German states fall back the last Balkan state? Will European standards of citizen rights have a chance in German states?

I would like to emphasize that the right to information is part of the right to freedom of expression, which is confirmed by international human rights laws, specifically by the International Covenant of Civil and Political Rights (article 19), and the Universal Declaration of Human Rights (article 19), all of them ratified by Germany and incorporated into German law. German states violate the covenant.

The Charter of Fundamental Rights of the EU gives Freedom of Information in Article 42, access to documents in Article 41 (2), the right to complain in Article 43 (Ombudsman) and the right to fair answers within reasonable time in Article 41 (1). The "European Codex of god Administration" defines latest two months to get an answer (Article 17).

As European my opinion is that Germany should respect the fundamental rights of the Charter of the European Union. Unfortunately German administration abuses national sovereignty to deny fundamental rights of the Charter of Fundamental Rights of the EU.

The sentences of the administrative courts do not take into account the human right of Freedom of Information according to Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR) (BGBl. 1973 II S. 1534). This violates. Article 1 (2) Basic Law:

"(2) The German People therefore acknowledge inviolable and inalienable human rights as the basis of every human community, of peace, and of justice in the world."

It is not in accordance with the acknowledgement of human rights, that the administrative courts even did not look at all to the question of human rights violations.

Further the administrative court Berlin ruled 9. May 2005 not to admit the administrative denial of access to be taken to court. Ignoring the ICCPR totally the court said there is no "legal basis" to ask for access to documents. According to the court the case raises no principle constitutional questions. The administrative court ruled that an appeal is not allowed. The amount of controversy was set to € 12 000.-. The loss at the lower administrative court will cost approximately € 600.- which corresponds to 20 days in Prison. The high amount of controversy makes it not affordable for me to complain to higher administrative court, because the costs would be more than € 3000.-.

Unfortunately there are many more human rights violations in Germany, which are ignored by the authorities, the press and the public. The administrative court approved that my petition of 21 December 2003 on Human Right violations in Germany is not even answered. Germans do not have the right to get a fair justified answer to petitions (1 BvR 1553/90).

Article 5 (1) Basic Law on freedom of expression reads:

"(1) Everyone has the right to freely express and disseminate his opinion in speech, writing, and pictures and to freely inform himself from generally accessible sources."

The lack of access to documents weakens my communicative competence, which I need in order to complain to the UN: http://wkeim.bplaced.net/files/un-complaint.htm, WHO, Council of Europe and EU.

The International Covenant on Civil and Political Rights (ICCPR) Article 19 (2), describes the human right of freedom of information, with has the rank of a federal law:

"(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

None of the exceptions of Article 19 (3) are appropriate in this case:

"(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The report (UN Doc. E/CN.4/1999/64, para. 12) illustrates that the access to public is included in article 19:

[T]he Special Rapporteur expresses again his view, and emphasizes, that everyone has the right to seek, receive and impart information and that this imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems - including film, microfiche, electronic capacities, video and photographs - subject only to such restrictions as referred to in article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

UN, OSCE and AOS conform in their Joint Declaration of 6. December 2004, that Access to Information is a human right:

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.

In "Freedom of Information: A Internationally Protected Human Right" by Toby Mendel, it is shown that both OAS (in America) and OAU (in Africa) protect Freedom of Information in their areas. In Europe UN has a duty to do to protect this human right.

In Article 1 (2) Basic Law the German people acknowledges human rights. This acknowledgment is violated by the administrative courts.

The relation between International law and federal law is described in Article 25 Basic Law:

"The general rules of international law shall "be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory."

In addition to Freedom of Information Germany violates the Human Rights freedom of opinion, freedom of assembly, and right to fair trial ⁷ and has been sentenced many time at the European Court of Human Rights.

Detailed Substantiation

A detailed substantiation why the judiciary und executive branch (administration) in 12of 16 German states does not guarantee to always be committed to Human Rights and does not respect 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 is explained in the complaint to UN of 18. April 2002 ¹and the complaint to the constitutional court of 5. May 2001³ .

Summary

I refer to the website of the UN: http://www.runiceurope.org/german/menschen/udhr_template.htm. It says (translated from German):

"The Universal Declaration of Human Rights (1948) gives in clear and simple language the basic rights which everybody is entitled to.

You can claim these basic rights. These rights are your rights.

Make yourself familiar with them. Help to promote and defend these basic rights for yourself and your fellows"

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, (...)"

To sum up one must say that Germany abuses it's sovereignty to deny Germans the human right of freedom of information. Therefore I am as German a second class citizens in the EU and Europe. Even worth: EU citizens, who move to Germany loose the human right of freedom of information, which they had in the country they come from. The mothers and fathers of the wrote they were "animated by the purpose to serve world peace as an equal part in a unified Europe," (Preamble Basic Law), not the continuation of authoritan pieces (as the only country in Europe): The "Amtsgeheimnis" (official secrecy) as relict of Prussian authorial state, which puts secrecy higher than democratic participation and human rights of citizens.

This complaint is published here: http://wkeim.bplaced.net/files/un-0509.htm.

Yours sincerely,

Walter Keim
Torshaugv. 2 C
N-7020 Trondheim
E-Mail: walter.keim@gmail.com
Human Right violations in Germany: http://wkeim.bplaced.net/files/de_human_rights.htm
Support Freedom of Information: http://wkeim.bplaced.net/foil.htm#e-mail
Support Patients' Rights: http://wkeim.bplaced.net/patients.htm#e-mail