Individual Human rights Complaint International Covenant on Civil and Political Rights (ICCPR): Denial of Access to Information

Draft:

Walter Keim, Email: walter.keim@gmail.com
Opplandsveien 210
NO-3885 Grimstad, … June 2018
Norway

Human Rights Committee c/o OHCHR-UNOG,
Petition Team
United Nations Office
8-14 avenue de la Paix
CH-1211 Geneva 10,
Switzerland

Individual Human Rights Complaint: Denial of Access to Information

I ask the Centre for Human Rights of the United Nations to process this individual Human rights complaint (See FactSheet7Rev2) according to the Optional Protocol to the International Covenant on Civil and Political Rights of the ICCPR (International Covenant on Civil and Political Rights).

I am a citizen of Germany. 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).

Domestic administrative remedies

More then 130 States worldwide have implemented the human right of access to public documents by adopting Freedom of Information (FOI) laws. In Europe and Central Asia 46 countries covering 98% of the population have adopted FOI laws at national level. Bavaria lacks a FOI law, to access public documents of all sectors. This argument has been used in the context of domestic juridical/administrative remedies. I have been the victim of many denials of access to public documents and written petitions to 12 German states to adopt access to information laws. I appreciate that NGOs support us victims of denials of the human right of access to information and collects and provides information about the international development. “NGOs play an important role in providing assistance to alleged victims of human rights violations under the Covenant in submitting individual communications to the Committee under the Optional Protocol.” (CCPR/C/104/3.Human Rights Committee 104th session New York, 12–30 March 2012. The relationship of the Human Rights Committee with nongovernmental organizations)

The report CommDH(2007)14 of the Human Rights Commissioner Thomas Hammarberg about his visit to Germany 9. – 11. and 15. – 20. October 2006 suggests to add human rights to the core curricula in the legal education and practical training of lawyers and educate judges and administration in human rights. The petition II/VF.0993.15 to the parliament in Bavaria suggests to follow the recommendation and educate judges and administration in human rights. 3. July 2008 the parliament answered: "The petition is finished on the basis of the statements of the government." This means the suggestions are dismissed. Both the parliament Parliament Landtag, the ministry of justice (Justizministerium) and ministry of interior (Innenministerium) refused to give access to these statements, because it was written for the parliament. Legitimate interest (in German “berechtigtes Interesse”) was denied. 13. December 2011 access was again requested, because the human right of access to information is recognized by more then 115 states with 5.9 billion inhabitants. These requests were rejected 23. January 2012 and 31. January 2012 with insufficient reasons. On 14. July 2012 a complaint to the administrative court in Munich was filed ¹.
13 June 2013 the Administrative Court in Munich ruled to deny access ²e. g. because: Judgement national judgements BVerwG, of 16.09.1980, BVerwG 1 C 52.75 says that ECHR does not include access to public documents only access to generally accessible sources (e. g. newspapers). An appeal was filed 25 July 2013. The appeal was denied 14. February 2014 ³. Therefore a constitutional complaint 1 BvR 897/14 has been necessary and was filed 17 March 2014. On 13. January 2016 the Constitutional complaint was rejected⁵.

Domestic juridical remedies

Claim: The Complaint of 14. July 2012 to the Administrative Court München case VG München Keim ./. Bavaria ¹applies for:

“Access of files of the Ministry of the Interior and the Ministry of Justice regarding the rejection of the proposals of the Commissioner for Human Rights by petition II/VF.0993.15 according to Art. 19 (4), 20 (3), Art. 25 Basic Law, Art. 5 Basic Law in connection with Art. 19 (2) ICCPR and Art. 10 ECHR, Art. 13 ECHR, Art. 10 ECHR, Art. 19 ICCPR”
The claim applies for access to statements of the Bavarian State Ministry of Justice (StMJ) and the Bavarian State Ministry of Interior (StMI) to reject the proposals of the CoE Human Rights Commissioner Thomas Hammarberg.

Decision: The Administrative Court case VG München Keim ./. Bavaria denied access to documents 13. June 2013:

Access is denied. The complainant has to pay the costs. .. The amount of controversy was set to € 5000.- (five thousand EURO). Appeal is denied ²(Critic of judgement: ICCPR is put aside)

The complaint of 25. July 2013 (Appendix 3a) applied for leave to appeal. ³

Decision of 14. February 2014 of the Higher Administrative Court (BayVGH) reads:

"The appeal is rejected by sentence which is final." ⁴

The rejection of the appeal fails to meet international standards i.e. ECHR and ICCPR. ⁵

The complaint to the constitutional court of 13. March 2014 ⁵ was filed because of violation of basic rights Article 5 (1) and Article 2 Basic law, Art. 10 ECHR and Art. 19 ICCPR

Decision: The Constitutional Court rejected 13. January 2016 the complaint ⁶:

According to § 93 b in connection with 93 a BVerfGG (Federal Constitutional Court Act) the decision 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"). ⁶

§ 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.

After domestic juridical/administrative remedies have been exhausted a complaint to European Court of Human Rights was filed.

Complaint to European Court of Human Rights, 14 February 2016 Applicatio no. 13912/16⁷:

“The refusal by the Bavarian State Ministry of Justice (StMJ) and the Bavarian State Ministry of Interior and the Bavarian Land Parliament to give access in the files violates the applicant's rights under Article 10 ECHR and Article 19 (2) of the ICCPR.” (see detailed circumstances in english http://wkeim.bplaced.net/files/echr-13912-16-complaint-p5-10.pdf )

30 June 2016 the European Court of Human Rights decided. ⁸

“(T)he admissibility criteria (…) have not been met”. http://wkeim.bplaced.net/files/echr-13912-16.pdf

High costs unreasonably high barrier to justice (a lawyer is required for higher administrative court) 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.

This complaint is published here: http://wkeim.bplaced.net/files/un-2018.html.

Yours sincerely,

Walter Keim

E-Mail: walter.keim@gmail.com
Access to Information Baltic Sea NGO Forum: http://BSNF-ATI.tk/
Support Freedom of Information: http://wkeim.bplaced.net/foil.htm#e-mail

List of appendices

Summaries of documents of domestic juridical/administrative remedies
Model form for the submission of communications under the Optional Protocol to the ICCPR
ECHR complaint (page 5 to 9) for details of facts and circumstances in English and answer not admissible

Result:

29. June 2019: The Centre for Law and Democracy send a detailed complaint to Human Rights Committee c/o OHCHR-UNOG, Petition Team, Annex

Chronological list of legal remedies including links to complaints and court decisions:

Claim: Complaint of 14. July 2012 to the Administrative Court (Verwaltungsgericht) München case VG München Keim ./. Bavaria Az. M 17 K 12.3408: http://wkeim.bplaced.net/files/vgm-2012.htm
Decision of the The Administrative Court (Verwaltungsgericht) München case VG München Keim ./. Bavaria Az. M 17 K 12.3408 denied access to documents 13. June 2013: http://wkeim.bplaced.net/files/vgm-urteil.pdf
Application:Lawyers complaint 25. July 2013 to Higher Administrative Court available by confidential link in German: http://wkeim.bplaced.net/files/130725-KEI-VGT-Munchen.pdf for the Petition team only)
Decision: Judgement 14. February 2014 of the Higher Administrative Court (Verwaltungsgerichtshof BayVGH) BayVGH Az. 5 ZB 13.1559: http://openjur.de/u/680803.html
Lawyers complaint to Constitutional Court 13. March 2014 (confidential link in German: http://wkeim.bplaced.net/files/140406 KEI-02-Verfassungsbeschwerde.pdf for the Petition team only. Basis for Constitutional complaint 2014: http://wkeim.bplaced.net/files/vgm-130706.html)
Decision 13 January 2016: The complaint is not accepted by the Constitutional Court (1 BvR 897/14): http://wkeim.bplaced.net/files/2016-Beschluss_Bundesverfassungsgericht.pdf
Complaint to European Court of Human Rights, 14 February 2016, Applicatio no. 13912/16 http://wkeim.bplaced.net/files/echr-13912-16-complaint-p5-10.pdf
30. June 2016. ECHR decided: “The admissibility criteria have not been met.” http://wkeim.bplaced.net/files/echr-13912-16.pdf

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