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Torshaugv. 2 C
N-7020 Trondheim, 18.4.2002 [Updated 18.6.02]
Human Rights Committee c/o OHCHR-UNOG,
United Nations Office
8-14 avenue de la Paix
CH-1211 Geneva 10, Switzerland
Fax. No. (41-22) 917 9022
Violation of Article 19 paragraph 2 (Freedom of information) of the ICCPR1 by Germany
This complaint is about the lack of freedom of information (FOI, also called right to know or public access to official documents or administrative transparency) in the Federal Republic of Germany and 12 of its 16 Bundesländer. I am a German citizen.
[Germany has signed the ICCPR but rejected to comment this violation of human rights in petitions I wrote. Therefore I asked for access to information, cornering the communication between parliament and ministry regarding these petitions. Both parliament and ministry refused access:
Petition Freedom of Information 21. Dec. 2001 to Bundestag: http://wkeim.bplaced.net/petition_ifg.htm#einsicht,
Petition Freedom of Information 20. Dec. 2001 to Landtag Baden-Württemberg: http://wkeim.bplaced.net/petition_bw.htm#einsicht
Petition Patients Rights 25. Oct. 2001 to Bundestag: http://wkeim.bplaced.net/petition4.htm#einsicht
Constitutional Complaint: Human Rights, Right to petitions and Freedom of Information: (Complaint No. 1 BvR 1057/02)]
I am referring to Article 19, paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR)1 of 19. December 1966:
"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."
Germany signed and ratified this treaty (BGBl. 1973 II S.
The "freedom to seek" is discussed in successive recent annual reports to the UN Commission on Human Rights. The Special Rapporteur has stated clearly that the right to access information held by public authorities is protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), as the following excerpt from his report, in 1999 (UN Doc. E/CN.4/1999/64, para. 12)2, illustrates:
[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.
The report of the UNHCR-Special Rapporteur, Mr. Abid Hussain, "Promotion and protection of the right to freedom of opinion and expression", (UN Doc. E/CN.4/1998/40)3 of 28. January 1998, especially Part III. A. The right to seek and receive information, demands FOI as a precondition of freedom of opinion. This is confirmed and strengthened in (UN Doc. E/CN.4/2000/63)4 part 42. "B. Access to information": FOI "is one of the rights upon which free and democratic societies depend". The Executive summary of this report states:
The Special Rapporteur concludes the report with his recommendations. As the right to freedom of opinion and expression is violated regularly in States with widely different political and institutional frameworks, he urges Governments to scrutinize their domestic legal systems to bring them in line with international standards.
Article 2 paragraph 2 and 3 of the ICCPR binds states and gives citizens rights for remedies:
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
Germany violates its obligation to adopt laws and gives no remedies.
19 - the International Centre Against Censorship5
is often mentioned in this report. The organization ARTICLE
195 gives a detailed discussion on
the subject in report "Freedom of
Information as an Internationally Protected Human Right"6.
Based on a survey on trends of freedom of information worldwide (ISBN
1 902598 44 X) the organization ARTICLE
195 concludes in part
1.67, that this right is widely
recognized as human right. In Europe 4 countries are working with FOI
pending bills, all the other countries have FOI in the constitution
and/or laws. If these 4 countries will approve FOI laws,
Germany which stopped its efforts, will be the only country in
Europe without Freedom of information.
European countries both inside the EU and outside have adopted freedom of information in constitutions 8 and laws 9. Therefore freedom of information is widely implemented 10: http://wkeim.bplaced.net/foi-europe.gif also in the EU Commission 11, Council 12 and Parliament 13 on the basis of the EU Charter of Fundamental Rights 14 (Art. 42).
In environmental matters freedom of information is implemented according to a EU directive (Council Directive 90/313/EEC). This was adapted not 31. December 1992 but nearly two years too late on 15. July 1994. German bureaucracy tried to hinder Germans with help of high costs to use freedom of information. The European commission won (Case C-217/97) at the European High Court to achieve that Germans could benefit from freedom of information in environmental subjects.
To me the need of freedom of information became clear while writing petitions on patients rights 15. Why is it so difficult in Germany to get to know patients rights? Why is patient participation Rec (00)5 16 only studied but not implemented? Why are the The 5th Conference of Health Ministers on patients rights of the Council of Europe 17 not translated to German? I suggested to the German government 18 and the Council of Europe 19 to start to translate Council recommendations and publish them. Why is there no possibility to complain to independent bodies (before going to court) to support these rights if they are not granted? According to the World Health Report 2000 20 Germany has the most expensive health system in the EU, but is on rank 25 21 among industrial states looking at the quality of services. Why did Germany not sign Convention on Human Rights and Biomedicine 22 (Article 10: "Everyone is entitled to know any information collected about his or her health")? The Index Foundation writes: Patient rights are a reflection of human rights. 23
The committee of Petitions of the Landtag von Baden-Württemberg denied on 9.4.02 access to documents necessary to understand the petitions result. See question of 5.4.02 http://home.broadpark.no/~wkeim/petition3_pa.htm. For petition 13/824 vom 20.10.01 both the parliament and ministry of internal affair will be asked to give access to documents. (Will acess also be denied for the petitions 34 of 25.10.01, 20.12.01 and 21.12.01?)
The German government has invited citizens to discuss a proposal for a law on freedom of information for Germany. I participated in this discussion 24. However I was told that the process of discussions between German ministers to bring this proposal to parliament may not be finished during this parliamentary session 24. Therefore I suggested to the parliament i a petition 21.12.01 25 to give this law anyway by own initiative. But the coalition parties failed: http://www.heise.de/newsticker/data/anw-04.06.02-004/. The parliament of the Land Baden-Württemberg has refused freedom of information as proposed in petition on freedom of information of 20.12.01 26. The lack of Freedom of information is not observed as problem at all. In the answer to a petition on patients rights of 25.10.2001 27 the parliament did not comment on human rights violations.
The German constitution protects the right to freedom of expression and information in article 5. Unfortunately the right to information is limited to "open sources" ("allgemein zugänglichen Quellen"). Therefore the Constitutional Court (Verfassungsgericht) refused to process a complaint: http://wkeim.bplaced.net/v-klage_en.htm. The scientific work of Professor J. Wieland: "Freedom of information" 28 shows that the Germany law system is build on the principle of "dominance of official secrecy (Amtsgeheimnis, which) has its roots in absolutism and bureaucracy. Absolutism accepts the governor as a father-figure in the role of a guardian". The highest Court in Rheinland-Pfalz LG Mainz (1 QS 25/98) 29 stated that the court can not give access to documents (as human rights would demand), because it is the parliament, which would have to give this right. This judgment shows that Germany violates Article 46 of the European Convention of Human Rights to obey judgments. This case is about access to documents of an accused, but shows that human rights in Germany need support.
It seems that courts ask for laws, while German parliaments up to now do not even comment on the question of violation of the human right of freedom of information. (See my petitions 34 to German parliaments).
Germany violated freedom of opinion in the case Vogt v. Deutschland ( - 7/1994/454/535 - EuGRZ 1995, 590 - ) at the European Court of Human Rights. Germany does not respect this and tries to neglect this verdict in other similar cases. (13. November 2002: Another complaint at the European Court of Human Rights was filed. This case is about the right to give free legal advice, which is forbidden by the law of legal advice from 1935).
I have done un investigation who is responsible for the lack of
freedom of information in Germany:
The European Commission wrote to me http://wkeim.bplaced.net/330166.htm not to be responsible for freedom of information for member states and points to the Recommendation Rec(2002)2 30 of the Committee of Ministers to member states on access to official documents. Unfortunately this is just a recommendation. Article 10 of the European Convention on Human Rights 31 does not include FOI. Germany has ignored "Recommendation No. R (81) 19" 32 on the access to information held by public authorities from 1981 and did not even translate it to German 19.
The "European Parliament resolution on the situation as regards fundamental rights in the European Union (2000) (2000/2231(INI))" 33 document A5-0223/2001 "notes ... that both the EU institutions and the Member States (should) uphold the rights set out in the various Chapters of the EU Charter". I have written a petition to the European Parliament: http://wkeim.bplaced.net/petition_eu.htm, which will be processed. Unfortunately the European Parliament can not give laws alone, but is dependent on the Council of the EU to give laws.
Since the European Council only gives recommendations, the EU Commission and EU Council do not support freedom of information in member states, 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 1.
This complaint is published on the Internet:
Support Freedom of Information: http://wkeim.bplaced.net/foil.htm#e-mail
Support Patients' Rights: http://wkeim.bplaced.net/patients.htm#e-mail
Copy: UNHCR-Special Rapporteur, EU Convention, President of the EU Commission, EU Council
03. July 2002: Petition OHCHR-UNOG G/SO 215/51 GERM ES returned: http://wkeim.bplaced.net/files/020603un.pdf
25. April 2003: The Petition Team rejects to consider the complaint.
08. May 2003: "Not sufficiently showed that you are personally affected of a violation of the ICCPR". Not all domestic remedies are used. It is misuse to point out that laws are missing: http://wkeim.bplaced.net/files/030508un.pdf.
18. November 2003: Germany reports false to UN, claiming that FOI is realized in Germany.
List of appendices:
International Covenant on Civil and Political Rights (ICCPR): http://www1.umn.edu/humanrts/instree/b3ccpr.htm or https://en.wikipedia.org/wiki/ICCPR
UNHCR-Special Rapporteur: (UN Doc. E/CN.4/1999/64): http://www.hri.ca/fortherecord1999/documentation/commission/e-cn4-1999-64.htm
UNHCR-Special Rapporteur: UN Doc. E/CN.4/1998/40 of 28. January 1998: http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/7599319f02ece82dc12566080045b296?Opendocument
UN Doc. E/CN.4/2000/63: http://www.hri.ca/fortherecord2000/documentation/commission/e-cn4-2000-63.htm
Article 19 - the International Centre Against Censorship: http://www.article19.org/
Freedom of Information as an Internationally Protected Human Right: http://wkeim.bplaced.net/files/Mendel-627.htm
GLOBAL TRENDS ON THE RIGHT TO INFORMATION: A SURVEY OF SOUTH ASIA ISBN 1 902598 44 X: http://www.article19.org/pdfs/publications/south-asia-foi-survey.pdf
Freedom of information in Constitutions: http://wkeim.bplaced.net/foil.htm#constitutions
Freedom of information in laws: http://wkeim.bplaced.net/foil.htm#eu
Freedom of information: http://wkeim.bplaced.net/foil.htm
Access to EU Commission documents: http://europa.eu.int/comm/secretariat_general/sgc/acc_doc/index_en.htm
Council of the EU: ACCESS TO DOCUMENTS: PUBLIC REGISTER: http://register.consilium.eu.int/utfregister/frames/introfsEN.htm
Public register of European Parliament documents: http://www.europarl.eu.int/register/default_en.htm
The Charter of Fundamental Rights of the European Union: http://www.europarl.eu.int/charter/default_en.htm
Petitions by Walter Keim: http://wkeim.bplaced.net/petitionen.htm
Recommendation Rec (2000) 5 on the development of structures for citizen and patient participation in the decision-making process affecting health care: http://www.social.coe.int/en/qoflife/recomm/R(00)5.htm
The 5th Conference of Health Ministers: http://www.social.coe.int/en/qoflife/patients.htm
Letter to German Foreign minister Fischer: http://wkeim.bplaced.net/files/011223fischer.htm (no answer)
Letter to Council of Europe: http://wkeim.bplaced.net/020106coe.htm
World Health Report 2000: http://www.who.int/whr/2001/archives/2000/en/index.htm
Convention on Human Rights and Biomedicine: http://conventions.coe.int/Treaty/en/Treaties/Html/164.htm
Index Foundation: Patient rights are a reflection of human rights: http://home.broadpark.no/~wkeim/files/index-bg/Patients_Frame_all.htm.
Petition 21.12.2001: http://wkeim.bplaced.net/petition_ifg.htm
Petition 21.12.01 on freedom of information: http://wkeim.bplaced.net/petition_bw.htm
Petition on patients rights of 25.10.2001: http://wkeim.bplaced.net/petition3.htm
Professor J. Wieland: "Freedom of information": http://www.mpp-rdg.mpg.de/pdf_dat/wieland.pdf
Highest Court in Rheinland-Pfalz LG Mainz (1 QS 25/98): http://wkeim.bplaced.net/files/lg_mainz-en.htm
Recommendation Rec(2002)2: http://cm.coe.int/stat/E/Public/2002/adopted_texts/recommendations/2002r2.htm
European Convention on Human Rights: http://www.pfc.org.uk/legal/echrtext.htm#article10
RECOMMENDATION No. R (81) 19 ON THE ACCESS TO INFORMATION HELD BY PUBLIC AUTHORITIES Recommendation No. R (81) 19
"European Parliament resolution on the situation as regards fundamental rights in the European Union (2000) (2000/2231(INI))" document A5-0223/2001: http://www2.europarl.eu.int/omk/OM-Europarl?PROG=REPORT&L=EN&PUBREF=-//EP//TEXT+REPORT+A5-2001-0223+0+NOT+SGML+V0//EN
Petitions Patients Rights and Freedom of Information: http://wkeim.bplaced.net/petitions.htm
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