Will the German Parliament Bundestag support an "area of freedom, security and justice" with a "guarantee for the principles of democracy and respect for human rights", according to Com 2002/0247 which EU is building up with the help of the Fundamental Rights Agency (COM(2005)280)?
in Deutsch: http://home.broadpark.no/~wkeim/petition_if.htm
Walter Keim, Email: email@example.com
Torshaugv. 2 C
N-7020 Trondheim, den 7. September 2005
Committee of Petitions
German Parliament (Deutschen Bundestages)
Platz der Republik 1
Petition 4-15-07-1030-037433: Access to Public Information as Constitutional Right
I thank you for your letter of 31. August 2005.
I appreciate, that my E-Mail send 20. August 2005 was considered as a petition and supply a signed version as appendix, which is translated to German and dated 18. August 2005.
1. In my E-Mail of 20. August 2005 the human rights character of access to public information is explained. More then 60 states worldwide adopted laws and many states have implemented a constitutional right for access to information: In Sweden - with longest tradition - FOI is found in the Constitution (Chapter 2, Article 1 (2)). The constitutions of many other countries i. e. Albania (Art. 23), Belarus (Art. 34), Belgium (Art. 32), Bulgaria (Art. 41), Croatia (only for journalists: Art. 38), Czech Republic (Charter of Fundamental Rights and Freedoms: Art. 17), Estonia (Art. 44), Finland (Constitution, Section 12), Georgia (Art. 41), Hungary (Art. 61), Lithuania (Art. 25), Macedonia (Art. 16), Moldavia (Art. 34), Netherlands (Art. 110), Poland (Art. 61), Portugal (Art. 268), Rumania (Art. 31), Russian Federation (Art. 29), Slovenia (Art. 39), Slovakia (Art. 26), Spain (Art. 105 b), Argentina (Art. 43), Kazakhstan, Kyrgyzstan, Malawi (Art. 37), Mongolia (Art. 16, 17), Mozambique (Art. 74), Nepal (Art. 16), Panama (Art. 42,43,44), the Philippines (Art. III, Sec. 7), Peru (Art. 200(3)), the Republic of South Africa (sec. 16), Tanzania (Art. 18(2)), Tajikistan, Thailand (Sec. 58), and Turkmenistan (26) all guarantee the right to access information held by the State. Therefore I suggest that access to public information is incorporated into the constitution as already found in Article 21 (4) of the constitution of the state of Brandenburg. The commission on constitutional affairs in 1993 in connection with the unification of Germany already suggested to add access to public information to the constitution with majority. However the necessary to third majority was not reached (see. BT Drucksache 12/6000, Chapter 3.4).
2. Germans in 12 of 16 states (Länder) lack the fundamental right of the EU-Charta/human right in communities, counties and states. In the federation administration and government blocked the work on a access law for 7 years (Aufstand der Amtsschimmel: revolt of the "read tapes"). The federal law adopted by the coalition parties does not meet international standards of maximum disclosure and minimum exceptions, see appendix 3: Recommendation Rec (2002) 2 (in German Empfehlung des Ministerausschusses des Europarates an die Mitgliedstaaten zum Zugang zu amtlichen Dokumenten). The Higher Administrative Court in Schleswig-Holstein (see judgement of 22. June 2005, Az: 4 LB 30/04) ruled that to sell goods which do not meet weight requirements is a secret not to be disclosed: ""Consumer protection is not of constitutional rank. It must step back because ownership (Art. 14 of the Basic Law) is protected by the constitution. Therefore ownership is in this case stronger." The application of access to public documents showing what authorities have measured was turn down although there is a Freedom of Information law in force in the state of Schleswig-Holstein. The Higher Administrative Court is no good advertise for Germany. According to the Federal constitution protection law § 4 (2) there are "Among the liberal democratic basic order in the sense of this law (...): g) those human rights which are part of the Basic Law". Since access to documents is missing in the German Basic Law (Constitution), it is neccessary to add this human right in order to give Germans the same human rights as citizens in other civiliezed countries.
3. The first director of the German Human Rights Institute Percy MacLean was forced to resign, because he wanted to survey (as the Council of Europe in Recommendation No. R (97) 14 and UN in Resolution 48/134 of 20. December 1993 wished) human rights in Germany. Therefore I did my own survey (see appendix 2). Germany's Constitutional Court decreed that European Human Rights' Court judgments were not binding in German domestic courts: 2 BvR 1481/04. Germany violates Article 46 of the European Convention of Human Rights to obey judgments. This violation of the European Convention of Human Rights was noticed internationally and countries like Russia and the Turkey asked way they had to obey judgements. Germany is the only country in Europe, which reserved the right not to comply with CoE Recommendation (85) 13 of appointing an independent Ombudsman. The ombudsman was recommended the general competence, to the human rights matters under his scrutiny and, if not incompatible with national legislation, to initiate investigations and to give opinions when questions of human rights are involved. The Aarhus Convention grants the public rights and imposes on Parties and public authorities obligations regarding access to information and public participation and access to justice. Germany did not ratify (April 2005) and declared reservations. A refusal of the constitutional complaint of 18. August 2005 on access to public information can document to UN and the international public human right violations and is a precondition for a complaint to the Petition Team of the Human Rights Commission of the UN. In Austria and The Czech Republic (Article 10) human rights are secured in the constitution. In Switzerland decisions of the European Court of Human Rights are directly applicable for citizens. Norway and Britain secure the priority of human rights by a special human rights law.
All over Europe last in the state Nordrhein-Westfalen (2001 with the votes of conservative party CDU), Turkey (2003), Switzerland (2004) and Serbia (2004) conservative parties have contributed to adopted access to information laws and nowhere voted against this citizen and human right. I appeal to the conservative parties to put party politics aside and support access to public information. In Schleswig-Holstein, Berlin and in the German federation parliaments adopted laws although administration and governments did not work out law proposals. Give the human right of freedom of information to the German people.
Germany has improved and done a step forward by implementing a federal law and laws in 4 states. However international standards have not jet been reached. The incorporation of access to public documents into the constitution would be a step to solve the problem.
According to Article 20 Basic Law:
"All state authority is derived from the people." and
"the executive and the judiciary are bound by law"
(given by parliament elected by the people) "and
justice". Therefore in Germany a democracy of European type
is possible, if members of parliament want it and go for it. .
This petition is an open letter and published in the Internet under the address: http://home.broadpark.no/~wkeim/petition_if-en.htm. I will publish the answer.
Torshaugv. 2 C
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Copy: Parliament in state Baden-Württemberg and Bavaria
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