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I would like to thank all who gave me information. The pages http://home.broadpark.no/~wkeim/foi.htm and Patients rights: http://home.broadpark.no/~wkeim/patients.htm depended on you.  

The idea of this complaint is very simple: the UN writes that ICCPR implies the human right of freedom of information (including access to public documents). Germany has signed the ICCPR and acknowledges human rights in the Constitution. According to Article 25 of the German Constitution, international law takes precedence over the federal law. Therefore it is unconstitutional that freedom of information is not granted.

However I understand from experts of constitutional law, that chances are very small to succeed. When I was writing this complaint I was thinking to ask the European public for support, to reach the goal of freedom of information all over Europe from the Atlantic to Ural mountains. EU is according to Com 2002/0247 building up an "area of freedom, security and justice" with a "guarantee for the principles of democracy and respect for human rights".

This is only a part of the hole complaint, to give you an idea. Here is the full German version

Draft: Version 0.4
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Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, den 20.4.02

Constitutional Court
(Bundesverfassungsgericht)
Postfach 1771
D-76006 Karlsruhe

Constitutional Complaint: Human Dignity, Human Rights, Right to petitions and Freedom of Information  (Aktenzeichen: 1 BvR 1057/02)

  1. The answer of the committee of Petitions of the Landtag von Baden-Württemberg in Petition 13/598 http://home.broadpark.no/~wkeim/petition3.htm#antwort of 7.3.2002 violates Article 17 GG (Right on Petitions), because no answer and no reason is given. (Will this also happen with the petitions of 25.10.2001, 20.12.2001, and 21.12.2001 ?) (GG= "Grundgesetz"=German Constitution)
  2. 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. This violates Article 5 GG6 (Freedom of information) in connection with Article 1 (2) GG6 (Human Rights), Article 25 GG6 and  ICCPR Article 19 (Freedom of Information). (Will this also happen with the petitions of 25.10.2001, 20.12.2001, and  21.12.2001 ?)
  3. The minister of  Social affairs of the Land von Baden-Württemberg refused 16.10.01 access to documents. For petition 13/824  both the parliament and ministry of internal affair refused access to dokuments. This violates Article 5 GG6 (Freedom of information) in connection with Article 1 (2) GG6 (Human Rights), Article 25 GG6 and  ICCPR Article 19 (Freedom of Information).
  4. The lack of freedom of information in the Land of Baden-Württemberg and the Federal Republic of Germany violates Article 5 GG (Informationsfreiheit) in connection with Article 1 (2) GG (Human Rights), Article 25 GG and ICCPR Article 19 (Freedom of Information) and is therefore unconstitutional.

Short argumentation

The Committee of  petitions has 7.3.2002 and 9.4.02 not answered to the question of human rights violations see Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR)1 (BGBl. 1973 II S. 1534). This violates. Article 1 (2) GG :

"(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 committee of  petitions gave no answer at all to the question of human rights violations. The right to petitions is violated (Article 17 GG). Obviously the right of petitions is worthless if you get no answer at all.

Article 5 (1) GG 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."

Because the committee of petitions (on 9.4.02) and the minister of  social affairs ... do not provide me with the necessary information I can not judge and understand petition 13/598. This weakens my communicative Competence, with I need in order to complain to the UN http://home.broadpark.no/~wkeim/petition_un.htm, WHO and possibly EU.

(...)

The International Covenant on Civil and Political Rights (ICCPR) 1 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.

In Article 1 (2) GG the German people acknowledges human rights.

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

"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."

(...)

Background

This is a deep cultural conflict. Therefore I left Germany. But I had to go back on visits because of strong personal reasons.

Comparing Norway and Germany I see that in Norway patients rights (right to see own records (§5.1), correction (§5.2), complaint(§7)) are available within minutes from the Norwegian Patients Rights Law15 and other laws16 : The  doctor17 and the buraucracy18 have a duty e. g. to inform on possibilities to complain (details are found here18). Therefore nearly everybody knows about these rights. If somebody should not know, the doctor and the bureaucracy has the duty to inform. In Germany these rights remain a secret even after writing to all organisations, having sighed the Patients Rights  Charta 19 . The bureaucracy writes not to be allowed to inform on details because the law on help on juridical questions (Rechtsberatungsgesetz from 1935) gives lawyers a monopoly about such counselling: See letter of the minister for health (BMG) of 20.8.200020. This law is challenged with help of a constitutional complaint (amendment of 5.May.2000) by a judge who was punished, because he gave free legal advice to friends.

EU Charter of Fundamental Rights gives a right of Right of access to documents (Article 42) and the Right to good administration (Article 41), i. e. a fairly answer within a reasonable time. The administration has the obligation to give reasons for its decisions. Europeans can complain for free to the European Ombudsman, if these rights are violated. German administration does not give these rights to its citizens. Suggestions to translate recommendations of the Council of Europe on freedom of information and patients rights have not been answered: http://home.broadpark.no/~wkeim/020106coe.htm and http://home.broadpark.no/~wkeim/files/011223fischer.htm. The parliament, government and administration denies Germans the right to get an answer from the administration. 

(...)

Older decisions seem to indicate that  the right to a fair answer to petitions is limited.  

(...)

I look upon myself as European, but on paper I am German and therefore I can file this complaint.

When Germans tried the first time to establish democracy in 1848 the member of parliament Georg Beseler spokesman of the committee on constitutional questions said: "We want to get rid of the police-state we had over the last centuries. We want a society build on law also in Germany [...because] - that is what our time demands of us." (Bundeszentrale für politische Bildung: Menschenrechte im demokratischen Rechtsstaat (Chapter: Grundrechte in deutschen Verfassungen) von Axel Herrmann http://www.poprawka.de/lkpo/ha/menschenrechte.pdf)

100 years later, after the collapse (as a result of the effort of nearly half of the world and ca. 50 million dead people)  of the dictatorial police state of the Nazis in the Third Reich the "Parliamentary Council" worked out a constitution for the future west German state. The great achievement of the mothers and fathers of the constitution was to give basic rights in the constitution and connect them with inviolable and inalienable human rights as the basis of every human community, of peace, and of justice in the world" Article 1 (2) GG.

But the wish of 1948 for a "new order" "as "an equal part in a unified Europe" ((Preamble GG of year 1949: http://www.documentarchiv.de/brd/1949/grundgesetz.html) is not yet achieved, more than 50 years afterwards. Even 150 years after the first attempt to establish democracy, the human right of freedom of information is lacking in 12 of 16 länder and the federal republic. This is in contradiction to Europe .... 

 

Reasons

This complaint uses the term Freedom of information how it is used in the laws of the 4 lander Brandenburg (Akteneinsichts- und Informationszugangsgesetz (AIG), 10. März 1998, GVBl. Brandenburg I, S.46) Berlin (Gesetz zur Förderung der Informationsfreiheit im Land Berlin, 15. Oktober 1999, GVBl. 1999, Nr. 45, S.561) Schleswig-Holstein (Gesetz über die Freiheit des Zugangs zu Informationen für das Land Schleswig-Holstein, 9. February 2000, GVOBl. Schl.-H. 4/2000, S. 166) and Nordrhein-Westfalen (Informationsfreiheitsgesetz für Nordrhein-Westfalen vom 27.11.2001).  Scandinavian countries, the Netherlands (Wet openbaarheid van bestuur) and Switzerland (Bundesgesetz über die Öffentlichkeit der Verwaltung) use the term "Öffentlichkeit der Verwaltung" (open government). English speaking countries use the term "freedom of information", administrative transparency, the "right to know" und "access to public documents".

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.

(...)

The fathers and mothers of the constitution were "animated by the purpose to serve world peace as an equal part in a unified Europe," (Preamble GG). In Article 1 (2) GG  they "acknowledge inviolable and inalienable human rights". Therefore the European and international development is described. 

European and international Development

(this part is more or less the same as the petition to the European Parliament: http://home.broadpark.no/~wkeim/petition_eu.htm:)

I agree with the European Ombudsman that "public access is an essential aspect of transparency which, as I have explained earlier, is itself an essential part of democracy": http://www.ombudsman.europa.eu/speeches/en/2001-06-19.htm#Footnote12

Freedom of Information in EuropaEuropean countries both inside the EU and outside have adopted freedom of information in constitutions: http://home.broadpark.no/~wkeim/foil.htm#constitutions and laws: http://home.broadpark.no/~wkeim/foil.htm#eu. Therefore freedom of information is widely implemented: http://home.broadpark.no/~wkeim/foi-europe.gif and http://home.broadpark.no/~wkeim/foil.htm also in the EU Commission, Council and Parliament on the basis of the EU Charter of Fundamental Rights (Art. 42).

Freedom of information is an internationally human right5 promoted by the United Nations. The report of the UNHCR-Special Rapporteur, Mr. Abid Hussain, "Promotion and protection of the right to freedom of opinion and expression", 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 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".  

In Report (UN Doc. E/CN.4/1999/64, para. 12) it becomes clear that freedom of  Information according to Article 19 ICCPR includes access to public documents:

[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. 

Freedom of information is based on article 19 of the Universal Declaration of Human Rights: http://www.udhr.org/UDHR/udhr.HTM#19 and Article 19, paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR) as discussed here: http://home.broadpark.no/~wkeim/files/Mendel-627.htm5 . Based on a survey on trends of freedom of information worldwide (ISBN 1 902598 44 X) the organization ARTICLE 19 concludes, that this right is widely recognized as human right: http://www.juridicas.unam.mx/publica/rev/comlawj/cont/1/cts/cts3.htm 2

Freedom of information, including a right of access to information held by public bodies is now widely recognised as a fundamental human right, most commonly as an aspect of the right to freedom of expression. This is clear from the numerous authoritative statements to this effect, as well as the policy and practice of national governments, intergovernmental organisations (IGOs) and international financial institutions. Indeed, the rapid proliferation of freedom of information laws among IGOs, and in countries in all regions of the world, is a dramatic global trend and one of the most important democratic developments of recent times.

In Europe 5 countries are working with FOI pending bills, all the other countries have FOI in the constitution and/or laws. If 4 of these countries will approve FOI laws, Germany will be the only country in Europe without Freedom of information. Why should EU members be the last countries in Europe giving freedom of information to people living there?

Personally the need of freedom of information became clear to me while writing petitions on patients rights: http://home.broadpark.no/~wkeim/petitionen.htm. Why is it so difficult in Germany to get to know patients rights? Why is patient participation lacking? Why are the recommendations on patients rights of the Council of Europe not translated to German? I suggested to the German government to start to translate Council recommendations and publish them: http://home.broadpark.no/~wkeim/files/011223fischer.htm. 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 Germany has the most expensive health system in the EU, but is on rank 25 among industrial states looking at the quality of services. Patient rights are a reflection of human rights: http://www.index-bg.org/Frame/rights/Frame_all.htm.

I have asked the Commission to send me "Communication (93) 191" which contains plans to give European citizens access to official information in member states and EU institutions and tell me on the progress: http://home.broadpark.no/~wkeim/011226eu.txt. (9.2.02: I got the document which contained the plans, but today the Commission seems to have no longer plans for member states). It also seems that the "GREEN PAPER ON PUBLIC SECTOR INFORMATION IN THE INFORMATION SOCIETY COM(98)585final", adopted on 20 January 1999: http://europa.eu.int/ISPO/docs/policy/docs/COM(98)585/index.html and "eEurope 2002: Creating a EU Framework for the Exploitation of Public Sector Information COM(2001)607final": http://www.cordis.lu/econtent/psi/ just mentions differences between states and has lower ambitions. It is called a "key resource for Europe", but what is the progress? In member states there are possibilities to access environmental information and EU documents received by member states. Unfortunately there are no minimum standards for access of documents of member states.

FOI laws in Europe The German government has invited citizens to discuss a proposal for a law on freedom of information for Germany. I participated in this discussion: http://home.broadpark.no/~wkeim/if.htm. 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: http://home.broadpark.no/~wkeim/petition_ifg.htm. Therefore I suggested to the parliament to give this law anyway by own initiative.

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://home.broadpark.no/~wkeim/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 case is about access to documents of an accused, but shows that human rights 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: http://home.broadpark.no/~wkeim/I_accuse.htm.

As a German citizen I complain that Germany has no freedom of information, a Fundamental Right of the EU Charter (Art. 42), an essential aspect of democracy (according to the Ombudsman) and widely accepted human rights (according to ARTICLE 19) and a precondition of Freedom of opinion (according to UNHCR-Special Rapporteur). Therefore I am discriminated, without the human right of freedom of information, a "second class" citizen compared to other EU citizens and people living in candidate states applying for EU membership. If EU citizens move to Germany they will lack Freedom of information for the state where they are living. Germany would have to adopt freedom of information first if it would want to get goodwill for a membership application now.

I refer to the "European Parliament resolution on the situation as regards fundamental rights in the European Union (2000) (2000/2231(INI))" document A5-0223/2001. Point 3 "Notes that it is the particular responsibility of the European Parliament (by virtue of the role conferred on it under the new Article 7(1) of the Treaty of Nice) and of its appropriate committee to ensure (in cooperation with the national parliaments and the parliaments of the candidate countries) that both the EU institutions and the Member States uphold the rights set out in the various Chapters of the Charter" and  
point 8: "Recommends that the report on respect for fundamental rights in the EU be incorporated into the warning mechanism provided for in Articles 6 and 7 of the Treaty on European Union in accordance with the following principles" 

The Commission and Council failed to give all Europeans at least a minimum of freedom of information in member states. The European Parliament can not rule and give laws, therefore resolution A5-0223/2001 does not give rights.

To sum up one must say that the German Parliament abuses it's sovereignty to deny Germans the human right of freedom of information. Therefore Germans are second class citizens in the EU. 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 GG), 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://home.broadpark.no/~wkeim/v-klage_en.htm.

Sincerely,

Walter Keim
Torshaugv. 2 C
N-7020 Trondheim
E-Mail: walter.keim@gmail.com
Support Freedom of Information: http://home.broadpark.no/~wkeim/foil.htm#e-mail
Support Patients' Rights: http://home.broadpark.no/~wkeim/patients.htm#e-mail

Copy: UNHCR-Special Rapporteur, EU Convention, President of the EU Commission, EU Council

Result:
21. June 2002:
Not accepted, without any explanation: The Constitutional Court is useless.
10. March 2003:
No right to a fair answer to a petition.

List of appendices:

  1. International Covenant on Civil and Political Rights (ICCPR), (BGBl. 1973 II S. 1534) http://www.vilp.de/localizationfull?id=63&lang=de 
  2. ARTICLE 19: GLOBAL TRENDS ON THE RIGHT TO INFORMATION: A SURVEY OF SOUTH ASIA, July 2001, ISBN 1 902598 44 X: http://www.article19.org/pdfs/publications/south-asia-foi-survey.pdf or http://faculty.maxwell.syr.edu/asroberts/foi/library/art_19_2001.pdf
  3. UNHCR-Special Rapporteur, Mr. Abid Hussain: "Promotion and protection of the right to freedom of opinion and expression", E/CN.4/1998/40: http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/7599319f02ece82dc12566080045b296?Opendocument
  4. UNHCR-Special Rapporteur, Mr. Abid Hussain: "CIVIL AND POLITICAL RIGHTS INCLUDING THE QUESTION OF:
    FREEDOM OF EXPRESSION", E/CN.4/2000/63: http://www.hri.ca/fortherecord2000/documentation/commission/e-cn4-2000-63.htm
  5. Freedom of Information as an Internationally Protected Human Right by Toby Mendel, Head of Law Programme, ARTICLE 19: http://home.broadpark.no/~wkeim/files/Mendel-627.htm or http://www.aclu.org/library/iclr/2000/iclr2000_9.pdf
  6. Basic Law for the Federal Republic of Germany (Grundgesetz, GG)http://www.iuscomp.org/gla/statutes/GG.htm

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