auf Deutsch über gleiches Thema: http://home.broadpark.no/~wkeim/files/familienrecht.htm
Walter Keim, E-mail: email@example.com
Torshaugv. 2 C
N-7020 Trondheim, 25. December 2007
Mr. Jean-Marie CAVADA
Chairman of the Committee on Civil Liberties, Justice and Home Affairs
Kopie: Commissioner of Human Rights of the Council of Europe, Fundamental Rights Agency, all members of the EU Parliament, EU Commission, Botschafter Dr. Edmund Duckwitz (German Embassy in EU), Bundesjustizministerium, Dr. Reinhard Wiesner (German Bundesministerium für Familie, Senioren, Frauen und Jugend), Andreas Hilliger (German Ministerium für Bildung, Jugend und Sport des Landes Brandenburg), MEP Rainer Wieland
Human Right Violations: Why do
German Courts not secure Human Rights against the "Jugendamt"
falsely called Welfare Office? Suggestion to implement
recommendations of Human Rights Commissioner
I refer to the PE390.381v02-00 PR Draft report ANGELILLI "Towards an EU strategy on the rights of the child" of the Committee on Civil Liberties, Justice and Home Affairs see meeting on 17. December 2007 (Appendix 1: http://www.europarl.europa.eu/meetdocs/2004_2009/organes/libe/libe_20071217_1500.htm). Child abduction is mentioned and a report to the EU Parliament is under discussion Appendix 1 and will follow.
Both governments and embassies have approached Germany for many years because of international child conflicts. Now the European parliament will deal with such questions. Especially foreign parents have had dramatic conflicts with German Jugendamt and courts.
In Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHRFF) family rights are protected. But German judiciary lacks independence (Art. 6 ECHRFF) to protect citizens rights and human rights against the "Jugendamt" and other authorities. Independence of the justice system is considered basic for a democracy and regulated with international law (Appendix C).
Foreigners report not having even heard when decisions were made and of many other forms of unfair treatment. 8 German states are the last states in the civilized world to deny freedom of information i. e. the "Right to Know" or access to public information. While Germans have been subject to these denials for ages (Appendix 7), foreigner are used to these civil rights and do not accept human right violations (Appendix 17).
The Bamberg Declaration was adopted in the framework of the
international symposium on
"German youth welfare offices 1 and European Convention on Human Rights" Bamberg, 20/21 October, 2007
Chair: Annelise Oeschger, president of the Conference of International Non-Governmental
Organisations of the Council of Europe
On the basis of their own experiences and the experiences of affected families as well as
contributions by experts the participants of the symposium declare that:
- Within the framework of the child and youth protection in Germany, especially on the part of
the youth welfare offices (Jugendämter), there are violations of Human Rights, in particular of article 3, 5,
6, 8, 13 and 14 of the European Convention of Human Rights.
(Appendix F: http://deutsche-jugendamt.blogspot.com/2007/11/bamberg-declaration.html)
On 2 November 2007 the president of the Conference og INGOs of
the Council of Europe
sended the Bamberg Declaration on German youth welfare offices (Jugendämter) and the ECHR
to Mr Thomas HAMMARBERGCommissioner for Human Rights Council of Europe and
Mr Marcin LIBICKIChairman of the Committee on Petitions European Parliament (Appendix G: http://deutsche-jugendamt.blogspot.com/2007/11/bamberg-declaration-send-to-eu-and-coe.html)
On 22. November 2007 the president of the Conference of 400 international Non-Governmental
Organisations of the Council of Europe presented the Bamberg Declaration to the Committe of Petitions
of the European Parliament: Appendix H: http://video.google.com/videoplay?docid=1449825811432163611)
First I will explain that German courts are not independent as in other states in Europe. Therefore judgements against the Jugendamt and other authorities are avoided. At last I will quote the suggestions of the Human rights Commissioner of the Council of Europe (Appendix E). The Human Rights Commissioner notes with regret that international human rights law appears to be often taught as an optional part alone. He encourages the German universities to integrate human rights in the core curricula of legal studies. Therefore it is suggested that both parliamentarians, judges and public servants are educated and get training in human rights as a first step. However training capacity has first to be build up.
1939 the cooperative leadership of the Jugendamt was changed and the mayor became head of the Jugendamt. From 1947 to 1952 the police was responsible for the Jugendamt.
Obviously German courts could secure citizen and human rights by judging in favour of human rights. Why is it possible that the Jugendamt wins over parents and children's human rights at German courts?
The German judiciary was in the 18th century under the German emperor a part of the government and that remains until today. After 1918 (establishment of democracy) as before 1918. After 1945 (end of WWII) as before 1945. After 1949 (new constitution) as before 1949. Up to the day today.
The only change was supervision: The dictator Hitler did not like having no control over courts and therefore supervision of courts was added. Before the Prussian administrative courts (Preußischen Oberverwaltungsgericht) have been without supervision since 1875, as well as e. g. administrative courts in Saxony. But § 7 sentence 1 of the first regulation (DV="Durchführungsverordnung") of 29. April 1941 of the decree of the fuehrer ("Führer-Erlass") on the establishment of the administrative court of the Reich ( Imperial Law Gazette RGBl I S. 201: Erste DV = RGBl I S. 224) gave the minister of justice of the Reich supervision rights. (Appendix C)
Nearly all over Europe judiciary is independent from the executive power 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" (Appendix C: http://home.broadpark.no/~wkeim/files/separation_of_powers.htm)
Why should a German judge risk his career, deciding against authorities?
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 German Institute of Human Rights (Deutsche Institut für Menschenrechte) was founded on the basis of suggestions of the UN Resolution 48/134 and CoE Recommendation No. R (97) 14. The first director Percy MacLean (now again judge at the administrative court Berlin) had to resign, because he monitored human rights in Germany (how UN and CoE wished). His opponents favoured to monitor international developments. (See his article: Human rights official quits: Percy MacLean clashed with institute's board over his focus on abuses in Germany, Appendix 1). Therefore I did my own investigation of human rights "Freedom of Opinion, Information, Association and Right to Fair Trial" basically based on judgements of the European Court of Human Rights, which I published on my private website. This became my most popular page :-) However no official authority has ever given an answer.
The difference meeting administration between Germany and the rest of EU is, that Germany citizens do not enjoy the support of an independent ombudsman free of charge (except data protection) observing human right violations.
Therefore citizens are forced at the risk of costs to try to realized human rights at courts. However courts in Germany are in fact part of the executive and administrative power, which violated their rights.
Therefore Germans lack a "guarantee for the principles of democracy and respect for human rights" but are alone against an old-fashioned state from 18. century.
Unfortunately there is no understanding at all from German MEP Wieland who is quoted as follows (my translation):
"The German MEP (Rainer Wieland) suggested an expert report comparing the legal situation in Germany with other states. He said, although Germany which was sentenced of the European court of Human Rights, was not bound by the sentences and not obliges to change and help the victims." (Appendix 2). "MEP Wieland said he is a lawyer and knows that German child and youth protection is outstanding compared international." (Appendix 3)
Germany violates to obey the judgements of the European Court of Human Rights according to Article 46 of the European Convention of Human Rights (Convention):
"The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties."
Unfortunately violations of Article 8 of the Convention (Family) are only the top of the iceberg. In addition violations of human rights of freedom of opinion, information, assembly and fair trial are documented. The first director Percy McLean of the German Institute for Human Rights was forced to resign, because he wanted to examine human right violations in Germany. Therefore I have done this myself and published on my homepage (Appendix 4). A Petition with Human rights violations (Appendix 5) was ignored by the Committee of Petitions of the German Bundestag. I have send this information to more then 20 German state authorities, but nobody answered up to now.
In addition many petitions were written e. g. to the state of Baden-Württemberg and the federation of Germany. In protest I gave up my address in Haselbach-Alfdorf in Baden-Württemberg.
Complains to EU about Human Right violations in Germany have often been (as in my case) answered with pointing to the European Court of Human Rights. I have filed the complaint Keim v. Germany. Appl. No. 41126/05 on 11. November 2005. The decision on admission is not yet done and from other cases I assume that it will take at least 5 more years for the case to be decided on.
Article 6 (1) of THE TREATY ON EUROPEAN UNION says:
"The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States."
Therefore it is totally unacceptable that Germany violates Human rights. The advice of EU to complain to the ECHR does not help, because it takes so many years. In child cases national courts may take 5 to 10 years. Only after having used national courts it is possible to complain to the ECHR which may again take 5 to 10 years. Obviously the German Jugendamt (welfare office) cannot be corrected by the ECHR because it takes so long time. Childs have been grown up by that time.
Why does German administration and justice system violate human rights systematically and ignore ECHR decisions?
EU tries to secure democracy and human rights by demanding this from new members. However Germany is a founding member and lacks e. g. the following which new members must have:
If Germany would seek membership today this would not be accepted. However Germany was a founding member and was never asked to comply with modern democracy and giving a guarantee of protecting human rights. Germany could veto if EU would pressure for strengthening human rights acceptance.
"....the recommendation of the Council of Europe (Recommendation No. R (94)12, Art. 2 c) see Appendix A) concerning judges applies for new members for EU:
»The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules«.
That is the case in France, Spain, Italy, Norway, Denmark and Netherlands - not in Germany. Germany - if it was not already member would be a problematic candidate....." (Appendix IV: Die Entfesselung der dritten Gewalt Von Heribert Prantl [veröffentlicht in der Süddeutschen Zeitung Nr. 81 vom 6. April 2006, Seite 28])
In the 18. century German justice ministers hired and promoted judges. This is the case even today also the constitution has written down something else. The principle of official secrecy (Amtsgeheimnis) dates also back to the 18. century and is still valid in 8 of 16 states (Bundesländern). In court cases and elsewhere access to files is always difficult. The state and parliaments seem not to see why this should be granted.
The assembly of the Federation of German Judges (Deutschen Richterbund DRB) asks to give the judiciary an independent position as the separation of powers and the constitution demands. Also the New Union of Judges (Neue Richtervereinigung) aks for the independence of judiciary from executive to realize separation of powers. This demand is more the 50 years old: The 40. gathering of German jurists 1953 has suggested to realize the separation of powers written down in the constitution (Appendix C)
Punishment and public prosecution of libel and defamation no longer done in most European states. The UK has since 1927 reduced punishment for defamation and only written "Libel" under special circumstances remains. Since 1997 only 1 to 5 convictions per year. The German statistics show 50.00 cases for 1927 for libel. I the year 2005 more than 180.000 cases occured with a raising tendency.
If a citizen says his opinion about judges and other authorities, he/she may be met with accusation of defamation to shut up critics. The dissident and civil rights fighter Helmut Palmer is a example having been to prison many time because authorities felt defamed. In family cases I have often seen that critics were silence with police action taking away PC. Courts have tried to silence critics by trying to declare them insane (Appendix 6).
How long will EU continue to tolerate these violations of modern democracy (including freedom of information and independent judiciary) and respect for human rights?
It has been ignored in the public that some have criticised the justice system in Germany, who wished to improve the system: Before a court and on sea you are in the hand of God. "In Germany you can play at dice instead of go to court: You can not know the result in advance Judge at constitutional court (Bundesverfassungsrichter a.D.) Prof. Willi Geiger, Karlsruhe in an essay for the Deutschen Richterzeitung, 9/1982, S. 325. One is totally helpless meeting the justice system (Münchener Abendzeitung 2.4.02, Seite 9). "In German justice system there are many despotic, know-all and incablable judges. It is impossible to do something about it." (Dr. Egon Schneider, former judge at higher court (OLG), in "Zeitschrift für anwaltliche Praxis" 6/1999). The famous laywer Rolf Bossi summarized his Experience in his book Half gods in black ("Halbgötter in Schwarz:. Deutschlands Justiz am Pranger)." The court in Augsburg punished him with a fine of 12 000 Euro because of defamation (Aktenzeichen: 3CS201J S119478/05).
In spite of the constitution Germany is run in many areas as done in the 18. century. For some problems it was forgotten to remove laws and privileges which the dictatorship of the Third Reich added.
In the course of writing 30 petitions I found the following remains of the time between 1933 and 1945 I suggested to remove:
The Doctors Chamber in Nordwürttemberg has hired Gernot Blessing to prosecute doctors who do not do their duties to respect patients rights. A complaint was filed because access to documents was denied, violating Section 406e (5) StPO (Strafprozeßordnung: Code of Criminal Procedure) on Inspection of files and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). My complaint was not5 dealt with for 2 years. The doctors chamber was asked: Is he is the right person to do the job?
At Sant Anna die Stazzema, 560 women, children and men, unable to flee, were murdered in a bestial manner by SS troops6. In Italy 10 SS murderers where sentenced to jail for lifetime for war crimes committed 12. August 1944 in Sant´Anna more than 60 years ago. But Germany does not extradite them to Italy. Public prosecutor Gernot Blessing in Stuttgart/Germany is not prosecuting them up to now. Therefore a sentence in Germany is hindered4. The families of the victims Have been denied access to documents.
I cannot understand at all why my constructive proposal to get rid of old privileges and open up for the European "area of freedom, security and justice" with a "guarantee for the principles of democracy and respect for human rights", was turned down.
I cannot understand why MEP Wieland defends violations of human rights Germany has signed to respect. Why does MEP Wieland defend an old-fashioned state organisation of the 18. century and refuses the idea of an open and transparent democracy respecting human rights found elsewhere in Europe? It is nonsense to talk about Germany being brilliant compared to other countries in Europe. What about the victims of this policy? Obviously he has to learn human rights first.
The report of the Commissioner of Human Rights of the Council of Europe on his visit to Germany October 2006 suggests that German Human Rights Institute should monitor human rights and the development of national action plan on human rights (Appendix E):
I have asked to implement these suggestions to German Federal Ministry of Justice (Appendix 14), German Federal Parliament Bundestag (Appendix 15) and parliament in the state Baden-Württemberg (16), Bavaria, Saxony-Anhalt, Lower Saxony, Saxony, Berlin, Brandenburg, Rhineland-Palatine, Nordrhein-Westfahlen and Hesse. However the experience of writing petitions over the last 10 years (Appendix 13) shows that EU has to tell Germany to implement these improvements. Otherwise it will not happen.
List of appendices:
[Family Rights] [Back to page on Freedom of Information] [Human Right Violations in Germany] [Law on Legal Advice] [Petitions] [Back to Homepage]
Separation of powers in Europe
Freedom of Information: