Access to information is part of freedom of expression, together with an active citizenry, and thus one of the preconditions for ensuring a vibrant and well-informed democracy. NGOs demand of the governments to respect and comply with their obligations following national and international standards.

First Baltic Sea NGO Forum 2001

Baltic Sea NGO Forum

Submission for the Sixteenth Session
of the Working Group on the Universal Periodic Review: Germany

in German on same subject: http://wkeim.bplaced.net/files/if-dimr-pbt.htm

Walter Keim, participant of the Baltic Sea NGO Forum
Torshaugv. 2 C
N-7020 Trondheim, 18. September 2012

OHCHR Civil Society Section (e-mail submission to uprsubmissions@ohchr.org only)
United Nations Office
8-14 avenue de la Paix
CH-1211 Geneva 10
Switzerland

Copy: Baltic Sea NGO Forum, German Foreign Ministry (Auswärtiges Amt: Menschenrechtsbeauftragter), German Institute for Human Rights

UPR Submission Session 16 (25. April 2013): Five states in Germany violate the human right of access to public documents (Article 19 CCPR)

Germany has to adopt access to informations (ATI) laws in all 16 federal states and improve federal ATI law to meet international standards
Withdraw reservation on Article 19 of CCPR
The rank of CCPR in German law must be respected and should be improved.
The recommendations of the Human Rights Commissioner of the Council of Europe, e. g. educate administration and judges in international law i. e. CCPR should be done.
Judges should not be hired, promoted and supervised by the executive power i. e. Resolution 1685 (2009) and Recommendation No. R (94)12 of the Council of Europe should be followed.
CCPR, International Covenant on Economic, Social and Cultural Rights and the European Convention of Human Rights should be included in the Internet collection of the "laws of Germany" (www.Gesetze-im-Internet.de and http://bundesrecht.juris.de).
The German Institute of Human Rights should monitor human rights in Germany according to Paris principals.
Defamation should be decriminalized.

X. Baltic Sea NGO Forum 2012, in WS III Human Rights: Freedom of information recommended in the Final Statement (15, 16) that the Baltic Sea NGO Network oversee the implementation of the Universal Periodic Review (UPR) process in each country of all the Council of Baltic Sea States (CBSS) member states. The UPR process oversees all human right conventions. The deadline for other stakeholders is 2. October 2012 for the 16th UPR Working Group session (22 April to 3 May 2013).

I refer to the 6. state report of Germany according to Article 40 of the International Covenant on Civil and Political Rights (CCPR), reporting to the Human Rights Committee dated 18 April 2010 (1). The Human Rights Committee will consider the CCPR report of Germany and country situation during the session the 106th session (15 October - 2 November 2012) in Geneva. The EU Fundamental Rights Agency suggested to contact the Council of Europe and the German Human Rights Institute (2), answering a complaint on lack of Freedom of information in Germany (3). The GRECO (Group of States against corruption) did not observe that access to informations laws are missing in 5 states in Germany (N). The German Human Rights Institute did not answer the suggestion to complain about the lack of access to information in 5 German lander.

The X. Baltic Sea NGO Forum 2012 asked me to investigate "The role of international lawmakers and their respective influence on national legislation on access to information." The result was that all states of the Council of Baltic Sea States followed the advice of the first Baltic Sea NGO Forum with respect to international standards for access to information with the exception of Germany.

1. Access to public documents is a human right according to Article 19 CCPR

Freedom of Information (including access to public documents) is part of Article 19 the International Covenant on Civil and Political Rights (ICCPR), which Germany has signed.

The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression reported e. g. in E/CN.4/1998/40, 28 January 1998 and E/CN.4/2000/63, 18 January 2000 and A/HRC/14/23, 20 April 2010 that access to public documents is a human right.

UN, OSCE and AOS confirmed in Joint Declaration of 6. December 2004, that access to information is a human right: (4):

"The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions."

The "General Comment No. 34 on Article 19 of the ICCPR" confirms this (5):

"18. Article 19, paragraph 2 embraces a general right of access to information held by public bodies. Such information includes all records held by a public body, regardless of the form in which the information is stored, its source and the date of production."
"19.(...) States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation."

Germany tried to remove the human right of access to public documents and other human rights (13) from the Draft General Comment No. 34 on Article 19 ICCPR (see page 17 reference 14). Decriminalization of defamation and abolition of prison sentences (Article 49) is objected. Access to public documents is not considered a fundamental right according to the German Basic Law. The ICCPR has only the rank of a law. Therefore it is suggested to remove access to public documents from the ICCPR.

2. Five states (Länder) violate the human right of access to public documents

I have informed the states Hesse, Lower Saxony , Saxony, Bavaria and Baden-Württemberg several times about the human right access to public documents. However these 5 states with half of the German population continue to violate this human right and general access laws are not given (6). Access to public documents is only possible for environmental and consumer information.

The NGO "Bündnis für Informationsfreiheit in Bayern" has collected many examples of denial of access (10). Refererence 7 gives additional examples of denial of access to public documents.

The UN Convention against Corruption of 14. December 2005 has been ratified by more than 159 states with 6.5 billion inhabitants. However Germany could not ratify because bribery of members of parliament is not a criminal act. This law would have to be given by parliamentarians itself.

The Group of States against Corruption (GRECO) of the Council of Europe saw deficiencies combating corruption in Germany and made 2009 suggestions on transparency of financing of parties (K). The federal parliament Bundestag refused 2011 (see "Ausschussdrucksache 17(4)283 des Innenausschusses") to comment these suggestions with the majority of the governing coalition parties of CDU/CSU and FDP (M). Germany's answer 29. June 2012 shows that no progress has been made (N).

More then 120 states with 5.9 billion i. e. 84 % of the world population adopted either FOI laws or constitutional provisions (I). Citizens in 5 states in Germany with more then half of the population lack this human right.

84 states with 5.5 billion i. e. 78 % of the world population give better access to information then the federal Freedom of Information Law in Germany (http://www.rti-rating.org/country-data/). International standards e. g. principle of maximum disclosure, reasonable costs are the basis of this investigation.

3. The rank of the ICCPR is not respected in praxis

Paragraph 118 of the State report reads: "CCPR is part of German justice system as federal law. Therefore it is binding for federal states." But this is not respected by German administration and courts.

Therefore German courts may decide against human rights if there is a conflict, e. g. the highest Court in the German land Rhineland-Palatinate LG Mainz (1 QS 25/98) stated that the court can not give access to documents (as the European Convention of Human Rights would demand), because it is the parliament, which would have to give this right. This court expresses here that they are not allowed to do what human rights would say.

Internet pages "laws in Internet" (www.Gesetze-im-Internet.de and http://bundesrecht.juris.de) do not contain the CCPR. Therefore I have 28. April 2007 suggested to add it together with other human rights covenants. The answer 14. July 2007 says that the capacity was not big enough. It is difficult to believe that this a valid reason.

Court cases Walter Keim ./. Germany VG 2 A 85.04 and VG 2 A 55.07 show that the Administrative Court of Berlin (Verwaltungsgericht Berlin), and the Higher Administrative Court (Oberwaltungsgericht) and later the Constitutional Court (Verfassungsgericht) in cases 1 BvR 1981/05, 1 BvR 2565/05 and 1 BvR 238/09 that the human rights character of access to public documents of the CCPR is ignored (7). Many applications referring to the CCPR are denied without even discussion. This proves that the rank of CCPR being a law is ignored (7).

The ICCPR human right access to public documents is rejected by the German government, because it is considered no fundamental right of the German Basic law (constitution) (13).

The reservation on Article 19 CCPR restricts foreigners rights in Germany.

The federal law of Freedom of Information has too many exceptions and violates international principle of maximum disclosure. Comparison with laws from 111 other countries places Germany on 105th rank, 5.5 billion people i. e. 78 % of the worlds population have better access laws (J). [Bring the Access to Information Act in line with international standards, and recognize a freestanding constitutional right to information.]

4. Recommendations

The Report of the Human Rights Commissioner of the Council of Europe 2006 suggests to educate administration and judges in human rights e. g. CCPR (8). Unfortunately both the federal and local parliaments refused to consider this proposition (9).

In federal states judges at administrative courts are hired, promoted and supervised by the executive power and are not independent according to Article 14 CCPR. In the federation the influence of the executive power is somehow less, but still too much (11).

In approx. 50 States access to public documents is found in the constitution. Approx. 90 states have adopted access to information laws. In Europe basically Belarus and 5 German states are missing. After India in 2005, China in 2008, Russia in 2010 and Brazil in 2011 (BRIC countries) adopt laws on access to information only some countries in Africa and the Middle East are missing.

Germany's report should have been given 1. April.2009. The report was registered 18. April 2011 at UN.

In many states – e. g. for the European Convention of Human Rights - international conventions have a higher rank compared to laws e. g. Austria, Switzerland and Norway (12).

The Human Rights Commissioner of the Council of Europe suggested to give the German Human Rights Institute the task to monitor human rights in Germany (F). The independence of the Institute should be strengthened according to Paris principals.

General comment No. 34 Article 19: Freedoms of opinion and expression § 47 states: "States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty." Imprisonment according to Chapter 14, Section 185 Insult, Section 186, 187, 188 Defamation of the German Criminal Code should be removed.

Recommendations summarized:

Germany has to adopt access to informations (ATI) laws in all 16 federal states and improve federal ATI law to meet international standards
Withdraw reservation on Article 19 of CCPR
The rank of CCPR in German law must be respected and should be improved.
The recommendations of the Human Rights Commissioner of the Council of Europe, e. g. educate administration and judges in international law i. e. CCPR should be done.
Judges should not be hired, promoted and supervised by the executive power i. e. Resolution 1685 (2009) and Recommendation No. R (94)12 of the Council of Europe should be followed.
CCPR, International Covenant on Economic, Social and Cultural Rights and the European Convention of Human Rights should be included in the Internet collection of the "laws of Germany" (www.Gesetze-im-Internet.de and http://bundesrecht.juris.de).
The German Institute of Human Rights should monitor human rights in Germany according to Paris principals.
Defamation should be decriminalized.

Yours sincerely,

Walter Keim

Copy: Human Right Commissioner of the CoE, Fundamental Rights Agency, Ausschuss für Menschenrechte und Humanitäre Hilfe, German Institute for Human Rights, OSCE

References:

6. state report submitted by Germany under article 40 of the Covenant CCPR: http://www.ccprcentre.org/doc/HRC/Germany/CCPR_C_DEU_6_en.doc
26.03.2007: German Human Rights Institute is responsible for human rights in Germany: http://wkeim.bplaced.net/files/eu-hra-070329.pdf
01.03.2006: Access to Information and other Violations of Human Rights in Germany : http://wkeim.bplaced.net/files/eu-hra-complaint.htm
2004 International Mechanisms for Promoting Freedom of Expression: JOINT DECLARATION http://merlin.obs.coe.int/iris/2005/2/article1
General Comment No. 34 on article 19 by the Human Rights Committee: http://www2.ohchr.org/english/bodies/hrc/comments.htm
5 federal states (lander) ignore the human right of access to public documents: http://wkeim.bplaced.net/files/ifg-5-laender-en.htm
Administration and jurisprudence about freedom of information: http://wkeim.bplaced.net/files/ifg-material.htm
Petition realisation of the suggestions of the Human Right Commissioner of the CoE: http://wkeim.bplaced.net/petition_gg.htm
Rejection of the suggestions of the Human Right Commissioner of the CoE by parliament Bundestag and 8 länderparliaments: http://wkeim.bplaced.net/coe_resultat.htm#antworten
Bündnis für Informationsfreiheit in Bayern: (In)transparenz in Bayern: http://www.informationsfreiheit.org/3964.html
Separation of powers in Europe: http://wkeim.bplaced.net/files/separation_of_powers.htm
Geiger, Grundgesetz und Völkerrecht, 5. Auflage, S. 160; Schweisfurth, Völkerrecht, S. 202; Nowak, CCPR-Commentary, Second editition, Art. 2, Rn. 55
11. February 2011: Germany asked to remove the human right of access to public documents and other human rights: http://wkeim.bplaced.net/files/German_comments_on_Draft_General_Comment_No.34.pdf
HUMAN RIGHTS COMMITTEE. DISCUSSIONS ON DRAFT GENERAL COMMENT NO. 34- MEETING NOTES (18 MARCH – 24 MARCH 2011): http://freedominfo.org/documents/HRCnotesMarch2011.pdf
X. Baltic Sea NGO Forum, Final Statement, WS III: Human rights: http://www.bsngoforum.org/files/Final_statement.pdf

We urge the CBSS to create an Ombudsman for Human Rights.

In each country of the Baltic Sea Region, there shall be installed independent national Human Rights Institutes according to the Paris principles.

The workshop recommends that the Baltic Sea NGO Network oversee the implementation of the Universal Periodic Review (UPR) process in each country of all the CBSS member states.

X. Baltic Sea NGO Forum: The role of international lawmakers and their respective influence on national legislation on access to information: http://wkeim.bplaced.net/files/ATI-BSNF.htm
There are 269 hits (Accessed January 2013) on "Access to Information" in the UPR-Info.org database e. g. freedom of information laws are mentioned for Canada, Azerbaijan, Bahrain, Botswana, Burkina Faso, Cameroon, Cape Verde, Cuba, Colombia, Equatorial Guinea, France, Germany, Kenya, Tuvalu, Uzbekistan, and the REPUBLIC OF DJIBOUTI (submitted by ARTICLE 19). UNESCO has recommended Freedom of Information laws to all states reviewed during the 16. UPR session. Austria recommended to Bahrain (A/HRC/WG.6/13/L.4): "Enact a progressive, substantive Freedom of Information law". Djibouti, Ghana got same suggestion.

Internet publications:

Telepolis (15.04.2002): Informationsfreiheit ist ein UN Menschenrecht: http://www.heise.de/tp/deutsch/special/frei/12314/1.html
Telepolis (08.06.2002): Bananenrepublik Deutschland: http://www.heise.de/tp/deutsch/special/frei/12689/1.html
Telepolis (03.05.2002): Was kann der einzelne Bürger bewirken? Interview mit Walter Keim: http://www.heise.de/tp/r4/artikel/12/12456/1.html
Tagesspiegel (l8.12.2006): Europäischer Menschenrechtshof: Präsident ermahnt Deutschland.
Tabellarische Übersichten: Menschenrecht Informationszugangsfreiheit im Bundesgesetzblatt (BGBl.): http://wkeim.bplaced.net/IFG.htm#Europarat
REPORT BY THE COMMISSIONER FOR HUMAN RIGHTS MR THOMAS HAMMARBERG ON HIS VISIT TO GERMANY: http://wkeim.bplaced.net/files/Bericht-des-Menschenrechtskommissars.html: Strengthen the mandate of the German Institute for Human Rights with regard to structural and factual monitoring and in respect to its consultative role in the process of drafting legislation with human rights relevance.
Keim, Walter (21.12.2003): Petition Violations of Human Rights in Germany: Invitation of the Human Rights Commissioner of the CoE to Germany: http://wkeim.bplaced.net/petition_me-en.htm
Human Right Violations in Germany: Freedom of Opinion, Information, Association, Family Life and Right to Fair Trial:
http://wkeim.bplaced.net/files/de_human_rights.htm
Legal framework for the right of access to information: http://right2info.org/laws
Right to Information Rating: http://www.rti-rating.org/country-data/
GRECO (4. December 2009): GRECO Evaluation Report on Germany on Incriminations (ETS 173 and 191, GPC 2): http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoEval3(2009)3_Germany_One_EN.pdf
Freedom of Information missing in South Germany: http://wkeim.bplaced.net/foi-laws-eu-de.gif
Lobbypedia - GRECO: http://www.lobbypedia.de/index.php/GRECO
Keim, Walter (24. August 2012): GRECO failed in Second Evaluation Round and must therefore do better in Third Round : http://wkeim.bplaced.net/files/foi-greco.htm

Development:

Human Rights Committee. 106th session (15 October - 2 November 2012), Geneva
05. December 2012: Forum Menschenrechte fordert „keinen schöngefärbten Bericht“: Deutschland vor dem UN-Menschenrechtsrat
Universal Periodic Review (UPR). 16th session (22 April to 3 May 2013), Geneva
4. January 2013: This report was published on website of German Institute for Human Rights
30 January 2013: Will the Baltic Sea NGO Forum participate in the meeting between NGOs and diplomats for Germany’s UPR in March 2013 in Geneva?
29 January 2013: A/HRC/WG.6/16/CAN/3: (Stakeholders') Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 Canada:

02. April 2013: To Foianet: Will the UN Universal Periodic Review (UPR) help?
16. April 2013: To Permanent Mission of the United States of America to the UN: Will USA support ATI?
29. April 2013: Many delegations complaint about the Youth Office (Jugendamt)
27.06.2013: European Court for Human Rights YOUTH INITIATIVE FOR HUMAN RIGHTS v. SERBIA (Application no. 48135/06): ICCPR relevant for Human right of Access to Information

Answers:

September 2012: UNESCO mentioned Freedom of Information laws in its contribution to all states reviewed during the 16. UPR session.
20. September 2012: Office of the High Commissioner for Human Rights confirms receipt:
"The Office of the High Commissioner for Human Rights kindly acknowledges receipt of your submission to the 16th Session of the Universal Periodic Review, which will be registered and forwarded to the relevant colleagues. For further information on the UPR process and additional technical guidance please see the following link: http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx"
4. January 2013: This report was published on website of German Institute for Human Rights
23. January 2013: Germany submitted its national report reviewing its human rights situation to the United Nations (National Report in Preparation for the 2nd Hearing of Germany under the Universal Periodic Review): "The Federal Government is seeking to ratify the UN Convention against Corruption (Recommendation 26)"
Participant of Baltic Sea NGO Forum (30 January 2013): "I will try to support the German examination through the Danish Institute of Human Rights. Expect you will have support from the other NGO Forum countries."
German Institute for Human Rights (20 February 2013): As a general policy for its participation in the UPR procedure, the German Institute for Human Rights will continue to work on the issues it has taken up in its own UPR stakeholder report.
OHCHR: Summary of Stakeholder's information does not mention Baltic Sea NGO Forum
Full text versions of Stakeholder's information: http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRDEStakeholdersInfoS16.aspx
UN WEB TV (25 Apr 2013): Germany Review - 16th Session of Universal Periodic Review
UPR recommendations to Germany UN press release (25. April 2013): Ratification of the UN Convention against corruption and the OP to the ICESCR (International Covenant of Economic, Social and Cultural Rights)
6 of 8 suggestions of the Baltic Sea NGO Forum were supported: Human Rights Council Report of the Working Group on the UPR: A/HRC/WG.6/16/L.7 96 states made approx. 200 recommendations [in relation to Baltic Sea NGO Forum suggestion No. in brackets]:
II. Conclusions and/or recommendations
123. Responses to the following recommendations will be provided by Germany in due time, but no later than the 24th session of the Human Rights Council in September 2013:

"123.22: Ratify the United Nations Convention against Corruption (UNCAC) (Austria); (Article 5, 7, 10, 12 and 13 of UNCAC are about ATI in various fields.) [UNCAC mentioned in Baltic Sea NGO Forum Submission]
123.28: Withdraw all reservations to human rights instruments to which Germany is a party, first of all, to the International Covenant on Civil and Political Rights (Russian Federation); [2]
123.42: Align its national legislation with international human rights standards (Iraq); [3, approx. 5]
123.46: Expand the mandate of the German Institute for Human Rights to receiving complaints of human rights violations (India); [7]
123.49: Secure proper follow-up to the accepted recommendation from the first UPR cycle and introduce tools that will improve the effective judicial control over the administrative decisions of the Office of Youth called Jugendamt (Poland); [approx. 5]
123.145. Introduce independent and effective legal and professional supervision of the Youth Office (Jugendamt) and ensure that the Jugendamt decisions be in conformity with binding international norms, including the rulings of the European Court of Human Rights (Turkey); [approx. 3, approx. 4]
123.169. Federal and State Governments, in consultation with civil society, broaden and intensify existing human rights training in schools as well as the routine training of police, security, prison and health personnel, and set up a monitoring and evaluation mechanism to assess progress (United Kingdom of Great Britain and Northern Ireland);" [4]
Conclusion: Suggestions 2,3,4 and 7 of the Baltic Sea NGO Forum were recommended by states. Publishing international conventions [6] could support education in international law (see recommendation 123.169). Freedom of Information law [1] and independent judges [5] is indirectly support by recommendation 123.42 (Align its national legislation with international human rights standards). Therefore only decriminalisation of defamation [8] is missing, ATI [1], independent judges [5] and publish CCPR, ESCR on Internet [6] are indirectly included.

Answer of the German Government 11. September 2013:

124.22: "Accepted. Before ratifying the United Nations Convention against Corruption, an adaptation of the legislation regarding the criminal offence of bribery of members of parliament is needed. A corresponding draft legislative bill should be submitted by members of the German Bundestag."
124.28: (Withdraw all reservations) "Accepted. Legal regulations and their implementation already comply with international standards and norms. "
124.42: "Accepted."
124.46: "Not accepted."
124.49: "Accepted. Already now it is possible to subject decisions made by the Youth Welfare Office to judicial review."
124.145: "Accepted. It is already possible to have decisions taken by the Youth Welfare Office examined by a court to verify their compliance with applicable German law and also with the European Court of Human Rights’ rulings with regard to the provisions of the European Convention on Human Rights."
124.169: "Accepted. Human rights education is embedded in state school curriculums. It is constantly reviewed, as is human rights basic and further training in the Federal Police. Additional monitoring is not necessary."
Conclusion: Germany accepts, but will do nothing, basically because of the pretension that "standards are high enough".