auf DeutschI would like to thank all who gave me information. The pages http://wkeim.bplaced.net/foi.htm and Patients rights: http://wkeim.bplaced.net/patients.htm depended on you.
The idea 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. 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.
This is only a part of the hole complaint, to give you an idea. Here is the full German version
Draft: Version 0.3
Older versions, Version: 0.0,
0.1,
0.2,
Newest version
"(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://wkeim.bplaced.net/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.
(...)
(...)
I look upon myself as European, but on paper I am German and can therefore 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 von Axel Herrmann http://www.bpb.de/info-franzis/info_210/body_i_210_4.html)
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 achievment 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" Artikel 1 (2) GG herausgestellt zu haben.
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 ....
This complaint uses the term Freedom of information how it is used in the laws of the 4 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. Februar 2000, GVOBl. Schl.-H. 4/2000, S. 166) und Nordrhein-Westfalen (Informationsfreiheitsgesetz für bekommen Nordrhein-Westfalen vom 27.11.2001). Scandinavischen countries, the Netherls (Wet openbaarheid van bestuur) and Switzerland (Bundesgesetz über die Öffentlichkeit der Verwaltung) uses 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 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 Artikel 1 (2) GG they "acknowledge inviolable and inalienable human rights". Therefore I describe the European and international development.
(this part is more or less the same as the petition to the European Parliament: http://wkeim.bplaced.net/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
European
countries both inside the EU and outside have adopted freedom of information in
constitutions: http://wkeim.bplaced.net/foil.htm#constitutions
and laws: http://wkeim.bplaced.net/foil.htm#eu.
Therefore freedom of information is widely implemented: http://wkeim.bplaced.net/foi-europe.gif
and http://wkeim.bplaced.net/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://wkeim.bplaced.net/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://wkeim.bplaced.net/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://wkeim.bplaced.net/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://wkeim.bplaced.net/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.
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://wkeim.bplaced.net/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://wkeim.bplaced.net/petition_ifg.htm.
Therefore I suggested to the parliament to give this law anyway by own
initiative.
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 abuse 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://wkeim.bplaced.net/v-klage_en.htm.
Sincerely,
Walter Keim
Torshaugv. 2 C
N-7020 Trondheim
E-Mail: walter.keim@gmail.com
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
Appendix:
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since 18.April 2002
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Bild unten: Dunkelgrün: Informationsfreiheitsgesetz beschlossen. Hellgrün: Informationsfreiheit nur in Verfassung. Gelb: Gesetz in Vorbereitung. FOIA= Freedom of Information Act (Informationsfreiheitsgesetz)
