Draft: Please do not hesitate to mail me if you have comments.

Walter Keim
Torshaugv. 2 C
N-7020 Trondheim, 13.3.2002 
E-mail: walter@keim.to


To the
Centre for Human Rights 
United Nations Office 
8-14 avenue de la Paix 
CH-1211 Geneva 10, Switzerland


Violation of Article 19 paragraph 2 (Freedom of information) of the ICCPR by Germany

This complaint is about the the lack of freedom of information (FOI, also called right to know or public access to official documents or administrative transparency) in the Federal Republic of Germany and 12 of its 16 Bundesländer. I am a German citizen.

I am referring to Article 19, paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR) of 19. December 1966:

"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."

Germany signed and ratified this treaty (BGBl. 1973 II S. 1534).

The "freedom to seek" is discussed in successive recent annual reports to the UN Commission on Human Rights. The Special Rapporteur has stated clearly that the right to access information held by public authorities is protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), as the following excerpt from his report, in 1999 (UN Doc. E/CN.4/1999/64, para. 12), illustrates:

[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. 

The report of the UNHCR-Special Rapporteur, Mr. Abid Hussain, "Promotion and protection of the right to freedom of opinion and expression", UN Doc. E/CN.4/1998/40 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 UN Doc. E/CN.4/2000/63 part 42. "B. Access to information": FOI "is one of the rights upon which free and democratic societies depend".  A detailed discussion by the organization ARTICLE 19 of "Freedom of Information as an Internationally Protected Human Right" can be found her: http://www.article19.org/docimages/627.htm. 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.article19.org/docimages/1116.htm#1.6. 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.

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

To me the need of freedom of information became clear while writing petitions on patients rights: http://home.sol.no/~wkeim/petitionen.htm. Why is it so difficult in Germany to get to know patients rights? Why is patient participation: http://www.social.coe.int/en/qoflife/recomm/R(00)5.htm 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.sol.no/~wkeim/011223fischer.txt and http://home.sol.no/~wkeim/020106coe.htm. Why is there no possibility to complain to independent bodies 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. Why did Germany not sign Convention on Human Rights and Biomedicine: http://conventions.coe.int/Treaty/en/Treaties/Html/164.htm#A-10 (Article 10: "Everyone is entitled to know any information collected about his or her health")? Patient rights are a reflection of human rights: http://www.index-bg.org/Frame/rights/Frame_all.htm

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 there is no help to get from the Constitutional Court (Verfassungsgericht).  The highest Court in Rheinland-Pfalz LG Mainz  (1 QS 25/98): http://www.wdr.de/tv/recht/urteile/leitsatz/rl01184.html 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. 

The European Commission wrote to me not to be responsible for freedom of information for member states and points to the Recommendation Rec(2002)2 of the Committee of Ministers to member states on access to official documents:  http://cm.coe.int/stat/E/Public/2002/adopted_texts/recommendations/2002r2.htm. Unfortunately this is just a recommendation. Article 10 of the European Convention on Human Rights does not include FOI.  Germany has ignored "Recommendation No. R (81) 19" on the access to information held by public authorities from 1981 and did not even translate it to German: http://home.sol.no/~wkeim/020106coe.htm. 

The "European Parliament resolution on the situation as regards fundamental rights in the European Union (2000) (2000/2231(INI))" document A5-0223/2001 "notes ... that both the EU institutions and the Member States (should) uphold the rights set out in the various Chapters of the EU Charter". I have written a petition to the European Parliament: http://home.online.no/~wkeim/011227eu_pet.htm, which will be processed. Unfortunately the European Parliament can not give laws alone, but is dependent on the Council of the EU to give laws.

Since the European Council only gives recommendations, the EU Commission and EU Council do not support freedom of information in member states, I ask the Centre for Human Rights of the United Nations to process this complaint according to article 41 of the ICCPR.

This complaint is published on the Internet: http://home.sol.no/~wkeim/020313un.htm.

Regards,


Walter Keim

E-mail: walter@keim.to
Support Freedom of Information: http://home.sol.no/~wkeim/foil.htm#e-mail
Support Patients' Rights: http://home.sol.no/~wkeim/patients.htm#e-mail

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