Gaby Weber
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Bundesarchiv for inactivity (Deutsche. Bank, Adenauer Foundation) - initiated in 2011

There are several ways to maintain power and secrecy and to obstruct transparency and public space. One is storing the documents in the dark basements of the intelligence agencies and issuing laws and executive orders prohibiting the access for “security reasons”. But in Germany, I opened with the decision of the Federal Administrative Court in the case of "BND files re Eichmann" a new approach to such secret files. So, there is still another way for hiding information: the "privatization" of public documents. Many public employees, including ministers, take their official documents with them after leaving office, and after their death, the heirs donate these papers to private foundations. With their donation, they often choose to be consulted if somebody wants to see the papers. These private institutions do not respect the Federal Archives Act and the Freedom of Information Act.

For example, the papers of Hans Globke are not in the Federal Archive, where they belong legally. Globke was not only commentator of the Nuremberg racial laws, but also a high ranking officer in Hitler's Reich Ministry of the Interior and later all-powerful secretary of Konrad Adenauer. Globke took many official documents with him, and after his death, his daughter gave this material to the Adenauer Foundation in St. Augustin. The daughter wants to maintain control and decide who can view these documents. I wanted to see them, when I was investigating Globke´s role in the payment of 630 million marks, passing the German Parliament and the Ministry of Finance, for a "development project in the Negev Desert (Israel's Dimona nuclear plant). Only after pressure, I was shown something, and the rest was remained secret.

I was also interested in the records of Hermann Josef Abs, one of the most loyal business leaders of Hitler, negotiating for the Federal Government in 1952 the so-called compensation agreements and, eight years later, the 630-million payment with Israel. These documents are at the Historical Institute of the Deutsche Bank. But my request to see them was denied.

I asked the Federal Archive, to get these official files and to submit them to the public. We regret this "privatization", the Bundesarchiv wrote me, “we have asked the foundations and institutions on several occasions to give us the documents”, but unfortunately without success. The Federal Commissioner for Culture and Media promised me another "solution". But I am still waiting.

I have also filed criminal charges against the Deutsche Bank and the Konrad Adenauer Foundation for hiding stolen property. The prosecutors in Frankfurt and Bonn refused to open the investigations. Download document Therefore my lawyer Raphael Thomas filed suit against the Federal Archives to force them to do their job.

In February 2012 the Administrative Court of Koblenz denied the right to have access to these documents: Download  "the Federal Archives does not have a legally enforceable right to restitution". This legal instrument is not written in the Federal Archives Act; in contrast to government agencies, private foundations and the Deutsche Bank have no obligation to provide their documents to the Federal Archives, the Court said. The fact that these records once had arrived illegally to the Adenauer-Foundation and the Bank, did not disturb the judge. The principle of public records was first introduced by the German Freedom of Information Act in 2005 so that is not a fundamental right, in the opinion of the judge. The Appellation Court confirmed the trial. Even the lawyers of the Federal Archives asked the highest Administrative Court in Leipzig to hear the case, because fundamental issues of democracy are raised. But the Court in Leipzig denied. So, that´s the political climate in the Federal Republic of Germany, controlled by CDU. The judges know what the government wants. They have no problems that public documents are hidden in the Adenauer-Foundation and the Deutsche Bank. In July 2013, my lawyer Raphael Thomas filed a lawsuit in the Constitutional Court (BVerfG) in Karlsruhe. Download

The Federal Constitutional Court has asked the Federal Ministry of Justice, the Rhineland-Palatinate Ministry of Justice and the President of the Federal Civil Supreme Court for an opinion. All have refused to give such "an opinion". It is obvious that for these institutions and law professionals the law is not their first priority, but political considerations and favors towards political friends. In addition, the Constitutional Court asked all political foundations for an opinion. The deadline has expired months ago; I have not yet received any comments. I am not surprised that the Adenauer-, the Ebert-, and the Naumann-Foundation ("Archives of Freedom") keep silent. After all, they stored for decades illegally obtained documents. But this is not the case with the Rosa Luxemburg Foundation (the Left). Could it be that the ladies and gentlemen, who live comfortably from politics, have established themselves in the status quo and are collaborating with the conservative foundations?

On 12 July 2017, the Federal Constitutional Court (BverfG) rejected my complaint. The judges gave a formal explanation: that I should have directed my request to the Chancellery and not to the Federal Archives. Until I have done so, and the specialized courts (“Fachgerichte”) have not expressed their opinion, the highest German constitutional body does not want to take a position. The Federal Archives and the Federal Commissioner for the Media have omitted this information in their communications with me. I filed a complaint against the Federal Republic, represented by the Federal Archives.

The BVerfG refuses to make a clear statement as to whether the practice of file stealing and withholding them from the public is compatible with German Constitution. The judges do not mention that the stealing of files is illegal. They believe that the specialized courts should decide. As to the basic right to freedom of information, the judgment says that politicians have the right to restrict it. They admit, however, that official records are privately administrated and not distributed in accordance with egalitarian principle. This is contrary to the rights guaranteed in the Constitution.

The decision ends with the words: "The significance of the general accessibility of sources is to assign to it the weight in line with the perception of freedom by individuals as well as the communication in a democratic constitutional state, and to bring it into a reasonable balance with opposing interests."
In this case, it is not about data protection or personality rights. This is about Nazi records. I am very sorry that the BVerfG did not have the courage to order their disclosure and to declare the decade-long practice of the political foundations as unlawful. The "conflicting interests" are undemocratic, authoritarian and partially illegal practices which are to be abolished and not "brought into a reasonable balance".