O P E N L E T T E R
Dr. med. Enno Winkler
CITIZENS FOR A DEMOCRATIC JUSTICE
The Old Vicarage
GB-Child. s Ercall
Shropshire TF9 2DA
I would like to draw your attention to new forms of human rights violations in such modern industrial states as Germany, my native country. These are human rights violations that are not comprehended by the classic human rights declarations and that are still to be defined. I would also like to ask you to help me make public not only the traditional, primitive human rights violations in the Third World, but also the new ingenious forms of violations in the First World, and to help me develop methods and strategies to combat them.
In Germany, for example, dissidents are no longer physically tortured or killed, but are socially, politically or economically abused and annihilated. Social murder, however, is not regarded as a crime, let alone as a human rights violation.
Children are particularly affected. Generally they cannot even claim the classic human rights. Although the human rights declarations and the Constitution do not speak of age restrictions, minors and people under guardianship are usually excluded by common law from enjoying these rights.
The new forms of human rights violations have their source in social, political, economic, judicial, ideological, and religious power structures that are not democratically legitimated. The German judicial system, for example, is neither democratically constituted nor democratically controlled, with the result that power is not only exercised, but abused, and that unlawful patterns of social, political and economic behavior have been allowed to form within its ranks. There is no way to get legal protection against such a judicial system, and human rights cannot be sustained against it.
Please use your public influence to help me:
1) achieve classic human rights protection for minors and people under guardianship.
2) define and publicize new forms of human rights violations, and
3) enforce the democratic principle in the third power of the state, the judiciary, since human rights can only be guaranteed when the judiciary is democratically constituted and controlled.
Sincerely
Dr. Enno Winkler
From a letter to the President of the Federal Constitutional Court of Germany, Prof. Roman Herzog, of July 7 , 1993
The time has come to strike the balance of my political project to achieve first of all a reform of family law consistent with the constitution, and second a discussion on the judiciary followed by a democratic constitutional reform of the judiciary. On behalf of this cause the reality of family law and the judicial system had to be tested in practice, beyond the embellishing propaganda, the results had to be documented, and the theoretical claim of democratic rule of law confronted with the reality. Then, with the facts "ad oculus", a change in the disastrous family policy and a democratic reform of the obsolete, authoritarian judicial system had to be achieved.
When my daughter and I in 1984 undertook the risky attempt to escape from the notorious judicial quagmire in Berlin, with the little hope to face a democratic constitutional judiciary at least in West Germany, this hope turned out to be unrealistic. The West-German judiciary did not realize the opportunity offered, to quietly correct the injustice committed in Berlin. As I know now, it could not seize this opportunity since group determined authoritarian thinking and actions are part of the system, and criticism and questions are understood in first place as an attack on group interests.
In contrast to the other state institutions, the German judiciary never underwent a democratic constitutional reform. The princely, absolutist judging judiciary of the past turned smoothly into the authoritarian thinking and acting judiciary of today which claims to be authorized "interpret" the law so far as to turn it into its opposite and "develop" it further. The Parliament as the constitutional legislator is deprived of its legislating power, and the parliamentarians are not even aware of it. Judicial decisions are justified by citations of other judicial decisions or even mere legal commentaries, but very rarely by laws, that is, if reasons are given at all. What is more, judicial reasoning is neither subject to standards nor control and does not have to be logical or complete.
Trying to sue a judge for perversion of justice produces disastrous consequences to the citizen already harmed. The tradition, the power pretensions and the esprit de corps of the judiciary are challenged. Never so far has a German judge been sentenced for perversion of justice. In some "underdeveloped" countries such as Paraguay, however, there are special legal courts that are entitled to accuse, sentence and remove judges in case of breach of duty or perversion of justice. The impunity of office holders is considered worldwide as an indicator of the absence of rule of law in a political system.
In Germany, part of the continuing pre-constitutional law is inconsistent with the constitution, to say nothing about international legal liabilities. German law and German legal practice have provisions that are clearly persecutory, for which other countries are often blamed by German authorities as violating Human Rights. Articles 90 a and 90 b of the German Penal Code (slander of the state and the state authorities) and the so called occupation prohibitions are examples. There are proceedings against me under articles 90 a and 90 b, and the German embassy is trying as in Nazi-times to prevent me from exercising my profession. In legal practice, the right of minors and persons with restricted legal capacity, to Personal and Human Rights, contrary to all the beautiful words, is denied by the courts including the Constitutional Court. The courts manipulate proceedings by arbitrary deadlines for legal protection seekers and not existing deadlines for themselves, by adulterating the facts, by disregard of petitioners, petitions and reasons, and so on, exactly as in the nastiest non-constitutional states. Judicial ethics and morale are in a low. The liability and consequences of erroneous decisions and of perversion of justice, and of attorney incompetence and irresponsibility are shuffled off onto the citizen. Judicial independence is extended to the law and confused with total freedom of rulings. There is no mechanism that imposes and enforces responsibility on judges for their actions.
The Federal Constitutional Court is ruled out as a controlling authority as experience shows. It understands itself and is acting as a constituent part and representative of the interests of the judiciary. The alleged guardian of the Constitution practically denies the constitutional right to individual complaint by tricking the citizen who is seeking legal protection, with all sorts of maneuvers including misleading information sheets. It itself is violating constitutional principles such as the right to be heard and the right to legal protection. Even if sympathy is requested because of the workload of the court, in terms of democratic rule of law the techniques used - for their dishonesty - are more than questionable. In fact, every judicial violation of law, even of common law, is also a violation of the constitution according to articles 1 (3) and 20 (3), and the lame and arbitrary formalistic excuses of the Court by which it denies rulings are incompatible with democratic rule of law. Maybe I would have had more success with my constitutional complaints, if I would not have burdened them with fundamental constitutional petitions that intended to move the judiciary to more democratic rule of law. But if that is true it would prove the absence of the will of the judiciary to democratic rule of law with respect to itself.
In my life I have helped initiate a lot of political projects. I was attacked for that, defamed as thinking different and making trouble, and punished with harassments. By now those projects have become part of every day life and their main representatives and beneficiaries are those who once treated me with hostility. Political projects take time because people are slow to change their views. The discussion of family policy takes its first steps - not only in Germany - to liberate itself from the feminist and social, polling, and tax policy clutch. In 5 to 10 years at the latest there will be also a discussion of judicial policy.
I had hoped to achieve more and more rapidly in this struggle which cost me my life, and finally to be able to return to Germany. That was a miscalculation in terms of power politics, proving thus once more the absence of democratic rule of law. I give myself credit, however, that the judiciary has documented, though involuntarily, the obsoleteness of the judicial system and the absence of democratic rule of law in its own understanding of its duty. I also give myself credit in that these documents and my and my daughter's story at some time will make political decision-makers think about it and take action.
Sincerely
Dr. Enno Winkler
GERMAN FATHERS IN EXILE AN OPEN LETTER
AT THE END OF THE SECOND WORLD WAR IN GERMANY THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE STATE WERE DEMOCRATIZED, BUT NOT THE JUDICIARY AS HAD BEEN DEMANDED BY THE ANTI-NAZI OPPOSITION AND THE VICTORIOUS ALLIED POWERS AS A PRIORITY. THOUGH THE EXECUTIVE BECAME RESPONSIBLE TO THE PARLIAMENT AND THE PARLIAMENT TO THE ELECTORATE, THE RESPONSIBILITY OF THE JUDICIARY REMAINED AN ABSTRACT AND MERELY DECLAMATORY OBLIGATION TO ADHERE TO THE LAW COMBINED WITH THE ALMOST LIMITLESS POWER OF INTERPRETING IT.
AS TO FAMILIY AND CIVIL, SOCIAL, TAX, LABOR, PENAL AND ADMINISTRATIVE LAW AS THEY IMPINGE ON THE FAMILY, NUMEROUS PROVISIONS AND LEGAL REALITY VIOLATE THE POSTWAR DEMOCRATIC CONSTITUTION, INTERNATIONAL LAW AND THE BASIC CIVIL AND HUMAN RIGHTS OF CHILDREN.
"The legal position of the German judiciary is inconsistent with the idea of the sovereignty of the people" (cited from Rudolf Schuster: The German Constitutions", p. 188 ff, Goldmann-Verlag, Munich 1981). The judiciary represents an authoritarian, autocratic power within an otherwise democratic political system. For this reason it is incompetent to guarantee the social and political human rights born of the democratic idea, and to assure the peaceful coexistence of people, especially in difficult political times. This has been shown, for instance, by the so called occupation prohibitions which were partially suspended only upon international pressure.
How can a judge pass judgement in the name of the people that did not elect him and cannot dismiss him? While the judiciary is dominating the legislative and executive, it itself is not subject to any democratic control. While the law establishes a legal liability for executive and legislative acts, the judiciary is excluded from any liability, according to a judgement of the Federal Constitutional Court. No judge in Imperial and West-German history has ever been sentenced by a German court for perversion of law. Such immunity from punishment of certain groups of people is internationally regarded as the absence of democratic rule of law.
Family law as it is applied at present in Germany works toward the destruction of the traditional family and violates the rights of children. Instead of working to preserve families with children, childless and same-sex unions are fostered, and efforts are made to obtain legal recognition of them as families. A childless "family" pays less taxes than a divorced father supporting a family with children. For lack of children our elderly still get their pensions only because of social security contributions including those of foreign workers. Because of the impracticability of the "Contract between the Generations" within the families, the social security system suffers unaffordable nursing costs.
The civic action groups
CITIZENS FOR A DEMOCRATIC JUSTICE and GERMAN FATHERS IN EXILE
therefore appeal to society and Parliament to take up the following basic demands (The first version of this platform was distributed to German instututions, parliamentarians and the press in 1986.):
LEGAL POLICY
I) DEMOCRATIZATION OF THE JUDICIARY. Only a democratically constituted and democratically acting judiciary can be just. Justice however, the grant of human rights, is the presupposition of peace between people and nations, II) RULE OF LEGAL LAW OVER JUDGES LAW.
III) NO PRESCRIPTION OF JUDICIAL CRIMES.
IV) NO MORE IMPUNITY IN THE CASE OF PERVERSION OF LAW. NO MORE IMPUNITY IN CASE OF DENIAL OF RIGHT. As long as judicial crimes are not punished, Germany is not a state of democratic rule of law.
V) QUALIFY AS CRIME ANY JUDICIAL ADULTERATION OF THE FACTS.
VI) TIME LIMITS FOR JUDICIAL DECISIONS.
VII) REASONING FOR JUDGEMENT MUST BE GIVEN (also by the Federal Courts and the Constitutional Court).
VIII) SOVEREIGNTY OF THE CITIZEN TO DISPOSE OF HIS PERSONAL DATA AND FILES HIMSELF, ESTABLISHED AS A CONSTITUTIONAL AND INDEPENDENT HUMAN RIGHT ( www.humanrightsaction.org/humanrights ). It must not be permitted anymore that authorities are entitled by common law to delete the evidence of possible human rights violations.
IX) NO TIME LIMITS FOR RESUMPTION OF CASES. Injustice must not be permitted to be transformed into justice.
X) LEGAL LIABILITY ALSO FOR THE JUDICIARY.
XI) ESTABLISHMENT OF A LEGAL COMMISSIONER OR OMBUDSMAN BY THE PARLIAMENT.
FAMILY POLICY
I) RESTRICTION OF THE TERM "FAMILY" TO COMUNITIES OF LIVE - WITH - CHILDREN. FOSTERING OF COMUNITIES OF LIVE - WITH - CHILDREN.
II) SETTLEMENT OF PERSONAL AND HUMAN RIGHTS FOR MINORS ALSO IN THE ORDINARY LAW. The constitution does not recognize age restrictions of personal and human rights. (www.humanrightsaction.org/children )
III) ESTABLISHMENT OF A CHILDREN'S ATTORNEY.
IV) NO DIVORCE OF CHILDREN FROM ONE PARENTAL PARTNER. Current practice violates articles 6 ( 2 ), 6 ( 3 ) and 3 ( 2 ) of the German constitution and the personal rights of the children.(See shared custody)
V) SEPARATION OF THE RIGHT OF CUSTODY OF THE CHILDREN AND THE ISSUE OF SPOUSAL MAINTENANCE.
VI)LEGAL OBLIGATION TO CONCLUDE A MATRIMONIAL CONTRACT AT MARRIAGE. Such regulation would reduce the conflict potential at divorce and spare the justice thousands of proceedings.
VII) EQUALITY OF MEN AND WOMEN IN FAMILY, SOCIAL, TAX, LABOR AND CRIMINAL LAW AND ALSO IN LEGAL REALITY (e.g. § 28a (2) of the Employee Insurance Law).
The gap between the claim that the state adheres to the rule of law and the reality of the justice system can be experienced and shown to others only by those who have been personally harmed and who personally seek legal protection, since the German judicial system grants access to legal proceedings only to citizens personally affected who personally seek legal protection. However, when those citizens fall victim to arbitrary judicial acts and weigh the chances of democratic justice against the power of the judiciary, they usually just give up and resign themselves to not getting justice. And by that also resign their right to political action. They no longer have the strength nor the liberty to enforce their rights, to make public the injustice and to fight for political changes.
Citizens not personally affected, on the other hand, if they suspect at all the proportions of the systematic absence of the rule of law within the judiciary, are beware of make inquires, get to the bottom of the facts and take political action. They fear for their civic existence. Or they do not have sufficient evidence since victims and documents are not available or not available anymore. What is more, the investigation of judicial crimes is usually protracted until the crimes come under the statute of limitation. All that does not merely hold true for Germany.
A political project for the documentation and correction of the reality of a justice system has to proceed from these facts.
After my efforts failed to achieve reforms through normal political activities, I therefore consciously assumed the role of a victim when I got involved in family proceedings. I tried the state of democratic rule of law and accumulated and sometimes provoked evidence.
The following is my personal experience with the German judicial and family law system. All facts are provable by documents and signatures and seals including those of the President of the Constitutional Court. These documents are available for verification.
Up until 1981 I lived without any blame in West Berlin. I was a physician, board certified in three specialties, and assistant medical director in a radiation oncology and nuclear medicine clinic, politically active in the Liberal Democratic Party and the "Marburger Bund" labor union, with political duties in the area of social, family and health policy in Berlin and Bonn. In Bonn I was a member of the Federal Commission of Social, Family and Health Affairs, and in Berlin Chairman of the Commission of Health. My activities in social affairs - as in the disclosure of the corruption in housing policy - made certain political circles seek my expulsion from the party and remove me from Berlin politics.
In April 1981 I filed for divorce and petitioned the custody of my daughter Claudia, born in 1975, fearing that the child would be psychically ruined and insufficiently educated if she stayed with her mother. My wife, a high school teacher, a position which she attained only with my help, had refused to have more children and give Claudia the siblings so longed for. Even Claudia was born only after the threat of divorce for denying children.
The subsequent divorce and custody proceedings were marked from the beginning by permanent judicial infringements of law. In everybody's opinion I did not have any chance right from the beginning to get the custody of the child, simply because I was the father and not the mother. In May 1982 a family court judge named Reinhard Fischer assigned "provisional" custody to the mother on the grounds of a child psychologist's report. The court session was held secretly without me and my daughter being summoned or heard. The child psychologist expert Mrs. Brigitte Frenzel was not court licensed nor sworn in. Later a private letter by Mrs. Frenzel addressed to the judge was found in the court's files asking the judge whether it would be opportune to "rewrite" the last page of the report.
My ex - wife took the child to her new home tearing her away from her familiar environment. The judicial hearing, though required by law, was granted only after a long battle nine months later, when Claudia declared that she preferred to stay with the father. My petition to place the child psychologist under oath was rejected. The result of an investigation of the suitability of the parents to raise the child was discarded on the grounds that I had scored too well. The child psychologist refused my petition to present the records of the child's test to the court for review. My criminal charge against the psychologist for false testimony was rejected on the grounds that testimony implies statement by word of mouth and not statement in writing as the expert had done. My complaint against this decision was rejected by the Court of Appeal (Kammergericht) because my lawyer's signature was deemed illegible. My conciliatory petition for shared custody was ignored by the court. After a psychological counter-report by Prof. W.E. Fthenakis, Munich, Prof. R. Lempp from Tübingen was summoned as a final expert consultant though having been previously challenged by me. Lempp determined in his report that there was a poor mother-child emotional relationship, but thought that to be an asset in the development of the child's independence. He also stated that the child still maintained a greater attachment to the father despite the long separation. Nevertheless, he considered both parents equally qualified to raise the child. In the judicial hearing in November 1983, however, Lempp conceded that actually he had not investigated the suitability of the parents for child-rearing nor read the court files. The tape recording of the testimony previously requested by me was interrupted by an alleged technical defect. In the stenographic record of the hearing any evidence of the interruption was missing later, and decisive parts of the testimony and the interventions of the judge were also missing. The judge ruled that I could not make declarations nor pose any question to Lempp as this would be permitted only to lawyers. The child was awarded definitively to the mother on the grounds only that she was already residing with her.
After the appeal to the Kammergericht Court, irregularities continued. Judicial infringements of law were hushed up by other infringements of law or covered with silence. Finally, my daughter suggested that we flee. At the end of March 1984 we left Berlin. I went underground in Wilhelmshaven where I got the post of an assistant medical director in radiation oncology and nuclear medicine. My furniture mover in Berlin divulged my new residency. As a precaution I established my daughter temporarily in Soprabolzano in German-speaking northern Italy. There she went to school and provisionally her grandmother took care of her. There I visited her on weekends and holidays, always after having shaken off the police agents and private detectives hunting for me.
In May 1984 the Kammergericht Court rejected my appeal of the divorce and child-custody decisions. It reproached me with "having no faith anymore in the rectitude of judicial decisions", which would prove a grave character flaw on my part. Judges Hochgräber , Dr. Weber and Recknagel continued: "His behavior as reported above shows that he is not prepared to concede that Claudia's welfare can be rightly judged by others than himself. It proves moreover that he... cannot put aside his own financial interests to consider the interests of the child".
Indictment for child custody usurpation was passed against me and an arrest warrant issued. According to articles 235, 338 and 12 (2) of the German penal code child custody usurpation represents a misdemeanor prosecuted only on petition. The state attorney showed a copy of the indictment illegally to my employer, by which I lost my employment. This attitude is punishable under article 353 d (3) of the Penal Code.
After having ordered the forced sale of my home, that had been restored by me in years of nightwork, the courts seized my portion of the proceeds allegedly for child annuity until reaching adulthood (Kammergericht Berlin 159 F 7913/84). Nevertheless, they seized further amounts - cashed by the mother - for the "current" support of the child, whom I was the only one supporting. Taking advantage of my situation and my absence, lawyers, notary Arnold Heidemann who administered my assets, and my ex - wife committed judicially shielded frauds and embezzlements, with the final result that I did not have any penny left. Criminal charges against the lawyers, the notary, the judges and state attorneys for betrayal of own client, perversion of justice, coercion, embezzlement, fraud, unlawful communication of court file contents, false accusation etc. were suppressed by the state attorney's office or obstructed until the statute of limitations had run out.
In July 1984 an attempt to get a new custody lawsuit in Wilhelmshaven, failed. My daughter had stayed secretly in Wilhelmshaven since the end of the Italian school year, Attorney Tegge had promised her a hearing with family court judge Tiarks. Claudia said: "This will be the most beautiful day of my life". But it was not. The judge refused to even listen to my daughter. When we nevertheless appeared in his office, he called the police. We escaped through the basement of the courthouse onto a side street. Claudia returned to Soprabolzano.
In the meantime elected Chief of Nuclear Medicine and Radiation Oncology in Rosenheim/Munich, the Municipal Council placed me before the alternative of handing over my daughter or lose my new job. I decided for my daughter and in September 1984 fled to her in South Tyrol.
Because of the public search for us in the press, on radio and on television we could hold out in Italy only until July 1985. Threats against life and limb were made against my brother's family in England. A person identifying himself as a police officer tried to force the director of the "Savings Bank Stormarn" to cancel a loan granted to us. A task force of the police assaulted the forwarding agency Cargo Nord in Hamburg. My mother's home in Hamburg was burgled. An undercover agent of the German FBI (BKA), named Lex, disseminated rumors involving me in drug trafficking. A London business man acquainted with me was detained by a task force in Hannover airport. An attempt was made to bribe the staff of my lawyer in Berlin. The mail destined for me was withheld without any court order.
Silvio Magnano, a member of the Italian parliament, advised us to leave Italy. Dating from the Fascist period there were still agreements with Germany allowing the immediate extradition without any legal checking. With great difficulty and the help of journalists we managed to escape to Spain and finally Paraguay. My daughter enrolled in the Colegio Goethe in Asunción. She managed to skip a year. I had to struggle with enormous economic difficulties since my German professional titles were not recognized in Paraguay.
At the end of 1986 I wrote to the German Minister of Justice asking him to clarify our situation and the situation of tens of thousands of other German fathers and their children in domestic exile or exiled abroad. According to the Federal Office for Statistics there were around 7,000 similar cases each year. Appeals for asylum in the USA, Australia, Switzerland, Brazil, Argentina and Chile were unanswered or rejected. I found myself named in the USA wanted list. I set up the civic action groups GERMAN FATHERS IN EXILE and CITIZENS FOR A DEMOCRATIC JUDICIARY.
In July 1987 two Berlin Interpol officers got in touch with me in Asunción. During a meeting arranged by the pastor of the protestant congregation in the churchyard, the officers communicated to me on behalf of senior state attorney Lothar Seeger, that nothing would happen to us if return to Germany. Because of contradictions on the part of the agents and from what I had heard of the experience of others with such promises, I regarded the offer as a trap.
At the beginning of September 1987 my ex - wife turned up in Asunción, with orders of the Berlin justice to hand over the child. The Berlin judge Merve Brehme justified her decision on the grounds that my daughter was kept prisoner and never went to school. In the press, reports were placed that the child had been chained. On October 13 I was arrested when I went to what was supposed to be a judicial hearing, and put in isolation in the high security block of Tacumbú state prison. The obviously bribed judge Modesto Elizeche refused even to look at documents presented by me. They tried to blackmail me into revealing the whereabouts of my daughter. A petition for my extradition was announced. The "Comité de Iglesias", a local representation of the UN Human Rights Commission, provided me with a lawyer. I started a hunger strike. I was told that a commission of the International Red Cross would investigate the conditions of my confinement and my state of health. After 22 days without food intake the court of appeal declared judge Elizeche's actions as unlawful and void. I was released and hospitalized.
In the meantime my daughter had fled to Brazil, so that the nation-wide police, press and TV-search for her proved fruitless. Also a reward offered for her capture did not turn up results. After the departure of my ex - wife to Germany, my daughter in January 1988 finally returned to Asunción. In order not to miss the school year she made up the annual final exams she had missed in the Ministry of Education. I lost my job which had gone to someone else during my detention.
At the end of January 1988 I learned from TV that the German Ambassador had visited the Paraguayan Chief State Prosecutor in order to talk to him about the case of the German pastor Armin Ihle and our case. Pastor Ihle who spoke for the human rights of the political opposition and the Indians in Paraguay, and who after the overthrow of the dictator Stroessner in 1989 was distinguished with the honorary citizenship of Paraguay and the Federal Grand Cross of Merit of Germany, had been indicted by the regime for calumniating the Paraguayan State. The Ambassador tried to have the case dismissed. As to our case, the Ambassador made inquires about the chance of obtaining my extradition, after all, in order to put me on trial in Germany. The Paraguayan Chief State Attorney could not help but point out the similarity of both cases.
Subsequently reports on our case were published in almost all German newspapers and magazines and even in books. But always only in the form of a melodramatic story on the tragedy of a family (BILD, BERLINER ZEITUNG, STERN, QUICK) or as a vehicle for feministic agitation (DIE ZEIT, MÜTTER AN DIE MACHT (Rowohlt publishers)). In vain I had pointed out over and over again the fundamental social and legal policy background and possibilities of reform. That background material and the reform proposals, however, were stubbornly avoided by the authors and letters of mine to the editor not published.
In May 1988 two German undercover-agent - like visitors told me they had "information from the Hessian Department of Justice" that there were pending indictments against me for calumny of the German state and of German constitutional authorities (Articles 90 a and 90 b of the Penal Code). Hesse is the federal state where the BKA is located. The cited articles are legal norms for which other States are always blamed by German politicians and jurists because they violate human rights by cutting off freedom of opinion. The information was confirmed to me by a German Embassy official. What's more, the visitors offered me secret entry into Germany using the Eupen-Malmedy crossing point. They assured they had friends there (who certainly would have been waiting for me with an arrest warrant on hand). Ultimately, I was "adviced" to give up my political activities. Otherwise an indictment appropriate for Interpol simply would be made up and I would be extradited. German authorities would stop at nothing.
The German Vice-Ambassador in Asunción put my patients and the administration and teachers of the German school under pressure, not to consult me and see any other German doctor instead.
My renewed effort from Asunción to get new custody proceedings in Wilhelmshaven, our last permanent residence in Germany, failed. The Wilhelmshaven court declared that it did not have jurisdiction. Finally, the Federal Constitutional Court did not accept my complaint for a ruling. My attempt to get a new hearing in Berlin also failed. The same judges of the Kammergericht Court as in 1984 - according to article 41 No. 6 of the civil code they were supposed to be barred from judging my objection to their action in the previous proceedings - refused a new hearing, arguing that the decision of 1984 became effective at the moment of pronouncement and not at the time notice was served, so that the deadline for the petition of a new hearing had passed. That reasoning, however, is inconsistent with written law and the opinion of experts I consulted. Also in this case the Federal Constitutional Court did not accept my complaint for a ruling.
The same results came about in legal actions for information about the whereabouts of my money, for restitution of part of it, for cessation of the official hindrance of exercising my profession and of the intimidation of patients, for return of my professional documents sent to the Department of Health in Berlin for certification, for access to my files, for securing my police, State Attorney and FBI (BKA) data and files against destruction, for the cancellation of the arrest warrant by the statute of limitations, for the dismissal of my case due to being a minor offense, and so on. Several complaints about the unconstitutionality of the refusal of the Constitutional Court to accept my complaints for a ruling, about not giving any reasons for that refusal, and about the newly created laws that permit all that, were not only not accepted for a ruling, but simply filed away. That the constitutional judges think nothing of acting like this was proved true by a statement pronounced by the former president of the Federal Constitutional Court, Prof. Benda, in the FOCUS news magazine. Benda explained there, absolutely unaffected, that the Constitutional Court could have had avoided the trouble with the so-called "crucifix judgement" simply by not accepting the complaint for a ruling (FOCUS No. 36 of Sept. 4, 1995, p. 58).
My daughter and I were virtually declared outlawed and could be persecuted and harmed with impunity by anyone. Child custody usurpation, legally considered only a minor offense, was tightened to constitute a continuing crime with no limitation, which it had not been before. This violates the simplest constitutional principles. Perversion of justice by judges and judicial officials, however, though defined as a crime in the Penal Code, is considered to constitute only a situational violation of law, soon coming under the statute of limitations, if necessary by delaying trial. Though perversion of justice in reality continues until justice is restored. By means of this technique, criminal acts by authoritarian regimes and authorities have always gone unpunished.
Particularly interesting as far as the rule of democratic law and the right of privacy, and judicial reality are concerned, are the results of my actions for securing my personal data against deletion. The purpose of these actions was to have my data later available to me, in order to allow research on the social and legal policy background of our case, and show false accusations, the violation of my and my daughter's personal and humen rights and an unlawful persecution, enabling me thus to pursue my rehabilitation and a reparation. However, all the actions which were directed against state security offices, state attorney offices and criminal investigation departments, were rejected. The Federal Constitutional Court gave no reasons, the other courts usually claimed I did not prove, what, if any, information had been compiled about me. The Administrative Court in Karlsruhe for example argued ( 2 K 595/94 ) : "Securing stored data is only conceivable if data have been stored, and if they could be destroyed without immediate securing by the court... The court assumes therefore that what the Attorney General says is true, that there are no criminal or political data at all about the complainant in his office..." . In contrast to this, the German BKA assured me (2 V-31-5391) that a search order issued in Oldenburg was based on information given by the Attorney General. As to the BKA, the German FBI, it communicated to the Administrative Court in Wiesbaden ( 10/2 E 186/94 and G 187/94 ) : "Furthermore, we point out, that the BKA at no time transmitted personal data of the plaintiff to police departments in the USA or Paraguay": This strikes me as being semantic since the US-Department of Justice National Central Bureau Interpol, informed me that there are records, 28 C.F.R. 16.1 et seg. and an ongoing investigation of me because of data supplied from Germany. Interpol Paraguay certified having received data about me from the Interpol office of the BKA. These data must be so dreadful that the US-Department of Justice repeatedly denied my applications under the Freedom of Information/ Privacy Act for access to my records. Because of the files in Washington the US-Embassy in Asunción until 1997 denied me the renewal of my permanent visa cancelled in 1989.
The Office for Constitutional Protection in Berlin notified me as follows (1 A 11-200-P-29053/95) : "We cannot ascertain whether a file was kept about you since when a file is deleted no notes are allowed to be kept concerning the deletion. If there had been information on you in NADIS, all record of the file ever having existed is expunged when the file is expunged": That means that false incriminations can be formulated and unlawfully stored, but destroyed lawfully upon risk of discovery. And in fact destroyed in a way that even does not permit evidence of the destruction. With naive(?) ignorance the Hessian Administrative Court of Appeal reproached me (6 TG2736/94): "If the plaintiff apparently supposes that the BKA is deliberately holding back those data, this could only be the case in a totalitarian state".
In the case of the BKA, the Hessian Administrative Court in Wiesbaden and the Administrative Court of Appeal in Kassel rejected my petition to grant me legal aid and assign me a lawyer for my suit for access to my personal files and for securing them against deletion. That suit I had filed in February 1994. The courts argued I had not proven what kind of data the BKA had stored and that they were erroneous. The judges also pleaded that I failed to proof that the destruction of the data, previsted for October 1997, would affect serious interests of mine.
I challenged Administrative Court judges Kraemer, Klingspor and Brendel for bias, but they themselves rejected my petition. This constitutes perversion of law according to article 54(1) of the Administrative Code in conjunction with article 45(1) 2 of the Civil Code. My appeal to the Administrative Court of Appeal, however, was dismissed as inadmissible.
I withdrew my application for access to my files and - hoping for a more constitutional judiciary sometime in the future - only maintained the petition for securing them against destruction. Nevertheless, on July 10, 1998, judges Kraemer, Klingspor and Brendel, referring to the argumentation of the Court of Appeal in the legal aid suit, decided to deny securing my files against destruction. My appeal against this decision was refused by the same judges Kraemer, Klingspor and Brendel on the grounds that I missed the deadlines for my appeal alledgedly running from the moment of mailing the decision in Germany. According to the judges I had only myself to blame that the mail delivery to Paraguay takes such a long time (1 E 186/94(2) of 8.12.98).
This decision clearly infringed the law which says that the time limits run from the moment I RECEIVED the reasons of the decision (article 4(1) VwZG i.c.w. article 56(2) VwGO, article 58 VwGo, article 14(1) VwZG i.c.w. article 56(2) VwGO). It also violates article 3(1) of the constitution.
On February 15, 1999, I filed constitutional complaint to the Federal Constitutional Court and asked for an interim order to prevent meantime destruction of my files. On May 5, 1999, Constitutional Court judges Papier, Grimm and Hömig handled my complaint and decided to reject it without giving reasons (1 BvR 298/99).
My applications for access to my files in Berlin were refused among other things by the argument that I could destroy the files. I pointed out in vain that there was more reason to fear that judicial authorities would destroy them. After many years of legal actions the district court of Berlin-Tiergarten finally assigned me a lawyer to inspect my files. However, before the lawyer had access to the files, the Berlin State Attorney Office notified me that the files and records of my child custody usurpation trial had all been destroyed. Astonishingly, shortly after the same office applied for a worldwide Interpol arrest warrant against me and refused the dismissal of the trial. The Berlin Data Protection Commissioner informed me also that my files and records had been destroyed. And this despite my petitions and actions for securing them against deletion. I lodged a complaint of unconstitutionality against the destruction. The Federal Constitutional Court notified me that the destruction of my files was legally correct since data destruction is for the protection of the affected citizen. A further complaint with the Berlin Data Protection Commissioner had a surprising outcome: By letter 52.1985.6 of February 12, 1996, the Commissioner informed me that according to the State Attorney Office my files after all had not been destroyed. My files had been started already in 1983 and therefore could not be found in 1984. This seems remarkable for two reasons: Firstly, I know from totalitarian or corrupt countries that files disappear and reappear, if at all, only after a thorough purge, and secondly, what does it mean that my files on child custody usurpation were started already in 1983 though I had fled with my daughter only in 1984? Did I walk into a trap prepared a long time before?
My legal action in 1994 to secure my personal data and files at the BKA in Wiesbaden against adulteration and deletion, was rejected by the Administrative Court of Wiesbaden and the Hessian Administrative Court of Appeal in Kassel .In the opinion of the courts I did not have any right to secure my data against deletion. The BKA notified me that it was going to destroy my data. The Federal Constitutional Court did not accept my appeal for a ruling (1 BvR 298/99 of May 5, 1999). The European Court of Human Rights declared my complaint inadmissible (54756/00 of November 10, 2000).
Although the Constitutional Court and the European Court of Human Rights legally could decide that way, there was no need to do that. By this the Constitutional Court and the European Court of Human Rights squandered a historical chance. There is no way to enforce human rights if their violation cannot be proved because the perpetrators were allowed by common law to destroy the evidence (see also: www.humanrightsaction.org/humanrights).
So I was not permitted to check my personal data and files , nor could I prevent their adulteration and deletion.
My request to the President of the Federal Constitutional Court Prof. Roman Herzog, to debate publicly with me whether Germany is governed by democratic rule of law or simply by rule of law, went unanswered. Even Herzog knows that the German judiciary was never democratically reformed. The incessant self-assurance of the Germans, that Germany is truly a democratic constitutional State, thus constitutes more a phenomenon of need than that it is in accordance with the facts.
In 1989 I asked the German authorities in writing to pick up Claudia from school and fly her back to Germany if she would agree. Nothing happened. The German authorities already knew my daughter's opinion from many conversations in private.
Legal actions of my daughter between her 14 th and 18 th birthdays for a German passport, for modification of the custody decision, and for alimony from her mother all failed. Her petition for resumption of the custody case was ignored by the Berlin Court of Appeal (Kammergericht). Her alimony claim was not taken up by the Berlin family judge Mrs. Sijbrandij who alleged that my daughter legally was not able to sue on her own. Thus the judge violated art. 59 FGG and art. 1602 (2) BGB, apart from other legal provisions. When my daughter finally became an adult, the family judge Mrs. Brehme refused back minor's alimony. The proceedings for student's alimony are delayed by her up to now (31.1.1997) (file 162 F 10.194/93). An "amicable settlement" eventually dictated by the judge and not accepted by my daugther, violated the alimony law and discriminated against my daugther. The Federal Constitutional Court, appealed to for help, could not see any violation of the Constitution in the denial of the ability to go to court before the 18 th birthday, and thereafter in the nondecision of an interim order and the nondecision of the main proceeding (1 BvR 2230/93 of Jan. 5, 1994). In the passport case, the German Embassy first refused to certify the passport denial to my daughter, though required for the courts. Then the courts unlawfully denied my daughter the ability to go to court. The Berlin Youth Department (Jugendamt), written to for help, did not answer. The Federal Constitutional Court composed of President Herzog and the judges Dieterich and Kühling did not accept the complaint of my daughter for a ruling, alleging that she had not exhausted all legal remedies first. So my daughter would have had to ask her mother, who legally had the custody, to apply for a passport, and in case her mother would not have done that, my daughter would have had to file for modification of custody first. By this the Constitutional Court ignored well-known facts. The German Embassy had submitted a letter before, that the mother had rejected a passport application for her daughter. What is more, my own and my daughter's legal actions for custody modification had been rejected by the Constitutional Court itself. Thus my daughter lost the opportunity to participate in an US exchange program and spend a year in an American school. In new legal proceedings for a passport the Federal Administrative Court under judges Meyer, Gielen and Kemper denied legal aid and the assignment of a lawyer to my daughter (BVerwG 1 CD 39.92). They argued that the action would not have a chance of success since it was considered inadmissible. Inadmissible, in fact, for not having been presented by a lawyer. The following constitutional complaint was protracted by the Federal Constitutional Court until my daughter came of age. On September 2, 1993, eventually a nonacceptance decision was passed by President Herzog and judges Söller and Kühling, reasoning that my daughter had come of age on August 13, 1993, and now would be able to apply for a passport on her own. Thus there would not exist any need for legal protection anymore. Already before, at the end of 1992, the Paraguayan Foreign Ministry had realized the problem of my daughter and issued her a travel document under the UN-convention for refugees. The United States granted her a generous visa. Thus in early 1993 my daughter was able to visit for three months her godmother and friends in USA and Canada and improve her English.
In the same year she graduated from high school at the Colegio Goethe in Asunción and became of age. In January 1994 I sent her to Hamburg where she made up for her German "Abitur". Thereafter she studied law at Hamburg and Bilbao law schools. On September 2, 2002, she passed final law exams in Hamburg.
In 1984 a national, and in 1985 a European arrest warrant was issued against me. Since 1986 Interpol international maintained a worldwide inquiry about my whereabouts, though already known to German authorities. On January 31, 1995, eleven years after our flight from Berlin and one year after the return of my daughter to Germany, Interpol international, upon German request, issued a worldwide arrest warrant against me (Interpol international Lyon 1960/85, SBA 1994/11/16). On June 29, 1995 the Federal Constitutional Court declared the warrant unconstitutional, but insisted on the trial for child custody usurpation (2 BvR 2537/94). But only 4 months later, on October 30, 1995, the Berlin-Tiergarten district court cancelled the warrant. This was not reported to Interpol as a result of which the worldwide search for me went on. It is interesting to know that the German justice even does not need to observe decisions of its Supreme Court. According to Article 344 of the Penal Code my prosecution after the judgement of the Constitutional Court constituted a crime. Judicial crimes, however, are not punished in Germany and since remote times remain impune. Upon my complaint to Interpol in Lyon , the Supervisory Board of Interpol cancelled my international warrant on its 28 th meeting on December 13, 1995. By letter 6.96/SECOM/110 of June 10, 1996 the Chairman of the Board, P. Thomas, further informed me that the cancellation had been accepted by the German authorities. Nevertheless, I was still on all US police computers at least until 1997.
In this context, I would like to testify before an international investigation committee on the misuse of Interpol for personal, political and economic purposes.
Just for comparison: If I had killed my ex - wife on separation in 1979, in the normal course of things in Germany I would have been a free man by 1982, seventeen years ago.
PROPORTIONALITY IS ONE OF THE MOST ELEMENTARY PRINCIPLES OF DEMOCRATIC RULE OF LAW!
Without proportionality there may exist rule of law, but never democratic rule of law. Without proportionality there may exist legality, but never justice.
We have a democratically not legitimated, authoritarian and conviction minded judiciary in Germany. Justice is administered legally by non-democratically legitimated judges under non-democratically legitimated judges' law. It is no accident that the Federal Court, as late as the 1960s, defined the Nazi "People's Court" (Volksgerichtshof) as an independent and proper German court that passed legal sentences.
I ASK YOU THEREFORE WITH PROFOUND EARNESTNESS TO THINK ABOUT THIS SITUATION AND THE CONTINUING DESTRUCTION OF SO MANY LIFES, AND TO WORK PUBLICLY FOR A DEMOCRATIC DEVELOPMENT OF THE JUDICIARY AND FOR A FAMILY LAW UNBURDENED BY IDEOLOGY. THE UNRESTAINED JUDICIAL "INDEPENDENCE" RESPONSIBLE TO NO ONE AND NOTHING, SO THAT MANY DECISIONS NO LONGER EVEN NEED A STATED RATIONALE, AND THE SOCIAL POLICY THAT DISCRIMINATES AGAINST FATHERS AND CHILDREN AND WREAKS HAVOC ON FAMILIES MUST HAVE AN END.
This can be accomplished by public discussion e.g. questioning what the criteria really are for democratic rule of law, by increased reporting on what the courts do, by articles on the historical development, structure, self-understanding and the group behavior of the German justice system, and by scientific investigations (e.g. as a topic qualifying for a law school lectureship: Constitutional violations by the Constitutional Court).
Finally, besides a behavioral change, legislative initiatives would have to be instituted on family law, and on judicial and constitutional reforms.
Dr. med. Enno Winkler
EPILOG
Since 1998 I am living together with my new life companion, the paraguayan architect student Judith Vázquez. We have three children: Ann Anahi (*6.4.2000), Enno Antonio (*30.1.2001) and Gerrit Elena (*30.1.2002).
On July 1, 1998, the German parliament passed a reform of the minor’s law, establishing shared custody as a rule. Nevertheless the judicature hesitates to take note of the reform. The personal rights of the children again remained unconsidered.
In May 2000 U.S. President Bill Clinton – in the name of thousands of affected American citizens – complained to German Chancellor Helmut Schroeder about the German courts practice on child custody and visits to children.
On July 13, 2000 , as last of all institutions dedicated to human rights , the European Court of Human Rights condemned the restrictions on visits to children set by the German courts. Before, the same court had rejected every claim in the matter for about twenty years.
On January 23, 2001, the SUEDDEUTSCHE ZEITUNG reported that the files of a criminal undercover agent, who had brought an innocent behind bars, were purged in the BKA. A committee of the German parliament dealed with the problem of criminal activities by undercover agents. However, the purge of files by state authorities was not discussed.
On June 10, 2003 Prof. Roland Proksch, Nuremberg, published the first representativ study about divorced parents and children in Germany. The study comes to the conclusion that shared custody serves best to parent's and - above all - to the child's wellbeing. Legislators are urged to enforce the child's right to both parents.
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