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 behaviour 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 enforced 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 if 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 take stock of my political project to achieve first of all a reform of family law according to the constitution, and secondly a democratic constitutional discussion about the judiciary, followed by a reform of the judiciary and the Constitution. The aim was to try out in practice the reality of family law and the judicial system, beyond the official embellishing propaganda, to document the results, and to confront the claim of democratic rule of law with the reality. And with the results "ad oculos" achieve a change of the wretchedness caused by family policy, as well as a democratic reform of the obsolete, authoritarian justice system.
When my daughter and I in 1984 undertook the risky attempt to escape from the notorious judicial quagmire in Berlin, with the admittedly little hope to face a democratic constitutional judiciary at least in West Germany, this hope proved to be unrealistic. The West German justice did not understand the opportunity offered, to noiseless correct the injustice committed in Berlin . As I know now, it even could not understand this opportunity, since group determined authoritarian thinking and acting are inherent in the system, and criticism and questioning are understood in first place as an attack on group interests.
The German judiciary has never undergone a reform that complies with democratic rule of law, in contrast to the other powers and institutions of the state. The princely, absolutist judging judiciary of the past went seamlessly into the authoritarian thinking and acting judiciary of today which claims to be authorized to "interpret" the meaning of the law -even up to 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 this. Judicial decisions are justified by citations of other judicial decisions or even mere legal commentaries, but only rarely by laws. That is, if reasons are given at all, since judicial reasons are neither subject to standards nor controls, nor must be logical nor complete.
Trying to sue a judge for perversion of justice produces disastrous consequences for the citizen already harmed. Tradition, power pretensions and esprit de corps of the judiciary are challenged. Never so far a German judge has been convicted for perversion of justice. In so "underdeveloped" countries as Paraguay , however, there are special legal chambers that are entitled to accuse, sentence and remove judges in case of Infringement of official duties or perversion of justice. The impunity of office holders is regarded worldwide as a benchmark for the reality of democratic rule of law in a political system.
In Germany part of the still valid pre-constitutional law does not match with the new constitution, nor with some internationally agreed legal obligations. German law and German legal practice have provisions that are clearly persecutory, but held against other countries for violating Human Rights. I need only remind the professional bans and the § § 90a and 90b of the Criminal Code (defamation of the state and of constitutional bodies). Under these laws there are proceedings against me. As in the Nazi period, the German Embassy tries to impede my professional activity abroad. In legal practice, the right of children and people with limited legal capacity to personal and Human Rights is denied by the courts, including the Constitutional Court , contrary to all the beautiful words. The courts manipulate legally protected rights by arbitrary deadlines for legal protection seekers and not existing deadlines for themselves, by fragmentation of the proceedings, by adulteration of the facts, by disregard of petitioners, petitions and reasons, and so on, exactly as in the nastiest non-democratic states. Professional ethics and morality are at rock bottom. The responsibility and consequences of erroneous judicial decisions and perversions of justice, and of the incompetence and irresponsibility of lawyers, are unloaded on the citizen. Judicial independence is extended to the law and confused with absolute freedom of judgment. There is no mechanism that imposes and enforces responsibilities for the actions of judges.
Because of practical experience, the Federal Constitutional Court is ruled out as a controlling authority. It understands itself and is acting as a part and, at the same time, 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 up to misleading information sheets. It itself infringes constitutional principles such as the right to be heard and the right to legal protection. Even though comprehension is requested for this because of the workload of the court, in terms of democratic rule of law the techniques used - for their dishonesty - are more than questionable. Basically each 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 windy and arbitrary formalistic subterfuges of the Court by which it denies rulings are incompatible with the 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 which sought to lead up the judiciary to more democratic rule of law. But if that would be true, precisely this would prove the unwillingness of the judiciary to accept the democratic rule of law also for itself.
In my life I have helped from the background start a lot of political projects. I was attacked for that, denigrated as lateral thinker or troublemaker, and subjected to harassment. By now those projects have become part of every day life and their top gurus and beneficiaries are those who once treated me with hostility. Political projects take time because people are slow to change their views. The family-political discussion not only in Germany does her first attempts to get rid of the radical-feminist, socio-political, electoral, and tax-political embrace. 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 be able to return to Germany . That was a miscalculation in terms of power politics, thus proving 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 that these documents and the story of me and my daughter at some time will make political decision-makers think about it and take action.
Sincerely
Dr. Enno Winkler
GERMAN FATHERS IN EXILE 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 POWERS AS A PRIORITY. WHEREAS 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 ABIDE BY THE LAW, COMBINED WITH THE ALMOST UNLIMITED POWER OF INTERPRETING IT.
WITH REGARD TO THE EXISTING FAMILY LAW AND THE CIVIL, SOCIAL, TAX, LABOR, PENAL AND ADMINISTRATIVE LAW, INSOFAR AS IT IMPINGES ON THE FAMILY, NUMEROUS PROVISIONS AND LEGAL REALITY INFRINGE 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: Deutsche Verfassungen", p. 188 ff, Goldmann-Verlag, Munich 1981). The judiciary constitutes an authoritarian, autocratic state power within an otherwise democratic state structure. For this reason it is, in principle, incompetent to guarantee the social and political human rights born of the democratic idea, and the peaceful coexistence of people, especially in challenging political times. This has been shown by history, and in recent times inter alia by the so called professional bans, which were suspended partially only upon international pressure.
How can someone pronounce a judgement on behalf of the people who did not elect him and cannot vote him out? While the judiciary is dominating the legislative and the executive, it itself is not subject to any democratic control. While the executive and legislative branches can be held liable for their actions, the jurisprudence 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 convicted by a German court for the perversion of law. The impunity of certain groups of people in a country, however, is considered internationally as a lack of democratic rule of law.
As to family law, the German legal reality is aligned to 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 ensure their legal recognition as families. Already today a childless "family" pays fewer taxes than a divorced father who maintains a family with children. Due to the lack of children our elderly still receive their pensions only because of the social security contributions also of the foreign workers. Because of the impracticability of the inter-generational contract 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 adopt the following basic demands (The first version of this platform was distributed to German institutions, 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 guarantee of human rights, is the precondition of peace between people and nations,
II) PREVALENCE OF STATUTORY LAW OVER JUDGE-MADE LAW.
III) NO STATUTE OF LIMITATIONS FOR JUDICIAL CRIMES.
IV) NO IMPUNITY ANYMORE FOR PERVERSION OF JUSTICE. NO IMPUNITY ANYMORE FOR DENIAL OF JUSTICE. As long as judicial crimes are not punished, Germany is not a state of democratic rule of law.
V) QUALIFY AS A CRIME ANY JUDICIAL ADULTERATION OF THE FACTS .
VI) DECISION DEADLINES FOR COURTS.
VII) OBLIGATION TO GIVE REASONS FOR JUDGEMENT (also by the Supreme Court and the Federal 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/index.html ). 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 RETRIALS. Injustice must not be converted 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 LIFE COMUNITIES WITH CHILDREN. FOSTERING OF LIFE COMUNITIES WITH CHILDREN.
II) EMBEDDING OF PERSONAL AND HUMAN RIGHTS FOR MINORS ALSO IN THE COMMON LAW. The constitution does not impose age restrictions for personal and human rights. ( www.humanrightsaction.org/children/index.html )
III) ESTABLISHMENT OF AN ATTORNEY OF THE CHILD.
IV) NO DIVORCE OF CHILDREN FROM A PARENT. Current practice infringes articles 6 (2), 6 (3) and 3 (2) of the German constitution and the personal rights of the children. (See shared custody)
V) DECOUPLING OF CHILD CUSTODY AND SPOUSE MAINTENANCE.
VI) LEGAL OBLIGATION TO CONCLUDE A MARRIAGE CONTRACT AT MARRIAGE. Such regulation would reduce the conflict potential at divorce and spare the judiciary 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 of democratic rule of law and the reality of democratic rule of law can be experienced and shown to others only by those who are personally affected, since the German judicial system grants access to the courts, including the Constitutional Court, only to citizens who were personally harmed and who personally seek legal protection. When these citizens however become victims of arbitrary judicial acts and weigh up the chances of democratic justice against the power of the judiciary, they usually resign themselves to getting justice. And with that also resign to their right to political action. They no longer have the strength neither the freedom to enforce their rights, make public the injustice, and fight for political changes.
Citizens not personally affected, on the other hand, if they suspect at all the magnitude of the systematic absence of democratic rule of law within the judiciary, beware of making 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 are not available anymore. Moreover, the investigation of judicial crimes is usually delayed until the crimes come under the statute of limitations. This applies not only to Germany .
A political project for the documentation and correction of legal reality has to proceed from these facts.
After my attempts had failed to achieve reforms through normal political activities, I therefore consciously assumed the role of a victim when I became involved in family law proceedings. I tested the democratic constitutional state and gathered and sometimes provoked evidence.
Hereinafter my experience as a victim of the justice and family law system in Germany. All events can be proved by documents and signatures and seals, including those of the President of the Constitutional Court. These documents are available for verification.
Until 1981 I lived as a blameless citizen 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" labour union, with political functions in the area of social, family and health policy in Berlin and Bonn. In Bonn I was a member of the Federal Committee on Social, Family and Health Policy, and in the State of Berlin Chairman of the Committee on Health Policy. My commitment in social issues - as in revealing the corruption in housing policy - led certain political circles to pursue my expulsion from the party and remove me from Berlin politics.
In April 1981 I filed for divorce and requested 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 tenured high school teacher, a position which she achieved only with my help, had refused to have more children and give Claudia the siblings so longed for. Even Claudia was born only after announcing a petition for divorce because of the refusal of children.
The now commencing divorce and custody proceedings were characterized from the outset by constant judicial infringements of law. According to the general opinion, I did not have any chance right from the beginning to get the custody of the child only because I was the father and not the mother. In May 1982 a family court judge named Reinhard Fischer assigned the "provisional" custody to the mother on the basis of a psychological report on the child. The court session was held secretly, without me and my daughter having been summoned and heard by the court. The child psychological expert Mrs. Brigitte Frenzel was neither accredited in the courts nor sworn in. Later, a private letter by Mrs. Frenzel addressed to the judge was found in the court records, asking the judge whether she should "rewrite" the last page of the report.
Due to the "provisional" decision, my ex - wife moved with the child into a new apartment, so tearing it away from its 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 request to place the child psychologist under oath was rejected. The result of an investigation requested by me, of the ability of the parents to bring up the child, was discarded by the psychologist because 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 complaint against the psychologist for false testimony was rejected with the argument that testimony implies an oral statement and not a 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 considered 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 came in his report to the conclusion that there was a poor emotional mother-child relationship, but that this would promote the child's independence. He also observed that the child still maintained a stronger bond to the father despite of the now long separation. Nevertheless, he considered that both parents would be equally qualified to raise the child. At the court hearing in November 1983, however, Lempp conceded that he actually had not investigated the suitability of the parents for child-rearing nor read the court files. The tape recording of the hearing that I had applied for was interrupted because of an alleged technical defect. In the parallel stenographic transcript of the hearing any indication of the interruption was missing later, and decisive parts of the testimony and the interventions of the judge were also missing. By order of the judge I was not allowed to make declarations or pose any question to Lempp as this would only be permitted to attorneys. The child was awarded definitively to the mother only because it was already residing with her.
After filing an appeal to the Kammergericht Berlin, irregularities continued. Judicial violations of the law were hushed up by means of other violations of the law or covered with the cloak of silence. Finally my daughter suggested that we flee. Late March 1984, we left Berlin . I went into hiding in Wilhelmshaven , where I got the post of an assistant medical director. The moving company denounced my new whereabouts. As a precaution I accommodated 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, after having shaken off the plain-clothes officials and private detectives who pursued me.
In May 1984 the Kammergericht rejected my appeal in the divorce and custody case. It blamed me for "not having anymore faith in the rightness of judicial decisions", which would prove a grave character flaw on my part. Judges Hochgräber , Dr. Weber and Recknagel continued: "His abovementioned conduct shows that he is unwilling to concede that Claudia's welfare can be properly judged by someone other than himself. It proves moreover that he... cannot put aside his own financial interests and reconsider his position in the interest of the child."
An 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 constitutes only an offense that is prosecutable also only on request. The public prosecutor presented the indictment to my employer, even before the main hearing, whereby I lost my job. This action of the prosecutor is punishable under article 353 d (3) of the Penal Code.
After having ordered the forced sale of my house, that I had restored with my own hands in years of nightwork, the courts confiscated almost my entire share of the revenue, allegedly for "annuities for the child" until reaching adulthood (Kammergericht Berlin 159 F 7913/84). Nevertheless they seized me further amounts - cashed by the mother - for the "ongoing maintenance of the child", although my daughter was maintained only by me. Taking advantage of my situation and my absence, the lawyers, notary Arnold Heidemann who administered my assets, and my ex - wife committed judicially shielded frauds and embezzlements, as a result of which I lost my entire fortune. Criminal complaints against the lawyers, the notary, the judges and public prosecutors for betrayal of own client, perversion of justice, coercion, embezzlement, fraud, unlawful communication of court file contents, false accusation etc. were not answered or procrastinated until the limitation periods had expired.
In July 1984 an attempt to get a new custody proceeding in Wilhelmshaven , failed. My daughter had stayed secretly in Wilhelmshaven since the end of the Italian school year. And attorney Tegge had promised her a hearing by family court judge Tiarks. "This will be the most beautiful day of my life," she said. But it was not. The judge refused to even listen to my daughter. When we nevertheless appeared in his office, he called the police by phone. We escaped through the basement of the court building to a side street. My daughter returned to Soprabolzano.
Meanwhile 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 opted 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 . An alleged police officer tried to coerce the director of the "Savings Bank Stormarn" to cancel a loan granted to us. A task force of the police assaulted and searched 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, told a London business man that I am involved in drug trafficking. This business man was detained by a police operations command at the Hannover airport. Attempts were made to bribe the staff of my lawyer in Berlin . The mail destined for me was withheld without court order.
Silvio Magnano, a member of the Italian parliament, advised us to leave Italy . From the Fascist period there were still agreements with Germany allowing the immediate extradition without any legal review. With great difficulty and with the help of journalists we could escape via Spain to Paraguay . My daughter entered the Colegio Goethe in Asunción. She managed to skip a year. I had to struggle with major economic problems 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 exiled at home or abroad. According to the Federal Office for Statistics there were around 7,000 similar cases each year. Applications for asylum in the USA , Australia , Switzerland , Brazil , Argentina and Chile were not answered or rejected. I found myself registered in the US 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. At a meeting arranged by Pastor Armin Ihle in the parish garden of the protestant congregation, the officers communicated to me on behalf of senior prosecutor 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 affected with such promises, I considered this offer, however, a trap.
At the beginning of September 1987 my ex - wife turned up in Asunción, with petitions of the Berlin justice to the Paraguayan justice to hand over the child. The Berlin judge Merve Brehme justified her decisions on the grounds that my daughter was kept prisoner and did not go to school. In the press reports were launched, 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 into solitary confinement in the high security unit of Tacumbú state prison. The obviously bribed judge Modesto Elizeche refused even to have a look at the documents presented by me. Attempts were made to extort the whereabouts of my daughter from me. A request for extradition was announced. The "Comité de Iglesias", the local representative of the UN Human Rights Commission, provided me with a lawyer. I started a hunger strike. The fellow prisoner and Paraguayan opposition leader "Rambo" Hermes Saguier, in whose cell I was allowed to take a shower once in a while, urged me to abandon the 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. An unknown visitor who later turned out to be the security chief of dictator Alfredo Stroessner, advised me not to give up. After 22 days without food intake the Court of Appeal declared the actions of the judge to be void. I was released and hospitalized.
In the meantime my daughter had fled to Brazil , so that the nation-wide police, press and television manhunt for her resulted unsuccessful. Also an offered bounty for her capture was in vain. After the departure of my ex - wife to Germany , my daughter returned in January 1988 to Asunción. In order not to lose the school year, she made up the annual final exams which she had missed in the Ministry of Education. I lost my job which had gone to someone else during my imprisonment.
In the same year, one of the traditional student festivals in Asunción began to announce itself as "Winkler" on billboards and over road banners.
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 stood up 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 slandering the Paraguayan State. The Ambassador tried to achieve the termination of the proceeding. As to our case, the Ambassador made inquiries about the possibility to yet obtain my extradition, 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 feminist 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 backgrounds and possibilities of reform. These backgrounds and reform proposals, however, were persistently omitted by the authors and subsequent letters from me to the editors not published.
In May 1988 two German visitors - obviously undercover agents - told me they had "information from the Hessian Department of Justice" that there were pending criminal proceedings against me for denigration 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 Federal Criminal Police Office (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 curtailing freedom of expression. An official of the German embassy confirmed the information. Furthermore, the visitors offered me clandestine entry into Germany via the Eupen-Malmedy crossing point. They assured they had a friend there (who certainly would have been waiting for me with an arrest warrant on hand). Ultimately, I was "advised" to give up my political activities. Otherwise an indictment appropriate for Interpol simply would be made up and I would be extradited.
The German Deputy Ambassador in Asunción put patients of mine as well as the administration and teachers of the German school under pressure, not to consult me and see other German doctors instead.
My renewed attempt from Asunción to get new custody proceedings in Wilhelmshaven , our last permanent residence in Germany , failed. The court in Wilhelmshaven declared that it did not have jurisdiction. And the Federal Constitutional Court did not accept my complaint for adjudication. My attempt to get a retrial in Berlin also failed. The same judges of the Kammergericht as in 1984, which according to article 41 No. 6 of the civil code were prohibited to judge my challenge against their previous rulings, refused a retrial, arguing that the decision of 1984 became effective at the moment of pronouncement and not after service, so that the deadline for the resumption of the proceedings had expired. This contradicts the written law and the legal views of experts I had consulted. Also in this case the Federal Constitutional Court did not accept my complaint for adjudication.
The same results had legal actions for information about the whereabouts of my money, for the restitution of part of it, for cessation of the unlawful hindrance of exercising my profession and of the intimidation of patients, for the return of my professional documents sent to the Health Department in Berlin for authentication, for access to my files, for the protection of my personal data stored by the police, the state attorney and the BKA against deletion, for the annulation of the arrest warrant because of limitation, for the termination of my case due to being a minor offense, and so on. Several constitutional challenges against the non-acceptance of constitutional complaints by the Constitutional Court , against not giving reasons for the non-acceptances, and against the newly created laws that allow this, were neither accepted for a decision nor not accepted, but simply filed away. That the constitutional judges have nothing on mind acting this way was confirmed by an utterance of the former president of the Federal Constitutional Court, Prof. Benda, in the FOCUS news magazine. Benda explained there completely at ease, that the Constitutional Court could have avoided the trouble with the so-called "crucifix judgement" by simply 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/human-rights-and-common-law/index.html).
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, Bilbao and Wellington law schools. 2006 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 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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