Star Chamber
Below you will find a list of all the things that transparency dictates be public to all:
(Also have a look at the attachments to this page) emails.tar.gz init_en.pdf
Dear Philipp Dunkel, member of CAcert Inc., board has suspended you from all roles which you may have hold except the role assurer. Board decided to implement a committee of investigation to clarify the accusations. The investigation committee is build by - Michael Stehmann, Assurer and Community Member, Lawyer in Germany - Felix von Courten, Assurer and Community Member, Lawyer in Germany - Thorsten Fröse, Assurer and member of CAcert Inc., Privacy Officer (Datenschutzbeauftragter) in Germany. Please accept to not publish any communication in the course of this investigation unless all members of the investigation agree. We all hope that all involved parties will support the committee to clarify the situation. kind regards Reinhard Mutz President of CAcert Inc. in the name of board
Since I have always declared that only an open and transparent process would even be remotely considered, I feel within my rights to publish this, since Reinhard knew before hand that anything he sends me is liable to be made public.
Which is why I responded to his E-Mail with:
Dear Reinhard, Thank you for that information. However I will not accept any such committee appointed by you for anything other than advising you. This committee has no jurisdiction in any way. In addition, for the sake of transparency, I do not accept that any communications should be kept private as regards this committee. Please be advised that any further communications with me on this matter will be made public. Best regards, Philipp Dunkel
and then later
Hi Michael, (Hi Everyone),
thank you for that introduction. So far we are in accord. This also speaks to another key issue:
Arbitration is an independent forum (Unabhängiges Schiedsgericht) to which all CAcert members including CAcert Inc (and by extension) board as well are subject. No single member can unilaterally influence or bully this independent forum, but rather every party has to remain within the agreed upon rules.
This is the fundamental agreement that CAcert operates under. I hope you understand, that until this corner-stone of CAcert is affirmed and recognised I cannot, as one of the arbitrators, take part in such an extrajudicial “investigation committee”.
So long as the statement:
board has suspended you from all roles which you may have hold except
the role assurer. Board decided to implement a committee of investigation to clarify the
accusations.
stands, I am unable to participate in any way shape or form.
Of course I am interested in solving conflicts, and am willing to have a sensible conversation in that regard with anyone, including this committee. However until this is cleared up, there is simply no way I can cooperate with such a committee without compromising the fundamental independence of arbitration and thereby the foundation of CAcert.
Regards, Philippto which I received the following response:
Hello, first a basic note: The Committee was establish by the Board. So it IMO can not have more power than the Board (nemo plus iuris transferre potest quam ipse habet). Indeed it has less power than the Board, because it is not the Board. So the work of Committee depends of the good will of all parties and has to persuade them. So my hope is, that we can win the confidence of all participants and everybody likes to collaborate with us. Any other suggestions or ideas? Kind regards Michael
In addition Eva wrote the following response after having received a similar original email:
Dear Michael, thank you for your mail. Philipp already gave a statement. As a member of CAcert Inc and member of the community I also cannot accept this investigation like it is currently designed, as I am bound twice to only do disputes via arbitration: a) by accepting the CCA I have accepted that all disputes are handled via DRP arbitration b) by accepting the statutes of CAcert Inc I have accepted that all disputes between members of CAcert Inc or CAcert Inc. and a member of CAcert Inc. are only handled via DRP arbitration. As an arbitrator it would be in-acceptable to make an exception for my own person and to allow a special treatment for myself. This is especially true as some of the things that board tries to get handled here have already been filed with arbitration by members of the board and a lot of other things are already covered by our own arbitration cases and would require an appeal, where there is a board motion m20130210.2, that board accepts to be not involved in those (beside of being a party). https://wiki.cacert.org/Brain/CAcertInc/Committee/MeetingAgendasAndMinutes/20130127#Minutes The only disciplinary activity that the statutes of CAcert Inc allow board is the first instance decision about the exclusion of a member. However even there was a precedence where a prior board asked arbitration to decide on this, based on the rule that all disputes between CAcert Inc and their members should be handled by DRP arbitration. So far I am NOT informed that such a process was initiated. And I am NOT informed about any according complaints by anybody, which would be a requirement for this exclusion process. The according references can be found in the material that board has provided (I did not check if they have provided working links). Here a statement that Philipp gave yesterday: "Dear Reinhard, Thank you for that information. However I will not accept any such committee appointed by you for anything other than advising you. This committee has no jurisdiction in any way. In addition, for the sake of transparency, I do not accept that any communications should be kept private as regards this committee. Please be advised that any further communications with me on this matter will be made public. Best regards, Philipp Dunkel" As well as Philipp I hereby declare that I do not accept to keep this private as our policies, the CAcert Inc statutes and our principles and the Security Policy may require transparency. I inform you that I will reserve my right to make public the communication with me on this matter at least for the time being. Please also be informed, that I regard this "investigation" and especially the "suspension" which was done two months ago in a secret way, contradicting older board decisions and rulings and without any authorisation provided or any reasons named as an interference with the following arbitration case where I am the arbitrator: https://wiki.cacert.org/Arbitrations/a20151125.1 As board names my init mail of that case as evidence against me in their accusations, I have to fear that my assumption, about this interference is true. I advise you to take a look at the nature of that case. It is a review of the last Annual General Meeting (AGM) based on some inconsistencies about topics that were handled there. There was a prior attempt for the same AGM. Current board members back then have argued that it had to be cancelled and to be declared to be invalid because of a minor formal detail. This was accepted by the AGM with their own votes. The issue brought up in the arbitration case are of a comparable nature but probably more severe (if accepted by the arbitration). Because of the existence of that AGM decision and the arguments/requests of the claimant of that case I saw the possibility that the last AGM may have to be declared invalid, on the same reasons as the AGM applied for the prior attempt. Or at least I could not exclude this possibility. My according warning to board in this regard was now brought up as part of the third "example" against me, without further context. So obviously the existence of this warning is understood as a problem by board. The warning was: "Even as it was not requested by the claimant, by examining the issue filed by the claimant, I have found the possibility that this issue could lead to the AGM form 2015-11-22 is invalid, if the decision from the GM at 2015-09-27 is applicable to the invitation for the AGM at 2015-11-22, as the situation may be comparable." Shortly afterwards, I adjusted the warning to: "a minor clarification, as I saw that this could be interpreted wrongly. I do not advice board to act as if the AGM would be invalid. There was no decision about this. On the contrary I only saw the possibility of that result and was not directly able to dismiss it. Before I will decide anything, I have to do some more research, which will include your statements if you are providing any. What I advice board is to act based on the fact, that you were informed about that possible outcome of this case. If a ruling would be given in that direction it would be good to be prepared." This warning was done prior to the "suspension" done by board, actually board seems to base their "suspension" on this warning, according to their accusations. I would be less insistent to refuse the interference of board for suspending me or initiating this "investigation committee", if there would not be the following details: The board was installed at that AGM, if the AGM would be invalid, the board members would not be members of the board. This is especially relevant, as there was no election at the AGM because the only valid nominations were those of the current board members. As there are currently a lot of members asking for a Special General Meeting (SGM) to remove the current board, it should be even in the interest of the current board members to clarify if the AGM and by this their instalment is valid. While it is clearly in the interest of the members of CAcert Inc. to get this clarified. If it would not be for this case, I could consider to be less strict with my rejection of this investigation. But to protect this case and the interests of the members to have this kind of cases, I have no option but to be firm, here. Further: Philipp was handling a case about the acceptance of the CCA and DRP of one or all board members which could lead to an exclusion of those members from the CAcert community. Parts of that case were also present in the accusations. It is up to him to decide on steps about that case. But I think you should be informed, that a board member has claimed to have filed criminal charges in Austria in his answer to the init mail of that case. (This is also part of the material that you got from board.) I have to mention this because the criminal charges are named to be against Ian, Philipp, Alex and me. - Ian is the claimant/counter-claimant of both cases - Philipp and I are the Arbitrators of those cases - Alex and I are the Case Managers of those cases. As we were informed about the criminal charges in the context of Philipps arbitration case, we should be careful to deny a relation. But to show some goodwill, as I really am interested to get this conflicts solved in a good manner (Michael should be able to tell you more) and I actually would be interested in a real mediation if this could be done beside arbitration, somehow: I make you the following offer as the arbitrator of the case that I just mentioned (a20151125.1): As it may be, that board as a representative of one party of that case fears that this case is not handled in a fair manner or in the interests of the members of CAcert Inc., I can let you, the three members named by board as the "investigation committee", see the internal communication between me and the Case Manager of that case up to the current day and I also can tell the Case Manager to provide the same to verify that I am not holding something back by intention (we may come to different conclusions, which mails are affected). I would show you this communication under the following conditions: 1. to not share them with anybody else before the arbitration case is finished, especially not with a party of that case or a representative of a party of that case. Only exception would be on the request of an arbitrator of a duly filed case or a judge of a court that has jurisdiction. The reason is that this would be internal communication within a running case between the officers of that case and we have to be able to handle that case in a fair and balanced manner. There already is a lot of interference going on from the side of board. A member of CAcert Inc. who files against CAcert Inc. may not be disadvantaged in such a case. 2. to not use that communication for anything else but to convince yourself about a fair/unbalanced handling of that case. 3. accept that the claimant of that case should have the same option to name up to three persons who get access to that communication under comparable conditions. Because of this offer I added the Case Manager and the claimant of that case to this communication. The offer will only take effect, if you agree to those conditions for the time being. I have no issue to discuss a change of those conditions, after you were able to study that communication (or if you provide good arguments, now). Beside of this, I will renew my offer, that I have send some days ago to Michael: to participate in any fair kind of mediation or anything comparable that can be done beside DRP arbitration as long as we can exclude that it could affect the criminal case, somehow. But sorry to say, this would include that not only one side has a say on who the mediators are or what topics would be handled. So far, board refused any communication in that direction, even as there were a multitude of offers from my side. The existence of that criminal case (if it is true) is also a reason why I cannot accept the "investigation committee" on a personal level. I ask you to honour this. I also feel obliged to make you aware about something else, which appears also in the material of board, however as evidence against Philipp. It is about a prior announced interference from my side with cases of mine: https://lists.cacert.org/wws/arc/cacert-board/2015-10/msg00013.html (and the rest of that mail thread) I do not know if this is connected, but as it is brought up by board in their accusations, it could be. Also one of the persons that were anonymized by me in the mail, is now an active board member. I only mention this, so that you are aware in what context this "investigation committee" could be understood and why I am careful to accept it. Kind regards, Eva
I will continue to update this space with anything new that happens regarding the Star-Chamber
P.S.: I have also put these documents on my drive at https://drive.google.com/folderview?id=0B5_xYjz6K-TrNmpIWV91YXFSQU0&usp=sharing just to make sure