Communication No. 755/1997
Submitted by: Clarence T. Maloney
Victims: The author and his three children, Benedikt,
Malika and Konstantin
State party: Germany
Date of communication: 15 March 1996 (initial submission)
The Human Rights Committee, established under article
28 of the International Covenant on Civil and Political Rights,
Meeting on 29 July 1997,
Adopts the following:
Decision on admissibility*
1. The author of the communication is Clarence T. Maloney,
an American citizen, born on 23 August 1934, living in India. He claims
to be a victim of a violation of articles 17, 23 and 24 of the Covenant
on Civil and Political Rights. He also submits the communication on behalf
of his three children, Benedikt (born 27 June 1981), Malika (born 15 February
1982) and Konstantin (born on 22 September 1987). The Optional Protocol
entered into force for Germany on 25 November 1993. (1)
Facts as submitted
2.1 The author married Barbara Sabass, a German citizen,
in 1981. After having lived in Bangladesh for several years, they moved
to Germany. In March 1989, the author's wife filed for divorce. The Family
Court in Miesbach provisionally granted her the separation, temporary
custody, alimony and child support. The author, who was out of the country
at the time, states that the Court never contacted him before taking its
2.2 The author tried to obtain full or joint custody, but
was informed that under German law joint custody is only possible when
both parents agree. The author, who had not seen his children since Christmas
1988, requested visiting rights by application of 8 December 1989. By
decision of 18 December 1989, the Miesbach Court denied the author visiting
rights. It appears from the text of the judgement that criminal charges
were pending against the author for having sexually abused his children
Benedikt and Malika.
2.3 It appears from the documents in the case that, on 3
January 1990, the author was convicted for sexual abuse of his children
Benedikt and Malika, as well as for failing to pay child support, and
sentenced to a suspended sentence of eighteen months' imprisonment, with
the probation period set at three years. (2) On 10 February 1995,
after the author had been arrested in January 1995 when entering Germany,
the Court ordered him again to pay child support (which he apparently
had failed to do since 27 January 1993) and prolonged the probation period
to six years, until 27 April 1996. The author in his communication repeatedly
states that he is not going to contribute child support when he is not
allowed to see his children.
2.4 On 6 July 1994, after a procedure that took five years
and three months, the Miesbach Court pronounced the divorce, and granted
full custody to the mother of the children. The author was refused visiting
rights. On appeal, the High Court (Oberlandesgericht) in Munich,
by decision of 17 May 1995, (3) confirmed the denial of visiting
rights to the author. With this, the author submits, domestic remedies
have been exhausted.
3.1 The author claims that the complete denial of visiting
rights, including the denial of the right to see his children in company
of a third person, is in violation of article 23 of the Covenant. He also
claims that the Family Court deliberately prolonged the proceedings to
prevent him from appealing and from entering the country.
3.2 The author further claims a violation of article 17
of the Covenant, because of the groundless accusations that his ex-wife
makes against him, that he is a sexual pervert and that he will abduct
the children. In this context, he states that his ex-wife has been in
psychotherapy for years, and that she has lost contact with most of her
family and friends because of her character. According to the author,
his ex-wife has influenced the children against him, using the technique
of intensive suggestive questioning so that the children now believe and
say that they have been sexually abused. In this context, the author refers
to an expert opinion that there is no evidence that his daughter Malika
was sexually abused.
3.3 The author also states that he has not been able to have contact with
his children by mail or telephone, since their address has been withheld
from him. When he found out an address in November 1995, his letters were
intercepted. According to a letter written by the author's ex-wife to
the High Court, complaining that the author tried to contact the children,
the High Court has ruled that the father abstain from such contact. This
is also said to be in violation of article 17 of the Covenant.
3.4 The author also claims a violation of article 24 of
the Covenant, on behalf of his children, since Germany has failed to offer
them protection and has supported the delusions of their mother against
their father. In this context, he refers to indications that his son Benedikt
has suicidal tendencies. He also complains that the children are now using
the last name of their mother, although their lawful name is still Maloney,
and that they have not been able to have contact with their half brothers
and sisters in America or India. This is said to be a violation of article
24, as the State party failed to preserve the children's identity (surname)
and culture (American and Indian background).
Issues and proceedings before the Committee
4.1 Before considering any claim contained in a communication,
the Human Rights Committee must, in accordance with rule 87 of its rules
of procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
4.2 The author claims violations of the Covenant because
his ex-wife has made accusations of sexual perverseness against him and
because he has been denied contact with his children. The Committee recalls
that it is for the Courts of States parties and not for the Committee
to evaluate facts and evidence of a particular case, unless it can be
ascertained that the Court's decision was clearly arbitrary or amounted
to a denial of justice. The Committee notes that the Court decisions in
the case show that the author was denied contact with his children on
the ground of his conviction for sexual abuse of two of his children.
In the circumstances, the Committee finds that the author has failed to
substantiate, for purposes of admissibility, that the facts as presented
by him constitute a violation of articles 17 and 23 of the Covenant. This
part of the communication is thus inadmissible under article 2 of the
4.3 As regards the author's claims on behalf of his children,
the Committee notes that he has failed to take any steps to bring these
claims before the Court which, it appears from the file, continues to
have jurisdiction over them. This part of the communication is thus inadmissible
for failure of exhaustion of domestic remedies, under article 5, subparagraph
2 (b), of the Optional Protocol.
5. The Human Rights Committee therefore decides that:
(a) The communication is inadmissible;
(b) This decision shall be communicated to the author
and, for information, to the State party.
* The following members of the Committee participated in the examination
of the present communication: Mr. Nisuke Ando, Mr. Prafullachandra N.
Bhagwati, Mr. Thomas Buergenthal, Ms. Christine Chanet, Lord Colville,
Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. David Kretzmer, Mr.
Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr. Martin
Scheinin and Mr. Maxwell Yalden.
** Pursuant to rule 85 of the Committee's rules of procedure,
Mr. Eckart Klein did not participate in the examination of the case.
1. When acceding to the Optional Protocol, the Federal Republic of Germany
entered a reservation to the effect that
"the competence of the Committee shall not apply to communications
[...] by means of which a violation of rights is reprimanded having
its origin in events occurring prior to the entry into force of the
Optional Protocol for the Republic of Germany, [...]".
2. A copy of the judgement of the Criminal Court is not provided by the
author. The Miesbach Family Court, in its decision of July 1994, refers
to the Criminal Court's judgement as a ground for refusing the author
3. Copy of judgement is not provided.