1.1 The
author of the communication, dated 5 May 1998, is Waldemar Kehler,
a German national. He claims to be a victim of violations by the
Federal Republic of Germany of several provisions of the Covenant.
He is not represented by counsel.
1.2 The
International Covenant on Civil and Political Rights entered into
force for the State party on 23 March 1976, and the Optional Protocol
on 25 November 1993. Upon acceding to the Optional Protocol, the
State Party entered a reservation to the Optional Protocol which
reads, inter alia: "The Federal Republic of Germany formulates
a reservation concerning article 5 paragraph 2 (a) to the effect
that the competence of the Committee shall not apply to communications
(a) which have already been considered under another procedure of
international investigation or settlement".
The facts as presented
2.1 The
author's two children, Sonja and Nina, were born on 30 December
1981 and 20 February 1983 respectively from his marriage to Anita
Kehler. After the author suffered long-term disability through an
accident and illness, the spouses separated, with the wife moving
out of the common dwelling with both daughters on 29 May 1995.
2.2 By
provisional order of 12 June 1995, the Dieburg Local (Family) Court
granted the mother the right to determine the place of residence
of the children during the period of separation. On 28 June 1995,
the court referred the proceedings to the Tuttlingen Local Court
after oral hearing, as the author had previously applied to the
latter court for custody to be granted to himself. On 7 August 1995,
following the children's indication that they wished to remain with
their mother, the Tuttlingen court upheld the provisional arrangement
of the right to determine place of residence which had been made
by the Dieburg court.
2.3 On
17 October 1995, following representations by the author that the
children's expressed wishes were not free of pressures, the Tuttlingen
court ordered a psychiatric examination of the children. Multiple
individual interviews with both children and parents as well as
psychiatric tests indicated that these wishes were genuine. Accordingly,
on 21 February 1996, the Tuttlingen court confirmed the award of
custody to the mother. The author was provided with access to the
children one weekend per month and further holiday access. The author's
appeal against that decision was rejected by the Stuttgart Higher
Regional Court on 20 September 1996. On 5 June 1997, the Dieburg
court ordered the author to pay maintenance for the children and
their mother.
2.4 On
18 July 1997, the author wrote to the Tuttlingen court seeking enforcement
of the visiting arrangements. The judge stated that the court was
not in a position to enforce the judgment as the author's children
now refused to see him. On 27 October 1997, the Dieburg court rejected
an application by the author for transfer of custody of the children
and a fine for the mother following an unsuccessful attempted visit
to the children.
2.5 On
20 January 1998, the Frankfurt a.M. Higher Regional Court amended
the custody arrangements, providing the author with more frequent
access to the children every second Saturday of the month from 11
am to 5 pm. The court ordered that this arrangement was to be complied
with by both parties upon pain of financial penalty. On 25 March
1998, the Federal Constitutional Court rejected the author's constitutional
complaint.
2.6 On
25 May 1998, the European Commission of Human Rights declared inadmissible
the author's complaint, which had been filed on 1 September 1996
and registered on 3 October 1997 under file No. 38012/97, finding
that the application did not disclose any appearance of a violation
of the rights and freedoms set out in the European Convention or
its Protocols.
The
complaint
3. The
author claimed violations of his and his children's rights, which
look to raise issues primarily under articles 23 and 24 of
the Covenant. He initially focussed on the contention that the deprivation
of access to his children by the mother constituted child abduction
and that State complicity existed in a failure to enforce access
and in the failure to bring criminal charges against the author's
former wife. More recently the author contends that visiting arrangements
requiring him, in condition of serious disability, to travel long
distances to visit his children constitutes torture.
The
State party's information and observations with regard to the admissibility
of the communication
4.1 The
State party considers it manifest that the communication has already
been considered under another procedure of international investigation
or settlement, and the Committee's competence is therefore excluded
by paragraph (a) of the State party's reservation.
4.2 The
State party further contends that there are considerable doubts
as to whether domestic remedies have been exhausted. Since the Federal
Constitutional Court does not provide the grounds upon which the
application was rejected and the author has not supplied his application
to the Court, the fact that the Federal Constitutional Court did
not accept a claim for adjudication is not of itself sufficient,
in this multi-faceted and prolonged litigation, to demonstrate that
domestic remedies have been exhausted.
4.3 The
State party also considers the communication to be seriously deficient
in the material transmitted and the statements made which fail to
specify any objective reason for the application and requests that
the author be asked to supply further clarification. In particular,
the State party argues that the author does not reveal which domestic
decisions he is contesting, nor in which respect(s) the author considers
a violation of the Covenant to have occurred.
Author's
response to the State party's information and observations with
regard to the admissibility of the communication
5. In response
to the State party's submissions, the author makes a variety of
comments on recent German law and jurisprudence regarding family
issues, correspondence with members of Parliament and others, general
discussion on international cross-border cases of child abduction
in Germany and other countries, accounts of his state of health
and medical history, and repeated allegations as to the conduct
of his wife and other persons involved in his cases.
Issues
and proceedings before the Committee
6.1 Before
considering any claims contained in a communication, the Human Rights
Committee must, in accordance with article 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol
to the Covenant.
6.2 The
Committee notes the State party's contention that paragraph
(a) of the reservation entered upon its accession to the
Optional Protocol
excludes the Committee's competence to examine the author's
claim because the same matter has already been considered
under another
procedure of international investigation or settlement. In
this connection, the State party has informed the Committee
that the
European Commission of Human Rights declared the author's
complaint inadmissible on 3 October 1997, finding that the
application did
not disclose any appearance of a violation of the rights
and freedoms set out in the European Convention or its Protocols.
In view of
the author's failure to supply his application to the Commission,
the absence of any recitation of facts or reasoning in the
Commission's
decision, and the broader provisions of the Covenant which touch
upon present issues, the Committee possesses insufficient
information to determine the applicability of the State party's
reservation
to the present communication.
6.3 Nevertheless,
with respect to the author's various claims made primarily under
articles 23 and 24 of the Covenant, the Committee considers that
the author has failed to substantiate his claims for purposes of
admissibility, and accordingly declares them inadmissible under
article 2 of the Optional Protocol. In the circumstances, therefore,
it is unnecessary for the Committee to address the remaining arguments
on admissibility raised by the State party.
7 The Committee
therefore decides:
Adopted
in English, French and Spanish, the English text being the original
version. Subsequently to be translated also in Arabic, Chinese and
Russian as part of the Committee´s annual report to the General
Assembly.
_______________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando,
Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr.
Louis Henkin, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia
Medina Quiroga, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin
Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Mr. Ahmed
Tawfick Khalil, Mr. Patrick Vella, Mr. Maxwell Yalden.
