AS TO THE ADMISSIBILITY OF

                      Application No. 17713/91

                      by Horst SCHINDEWOLF

                      against the Federal Republic of Germany

      The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1992, the following members being present:

           MM.   F. ERMACORA, Acting President of the First Chamber

                 J.A. FROWEIN

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Sir   Basil HALL

           Mr.   C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   M. PELLONPÄÄ

                 B. MARXER

           Mr.   M. de SALVIA, Secretary to the First Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 20 November 1990

by Horst SCHINDEWOLF against the Federal Republic of Germany and

registered on 23 January 1991 under file No. 17713/91;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

      The applicant is a German citizen born in 1938.  He is an

electrical and telecommunication engineer by profession.  He is

resident at Mannheim-Vogelstang.

      In August 1988 the applicant installed on the roof of his house

a short wave aerial system with a lattice-mast almost 10 m high, for

the purpose of his leisure time activities as a radio amateur.

      On 20 October 1988 the Mannheim Municipality, upon complaints of

the applicant's neighbours, ordered the applicant to remove the aerial

concerned before 30 June 1989.  The Municipality noted that the

building development plan (Bebauungsplan) for the area of the

applicant's estate did not provide for any restrictions as to the

erection of aerial systems.  The applicant's aerial system was less

than 10 m high and thus not subject to any authorisation under

S. 52 para. 1 (13) of the Baden-Württemberg Building Regulations

(Landesbauordnung).  However, in accordance with S. 52 para. 5 of the

said Regulations, such aerial systems were nevertheless subject to

other provisions of the Building Regulations or of public law, i.e.

building development plans.  After an inspection in situ, the

Municipality considered that the applicant's aerial system with

projecting antennas disfigured the appearance of the locality (Orts-

und Straßenbild) within the meaning of S. 13 of the Baden-Württemberg

Building Regulations.  The Municipality also referred to SS. 3, 49 and

57 of the Building Regulations.

      On 15 April 1989 the Karlsruhe Provincial Government (Regierungs-

präsidium) dismissed the applicant's objection (Widerspruch).

      On 22 August 1989 the Karlsruhe Administrative Court (Verwal-

tungsgericht) dismissed the applicant's action to quash the decision

of 20 October 1988.

      The Court, having inspected the applicant's estate and its

surroundings and having regard to photographs filed by the applicant,

found that the decision of the Mannheim Municipality of 20 October

1988, as confirmed by the Karlsruhe Provincial Government on 15 April

1989, was lawful and did not disclose any violation of the applicant's

rights.  The order to remove the aerial system constituted a demolition

order in accordance with S. 64 para. 1 of the Baden-Württemberg

Building Regulations.  The Court confirmed the reasoning of the

Municipality that the aerial system, though being as such not subject

to any authorisation, disfigured the appearance of the locality and was

thus in breach of S. 13 para. 2 of the Building Regulations.  In this

respect, the Court noted that, in the immediate vicinity of the

applicant's estate, in accordance with the building development plan,

only one- or two-story houses had been constructed in the middle of

gardens with high trees.  In these surroundings the applicant's aerial

system with its lattice-mast was a disproportionate foreign element

which dominated and was strikingly out of place, even more so in winter

when there was no vegetation.

      Moreover, the Administrative Court, balancing the conflicting

interests in the present case, considered that the order in question

did not violate the applicant's freedom to receive information.  It

noted in particular that the applicant was not hindered to inform

himself from general sources, or by means of an aerial system not

disfiguring the surroundings, e.g. a telescope aerial system or an

aerial system which could be lifted, if necessary.

      On 27 June 1990 the Baden-Württemberg Administrative Court of

Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal

(Berufung).  The Court, having also inspected the locality concerned,

found that the applicant's aerial system was at variance with the

particular nature of the building area in question, as provided for in

the building development plan.  In particular, the real estates in the

close vicinity were very small and there was a high density of

construction.  The neighbours' living conditions were considerably

impaired by the applicant's aerial system.  The applicant, for the

purposes of his spare time activities, irrespective of whether he only

had world-wide contacts with other radio amateurs or also received

distant radio stations in the short wave range, unreasonably expected

his close neighbours to tolerate the view of such a high mast with a

big aerial system.  He had thereby also violated his obligation to take

his neighbours' interests into due consideration (Rücksichtnahmegebot)

under S. 15 of the Land Use Regulations (Baunutzungsverordnung).  There

was no appearance of a violation of his right to information, as

guaranteed by Article 10 para. 1 of the Convention.  The Court did not

grant leave to appeal on points of law (Revision) to the Federal

Administrative Court (Bundesverwaltungsgericht).

      On 4 October 1990 the Federal Administrative Court rejected the

applicant's request for leave to appeal on points of law (Nicht-

zulassungsbeschwerde).  The Federal Administrative Court considered

that the applicant had failed to show the general importance of his

case.

      On 15 November 1990 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it did not offer

any prospect of success.

      The Constitutional Court considered in particular that the

impugned demolition order as well as the ensuing administrative court

decisions did not violate the applicant's right to freedom of

information.  The general duty under S. 15 of the Land Use Regulations

to take neighbours' interests into due consideration was a general law

limiting the exercise of this right.  In the present case, the

Administrative Court and the Administrative Court of Appeal, in their

respective decisions, had balanced the conflicting interests.  Their

conclusion that the neighbours' interests prevailed could not be

objected to under constitutional law.  The reference by the

Administrative Court of Appeal to other categories of cases did not

appear arbitrary.  Moreover, the applicant had failed to show that he

had been discriminated against by the competent authorities.  The other

cases of high aerial systems mentioned by him, namely aerial systems

run by the post services, a tower of the telecommunication services,

or masts of circuit lines, could not be compared to his case.

      The decision was served on 17 November 1990.  The applicant

subsequently removed his aerial system.

COMPLAINTS

      The applicant complains under Articles 10 and 14 of the

Convention that the order of the Mannheim Municipality dated 20 October

1988 to remove his aerial system, as confirmed in the ensuing court

proceedings, violated his right to receive and impart information.  He

submits in particular that he is prevented from receiving and imparting

information and ideas as a radio amateur in the short wave band.  He

considers that the removal order was arbitrary.

THE LAW

      The applicant complains that the order of the Mannheim

Municipality dated 20 October 1988 to remove his aerial system, as

confirmed in the ensuing court proceedings, violates his right to

receive and impart information and ideas.  He invokes Articles 10 and

14 (Art. 8, 10) of the Convention.  Article 10 (Art. 10), so far as

relevant, provides:

      "1.  Everyone has the right to freedom of expression.  This

      right shall include freedom ... to receive and impart information

      and ideas without interference by public authority and regardless

      of frontiers...

      2.   The exercise of these freedoms, since it carries with it

      duties and responsibilities, may be subject to such formalities,

      conditions, restrictions or penalties as are prescribed by law

      and are necessary in a democratic society, in the interests of

      national security, territorial integrity or public safety, for

      the prevention of disorder or crime, for the protection of health

      or morals, for the protection of the reputation or rights of

      others, for preventing the disclosure of information received in

      confidence, or for maintaining the authority and impartiality of

      the judiciary."

      The Commission considers that the order of the German authorities

to remove the short wave aerial system constituted an interference with

the applicant's freedom to receive and impart information under

Article 10 para. 1 (Art. 10-1).  Such interference amounts to a breach

of the Convention, if it is not justified under Article 10 para. 2

(Art. 10-2), namely prescribed by law and necessary in a democratic

society for one of the legitimate aims enumerated in this provision.

      The Commission notes that the German authorities based the

removal order on S. 15 of the Land Use Regulations, as well as

provisions of the Baden-Württemberg Building Regulations, which provide

for removal of any construction in breach of, inter alia, the duty to

take neighbours' interests into due consideration.  The German

authorities, in particular the Karlsruhe Administrative Court and the

Baden-Württemberg Administrative Court of Appeal, having inspected the

locality concerned, found that the conditions for removal under these

provisions were fulfilled.  The Commission considers that the removal

order was prescribed by German law.

      The removal order aimed at protecting the interests of the

applicant's neighbours in living in an appropriate building

development, i.e. the rights of others.

      As regards the question of necessity of the interference in

question, the Commission recalls that the adjective "necessary" within

the meaning of Article 10 para. 2 (Art. 10-2) of the Convention implies

the existence of a "pressing social need".  The Contracting States have

a margin of appreciation in assessing whether such a need exists, but

it goes hand in hand with a European supervision which covers the basic

legislation and the decisions applying it, even those given by an

independent court (cf. Eur. Court H.R., Lingens judgment of 8 July

1986, Series A no. 103, p. 25, para. 39).

      The Commission notes that the German authorities ordered the

applicant to remove an aerial system which enabled him to receive and

transmit messages in the short wave band.  The aerial was fixed on the

roof of his house on a lattice-mast which was almost 10 m high and had

big antennas.  The Karlsruhe Administrative Court and the Baden-

Württemberg Administrative Court of Appeal, having both inspected the

locality concerned, considered that, having regard to the small size

of the plots of land in the area and density of construction as well

as the general appearance, the neighbours' living conditions were

impaired to such an extent that the applicant could not expect them to

tolerate the view of his aerial system.  The applicant was not

prevented from informing himself from general sources and could also

use a telescope aerial system or one which could be lifted, if

necessary.  This reasoning was confirmed by the Federal Constitutional

Court which also stressed that the applicant used the aerial system as

a radio amateur in his spare time.

      In these circumstances, the Commission, taking into account the

careful balancing of the conflicting interests in the German court

decisions, finds that the removal order is not disproportionate to the

legitimate aim of protecting the neighbours' interests.  The

interference was thus necessary in a democratic society for the

protection of the rights of others.

           Furthermore, the applicant's submissions do not disclose any

appearance of discrimination against him contrary to Article 14

(Art. 14) of the Convention.

      It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      Accordingly, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber    Acting President of the First Chamber

      (M. de SALVIA)                         (F. ERMACORA)