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)
Full & Egal Universal Law Academy