Monument Protection Act (Hessen)

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Basic data
Title: Hessian Monument Protection Act
Short title: Monument Protection Act
Previous title: Law for the Protection of Cultural Monuments
Abbreviation: HDSchG
Type: State Law
Scope: Hesse
Legal matter: Monument protectioncultural protection law
References : GVBl. 2016, 211 (76-17)
Issued on: Date Law
Entry into force on: December 6, 2016
Expiry: Unlimited validity
Weblink: Text of the law
Please note the note on the applicable legal version.
Plaque on the wall of a single cultural monument, 2016

The Hessian Monument Protection Act (HDSchG) is the basis of monument law in the state of Hesse . It implements the provision of Art. 62 Constitution of the State of Hesse :

“The monuments of art, history and culture as well as the landscape enjoy the protection and care of the state and the communities. Within the framework of special laws, they watch over the artistic design in the reconstruction of German cities, villages and settlements. "

- Art. 62, Hessian constitution

history

development

The state of Hesse was only created in its current form in 1945. The predecessor territories from which it is composed introduced their own monument protection regulations. These included:

This fragmented legal status lasted until 1974, when the first Hessian monument protection law was created. This was fundamentally revised in 1986. In the following three decades, individual changes were made selectively - usually within collective laws - in order to adapt the Monument Protection Act to changed legal or actual requirements. For example, the fines for administrative offenses were changed in the course of the introduction of the euro . In order to align the law with the changes that had occurred after three decades, it was replaced by a new law in 2016. In terms of content, however, this largely corresponds to the law applicable up to that point.

Innovations 2016

The text was the first time a total of gendered and spelling to the state after the spelling reform adjusted. The following changes have been made to the previously applicable version of the law:

  • The “historically grown cultural landscape ” is now explicitly listed as a possible cultural monument (Section 1, Paragraph 1).
  • The ground monument is defined in a more modern way, the previously contained “soft time limit” is dispensed with (Section 2, Paragraph 2).
  • The UNESCO - World Heritage was first mentioned explicitly (§ 3)
  • The State Office for the Preservation of Monuments of Hesse is now also expressly the “ public authority ” in matters of monument protection (Section 5, Paragraph 2, No. 2).
  • Voluntary commitment in favor of the preservation of monuments was enshrined in the law (Section 7, Paragraph 2).
  • The polluter pays principle applied in Hesse even before the amendment to the law. Until 2016, however, it had to be derived from other provisions. It is now expressly written into it (Section 18 (5)).
  • The treasure shelf has been comprehensively reorganized (§ 25).
  • A time limit for the law was waived.

content

Cultural monuments

The cultural monuments are categorized differently in the Hessian Monument Protection Act, namely according to:

  • the protection they are entitled to in individual cultural monuments (Section 2 (1)) and overall facilities (Section 2 (3)),
  • their creation and conservation process in architectural and ground monuments (Section 2, Paragraph 2),
  • according to their property law quality in
    • Things and here in:
    • Factual entities and
    • Material parts (§ 2 Paragraph 1), as well as
    • Objects that are entered in the register of nationally valuable cultural assets in accordance with the Cultural Property Protection Act (Section 2, Paragraph 5).

Individual cultural monuments

An object is a cultural monument if its receipt from

  • artistic,
  • scientific,
  • technical
  • historical
  • urban planning reasons

there is a public interest . If one of these criteria is met, it is a cultural monument and it is worthy of protection (Section 2, Paragraph 1).

Complete systems

In the case of the entire complex (Section 2, Paragraph 3), the entire complex is a cultural monument. The individual components of the totality can, but need not, also be individual cultural monuments. Examples of this are streets, squares and places including plants, open spaces and water. Slightly weakened rules for maintaining complete systems apply (Section 18 (4)).

Architectural monuments

Architectural monuments are the category of cultural monuments that is most present in the public consciousness. If the pair of terms architectural / ground monument is used, then garden monuments , technical monuments or small monuments count among the architectural monuments (Section 2, Paragraph 1).

Soil monuments

"Ground monuments are cultural monuments that represent evidence of human, animal or plant life of scientific value and that are or were hidden in the ground or come from prehistoric times."

- Section 2 (2)

This definition means that fossils are also defined as cultural monuments ("Lex Messel ").

The protection of archaeological (or palaeontological ) findings is usually to be ensured through research permits. Targeted searches, not just digging for monuments , are therefore subject to a permit . Appropriate permits are issued by the State Office for Monument Preservation in Hesse (Section 22).

Only a few excavation protection areas (Section 23) have been designated in Hesse. Probably also because it only shifts the responsibility for issuing a permit, but does not provide any substantive protection.

If a ground monument is found accidentally, the discoverer, owner of the property and / or the manager of the work in which the find was made must notify a monument protection authority or the municipality immediately. (Section 21, Paragraphs 1 and 2). Find and place of discovery are then to be preserved unchanged for up to a week in order to give the State Office for the Preservation of Monuments in Hesse the opportunity to examine the place of discovery (Section 21, Paragraph 3). The State Office is entitled to recover finds, evaluate them and temporarily take possession of them for scientific processing (Section 21, Paragraph 3). This rule does not affect the question of ownership .

After a regulation introduced in 2011, which established a relative treasure shelf in favor of the State of Hesse, had not proven itself because it was designed too complex, this provision was redrafted with close reference to the corresponding regulations of the German Civil Code . The state only acquires property in found objects if they are of outstanding scientific value, have been found by the State of Hesse itself (e.g. during an excavation by the State Office for the Preservation of Monuments), have been discovered in an excavation protection area or have come to light during a robbery . In return, the finder and the property owner are entitled to a fund bonus. This reflects the idea of ​​division, of § 984 BGB . The amount of the fund premium was based on the regulation of § 971 BGB ( finder's reward ).

Individual questions

Message principle

According to Hessian monument law, an object becomes a monument simply because it has the features listed in Section 2 (1). The entry in a monument register is purely informational (“informational principle”). An administrative act is therefore usually not necessary for something to become a cultural monument. The status of a cultural monument is already determined by law. Exceptions apply to movable property, which as a rule only becomes a cultural monument when it is entered in the monument book (Section 12, Paragraph 2, Clause 1). An exception to this rule are objects that are entered in the register of nationally valuable cultural assets in accordance with the Cultural Property Protection Act . With the entry there, they are automatically cultural monuments according to Hessian monument law (Section 12, Paragraph 2, Clause 2).

owner

The Hessian Monument Protection Act is also aimed at the owners , owners and those responsible for maintaining cultural monuments. They are obliged to preserve their cultural monument and treat it with care (Section 13 (1)). However, this only applies within the framework of what is individually reasonable (Section 21, Paragraph 3). If the limit of reasonableness is exceeded, on the one hand the reasonableness can be established by the public sector. This can be done through a grant (Section 13 (2)), the granting of depreciation options for the additional expenditure on monument preservation according to Section 7i Income Tax Act or the assumption of an excavation by the State Office for Monument Preservation Hesse. On the other hand, the public sector can waive the preservation of the cultural monument (Section 18 (3) No. 2). In addition, there is the possibility that the state - against compensation - expropriates a cultural monument (Section 26). In practice, however, this is very rare because of the associated costs.

Polluter pays principle

The polluter pays principle has always applied in Hesse, but had to be derived from other provisions until 2016. After this repeatedly led to discussions, it has now been explicitly written into the legal text (Section 18 (5)).

Procedure

Approval

Procedures in connection with a cultural monument must always (only) be carried out if it is to be changed (Section 18 (1)) or its surroundings (Section 18 (2)). Approval from the responsible monument authority is then required. The law defines that as subject to approval

  • Destruction of a cultural monument; Section 22 contains special responsibility for the destruction of a ground monument by a scientific excavation.
  • Eliminating a cultural monument
  • Moving a cultural monument to another place ( relocation ),
  • Repair of a cultural monument
  • Redesign of a cultural monument (including the installation of advertising systems).

The approval will be granted - if necessary with conditions - if reasons of monument protection do not conflict with the project (Section 18 (3) No. 1), if the owner cannot be expected to refuse it (Section 18 (3) No. 2) or if they are predominantly public Interests demand this (Section 18 Paragraph 3 No. 3). If the competent authority does not decide on a completely submitted application for approval within three months, it is deemed to have been approved (Section 20 (2) sentence 3).

Competent authority

The following authorities are responsible for monument protection and preservation in Hesse:

  • Supreme monument protection authority (Section 4, Paragraph 1), the Hessian Ministry for Science and Art
  • Monument Protection Authorities (§ 4 para. 2), which are in the counties of the county committee , the county-level cities and municipalities belonging to whom the supervision is transferred, the magistrate . There are 37 lower monument protection authorities in Hesse.
    The administrative structure of the Hessian monument administration is - in contrast to the rest of the administrative structure of the state of Hesse - two-stage. The Hessian monument law does not recognize a middle level, an “upper monument protection authority”.
  • The monument authority (§ 5), the State Office for Monument Preservation Hesse . It is outside the administrative process of the upper and lower monument protection authorities, is a specialist authority and is directly subordinate to the Hessian Ministry for Science and Art. In the state office, the competence for monument preservation is bundled. The State Office for the Preservation of Monuments in Hesse advises the monument protection authorities on historical issues, supports owners in the maintenance, investigation and restoration of their cultural monuments, inventories the cultural monuments in Hesse, keeps the monument book and researches the cultural monuments as a contribution to the state's history (Section 5, Paragraph 2). In the corresponding procedures - for example in the case of planning approval procedures or procedures under the Federal Immission Control Act - it is the “ public concern ” in matters of monument protection (Section 5 (2) No. 2).

As a rule, the lower monument protection authority is responsible for permits under monument law (Section 8 (1)). Exceptions apply, for example, to the research permit under monument law issued by the monument authority (Section 22). The lower monument protection authority decides in agreement with the monument protection authority (§ 20 para. 5). For measures that change cultural monuments only to a small extent, the monument authority and the lower monument protection authority can make an administrative agreement on a flat-rate participation procedure. This is possible if the lower monument protection authority is adequately equipped with qualified personnel (Section 20, Paragraph 8). If there is no agreement between the lower monument protection authority and the monument protection authority, the highest monument protection authority decides (Section 20, Paragraph 5). In the case of state-owned cultural monuments, special procedural rules and responsibilities sometimes apply (Section 8 (2)).

Immediate action

If the person responsible for maintaining a cultural monument does not fulfill his obligation and the cultural monument is endangered as a result, he can be obliged to carry out the necessary conservation measures (Section 14 (1)). If he does not comply and the condition of a cultural monument requires immediate conservation measures, monument protection authorities can take all measures that are suitable to avert the immediate danger to the existence of the cultural monument. Owners, owners and other persons responsible for maintenance can be called upon to reimburse the costs incurred within the framework of what is reasonable (Section 14 (2)).

Social Commitment

Both the highest and most of the lower monument protection authorities have set up advisory, independent, expert bodies. At the state level this is called the State Monument Council (§ 6), at the lower monument protection authorities the Monument Advisory Council (§ 7 Paragraph 1). In addition, volunteers are provided for the preservation of monuments (Section 7, Paragraph 2), who should support the monument protection authorities in the preservation of monuments.

In the amendment to the law in 2016, it was also clarified that and to what extent the list of monuments can be viewed and that such information can also be made available via the Internet (Section 10 (2), Section 11).

literature

  • Gabriele Dolff-Bonekämper : The discovery of the Middle Ages = Historical Commission for Hesse (Hg.): Studies on the history of the registration of monuments and the protection of monuments in Hesse-Kassel and Kurhessen in the 18th and 19th centuries = Diss., Marburg 1984. Darmstadt, Marburg 1985. ISBN 3-88443-149-8
  • Hans Feldtkeller : From the history of monument preservation in Hesse . In: Hessian homeland: magazine for art, culture and monument preservation = organ of the society for culture and monument preservation / Hessischer Heimatbund eV in Marburg 25, No. 1 (special issue monument preservation in Hessen). 1975, pp. 18-23. ISSN  0178-3173
  • Ernst-Rainer Hönes : On the Hessian Monument Protection Act of July 16, 1902 . In: State Office for the Preservation of Monuments in Hesse (ed.): 100 years of the Hessian Monument Protection Act in Hesse. History - meaning - effect = workbooks of the State Office for Monument Preservation Hessen 5. Stuttgart 2003, pp. 48–60.
  • State Office for Monument Preservation Hessen (Ed.): 100 years of the Hessian Monument Protection Act in Hesse. History - meaning - effect = workbooks of the State Office for Monument Preservation Hesse 5. Stuttgart 2003.
  • Gottfried Kiesow : Organization and working method of the state preservation of monuments in Hessen . In: Hessian homeland: magazine for art, culture and monument preservation = organ of the society for culture and monument preservation / Hessischer Heimatbund eV in Marburg 25, No. 1 (special issue monument preservation in Hessen). 1975, pp. 23-25. ISSN  0178-3173
  • Michael Kummer: The Hessian monument protection laws 1974 and 1986. Requirements and effects . In: Monument Protection Information 4/2002. P. 84ff. No. 279
  • Angelika Nold, Gerhard Seib: Comments on the Hessen-Kasselischen Monument Protection Ordinance of December 22, 1780 . In: Hessian homeland . Journal for Art, Culture and Monument Preservation = organ of the Society for Culture and Monument Preservation / Hessischer Heimatbund eV in Marburg 25, No. 1 (special issue Monument Preservation in Hessen) 1975. pp. 3–6. ISSN  0178-3173
  • Karl-Reinhard Seehausen : Monument protection in Hessen . 2nd Edition. Wiesbaden 1997. ISBN 3-86115-794-2
  • Jutta Schuchard: Monument protection and preservation in Hessen in the 19th century. A historical outline . In: Hessian homeland: magazine for art, culture and monument preservation = organ of the society for culture and monument preservation / Hessischer Heimatbund eV in Marburg 25, No. 1 (special issue monument preservation in Hessen). 1975, pp. 9-17. ISSN  0178-3173
  • Winfried Speitkamp: Origin and significance of the Monument Protection Act for the Grand Duchy of Hesse from 1902 . In: 100 Years of the Monument Protection Act in Hesse. History - meaning - effect. Stuttgart 2003. ISBN 3-8062-1855-2
  • Jan Nikolaus Viebrock and Dimitrij Davydov: Hessian monument protection law = municipal writings for Hesse. 4th edition. W. Kohlhammer Verlag, Stuttgart 2007. ISBN 978-3-555-01906-2

Remarks

  1. Monument law in the Federal Republic of Germany falls under the legislative competence of the federal states ( cultural sovereignty of the states ), so that in Germany there is a separate, total of 16 monument protection laws in Germany for each federal state.
  2. ^ Until 1918: Grand Duchy of Hesse , then: People's State of Hesse .
  3. Previously, something had to “ come from epochs and cultures for which excavations and finds are one of the main sources of scientific knowledge ” (Section 19 (1), old version). After that it was always questionable whether late medieval and modern finds and sites were even recorded.
  4. The following world heritage sites are located on Hessian territory (in whole or in part):
    * Lorsch Abbey
    * Messel Pit
    * Upper Middle Rhine Valley
    * Upper Germanic-Raetian Limes
    * Bergpark Wilhelmshöhe
  5. According to the previous legal situation, the Monument Protection Act, which is the legal basis for the permanent preservation of cultural monuments, had to be extended every few years and was therefore not itself a permanent legal basis.
  6. In the laws of other federal states, there is sometimes a different terminology without meaning anything else, such as "ensemble", "monument area", "monument zone", "area monument".
  7. In contrast to this is the constitutive principle . Then one thing is declared a cultural monument by administrative act .
  8. This is an outflow of constitutionally guaranteed property according to Art. 14 GG .
  9. The authority can extend the deadline by three months for an important reason (ibid.).

Individual evidence

  1. GVBl. of the State of Hesse from December 5, 2016, p. 211.
  2. Hess. RegBl p. 275.
  3. ^ Of September 23, 1974, GVBl. I p. 450.
  4. ^ From September 5, 1986 GVBl. I p. 269; last amended by Art. 1 Amendment Act of 10 June 2011, GVBl. I p. 291.