TY - GEN

T1 - Sachlichkeitsgebot und archäologische Denkmalpflege

AU - Karl, Raimund

PY - 2018/5/30

Y1 - 2018/5/30

N2 - One of the most important principles underlying Austrian legislature, public administration and judicature is that of the imperative of objectivity, which the Austrian Supreme Constitutional Court derives from the general principle of equality before the law (Art. 7 B-VG and Art. 2 StGG; also Art. 1 UDHR). The principle of equality, in very simple terms, requires the state and any of its agents to always treat objectively equal matters equally and objectively different matters differently.From this, it follows that all state action must be based on reasonable grounds, derived from the nature of the matter at hand or other sensible reasons: after all, only such - transparent - reasons allow to determine, which matters are objectively equal and thus have to be treated equally, and which matters are objectively different and thus must be treated differently. State action which is not justified by such transparent reasons is arbitrary and thus illegal vecause of the prohibition of unjustified discrimination, which also derives from the principle of equality before the law. These principles also apply to the public administration of archaeological heritage: all decisions of state heritage agencies must be based on rational grounds. Yet, as is demonstrated in this paper, at least in some cases, heritage agencies willingly disregard these fundamental constitutional principles and wilfully act arbitrarily, thus intentionally violating the rights of others, especially professional archaeologists and archaeology-interested members of the public.

AB - One of the most important principles underlying Austrian legislature, public administration and judicature is that of the imperative of objectivity, which the Austrian Supreme Constitutional Court derives from the general principle of equality before the law (Art. 7 B-VG and Art. 2 StGG; also Art. 1 UDHR). The principle of equality, in very simple terms, requires the state and any of its agents to always treat objectively equal matters equally and objectively different matters differently.From this, it follows that all state action must be based on reasonable grounds, derived from the nature of the matter at hand or other sensible reasons: after all, only such - transparent - reasons allow to determine, which matters are objectively equal and thus have to be treated equally, and which matters are objectively different and thus must be treated differently. State action which is not justified by such transparent reasons is arbitrary and thus illegal vecause of the prohibition of unjustified discrimination, which also derives from the principle of equality before the law. These principles also apply to the public administration of archaeological heritage: all decisions of state heritage agencies must be based on rational grounds. Yet, as is demonstrated in this paper, at least in some cases, heritage agencies willingly disregard these fundamental constitutional principles and wilfully act arbitrarily, thus intentionally violating the rights of others, especially professional archaeologists and archaeology-interested members of the public.

KW - ARCHAEOLOGY

KW - Heritage

KW - Heritage law

KW - Heritage management

KW - LAW

U2 - 10.13140/RG.2.2.28295.09128

DO - 10.13140/RG.2.2.28295.09128

M3 - Cyfraniad Arall

VL - 1

T3 - Archäologische Denkmalpflege

ER -