Corpse, unauthorized removal or burial of – Legal situation in Germany
Definition and legal background
The unauthorized removal or burial of a corpse is an offense regulated under both criminal and civil law in Germany. The provisions relate to the protection of the peace of the dead, the feelings of piety of the bereaved, and public order. Under German law, a corpse is defined as the body of a deceased person, regardless of gender, religion, nationality, or social status. Legal protection of the corpse begins as soon as death occurs.
Criminal law aspects
§§ 168, 168a StGB – Disturbance of the peace of the dead
The Criminal Code (StGB) regulates the “disturbance of the peace of the dead” in § 168. Accordingly, anyone who, without authorization:
- removes a corpse, parts of a corpse, or the ashes of a deceased person,
- destroys or damages them,
- prevents or disrupts a burial,
- removes or abuses a buried corpse or urn from a grave.
The offense primarily protects the decency towards the deceased, and secondarily also the memory of the bereaved. Even the attempt is punishable. The penalty ranges up to three years imprisonment or a fine. In cases involving commercial dealing in body parts, more severe penalties are possible.
Broader criminal offenses
Additionally, further criminal offenses can be committed, for example theft (§ 242 StGB) or trespass (§ 123 StGB), if gravesites are entered.
Definition of the “unauthorized” act
The characteristic “unauthorized” exists whenever the perpetrator has neither actual nor legal authorization for their conduct. Authorized persons can in particular be persons with funeral duties, authorized representatives, or authorities.
Civil law aspects
Protection of personality and post-mortem personal rights
In civil law, the so-called post-mortem protection of personality of a deceased person exists. This protection also extends to the body after death and is exercised by the closest relatives
Frequently asked questions
What are the legal consequences of the unauthorized removal of a corpse?
The unauthorized removal of a corpse is a criminal offense under § 168 of the German Criminal Code (StGB). This statute protects the decency owed to a corpse and stipulates that only persons entitled to do so, such as close relatives or certain authorities, may make decisions regarding or inter the corpse. Anyone who, without authorization, removes a corpse or withholds it from another person is liable to prosecution. Penalties range from fines up to imprisonment for three years. Additionally, if further offenses such as theft (e.g., grave goods) or disturbance of the peace of the dead are committed during the removal, those criminal statutes will also apply.
Who is permitted to bury a corpse and what requirements must be met?
The right and duty of burial (funeral care) generally belong to the next of kin of the deceased, such as the spouse, children, or parents. If no agreement is reached or no relatives are present, the public order office or the competent authority assumes responsibility. Prerequisites for a lawful burial include a civil death certificate and a medical examination of the body. Burials may only take place in approved cemeteries, with exceptions possible under strict conditions (e.g., burial at sea). Disregarding these requirements, such as a secret burial on private property, is punishable and constitutes either an administrative offense or a criminal offense.
How is the peace of the dead legally protected?
The peace of the dead is protected both by criminal law and public order law in Germany. § 168 StGB makes the disturbance of the peace of the dead a criminal offense, covering not only the opening of graves and the removal of body parts or ashes, but also the unauthorized handling of corpses in general. State burial laws regulate cemetery rules and funeral obligations. Those who violate these protective provisions face severe penalties. In addition, in cases of gross violation of the decency and dignity of the deceased, relatives may have a claim for damages for pain and suffering.
Are there exceptional cases in which a corpse may be removed without the consent of the relatives?
Yes, there are exceptional cases in which authorities may order the removal, seizure, or examination of a corpse without the consent of the relatives. This occurs, for example, in the context of criminal investigations (autopsy in death investigations, seizure of evidence) or for public safety reasons (infection control law). The Medical Devices Act may also, in certain cases, permit examinations if harmful effects are suspected. The legal bases for this are set out both in the Code of Criminal Procedure and in special regulations of the federal states.
What rights do relatives have concerning the decisions about burial?
Relatives generally have the right to funeral care, which entitles them to decide on the manner, place, and process of the burial. However, they must take into account the last will of the deceased, as may be set out in a will or funeral disposition. If disagreements arise among relatives, a court can ultimately be called upon to make a decision in the individual case. Authorities intervene only if there are no entitled relatives or if the organization of the burial must be ensured.
When does a person become guilty of unauthorized removal or burial of a corpse?
A person commits a criminal offense if they, not being entitled, remove a corpse from the custody of the authorized individual or institution without the consent of those entitled to funeral care. Likewise, conducting a burial without official permission or on unauthorized land constitutes a criminal offense. Liability also arises if the person negligently fails to verify or ignores the circumstances. Additionally, participation in such acts—as a co-offender or accomplice—is also logically punishable.
What other criminal and civil consequences may result from unauthorized removal?
In addition to the criminal consequences under § 168 StGB and possibly other relevant offenses (such as theft, property damage), civil claims by the relatives may also arise. These may include, for example, claims for damages or compensation for pain and suffering due to the violation of general personal rights (post-mortem protection of decency) of the deceased or the rights of relatives. Furthermore, regulatory measures by the competent authorities (such as fines or orders to restore the lawful situation) may be imposed.
