Concept and Definition of Disturbance of the Peace of the Dead
Die Disturbance of the Peace of the Dead is a criminal offense under German criminal law that protects the feeling of reverence in connection with the deceased and their resting places. This refers to unlawful interventions and actions involving a corpse, parts thereof, or a grave site, which impair the dignity of the deceased and the sentiments of their relatives. The relevant criminal provision is found in Section 168 of the German Criminal Code (StGB).
Historical Development and Protected Interest
The criminal sanctioning of the disturbance of the peace of the dead has a long tradition. Even in Roman law and the Middle Ages, the reverence and respect towards the deceased were given special protection. In German criminal law today, the provision primarily serves the post-mortem protection of the personal rights of the deceased and the protection of reverent commemoration by the bereaved as well as by society as a whole.
Regulation in the Criminal Code
Essential Elements under Section 168 StGB
According to Section 168 StGB, the following acts are punishable:
- removes, destroys, damages, or disfigures a corpse or parts of a corpse without authorization,
- removes, destroys, or damages human ashes without authorization,
- destroys or damages a resting place (e.g., grave, urn niche, mausoleum) without authorization,
- desecrates a resting place without authorization or unlawfully removes obstacles to the peace of the dead.
Protected Legal Interest
The law primarily protects reverence and moral sentiment relating to the peace of the dead. The human dignity guaranteed in Article 1(1) of the Basic Law applies beyond death and forms the basis for the criminal protection of mortal remains and resting places.
Perpetrators and Potential Victims
Any natural person can be a perpetrator; therefore, the offense is a general criminal offense. There is no ‘victim’ in the classic sense, since the act is directed against the post-mortem personal rights, which continue beyond death.
Forms of Conduct and Typical Scenarios
Unauthorized Removal, Destruction or Damage to a Corpse (Section 168(1) StGB)
This includes, for example, removing a corpse from the grave, mutilation, desecration of a corpse, or an autopsy not justified in an individual case. Opening coffins or urns for theft also falls under this offense.
Destruction or Damage to the Resting Place
This includes the deliberate toppling or damaging of gravestones, devastation of the grave mound, or the theft and destruction of grave decorations.
Desecration
Desecration refers to acts capable of violating moral sensibilities through particular disrespect, for example, defiling or smearing graves with insulting or humiliating inscriptions or symbols.
Removal of Obstacles
The removal of protective devices from graves, making the site more vulnerable to attack, is also punishable under Section 168 StGB.
Criminal Liability and Legal Consequences
Range of Penalties
Disturbance of the peace of the dead is punishable by imprisonment for up to three years or by a fine. In particularly serious cases, such as those involving commercial intent or motivation by hatred, the courts may impose harsher penalties.
Attempt and Aiding and Abetting
According to Section 168(3) StGB, attempt is punishable. Aiding and abetting, as well as incitement to offenses relating to disturbance of the peace of the dead, are also punishable in accordance with the general principles of the StGB.
Additional Legal Consequences
In addition to criminal prosecution, the affected person or their relatives may assert civil law claims, such as for injunctive relief, damages, or compensation for pain and suffering. Furthermore, administrative measures, such as bans on entering cemeteries, may be considered.
Distinctions and Case Law
Distinction from Criminal Damage (Section 303 StGB)
Disturbance of the peace of the dead is an independent criminal offense and is often superseded by other offenses such as criminal damage when both are committed simultaneously. The specific protection of reverence justifies the distinction.
Permissible Actions
Actions carried out with the consent of authorized persons (e.g., exhumation under a judicial order or as a result of cemetery management purposes) are not punishable. The prerequisite is always the existence of the relevant authority.
Significance in Case Law
When evaluating the offense, courts regularly apply strict standards, particularly with regard to the criterion of authorization and in assessing motives and the degree of intervention. In cases of doubt, the particular circumstances and sensitivities of society are decisive.
International References
Disturbance of the Peace of the Dead in Other Legal Systems
Other Central European countries also have criminal law protection for the peace of the dead, such as Austria (Section 190 StGB) and Switzerland (Art. 262 StGB). The individual elements of the offense and ranges of penalties are similar, although the specific requirements and scope of protection may vary in detail.
Summary
Disturbance of the peace of the dead represents an important criminal offense protecting human dignity and the societal sense of reverence. Criminal law regards respectful treatment of the deceased and the inviolability of resting places as significant legal interests. Anyone who unlawfully impairs, damages or desecrates a corpse, its remains, or a grave site is punishable under Section 168 StGB and may face severe criminal and civil consequences. The exact interpretation depends on the circumstances of the individual case and is specified through extensive case law.
Frequently Asked Questions
Which criminal offenses are applicable to a disturbance of the peace of the dead?
Under German law, disturbance of the peace of the dead is set out particularly in Section 168 of the German Criminal Code (StGB). This offense protects the dignity of the deceased and the inner peace of the dead after death. It is a criminal offense to unlawfully remove, destroy, damage, or otherwise disfigure a body, parts thereof, or the ashes of a deceased person. The unlawful opening of graves or the disturbance of burial sites is also punishable. In addition to Section 168 StGB, other criminal offenses may apply in specific cases, such as unlawful entry (Section 123 StGB), criminal damage (Section 303 StGB), or, in the case of unauthorized autopsies, other relevant criminal provisions under state burial law.
When is an act involving a corpse considered unauthorized under Section 168 StGB?
An act is unauthorized when it is not justified by law or official order. This includes, for example, exhumations without approval, grave robberies, or taking parts of corpses without the consent of authorized persons or without medical, scientific, or legal necessity. Actions by persons who are legally authorized to manage the dead—such as funeral directors, forensic pathologists in the course of their work, or relatives during a reburial with proper authorization—are generally permitted. Unauthorized thus always means the absence of specific permission or justification for the particular action.
What penalties may be imposed upon conviction for disturbance of the peace of the dead?
According to Section 168 StGB, disturbance of the peace of the dead is punishable by imprisonment of up to three years or a fine. The specific penalty depends on the seriousness of the act, intent or negligence, as well as the circumstances of the individual case. In severe or particularly heinous cases—such as those involving additional humiliation or mutilation—the penalty may be at the upper end of the legal scale. If further criminal offenses are committed at the same time, a combined sentence may be imposed.
Who is entitled to file a complaint or pursue prosecution?
As a rule, disturbance of the peace of the dead is an official offense. This means that law enforcement authorities (police and public prosecutor’s office) must act as soon as they become aware of a suspected offense. Any person who becomes aware of a possible disturbance of the peace of the dead may file a criminal complaint, regardless of whether they are personally affected or only a witness.
To what extent are acts involving ashes or urns also covered by the criminal provision?
Section 168 StGB explicitly also covers the ashes of the deceased as well as urns, provided these contain mortal remains. Unauthorized opening, removal, or destruction of the ashes or damaging, desecrating, or stealing the urn is therefore punishable. Scattering ashes without authorization may also fall under this, as well as the theft of an urn from a grave site.
Are there limitation periods for prosecution of disturbance of the peace of the dead?
Disturbance of the peace of the dead is subject to a statute of limitations under German law. The regular limitation period is five years in accordance with Section 78 StGB, since the maximum penalty is three years imprisonment. This means an offense can no longer be prosecuted after five years unless the limitation has been interrupted or suspended.
What civil claims may arise from a disturbance of the peace of the dead?
In addition to criminal consequences, a disturbance of the peace of the dead may also give rise to civil law claims. Entitled relatives or persons authorized to care for the dead may assert claims for injunctive relief or, if applicable, damages in the event of damage or theft of the corpse or grave site, particularly based on personal rights or tortious liability (Sections 823 et seq. of the German Civil Code). There may also be a claim for restoration of the grave site and, where applicable, compensation for pain and suffering due to infringement of personal rights, depending on the circumstances.
