Term and definition of exhumation
An exhumation refers to the removal of a corpse or mortal remains from a properly sealed grave. The term derives from the Latin “exhumare” (to lift from the earth). Exhumations may take place for criminal, civil, or administrative reasons and are subject to strict legal regulations in Germany and many other legal systems. They constitute a significant encroachment on post-mortem personality rights and the peace of the dead.
Legal basis of exhumation in Germany
Funeral laws of the German federal states
The legal provisions for exhumation in Germany are primarily regulated in the funeral laws of the federal states . These laws define, among other things, the requirements, responsibilities, and procedures necessary for exhumations. While burial law generally falls within the responsibility of the federal states, there are differences in the requirements for the implementation and approval of an exhumation depending on state law.
Peace of the dead and post-mortem personality rights
Die Peace of the dead is recognized in Germany as a special legal interest and is considered both from constitutional perspectives (protection of human dignity under Art. 1 para. 1 German Basic Law) and from retrospective rights of the deceased and their relatives. Any removal of a body from its resting place – including every exhumation – infringes upon this special protection. Therefore, a legally justified reason and an official permit are required.
Criminal law aspects
The German Criminal Code also contains protection mechanisms for the deceased. The key provision is Section 168 of the Criminal Code (disturbance of the peace of the dead), which makes unauthorized excavation or opening of graves a punishable offense. Exhumation without prior official permission is generally regarded as a criminal offense.
Requirements and procedure for exhumation
Permissible reasons for an exhumation
An exhumation can be ordered or requested for various reasons, in particular:
- Criminal investigation and securing of evidence: Investigating authorities may order an exhumation for the purpose of conducting or supplementing forensic investigations, for example, to clarify unexplained causes of death.
- Civil interests: Relatives may request an exhumation, for instance, for reburial within the context of family reunification or international repatriation.
- Existence of hazards: In rare cases, an exhumation may be required to avert health risks, for example during cemetery remediation.
Approval procedures and responsibilities
For the execution of an exhumation, a governmental permit is required, and the procedure is specified by the respective state funeral law. As a rule, the local public order offices or the public health office are responsible. Permits are only granted for compelling reasons and upon consideration of the legitimate interests of the bereaved and the deceased.
Application procedure
The application for an exhumation must be submitted to the responsible authority and must include a justification and evidence of the legitimate interest. Often, the explicit consent of the closest relatives or other authorized persons is also required.
Medical supervision
The legal situation generally requires that exhumations be carried out under the supervision of a physician, in particular to identify the body and to check for any epidemiological risks.
Protection periods and rest times
As a rule, cemeteries are subject to a legally prescribed minimum rest period (typically between 10 and 30 years, depending on the federal state), which must generally be observed even in the case of an exhumation. An exhumation prior to the end of this rest period requires a particularly compelling reason and is only granted as an exception.
Rights and obligations of the relatives
Relatives generally have a say in the exhumation of a deceased person. Their assertion of the protection of dignity and the safeguarding of post-mortem personality rights are taken into account in the approval process. At the same time, they are obliged to comply with the legal requirements and are usually responsible for the costs of the exhumation if they are the applicants.
International aspects: Exhumation in the case of repatriation
If mortal remains are transferred abroad or from abroad into Germany, not only national regulations but also various international agreements apply. For example, the “Agreement on the Transport of Corpses” and the Vienna Convention regulate cross-border requirements and documentation obligations.
Exhumation for scientific and historical purposes
Exhumations are also permitted for research projects, archaeological excavations, or historical investigations. In these cases, additional permits and, in particular, proof of overriding public interest are required. The procedure is closely linked to monument protection laws and other special regulations.
Legal consequences of unlawful exhumation
An exhumation conducted without official authorization is unlawful and may result in criminal as well as regulatory consequences. In addition to criminal sanctions, the relatives may also have civil law claims for injunctive relief, compensation, and damages for pain and suffering.
Summary
Exhumation is a highly regulated procedure that involves numerous legal, ethical, and administrative aspects. It is permissible only for important reasons and when the legally prescribed procedures are followed. The focus is on the protection of the peace of the dead, post-mortem personality rights, and the legitimate interests of the parties involved. The exhumation regulations serve to ensure careful balancing between public interests and the protection of the deceased.
Frequently asked questions
Who is entitled to request an exhumation?
The entitlement to request an exhumation is clearly defined by law. Usually, these are the closest relatives of the deceased, such as spouse, children, parents, or siblings. If the next entitled person is deceased or cannot be found, this right may pass to other family members. In certain cases, authorities such as courts, public prosecutors, or health authorities may also be entitled to request or order an exhumation, for example, to clarify unexplained circumstances of death or for epidemiological reasons. In principle, a written application with a detailed justification is required for submission. Depending on the federal state and local responsibility, different authorities—often the local public order or health office—are responsible for processing the application.
What legal requirements must be met for an exhumation?
Strict legal requirements apply to exhumation procedures. The relevant provisions are in particular the applicable funeral laws of the federal states, the Infection Protection Act, and cemetery and burial regulations. The applicant must prove a legitimate interest, such as family, inheritance, or criminal law reasons. In cases where an exhumation is ordered by a regulatory authority, such as in the context of a criminal investigation, this requirement does not apply. A central criterion is always the existence of an important reason as well as the absence of overriding opposing public or private interests (e.g., peace of the dead, personality rights of relatives). In addition, a medical or judicial report must be attached if the exhumation serves to determine the cause of death.
What official permits are required?
Every exhumation requires an official permit, which is usually issued by the authority responsible for the cemetery (generally the public order or health office). In criminal matters, the judicial or prosecutorial order replaces this permit. The procedure for issuing the permit is regulated in the funeral laws and ordinances of the federal states. In general, precise information about the grave site, proof of identity of the deceased, and a detailed explanation are required. In some cases, consents from additional relatives must be obtained and hygiene requirements met, especially for infectious corpses.
Which deadlines and waiting periods must be observed?
German burial law provides for different periods of rest that must be observed. These vary between 10 and 30 years depending on the federal state and type of grave (coffin or urn burial). Within this period, exhumation is only permitted under particularly strict legal requirements, such as a criminal law order. After the expiry of the rest period, exhumation for reburial or at the request of relatives is generally easier, but still requires official approval. There are also often waiting periods after burial (usually several days), which prohibit immediate exhumation for epidemiological reasons.
Who bears the costs of an exhumation?
The costs for an exhumation must be borne by the person who initiates or requests the exhumation. Only in the case of exhumations ordered by authorities in the public interest (e.g., prosecutorial investigations) are the costs assumed by the ordering authority, although in exceptional cases they can be reclaimed. The amount of the costs depends on the fee schedule of the local municipality, the effort involved in the exhumation (e.g., type of grave opening, measures to ensure hygiene), and any additional official or medical examinations that may be required.
What legal consequences can result from an unlawful exhumation?
An exhumation without the necessary permits constitutes a regulatory offense or even a criminal offense under sections 168, 196 of the Criminal Code (StGB). This includes the disturbance of the peace of the dead or unauthorized opening of a grave. In addition to criminal consequences (imprisonment or fines), the opening of the grave may also lead to civil law claims by the relatives, such as claims for compensation or injunctions. Further, such conduct can have disciplinary consequences for officials and other persons involved.
What role does data protection play in an exhumation?
Data protection regulations must also be observed in exhumations, especially regarding personal data of the deceased and relatives. Processing such data is only permitted if required to fulfill legal obligations and if all requirements of the General Data Protection Regulation (GDPR) as well as specific laws governing the protection of graves and deceased persons are observed. Access to records and information regarding the procedure may only be granted to authorized individuals and authorities; publishing personal details always requires a separate legal basis.
What legal requirements apply to the handling of exhumed mortal remains?
The subsequent handling of mortal remains after an exhumation is also regulated by law. Reburial must occur promptly and in a dignified manner, with cemetery operators required to comply with hygiene, dignity, and legal requirements. Transfer to another burial site is also subject to existing burial regulations. In cases of forensic investigation, the public prosecutor or the court decides on further actions concerning storage, release for burial, or return to the relatives.
