Exhumation of corpses in the legal context
The exhumation of corpses, also known as disinterment, is a legally relevant process that involves opening a grave and removing a body or body part from a burial site. This action is subject to strict legal regulations in Germany, which cover both criminal and administrative law aspects. The following provides a detailed explanation of the legal aspects.
Legal foundations
Criminal law provisions
Unauthorized exhumation of corpses is punishable under Section 168 of the German Criminal Code (StGB). The law distinguishes between various forms of disturbing the peace of the dead:
- Section 168 (1) StGB: Anyone who unlawfully removes, keeps, or transports a corpse, parts of a corpse, or the ashes of a deceased person to another location is liable to prosecution.
- Section 168 (2) StGB: The same applies to unauthorized opening of graves or urns.
Penalties range up to three years’ imprisonment or a monetary fine. The legislature considers the peace of the dead a protected legal asset and punishes any significant interference with corpses unless official authorization or another legal justification exists.
Administrative and regulatory provisions
In addition to criminal law, detailed burial regulations exist, governed by the burial laws of the individual federal states. The most important regulatory contents include:
- Requirements for exhumation (disinterment): Exhumation may generally only occur if there is a legitimate interest (e.g., transfer, reburial, scientific investigation).
- Approval procedure: Express permission from the locally responsible authority (usually the regulatory office or public health office) is required for exhumation. Both the wishes of the next of kin and public interests and infection protection regulations must be considered.
- Notification requirements: In many cases, in addition to the burial authority, public health offices and if necessary, police authorities must also be notified.
Permissibility and requirements of exhumation
Statutory permission and official authorization
Exhumation is generally only permitted if the formal requirements are met:
- Application submission: In most cases, a written application stating the reason for exhumation must be submitted.
- Official approval: The responsible authority checks whether the request is legally and factually justified. The decision takes into account the personality rights of the deceased as well as the interest in respect and dignity of the bereaved.
- Compliance with infection protection: Especially with exhumations that take place shortly after burial, the risk of infection must be assessed. In such cases, the authority may impose additional hygiene and precautionary requirements.
Reasons for permissible exhumation
Permitted reasons include in particular:
- Reburial at the request of relatives or to conduct another burial
- Transfer to another location
- Order by a court in the context of criminal or civil investigations (e.g., autopsy)
- Scientific or archaeological investigations, provided appropriate permission is granted
Protection of the peace of the dead
Significance of the protected legal interest of the peace of the dead
The peace of the dead is a particularly protected interest in Germany. It includes the protection of the corpse from disturbance and degradation. Therefore, any exhumation and further actions relating to the corpse, body parts, or the ashes are only allowed within the strict limits of the law.
Sanctions for violations
Violations of the provisions on exhumation of corpses are prosecuted under both criminal and regulatory law:
- Criminal consequences: In addition to imprisonment or a fine, a professional ban may be imposed on individuals authorized to conduct burials.
- Regulatory measures: Unauthorized exhumation may also be punished as a regulatory offense, especially if there is no imminent danger and formal requirements were ignored.
Special cases
Court-ordered exhumation
In criminal proceedings, prosecutors and courts can order exhumation when it is necessary to clarify the circumstances of death (Section 87 StPO in conjunction with Section 159 StPO). The measure is permissible even against the will of relatives if the public interest, especially the interest in criminal prosecution, prevails.
Archaeological exhumations
For archaeological work, special statutory provisions of state monument protection law apply. Archaeological excavations and the exhumation of human remains are also subject to official authorization and the protective regulations of burial law.
Summary
The exhumation of corpses is comprehensively regulated by law in Germany and always requires official authorization. It is an administratively and criminally sensitive process in which the peace of the dead and both public and private interests must be carefully weighed. Violations of statutory regulations may result in severe legal sanctions.
Further regulations and literature
- Section 168 StGB – Disturbance of the peace of the dead
- Burial laws of the individual federal states
- Regulatory provisions on cemetery management
- Section 87 StPO – Post-mortem examination and autopsy
- State monument protection laws
This article provides a comprehensive overview of the legal aspects of exhumation of corpses and serves as a reference for anyone concerned with burial, cemetery, or criminal law matters.
Frequently Asked Questions
Is exhumation of corpses generally allowed in Germany?
In Germany, exhumation of corpses is generally prohibited and is subject to strict statutory regulations. Key here are the burial laws of the individual federal states as well as the Criminal Code (StGB). Unauthorized exhumation or disturbance of bodies is prosecuted under Section 168 StGB (‘Disturbance of the peace of the dead’) and may be punished by imprisonment of up to three years or a monetary fine. Exceptions exist only within a narrow legal framework, such as when exhumation is ordered by authorities for scientific, health, or criminal reasons. Extensive authorizations and the presence of a particular public interest are strictly required. Private interests or curiosity never justify the exhumation of a corpse.
What legal requirements must be met for an exhumation?
For an exhumation, i.e., the removal of a corpse from a grave, numerous requirements must be met. First, official permission is required, usually granted by the relevant health department or regulatory authority after reviewing the individual case. Such authorization is generally granted if compelling reasons exist, for example, a court-ordered autopsy in the context of criminal investigations or medical-scientific research. In addition, the consent of the next of kin is required unless there is an official order. Hygienic and health requirements must also be observed in order to prevent risks to public safety. The specific procedures and requirements are regulated in detail by the burial laws of the respective federal states.
What penalties apply for unauthorized exhumation?
Anyone who exhumes a corpse without the required official authorization is liable to prosecution in Germany for disturbing the peace of the dead (Section 168 StGB). The law provides for up to three years’ imprisonment or a monetary fine for this offense. In particularly severe cases, for example where the offender acts commercially or for base motives, the sanctions may be correspondingly harsher. In addition to criminal sanctions, administrative fines, claims for damages by relatives, as well as civil law claims for injunction and removal may also apply. Furthermore, social and professional reputation can be significantly damaged.
Are there exceptions to the prohibition of exhumation for scientific purposes?
Exhumation of corpses for scientific purposes is permitted in exceptional cases, provided that the public or scientific interest in the investigation in the individual case is particularly significant. However, comprehensive official approval is always required for this, usually involving ethics commissions and the consent of the next of kin. Historical exhumations, archaeological digs, or the recovery of remains to identify missing persons are practical examples. The procedure must respect human dignity and decency, which is why particularly strict silent and hygienic regulations must be followed.
What role do relatives play in granting permission for exhumation?
Relatives have a legal right to participate, unless there is an official order against their will. Their consent is usually required for exhumations not strictly ordered by authorities. The so-called right of care for the deceased grants close relatives significant influence over the corpse and its treatment after death. Authorities must carefully weigh and consider the wishes and concerns of relatives, especially in view of the constitutionally protected rights to personality and the respect for the peace of the dead. Only in cases of compelling public interest can these rights be restricted.
How is the practical execution of an officially approved exhumation carried out?
The execution of an authorized exhumation is always carried out under the strictest safety, hygiene, and decency standards. Responsibility generally lies with a specialized funeral service, acting in the presence of authority representatives, doctors, or forensic specialists. The procedure is planned and documented in detail in advance to ensure proper identification and any further examination. After completion, the burial site is usually restored or a reburial takes place. A protocol is drawn up for all measures, which must be submitted to the authority.
Can legal remedies be sought against the denial of exhumation?
If a requested exhumation is denied by the authorities, legal recourse through administrative law is generally available. Applicants may lodge an objection and, if necessary, file a lawsuit before the administrative court. The proceedings will examine whether the refusal was lawful and, in particular, whether the interests of the applicant have been appropriately considered. Depending on the circumstances, the court may order the authority to grant permission or deny the request. Even in negative decisions, the overriding protection of the peace of the dead must always be taken into consideration.
