Unauthorized removal of a corpse – Legal classification and significance
The unauthorized removal of a corpse is a criminally relevant act in Germany, touching on numerous legal, moral, and societal issues. This article provides a comprehensive explanation of the legal foundations, elements of the offense, legal consequences, as well as the distinctions from related offenses and examines civil law and ethical aspects.
Legal framework and criminal liability
Criminal Code § 168 StGB
The relevant criminal law provision in connection with the unauthorized removal of a corpse is § 168 of the Criminal Code (StGB) under the heading “Disturbance of the peace of the dead.” According to this paragraph, anyone who unlawfully “removes a corpse, removes parts of a corpse, or steals, damages, destroys, or unlawfully uses body parts or funeral emblems” is liable to prosecution.
Protective scope of the regulation
The provision protects pietas and the peace of the dead as high-ranking legal interests. In addition to protecting the corpse itself, § 168 StGB particularly serves to protect the feelings of relatives as well as public order and respect for the deceased.
Factual elements of the offense
Protected object: What is a corpse?
A corpse is the body of a deceased human being, regardless of whether death occurred due to illness, accident, or another event. The criminal law definition differs from the purely medical one, in which a body is considered a corpse only after brain death has occurred. Legally, from the moment of death, all actions on or with the body are protected by rules of decorum.
“Unauthorized” as a central feature
A prerequisite for criminal liability is that the removal occurs without legal authorization. Authorizations may arise from statutory provisions, official permissions, or the will of the deceased or authorized relatives, for example in the context of medical-scientific investigations or proper burials.
The act of “removal”
Removal is understood to mean the physical removal of the corpse from its place of rest or intended site contrary to an existing order. Generally, only the responsible funeral service, the regulatory authority, or in exceptional cases close relatives with explicit authorization, are permitted to do so.
Penalties and legal consequences
For the unauthorized removal of a corpse, § 168 section 1 StGB provides for imprisonment of up to three years or a fine. Criminal liability arises regardless of whether additional harm (such as mutilation or damage to the corpse) occurs; mere removal is sufficient.
Aggravating and mitigating circumstances
When determining the sentence, the court particularly takes into account the circumstances of the offense. Aggravating factors may include actions undertaken from base motives or for the purpose of desecration. The impact on third parties and the motives of the perpetrator are also significant.
Attempt and preparation
Even the attempt to unlawfully remove a corpse is punishable under § 23, § 12 StGB if the offender acts with direct intent.
Distinction from other offenses
Grave robbery and theft
Although unauthorized removal of a corpse is similar to theft, the offense of theft (§ 242 StGB) does not apply to the body of a human being, because a corpse is not a “movable object belonging to another” within the meaning of this paragraph. The offense of grave robbery may also be relevant in certain circumstances, for example, if grave goods are stolen.
Disturbance of the peace of the dead and property damage
§ 168 StGB has a unique character, as the provision specifically aims to protect the peace of the dead and includes not only removal, but also damage or destruction. In the case of property damage to gravesites or grave goods, civil law or other criminal law provisions may also apply in addition to § 168 StGB.
Civil and public law aspects
Right of pietas and care for the deceased
In addition to its criminal law dimension, unauthorized removal of a corpse also has civil law relevance. The right of pietas primarily belongs to the closest relatives and includes the right to burial, care for the deceased, and protection against unauthorized removal or desecration.
Police law and funeral regulations
At the state level, funeral laws govern the handling of corpses, particularly the requirements for transferring, exhuming, or disinterring a corpse. Any removal of the body without the permission of the competent authority is punishable.
International perspectives
Most legal systems have provisions to protect the peace of the dead, although there are differences in details regarding the act, the authorizations, and the penalties. In many European countries, the unauthorized removal of a corpse is also treated as a separate offense.
Ethical implications
Unauthorized removal of a corpse constitutes not only a violation of applicable law but also of fundamental ethical values. The peace of the dead and respectful treatment of the deceased are firmly anchored in the canon of societal values.
References and further legal provisions
- Criminal Code (StGB), § 168 Disturbance of the peace of the dead
- Funeral laws of the federal states
- Civil Code (BGB), rights and duties of relatives
- Jurisdiction of the Federal Court of Justice (BGH) on the peace of the dead
Conclusion
The unauthorized removal of a corpse is a distinct legal interest protected by German criminal law, extending beyond mere property interests and is well-grounded legally, societally, and ethically. The comprehensive and detailed protection system is intended to ensure that the dignity of the deceased is fully preserved after death and that unauthorized interventions are consistently sanctioned.
Frequently asked questions
What penalties are threatened for the unauthorized removal of a corpse under German law?
The unauthorized removal of a corpse is punishable in Germany under § 168 paragraph 1 of the Criminal Code (StGB). According to the law, the removal of a corpse, body part, or the ashes of a deceased person without authorization constitutes a disturbance of the peace of the dead. The offense can be punished by imprisonment for up to three years or a fine. The exact penalty depends on the circumstances of the individual case, especially the severity of the act, the presence of motives such as greed, base motives, or particular reprehensibility, and possibly on the existence of relevant previous convictions on the part of the perpetrator. The way in which the removal is carried out, potential damage to the mortal remains, as well as the motive—for example, for the purpose of theft, a religious ritual, or to conceal a crime—also play a role in sentencing. In particularly serious circumstances, imprisonment may be imposed; for first-time offenders and minor offenses, a fine may be imposed.
Who is authorized to remove or handle a corpse?
Only persons who act based on law, official order, or the rights of the closest relatives are authorized to lawfully remove or handle a corpse. This applies particularly to employees of funeral services, doctors in the course of their duties, staff of forensic medicine and the police, who must secure bodies during criminal investigations. Direct family members are also entitled, within the framework of the duty of burial, to take custody of the corpse, but may not engage in any actions contrary to the law. Without such authorization, any removal is always a punishable intervention.
In what situations can the unauthorized removal of a corpse also constitute other criminal offenses?
The unauthorized removal of a corpse can, depending on the circumstances, also constitute additional criminal offenses. If, for example, jewelry or personal items buried with the body are stolen, this may also constitute theft under § 242 StGB or disturbance of the peace of the dead in conjunction with theft. If the removal is carried out to eliminate evidence of a killing offense or to hinder police investigations, further offenses such as obstruction of justice (§ 258 StGB) or obstruction of justice to benefit a third party may occur. In cases of desecration of a grave, § 168 paragraph 2 StGB (disturbance of the peace of the dead by damaging the resting place) may also apply.
How does criminal law define “corpse” within the meaning of § 168 StGB?
In the legal context, the term “corpse” within the meaning of § 168 StGB refers to the complete human body after death, regardless of the state of the remains (e.g., mummified, decomposed, or skeletonized). Parts of a corpse, provided they are still recognizable as such and a personal attribution is possible, can also be included. The ashes of a deceased person, such as following cremation, are also protected by law as long as they are considered mortal remains. No protection exists for organs or body parts removed for scientific or medical purposes if these are no longer regarded as part of the corpse.
Who is the injured party in the case of unauthorized removal of a corpse?
In the case of unauthorized removal of a corpse, this is considered an “official offense” under § 168 StGB, which protects an abstract legal good, namely the peace of the dead and thus the post-mortem right to respect. The injured parties, however, are primarily the close relatives of the deceased, who are entitled to undisturbed mourning and the preservation of decorum. The general public, as a bearer of moral values, may also be considered indirectly affected, as the protection of the peace of the dead is an essential part of moral order. Prosecution is ex officio; a criminal complaint is not strictly required.
Is an attempt to unlawfully remove a corpse already punishable?
Yes, even the attempt of unauthorized removal of a corpse is punishable under German criminal law. § 168 paragraph 3 StGB explicitly makes punishable anyone who directly begins an act to disturb the peace of the dead, but the result, meaning the actual removal, does not occur. The law thus protects not only the completed act, but also the attempt, in order to ensure a high level of protection and to preserve the integrity of the deceased.
How does the unauthorized removal of a corpse differ from grave desecration?
Both unauthorized removal of a corpse and grave desecration are regulated in § 168 StGB but pertain to different actions. With unauthorized removal, the focus is on taking the body or ashes of the deceased from their place of rest, whereas grave desecration refers to damaging, defacing, or destroying the burial site, such as digging up the grave, destroying gravestones, or commemorative markers. Both actions can be punishable independently or cumulatively and are subject to the same potential penalties, with the precise legal assessment depending on the particular circumstances of the case.
