Cemetery compulsion
Under cemetery forced a provision is understood, which prohibits the physical remains of a dead person (that is, the coffin with corpse or the urn with ashes ) in a different location than on a dedicated for this purpose, place the cemetery to keep. Initially, the reason was hygiene considerations . In the case of cremation, burial at sea on the open salt water offers an alternative, this is supplemented by the use of "ashes at your disposal".
basis
In particular for hygienic reasons, the burial used in many cultures was relegated to special areas. In the distribution area of Christianity , the deceased were first buried in the church yards, mostly near the church of the community. With increasing population density, the space required became scarce. The general land law in Prussia of 1806 determined that the burial areas are outside the inhabited areas of the cities. Due to the usual burial in the ground, there was also a compulsory burial and a coffin obligation. In particular, the compulsory cemetery forbids that the "ashes at free disposal" remain with the bereaved . The natural burial is not completely ruled out by the cemetery coercion, but a pious approved area, mostly a special forest area ( Natural burial ) bound as a burial place.
National regulations
Germany
Principle of burial on defined areas
In Germany, the funeral laws of the federal states regulate how to deal with the deceased. An important component is the so-called cemetery obligation. This stipulates that a burial outside the cemetery is not permitted. The only exceptions are burial at sea and natural burial in a forest, but the urn is brought to the place by the undertaker. According to German law, it is not possible for relatives to dispose of the remains of the deceased themselves, even if they so wish. In Germany there is a compulsory cemetery for burial and, since 1934, for the ashes of the dead.
history
In Prussia, the mandatory cemetery was laid down in the Prussian general land law. In Germany, this provision was continued in the Cremation Act of 1934.
In all federal states, apart from some easing, there is still the limitation of mortal remains to dedicated cemetery areas that are subordinate to church or public sponsors, whereby certain forest areas can also be dedicated. Violations have legal consequences. It is not permitted to take the urn directly from the crematorium. Neither a corpse (burial in the earth) nor the cremation ashes (urn burial) may be buried outside a cemetery, but must be buried in a grave.
So far, some German citizens have taken the detour via neighboring countries with less restrictive legislation. After a cremation abroad, the handling there is used. However, this is illegal in the event that the urn is returned to Germany by bypassing its inclusion in an area dedicated to piety and can have legal consequences. One of these consequences can be a forced burial , the costs of which must be borne by the relatives .
Relaxations
A possible relaxation of the compulsory cemetery has been discussed for several years. There are increasing numbers of supporters. Especially for the growing market for alternative burials such as rock burials or alpine meadow burials (currently only legal in Switzerland) this would mean a relief. Under the impression of these debates and in view of the fact that the cemetery compulsion is the exception internationally, there have been repeated efforts to relax this compulsion. In North Rhine-Westphalia , Saarland and Baden-Württemberg , new, in some cases more flexible, funeral laws have already been passed, but so far they have not meant any departure from these regulations. Discussions are still going on in Schleswig-Holstein and Thuringia .
The state of Berlin relaxed the coffin requirement with the "Law on the Regulation of Participation and Integration in Berlin". The outside of Christian religions z. Some of the mandatory coffin-free burials are permitted by the new regulation and are not tied to any particular religion. A prerequisite, however, is a designated grave area for coffin-free burial in the cemetery. The decision on the designation of corresponding grave fields is the responsibility of the respective cemetery owner. Section 18 of the Berlin Funeral Act is to be changed to the effect: "Deviating from the obligation [...] to bury in a coffin, corpses for religious reasons can be buried in a shroud without a coffin in grave fields designated by the cemetery bearer."
On October 22nd, 2014, the state of Bremen decided to relax this regulation; from January 1st, 2015, the ashes of the deceased may be scattered on private land and public areas in the state. This regulation did not completely abolish the compulsory cemetery. This was the first time that funeral law was liberalized by a red-green state government . However, the declaration of the deceased must be available and the wind direction and strength must be observed so that neighboring properties are not affected. The property owner must also consent to the ashes being scattered.
Austria and Italy
Also in Austria and Italy there is a requirement to carry out burials on certain areas. In the Austrian states of Salzburg and Vorarlberg there are discussions about easing this compulsion.
Other states
In many European countries, such as the Netherlands , Switzerland and the Czech Republic , the compulsory cemetery has been lifted regionally or nationwide, at least for ashes after cremation . Instead, the principle of "ashes at your disposal" applies. After cremation, the ashes of the dead can be kept at home or buried or scattered anywhere. The fundamental consideration for this is that the actual burial with the “deedication of the dead” takes place in the crematorium by fire.
Outside Europe, storage in your own house or property is quite common, but there are also defined cemetery areas there.
Criticism of the compulsory cemetery for the ashes of the deceased
Critics of the permanent cemetery compulsory see an impermissible interference by the state in the private relationship between the dead and the bereaved. The compulsory cemetery thereby violates Article 2 of the Basic Law and Article 8 of the European Convention on Human Rights . These rights allow the free development of personality and demand respect for private and family life. It is true that a legal basis restricts the citizens' freedoms, but it must be justifiable through the protection of higher or at least equivalent legal interests. If health protection rights apply to burials, ash does not pose any danger. Since only Germany, Austria and Italy have such a rigorous cemetery compulsion, it should be clear from a comparative law perspective that legal interests of equal or greater value to justify the restriction of freedom do not exist. The real reasons for the cemetery compulsory lie more in hidden financial considerations. The concept of the dead rest is an abstract concept that loses its meaning as soon as the deceased has ordered something else. In the case of organ donors, plastinations, autopsies, exhibits for medical and surgical teaching as well as after the burial period has expired, the rest of the dead is already designed contradictingly. Especially when compared with Islamic or Jewish customs, which know an eternal duty of rest.
According to the latest higher court rulings, the peace of the dead does not justify an absolute, unalterable prohibition of any disturbance regardless of its human dignity; it must both be brought into harmony with the will of the deceased and weighed against any conflicting legal interests or interests worthy of legal protection and can therefore also step back on these in individual cases. As early as 1974 the Federal Administrative Court had admitted that the permitting of exceptions to the legally stipulated basic cemetery compulsory also for cremations could be required for reasons of belief, conscience or confession according to Art. 4 GG.
Proponents such as the Christian churches and undertakers' associations oppose that access to the ashes must be protected by law, if necessary even against a declared will of the deceased, in order to enable everyone to say goodbye in person. In addition, the dead can only be preserved in an approved cemetery or burial field.
Individual evidence
- ↑ "Which burials are allowed in Germany? On: gelbeseiten.de ; last accessed on April 18, 2019.
- ↑ Law on the regulation of participation and integration in Berlin. (PDF) Amendment of the Funeral Act. State of Berlin, December 28, 2010, p. 10 , accessed on May 25, 2018 . : § 10a
- ↑ Ashes of the deceased may be in the garden on October 20, 2014
- ^ Law on the cemetery and funeral system in the Free Hanseatic City of Bremen. Status: December 15, 2015 (Brem.GBl. P. 607). Free Hanseatic City of Bremen, October 29, 1990, accessed on May 22, 2018 . : § 4 Cemetery compulsory, forms of burial, exceptions
- ↑ Jörg Dammann: Grandma's urn in the closet? Criticism of the draft law to make cemetery compulsory, Kreiszeitung Wochenblatt, September 8, 2017
- ↑ Tade Matthias Spranger: Plea for the lifting of the compulsory cemetery for cremations Verwaltungsrundschau 5/2000
- ↑ VGH Munich, judgment of January 31, 2018 - 4 N 17.1197 marginal no. 22nd
- ↑ BVerwG, judgment of June 26, 1974 - VII C 36.72
- ↑ Carolin Gißibl: The deceased husband is now a diamond in the rough sueddeutsche.de , last accessed on April 18, 2019
