Disturbance of a funeral service

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This article mainly presents the situation in Germany . Help us to describe the situation in other countries.

Disturbance of a burial service is a criminal offense ( misdemeanor ), approved in Germany in § 167a of the Criminal Code (Criminal Code) and in Austria in § 191 of the Criminal Code (öStGB) is regulated.

Germany

Penalty

According to the prevailing view, the reason for punishment is the sense of piety of those taking part in the funeral service. A minority opinion would in addition, the right to privacy View of the deceased as protected. Another deficiency is that the norm only protects public peace . A supreme court clarification does not exist.

Object and act

Basically, there must be a funeral service. A funeral is any event that bids farewell to a dead person. Something is solemn when the moment is taken into account with dignity. If this framework is completely absent, there is no criminal liability . The term funeral service is to be interpreted broadly. In addition to the actual funeral, this includes events that take place immediately before or after the funeral, such as the state ceremony or the funeral procession . The criminal liability is no longer given at a later memorial service. She should also be eliminated from the “funeral feast”. The number of people present is irrelevant. It is also irrelevant whether the corpse is present if the celebration is marked by the moment of saying goodbye and thus equates to a burial.

The perpetrator must disrupt the funeral service. Disturbance is any interference with the intended process. In contrast to Section 167, the disruption does not have to be gross. However, minor cases can be ruled out.

It is an abstract dangerous offense . The disruption does not have to be successful or suitable for anything (breaking off the funeral, etc.).

The perpetrator must also act deliberately. With regard to the disruption, targeted action or reliable knowledge is required. Conditional resolution is sufficient with regard to the existence of a funeral service.

Penalties and procedural matters

The act is punished with imprisonment of up to three years or a fine. It is an official offense . A criminal complaint is not required.

History and Criminal Policy Significance

Section 167a was incorporated into the Criminal Code by the 1st StrRG of June 25, 1969 and has not yet been changed. It is unknown whether there were convictions according to the norm, published judgments are not evident. The prosecution statistics summarize § 167a and § 168, so that no conclusions can be drawn from them.

criticism

It is criticized that the norm amounts to the fact that the pure disregard of generally expected social behavior without harm, apart from hurt feelings, is criminally sanctioned. However, it is doubtful whether a penal norm can be justified by hurt feelings alone. It could be argued that hurting significant feelings elsewhere is also exempt from punishment (e.g. disrupting wedding celebrations).

It is also noted that a circular-free provision of legal interests that is also suitable for all allegedly criminal case constellations is doubtful.

Austria

In Austria criminal liability is regulated in Section 191 of the Criminal Code. There are significant differences to the regulation in Germany. The threat of punishment is significantly lower (maximum three months in prison). There must also be a capacity to cause a legitimate nuisance. This is a specific offense at risk.

Switzerland

Art. 262 of theCriminal Codemakes maliciously disturbing or "dishonoring" a funeral service or a funeral procession a punishable offense.

Individual evidence

  1. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 167a, 1.
  2. ^ Karlhans Dippel: Leipziger Comment StGB . Ed .: Laufhütte / Rissing-van Saan / Tiedemann. 12th edition. tape 6 . Walter de Gruyter, 2009, § 167a, 3.
  3. ↑ Klaus Rogall: Systematic Commentary StGB . Ed .: Wolter. 9th edition. tape 4 . Carl Heymanns, 2017, § 167a, 1.
  4. ↑ Tatjana Hörnle: Munich Commentary on the Criminal Code . Ed .: Miebach / Joecks. 3. Edition. tape 3 . CH Beck, 2017, § 167a, 3.
  5. ^ Solemn definition. Accessed April 30, 2020 .
  6. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167a, 2.
  7. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 167a, 2.
  8. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167, 6.
  9. ↑ Tatjana Hörnle: Munich Commentary on the Criminal Code . Ed .: Miebach / Joecks. 3. Edition. tape 3 . CH Beck, 2017, § 167a, 4.
  10. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 167a, 1.
  11. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 167a, 3.
  12. ↑ Federal Law Gazette I p. 645. Retrieved April 30, 2020 .
  13. ↑ Tatjana Hörnle: Munich Commentary on the Criminal Code . Ed .: Miebach / Joecks. 3. Edition. tape 3 . CH Beck, 2017, § 126a, 1.
  14. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167a, 1.

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