Disturbance of the dead rest

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The disturbance of the dead rest is the legal term for the desecration of corpses and graves . In Germany, it is a criminal offense that is regulated in Section 168 of the Criminal Code (StGB). The attempt is punishable ( § 168 III StGB).

Germany

Penalty

According to the prevailing opinion , the reason for punishment is predominantly the sense of piety of relatives of the deceased. It is also argued that the deceased's right to respect should be protected. According to the jurisprudence also the feeling of piety of the general public. According to another opinion, public peace should be protected. The details are controversial.

Object and act

The provision can be broken down into four elements, namely the removal of the body (etc.), the perpetration of insulting mischief on it, the destruction or damage of laying out, burial or public memorials for the dead and the insulting mischief there.

Removal of the body (etc.)

According to the first alternative of the first paragraph, anyone who unauthorized removes the body or parts of the body of a deceased person, a dead body fruit, parts of such or the ashes of a deceased person from the custody of the person entitled is liable to prosecution . According to the prevailing opinion, a person dies when he is brain dead . The term body parts includes natural limbs and other components of the body, as well as artificial, firmly connected components that fulfill functions of the body (such as artificial joints). Body fruits are embryos and fetuses , the development phase is irrelevant. Ashes are cremation remains from a deceased person, even if they are incomplete. According to another opinion, only the urn filled with ashes is protected, as parts of the ash are not mentioned in the legal text, but parts of the body are listed separately. The case law has followed the former view. Only the person entitled is protected, i.e. someone who has a well-founded custody relationship. Custody, i.e. the actual assumption of care, must be broken.

Insulting mischief on the body (etc.)

According to the second alternative of the first paragraph, whoever does not remove the objects of the last paragraph from the custody of the authorized person without authorization, but commits insulting mischief on them, is liable to prosecution. Insulting nonsense occurs when particularly gross disregard or contempt is expressed towards the deceased. It is questionable whether statements are sufficient ("perpetrators"), but the case law affirms this in any case. Sexual acts can be part of the offense, but dismembering for inconspicuous disposal is not part of the offense. However, the dismemberment of corpses in connection with slaughtering and eating with consent should meet the requirements. This is controversial. Pouring schnapps into a corpse is also said to be an offense. Ultimately, the intervention must exceed a materiality threshold that is difficult to determine. However, actions that only provoke a certain outrage have to be eliminated (such as drinking schnapps at the grave, or the “shouting of Kneipp songs”). The view that (with consent) a dead person can be plastinated and then exhibited has been widely recognized .

Destroying or damaging places of special piety

According to the first alternative of the second paragraph, anyone who damages or destroys a repository, burial site or public memorial for the dead is a criminal offense. Storage locations are rooms for laying out the dead until burial ( e.g. morgues ). However, a corpse must actually be laid out (damage to an empty morgue is not enough). Burial sites are the places where certain individuals were buried ( e.g. earth grave ). Public memorials for the dead are places where individuals or a large number of people are remembered, regardless of whether they are buried there ( concentration camp, for example). Damaging means that ownership of the thing is damaged by an impact on its substance. Substance damage, usability impairments or substance changes are recorded. Destroying means that the property is damaged in such a way that the material substance is completely repealed or is no longer able to fulfill a function.

Carrying out insulting mischief in places of special piety

According to the second alternative of the second paragraph, anyone who commits insulting nonsense at a storage site, burial site or public memorial for the dead is liable to prosecution. The definitions already mentioned also apply here. However, it should be emphasized that the insulting nonsense does not have to take place "at" the sites, but only "there". Actions that do not take place directly at the sites that are worthy of protection, but are only located in close proximity, are also recorded. For example, hanging up National Socialist badges or flags near a Jewish grave.

Penalties and procedural matters

The act is punished with imprisonment for up to three years or with a fine .

It is an official offense . A criminal complaint is therefore not required.

History and Criminal Policy Significance

In the first version ( § 168 RStGB ), only the removal of a corpse, the destruction or damage of graves or insulting mischief were punishable. The objects of the offense, the acts and the scope of punishment were expanded through changes in the law. With the 3rd StÄG of August 4th, 1953, body parts and the ashes of the deceased were added, the abusive nonsense was expanded to include all objects of the crime. In addition, the criminality of the attempt was introduced and the range of punishment increased again. After the commercial use of fetuses and embryos in the cosmetics industry was a major theme, the Bundestag added the abdominal fruit or parts thereof with the 24th StÄG of January 13, 1987. The 6th StrRG of January 26th, 1998 led to the most recent change, namely unnecessary linguistic changes and the addition of burial sites and public memorials for the dead in paragraph 2.

In 2011, 21 people were convicted under sections 167a, 168, 23 in 2012 and 11 in 2013. The norm is therefore practically insignificant.

criticism

The first criticism is that the legal interest protects the sense of piety . It is controversial whether protection of feelings is permissible in criminal law. The view that rejects this would like to focus on the postmortem personal rights of the person concerned. However, the interpretation of the norm of the current prevailing opinion is not compatible with it. For example, in the case of premortal consent (for example in sexual acts or dismembering), criminal liability would have to be ruled out in any case. It is also noted that the protection of the feelings of piety of the relatives can hardly be protected, since people without relatives are also protected. Section 2 in particular is also criticized, as it is difficult to fit into the concept.

It is also criticized that a breach of custody must take place. This could lead to allegedly punishable behavior being unfounded.

The term insulting nonsense is also criticized as an anachronism .

Examples

In this context, the cannibal from Rothenburg , who killed and dismembered his victim at his request, was particularly effective in the media .

Austria

In Austria, criminal liability is regulated in Section 190 of the Criminal Code. The criminal liability is very similar, there are only differences with regard to the offense (mistreating instead of insulting mischief), the scope of punishment (maximum 6 months imprisonment or fine), the additional alternative of stealing jewelry and the lack of fruit.

Switzerland

In Switzerland, criminal liability is regulated in Art. 262 of the Criminal Code. The Swiss and German versions overlap in many points. Taking away corpses, parts of corpses or ashes is also punishable under Swiss criminal law. It also resembles the German in that one has to act against the will of the entitled person. As in Germany, a distinction is made between the corpse on the one hand and the burial site on the other. The penalty range is the same. There is a difference in the act of abusive mischief. In Switzerland, "dishonoring or insulting maliciously" is the act of crime. The article also regulates disrupting the funeral procession or the funeral ceremony, which in Germany would fall under Section 167a of the Criminal Code ( disrupting a funeral ceremony ). The fruit of the womb is also not mentioned in the Swiss paragraph.

literature

  • Berthold Stentenbach: The criminal protection of the corpse . Shaker Verlag , Aachen 1995, ISBN 3-8265-5069-2 (also dissertation, University of Cologne 1992).
  • Stellenpflug, Martin: The criminal law protection of the human corpse , 1996, Diss. Freiburg

Individual evidence

  1. ↑ OLG Frankfurt, decision of November 29, 1974 - 2 Ws 239/74
  2. ^ Stephan Stübinger: Criminal record . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 168, 2.
  3. ↑ BGH 2 StR 310/04 - judgment of April 22, 2005
  4. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 168, 2.
  5. ^ Bosch / Schittenhelm: Criminal Code . Ed .: Schönke / Schröder. 30th edition. CH Beck, 2019, § 168, 1.
  6. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 168, 4.
  7. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 168, 5.
  8. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 168, 6.
  9. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 168, 7.
  10. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 168, 7.
  11. ↑ BGH June 30, 2015 - 5 StR 71/15
  12. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 168, 8.
  13. ↑ a b Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 168, 12.
  14. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 168, 16.
  15. ^ A b Bosch / Schittenhelm: Criminal Code . Ed .: Schönke / Schröder. 30th edition. CH Beck, 2019, § 168, 10.
  16. ↑ BGH 2 StR 310/04 - judgment of April 22, 2005
  17. ↑ RGSt 71, 323
  18. ↑ LK-Dippel 17
  19. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 168, 19.
  20. ^ Rainer Zaczyk: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 303, 6.
  21. ^ Rainer Zaczyk: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 303, 9.
  22. ^ Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 168, 22.
  23. ↑ Tatjana Hörnle: Munich Commentary on the Criminal Code . Ed .: Joecks / Miebach. 3. Edition. tape 3 . CH Beck, 2017, § 168, 4.
  24. ↑ Tatjana Hörnle: Munich Commentary on the Criminal Code . Ed .: Jeocks / Miebach. 3. Edition. tape 3 . CH Beck, 2017, § 168, 5.
  25. ↑ Tatjana Hörnle: Munich Commentary on the Criminal Code . Ed .: Joecks / Miebach. 3. Edition. tape 3 . CH Beck, 2017, § 169, 6.
  26. ↑ Tatjana Hörnlie: Munich comment on the Criminal Code . Ed .: Joecks / Miebach. 3. Edition. tape 3 . CH Beck, 2017, § 168, 1.
  27. ↑ Tatjana Hörnle: Munich Commentary on the Criminal Code . Ed .: Joecks / Miebach. 3. Edition. tape 3 . CH Beck, 2017, § 168, 15.
  28. ^ Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167, 11.