Karnoprawna ochrona nekropolii
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Date
1989
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Wydział Prawa i Administracji UAM
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Penal-law protection of necropolises
Abstract
Cult of the dead, their various last resting-places and ceremonies connected
with burials or cremations should be protected by law. There is a clear link
between those elements and a spiritual sphere of a human being and his/her
personal (immaterial) interests. Such interests, as well as various related material
interests are protected i.e. by penal law.
Several legal acts should be mentioned here, in particular the Penal Code
of 1969, the Petty Offences Code of 1971, the Act on Cemeteries and Burials of
1959 and the Act on Military Cemeteries of 1933. The objects located on cemeteries
or even the whole cemeteries are monuments and thus they are also subject to
protection provided for in the Act on Protection of Cultural Values and on Museums
of 1962.
Generally speaking, penal law norms on protection of cemeteries could be
divided into 4 groups. The first contains norms determining offences and petty
offences against the cult of the dead, against their last resting-places, and against
the freedom to engage in funeral ceremonies. The second group contains provisions
penalizing the violation of norms regulating the exploitation of cemeteries (including
sanitary regulations, exhumation permits, transportation of corpses, etc.).
To the third group belong the provisions on responsibility for offences and petty
offences against property, (including the provision on protection of objects having
no material value). Finally, the fourth group is composed of norms protecting
monuments as values of culture.
The article presents penal law instruments contained in the above 4 groups, sketches the evolution those measures have undergone in Polish law, and puts
forth de lege ferenda postulates. The Penal Code of 1969 instead of two offences provided in a former code of
1932, one of which consisted in profaning the corpse or maliciously disturbing
a funeral ceremony, the other in taking a corpse or its part away from the entitled
person's possession — introduced one offence in two forms (Art. 197), A basic
form, with a penalty of imprisonment of up to 3 years, consists in maliciously
disturbing a funeral ceremony or in profaning the corpse, ashes, or the last
resting-place of the dead, whereas a qualified form of that offence, with a penalty
of 1-10 years of imprisonment has an additional feature: plundering the corpse, the
grave or any other last resting-place of the dead. Both forms of the analysed
offence require intention (dolus directus) and a definite motive of action. The
subject-matter of protection provided for in Art. 197 is the freedom of conscience
and religion in the sphere of the cult of the dead. Let me add that Art. 197
grants protection to funeral ceremonies and last resting-places irrespective of
their secular or sacral character.
Paragraph 2 of Art. 197 may be a source of difficulties. Namely, it is sometimes
understood as prohibiting willful taking of property from the corpse, the grave or
from another resting-place. Thus "plundering" is considered to be tantamount to
an ordinary theft commited at the last resting-place of the dead, eg. stealing
a tombstone without the intention of profaning the place.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 51, 1989, z. 1, s. 51-78.