The Fourth Chamber of the Ansbach Administrative Tribunal of First Instance [Verwaltungsgericht Ansbach] has refused to allow a daughter to exhume and rebury her mother’s’ ashes in another cemetery, holding that the sanctity of a dead person’s final resting-place should be given greater weight that the rights of the deceased’s relatives.
The applicant, who lives 270 km away in Thuringia, had moved from the GDR to the FRG in 1988 and her mother had followed a year later. She sought the transfer of her mother’s ashes from Ansbach to her own place of residence in order to take better care of her mother’s grave. It had also been the wish of the deceased that her ashes should be moved in the event that her daughter relocated. The applicant claimed that her desire to rebury the urn arose from the particular circumstances of their departure from the former GDR and was in accordance with the wishes of all close relatives.
The defendant Church Foundation asked that the application be rejected. The applicable period during which remains should not be disturbed was ten years; and the Church argued that that accorded to the general religious and moral sentiment that, once buried, a person’s remains should not be disturbed other than in exceptional circumstances.
The court upheld the view of the Church Foundation that there were no such exceptional circumstances in the present case: the finality of burial as a manifestation of human dignity was of greater weight than the needs of family members. The protection of the peace of the dead enjoyed a constitutional status and was consistent with the general ethical order [Sittlichkeit] and propriety. The will of the deceased person on the repatriation of her mortal remains could only weigh against the principle of permanence of burial if she had expressed unequivocal consent to the reburial during her lifetime. However, this could not be determined with certainty, despite questioning witnesses at the hearing. In addition, the court did not regard as valid the applicant’s argument that her right to care for her mother’s remains was severely hampered by living 270 km away in Thuringia. [With thanks to Religion – Weltanschauung – Recht.]
Those who have persevered thus far may be reminded of the principle established by the Court of Arches in Re Blagdon Cemetery  Fam 299 that
“there is much to be said for reverting to the straightforward principle that a faculty for exhumation will only be exceptionally granted … Whether the facts in a particular case warrant a finding that the case is to be treated as an exception is for the chancellor to determine on the balance of probabilities” .
The governing principle in Blagdon was that:
“Lawful permission can be given for exhumation from consecrated ground as we have already explained. However, that permission is not, and has never been, given on demand by the Consistory Court. The disturbance of remains which have been placed at rest in consecrated land has only been allowed as an exception to the general presumption of permanence arising from the initial act of interment” .
The court [Cameron Dean of Arches, Clark Ch and George Ch] went on to explain that the presumption originated in the Christian theology of burial . Possibly a secular court might not be so ready to adopt the presumption from theological conviction: and yet, it seems that the inviolability of burial is something rooted deep in the human psyche and goes well beyond the Judaeo-Christian tradition.