Section 190 StGB: protection of corpses, ashes and memorial sites, grave ornaments, intent and preservation of evidence.
Mag. Christopher Angerer, Rechtsanwalt
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An interference with a grave, a place where a body is laid out or a corpse may be criminally relevant under section 190 of the Austrian Criminal Code. The provision protects the handling of a corpse, ashes and a place of remembrance. It also covers desecration and the removal of grave ornaments.
The first assessment depends on the exact act, the place concerned, the person’s knowledge of the relevant circumstances and the available evidence. This article explains the statutory points of reference and the distinction from property damage, theft and ordinary cemetery rules.
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The appropriate first step depends on whether there is an allegation, evidence must be preserved or an ornament was removed from a place of remembrance.
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This assessment does not replace a review of the specific facts. It helps organise the first clarification.
For an allegation under section 190, the first questions are which act, which place and which time are specifically alleged. A meaningful response requires knowledge of the evidence and the precise allegation.
If a corpse, ashes, grave or grave ornament is affected, entitlement, the condition before the event and the observed change should be documented. The legal assessment depends on the exact conduct.
Changes at a grave or memorial site can disappear quickly. Photographs from several perspectives, existing video, messages and witness contacts help reconstruct the original condition and timing.
Removing an ornament from a burial, wake or memorial site is covered separately by section 190(2). The item, place, act and entitlement must be clarified for the assessment.
Section 190(1) names several distinct forms of conduct. It may be criminal to take a corpse, part of a corpse or ashes away from a person entitled to decide, or to remove them from a burial or wake site.
The provision also covers mistreating a corpse and desecrating a corpse, ashes or a burial, wake or memorial site. The assessment therefore has to describe what happened and which protected object or place was affected.
Section 190(2) concerns removing an ornament from a burial, wake or memorial site. It has its own penalty range and must be kept separate from the rule in subsection 1 when the facts are first assessed.
In an allegation under section 190, the specific conduct is the starting point. It must then be clarified which circumstances the person knew and whether the act was carried out with that knowledge. An assumption about a person’s state of mind does not replace this assessment.
The reason, purpose and sequence of the interference are therefore important. A person who changes a memorial site does not automatically present the same legal situation as someone who deliberately removes a corpse, ashes or a grave ornament. The facts must be established one by one.
Unclear or conflicting accounts should be checked against messages, photographs, video, witness statements and findings at the site. The legal assessment should follow only when the act, knowledge and timing fit together.
When a grave or another memorial site has been changed, the original condition matters. Photographs should show the place, its surroundings, attachments and missing or altered items. Original files and recording times should be preserved.
Cemetery records, burial arrangements, proof of entitlement, invoices for ornaments, messages and video recordings may also explain the sequence. Witnesses should be recorded with their name, contact details and direct perception of the event.
Preserving evidence must not change the site afterwards. A reliable chronology is decisive: who had access and when, what condition was found and which act was personally observed?
Section 190 protects respectful treatment of a corpse, ashes and a memorial site. Property damage under section 125 focuses on damaging, destroying or making another person’s property unusable. Both legal questions may arise from the same event.
When an item is removed, a property offence may also need to be considered. The item, possession, intention to appropriate it and the precise removal are relevant to that assessment. The specific protection under section 190 remains a separate question.
A mere breach of cemetery rules does not automatically amount to an offence under section 190. Whether the matter is an administrative or use issue or a criminally relevant interference depends on the specific conduct and circumstances.
The legal assessment begins with a precise description of what happened.
| Point | What it concerns | First question |
|---|---|---|
| Object | Corpse, ashes, grave or ornament | What exactly was affected? |
| Act | Removal, mistreatment, desecration or taking | What was done precisely? |
| Place | Burial, wake or memorial site | Where did it happen? |
| Knowledge | Knowledge of relevant circumstances | What did the person know? |
| Evidence | Condition, timing and observations | What can be established objectively? |
Important: In an allegation under section 190, first preserve the place, object, act and sequence of events. The distinction from other offences can then be assessed properly.
It covers, among other things, taking a corpse, part of a corpse or ashes away from an entitled person or a burial or wake site, mistreating a corpse and desecrating a corpse, ashes or a protected memorial site.
Removing an ornament from a burial, wake or memorial site is regulated separately in section 190(2). The item, place and precise act must be established in the individual case.
The answer depends on the specific change and the protected interest affected. Property damage or property-related issues may arise as well. A mere breach of cemetery rules does not automatically establish the criminal offence.
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