The Ombudsman's report on the enforcement of the relatives' right to pay their mournful tributes

AJB-3545/2014 

The fact that the Burials Act's relevant provision gives a shorter list of those entitled to pay their respects at the urn containing the ashes of the deceased than that of the Civil Code infringes the requirement of legal certainty and the right of certain relatives to pay their mournful tributes. That is the reason why Ombudsman László Székely has requested the Minister of Interior to initiate the soonest possible amendment of the Act, so that–on the basis of the statement of the person compelled to arrange for the burial–not only the closest relatives, but all relatives in general could pay their respects at the urn.

In the case of cremation, the person compelled to arrange for the burial is not bound by any time limit to provide for the burial, placement or scattering of the ashes. According to the complainant raising this issue, it infringes the relatives' right to pay their mournful tributes that those compelled to arrange for the burial may place the urn in their home, and there is no legal basis for forcing them to actually bury or scatter the ashes.

The Ombudsman's report starts with the assumption that the solution stipulated by the Civil Code, providing legal protection against any violation of the memory of a deceased person to a more limited range of persons legally close to the deceased, i.e., to the relative and/or the person having been named heir apparent in the will of the deceased, may be deemed as constitutional.

Under the Burials Act, traditional burial, i.e., burial in a coffin may be enforced, mainly due to public health considerations. However, in the case of cremation the person compelled to arrange for the burial is not bound by any time limit, and this fact, in itself, may not be considered as an impropriety from the point of view of the law, points out the Commissioner. The report suggests that, in principle, the burial of the ashes of the deceased may be enforced by the persons indicated in the Civil Code in the case of a lasting, abusive delay of the ashes' burial.

The report also establishes that taking the urn home may, in fact, prevent other relatives from preserving the memories of the deceased through regularly paying their respects at the urn. Here the Commissioner calls the attention to the fact that the protection of the privacy of the person compelled to arrange for the burial may indeed justifiably restrict the others' right to pay their respects. Therefore, it should be legally regulated that who may lawfully pay their respects at the urn in the absence of a burial and scattering of the ashes.

According to the Ombudsman, it is a significant step forward that the Burials Act already states the following: upon receiving the ashes of the deceased, the person compelled to arrange for the burial shall make a statement guaranteeing that close relatives may freely exercise their right to pay their respects at the urn. The investigation has uncovered the following contradiction: while the statement stipulated by the Burials Act guarantees the close relatives' right to pay their respects at the urn, the Civil Code stipulates a broader range of people as far as the right to pay mournful tributes is concerned. The Commissioner has come to the conclusion that providing or refusing such an opportunity to a partner or a registered partner is within the sole discretion of the person in possession of the urn containing the ashes.

In order to eliminate this impropriety resulting from the aforementioned regulatory contradiction and deficiency, the Ombudsman has requested the Minister of Interior to initiate the amendment of the law. According to the Ombudsman, that is how the Burials Act could ensure, in accordance with the provisions of the Civil Code, that both the relatives and/or the persons having been named heir apparent in the will of the deceased could exercise the right to pay their mournful tributes.