Equipo Nizkor - Estonia: Protection of War Graves Act.

Passed 10 January 2007
(RT |1| I 2007, 4, 21),
entered into force 20 January 2007.

In observance and acknowledgement of the obligation of the Republic of Estonia to guarantee the protection, respect and dignified treatment of the remains of persons who have died in acts of war conducted on the territory of Estonia;

finding that the burying of persons who have died in acts of war to unsuitable places is in discord with European culture and the tradition of honouring the memory and remains of the deceased; on the basis of Article 34 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) adopted on 8 June 1977, according to which the Estonian state is obliged to guarantee the respect of the remains and gravesites of persons who have died due to acts of war in the territory of Estonia, and the marking thereof, and in pursuance of which the Estonian state is entitled to rebury the remains on the basis of the public interest, the Riigikogu |2| passes this Act.

Chapter 1
General Provisions

§ 1. Scope of application of Act

(1) This Act determines the legal protection and maintenance of war graves located in Estonia, public access to war graves and the procedure for the marking of war graves, as well as the bases of and procedure for reburial of the remains in the war graves located in Estonia to cemeteries with the aim of the protection provided for in this Act.

(2) This Act applies to the remains and war graves of the soldiers who fell in the Estonian War of Independence and the remains and war graves of the persons who fell for the independence of Estonia in armed fight, including armed resistance movement (forest brotherhood). This Act applies to persons who belonged to the armed forces of other foreign states, and to the remains and war graves of citizens of other states in so far as not otherwise prescribed in international agreements.

(3) Legal regulation relating to war graves of citizens of Estonia which are located in foreign states and the maintenance of the graves is guaranteed by international agreements.

§ 2. Definitions

In this Act, the following definitions are used:

1) "war victim" means:

- a person who fell in armed fight or died in the wounds received or illnesses conceived in the fight within one year after participation in the fight;

- a person who died in armed resistance to occupation regime or died due to the health damage resulting from participation in armed resistance movement within one year after the participation in armed resistance movement;

- a person who fell or died in military service or a similar service during acts of war or died due to the health damage received in the specified service during acts of war within one year after the health damage emerged;

- a person who died in immediate acts of war or due to an injury received during immediate acts of war within one year after receiving the injury;

- a person who died in an internment camp or due to health damage received in an internment camp within one year after release therefrom;

- a person who died as a prisoner of war or due to health damage received while held as a prisoner of war within one year after termination of the imprisonment;

2) "war grave" means a burial site of the remains of the persons specified in clause 1) of this section;

3) "cemetery" means a site prescribed and planned for burying of the remains of humans, bodies or cremated bodies, and provided with the necessary structures;

4) "military cemetery" means a cemetery prescribed for burying of war victims and members of the Defence Forces which is in the state ownership and the administration of which is in the area of government of the Ministry of Defence. The procedure for the administration of the cemeteries of the Defence Forces shall be established by the Government of the Republic.

Chapter 2
War Graves Protection

§ 3. Right of preservation of war grave

(1) War graves shall be marked and the legal protection thereof shall continue pursuant to the procedure provided for in this Chapter for an unspecified term or until a term provided for in an international agreement.

(2) The owner of the immovable on which a war grave is located is required to ensure the preservation of the war grave and the marking thereof. All roads and pathways leading to the war grave must be open for public use from sunrise until sunset and the possessor of the immovable shall not hinder public access to the war grave during such time.

(3) The owner of the immovable is required to allow the performance of the works necessary for the performance of the obligations prescribed by this Act on the immovable.

(4) In order to protect war graves located outside of cemeteries, protected zones shall be established in a range of up to twenty five metres from the exterior or boundary of a war grave.

§ 4. Keeping of records of war graves

(1) The Ministry of Defence shall keep records of the war graves located in Estonia and foreign states. The Minister of Defence shall establish, by a regulation, the procedure for maintaining the list of war graves which prescribes the information to be entered in the list, the procedure for deleting a war grave from the list and the procedure for release of information concerning war graves. The Ministry of Defence has the right to authorise another legal person to keep records of war graves.

(2) The owner of the immovable is required to inform the Ministry of Defence of a war grave found on his on her land as well as a grave with regard to which there is good reason to suspect that it is a war grave immediately after finding the war grave.

(3) Everyone who possesses information concerning war graves is required to forward such information to the Ministry of Defence free of charge within one year as of entry into force of this Act or immediately after finding the war grave or receipt of the corresponding new information.

§ 5. War grave protection and protection obligation notice

(1) The Minister of Defence shall decide the entry of a war grave in the list of war graves. The Minister of Defence shall issue a protection obligation notice to the person on whose immovable the war grave is located. Before entry of a war grave in the list of war graves, the war graves committee shall give an opinion on the basis of this Act as to whether or not the remains in the war grave are to be reburied. If the remains in the war grave are to be reburied on the basis of the provisions of this Act, the war grave shall not be entered in the list of war graves and a protection obligation notice shall not be issued with regard thereto. After reburial of the remains, the Minister of Defence shall decide on the entry of the new burial site in the list of war graves and shall issue a protection obligation notice.

(2) A protection obligation notice is an informative document issued to the owner of an immovable which contains a war grave, or whose immovable is located within such areas, or to an administrator of state assets concerning whom a corresponding entry has been made in the land register, a person or agency duly authorised by an administrator of state assets (hereinafter possessor), and the restrictions contained therein shall be entered in the land cadastre.

(3) A protection obligation notice shall contain:

1) information concerning the war grave and the time of entry thereof in the list of war graves;

2) a list of restrictions necessary for ensuring the protection of the war grave.

(4) A protection obligation notice shall be issued by the Minister of Defence within thirty days as of the entry of the war grave in the list of war graves.

(5) A protection obligation notice shall be delivered against a signature or sent by post by registered letter.

§ 6. Marking and maintenance of war graves

(1) War graves shall be marked in a manner ensuring the honouring and dignified treatment of the remains of war victims such that the location of the war grave could be noticeable at the site. The names of the persons buried in the grave shall be entered on the marking of the war grave if possible.

(2) The Ministry of Defence shall organise the marking and maintenance of war graves. The Ministry of Defence has the right to authorise another legal person to mark and maintain war graves and to enter into a contract for the use of allocations from the state budget with such person. The cemetery administrator or a legal person authorised by the Minister of Defence shall care for, perform renovation or restoration work at and maintain the war graves located in public cemeteries and cemeteries of Defence Forces.

(3) A war grave maintained by a private person is a grave which is maintained by the immediate family of the person who is buried in the war grave, or by land owner. The Ministry of Defence has the right to assume the obligation to maintain a war grave maintained by a private person with the consent of the current maintainer.

§ 7. Transfer of land

(1) If guaranteeing the right of preservation of a war grave prescribed in § 3 of this Act severely hinders the use of the plot of land for the intended purpose by the owner, the expropriation of the immovable at the request of the owner as provided in subsection 3 (2) of the Immovables Expropriation Act is applied.

(2) Local governments cannot request transfer of a plot of land by the state on the basis of subsection (1) of this section.

Chapter 3
Remains subject to Reburial, Deciding and Organisation of Reburial

§ 8. Remains subject to reburial and deciding of reburial

(1) Remains are subject to reburial on the basis of this Act if a war grave is located in an unsuitable place. In particular, parks, other green areas and buildings within densely populated areas outside of cemeteries, as well as places in which public events are organised or constructions not related to the graves are located, and other places which preclude dignified treatment of the war grave are unsuitable places for war graves. The war graves committee shall determine the unsuitability of the location of a war grave. The Minister of Defence shall decide, on the proposal of the war graves committee, which remains are to be reburied to which cemetery.

(2) The Government of the Republic shall decide the reburial of the remains in a war grave in the case when the grave is not located in an unsuitable place within the meaning of subsection (1) of this section but reburial is in the public interests for another reason. Public interest may be involved, in particular, in the case of construction or expansion of social constructions in the immediate vicinity of the war grave, in the case of a danger to the preservation of the war grave which is caused by natural phenomena, for reasons of health protection and for reasons of security, and if circumstances become evident which render reburial of the remains in the war grave and relocation of the grave monument or grave mark inevitable. While deciding the reburial of the remains, the Government of the Republic shall determine the new burial site of the remains and shall resolve issues relating to the relocation, adjustment, dismantling and preservation of the grave monument or mark and to the establishment of a new grave monument or mark.

(3) The entry of a war grave in the list of war graves shall not hinder reburial of the remains in the war grave on the basis of this Act.

(4) Reburial of remains on the basis of a decision of the Minister of Defence or the Government of the Republic shall be arranged as soon as possible and the expenses of the reburial shall be borne by the Ministry of Defence or the Government of the Republic.

§ 9. Identification

(1) The Minister of Defence may decide to organise exhumation and identification of the remains of unidentified deceased persons if there is good reason to suspect that the gravesite is a war grave but the establishment of the existence of the remains therein, the ascertaining of the number thereof or identification of the remains is impossible in any other manner.

(2) If it is established that the gravesite is a war grave, the possible reburial of the remains shall be decided in accordance with § 8 of this Act. The Ministry of Defence or a person authorised by the Ministry shall inform, if possible, the relatives of the identified war victim or the relevant agencies of foreign states. The remains of a war victim shall be given, if requested, to relatives for reburial.

(3) All persons who are in the possession of documents or objects which facilitate the identification of the remains are required to give these to the disposal of the Ministry of Defence for identification of war victims. The documents and objects shall be returned to the owner.

(4) If there has been good reason to suspect that a grave is a war grave but it becomes evident that it is not a war grave, the reburial of the remains and the relocation, adjustment and demolition of the grave monument or mark and the withdrawal of the status of a monument shall be decided on the basis of this Act pursuant to the same procedure as in the case of war graves. If it becomes evident that there are no remains in the suspected grave, the Minister of Defence shall decide, on the proposal of the war graves committee, the adjustment of the grave monument or mark or other grave construction as a memorial, the relocation thereof to a museum or another appropriate place, or partial or full dismantling thereof. In such case, § 13 of this Act shall apply in respect of restrictions related to the monument and § 14 of this Act shall apply to the withdrawal of the status of a monument.

§10. Organisation of reburial

(1) The reburial of the remains specified in § 8 of this Act shall be organised by the Ministry of Defence or a person authorised by the Ministry. The requirements for reburial shall be established by a regulation of the Minister of Defence.

(2) The remains subject to reburial on the basis of this Act are reburied to a suitable cemetery.

(3) The grave monument or another grave mark, such as grave plate and cross, shall be relocated to the new burial site of the remains from the current location of the remains which are to be reburied. If the size of a monument renders it unsuitable for relocation to the new burial site of the remains, and if relocation of a monument to the new burial site is impossible for another reason, the Minister of Defence shall decide, on the proposal of the war graves committee, the adjustment of the grave monument or placing of the essential elements of the grave monument to the new burial site or the establishment of a new grave monument to the new burial site and the dismantling of the grave monument in the current location.

(4) The burial customs of the religion or culture of the person who is reburied are observed upon reburial where possible. Dignified treatment of the remains is ensured during reburial. The war graves committee shall make a proposal to the Minister of Defence for marking the grave, including for installation of a grave monument or a memorial plaque as necessary.

(5) A building permit or the consent of the local government is not required for removal of a grave monument or another grave mark from the previous location and for installation thereof to the new burial site of remains. The permit or consent specified in this section is required in the cases provided by law if a grave monument, mark or other grave construction is to be installed elsewhere than to the new burial site of remains.

(6) The owner of the immovable on which the remains are located shall be notified of the works necessary for reburial at least seven days in advance. This is not necessary in the case of reburial of the remains which are located on state land.

(7) The permission of the local health protection office is not required for reburial if the reburial does not pose a danger in terms of public health due to the age of the remains. The permission of the local health protection office is not required, due to age of the remains, for reburial of the remains of the persons who died during the First and the Second World War and the Estonian War of Independence.

(8) The person who performed the reburial works shall prepare a report on the works performed.

§ 11. Extent of immovable property and rights and obligations of owner of immovable

(1) The owner of an immovable does not have the right to prohibit reburial of the remains in a war grave located on his or her registered immovable and the consequent relocation of a grave monument or mark belonging to the grave.

(2) The owner of an immovable on whose registered immovable there is a war grave is required to enable free access to the grave for reburial of the remains, relocation of the grave monument or mark and identification of the remains.

(3) The Ministry of Defence shall ensure that the situation as near as possible to the state of matters as it was before the performance of the works, except for the marks and constructions which belonged to the grave, is restored on the registered immovable within three months after the performance of the works specified in subsection (1) of this section. Upon failure to perform such obligation, the owner of the registered immovable has the right to demand compensation for the damages caused by the damaging of a green area or the registered immovable in any other way pursuant to the State Liability Act.

(4) If the owner of a grave monument or mark or another construction relating to the grave has incurred expenses for the building of the grave monument or mark or another construction relating to the grave and damage is caused to him or her due to relocation, adjustment or dismantling of the grave monument or mark or another construction relating to the grave, the damage caused shall be compensated for by the state on the basis of the State Liability Act.

§12. War graves committee

(1) The Minister of Defence shall form the war graves committee, approve the rules of procedure thereof and appoint the chairman of the committee. The war graves committee shall comprise seven members. The Committee shall comprise persons appointed by the Minister of Internal Affairs, the Minister of Foreign Affairs, the Minister of Justice, the Minister of Culture and the Estonian War Graves League and two persons appointed by the Minister of Defence.

(2) The war graves committee shall submit proposals to the Minister of Defence for reburial of the remains buried in unsuitable places and relocation of grave monuments and marks to the new burial sites of remains, as well as the identification specified in § 9 of this Act, and shall perform other functions assigned thereto by law.

Chapter 4
Specifications related to Graves Designated as Monuments

§ 13. Restrictions related to monument

(1) If a war grave is designated as a monument or is located within a heritage conservation area, the provisions pertaining to monuments and heritage conservation areas apply to the war grave with the specifications arising from this Act.

(2) If the remains which are buried in the graves or a heritage conservation area designated as a monument are subject to reburying on the basis of § 8 or subsection 9 (4) of this Act, the designation thereof as a monument or the location thereof within a heritage conservation area shall not hinder reburial of the remains.

(3) If the remains which are buried in the graves or a heritage conservation area designated as a monument are subject to reburying on the basis of § 8 or subsection 9 (4) of this Act, the restrictions arising from the Heritage Conservation Act and the statutes of the corresponding heritage conservation area apply to the work necessary for reburial with the following specifications:

1) the permission of the National Heritage Board is not required for the performance of the works related to reburial and relocation of a grave monument or grave mark;

2) the National Heritage Board and the local government within the territory of which the works are to be preformed shall be notified of the works related to reburial and relocation of a grave monument or mark at least seven days in advance;

3) The National Heritage Board and the local government within the territory of which the works are preformed shall be notified of the termination of the works related to reburial and the relocation of a grave monument or mark within seven days as of the termination of the work.

§ 14. Withdrawal of status of monument from graves and gravesites designated as monuments

(1) The designation of a grave or gravesite as a monument shall be revoked on the basis of this Act after the remains located therein have been reburied on the basis of this Act. The Minister of Culture shall revoke the designation of a grave or gravesite as a monument by a directive.

(2) The notice of the National Heritage Board and the report concerning termination of the works related to reburial and the relocation of a grave monument or grave mark at the monument site submitted by the person who performed reburial works shall be the basis for the directive specified in subsection (1) of this section. The requirement of the expert assessment of the National Heritage Board and a proposal from the Heritage Conservation Advisory Panel provided for in subsection 12 (3) of the Heritage Conservation Act shall not apply.

(3) The National Heritage Board shall submit the notice specified in subsection (2) of this section to the Minister of Culture within ten days after the National Heritage Board has received the notice specified in clause 13 (3) 3) of this Act concerning termination of the works related to reburial and the relocation of a grave monument or mark. Before notification of the Minister of Culture, the National Heritage Board shall verify at the location of the monument if the remains have been exhumed and the grave monument or mark has been relocated.

(4) After receipt of the directive of the Minister of Culture concerning revocation of the designation as a monument, the National Heritage Board shall make a notation concerning revocation of the designation as a monument in the national register of cultural monuments and shall notify the local government of the location of the monument, the owner and possessor of the immovable on which the monument was located and the state cadastre thereof. The protection obligation notice issued to the owner of the immovable with regard to the monument becomes invalid as of the date of issue of the directive of the Minister of Culture.

Chapter 5
Implementation of Act

§ 15. Formation of war graves committee

(1) The Minister of Defence shall form the war graves committee within thirty days after the entry into force of this Act.

(2) The war graves committee shall organise the assessment of the suitability of the locations of the war graves known by the date of entry into force of this Act and the assessment of the need for the identification provided for in § 9 of this Act and shall make a proposal for reburial of the remains and the relocation, adjustment, dismantling of grave monuments and marks or the establishment of new constructions within one year after the entry into force of this Act.

§16. Known war graves

(1) The owner of an immovable is required to inform the Ministry of Defence of a war grave located on his or her land and known to him or her at the time of the entry into force of this Act within three months as of the entry into force of this Act. The owner of an immovable does not have the specified obligation if the war grave is designated as a monument.

(2) If the remains in a war grave are subject to reburial, temporary protection may be applied to the war grave until reburial.

§ 17. Compensation obligation related to existing grave construction

If the owner of a registered immovable under a grave monument or mark or another construction relating to the grave existing at the time of the entry into force of this Act has incurred expenses for the building of the grave monument or mark or another construction relating to the grave and damage is caused to him or her due to relocation, adjustment or dismantling of the grave monument or mark or another construction relating to the grave, the damage caused shall be compensated for by the state on the basis of the State Liability Act.

§18. Entry into force of Act

This Act enters into force on the date following the date of publication in the Riigi Teataja.

Notes:

1. RT = Riigi Teataja = State Gazette [Back]

2. Riigikogu = the parliament of Estonia [Back]

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10Jan07 - EST

Protection of War Graves Act