Legal Procedures in Regulation of the Provision of Land for Burial

Burganova Guzel Vilsurovna Senior Lecturer, Department of Criminal Procedure and Criminalistics, Kazan Federal University 420008, Russia, Republic of Tatarstan, Kazan, Kremlevskaya str., 18, room 337 miss.burganova2011@yandex.ru

The right to burial of the deceased, guaranteed by Article 1 of Federal Law No. 8-FZ of January 12, 1996 "On Burial and Funeral Business" (hereinafter referred to as the Law on Burial ^[1]), has a special social and legal value. Its implementation makes it possible to observe the procedure established by cultural traditions for handling the body of the deceased, which is buried in accordance with customs or otherwise buried. The establishment of an appropriate regulatory framework for the implementation of the right to burial allows satisfying the social need for the organization of the burial place and the subsequent care of loved ones about the grave of the deceased. These circumstances emphasize the importance of the issue under consideration and the need for a scientific analysis of the procedure for granting land plots for burial. S.V. Mokhov notes among the problems of the ritual market imperfections of legal regulation, the lack of appropriate supervision by the authorities, as well as the actual delegation of powers in the area under consideration to local self-government bodies that are not part of the executive power system ^{[6, p. 85]}.

In such conditions, the appeal to the issue of providing land plots for burial is very relevant and meets the needs of legal science. The exercise of the right to burial is procedural in nature. Satisfaction of the need for the organization of the burial place of the deceased requires the implementation of a certain sequence of actions, the sum of which leads to the desired result. The concept of "procedure" (from Lat. "procedo" – a procession, a move, moving forward, going forward ^{[9, p. 722]}) in the legal doctrine is understood, first of all, as a certain sequence of actions ^{[7, p. 23]}. Any procedure pursues the achievement of a specific goal – in the context of the issue under consideration, the provision of a land plot for burial. The legal nature of the procedure is given by the specificity of the goal being achieved – the result of the procedure is legal in nature.

Acting as a means of stabilizing and normalizing the law enforcement activities of the authorized public administration body, the legal procedure ensures the regularization of the state's response to a person's request for recognition or implementation (protection) of their right. As a way of establishing the legal order, the legal procedure should be considered as a certain legal guarantee that ensures the achievement of the desired result – the realization of the right to burial. The current legislation establishes a guaranteed right to grant a land plot for burial free of charge (Article 7 of the Law on Burial).

Burial is considered as a set of ritual actions for the treatment of the body of a deceased person, which can be carried out in various ways. Burying the body of the deceased in the ground is the most common method of burial, but it is not the only one. Burial is a special case of burial, since along with it there is cremation as a way of putting the body of a deceased person to the fire, followed by placing his ashes in an urn. Thus, burial and burial relate to each other as private and general. The gratuitous nature of the provision of a land plot is a barrier to power abuses in such a sensitive area for society.

So a person can leave specific instructions about the form and method of his burial, the implementation of which is possible if there is a free plot of land or a plot located next to the grave of a previously deceased loved one. The realization of the right to provide a land plot for burial is possible without any prior instructions from the person himself. The executor of the will of the deceased person for burial is a specialized service, which emphasizes the territorial boundaries of the realization of the right to provide a land plot for burial, since they are determined by the specific municipality within which the specialized service operates. The merits of the deceased to society are predetermined by the realization of the right in question, taking into account the possibility of his burial in a military, memorial cemetery.

The legal status of relatives (relatives) of a deceased person in the context of the realization of the right to provide a land plot for burial is determined by the fact that they assume the obligation to carry out the burial and bear the burden of related costs. Public authorities and relevant legal entities provide assistance to the relatives (relatives) of the deceased in the process of organizing the burial. An alternative to traditional inhumation – cremation is considered as the preferred option for saving expended land ^{[3, p. 81]}, however, it also requires the organization of a burial place – in a columbarium or a wall of memory.

The regulatory and legal regulation of the activities of these specialized services is carried out at the local level, in connection with which the relevant legal act is adopted by local self-government bodies, which determines the scope of powers of the organizations in question. The purpose of the activities of specialized services is to exercise the full scope of authority in the field of meeting a publicly significant need for the organization of a burial site. In this regard, it is necessary to state the primary role of local law-making in regulating the procedure for providing a land plot for a burial place. The provision of land plots for burial is considered as a result of the provision of municipal services, which makes it possible to qualify this legal procedure as an administrative procedure.

By-law regulation of the legal procedure for the provision of land is carried out through the development of the adoption of municipal administrative regulations, which are quite typified and rarely differ from each other in the specifics of the definition of the procedure for the provision of land for burial. In fact, at the federal level, the regulation of the administrative procedure under consideration is carried out rather superficially, since the activities of funeral and funeral services are determined by municipal authorities, which emphasizes the key role of municipal law-making in the field of funeral and funeral services ^{[5, p. 35]}. A.A. Karlina and R.A. Nasirov consider such self-removal of the state as an attempt to absolve themselves of responsibility for what is happening in the funeral sphere ^{[4, p. 96]}.

Local self-government bodies, in turn, delegate powers in the area under consideration to specialized funeral services, to which interested persons apply. The range of potential applicants includes legal entities and individuals. Traditionally, the relatives of the deceased person, or other persons who have assumed the responsibility to carry out the burial, act as individuals. The legal entities that can assume this responsibility are usually the law enforcement agencies of the State. These are, first of all, internal affairs bodies, as well as institutions of the Federal Penitentiary Service of Russia, since it is under the jurisdiction of these state authorities that people whose death in some cases excludes the possibility of close relatives who can perform burial duties.

The sequence of actions within the framework of the implementation of the legal procedure for the provision of a land plot for burial is set by stages. The starting point is the actions of the applicant to submit the relevant application to a specialized service, which is subject to mandatory admission and registration. As part of the first stage of the implementation of the legal procedure, the authorized person carries out a preliminary assessment of the completeness of the information provided and the documentary support of the submitted application. The revealed incompleteness (unreliability) of the submitted documents, as well as the applicant's disagreement with the proposed boundaries of the land plot are grounds for refusal to provide municipal services. In some cases, the service cannot be provided if it is impossible to provide this land plot, for example, due to lack of space. Most often, the refusal to provide municipal services at the first stage does not ensure proper regulatory regulation of the consequences of such a refusal, in connection with which the subsequent actions of the applicant remain unresolved, and a similar situation ^{[8, p. 15]}.

The second stage in the process of providing a land plot for burial is to notify the applicant about the possibility of providing a land plot and determining its boundaries. The Administrative Regulations establish the minimum boundaries of the provided land plot and standards for determining its relationship with neighboring land plots. As the third stage of the administrative procedure under consideration, it is necessary to single out the registration of a land plot in respect of which all preparatory work has been carried out, which is confirmed by a certificate issued to the applicant. An important element of the system of guaranteeing the right in question is the placement of the body of the deceased in the morgue. The gratuitous nature of this action is set for up to seven days. This period may be extended if there are obstacles to the realization of the right in question, in particular, the search for relatives and relatives is carried out ^{[2, p. 24-25]}.

Persons who have assumed the responsibility for the burial of the deceased are notified of the specific location of the land plot provided for burial, and also assume responsibilities for its maintenance (arrangement) with the issuance of an appropriate certificate. The burden of responsibility for this land plot may be transferred to another person by submitting a corresponding application to the authorized public authority. Responsibility for this land plot provides for the need to maintain cleanliness, care and timely repair of grave structures. Cemeteries are a typical place for organizing the burial of deceased people on the territory of the Russian Federation. The cemetery administration acts as an organization responsible for the maintenance of the cemetery territory in proper condition and carrying out all necessary work on the installation of grave structures.

In most municipalities of the Russian Federation, cemetery administrations issue certificates (passports) for burial. This document is a confirmation of the right to use the relevant land plot for the organization of the burial place. The administration of the cemetery is subordinate to the administration of the relevant municipality and carries out the entire complex of economic and organizational work on the maintenance of the cemetery territory. The powers of the cemetery administration to provide the municipal service in question and to provide a place for burial are to allocate the appropriate land plot, establish its boundaries, inventory the land plot and prepare it for the burial of the body of the deceased.

In order to exercise the right to a plot of land for burial, a specialized service transports the body of a deceased person to the place of burial, or to another locality, if the will of the deceased person required it. A plot of land for burial is provided for indefinite use; its withdrawal is possible only in the case of established orphan burials. As you know, the right of indefinite use restricts the powers of a person, but the gratuitous nature qualitatively distinguishes it from various types of land lease. The use involves the operation of the land plot in accordance with its intended purpose. In the context of this study, this means using a land plot as a burial place for a deceased person without a fixed deadline. Temporary restrictions for burial plots can be established in the event of its ownerlessness (that is, the absence of responsible persons who have assumed responsibilities for the care of the plot). Guarantees of the realization of rights to a plot of land for burial are supplemented by a system of guaranteed burial services. This is the minimum service set provided free of charge by a specialized service. Services in excess of the stipulated minimum may be paid for by relatives (relatives). Failure to provide guaranteed services by a specialized service entails the onset of administrative responsibility. The quality standards of these services, as well as their price standards, are set by local governments.

Finalizes the provision of this municipal service by the direct provision of the relevant land plot, as a result of which the applicant is provided with a certificate of burial, which acts as a title and legal confirmation document. It should be noted that the municipal service in question is not provided as an independent guaranteed service included in the list of Article 9 of the Law on Burial, but acts as an integral element of the right to burial as such.

It is obvious that the wording chosen by the legislator "registration of documents necessary for burial" does not accurately reflect the essence of the service provided, in fact distorting the procedural nature of the provision of land for burial. The title of Article 9 of the Law on Burial clearly refers these actions to the category of services provided to the applicant, but the paperwork does not exhaust the entire content of the actions of the authorized bodies to provide the relevant site. In fact, with such a formulation, actions are performed outside the boundaries of the provided service to coordinate the provided land plot, which reduces the applicant's freedom of viewing within the framework of this legal procedure. It seems that the formula chosen by the legislator "registration of documents necessary for burial" should be replaced in Article 9 of the Law on Burial with a more appropriate phrase "provision of land and registration of documents necessary for burial".

It can be concluded that the right guaranteed by the current legislation to the burial of a deceased person is carried out within the framework of a specific administrative procedure, which is declarative in nature. Satisfaction of the socially significant need for the organization of the burial place is carried out through the provision of appropriate municipal services, which determines the establishment of the procedure for the implementation of this administrative procedure at the level of the relevant administrative regulations of the municipality. The legislation on burial superficially touches upon the issue of the procedure for providing a land plot for burial, in particular, the name of the corresponding guaranteed service is not precisely formulated. This requires a point correction of the text of the Law on Burial in part of the established list of guaranteed services.