memorandum by Mr De Bruyn, rapporteur
This report was initiated by
a motion for a recommendation presented by Mr Mátyás Eörsi and several of
his colleagues in January 2010 (Doc. 12115
). The motion was based on the following historical and
- in the Jewish
religion, the cemetery has a holy character that is greater than
that of even synagogues. It is the “house of Life/of the living”
where the souls, which maintain an unbreakable link with the bodies of
the deceased, await the coming resurrection;
- the extermination of the Jews in many European countries
during the Second World War led to the disappearance of European
Jewish communities and the consequent enforced abandonment of many cemeteries;
- the critical state of disrepair and the persistence of
anti-Semitism in Europe create a need for special measures to protect
and preserve Jewish cemeteries and mass graves.
In the past, the Assembly has had several occasions to consider
questions relating to the preservation and development of traditional
religious cultures, particularly in its Resolution 885 (1987)
on the Jewish contribution to European culture and its Recommendation 1291 (1996)
on Yiddish culture, which are of relevance to this report.
3. The rapporteur wishes to thank Mr Eörsi for initiating the
motion for a recommendation and Ms Blanca Fernandez-Capel Baños,
the first rapporteur, who presented the outline report to the Committee
on Culture, Science, Education and Media in January 2011. The present
explanatory memorandum builds on the themes outlined by Ms Fernandez-Capel
Baños. The rapporteur has been assisted in this task by a consultant
expert, Rabbi Mendel Samama who has co-operated with the team of
the Grand Rabbi of France Gilles Bernheim to gather relevant information
on the current situation of Jewish cemeteries and mass graves in
Europe which forms a basis for the analysis in sections 2 and 3.
4. At its meeting on 6 March 2012, the committee held an exchange
of views with Professor Louis-Léon Christians, Chair of Law and
Religion at the Catholic University of Louvain in Belgium, and Ms
Petya Totcharova, Head of the Europe Unit at the UNESCO World Heritage
Centre, whose expertise and presentation contributed to the analysis
in section 4. The rapporteur also wishes to thank Mr Daniel Thérond, Head
of the Culture, Heritage and Diversity Department at the Council
of Europe Directorate General of Democracy (DGII), who provided
valuable guidance on the provisions of the Council of Europe Framework Convention
on the Value of Cultural Heritage for Society (CETS No. 199, “Faro
Convention”) that are of direct relevance to the issues raised by
5. The present report focuses on Jewish cemeteries. Indeed, they
may be considered to be more vulnerable than holy places of other
religions. However, the latter are also affected by problems of
profanation. As the Council of Europe Commissioner for Human Rights,
Mr Thomas Hammarberg, stated in November 2010: “In recent months,
desecrations of Muslim, Jewish, Christian Orthodox and Catholic
cemeteries have occurred in a number of European countries, including
the Czech Republic, France, Greece, Poland, Russia and Turkey …
Such acts of disrespect occur in almost all Council of Europe member
States. These hate crimes are urgent human rights issues.”
6. Other examples of profanation and threats to religious heritage
sites can be found in countries where population movements, particularly
resulting from conflicts, such as in the former Yugoslavia, have
separated communities from their places of worship. In Bosnia and
Herzegovina for example, more than 3 200 religious sites were damaged
or totally destroyed in the 1990s. Many were listed as cultural
and historic heritage sites. The economic crisis, lack of funding
and slow rate of return of ethnic minorities to war-affected regions
are the main reasons for a standstill in reconstruction and restoration
efforts. Religious representatives of Muslim, Catholic, Orthodox
and Jewish communities all agree that in areas where minorities
decide not to return, it is very difficult to restore and “revive”
damaged religious heritage. In addition, priority investments are
allocated for reconstruction of housing, schools, hospitals, enterprises
and infrastructure which are all necessary to boost the economic
development of the country.
7. The lessons learnt from the following analysis and the conclusions
of this report, including the proposals made to enhance protection
and preservation of Jewish burial sites, could therefore also apply, mutatis mutandis, to other religious
2 The situation of Jewish
cemeteries in Europe: an overview
8. In Europe, where the Jewish
presence dates back to Roman times, Jewish communities have suffered numerous
periods of exclusion and persecution. The majority of the Jewish
population was exterminated by the Nazis and their allies during
the Second World War and the survivors found themselves scattered
across the globe, obliged to leave their cemeteries behind them.
9. Joint efforts to protect and preserve these cemeteries have
been made by local and international organisations and by the authorities
in eastern Europe and elsewhere. They demonstrate not only a determination
to shoulder responsibility but also the wish to foster an awareness
of and draw lessons from history and, above all, to help preserve
this heritage and pass it on to future generations.
10. Since the fall of communism and the opening of eastern European
borders to tourists from the west, eastern Europe has again become
a focus of pilgrimage for Jews from all over the globe to visit
the places that were home to their forebears and the cemeteries
associated with those places. The visitors are the descendants of
the deceased, who wish to pray over family graves or the graves
of eminent rabbinical authorities of worldwide renown. It is also
important to remember the historical contribution made by Jewish communities
to creating the social, cultural and economic fabric of Europe.
11. The pilgrims also include non-Jews who wish to connect with
history and the legacy of their past. A number of specialist tourist
agencies have emerged, helping in parallel to promote the local
economy. The construction of protective walls, cemetery maintenance,
consultation of local archives and “adoption” of cemeteries by schools
are just some of the ways of enhancing this common heritage.
2.1 Description of Jewish burial
12. In order to describe accurately
and understand the significance of Jewish burial places, it is first
of all necessary to clarify their status in Jewish law and practice.
According to Jewish law, a cemetery, referred to as the “house of
the living”, and any Jewish burial place are regarded as holier
than the synagogue. Once a grave has been closed, whether an individual
tomb or a mass grave, old or recent, it is strictly prohibited to
reopen it, even if the intention is to immediately close it again.
13. Jewish tradition dictates the purchase of a grave to ensure
its permanence. If there are no heirs, or if the heirs are unable
to pay, the grave will be bought with money from the community.
The Talmud prohibits any transfer of a grave, and a corpse cannot
be moved from the place where it is buried. In the Jewish faith,
the soul of the deceased remains in direct contact with the body
and does not leave it. The promised resurrection will take place
in the body inhabited by the individual at the end of his or her
Even if the tombstones have been removed from the cemetery,
the site retains its holiness and remains sacrosanct. Accordingly,
a cemetery with only a few visible tombstones remaining may be a
burial place for hundreds of Jews. Moreover, even an isolated grave
without a tombstone or any other distinctive marking retains this
15. However, the term “burial places” covers more than just cemeteries:
in Jewish law and through our duty of remembrance, mass graves must
be regarded in the same light as cemeteries.
16. Memorials have been put up at a number of these extermination
sites, sometimes above or beside the mass grave itself, or sometimes
further away, if the site has become difficult to reach.
17. Nonetheless, it should be remembered that memorials serve,
by definition, to perpetuate events in the collective memory, but
not necessarily to protect sites steeped in history. Consequently,
the exhumation of bodies from a mass grave or tombs in a cemetery
to be replaced by a memorial cannot be seen as a form of protection.
2.2 Threats to Jewish burial
18. The overall situation of Jewish
burial places in Europe is alarming. For although there are still
traces of former cemeteries in towns and villages that have lost
their Jewish populations, their preservation and protection are
under constant threat.
19. The damage suffered by Jewish cemeteries in Europe is not
confined to desecration of graves by anti- Semitic groups or citizens
with no sense of civic responsibility. It has a more insidious cause
in the wrongful exploitation of old cemeteries abandoned after the
Holocaust or the forced departure of the communities that created
them. The damage is a result not only of inadequate management of
town planning by the public authorities, but also, particularly
in central Europe, of various forms of misuse of property and infringements
of measures protecting graves.
20. Old cemeteries are often simply destroyed and their land used
for the purposes of profit. Unauthorised development, together with
hasty and poorly regulated industrial restructuring, has led all
the more easily to abuses since the descendants of the deceased
are now dispersed far and wide and the remaining local communities
are small and lack the necessary financial resources, added to which
there is little interest in these old burial grounds, which are
wrongly regarded as having nothing to do with cultural heritage.
21. The legal status of these cemeteries may prove to be complex,
given the variety of legal situations in which both the burial places
and Jewish minorities find themselves. But it may also be the case
that this status has simply been disregarded or overlooked following
changes in the political system. It is also possible that the desecration
of graves associated with spatial planning abuses may be a result
of latent anti-Semitism.
22. It can therefore happen that a mere proposal from a property
developer can turn a cemetery into a hotel complex. Of course, while
this type of obliteration is real enough, we should not underestimate
the slow and tranquil erosion of these sites by the passage of time.
Moreover, unprotected cemeteries often fall victim to a process
of destruction and desecration, with first the disappearance of
the tombstones and then the gradual annexation of cemetery land
to neighbouring fields for more farmland.
In short, a number of factors come into play, but virtually
all burial places are threatened to various degrees by one or more
of the following:
- erosion over
time; growth of vegetation; pollution;
- unchecked access; annexation to neighbouring land; shortcut
for road or pedestrian traffic;
- vandalism: many cemeteries suffered damage before and
after the Second World War and during the Nazi regime; acts of desecration
and anti-Semitism; theft of tombstones and grave robbing; theft
of bones and gold teeth;
- inappropriate or inadequate maintenance; lack of resources
and legal tools requiring permission from Jewish interested parties
before any work on Jewish burial sites; discovery of “non-apparent”
Jewish burial sites which “appear” only when exhumation has already
24. Some desecrated Jewish burial sites have been converted to
be used for other purposes, such as farming, forestry, commercial
or industrial use. They have become residential areas, public gardens,
leisure parks, army grounds and storage sites; some have been turned
25. Various surveys have provided a picture of the progress made
in identifying some of these sites. For example, some have been
identified but are not protected; some have been partially demarcated
but are not surrounded by a protective wall, nor have their boundaries
been clearly defined; some have no in
situ markings identifying them as Jewish cemeteries;
and some mass graves date back to Soviet times and are therefore
not identified as Jewish burial places.
2.3 Consequences of desecration
26. The result of such lengthy
and irremediable desecration has been the complete disappearance
of all traces of a Jewish presence in towns and villages steeped
in history, thereby bringing a halt to the passing-on of history
to younger generations in these places. From a religious point of
view – quite apart from the obliteration of memories, history and
cultural heritage – this is an offence to Jewish holy places and
the dignity of the dead.
27. This situation has prompted Jewish organisations to co-operate
in drawing up a European legislative framework to make European
States and central and local government aware of the need for protection
and preservation measures which take all these considerations into
To this end, an in-depth studyNote
of international and European legal
texts relating to the protection and preservation of Jewish cemeteries
has been made by Professor Louis-Léon Christians (University of
Louvain- la-Neuve, Belgium).
Jewish organisations have set up bodies recognised by Jewish
communities in Europe, comprising committed stakeholders and experts
in Jewish law on burial places, to provide expertise for the protection
of cemeteries and mass graves in Europe. The Committee for the Preservation
of Jewish Cemeteries in Europe (CPJCE)Note
the Agudath Israel OrganisationNote
2.4 Examples of management of
cemeteries in certain Council of Europe member States
30. A Ministerial Circular of 19
February 2008 points out that the law of 14 November 1881, known
as the Freedom of Burial Act, established the principle of non-discrimination
in cemeteries and abolished the obligation to provide a part of
the cemetery, or a specific burial place, for each faith. However,
the circular authorises mayors to create faith-specific sections
in local cemeteries.
31. French law lays down the principle of granting burial plots,
which can be temporary (fifteen, thirty or fifty years) or in perpetuity.
If a grave is left untended for a period of thirty years, the mayor
can then (following a set procedure) recover the burial plot. However,
in cemeteries where burial plots have been recovered, the mayor
must issue an order for the creation of an ossuary to accommodate
the remains of individuals from the burial plots recovered in this
These points of French law raise a number of problems.
- The provision of a faith-specific
section does not rule out the possibility of a non-Jewish person
being buried in this area, which, under Jewish law, would deprive
it of its faith-specific nature.
- The individual faith areas are also subject to the principle
of burial plot grants, which are limited in time. This means that
if a grant is not renewed, the remains must be exhumed.
- The creation of faith-specific sections is solely at the
discretion of the mayor. This situation undermines individual freedoms
in the field of religious observance, since in heavily populated
regions faith-specific sections are becoming increasingly rare.
- The exhumation of the deceased and the placing of their
bones with others in an ossuary is contrary to the respect that
the Jewish religion accords to the dead.
- It is impossible for any community, whether Jewish or
not, to buy land for a cemetery. Accordingly, religious authorities
are trapped, because on the one hand they cannot refuse burial in
their faith- specific section to a person of a different faith and,
on the other, they are unable to buy land for their own purposes.
- Concession rights cannot be transmitted to any community
(including the Jewish community) once the concession holders (family
of the deceased) are no longer there to renew it or maintain the
concession. This situation leads to a termination of concession
rights and to numerous exhumations, leaving the Jewish community
33. A special legal system exists in the regions of Alsace and
Moselle. The Jewish cemeteries of Alsace and Moselle are governed,
as are all the activities of the consistories of Alsace and Moselle,
by the Royal Order of 25 May 1844 organising Jewish worship. What
distinguishes these cemeteries is the fact that they are owned by
the consistories, unlike elsewhere in France where cemeteries are
owned by local councils. Grants of burial plots in these cemeteries
are in perpetuity.
34. The organisation of funerals is the responsibility of the
consistory, which, because of health and safety regulations, delegates
some operations to approved companies. The consistory bears sole
responsibility for management of its cemeteries (grants of burial
plots, maintenance, etc.).
35. Communities which had cemeteries for their own faith prior
to the law of 1905 on the separation of church and state are still
in possession of those cemeteries, and they are still used in so
far as space remains.
36. Belgium does not have many
cemeteries, and few of them are old. The State makes “sections”
available to the Jewish community, and the latter is responsible
for administering them. Maintenance is provided by local councils
in most cases.
37. The system of granting burial plots is also used, plots being
granted for renewable periods of fifty years. There have been no
cases of grants coming to an end, and the Jewish community has been
given responsibility for renewals.
38. However, some members of the Jewish community prefer to be
buried in the Netherlands, which is not far away geographically
and which offers grants in perpetuity. At present the overall situation
is not particularly difficult, but the question of time-limited
grants will eventually pose problems.
39. The Jewish community owns cemeteries
and faith-specific sections and manages them itself. Nevertheless,
disrepair and a serious need for maintenance and greater security
have been noted.
40. The rabbinate of Poland is
responsible for its cemeteries with the aid of the Foundation for
the Preservation of Jewish Heritage in Poland. The government also
provides assistance to the community.
41. This situation does not prevent disrepair or indeed the virtual
disappearance of cemeteries in small towns and villages. For example,
on 10 May 2011 the cemetery in the town of Neswige became a park
and a right of way for residents.
42. A problem has emerged in Bobganiwka
(province of Nikolayev), where the cemetery is on the edge of the
former Jewish kolkhoz (or
collective farm). During the war, Jews were shot and thrown into
a mass grave dug in the cemetery, but now it has been found that
there are five non-Jewish graves there. Moreover, the cemetery is
under growing threat from the increasing ground subsidence caused
by the digging of a sand pit next to it.
3 Case studies
43. It would be helpful to study
some specific cases from recent years in order to identify good
and bad practices.
3.1 Good practice for protection
of Jewish burial places
3.1.1 Stuttgart (Germany) – US
army airfield, 2005
44. A mass grave of Holocaust victims
(36 bodies) was discovered during reconditioning of a road next
to a military runway used by the US Air Force.
45. Despite the historical evidence provided, it took lengthy
international negotiations, including intercession by the Agudath
Israel Organization with the relevant authorities at the Pentagon,
for the authorities to be persuaded that the bones were indeed those
of Nazi victims. CPJCE representatives were obliged to bring a surviving
witness of the period to the scene. A specialist was brought in
to “rearrange” the bones, which had been all placed together, unsorted,
in plastic bags, in order to reconstitute the skeletons. Tribute
must be paid to the co-operation from the local and military authorities,
which then gave the CPJCE permission to rebury the bodies in coffins
in the same place where they had been discovered in order to observe
religious precepts. An agreement was reached to preserve and protect
46. Various parties were involved in settling this problem: the
CPJCE provided its expertise in body identification and rabbinical
law, while Agudath Israel led the political approaches to the Pentagon
and demonstrated its diplomatic abilities in making the highest
authorities aware of how serious the matter was in human and religious
3.1.2 Toledo (Spain) – land belonging
to the Azarquiel school, 2009
47. Following the expulsion of
the Jews from Spain in 1492, the old historical cemetery in Toledo
was destroyed. Its site was still known, however. During building
work at the Azarquiel school, Jewish graves were uncovered.
48. The CPJCE spent considerable energy enlisting the Federation
of Jewish Communities in Spain and various rabbinical organisations
(Conference of European Rabbis and the Spanish Rabbinical Council)
in order to find a solution together with the government authorities.
49. The case was very complicated because of the stage reached
in the building work, the need to change the original plans and
the time required for consulting Jewish organisations and obtaining
50. The accepted compromise was a partial amendment of the original
51. This was a very significant and valuable experience. The Spanish
Government showed a strong commitment to taking account of the religious
aspects of the matter in seeking a solution.
3.1.3 Belzec concentration camp
(Poland) – government land, 2001-04
52. Belzec concentration camp in
the south-east of Poland was built by the Nazis in late 1941. It
was the first camp to use gas chambers. Between February and December
1942, hundreds of thousands of Jews and Roma were killed and thrown
into mass graves. At the end of the war, seeking to remove evidence
of their crimes, the Nazis opened up the graves in order to burn
the human remains, then scattered the ashes and planted trees over
the graves to disguise the scene. There is a painting of the time
showing these events.
53. When the war ended, the site was neglected for various reasons,
which resulted in serious damage, with bones becoming visible whenever
there was heavy rainfall. Once informed of this, Jewish organisations
and the Union of Jewish Communities in Poland undertook restoration
54. The American Jewish Committee provided funding for land consolidation
and the memorial.
55. The CPJCE also played a key role in this work, amongst other
things by carrying out a meticulous inspection of the site using
satellite navigation technology to confirm the number and location
of mass graves. A change was made to the plan for the memorial in
order to take account of the CPJCE’s findings.
3.1.4 Vilnius (Lithuania) – government
56. The large historic Jewish cemetery
in Vilnius was destroyed under the Nazi and communist regimes. All the
tombstones were removed and were often used for domestic buildings.
A sports complex was built on part of the cemetery. In recent years,
Vilnius City Council drew up a property development plan for the
cemetery site, and unfortunately a number of buildings have already
been constructed. The desecration of the site led to massive protests
worldwide. Agudath Israel and the CPJCE worked at diplomatic level
to find a way out of the crisis. The Lithuanian government invited
the interested parties to come to Vilnius to investigate and begin talks.
57. After lengthy negotiations, an agreement was reached to protect
the cemetery, including a pledge given by the government to prohibit
any further building anywhere on the cemetery and official recognition
of the cemetery as a historical site.
58. Europe was a major centre of Judaism from the 17th to the
20th century; it is therefore extremely important for this heritage
to be respected and protected.
3.1.5 Mass graves in Ukraine
59. “Yahad-In Unum” is the main
association investigating the mass executions that resulted in the extermination
of one and a half million Jews and Roma in eastern Europe between
1941 and 1944. While the atrocities committed in the concentration
camps are well known, this is not the case for the genocide of Jews and
other victims of the Nazis and their allies perpetrated in the former
60. Through its investigations, Yahad-In Unum has discovered hundreds
of mass graves of victims killed in eastern Europe and has recorded
statements from over 1 850 witnesses. This unique database is now
of particular importance to Jewish organisations in Europe.
61. In 2011, a co-operation agreement was signed between Yahad-In
Unum, the CPJCE and the American Jewish Committee.
62. What is special about this unprecedented co-operation is that
it combines different skills for a single purpose: protecting cemeteries
and sites of execution. Yahad-In Unum contributes its field expertise
in the form of investigation reports and satellite navigation data.
These provide accurate information on the circumstances of executions
and the precise location of mass graves. The CPJCE is the official
rabbinical body authorised to oversee protection methods and procedures
for these sites. The American Jewish Committee plays a key part in
co-ordinating the work. This is in partnership with the German Government,
which has undertaken to provide several tens of millions of euros
to finance the work of protecting mass graves.
63. This co-operation agreement is at present focusing on the
protection of five pilot sites in Ukraine. The agreement seeks to
clarify working standards for each of the organisations in order
to capitalise on the best from the fields of rabbinical law (CPJCE)
and historical information (Yahad – In Unum), with an international co-ordinating
body (American Jewish Committee).
64. The various cases cited above demonstrate that a basic precondition
for any agreement is recognition by the authorities of a site’s
historical nature and the fact that it forms part of the heritage.
This not only paves the way for negotiation but is also a sign of
commitment to the next crucial next step: the quest for a genuine solution.
65. It is also important to acknowledge the religious dimension
in everything relating to Jewish heritage and especially burial
places. Rabbinical law is very intricate and calls for international
expertise and credibility. It is therefore essential to act in consultation
and extremely close co-operation with the appropriate European authority
in this field, the CPJCE and Agudath Israel.
3.1.6 Ennezat (Auvergne, France)
– medieval Jewish cemetery
66. The aim of the Paris-based
Association for the Protection of French and European Jewish Heritage (Sauvegarde
du patrimoine juif français et européen, SPJFE) is to help preserve
monuments of historical and cultural interest for the history of
Judaism in France and in Europe. One of its projects is to protect
and restore the Jewish cemetery in Ennezat (Auvergne), known for
several centuries as “the Jews’ field”.
67. This cemetery dates from the 13th century and by the 15th
century contained a total of 700 graves. The site is remarkable
in Europe for the number and homogeneity of the graves.
68. In 1992, salvage excavations were undertaken by France’s National
Institute for Preventive Archaeological Research (Institut national
de recherches archéologiques préventives, INRAP). The land covering
the graves belonged to private owners. The SPJFE, supported by the
Fondation Matanel, became involved in the project in late 2008.
69. In June 2009, the site was listed as a historical monument.
A project team was put together with an architect as project leader.
A steering committee was set up with the mayor, the Auvergne Regional
Director for Cultural Affairs, the Auvergne Cultural Heritage Officer
and representatives of central and local government. The SPJFE purchased
the land (9 600 m2).
70. A restoration project is in preparation, comprising a meditation
park with a history and remembrance trail and a museum with replicas
of gravestones and facsimiles of known records and studies. It will
be submitted to local and central government in early 2012 for funding.
Maintenance and security for the restored site will be provided
by the local council and will be covered by a long lease.
3.1.7 Bosnia and Herzegovina –
old Jewish cemeteries in Sarajevo, Bihać and Travnik
The old Jewish cemetery in
Sarajevo is one of the largest Jewish burial sites in Europe and
is of outstanding value. It records certain features of the life
of the Sephardim community since their expulsion from the Iberian
peninsula in the 16th century, and later of the Ashkenazi community.
In addition, the cemetery reflects the development of the city of
Sarajevo over the centuries. The Sephardim created their own unique style
of tombstone which in their house-like shape, artistic treatment
and polysemic symbolic motifs, resemble no other Jewish tombstones
elsewhere in the world. There are more than 3 850 tombstones with
four memorials erected to the victims of fascism and several cenotaphs
in a total area of 31 160 m2. This cemetery was on the frontline
during the 1992-1995 war in Bosnia and Herzegovina and suffered
important damage. The main threat to the cemetery today is landslide
which is causing entire graves and their tombstones to shift. About
95% of the tombstones are estimated to be damaged. The entire burial
complex has been neglected and is overgrown.Note
The Government of the Federation of Bosnia and Herzegovina
is responsible for ensuring and providing measures necessary to
protect, conserve, display and rehabilitate this national monument.
With the approval of the Federal Ministry responsible for regional
planning and under the expert supervision of the heritage protection
authority, initial measures have been taken to protect the site
and to prevent further damage: a protection zone has been established
consisting of a 20m strip outside the cemetery walls, a drainage
system has been completed around the main chapel during restoration
work to stabilise it structurally, illegal construction in the surrounding
area has been strictly prohibited. However, funding is pending to
complete the work to secure and stabilise the entire burial site,
namely to complete the draining system to remove groundwater from
the entire site and to build structural elements to stabilise the
slope. Once this is completed, additional funds will need to be
raised to undertake restoration of severely damaged tombstones,
monuments, walls, gates and pathways.Note
73. The Jewish cemetery in Bihać was founded in 1875. Since 1937,
the Jewish community has collected funds from its members and built
a 2m high fence around the burial site with a gate on its north
side. Monuments were destroyed and the fence was damaged in the
Second World War. Reconstruction of the fence and the gate has recently
started, but the cemetery remains unsafe and the construction has
not been completed due to insufficient funds. The restoration project
has been developed, but an additional €75 000 are needed to complete
74. The oldest monuments in the Jewish cemetery of Travnik date
back to 1762. The Jewish community in Travnik regularly maintained
and preserved the cemetery until 1941. It was then completely abandoned
after many Jews were taken to concentration camps. A few returned
after the Second World War, but there were no Jewish families originating
from Travnik left after 1951. With the contribution of the Federation
of Jewish Communities in Yugoslavia, the cemetery was at one point
fenced with a simple wooden railing which did not last for long.
The cemetery is at present in very bad condition, even though it
is of exceptional heritage value. The municipality of Travnik and
the Jewish community of Bosnia and Herzegovina have the intention
of requesting that this cemetery be granted national monument status
in order to preserve it from further decay.
3.2 Examples of difficult cases
75. Unfortunately, European experience
is not confined to good practice; Jewish organisations in Europe sometimes
come up against indifference and deliberate desecration of Jewish
3.2.1 Grodno (Belarus) – football
stadium belonging to the Neman Football Club, 2003
76. In 1968, the land of the Jewish
cemetery (the final resting place of a number of major figures of
Judaism, such as Rabbi Alexander Ziskind, who died in 1794) was
seized by the communist government and a stadium was built on it.
In May 2003, the Grodno authorities authorised an extension to the
Neman football stadium on the site of the Jewish cemetery. During
levelling of the foundations, the authorities were unperturbed by
the uncovering of graves; human remains were dug up and desecrated,
and lorries were filled with bones. Yet this project had the support
of the International Olympic Committee.
77. The CPJCE, the Jewish community in Belarus, the Conference
of European Rabbis, the American Chairman of the Commission for
the Preservation of America’s Heritage Abroad, the European Parliament
and several diplomatic missions in Belarus began to take action.
78. Meetings with a large number of representatives of the Belarus
government had no effect; the assurances given by central government
concerning protection of the cemetery were just empty words.
79. Despite a visit to Grodno by a delegation from the European
Parliament, intervention by the British Foreign Office and French,
German and Polish diplomats, as well as public protests at Belarusian
embassies in London and Brussels, nothing was achieved.
3.2.2 Metz (France), 2003
80. The Jewish community in Metz
used to be one of the most distinguished in Europe. The old historic Jewish
cemetery was on the Avenue de Blida and contained several hundred
graves. Today the site is a car park.
81. It seems that at the time of the German occupation a section
of the cemetery was dug up. However, research carried out in conjunction
with the Préfecture of Metz in November 2005 using ground-penetrating radar
and non-intrusive soil scanning technology confirmed that, despite
the absence of tombstones, the remains of a cemetery have been found.
82. Use of this area as a car park therefore constituted a desecration
of the site. Following numerous political and diplomatic appeals,
it was agreed by the Préfecture that the site would be recognised
as a Jewish cemetery and a replacement location for the car park
would be found by the city council. Implementation of this decision is
4 Protection and preservation
of Jewish cemeteries
83. The question of protection
and preservation of Jewish cemeteries shall be considered from two standpoints:
that of defending fundamental rights enshrined in the European Convention
on Human Rights (ETS No. 5, “the Convention”) and that of preserving
Europe’s common cultural heritage.
4.1 Aspects relating to human
The following fundamental rights
embodied in the Convention may apply to the protection and preservation
of Jewish cemeteries and burial sites:
- Article 8 – Right to respect for private and family life:
“Everyone has the right to respect for his private and family life,
his home and his correspondence”, which has been interpreted by
the European Court of Human Rights as extending, in certain cases,
to the relationship of family members with a deceased parent.
The right to rest in peace, interpreted as a right to privacy,
has been only admitted by the European Court of Human Rights as
a right to be relied upon by individuals who are alive. There seems
to be no direct right to private life for the deceased that would
guarantee the right to rest in peace. However, the protection of
the right to private and family life of the living applicants could
be envisaged within their relation with the deceased.
- Article 9 – Freedom of thought,
conscience and religion: “Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion
or belief and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.”
86. Article 9 involves protection for an individual’s core belief
and for the right to manifest such beliefs either individually or
with others, and both in private and in the public sphere. The case
law clarifies that State authorities may not only be required to
refrain from taking action which would interfere with thought, conscience and
religion, but also in certain circumstances to take positive measures
to nurture and to protect these rights.
In his “Human rights comment” of 30 November 2010,Note
Council of Europe Commissioner for Human Rights stated that: “The
European Convention on Human Rights protects the right to freedom
of thought, conscience and religion. This right encompasses the
protection of religious buildings and sites from unlawful damage.
However, some national authorities see these acts as ‘low social
harms’ that need not receive priority in terms of investigation
and prosecution. This is a wrong choice.”
- Article 1 of the 1952 Protocol to the Convention (ETS
No. 9) – Protection of property: “Every natural or legal person
is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general
principles of international law.”
88. Most Jewish cemeteries enjoy the status of private property.
Therefore, jurisprudence on expropriations are pertinent to oppose
certain spoliations or misuses. Permanent plots in public cemeteries
should enjoy a similar status.
89. The rapporteur considers that there should be a responsibility
to protect human dignity in the broader sense by preserving deceased
persons in their place of burial and to respect their religion by
ensuring that they are preserved in a manner compatible with their
religious practice. The question of individuals’ and communities’
right of access to these cemeteries, together with that of ownership,
must also take account of these fundamental rights, while bearing
in mind differences between cemeteries still in use, those that
are not used but are protected and those that have been abandoned.
4.2 Aspects relating to the
preservation and protection of the European heritage
4.2.1 The Faro Convention
90. The Council of Europe Framework
Convention on the Value of Cultural Heritage for Society which came into
force in June 2011, arose from the desire to provide a framework
of reference for heritage policies and to draw on the positive benefits
which can be derived from the use of the heritage as cultural capital
and as a development resource. Moreover, the European cultural heritage
is seen as a primary resource for a democratic engagement in support
of cultural diversity.
91. The convention recognises the need to put people and human
values at the centre of an enlarged and cross-disciplinary concept
of cultural heritage. Furthermore, it promotes the concept of a
common European heritage by asserting the principle of every person’s
right of access to the cultural heritage of his or her choice, while
respecting the rights and freedoms of others. The convention therefore
establishes an important link between the protection of fundamental
rights and heritage protection. The following articles could be particularly
relevant to the protection of Jewish cemeteries.
92. A “heritage community” is defined in Article 2.b as consisting “of people who value
specific aspects of cultural heritage which they wish, within the
framework of public action, to sustain and transmit to future generations”.
93. Article 3.a states, inter alia, the need to promote
all forms of cultural heritage in Europe which together constitute
“a shared source of remembrance, understanding, identity, cohesion
94. In support of building tolerance, respect and mutual understanding,
Article 4.b states that “everyone, alone
or collectively, has the responsibility to respect the cultural
heritage of others as much as their own heritage”, thus upholding
the concepts of “common heritage of Europe” and “common responsibility”.
95. The convention also promotes respect for integrity of the
cultural heritage by asking States parties to ensure that decisions
about change include “an understanding of the cultural values involved”
(Article 9.a), and that “general
technical regulations take account of the specific conservation
requirements of cultural heritage” (Article 9.c).
96. The convention’s approach to procedures is also innovative,
requiring States to “take into consideration the value attached
by each heritage community to the cultural heritage with which it
identifies” (Article 12.b) and
to “develop legal, financial and professional frameworks to make
possible joint action between public authorities, experts, owners,
investors, businesses, non-governmental organisations and civil
society” (Article 11.b).
97. The provisions of the Faro Convention therefore provide an
excellent and innovative guidance to the member States and also
to numerous “heritage communities”, including the Jewish communities,
in their quest to preserve their specific cultural heritage, and
with it their cultural identity and history.
4.2.2 The Enlarged Partial Agreement
on Cultural Routes
98. A European Route of Jewish
Heritage was established in 2005 under the auspices of the Council
of Europe Enlarged Partial Agreement on Cultural Routes.
99. This route intends to make European citizens aware of the
cultural richness brought by the Jewish people to many different
regions of Europe. The project aims to preserve and enhance part
of the European cultural heritage that the Jewish sites represent
(synagogues, cemeteries, mikve,
etc.). It also draws on the historical evidence of cultural exchange
with diverse societies the Jewish communities lived in, as reflected
in different architectural styles of synagogues, the use of different
languages such as Yiddish and Ladino, etc.
100. The route, stretching from Dublin to Ankara and from Helsinki
to Malta, with a strong focus on eastern and central European countries,
should contribute to the spiritual and historical restoration of
destroyed Jewish communities and to enhanced knowledge about Europe’s
history. The route not only enables visitors to discover the history
of the Jewish people but also enables them to gain a better knowledge
of their local and national history.
101. There are numerous Jewish cemeteries
in Europe and they need to be protected and preserved. They are
part of the European cultural heritage and constitute an important
element of the Jewish religion. These cemeteries are probably more
at risk than those of other confessions in Europe, on account of
the Jewish people’s tragic history which led to the extermination,
exodus or resettlement of many local communities. Governments, members
of Jewish communities and heritage organisations have a responsibility
to develop appropriate forms of co-operation to ensure their protection.
102. The Faro Convention provides timely and innovative guidance.
It provides an open definition of heritage that, without excluding
the exceptional, particularly embraces the commonplace heritage
and the value attached to it by the specific heritage communities
and/or society at large. It addresses the right to cultural heritage
– seen as an integral part of the right to participate in the cultural
life of the community and the right to education – and generates
the idea of a “common European responsibility” towards cultural
heritage. In this respect, the Faro Convention also provides practical
guidance for the organisation of public responsibilities to preserve
and enhance cultural heritage and for the processes of democratic
103. The ratification of the Faro Convention by more member States
would facilitate the development of a cross-disciplinary approach
to dealing with cultural heritage, and setting up appropriate participatory mechanisms
to implement such policies. These policies should also include the
preservation of cemeteries and places of burial.
104. The European Route of Jewish Heritage could help raise public
awareness of the Jewish culture and history and it could provide
concrete opportunities and incentives for the protection and preservation
of Jewish heritage sites, including cemeteries and mass graves.
105. The Parliamentary Assembly could also recommend drafting specific
guidelines for the protection and conservation of existing types
of Jewish and other religious communities’ cemeteries (namely Christian
and Muslim cemeteries in south-eastern Europe – countries of the
former Yugoslavia, Turkey, Greece, Cyprus – and the Caucasus countries),
in accordance with both religious practices and heritage conservation
106. The guidelines could address specific issues of relevance
to different types of heritage, such as: cemeteries of historic
importance which are part of the “listed” cultural heritage; cemeteries
of victims of wars or terror (including mass graves); tombs of religious
leaders and other dignitaries; anonymous graves; religious buildings
such as synagogues, tomb stones and other religious objects which
form part of a given burial site. Specific consideration should
also be given to the current state of heritage, whether it is abandoned, transformed
or in use. Moreover, the guidelines should include material preservation
and renovation; historic preservation through gathering of historic
data in museums, archives and on websites; and religious preservation
through strict respect of religious requirements.
107. Bearing in mind the contribution made by Jewish communities
to the social, cultural and economic fabric of Europe throughout
history, special attention should be given to education and awareness-raising
initiatives that promote knowledge of local history and local cultural
heritage; stress the urgent need to protect and preserve burial
sites in danger of desecration; damage or disappearance; and offer
visibility to burial sites, by means of virtual libraries with maps,
photographs and testimonies. In addition, there is a need to encourage pilot
projects involving schools and local associations in building protective
walls, taking part in cemetery maintenance, consulting local archives,
“adopting” cemeteries, etc.
108. Member States should be also invited to address a number of
legal, technical and management issues of direct relevance to local
stakeholders engaged in the protection and conservation of heritage
sites, such as: partnership mechanisms, property issues, town planning,
specific conservation requirements, effective control over local
development projects, developing programmes to locate burial sites,
using non-invasive technical devices (such as ground-penetrating
radar), facilitating technical investigations and identification,
regulating access to burial sites, etc.
Co-operation with the European Union and other institutions
could be sought in this area. In Kosovo,Note
example, the Council of Europe offers assistance to improve legal
frameworks and practical mechanisms that protect and promote heritage.
Since 2004, these activities have been managed as a joint programme
with the European Union “European Union/Council of Europe Support
to the Promotion of Cultural Diversity in Kosovo” through the Reconstruction
Implementation Commission (RIC). This specific project aims at increasing
cultural heritage rehabilitation activities with all relevant institutions,
using cultural heritage as a tool for reconciliation and dialogue