’Some actions may be violence in the legal sense, but are not automatically punishable’

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Police officers detached the hand of a climate activist from the asphalt in BerlPolice officers detached the hand of a climate activist from the asphalt in Berlin. Activists of the ,,Last Generation’ had stuck one hand on the pavement during rush hour to protest against the German government’s climate policy. © picture alliance/dpa - Jörg Carstensen

Legal scholar Frank Zimmermann on the criminal law assessment of the current climate protests.

Defaced artworks, blocked roads or the blocking of the capital’s airport: calls for harsher punishments for the climate activists of the "Last Generation" are increasing among politicians, in public and in the media. In an interview with Kathrin Nolte, Frank Zimmermann from the Institute of Criminology, Department V, at the WWU explains how the protests are to be evaluated from a jurisprudential point of view and which penal provisions could take effect.

How are the actions of the activists to be assessed from a criminal law perspective in general?

It is difficult to make a general assessment of something in criminal law. One must always consider the individual case. However, there are some rules that are of overriding relevance to all types of criminal acts. For example, the rules on the state of necessity: It describes a situation in which you have to choose between an interest that you can save but have to sacrifice another interest for it.

It can be assumed that there is an emergency situation for the climate activists....

From the perception of the most active, there is an acute danger from climate change that supposedly justifies interventions such as the Germany-wide protests. But the emergency rule is not tailored to this. This is because it presupposes a present danger - i.e. a situation in which it is ’crunch time’ and an acute decision is required.

Is there a common textbook example of describing an emergency?

The attack by a dog is a good example. In order to fend off the animal, the attacked person has to break off his neighbor’s fence rail and thus damages the fence. It is true that climate change has progressed to the point where immediate action is needed to make a difference. However, the window of opportunity that exists for mitigating human-induced climate change is still comparatively long. Moreover, protest actions can at best contribute something very indirectly to averting climate catastrophe. Emergency norms are not intended for such cases.

So for the demonstrators, there is a risk that their protests could make them liable to prosecution?

Yes, legal experts have been discussing civil disobedience for decades. However, only a few argue that this situation, which is not regulated by law, precludes criminal liability. Ultimately, a general assessment of protests must at least always be based on fundamental rights such as freedom of opinion or freedom of assembly and their interpretation. Thus, one must not only have the criminal code in mind. For example, the coercion paragraph requires that the act be classified as reprehensible. If the act serves to stir up society, the behavior will often be protected by fundamental rights, in which case there is of course a lack of proportionality.

Is there a need to tighten up the existing criminal law regulations?

I can be brief about that: no. There are many penal provisions, such as coercion or damage to property, which can be applied if the protest of the climate activists is no longer acceptable in an individual case.

A letter from the "Last Generation" to the federal government states, "We will not cease this disruption until we receive a response from you that allows our conscience to stop. In doing so, we will maintain a disciplined nonviolent behavior." When is an action nonviolent and covered by the right to demonstrate and assemble?

Obviously, the concept of violence in the sense of the coercion provision in the Criminal Code is not meant here. It is true that according to the Federal Constitutional Court, for example, a mere sitting demonstration is not regarded as violence. However, this changes as soon as a physical element that goes beyond mere sitting in the street is added and physical coercion is thereby exerted on another person. This is the case when demonstrators chain or tape themselves down and thereby create a barrier on the road, but also already when a car driver has to stop and becomes an insurmountable obstacle for the following drivers. In this case, the effects on the further motorists are considered to be physical coercion, i.e. force. The concept of force in the coercion provision thus extends very far. This is precisely why the aforementioned test of reprehensibility, in which fundamental rights must be taken into account, is so important in this provision. One can therefore say: Perhaps at least some actions are already acts of violence in the legal sense. But this does not automatically make them reprehensible and punishable.