Judgments against roadblocks: why the judiciary has such a hard time with the actions of the last generation

If it were up to the anger of the people, the verdict would be against the activists of the so-called last generation, who block intersections to protect the climate.

Judgments against roadblocks: why the judiciary has such a hard time with the actions of the last generation

If it were up to the anger of the people, the verdict would be against the activists of the so-called last generation, who block intersections to protect the climate. "Lock everyone away" is the full-bodied credo of the outraged Twitter community or the "Bild" boulevard. There are also few comparisons from parts of politics, for example when CSU regional group leader Alexander Dobrindt feels compelled to brand the activists of the last generation as "Climate RAF".

So it's not surprising that in a recent survey by the online survey company Civey for "Spiegel", 86 percent of those questioned stated that they felt the climate activists had gone too far with their protests. 78 percent are also in favor of participants in such actions being punished more severely.

The number of court judgments is still manageable. According to a report in the "Süddeutsche Zeitung" there are only seven legally imposed penalties. The public prosecutor's office in Berlin applied for a so-called penalty order 266 times, mostly because of coercion, dangerous intervention in road traffic and resistance to law enforcement officers.

Such penal orders are quasi verdicts without a trial. A judge reviews the prosecutor's request and grants or denies it. If the judge waves the motion through, the accused can appeal within a time limit. Then the case actually goes to court. If the accused accepts the penalty order unchallenged, he is deemed to have been convicted.

After the latest reports that some activists have been sentenced for their blockades, it seems that the judiciary agrees that the tapes are illegal. But the impression is deceptive. In Berlin, a case has just attracted attention in which a judge rejected the public prosecutor's penalty order against an activist and very carefully, on seven pages, justified why he considers the actions to be legal. In two other cases in Berlin, judges did not issue the penal orders, but scheduled a main hearing in each case in which the allegations are to be decided.

For Carla Hinrichs, the press secretary for Last Generation, that's good news. She had previously demanded that the courts finally recognize "that civil resistance to a government course that is leading ever deeper into the climate crisis is morally and legally justified".

Let's leave morality aside, but because so many people in Germany would like to see activists punished more severely, it seems appropriate to show the legal background.

First of all: Such blockages are by no means new. Even during protests against nuclear power and retrofitting in the 1970s and 1980s, sit-ins were part of the protesters' arsenal in Gorleben, Mutlangen and Wackersdorf. As a result, this form of non-violent protest has now been examined by numerous courts, including the Federal Constitutional Court, and has been classified as constitutional. With the restriction: as long as there is no criminal offense.

In this context, coercion is a particular criminal offence, as is property damage, resistance to law enforcement officials, and dangerous intervention in road traffic. "Coercion" in this context is probably the most problematic issue. Because the legal assessment of whether an act of civil disobedience, such as a road blockade, constitutes coercion or not, is based on two criteria: Is it "violence?" And is it "reprehensible"?

The first question sparked a bitter legal debate that lasted almost 25 years. In 1995, the constitutional court finally reached a decision to decriminalize such protests. But the Federal Court of Justice did not want to accept that and came up with an extremely creative interpretation of the concept of violence, which was difficult for non-lawyers to understand and which has endured to this day. Such actions of civil disobedience may have a peaceful character for outsiders: for lawyers they are actually "violence".

But are they also "reprehensible?" In contrast to other paragraphs in the Criminal Code, the illegality of the coercion paragraph must be expressly established. And according to Section 240, paragraph 2 of the Criminal Code, it is only considered unlawful if the use of force for the intended purpose is classified as reprehensible. The end-means relation is considered.

But what does "reprehensible" even mean in this context? In the case of assemblies, the Constitutional Court has set specific criteria. Among other things, the type and extent of the effects on affected third parties and their fundamental rights must be assessed. Just like the duration and intensity of the actions. And if there was any prior notice about it.

According to these criteria, the Berlin judges are now judging whether the actions of the last generation are to be classified as coercion or not. And they have very different opinions. Because unlike many colleagues, at least one Berlin judge came to the conclusion in his decision of October 5 that the climate activist, who had blocked an intersection in Berlin-Friedrichshain for three and a half hours, did indeed fulfill the facts of coercion with her actions, but this was not unlawful because it lacked reprehensibility.

The judge stated that there was an "objectively urgent situation with at the same time only moderate political progress, taking into account in particular the coming generations, as the Federal Constitutional Court had to warn only recently". Motorists are also not completely uninvolved, but "significantly involved in the consumption of oil and thus part of the climate problem".

At least this judge has done what last-generation spokeswoman Carla Hinrichs hopes the proceedings against activists will do: "The court, like us, must now cross all borders with regard to the climate emergency. It needs a legal impetus, which then triggering a wave of acquittals."