Dhe climate activists of the “last generation” currently prefer two forms of protest: On the one hand, they sit on the street, causing a traffic jam. On the other hand, they visit museums to throw food at works of art or to stick to them. The fact that rules are violated is part of the concept. The activists call it “civil disobedience.” It is not always punishable – but it can be. Whether and how the penal code is violated depends on the precise course of action.
Actions in museums are quite easy to evaluate from a legal point of view: Even if pictures or sculptures are not directly damaged, for example because they are protected by a glass wall, there is usually considerable damage to protective devices or frames. This is criminal damage to property. If the activists ignore a request from the staff to leave the museum, trespassing can also be considered.
The sit-ins are more complicated to classify. You have occupied the highest German courts for decades. For a long time it was disputed whether a criminal act of coercion existed when demonstrators took to the streets. Lawyers mainly discussed two characteristics of the facts: whether the demonstrators use “violence” – and whether their actions are “reprehensible”.
What is “violence”?
The Federal Constitutional Court ruled in 1995 that a sit-in that stopped a car was not violence. Anyone who sits on the street and demonstrates is only exerting psychological pressure. A physical obstacle to the onward journey does not exist due to the seated demonstrators. The Federal Court of Justice reacted to this: It ruled that a sit-in is associated with violence if it causes a traffic jam. The second car that comes to a standstill encounters a physical obstacle – namely the first car that stops in front of the demonstrator. The Federal Constitutional Court approved this “second tier case law” in 2011.
Whether the actions of the demonstrators are “reprehensible” depends heavily on the individual case. The activists argue that their actions cannot be reprehensible simply because they serve to protect the climate. From a legal point of view, this does not go through: If courts declared such “long-term goals” to be sufficient to reject the reprehensibility of a blockade, the offense of coercion would always come to nothing. Rather, what is decisive is the scope of the Basic Law’s freedom of assembly. This allows demonstrators to choose where, when and how they gather. The constitution accepts that others are disturbed in their everyday lives as a result. The very purpose of freedom of assembly is to attract attention and influence public opinion.
