1858 is considered the year of the “Great Stink”, when London, the world’s largest city at the time, smelled so terrible that politicians decided: a sewage system was needed. The Thames had become a sewer. What fossil-fueled road traffic causes in today’s megacities can also be considered a lot of stench, yes, a lot of dirt. The difference: people don’t stink. At least not enough. Why is there any sympathy when the “last generation” climate defenders are sitting on the road. The car, the fetish of progress of the last decades, is becoming more and more a bad habit in the current conditions.
However, this protest cannot be justified. The Tiergarten District Court now has a young man from the ‘last generation’ sentenced to 60 hours of community service. The relevant crime is Article 240 of the Criminal Code, coercion. It is forbidden to use force to force people to do something they do not want to do. In this case: you have to stop in traffic.
Psychological abuse is not violence, the Federal Constitutional Court declared
In the face of protest blockades, this fact was fought for a long time in the demo republic of Germany. Can sitting be a criminal sin? No, the Federal Constitutional Court declared, because simply blocking seats is psychological coercion, but not violence. Yes, said the Federal Court of Justice, because in any event a protest about seats in road traffic causes people to stop, and the stopped cars become a physical blockade at the disposal of the seat blocker. Hence the violence.
The Constitutional Court clearly accepted this so-called second-level judicial practice. Without good reason, because what is happening looks like abuse, has the effect of abuse, and is intended abuse. Only successful coercion—traffic jams, police operations, and media reports—creates what the “last generation” wants: attention.
The boundaries of criminal liability are as fluid as superglue
However, fundamental rights apply. First of all, Article 8 of the Basic Law, freedom of assembly. You are also protected if the protest has not been registered or is even illegal, as in this case. Fundamental law requires that the relationship between the content of the protest and its external form is related. A busy highway is no place to call attention to human-caused climate change. Courts must assess when a protest is legitimate turns into a criminal blockade.
Borders are as liquid as superglue when they come out of the tube. But then it gets harder and harder. And this is the problem of self-recording, it also captures the criminal assessment. Therefore, acquittal should be relatively rare. Convicts should take it boldly. If you stick, you stick – also a strong symbol.