No question: the climate activists are currently demanding a lot from society. The calls for tougher penalties are therefore getting louder and have already made it to the Bundestag. From a constitutional point of view, however, an increase in penalties would be exactly the wrong way to go.
There they are again. Every few years, when someone or something gets too close to mainstream morals, it’s not long before you can hear them: the shrill cries for tougher criminal laws. If you believe Twitter entries, Facebook comment columns or the statements of some politicians, harsher penalties are something like a blanket solution – for example for any kind of sexual offenses or for young people who break the ranks too early. Or against activists who stick to the streets in the fight against climate change. It is well known that harsher penalties do not lead to less crime. However, the demand for the heavy hand of the state seems necessary for many in order to endure the imbalance between their own values ??and reality.
“It’s easy to go to jail. Life imprisonment” is, for a Twitter user, the logical consequence for the “climate chaos”. For such positions, approval hails. A little later, as usual, politicians also get involved in the moral debate on criminal law. The Union faction has already submitted an application that wants to pour social indignation into law. Federal Minister of Justice Marco Buschmann also spoke out in favor of imprisonment for climate activists. At the weekend he followed up: If he comes to the conclusion that the existing penalty framework is not sufficient, “I will act”. What almost sounds like a threat to the criminal justice system feeds the lump-sum liabilityists, but starves the rule of law – for several reasons.
Penalties must be appropriate. Dozens of climate activists have already been sentenced, mainly for coercion. However, to the annoyance of the imprisonment-hungry crowd, the judges stayed within the lower range of sentences. For the blockade of roads or highways, there were usually fines in the three or lower four-digit range, sometimes community service. The offense of coercion carries a maximum penalty of three years in prison. The crux here – as is so often the case in the constitutional state – is right at the forefront in the Basic Law, in human dignity. The principle of guilt (nulla poena sine lege – no punishment without guilt) is derived from it. Meint: It is imperative that the judges base their sentencing on the basis of guilt.
Penalties, especially imprisonment, are the greatest encroachments by the state on the fundamental rights of the citizen. Above all, they must be in relation to the legal interest that has been infringed. In other words, the climate activists caused traffic jams lasting 30 to 60 minutes in most cases with their blockades. With all love for the drivers in Berlin, Munich and Cologne: That does not justify a prison sentence. So far, only the frames have been damaged in the mashed potatoes attacks on paintings. That’s certainly criminal damage, but it doesn’t warrant imprisonment either.
Especially not if you include the mostly missing criminal record and the motivation of the actions. Because that is also part of the principle of guilt: when it comes to sentencing, it plays a role whether the activists want to extort 100,000 euros for themselves or whether they want to save the world from the climate crisis. This has nothing to do with a lack of harshness in the judiciary or the personal preferences of the judges, but is a principle of the rule of law.
The main argument of the proponents of harsh penalties for climate activists is the risk of repetition and much-cited radicalization. Alexander Dobrindt even spoke of an emerging “Climate RAF”. The CSU politician probably didn’t have it any smaller. Apart from the fact that the climate activists do not aim to spread fear and terror, it is worth playing this thought game: Even if the activists become radicalized or a participant ends up in court again, the judiciary has all the means to react . It can increase the – already existing – penalty framework, consider other offenses and – as is already the case – bring through civil claims for damages.
In addition, the actions of the “last generation” are nothing that would overwhelm the judiciary. On the contrary: After the road blockades of the 1980s, the Federal Constitutional Court balanced the criminal liability of such actions and the fundamental right to freedom of assembly for years. In short: The judiciary has all the means to deal with the climate activists appropriately. She already does. Tougher threats of punishment are not only superfluous, but also come dangerously close to the fundamental rights of the activists.
Of course, anyone who has ever missed an appointment because of climate activists is free to vent their anger. Likewise for art lovers and all those for whom a red line has been crossed with superglue and mashed potatoes. But this morality has little to do with criminal law. On the contrary: the state even has to hide them to a large extent – for two reasons. On the one hand, it is at the core of a constitutional state to respect the fundamental rights and protective rights of its citizens – especially when the noisy crowd is against it.
On the other hand, criminal law is primarily designed to protect legal interests. It is not intended to punish the attitude of the perpetrators, nor to protect the morale of the crowd. That looked very different in the dark times of German legal history and is – precisely for this reason – quite objective today. For climate activists as well as for opponents of the corona measures that violate the Infection Protection Act or demonstrators who yell Russian propaganda into the microphone.
Neither the Union nor the Federal Minister of Justice should give in to the current call for increased penalties. Because the fact that the climate activists have not ended up in jail is not an expression of a lax judiciary or a hole in the law. Rather, it shows that the rule of law works.
