Decision by the district court of Flensburg on 07.11.22

At the beginning of 2021, the defendant, together with others, trespassed on a fenced area where a hotel was to be built. The defendant occupied tree houses with other people to draw attention to the planned felling of trees.

In the first of what will be a number of trials of demonstrators for occupiying the property, the judge acquitted the defendant with reference to the justifiable state of emergency (rechtfertigende Notstand), on the basis that the imperative of climate protection outweighed the protection of the hotel investors’ property protection. For the first time, it was assumed that a so-called justifying state of emergency existed and that the trespass of a tree squatter was thus justified. Therefore, the verdict can be interpreted as indicating that the imperative of climate protection (and protest in support of it) can justify a trespass.

Background
Demonstrators had torn down construction fences and squatted on the trees of the station forest where Flensburg entrepreneurs had planned to build an Intercity Hotel. Among them was the 41-year-old defendant, who from October 2020 to February 2021, had spent most of his time in a self-built shelter on the site, and was therefore accused of trespass. The station forest was felled in February 2021, contrary to other promises and without the official permission.

The plaintiffs, the hotel investors, applied for a penalty order. This was followed by a court order to pay a fine of 250 euros, which the defendant refused, and ultimately the hearing on the 7th of November.

Although the judge considered the crime of trespass to be proven, weighing the trespass against climate protection, she came to the conclusion that climate protection is a higher legal interest that substantially outweighs the interest of property protection of the forest owners. She further supported her reasoning by referring to the 2021 ruling of the Federal Constitutional Court, which had declared Germany’s then applicable climate protection legislation to be inadequate.

The court also considered, but rejected, the counter argument that reforestation elsewhere is planned as compensation. Because of the forest’s effect on the city’s climate as well as the fact that the biotope could not be easily replaced, the judge found that this replacement forestry elsewhere would be insufficient to compensate the loss of the area at issue.

Current efforts to start the construction of the hotel have been prohibited as a result of a lawsuit filed by BUND in order to clarify whether the investors have violated nature conversation requirements.

Relevant Law and Principles

 * Necessity Principle according to Section 34 German Criminal Code
 * Climate protection requirement of Art. 20a GG (Basic Law for the Federal Republic of Germany)

Takeaways
This is the first acquittal in climate protest cases based on § 34 StGB. The use of Section 34 German Criminal Code to justify civil disobedience had previously been rejected, but with this acquittal the discussion concerning the legitimacy of holding individuals responsible for certain forms of climate activism has reached a new high point. The verdict can be seen as a 'legal unicorn.‘ It remains to be seen, whether this judgement will be appealed and, if so, on what grounds.

Links

 * Verfassungsblog