Letzte Generation

The “Last Generation” — Criminal Association or Legitimate Protest Movement?

“The emer­gence of a climate RAF must be prevented” — with these words Alex­ander Dobrindt, head of the CSU parlia­men­tary group in the Bundestag, called for harsher punish­ment of acti­vists of the climate move­ment “Last Gene­ra­tion” at the end of 2022.

In December 2022, police sear­ched the homes of eleven members of the climate protest group as part of a nati­on­wide raid in various German states.

The Berlin law enforce­ment autho­ri­ties, however, rejected a corre­spon­ding initial suspi­cion. The audit commis­sioned by Berlin’s justice senator Dr Felor Baden­berg also came to the same conclu­sion in July 2023, although it was stressed that the movement’s clas­si­fi­ca­tion was subject to “perma­nent reas­sess­ment”.

The clas­si­fi­ca­tion of the “Last Gene­ra­tion” is contro­ver­sial not only in poli­tics, but also among legal experts.

The punis­ha­bi­lity of forming a criminal orga­ni­sa­tion is regu­lated in section 129 (1) of the Criminal Code: The forma­tion of or parti­ci­pa­tion in an asso­cia­tion whose purpose or acti­vity is directed towards the commis­sion of criminal offences punis­hable by a maximum term of impri­son­ment of at least two years is punis­hable by a fine or impri­son­ment.

There is consensus at least with regard to the partial ques­tion that the “Last Gene­ra­tion”, whose basic aim is to enforce an escala­tion of climate protec­tion measures from the poli­tical side, consti­tutes an asso­cia­tion accor­ding to the defi­ni­tion in section 129 (2) of the Criminal Code in view of its constantly growing number of members, the large number of exis­ting local groups, its inter­na­tional network and its internal struc­ture, which has been estab­lished in the mean­time.

The point of conten­tion is rather the ques­tion whether the purpose or the acti­vity of the “Last Gene­ra­tion” is directed towards the commis­sion of criminal offences. This requires at least an orien­ta­tion towards a larger or inde­fi­nite majo­rity of criminal offences.

Further­more, the Federal Supreme Court requires that the pursuit of the purpose poses a considerable danger to public secu­rity; thus, if the asso­cia­tion only wants to commit minor offences, there is no criminal asso­cia­tion.

In addi­tion, the assump­tion of a commis­sion under section 129 (1) StGB is excluded by section 129 (3) no. 2 StGB if the offences are only of minor importance as a purpose or acti­vity.

The “Last Gene­ra­tion” itself makes clear on its website that it regu­larly resorts to civil resis­tance measures in order to achieve its goals and that it also accepts the criminal prose­cu­tion of its members for this purpose; on the basis of this alone, the orien­ta­tion towards a range of criminal offences can probably be affirmed.

So far, these have mainly consisted of road blockades, various actions to damage or defile objects, inter­fe­ring with the func­tio­ning of oil pipe­lines and tres­pas­sing on private property.

One can discuss criminal liabi­lity for coer­cion, dange­rous inter­fe­rence with road traffic, damage to property, distur­bance of public busi­nesses and tres­pas­sing.

Now the ques­tion arises whether the actions of the “Last Gene­ra­tion” repre­sent a danger to public safety or whether they embody a purpose of the asso­cia­tion that is not merely subor­di­nate.

If one looks at whether the protest actions stir up feelings of fear in the popu­la­tion, one would have to deny a danger to public safety. In addi­tion, the orga­ni­sa­tion does not aim at commit­ting crimes against life and limb, but prima­rily against property and freedom of will; in this respect, the mate­ria­lity of the danger is at least doubtful.

However, the accu­mu­lated and broad impact of the campaigns on diffe­rent groups of the popu­la­tion must be taken into account. In addi­tion, the offences seem to repre­sent, espe­ci­ally recently, the very factor that gene­rates the most atten­tion for the “Last Gene­ra­tion” and thus repres­ents a defi­ning moment of their struc­ture.

It will probably be some time before a supreme court decision is issued on this discus­sion. However, most agree on one thing: compa­ring the “Last Gene­ra­tion” with the “RAF”, which killed over 30 people and carried out bank robbe­ries and bomb attacks, is clearly exag­ge­rated. Whether such a desi­gna­tion could consti­tute a punis­hable insult is also being debated.

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