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.