Climate activists feel justified in their actions. From their subjective perspective, they are fighting for a legal asset that is supposed to justify all their actions.
From an objective point of view, the standard for what is permissible is, of course, the existing legal framework, which has been normed by democratically legitimized state authorities and applies equally to everyone. Therefore, the regular - not to say 'normal' - way to pursue socio-political concerns is to seek corresponding majorities in parliament.
Nevertheless, let us stick with the current legal situation: the right to demonstrate is constitutionally protected, and its exercise is, of course, to be guaranteed, at least with prior notification. This is provided for in administrative law to give the authorities the opportunity to impose necessary restrictions on a case-by-case basis if it is necessary and proportionate to protect the fundamental rights of individuals. This could be the case, for example, when it comes to protecting the ability to navigate for emergency vehicles.
Let us take our analysis a step further towards illegality: when demonstrations are held without prior notification and official approval, as is typical for "flash mobs" and similar events, it constitutes an illegality that typically falls under administrative law and is subject to administrative penalties. Only when unannounced protests or blockades by gluing oneself to the asphalt impair legal interests protected by criminally punishable offenses does the situation change. In such cases, primarily offenses like bodily harm and endangerment come into consideration, for example, in the case of unannounced protests by gluing oneself to the asphalt or blockades at hospital entrances. Individuals take on this criminal risk when they engage in unannounced actions that deprive the authorities of the opportunity to fulfill their responsibility to ensure that there is no impairment of legally protected interests.
Austrian criminal law recognizes only one offense related to endangerment that is relevant in this context: § 89 of the Austrian Penal Code (StGB) threatens with imprisonment of up to three months or a fine of up to 180 daily rates for anyone who intentionally or grossly negligently poses a danger to the life, health, or physical safety of another person. This offense is applicable in many cases, such as highway blockades. Given the potential for concrete dangers posed by unannounced and therefore illegal blockades, and the comparatively low potential penalties, the calls for stricter penalties in terms of legal policy – especially in comparison to other European countries – are understandable.
Let us take another step further: intentional attacks on property are legally punishable as property damage. It is sufficient for a foreign movable property to be "destroyed, damaged, disfigured, or rendered unusable." This criterion is met in cases of spray-painting on facades or other objects. Additionally, "deflating" the tires of a vehicle, rendering it unusable, also falls under this offense, regardless of whether it is an SUV in an upscale neighborhood or the bicycle of an environmental activist. The law applies equally to everyone.
Furthermore, the question arises whether the behavior of climate activists can be subsumed under the offense of coercion (§ 105 StGB). According to Austrian law, a punishable act of coercion requires the use of violence. In Austria, the prevailing view defines violence as the use of not insignificant physical force to overcome actual or expected resistance. This means that roadblocks created through sit-ins or human chains do not meet the criteria of § 105 StGB and, therefore, activists who glue themselves to the road are not liable under this provision. It is interesting to compare this with German law, which defines the concept of violence more broadly. German courts interprets violence, under the so-called "Vergeistigungstheorie" (concept of spiritualization), as any means by which pressure is exerted on the will or behavior of another through a present and sensitive harm. Due to this broad interpretation of violence, unlike in Austria, sit-ins by climate activists are encompassed by the German offense of coercion.
From this perspective, especially criminal law provides a clear distinction between legal and illegal actions.
Furthermore, it must be mentioned that the generally accepted principles of "civil disobedience" can provide a basis for legitimizing formally illegal actions to a certain extent. The discussion about how far this justification can actually go was fueled in Austria, especially by the controversies surrounding the Hainburg power plant in the 1980s but naturally could not lead to truly clear results. Those who invoke this defense still act at their own risk, especially since the initial efforts to give greater consideration to climate protection in the highest court literature do exist, but are unlikely to yield truly sustainable results in the foreseeable future that could ensure an effective expansion of justifications based on climate protection. In this context, the climate ruling of the German Federal Constitutional Court on March 24, 2021, is particularly noteworthy.
In conclusion, it is important to differentiate more precisely when assessing phenomena such as the actions of dedicated individuals like climate activists, by considering which legal interests are affected and to what extent they are protected either under administrative law or through criminal offenses. In the latter case, an absolute boundary is reached, one that can only be shifted by the democratically legitimized legislator.
If you have any questions, please do not hesitate to contact the KWR white collar criminal law team.
