Status: 07.04.2023 5:18 p.m
It’s not uncommon for motorists to use violence themselves when “last generation” activists block the roads. It is not always clear whether they can invoke self-defense.
Again and again, activists of the “last generation” stick to the streets and block traffic. Their goal: draw attention to the climate crisis and put pressure on politicians to implement more climate protection. Some motorists who have to wait because of this protest become violent themselves in such situations. They drag the activists off the street, or even throw punches or kicks at them. But whether this is even allowed in these situations is controversial – even among lawyers. As so often, it depends on the specific situation in the individual case.
Basically, it is of course forbidden to drag, hit or even kick others against their will. Such actions can constitute coercion, bodily harm, and in the case of kicking with heavy shoes, under certain circumstances even constitute dangerous bodily harm. Such actions would actually be punishable.
Unless there is a justification. Self-defense is one such justification. Because anyone who commits an act that is required by self-defense is not acting unlawfully. The criminal liability of an – actually punishable – action is then exceptionally omitted, because it was not illegal in the specific situation.
Self-defence situation not always clear
Self-defense is defined in law as the defense required to avert a present unlawful attack on yourself or another. The first requirement is therefore a self-defense situation: A current, unlawful attack must exist. The first courts have already condemned climate activists for sticking protests: This is coercion for drivers who cannot continue. This is the view of the majority of the courts of first instance.
Criminal law professor Michael Kubiciel from the University of Augsburg warns of differentiation: “Not in every case does such a climate protest necessarily have to be an unlawful coercion.” Because the demonstrators could also invoke the fundamental right of freedom of assembly. Only if its limits are exceeded is there unlawful coercion. This differentiation is not always easy.
Local courts have also acquitted accused activists of the charge of coercion in isolated cases. A judgment by a higher authority is currently pending. It is at least not always very clear how such blockages are to be classified in concrete terms.
The second important requirement is that the unlawful attack must also be “present”. This is no longer the case when a blockage has already ended. “Anyone who kicks or looks up an activist who has already left the street can no longer claim self-defense at this point,” says Kubiciel. The same should apply if the road is passable again, for example because some activists have already been removed.
No self-defence if the police are nearby
If there is a situation of self-defence, the act of self-defence must always be “necessary”. This means that there must be no milder means that are just as well suited to averting the current, unlawful attack. But that is likely to be the case regularly when the police are already on site or in the immediate vicinity.
“Our legal system is one of peace,” says Kubiciel. “The self-defence of private citizens is not on an equal footing with the intervention of the police – if they are nearby, the right of self-defence takes a back seat.”
In addition, self-defence must also be “commanded” in the specific situation. This means that in individual cases the right of self-defence may be exceptionally restricted. For example, when an attacker is clearly innocent or when the attack was deliberately provoked in order to be able to practice self-defence. But even if the consequences of the act of self-defense are extremely disproportionate to the impending damage. Running over a person and causing their death just because you don’t want to accept a short delay should definitely be one of them.
Vigilante not allowed
In addition, self-defence must always be supported by a will to defend yourself. This subjective requirement does not exist when someone uses violence solely out of anger towards another or for political reasons. “The right of self-defence should not legitimize vigilantism,” says criminal lawyer Kubiciel. “Anyone who merely wants to teach another person a lesson is not acting in self-defense.”
In general, it is therefore not advisable to take violent action against “climate glue”, says Kubiciel: “Because whether it is really justified self-defense in individual cases or not depends on many parameters and is not always easy to say.”