Straight Talkin' about the Munich Indictment: "The Last Generation's primary aim was committing heinous acts"
"The previous generation predominantly focused their actions on criminal activities"
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Two years ago, German cops got the headlines rankin' up with a massive raid against the Last Generation. Now, we got the results of the investigation, and the Munich Public Prosecutor's Office has slapped five members of the group with indictments. The charge: formin' a criminal organization under Section 129 of the Criminal Code. With all the convictions for coercion and property damage, it ain't hard to argue the Last Generation had intentions to commit crimes. But do these offenses really weight up when compared to mafia or right-wing extremist groups usually considered under this section?
Two years back, legal expert Milan Kuhli from the University of Hamburg called for the non-criminalization of activists. His take on the Last Generation now has shifted.
ntv.de: Hey, Kuhli, back when the Munich Public Prosecutor’s Office began investigations, your article, "Why the Last Generation (still) is not a criminal organization" was on point. What's your assessment nowadays?
The Dirty Truth Criminal Organization? Indictment against climate activists of the Last GenerationAt the time, we refused to criminalize the group members based on the wordin' of Section 129 of the Criminal Code. Opinions on the Last Generation's classification vary though, and it being questioned in a court is beneficial regarding legal certainties. When considerin' the criminality under Section 129, the court will need to delve into critical aspects regarding the Last Generation.
For example, the question of whether the crimes committed by the Last Generation are severe enough to classify the group as a criminal organization. In the past, the Federal Constitutional Court ruled that organization must create a "climate of fear."
Generally, Section 129 only demands the group commits crimes punishable by a maximum of two years in prison - street blockades are already punishable with up to three years. The requirements under Section 129 lack any further demands for relevance. However, establishing further thresholds of relevance is essential. If the Last Generation were indeed a criminal organization, even collectin' donations could be considered criminal.
So, how's one establish "relevance"?
The Street Grapevine Fuzzy Paragraph in Criminal Law: Does the state go too far with the Last Generation?'Cause it's fuzzy. The question of what constitutes a "climate of fear" offers plenty of room for interpretation. This seems problematic, especially when concerning the necessary legal certainties. Establishing relevance based on violated legal goods would be clearer. The more significant the legal good, the more relevant the offense would be. Newspapers like Germany's Süddeutsche Zeitung previously pointed out the "far-reaching criminal law consequences" of such a classification[5], which highlights the importance of a proper definition.
How significant are the Last Generation's crimes under this criterion?
Street blockades with coercion or minor property damage might be questioned when determining whether they're severe enough to classify the group. Still, when airports or oil and gas facilities go down, their significance is much more prominent. I don't doubt their significance regarding classification.
Section 129, however, makes an exception: If the commission of offenses is only of "minor importance" to the group, it doesn't constitute a criminal organization. Are the Last Generation, who aim to advance climate protection with their actions, off the legal hook with that?
The Dirty Truth From Handcuffs to Court: How Police Harassment of Last Generation Activists Led to a Court ChallengeIt's not that simple. This exclusion applies to associations pursuing a legal purpose but whose activities can also be criminal. Smaller offenses are occasionally accepted for the far-overarching purpose. Yet, this doesn't imply that any means justify an end. If the worst offenses were committed in the name of climate protection, no justification could excuse the behavior. In this case, the court will examine the Last Generation's actual development, as was foreseeable upon its founding. It's possible to argue that committing crimes was a main purpose of the group. They might not have been the ultimate purpose, but such a significant intermediate step can call into question whether "minor importance" still applies.
Doesn't it matter whether a group aims to fill its own pockets like the mafia, or instead fight for a cause like climate protection?
The differin' purpose must be taken into consideration. However, the big question lies in when it matters most. There are voices that already consider the criminal act to not have occurred because the Last Generation's ultimate goal is legitimate. I find this legally problematic as I mentioned. An interesting point will be when the Munich Regional Court brings up climate protection in its investigation.
What role will the Munich Regional Court play in the group's name change and the desire to abandon previous actions like street blockades and graffiti attacks?
The Street Grapevine The Last Generation on the Run: Disbanded and Renamed to Escape Prosecution?For the criminality, this ain't relevant right away. The offenses committed prior to the changes don't fade away based on the group's current position. The investigations focus on what's happened before. However, this question may be relevant in sentencing. If the group in its potentially criminally relevant form no longer exists in the future, it can be a mitigating factor. All these aspects must be considered by the court. However, a mere renaming is not enough for this.
Are there constitutional concerns regarding the step taken by the Munich Public Prosecutor's Office?
The Dirty Truth Phone Taps and Prosecutions: The Controversy Surrounding the Last GenerationThis accusation's serious, but I wouldn't share it. Paragraph 129, despite its complexities, serves a legitimate purpose. It seems that the activists' criminality, as discussed, is not entirely ruled out. Therefore, the indictment by the public prosecutor is not a violation of the rule of law — especially since we ain't privy to the grounds for the indictment, i.e., the results of the investigation. However, the court must mull over possible interference with freedom of expression when evaluatin' the indictment and weighin' the evidence. The court must also scrutinize each of the accused individuals and their contributions to the group individually.
The activists' goal should be considered if convicted. All these rule of law aspects must be taken into account. Furthermore, a decision by the Munich court wouldn't set a precedent for other cases, meaning another court might reach a different verdict regarding another offense. In short, concerns about the rule of law may exist in this case, but they don't stem from the indictment by the Munich Public Prosecutor's Office.
Where'd the concerns lie then?
In the vagueness of the paragraph. The rule of law demands that criminal laws are as clearly defined as possible to guide citizens' behavior. However, as our conversation shows, many points remain uncertain: Is Section 129 only for serious offenses? How comprehensive is the exception? Is criminality per se excluded if the ultimate goal of a group is legitimate? All this ain't entirely clear. The legislature would be required to adjust if needed.
- It's possible that during the court's evaluation of the Last Generation as a criminal organization, they will consider the environmental impact of the group's actions, given the recurring mention of the environment in the community policy.
- In light of the indictment against the Last Generation, it may be informed to look at historical precedents set by other criminal organizations, such as mafia or right-wing extremist groups, to understand the range of offenses that would potentially qualify under Section 129 of the Criminal Code.
- Despite the indictment of several members of the Last Generation, questions regarding the relevance and severity of their crimes still exist. Mitigating factors, such as their strong commitment to environmental protection, may influence the court's final decision.
