"The previous generation primarily focused on criminal activities"
Unleashed in Munich: "Last Gen's Main Goal Was Breaking the Law"
Two years back, the Munich authorities made waves with a major crackdown on the Last Gen collective - now, we've got the lowdown on their investigations: The Public Prosecutor's Office of Munich is pressing charges against five members of the group, who've since rebranded. The accusation: forming a criminal association as per Section 129 of the Criminal Code. With the Last Gen crew undeniably aiming to commit some shady deeds (given numerous convictions for coercion and property damage), one might wonder - does their criminal record stack up as heavily as that of mafia bosses or right-wing extremists?
ntv.de: Mr. Kuhli, two years ago, when the Munich Public Prosecutor's Office's investigations kicked off, you co-wrote "Why the Last Gen isn't a criminal association." What's your take now?
Politics Unpacked Criminal Organization: Charges Against Climate Activists of the Last Gen Initially, we didn't see the criminality of the group members for forming a criminal association mainly because of the wording of Section 129. However, opinions vary on the classification of the Last Gen. With a court now delving into the question, that's a plus for legal certainty. That said, the court will need to consider aspects that require critical examination in the case of the Last Gen. For one, the question of whether the crimes they committed are severe enough to warrant a criminal organization. The Federal Constitutional Court has once ruled that an association must foster an atmosphere of fear.
Basically,Section 129 only requires a group to commit crimes for which a maximum sentence of at least two years' imprisonment exists. The Last Gen meets this charge, thanks to their roadblocks - coercion carries a maximum sentence of three years. The wording of Section 129 lacks additional requirements for relevance. However, it's worth considering an additional relevance threshold. Unlike other offenses, the criminality of Section 129 starts early. If the Last Gen were a criminal organization, for example, collecting donations for the group could already be a crime. The key question is, how to determine "relevance"? The "climate of fear" criterion seems problematic.
Why's that?
Nightly News Crime Loophole: Is the State Overstepping with the Last Gen? Because it's vague. Determining what now makes for a climate of fear leaves room for interpretation. I'm skeptical, especially concerning necessary legal clarity. It'd be clearer, for one, to base the determination of whether an offense is relevant on the offended legal goods. Consider offenses serious enough to affect life, limb, or sexual self-determination – these would warrant the label "relevant."
How significant are the Last Gen's offenses then?
Some street blockades, like harassments or minor property damages, could be called into question when it comes to forming a criminal organization. But with shutdowns of airports or oil and gas facilities, their offenses carry much more weight. I don't think it's a stretch to call them significant.
Paragraph 129 makes an exception: If the commission of offenses is merely of "minor significance" for the group, it doesn't constitute a criminal organization. Is the Last Gen thus off the hook?
It's not black and white. This exception applies to associations pursuing a legal goal, but whose activities can also be criminal. One tolerates minor crimes that happen in passing for the greater goal. But that doesn't imply that legal goals justify any means. Otherwise, anything could be justified as long as it's done in the name of climate change. The court will delve into the Last Gen's development when determining criminality, considering if offenses were a main purpose of the group. They were probably not the endpoint, but a crucial step that justifies rethinking whether offenses were of minor significance anymore.
Does it matter whether a group is out for self-enrichment like the mob, or fighting for a cause like climate change?
The different goal should be taken into account, but the main question is when. It's possible that it'll affect the sentencing. The penalty range for paragraph 129 is wide – it spans from a fine to a five-year imprisonment for founding or membership. If there's a trial and a conviction, judges could consider the activists' legitimate goal as a possible mitigating factor. On the other hand, some already contend the offense isn't committed because the Last Gen's ultimate goal is valid. I consider that legally flawed. An interesting point will be when the Munich Regional Court addresses climate change.
What's the role of it for the Munich Regional Court that the Last Gen has since renamed themselves and aims to abandon earlier actions like street blockades and paint attacks?
For criminality, this doesn't matter much at first. The offenses they might have committed before the rebrand won't vanish. But this question could also be relevant for sentencing. If the group in its potentially criminal form no longer exists, this could be mitigating. However, a simple name change won't cut it.
Activists themselves view the indictment as an "attack on civil society engagement" and talk about a threat to democracy. Are there constitutional concerns about the step taken by the Munich Public Prosecutor's Office?
Politics Speak-Up Civil Disobedience Squashed? Legal Experts Debate Climate Activist CrackdownThat's a heavy claim. While the activists might not be far off, I don't share their view. Section 129, complexities aside, is a provision that the legislature intended for a legit goal. Moreover, it seems the criminality of the activists, as discussed, isn't entirely out of the question. This indictment by the public prosecutor doesn't appear to violate the rule of law – especially since it's not yet clear why the indictment was made. However, the court must review possible interference with free speech when evaluating the indictment and weighing evidence. The judges must also scrutinize the accused activists and their roles in the group. As discussed, the activists' goal should matter if it leads to a conviction. All these factors are components of the rule of law that must be considered. Furthermore, a judgment by the Munich court wouldn't bind other cases – other courts could reach different conclusions for different actions. In summary: Concerns about the rule of law in this case don't spring from the indictment by the Munich Public Prosecutor's Office.
Where do the concerns lie then?
In the vagueness of the paragraph. The rule of law states that criminal offenses should be as clearly defined as possible, allowing citizens to adjust their behavior accordingly. However, as our conversation shows, many points remain uncertain: Does Section 129 only apply to serious offenses? How extensive is the exception, meaning when are crimes “of minor significance”? Is criminality per se excluded if the ultimate goal of a group is legitimate? Those aren't entirely clear. It's the legislature's job to address these gaps.
With Milan Kuhli spoke Sarah Platz
- Last Gen
- Crime
- Munich
- Protests
- Climate protests
- Climate policy
Enrichment Data:- Determining the Relevance of OffensesIn identifying offenses relevant to forming a criminal association under Section 129 of the German Criminal Code, several crucial factors come into play: 1. Purpose or Activities: The organization must prioritize or engage in activities aimed at committing criminal offenses. This doesn't necessarily mean individual members have committed crimes, but rather that the group facilitates such acts. 2. Threat to Public Security: Historically, interpretations and court decisions implied that a criminal organization must pose a significant threat to public security, but this element isn't explicitly mentioned in the current wording of the law. 3. Nature of Offenses: Since 2017, a criminal organization is defined as one whose activities are directed towards committing crimes punishable by at least two years' imprisonment. 4. Membership and Association: Belonging to such an organization can lead to charges, even if the individual has not committed any crimes personally.
- Applying to Climate Activist Groups Like Last Gen:Critical points of debate arise when applying Section 129 to non-violent protest groups such as the Last Gen, as peaceful protests are increasingly being classified as criminal acts (coercion). This is seen as a criminalization of civil disobedience, raising concerns about the erosion of democratic liberties such as freedom of assembly and speech.
- The court will need to consider the question of whether the crimes committed by the Last Gen are severe enough to warrant a criminal organization, as an association only needs to commit crimes for which a maximum sentence of at least two years' imprisonment exists.
- In terms of constitutional concerns, while the indictment by the Munich Public Prosecutor's Office doesn't appear to violate the rule of law, the court must review possible interference with free speech when evaluating the indictment and weighing evidence.
- If the Last Gen were a criminal organization, for example, collecting donations for the group could already be a crime. However, it's worth considering an additional relevance threshold, and the "climate of fear" criterion seems problematic due to its vagueness.
