Overriding the rule of law for activists?

No political judgements from Swiss courts!

by Dr iur. Marianne Wüthrich

The acquittal of twelve climate activists who had occupied a Credit Suisse branch in Lausanne in November 2018 went around the world at lightning speed on 13 January. According to the district judge in charge, there was no unlawful entry, as the threat of climate change was an «emergency» that can justify a criminal act in itself.

An acquittal that numerous criminal law experts, but also most media comments, reject as legally untenable and which massively violates the principle of separation of powers. The critical reader is also faced with the urgent question: Who is pulling the strings in the background? 

“I want to become a citizen” (Voglio fare il Cittadino)

mw. “If we want to go the long way with the right attitude, we must first understand what is really meant by the term ‘citizen’. After all, if you want to become a citizen, you must know the meaning, the sense and the scope of this wonderful word.” Eros Ratti explains what it means in his just as wonderful book “Voglio fare il Cittadino” to the adolescent ‘Cittadinino’. (The edition will soon appear in the German language.) The expression “long way” involves: thorough lessons on civics in primary, vocational and middle schools in which the young people learn about the Swiss model, where they find out about how their community, their canton and the Confederation function such as how voting and elections are executed and much more.

Being a citizen, especially in Switzerland, is not only a right, but first and foremost an obligation to contribute to living and working together in the community, canton and Confederation, to feel jointly responsible for the whole.

According to the daily press, the climate activists of the “Lausanne Action Climat (LAC)” occupied a Credit Suisse branch for an hour and a half in November 2018, where they simulated a tennis match. In doing so, they protested against the investment policy of CS, which advertises with tennis star Roger Federer and at the same time has invested money in climate-damaging projects and companies. Credit Suisse then filed a complaint. In the spring of 2019, the public prosecutor’s office of the Canton of Vaud issued an order – as is customary in such cases – sentencing twelve participants to conditional fines for unlawful entry and resisting police orders, which were appealed by the activists. On 13 January 2020, district judge Philippe Colelough in Renens (VD) acquitted the activists.1 On 14 January 2020, the public prosecutor’s office decided to refer the case to the cantonal court of appeal.2

Acquittal is legally untenable

The judge orally justified his acquittal on 13 January 2020 on the grounds of a justifiable state of emergency of the squatters within the meaning of Article 17 of the Swiss Criminal Code. The written grounds for the judgement are still pending.

Swiss Criminal Code Art. 17: Legitimate act in a situation of necessity
Any person who carries out an act that carries a criminal penalty in order to save a legal interest of his own or of another from immediate and not otherwise avertable danger, acts lawfully if by doing so he safeguards interests of higher value.

In view of the climate emergency, the protest action at the bank branch was “necessary and appropriate”, said Judge Colelough. This was “the only effective way to get the bank to respond and the only way to get the necessary attention from the media and the public”. (SRF 4 News from 13 January 2020)

A clearly political statement from the judge, who reinterprets the emergency article of the Swiss Penal Code in an unauthorised way. It is definitely not the court’s job to pave the way for the activists to “get the bank to react”, nor is it the criminal judge’s job to worry about whether the defendants “will receive the necessary attention from the media and the public”. Incidentally, with his acquittal, Judge Colelough has given the perpetrators a truly overwhelming media and political attention – they could not have asked for anything better.

From a legal point of view, the present court decision is quickly refuted. A brief summary of the objections raised by various criminal law experts according to research by the “Neue Zürcher Zeitung3: Firstly, there was no “immediate danger”, and secondly, the action taken at the bank branch did nothing to avert it or to solve the climate problem. According to the lawyers interviewed, “it is not enough to say that an awareness campaign might bring a fraction of a thousandth closer to the solution of the global climate issue”. This logic “could justify […] many violations of a criminal norm – as long as they are spectacular and therefore media intensive”.

Thirdly, in a democratic state under the rule of law there are always alternatives to spectacular actions, for example taking the political path – for this purpose many Swiss citizens elected Green politicians to parliament in the autumn of 2019. As Marc Thommen, Professor of Criminal Law and Criminal Procedure Law at the University of Zurich, notes: “The jurisdiction has so far taken the view that there are enough other means to draw attention to something. No crime needs to be committed for this to happen.” He adds: “If one of my students had come to this conclusion in a paper, I would have judged it to be wrong.”4

And fourthly, Article 17 can only be applied to protect individual rights: “[…] to save one’s own or another person’s legal property from […] danger” – which is not at all applicable to general climate protection.5 

Clear conclusion of Bernese criminal law professor Martino Mona in the mentioned NZZ article: He considers the application of the article on “justifiable state of emergency” to be “excluded” for the present case. And Stefan Trechsel, co-editor of a well-known practical commentary on the Criminal Code6 and professor emeritus of criminal law, adds: “This would lead to chaos and would be the opposite of the rule of law.”

No compromises in terms of democracy and the rule of law!

It is almost eerie that in Switzerland, for whose legislation citizens are directly jointly responsible, more and more citizens, media, politicians and companies are letting themselves be put under such pressure by climate protesters or other socio-political lobbies that they accept a reduction in the freedom of expression and a weakening of the constitutional state.

We can only guess for what reasons the district judge in Renens chose not to convict the twelve defendants but preferred to bend the emergency article of the Swiss criminal code (StGB) into shape instead. What we do know, however, is that the perpetrators appeared in court with 13 (!) lawyers, who may have talked down the only judge with their skilled rhetoric. Who will pay for the 13 volunteering lawyers, who incidentally did not defend any youngsters in Renens, but adult perpetrators aged 21–34 years?7

Another example for the non–assertion of legal claims are some heads of schools who no longer enforce their absence regulations. They permit their students not to attend classes on Friday but to go to demonstrations instead or travel to Lausanne to have their photographs taken together with Greta. Usually, these are grammar school students, whose education is paid for by us taxpayers and whom we may expect to appreciate and seize their opportunity.

The big Swiss banks, at any rate, know how to handle the matter. The day after the memorable acquittal of the Credit Suisse squatters, climate activists stretched banners in a UBS branch in Lausanne and distributed pieces of coal on the ground. The executive board steered clear from bringing charges against them, but appointed two spokespersons to discuss with the protesters about climate change. At the World Economic Forum the UBS Executive Board already hinted that the bank would in the future focus on climate–friendly energy investments.

In any case, it was not the large banks that suffered the harm created by the acquittal of the Credit Suisse squatters but our state under the rule of law.

Climate change movement diverts attention away from the greatest destroyer, war

From 21–24 January 2020 the rich and powerful of this world met at the World Economic Forum (WEF) in Davos. It was almost embarrassing to see how they elevated the climate issue to the only urgent problem of our time. From WEF director Klaus Schwab to federal president Simonetta Sommaruga to Greta almost everyone was talking about the climate on the opening day. This should actually make the globalisation critics suspicious.

When the Swiss federal president and social democrat said in her welcoming address, “The world is burning!”, she did not mean the terrible wars in Syria, Libya, Yemen and many other countries, kindled and kept ablaze through enormous armaments by the rich and powerful chiefly of the Western world. Instead she referred to the bush fires in Australia. Their destructive rage is very bad, indeed, but summers have already been hot and dry in Australia in earlier times. All red herrings cannot obliterate the fact that war is the greatest destroyer of human lives and of the living environment of all species. The 68 youth movement also had its delusions, but its chief protest was directed against the Viet-nam War. By whom are our youths sent out onto the streets today and for what purpose?

They would have deserved that we impart them something better on their journey through life.

How do young people become citizens?

We adults do our youths a poor service if we admire those who march along in climate demonstrations and squats. Their call to us older generations to provide for non–climate–damaging energy, and “subito” on top of that, is neither realistic nor democratic. The truth is that neither Switzerland nor other countries will be able entirely to dispense with fossil energy sources over the next decades. This is not changed by the fact that many drivers want to switch to electric cars. For producing and charging of batteries huge quantities of energy are required, which incidentally also applies to the uninterrupted use of mobile phones and computers, the ongoing digitisation of more and more areas of life and the quest for ever more powerful internet connectivity. How we will generate this energy in the future, in what areas we will rethink its use or will want to use it more economically, is first and foremost a political issue. We are all challenged jointly to reflect and consider that issue.

As adults experienced in democracy we are called upon to be role models for young people and introduce them to the unique opportunities of direct democracy. In the area of energy supply, for example, it would be a pleasure if many young citizens campaigned for the maintenance and extension of Swiss hydropower – that most important pillar of our electricity supply. If the nuclear power plants are switched off, we won’t need an electricity agreement with the EU – which would encourage the sell–out of our hydropower and undermine our self–sufficiency –, but affordable hydro–electric power plants alongside the new renewable energies. Young citizens that committed themselves to this objective would be a blessing for our country.                       •

1  “Zwölf Klimaaktivisten freigesprochen”( Twelve climate activists acquitted). SRF 4 News from 13 January 2020

2  “Klimaaktivisten besetzen UBS – Rekurs gegen Freispruch” (Climate activists occupy UBS – appeal against acquittal). Der Bund from 14 January 2020. Source: red/SDA

Schöchli, Hansueli. “Das würde zu Chaos führen – warum das Waadtländer Urteil für Strafrechts-experten nur schwer nachvollziehbar ist.” (This would lead to chaos - why the Vaud judgement is difficult for criminal law experts to understand), Neue Zürcher Zeitung from 14 January 2020

4  “Weshalb sich Experten nach dem Freispruch der Klimaaktivisten an den Kopf fassen” (Why experts are aghast after the climate activists’ discharge). Watson from 15 January 2020

Schöchli, Hansueli. “Das würde zu Chaos führen – warum das Waadtländer Urteil für Strafrechts-experten nur schwer nachvollziehbar ist.” (This would lead to chaos – why the Vaud judgement is difficult for criminal law experts to understand) Neue Zürcher Zeitung from14 January 2020

Trechsel, Stefan; Pieth, Mark (Hrsg.). Schweizerisches Strafgesetzbuch Praxiskommentar 3rd edition. (Swiss Criminal Law practitioners commentary. 3rd edition) Dike Verlag AG. Zürich 2017

7  “Zwölf Klimaaktivisten freigesprochen”(Twelve climate activists acquitted). SRF 4 News from 13 January 2020.

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