You are participating in Ende Gelaende. What are the legal consequence you might be facing?
First of all
Repression is and is meant to be unpredictable; nonetheless, there are some experiences and ideas on what might be happening; however, there are no guarantees. In any case: we will establish structures that will stand together in solidarity when faced with the consequences of repression – no one will be left alone! During the camp there will always be persons you can contact if you have legal questions; there will also be workshops about legal issues. It is impossible to discuss everything in advance; therefore, please come to the camp, visit the legal team tent and we will discuss any open points together.
In case you are facing any legal consequences after the action, please get in touch with the legal team. Together we will find a way of how to deal with repression and we will use the repression to become stronger rather than weaker!
For example, it is always possible to file an objection against an order of punishment in order to take an active stance in criminal proceedings together with lawyers or lay defenders. We can also use criminal charges brought against us politically and demonstrate to the public the absurdity of climate activists being criminalized. We can resist such criminalization – if you want it!
You can find more extensive legal information in the legal aid manual prepared by the legal team for “Ende Gelände” 2016.
The action agreement for “Ende Gelände” 2016, developed in advance of the action, calls for a “publicly announced mass blockade, allowing multiple options for involvement”. The following information relates to possible legal consequences of your actions within this action agreement!
Some of the most relevant offenses defined in the German criminal code are described in the following (for further possible charges, please refer to the legal aid manual).
Trespass: You commit the act of trespassing when entering a building or business premises (e.g. an open-cast mine) “unlawfully.” You commit the act of trespassing already at the point in time when entering the respective premise if it is enclosed by a fence, is clearly marked by signs saying that entering the premise is prohibited or you are supposed to know that the authorized person (which can also be a legal person, in this case the company) does not want you to enter the premise. If none of these conditions is fulfilled, you commit the act of trespassing when you do not leave the premises at the explicit request of the authorized person (i.e., the company).
Resisting enforcement officers: This is only relevant when you are in direct contact with police officers. You would commit this offense by actively taking action again police officers, e.g. through a movement of your body directed against an officer. However, please note: simply running away, staying entirely passively where you are or simply disobeying a police officer’s orders does not constitute an act of resistance in the sense of this provision of the German penal code.
Using threats or force to cause a person to do, suffer or omit an act: Anyone who unlawfully with force or threat of serious harm causes a person to commit or omit an act commits this offense. A sit-in blockade in front of a coal digger is normally not considered to amount to such a charge. However, chaining yourself to a fixed object or erecting a blockade could lead to criminal charges.
These acts frequently do not lead to criminal charges when committed as part of a mass action such as “Ende Gelände”! Even when they do, in practice, taking an active stance against repression can often lead to the proceedings being terminated.
For behavior within the action agreement we consider prison sentences unlikely. A more likely consequence are monetary fines. These are measured in “daily fines.” One daily fine equals one day’s worth of your disposable (net) income – thus, if your income is low, you will have to pay less. Alternatively, provided that the court and the prosecutor agree, daily fines can be converted into social/non-profit work for a corresponding number of days (in Brandenburg, each daily fine translates into 6 hours of work). It is also possible to spend the corresponding number of days in prison rather than paying the fine. We will make an effort to collect money for imposed monetary fines collectively – here, again, nobody will be left alone.
Damage claims: The corporation and the police will likely try to intimidate us by claiming in advance and during the action that we will be made to pay a huge amount in damages. We will react to such attempts at intimidating us in a relaxed manner; we will not be irritated nor let them divide us as we know: We are a broad coalition which is able to publicly scandalize such claims for damages. The more people are involved in the action and protests, the less likely it is in our experience that our opponents actually take action after our action. Their threats are almost always bigger than any claims brought after the action. Moreover, the amount claimed as damages is almost always higher than what is legally permissible. In case one of us needs to pay any amount of damage, you will not be alone. We are many, we will stand together and we are well-disposed to fight through political and legal means and use the media to our benefit.
Declarations to cease and desist letter: After an action, a company could demand you to sign a statement by which you declare, for example, that you will not enter its premises again and that if you do you will be forced to pay a high penalty. In case you decline to sign the statement, they may sue you. If they are successful, you will be bound by the declaration and you will have to bear the costs of the proceedings, including the costs for the company’ lawyers.
However, it is important that before signing you seek legal advice (e.g. from our legal team)! Such statements are often phrased in a manner that is too broad or vague and hence unlawful; in these cases, the phrasing may be changed. If you violate the provisions of the statement you will likely have to pay a penalty of several thousand Euro.
What corporate security staff are (not) allowed to do
During the action, you may be confronted with corporate security staff.
Security staff are not authorized to demand that you reveal your personal identity to them.
But they have the so-called “every person’s” (sic!) right to arrest others based on section 127 of the Code of Criminal Procedure. This means that if they catch you in the act of committing a criminal offense, they may detain you until police arrive, if your identity cannot be established or there is a risk of flight. For this purpose they may use force if necessary.
Refusal to identify yourself
„Ende Gelände“ generally considers the collective refusal to provide ID to the police in the context of the planned action a reasonable strategy; last year’s experience in this respect was positive. For individual activists, however, it may be wiser to identify themselves; we therefore encourage everyone to consider the pros and cons of ID refusal before joining the action and to decide for themselves. If you decide not to disclose your identity to the police, you should neither bring ID documents nor anything else that may reveal your identity to the action.
If you refuse to identify yourself by rejecting to submit an official ID to the police, this may give them a reason to put you into police custody. Such custody may last a maximum of 12 hours in Brandenburg by law (but is often shorter in practice). It is possible that they will take fingerprints, photos and perhaps physical measurements to establish your identity. It is you decision how cooperative or non-cooperative you want to be during such treatment. The more persons refuse to identify themselves during a mass action, the more difficult it is for the police to take fingerprints and photos of all of them and prosecute them.
In case the police cannot find out your identity, you may be subjected to a penalty of several hundred euros (up to 1,000); but you are unlikely to be identified unless you are well-known through previous actions. The advantage of refusing to identify yourself is that ideally you will be released by the evening and will not face any legal consequences whatsoever.
See also chapter on ID refusal in the “Ende Gelände“ legal aid booklet for details!
If you have no German passport or no place of residence in Germany
Different rules, risks and options for actions apply to different groups of people. Please refer to chapter 5 of the legal aid manual for details.
Any questions left?
The legal team will be present on the camp from Monday on. You can come see us at our tent and talk to us or attend one of our info event if you have any questions.