“Block Friday”: Climate activists block shopping center for Black Friday in Fribourg, Switzerland

In the late afternoon of the Black Friday (November 29, 2019), more than 50 members of the local branches of Extinction Rebelion (XR) and Climate Strike (the national pendant of “Fridays for Future”) protested and blocked the main entry of a shopping center in Fribourg. While a group of activists dressed in red silently marched in the streets surrounding the shopping center, others locked themselves to shopping carts in the entrance of the building. The police intervened and evacuated the chained activists after 2 hours. The public ministry issued 30 penal orders. 21 activists were accused of minor offenses, i.e. unauthorized demonstration (19 & 60 LDP), and contraventions to police prescriptions and public order (11 & 12 LACP) and convicted with a 500 CHF fine. In a parallel proceeding, 9 activists who chained themselves to shopping carts were faced with coercion (art. 181 of the Swiss Criminal Code) in addition to the charges above (albeit without 12 LACP) and convicted to 15 suspended day-fines and 200 CHF fines. All activists contested the charges. The shopping center and its trade association joined the criminal proceedings as affected parties. While the court of first instance (regional court) denied the status of parties to the shopping center and the trade association, it confirmed the penal orders. The court thereby refused to grant the activists a justificatory motive under article 17 of the Swiss Criminal Code, following the recent case law of the Federal Tribunal regarding the application of a state of necessity to acts of civil disobedience perpetrated to raise awareness of climate change (see here ‘#IfRogerknew, Lausanne Action Climate Playing Tennis in the Hall of Crédit Suisse, Switzerland’ in this database). Most activists lodged an appeal against this decision and in its subsequent rulings. The court of second instance (cantonal court) accepted the appeal and dropped all the charges against the activists (except for a contravention to police prescriptions, art. 11 LACP). The judges observed that customers could easily access the shopping center via other entries and noted the absence of violence and damages during the action. The low intensity of the disruption could thus not justify a condemnation for coercion (art. 181 CC). The cantonal judges additionally noted that the protest was protected under the freedom of assembly (art. 22 Cst and 11 ECHR) and the freedom of expression (art. 10 ECHR). The public ministry lodged an appeal against the cantonal court's decision and demanded the conviction of the 9 activists on the grounds of coercion. In particular, the public ministry contested the application of articles 10 and 11 ECHR because the protest had happened on the private property of the shopping center. The Supreme Court (third and last instance), which had previously refused to join the proceedings of both groups, definitively acquitted the activists from the coercion charge by following the argument of the judges of the second instance. The Federal Judges confirmed the jurisprudence of the European Court in that these provisions (art. 10 and 11) could apply to demonstrations taking place in shopping centers to the extent that they are ‘place[s] of transit or [...] place[s] intended to accommodate large numbers of people.