OLG Schleswig-Holstein (Tree occupation in private forest)

Public prosecutors brought an action against an activist who had occupied a tree for 3 days in a privately owned forest. According to the activist, the action was done to prevent local forest clearing associated with a development project.

On November 7, 2022, the District Court of Flensburg issued an acquittal, based on a necessity defense under Section 34 of the German Criminal Code (Strafgesetzbuch, StGB). It held that a human-compatible global climate is a legal interest protected under § 34 StGB, anchored in basic rights and the state objective to protect the environment. It also determined that climate change poses a present and imminent danger to both collective and individual legal interests. Balancing the interests of avoiding irreversible climate damages and the property owner’s private commercial interests, the court ruled that the criminal trespass was justifiable and “appropriate” within the meaning of § 34 StGB.

On August 9, 2023, the Higher Regional Court of Schleswig-Holstein (Oberlandesgericht Schleswig-Holstein) overturned the lower court’s decision, holding that the activist’s occupation was not justified by necessity under § 34 StGB. The court recognized that a human-compatible global climate constitutes a legally protected interest capable of being protected under § 34 StGB. However, the court held that the requirements of the defense were not satisfied in this case. In particular, occupying a single tree was not sufficiently capable of directly averting the broader danger posed by climate change. The court distinguished between measures that directly prevent a concrete climate-related harm and protest actions intended primarily to raise public awareness or exert political pressure.

The Higher Regional Court also emphasized the requirement that the act be an appropriate and necessary means of averting the danger. Because the tree occupation lacked sufficient causal efficacy in relation to the global climate threat, the requirements of § 34 StGB were not met.