Red hands on the Façade of Credit Suisse in Geneva, Switzerland

In October 2018, during a climate march in Geneva, several activists of the Breakfree collective temporarily left the authorized demonstration to paint red hands and glue pages of the “1.5° C” IPCC 2018 report on the facade of a Credit Suisse branch. Only one activist was formally identified by the police after the protest and reported for property damage (article 144, Swiss Criminal Code (SCC)). The defense pleaded not guilty on the grounds of a state of necessity (Art. 17, SCC). While the court of second instance accepted this argument, the Federal Supreme court rejected it. According to the judgment, climate change could not be considered an imminent threat within the meaning of article 17 SCC (state of necessity). What is more, a state of necessity could not apply to the extent that the painting of red hands on the facade of a bank that had no direct bearing on climate change and its related impacts. The Federal judges also denied the application of art. 10 and 11 ECHR to the case, stating that the painting of red hands constituted a damage to property, and as such a violent act to be excluded from the realm of the convention. The case was then sent back to the court of second instance, where in March 2022, the judges found the accused guilty of property damage (art. 144, SCC). Drawing on article 48 of the Swiss criminal code (honorable motive), they sanctioned him with a symbolic fine (100 CHF) and to the payment of a monetary compensation to the bank. After the prosecutor lodged an appeal against this decision on the grounds that the penalty was excessively lenient, the Federal Court had to deliberate once again in March 2023 over the case. The judges, again, upheld the prosecution and overturned the decision of the lower court to grant the activist an honorable motive. Assessing the Swiss climate movement as a whole, they considered that even if “the political actions of climate activists are idealistic, altruistic and therefore ethically respectable”, the attribution of an honorable motive must be excluded in cases of violence to property, or if the underlying politics is not shared by the majority of society. They added: “..with regard in particular to the radicalism of the slogans used and the messages stated, but also to the choice of the establishments targeted, the actions implemented by the collectives of climate activists are, very often, also likely to reflect, in addition to a legitimate ecological concern of their authors, an unsubtle criticism of economic freedom or of the right to private property, in an approach tinged with anti-capitalism.” Continuing, the judges took issue with “the calls for civil disobedience” during climate protests. Considering that these calls call into question “the democratic legitimacy of law (…) as well as of the authorities responsible for its application”, they concluded that climate change alone could not justify such politics. As of July 2024, the case is waiting to be judged for the third time by the Cantonal court.