XR Switzerland – No Going Back & Rebellion Against Extinction

In June 2020, XR organized an unauthorized - but publicly announced - demonstration in Zürich under the slogan "No Going Back". After about 20 minutes, the police issued a warning to all participants occupying the Quaibrücke to leave the bridge. After 40 minutes, the remaining approximately 250 people were kettled and arrested. The public prosecutor's office issued penalty orders for coercion (Art. 181 CC) and disruption of public transport (Art. 239 CC). In October 2021, XR organized another unauthorized demonstration in Zürich under the slogan “Rebellion Against Extinction”. About 180 individuals were arrested throughout a week of protest. Some protestors spent up to two days in jail. Similar to the Quaibrücke action in 2020, the public prosecutor’s office charged all the arrested prosecutors with coercion (Art. 181 CC). More than 30 individuals (collectively in both actions) have objected to their penal orders (some of the activists received a penal order for both actions). Thus far, almost all of them have been tried in the court of first instance (with 7 acquittals) and half of them in the court of second instance (with 3 acquittals). At least 9 individuals have appealed against their convictions to the Federal Supreme Court (court of third instance) and a smaller group plans to appeal further to the European Court of Human Rights (ECtHR) should their conviction be confirmed by the Supreme Court. Three interrelated issues became central to both actions and the ensuing criminal proceedings: a) the role of judges as impartial decision-makers, b) the application of the European Convention on Human Rights (ECHR) in cases of unauthorized protests, and c) the question of coercion (Art. 181 CC). Two acquittals in the court of first instance (BzG ZH GB220099, 30.8.2022; GB220026, 31.8.2022) have raised a lot of attention because District Judge Harris announced to judge all future defendants in related climate cases on the basis of case law of the ECtHR that foregrounds freedoms of expression and assembly under Arts. 10 and 11 of the ECHR. The chief prosecutor then filed a request for recusal of the judge which was granted by the Cantonal Court (OG ZH UA220042, 14.11.2022). Two activists who were affected by this recusal appealed against this decision by the Cantonal Court to the Federal Supreme Court. The Federal Supreme Court accepted the appeal of both activists, insofar as it revoked the decision of the Cantonal Court not to grant the accused party status in the recusal proceedings (BG 1B_10/2023, 6.4.2023). The Cantonal Court had to review its decision to recuse Judge Harris once again and confirmed its initial decision. Meanwhile, the Cantonal Court accepted the prosecution’s appeals and overturned both of Judge Harris’ acquittals (OG ZH SB220594, 11.4.2023; SB220583, 13.4.2023). Eventually, the Federal Supreme Court confirmed the decision to recuse Judge Harris (BG 7B_601/2023, 22.3.2024). This successful case of forced recusal of a judge is the only such request ever that was lodged by prosecution to dismiss an allegedly biased judge in the context of Swiss climate trials. There appears to be no successful case of recusal of a judge despite several such requests lodged by the defense. Throughout all proceedings and court instances in both cases, judges had to decide if the charge of coercion was justified and the defendant thus guilty, or if the intensity of coercion was small enough to grant an acquittal, considering the peaceful nature of the protest. When judges did acquit the defendants from the charge of coercion, they did so only if the defendant occupied a public road for a few minutes (low intensity). Only in a few instances have judges acquitted defendants who occupied the road for a longer period: In two cases it was Judge Harris who justified the acquittal with the case law of the ECHR (as above). In another instance, it was a judge in Bern who had to decide over a case where an activist was accused for two different occupations, one in Zürich (RGA) and another in Bern. Here, the Bernese judge dismissed the charge of coercion although it was established that the defendant occupied the road for 1.5 hours (PEN 22 704, 9.3.2023). To the judge, it was unclear who was coerced and how. In Switzerland, the conviction under coercion is usually suspended for 2 years unless the defendant violates the terms. In this case, a conviction under coercion leads to a criminal record. While appeals by several defendants are pending at the Federal Supreme Court, 5 UN Special Rapporteurs* have positively responded to a separate appeal by the defendants by issuing an official letter to the Swiss government (AL CHE 7/2023, 29.1.2024). In that letter, the Rapporteurs express their concerns over the apparent restrictions of fundamental rights to freedom of expression and peaceful assembly. The Rapporteurs further emphasize that civil disobedience is in line with international law in relation to human rights. The Rapporteurs also express concerns over extended arrests of the activists and an allegedly limited access to legal representation. *David R. Boyd, UN Special Rapporteur on human rights and the environment; Irene Khan, freedom of expression and opinion; Clément Nyaletsossi Voule, freedom of peaceful assembly and of association; Mary Lavwlor, human rights defendors; Margaret Satterthwaite, independence of judges and lawyers.