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.

OLG Schleswig-Holstein (Tree occupation in private forest)

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OLG Schleswig-Holstein (Tree occupation in private forest) - judgment

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

People whose health, both mental and physical, makes them more vulnerable to the effects of climate change

woman and genders outside of the gender binary

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

The cryosphere is the frozen part of the Earth—it includes sea ice, glaciers, snow, and ice sheets. It helps regulate the climate and weather by reflecting sunlight. Rising temperatures are causing melting, leading to sea ice loss, glacier collapse, and glacier landslides and avalanches. This threatens the livelihoods of around 700 million people who rely on the cryosphere for food, water security, and cultural practices.

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. 

OLG Schleswig-Holstein (Tree occupation in private forest) - judgment

Risk

Impacted group

Fossil fuel

Greenhouse gas

Economic sector