İklim Savunması Zorunluluk Hali Kapsamında Değerlendirilebilir mi?: ABD, Almanya ve İsviçre Mahkemelerinin Kararları Işığında Bir Değerlendirme
Ezgi Çırak Karalıİklim değişikliği ve küresel ısınmanın olumsuz etkilerine kamuoyunun dikkatini çekmek ve resmi karar organlarını harekete geçirmek amacıyla, iklim protestocularının yaratıcı ancak hukuka aykırı eylemleri son zamanlarda dikkat çekici hale gelmeye başlamıştır. Protestocuların fosil yakıtların zararlarına dikkat çekmek için şehrin ana yollarının trafiğe kapatması, caddelerde oturma eylemleri yapması hatta eylemcilerin kendilerini yola yapıştırmaları, müzelerdeki paha biçilemez eserlere çorba fırlatmaları, bir senfoni konseri sırasında ellerini orkestra şefinin masasına yapıştırmaları gibi eylemleri ne kadar dikkat çekici olsa da suç oluşturacak niteliktedir. Nitekim protestocular bu eylemlerinden dolayı ceza davaları ile karşı karşıya kalmaktadırlar. Bu ceza davalarında protestocular, çevreye karşı gerçekleşecek ağır ve muhakkak bir tehlikeyi önleme amacıyla orantılı bir saldırı gerçekleştirdiklerini iddia ederek, eylemlerinin zorunluluk hali kapsamında kabul edilmesi gerektiği yönünde savunma yapmaktadırlar. Bu çalışmada protestocuların bu argümanlarının lehine ve aleyhine olan görüşler incelenmiş; ABD, Almanya ve İsviçre mahkemelerinde verilen kararlar değerlendirilmiş ve nihayetinde protestocuların cezalandırılıp cezalandırılmamasına ilişkin genel değerlendirme yapılmıştır.
Can Climate Defence be Evaluated within the Scope of State of Necessity?: An Evaluation in the Light of the Decisions of the US, German and Swiss Courts
Ezgi Çırak KaralıTo draw public attention to the negative effects of climate change and global warming and mobilize official decision-making bodies, the creative but unlawful actions of climate protesters have recently attracted attention. Actions such as blocking the main roads of the city to draw attention to the damage caused by fossil fuels, sit-down strikes and even gluing themselves to the road, throwing soup at priceless artifacts in museums, and sticking their hands on the maestro’s desk during a symphony concert, however remarkable they may be, are criminal offenses. Indeed, protesters face criminal proceedings for their actions. In these criminal proceedings, the protesters claimed that they had carried out a proportionate attack to prevent a grave and imminent danger to the environment and argued that their actions should be regarded as acts of necessity. In this study, the arguments in the doctrine in favor of and against the protesters’ arguments are examined; the decisions of the US, German, and Swiss courts are evaluated, and a general evaluation is made on whether the protesters should be punished or not.
Climate activists have recently begun to take creative but illegal actions to draw the attention of both the public and the authorities to take necessary measures against climate change and global warming. For instance, they block the main roads of the city, organize sit-ins on the streets, glue themselves to the roads, throw soup on priceless artifacts in museums, stick their hands on the conductor’s desk during a symphony concert, etc. Such actions of protesters give rise to criminal liability for offenses such as violation of privacy of property, unauthorized entry, coercion, disturbing the peace and well-being of persons, obstructing public services, damaging property, and resisting the performance of duty. In many cases, although the protesters’ actions were criminal, it is also argued that their actions were not entirely at fault. Protesters argued that their actions should be considered acts of necessity and that they carried out a proportionate assault to prevent a serious and imminent danger to the environment and raise a defense based on necessity during the trial.
Although the claim that civil disobedience falls within the scope of the state of necessity is not new, climate activists have recently used it. In countries such as the United States, Switzerland, and Germany, climate protesters are not punished using the defense of necessity, but many of these decisions are overturned on appeal. In Anglo-American judicial mentality, it is acceptable to commit minor offenses to mobilize the state to combat climate change and protect the environment. In Germany and Switzerland, on the other hand, the fulfillment of the conditions of necessity is examined and the preventability of imminent danger is debated.
Although the legal nature of the state of necessity is controversial, it is generally accepted as a reason for compliance with the law or a state affecting culpability. In general, the following conditions are required for a state of necessity.
These are; 1. The perpetrator is faced with grave and absolute danger, 2. The danger is directed against right 3. The danger is not intentionally caused [4]. There is a causal link between the danger and the perpetrator’s action, 5. There is no other way to protect against the danger, 6. There is a proportion between the danger and gravity of an act.7 The perpetrator is not obliged to resist the danger.
Arguments in favor of evaluating the actions of climate protesters within the scope of the state of necessity support the circumstances. It is stated that climate change protects both the right to live in the natural environment, which is a collective interest, and people’s own right to life. They argue that the damage to these rights is imminent and cannot be prevented in the future if action is not taken to prevent it now. They argue that the protesters have created public opinion for its prevention through their actions and that there is a causal link between them, that the damage caused during the protests is small considering the proportion between the damage caused and the protection of the climate, and that state policies have been ineffective in taking other methods to prevent the damage. The opposite arguments, on the other hand, state that there is no causal link between actions and climate protection, that the actions are extremely uncertain, inappropriate, and effective in terms of preventing this danger, and that accepting that there is no other means of protection would mean the legitimization of unlawful actions in a democratic state of law based on the rule of law.
In our opinion, it is not always possible to evaluate the actions of climate protesters in a state of necessity. However, it should be recognized that there is a difference between ordinary crimes and misdemeanors and the motives of climate protesters.
Acts exceeding the scope of freedom of expression and the right to gather, demonstrate, and protest should be characterized as criminal acts. Therefore, these behaviors should be expected to be considered punishable. However, crimes committed within the scope of these protests should be subject to different mitigating conditions than ordinary crimes. Alternative sanctions, such as a judicial fine or public work, should be preferred before imprisonment, and methods, such as avoiding the upper limit or postponing sentences, should be preferred. In this way, these protests, which are considered to serve a morally correct purpose, will not be punished or will be punished less severely, while material criminal law instruments such as the state of necessity will not be adapted to the events through forced methods and interpretations.
