Author: Lawyer Enrico Germano

An activist had defaced a bank, painting red hands on the facade. On 30 March 2023, the Federal Supreme Court in the last judicial instance finally ruled that the climate activist could not claim honourable grounds to justify his action and would have to be judged more severely by the lower court. Switzerland’s highest court held that the mitigation of the sentence granted by the lower court violated federal law in application of Article 48 of the Swiss Criminal Code (SCC).
Article 48 SCC provides that the court shall mitigate the penalty if  a. the perpetrator acted for honourable reasons, in a state of grave distress, under the impression of a serious threat or at the incitement of a person to whom he owed obedience or on whom he depended  b. the perpetrator was seriously tempted by the victim’s conduct;  c. the perpetrator acted by succumbing to a violent emotion of the soul excusable under the circumstances or in a state of deep prostration  d. the perpetrator has shown by his deeds sincere repentance, especially if he has compensated the damage as far as could reasonably be expected of him  e. the punishment has manifestly lost its meaning in view of the time that has elapsed since the offence and the offender has since then behaved well
The judge has a broad power of appreciation in the commensuration of the penalty, and Article 47 SCC provides that the judge commensurate the penalty with the offender’s guilt. He takes into account the offender’s previous life and personal circumstances, as well as the effect the penalty will have on his life. 
In the case at hand, the lower cantonal court – of the canton of Geneva – had held that the climate activist, found guilty of damage to property as a result of acts committed against a bank, had acted essentially for altruistic reasons, aiming to draw public attention to climate issues and, in particular, to the aforementioned bank’s investments in fossil fuels.
According to the Federal Supreme Court, the political motives pursued by the offender do not in themselves necessarily constitute an honourable motive; depending on their nature, they may be considered respectable, ethically neutral or even an aggravating factor It is not the offender’s ‘subjective’ convictions that are decisive, but only the ‘objective’ socio-ethical standards that prevail in our society. The Federal Supreme Court also specified that, however, the actions carried out by climate activist groups are often likely to reflect, in addition to the legitimate ecological concerns of their perpetrators, an undifferentiated criticism of economic freedom or the right to private property, in an anti-capitalist approach, in particular with regard to the radical nature of the slogans used and messages expressed, but also with regard to the choice of establishments targeted. The calls for civil disobedience that are sometimes made tend to reflect a questioning of the democratic legitimacy of the law, in particular criminal law, and of the authorities responsible for its application, which the climate cause alone cannot justify.
The bank had suffered material damage and cleaning costs of CHF 2,252.–. Although the damage committed and its economic consequences were certainly not considerable, the fact remained that the damage personally attributed to the defendant exceeded the threshold of CHF 300, which is relevant under Article 172ter SCC for a classification as a minor offences against property. The appeal to the Federal Supreme Court by the Public Prosecutor’s Office of the Canton of Geneva and by the bank was therefore upheld, and the case was referred back to the Cantonal Court for a new, more severe decision against the climate activist, who will also have to bear the court costs set at CHF 3,000.–.

1 Decision of the Supreme federal Court 6B_620/2002 of 30.03.2023

2, 3.05.2023

3 Decision of the Supreme federal Court 6B_620/2002 of 30.03.2023, 1.2.1

4 Decision of the Supreme federal Court 6B_620/2002 of 30.03.2023, 1.3.2

5 Decision of the Supreme federal Court 6B_620/2002 of 30.03.2023, 1.3.6

6 Decision of the Supreme federal Court 6B_620/2002 of 30.03.2023, 1.3.8