Is civil disobedience punishable? The influence of freedom of speech on climate actions

Climate activists who resort to acts of civil disobedience—such as removing posters or blocking roads—often invoke freedom of speech or the state of emergency. But does this give carte blanche to commit criminal offenses? In a ruling of 11 December 2025 (No. 172/2025) the Constitutional Court ruled that committing crimes is not automatically excusable, but that the criminal court is obliged to carry out a strict proportionality test.

The facts and context

The case that led to this ruling revolves around three climate activists who were prosecuted for theft. They had removed two advertising posters from public spaces in order to paint slogans on them and use them during a protest against the policy on electric vehicles.

In the first instance, the defendants were found guilty of the charges, but the judge applied a “defense of exemption from punishment” based on freedom of expression. However, the Court of Appeal in Liège questioned this reasoning. Article 78 of the Criminal Code states: “No crime or misdemeanor is excusable except in the cases specified by law.

The key question submitted to the Constitutional Court was whether Article 78 is contrary to the Constitution and the ECHR, because it would prevent the court from allowing criminal offenses to go unpunished when they are committed as acts of nonviolent civil disobedience.

Constitutional Court's decision

The Constitutional Court ruled that Article 78 of the Criminal Code is not unconstitutional.

The Court clearly states that freedom of expression (Article 19 of the Constitution and Article 10 of the ECHR) does not grant absolute immunity for committing crimes. The fact that a theft is committed to convey a political or environmental message does not make the act itself legal.

However, the Court also emphasizes that national courts have a very limited margin of discretion when it comes to political debate and issues of public interest, such as climate change. When criminal proceedings are brought against activists, the court is required to carry out a proportionality test. The court must assess whether a criminal conviction is necessary and proportionate in a democratic society.

The Court concludes that Article 78 does not prevent the court from carrying out this assessment, as there are sufficient other legal instruments available to adjust the sentence.

Legal analysis and interpretation

This ruling confirms an important balance in our criminal law. On the one hand, the principle of legality is upheld: excuses (which remove the punishability) must be enshrined in law. On the other hand, the Court recognizes the impact of human rights on the determination of punishment.

The proportionality test in practice

The Constitutional Court explicitly refers to case law of the European Court of Human Rights (ECHR). A criminal conviction is considered one of the most serious interferences with freedom of expression. Even a small fine can have a chilling effect.

Although, according to Article 78 of the Criminal Code, the judge may not create new “extralegal” grounds for privilege, he has other mechanisms at his disposal to ensure proportionality:

1. Penalty: The judge may impose a sentence that is proportionate to the seriousness of the offense, within the statutory minimum and maximum limits (e.g., for theft, this is a prison sentence of 1 month to 5 years).
2. Mitigating circumstances: Unlike grounds for exemption, mitigating circumstances are not exhaustively listed in the law. The judge may rule that the activist's idealistic motive is a mitigating circumstance, allowing the sentence to be reduced below the legal minimum.
3. Suspension and postponement: The judge may rule that the facts have been proven, but grant a suspension of the sentence (meaning that no conviction will appear on the criminal record) or grant a postponement of the sentence.

Furthermore, the Court recalls that the Court of Cassation has already accepted that a ground for exemption may derive directly from the ECHR, such as in situations of force majeure or emergency.

Specifically, what does this mean?

For the activist

You do not enjoy automatic immunity. Committing criminal offenses (theft, damage, assault) remains punishable in principle, even if the goal is “noble.” However, your defense can successfully focus on proportionality. A good criminal lawyer will argue that a severe punishment would be a disproportionate infringement on your freedom of expression and will argue for a suspended sentence or community service instead of a fine or prison sentence.

For victims and injured parties

If your property is damaged or taken away by activists, this remains an unlawful act. The fact that the criminal court may not impose a severe penalty on the perpetrator on the grounds of freedom of expression does not mean that you are not entitled to compensation. Civil liability remains in force.

For justice

Magistrates must provide thorough reasoning for their judgments. A simple reference to the law is not sufficient in cases involving civil disobedience. It must be explicitly demonstrated why a specific sanction is necessary in light of Article 10 of the ECHR.

Frequently Asked Questions (FAQ)

Is climate action a valid reason to break the law?
Not necessarily. The Constitutional Court states that the Criminal Code remains applicable. However, when determining the sentence, the judge must take into account the context of the protest and freedom of expression, which may lead to lighter sentences or suspension.

What is the difference between grounds for exemption and mitigating circumstances?
A ground for exemption (such as lawful self-defense) completely removes the punishability or punishability and must be stated in the law (Art. 78 Sw.). Mitigating circumstances allow the judge to reduce the sentence below the legal minimum. These are not exhaustive and can be freely determined by the judge, for example, based on the altruistic motive of the perpetrator.

Can I remove posters as a protest against climate change?
This is classified as theft (Article 461 of the Criminal Code). Although you can invoke your freedom of expression, the act remains a criminal offense. There is a real chance that you will be prosecuted, in which case the judge will have to consider whether a punishment is proportionate.

Conclusion

The ruling of December 11, 2025, nuances the position of civil disobedience in Belgian law. Article 78 of the Criminal Code remains in force: there is no general “activist excuse” in the law. Nevertheless, the Constitutional Court compels judges to exercise restraint and tailor their judgments to each individual case. Through mitigating circumstances and favorable measures, criminal judges must strike a balance between maintaining public order and the fundamental right to freedom of expression.

Read our older blog about the legitimacy of climate protests..