Bodson et al. v. Belgium: A blow to organised activism

By Dr. Alice Dejean de la Bâtie

The case Bodson et al. v. Belgium, handed down by the European Court of Human Rights (ECtHR) on 16 January 2025, raises several fundamental questions: The legal qualification of the offence of malicious obstruction, the repression of (organised) collective mobilisation, and the leeway given to states in restricting trade union freedoms in the name of public security. Ultimately, the Bodson ruling forces us to confront a fundamental dilemma: Can the right to protest retain its transformative potential if legal systems systematically curtail its ability to disrupt?

Facts

On 19 October 2015, the General Federation of Belgian Trade Unions (FGTB) organised a general strike against the austerity measures imposed by the federal government. The action had been publicly announced and prepared in advance. On this occasion, picket lines were set up around a shopping centre in Herstal, near the A3/E40 highway and the Cheratte bridge. In the early morning hours, a group of demonstrators completely blocked the highway, erected barricades with building materials and set fire to them. The police found that the fire had damaged the road surface and that the blockade had caused a 400-kilometre traffic jam. Several people, including trade unionists who could be identified from media footage, were present at the scene for several hours.

Three separate legal proceedings were launched. The first, for damage and arson, was dismissed because the direct perpetrators could not be identified. A second proceeding, for involuntary manslaughter, was abandoned because no direct link could be established between the blockade and the death of a patient whose operation had been delayed. The third case, which is the most relevant here, resulted in the conviction of the applicants for malicious obstruction of traffic. In 2020, the Liège Criminal Court found them guilty under paragraphs 2 and 3 of Article 406 of the Belgian Penal Code, ruling that they had participated in a total obstruction of public roads. The lack of evidence that the applicants had personally erected the barricades or started the fires allowed them to escape the charge of wilful destruction. In 2021, the Court of Appeal of Liège reclassified the offence under the first paragraph of Article 406, stating that the blockade not only caused an obstruction but also created a potential danger. This reclassification led to harsher penalties. In 2022, the Belgian Court of Cassation rejected the applicants’ appeal, confirmed the reclassification and upheld the sentences.

Judgment

Before the ECtHR, the applicants invoked mainly a violation of Article 11 of the European Convention on Human Rights, arguing that their conviction constituted a disproportionate restriction of their rights to freedom of peaceful assembly and of association. The Court follows its standard methodology for Article 11 cases. First, it accepts that there had been an interference with the applicants’ rights. It then considers whether that interference was prescribed by law, pursued a legitimate aim and was necessary in a democratic society. The Court concludes that: (1) the interference had a legal basis in Article 406 of the Belgian Criminal Code, a clear and accessible criminal provision; (2) it pursued a legitimate aim, namely the protection of road traffic, public order and the safety of road users; and (3) it was proportionate, since the Belgian courts had taken into account the circumstances of the blockade, the duration of the traffic disruption and the dangers created. Consequently, the Court upholds the criminal conviction and finds no violation of Article 11 (nor of Article 14, which is examined subsidiarily in the light of Article 11; see § 125).

Commentary

On the legal basis of the restriction

The first issue concerns the legal basis for restricting the applicants’ right of peaceful assembly. A crucial point debated before the domestic courts was the characterisation of the offence of malicious obstruction as interpreted by Belgian case law. The ECtHR examines the application of Article 406 of the Belgian Criminal Code in the light of the principles of foreseeability and accessibility. Although the European Court chooses to assess the issue primarily from the perspective of proportionality (§ 87), it could also be argued that the expansive interpretation of Article 406 by Belgian courts undermined the principle of legality.

Regarding the actus reus, the offence is considered by the Belgian courts to be a continuous rather than a momentary infringement. As a result, responsibility does not rest solely with those who initiated and physically erected the barricades but extends to those who were merely present at the scene, on the premise that the obstruction results primarily from the mass effect of the demonstrators (§ 32 and 40). The mens rea of the offence is also interpreted broadly: Belgian judges ruled that the plaintiffs were aware of the obstruction and that their inaction amounted to passive encouragement. However, an offence of omission is particularly serious because it imposes a legal duty to act in order to avoid criminal liability. This extensive interpretation of the law by Belgian courts, both regarding the actus reus and the mens rea of the offence, raises questions about the compatibility of Article 406 with the principle of legality in criminal law (as protected by Article 7 of the Convention). However, the ECtHR accepts the broad interpretation, effectively lowering the threshold for criminal liability in protest situations. The idea that mere presence at the scene of a blockade could amount to criminal participation, or that failure to act against an ongoing obstruction could amount to encouragement, sets a dangerous precedent. It shifts the burden onto demonstrators, rather than the authorities, to actively prevent disruption.

Furthermore, the shift from paragraphs 2 and 3 to paragraph 1 of Article 406 of the Belgian Penal Code is significant, as it increases the severity of the offence and reinforces repression. The key factor justifying this reclassification was the existence of a ‘potential danger’. The Belgian judges based their conclusion on several factors, such as the smoke from the fire reducing visibility, the risk of accidents due to the manoeuvring of drivers, and the inability of emergency vehicles to intervene quickly. However, the application of paragraph 1 raises concerns. According to Belgian case law, it is not necessary that the plaintiffs intended to cause a danger; it is sufficient that they wanted to block traffic, and that this blockage resulted in a potential danger (Cass., 7 Jan. 2020, P.19.0804.N). Once again, this lack of a dolus specialis makes the application of paragraph 1 very broad.

On the legitimacy of the restriction

When examining the legitimacy of the restriction, the motivation of the Court oscillates between two rationales: the protection of public safety and the preservation of the rights of road users. Regarding the latter, the ECtHR had already upheld similar restrictions in Kudrevičius et al. v. Lithuania, where it ruled that the conviction of farmers for blocking roads was justified on the grounds of traffic disruption. In Barraco v. France, the Court found that the applicant was sanctioned not for participating in the demonstration but for completely blocking a highway, which went beyond the usual disruption caused by peaceful assemblies. Bodson thus follows a line of jurisprudence that gives states considerable leeway to restrict the right to peaceful assembly when it disrupts road traffic (§ 119). However, the ruling does not clearly establish whether the conviction was intended to punish the applicants for causing inconvenience (§ 91-92 and 104) or danger (§ 98), or both. This ambiguity permeates the judgment, and leaves open the question of whether the interference was truly necessary and proportionate.

In that regard, one factual element raises questions: the inaction of the police, who did not attempt to disperse the demonstrators or lift the blockade. This decision was based on the assessment of police officers on the ground, who considered that intervening would have been more dangerous than maintaining an attitude of peaceful “cooperation” with the demonstrators and trade unionists. In addition, the mayor also decided not to intervene, arguing that it was not their responsibility (§ 115-116). As the blockade ended peacefully after a few hours without any injuries, these decisions appear to have been the right ones, and there is no intention here to question them – on the contrary. However, there is a disturbing contradiction in that the same collaborative attitude was used against the applicants to justify their conviction. It seems that the police never explicitly ordered the demonstrators to leave the scene (§ 15-20). In other words, merely being peacefully present at a gathering following a highway blockade – without being responsible for initiating it and without being ordered to leave by the police – is sufficient to constitute the offence under Article 406, paragraph 1. This observation echoes the concerns raised by the NGO Ligue des droits humains (LDH), a third-party intervener, which highlighted the increasing restrictions and repression of social movements in Belgium, both through the use of law enforcement and administrative or criminal sanctions. The LDH pointed to a growing trend towards the judicialisation (particularly the criminalisation) of collective action, reflecting a wider shift in which economic rights are increasingly taking precedence over social and human rights (§ 72).

On the proportionality of the restriction

The assessment of proportionality is the most controversial aspect of the Court’s reasoning. The ECtHR reiterates that any restriction under Article 11 must be proportionate to the aim pursued. In upholding the applicants’ criminal convictions, the Court finds that the infringement of their right to peaceful assembly was not excessive. Three factors are taken into account in this assessment: (1) the indirect link between the blockade and the cause defended by the demonstrators, (2) the imposition of suspended prison sentences, and (3) the consideration of the applicants’ status as trade unionists.

First, the Court distinguishes between blockades that are directly targeted at the issue being protested and those that are used as a general means of contention. The ECtHR found that the obstruction created by the Belgian demonstrators was not directly related to the cause they were defending (§ 102). This observation suggests that the Court may be more lenient when a blockade is specifically aimed at the phenomenon being denounced. Consider, for example, environmental activists blocking an airport to protest the impact of air traffic on climate change – such an action is directly related to the cause being defended. In contrast, a highway blockade organised to oppose labour law reforms, as in the Bodson case, is an obstruction that is not inherently related to the cause being defended. This distinction is interesting, but it also runs the risk of creating a hierarchy of forms of protest in which certain demonstrations are considered more legitimate than others.

Secondly, the penalties imposed included suspended prison sentences, even though the applicants were not accused of any acts of violence (§ 81). The Court has previously confirmed that custodial penalties for offences related to peaceful demonstrations and freedom of speech can have a chilling effect on the exercise of freedom of assembly (e.g. Rouillan v. France, §74 – Bouton v. France, §46). However, in the Bodson judgment, the Court finds that the sanctions imposed by the Belgian courts were within an acceptable margin of appreciation. This trend is worrying in a context where several European states have recently enacted laws that intensify the repression of road blockades and disruptive protests. In Spain, the 2015 Ley de Seguridad Ciudadana (‘Gag Law’) introduced heavy fines for protesters who block traffic (Article 36-3). In the UK, the Public Order Act 2023 introduced harsher prison sentences for activists involved in blockades. By upholding the applicants’ convictions, the ECtHR appears to endorse this wider shift towards increased criminalisation of disruptive protest.

Finally, one of the most problematic aspects of the Bodson judgment concerns the consideration of the applicants’ role as trade unionists. Although their conviction was not explicitly based on their status, the Belgian judges held their position as union leaders or members against them, arguing that their influence over the group facilitated the obstruction. This reasoning raises concerns under Article 14 of the European Convention, which prohibits discrimination in the enjoyment of the rights guaranteed by the Convention. The imposition of increased liability on the basis of their trade union involvement could be interpreted as indirect discrimination, as the severity of the sanctions appears to be linked to their membership of an organisation defending workers’ rights. The approach taken by the Belgian courts, and upheld by the ECtHR, is based on the idea that even informal leadership increases the responsibility of the organisers and thus justifies harsher repression.

This logic poses a significant risk to collective mobilisation. It implies that the more structured and organised a movement is, the harsher the punishment of its active members. Yet, structure is a fundamental characteristic of many social, trade union and political movements. Applying increased liability to prominent figures within a movement has a perverse effect: It may discourage unions and associations from organising protests, leading to more spontaneous and potentially less controlled demonstrations. This approach is not without precedent. For example, French criminal courts followed a similar logic in the Cédric Herrou case, where the activism of the defendant – who was prosecuted for helping undocumented migrants across the French-Italian border – was used against him. The Court of Appeal of Aix-en-Provence (8 Aug. 2017, 2017/568 ) ruled that the structured and organised nature of his aid deprived him of the possibility of invoking the “humanity exception” as a legal defence. This trend is worrying, as it risks marginalising activist and trade union organisations by exposing them to harsher legal consequences.

The broader implications of this case extend beyond Belgium. It raises fundamental questions about the future of the right to strike and the boundaries of lawful collective action in democratic societies. If the trend continues, trade unions and social movements may be compelled to reassess their strategies, navigating a legal landscape where disruptive protest increasingly carries the risk of criminal prosecution. By prioritising public order over the substantive exercise of collective rights, the ECtHR has tilted the balance away from democratic pluralism toward a more restrictive model of permissible dissent. This ruling undeniably signals a tightening of the legal noose around militant activism in Europe.