Religion – Weltanschauung – Recht [ RWR ]

The European Court of Human Rights has delivered, unanimously, its advisory opinion in response to a request (no. P16-2023-001) from the Belgian Conseil d’État (supreme administrative court) concerning proceedings pending before that court. The Conseil d’État asked the following question:

“Does the mere fact of being close to or belonging to a religious movement that, in view of its characteristics, is considered by the competent administrative authority to represent a threat to the country in the medium to long term, constitute a sufficient ground, in the light of Article 9 § 2 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights, for taking an unfavourable measure against an individual, such as a ban on employment as a security guard?”

The Court’s opinion reads as follows:

The established fact that an individual belongs to a religious movement that, in view of its characteristics, is considered by the competent administrative authority to represent a threat to the State may justify a refusal to authorise that individual to work as a security guard or officer, provided that the measure in question:

(1) has an accessible and foreseeable legal basis;

(2) is adopted in the light of the conduct or acts of the individual concerned;

(3) is taken, having regard to the individual’s occupational activity, for the purpose of averting a real and serious risk for democratic society, and pursues one or more of the legitimate aims under Article 9 § 2 of the Convention;

(4) is proportionate to the risk that it seeks to avert and to the legitimate aim or aims that it pursues; and

(5) may be referred to a judicial authority for a review that is independent, effective and surrounded by appropriate procedural safeguards, such as to ensure compliance with the requirements listed above.

Protocol No. 16 enables the highest national courts of the relevant States parties to ask the Court for advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto. Advisory opinions are not binding.

Since Protocol No. 16 came into force on 1 August 2018 the Court has received eight requests for advisory opinions. It has accepted seven and has rejected one. This is the seventh advisory opinion to have been delivered by the Court. Currently 22 High Contracting Parties have signed and ratified Protocol No. 16 to the Convention.

The background to the case and the domestic proceedings

In order to be able to work as a security guard or officer in Belgium, it is necessary to obtain an identification card issued by the Minister of the Interior or by his or her representative.

From 2010 onwards, S.B., a Belgian national, was employed by G4S, a private company specialising in security services. Among other duties he was assigned to guard buildings of the European Commission for which he had obtained special authorisation (“NATO clearance”). In that capacity he performed reception and patrol duties.

S.B. applied at the end of 2018 to the company Securail, which was responsible for the security of the Belgian railway infrastructure and its users. He was employed as a security officer on an operator’s post in the control room located at Bruxelles-Midi railway station.

In order to perform his various tasks, S.B. holds an identification card which was issued by the Ministry of the Interior and is valid until 18 June 2024.

In 2019 his former employer (G4S) offered him a side job assisting with the security of major events. That post required G4S to obtain for him a second identification card that was specific to the relevant type of work, so the company applied for one from the Ministry of the Interior, which then sought information on S.B. from the State Security Service (Belgian civil intelligence).

In 2020 the State Security Service informed the Ministry of the Interior that S.B. was known to the intelligence services on account of his contacts with several individuals associated with the scientific strand of Salafism.

In 2021 the Security Conditions Investigation Board found that S.B. failed to satisfy the statutory profile for employment as a security guard and suggested that the Ministry of the Interior initiate a procedure for the purpose of refusing to issue him with a second identification card.

The following month, the Ministry of the Interior informed S.B. of the Investigation Board’s opinion. A few weeks later he made submissions in his defence to the Ministry of the Interior.

On 15 October 2021 the Ministry of the Interior decided to withdraw the identification card that had been issued to Securail and refused to issue the new card requested by G4S.

On 25 October 2021 S.B. lodged an application in the Belgian Conseil d’État seeking to have the Minister’s decision set aside.

The Court’s opinion

The Conseil d’État had referred in its question to notions such as “being close to” or “belonging to” a religious movement, without clarifying whether they related to proximity or adhesion in thought or rather to a concrete manifestation of such adhesion in the form of acts.

The Court took the view that, in referring to Article 9 § 2 of the Convention, the requesting court had posited the matter solely in terms of the right to manifest one’s beliefs and religion, which in the particular circumstances, having regard to the uncertainties surrounding the notion of “being close to”, mainly concerned the fact of “belonging to” a religious movement. The Court accordingly chose to focus on that aspect and inferred from the question put by the Conseil d’État that it considered the refusal to authorise S.B. to work as a security guard as constituting an interference with his rights under Article 9 of the Convention.

In order to be compatible with this provision of the Convention, the interference would have to be “prescribed by law”, to pursue one or more of the legitimate aims listed in Article 9 § 2, and to be “necessary in a democratic society” for the relevant aim to be achieved. There was no reason for the Court, in these advisory proceedings, to examine whether those requirements had been met. Such assessment would fall to the Conseil d’État, taking account of the criteria derived from the Convention which appeared relevant in addressing this question.

The Court pointed out that the assessment as to whether the risk was real and likely to materialise would be a matter for the competent national authorities and would have be carried out, in particular, in the light of the substance of the beliefs or ideology in question, also having regard to the character of the person concerned and his or her actions, role and degree of adherence to the religious movement in question. For that purpose, the competent national authorities enjoyed a wide margin of appreciation, for they were best placed to make such an assessment, subject to review by an independent judicial authority.

Concerning the ideology in question, the Court noted that the specific risk identified by the Belgian State Security Service was a risk to the democratic and constitutional order, together with a serious threat to fundamental rights and freedoms. It would fall to the Conseil d’État to satisfy itself, if need be by consulting the classified and other material gathered by the State Security Service, that the risk anticipated by that Service, in relation to the particular Salafist ideology, was sufficiently concrete and substantiated in terms of the means used and the process through which the risk might ultimately materialise.

As regards the character analysis, it would have to be based on any evidence capable of revealing whether or not there was a risk of acts or conduct on the individual’s part that would be harmful to persons or institutions and be prompted by the Salafist ideology.

That analysis would have to take into account, among other factors, whether or not the individual had a criminal record, his or her professional background, and any administrative public-order measures, but also his or her role in the religious movement and his or her conduct in society in general, including on the internet and social networks.

That risk would therefore have to be the subject of an individual and detailed assessment, in the light of the individual’s personal situation and the religious ideology of which he or she was considered to be a follower, while avoiding any form of discrimination prohibited by Article 14 of the Convention in terms of access to employment, especially discrimination on grounds of religion, under the guise of protecting the values of a democratic society.

Accordingly, if it were to be accepted that a religious movement itself posed a significant risk to society, the question would arise whether it was possible that its followers, taken individually, represented such a risk. That would depend in particular on the extent to which they “belonged to” the religious movement, in other words on the degree of allegiance or subservience they showed towards it, which once again would be a matter for the national authorities to assess.

There had to be a real risk, thus one that was sufficiently established. The containment of a mere speculative danger, presented as a preventive measure for the protection of democracy and its values, could not be seen as meeting a pressing social need. For the adoption of preventive measures to be legitimate, the authorities might have to make specific estimations of the potential scale of the consequences that the risk would entail if it was not eliminated in time.

In addition, the risk had to be serious and even carry a certain gravity, without which any limitations of the rights and freedoms of others might not be legitimate.

It would be for the requesting court to ascertain whether the religious movement had started to take concrete steps to implement a policy that was incompatible with the values of a democratic society. If so, the next question would be whether, as a follower of the movement and its ideology, the person concerned was likely, if employed as a security guard or officer, to act or behave in a manner that was incompatible with those values or with the duties of the profession.

This analysis would have to be based on the person’s background, but also on the degree to which he or she belonged to the religious movement in question, from which a bond of allegiance or submission might or might not arise – a bond which, if established, could constitute a risk for the person’s entourage, especially work colleagues, since he or she might receive instructions from the movement and act upon them.

The review of such measures by an independent judicial authority, having access to the totality of the file compiled by the competent body in matters of national security, including to any classified documents, would be a very weighty safeguard in terms of ensuring that measures taken to avert the risk in question complied with the requirements of the Convention.

According to the information available to the Court concerning Belgian law, the Conseil d’État could be given access to the classified documents in the file compiled by the State Security Service. Such access could therefore be seen as a means of enabling that court to perform an effective review of the measure at issue, and that review, in order to meet Convention requirements, would have to concern the reality of the risk identified, its scale, its nature and its immediacy.

The preventive measure taken to avert the risk identified by the competent national authorities would also have to be proportionate to the legitimate aim or aims that it sought to pursue. To be proportionate, the measure first had to be regarded as not limiting the individual’s rights under Article 9 beyond what was necessary to achieve the legitimate aim or aims, which meant ensuring that it or they could not be achieved by any less intrusive or radical means. Further, the measure had to be surrounded by appropriate procedural safeguards, such as to prevent any arbitrariness. In particular, the person concerned should be involved in the decision-making process to a degree that was sufficient to ensure the requisite protection of his or her interests.

Useful links

• Table of signatures and ratifications
• Link to advisory opinion page
• Link to previous press releases concerning this request

Press release ECHR 356 (2023) 14.12.2023