CEDH · CASELAW;ADVISORYOPINIONS;PROTOCOL16;OPINIONS;ENG — 14 décembre 2023

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P16-2023-001 14.12.2023 [GC] Legal summary A rticle   9 Manifest religion or belief Advisory opinion as to whether an individual may be denied authorisation to work as a security guard or officer on account of being close to or belonging to a religious movement Background and question – The request by the Belgian Conseil d’État for an Advisory Opinion arose in the context of judicial proceedings pending before it concerning an application for the suspension and setting-aside of a decision of the Minister of the Interior to withdraw, from an individual considered by the Belgian State Security Service ( Sûreté de l'État ) to be a supporter of the “scientific” Salafist ideology, an identification card entitling him to perform duties ensuring the security of the Belgian railway infrastructure and of its users, and to refuse to issue him with a second card for employment as a security guard. The decision was based on the fact that, according to information held by the intelligence services, S.B. was a supporter of the ideology of “scientific Salafism”, he had contact with individuals of that strand and that he had engaged in proselytising among his family and friends through electronic means of communication. Since scientific Salafism was incompatible with the Belgian model of society ( inter alia , communitarianism, the fundamental rights and freedoms of fellow citizens, the role of women), undermined the essential democratic values of the rule of law and constituted a medium- and long-term threat to the country, S.B. no longer fulfilled the conditions laid down by law for working as a security guard, notably respect for fundamental rights and democratic values, integrity, loyalty and the absence of any risk to state security or public order. The question asked by the Conseil d’État in the request for an advisory opinion was worded as follows: “ 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 Convention, for taking an unfavourable measure against an individual, such as a ban on employment as a security guard ?” Opinion – Article   9 §   1 of the Convention encompassed two discrete aspects, on the one hand the right to hold a personal belief (a matter of each person’s inner conviction or forum internum ) which was an absolute right as such could not be subject to any restriction or limitation and on the other the right to manifest such a belief (an individual’s outward expression of a belief or forum externum ) which was not an absolute right. In its request the Conseil d’État had posited the matter solely in terms of the right to manifest one’s beliefs and religion ( forum externum ), which in the present case, 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 focused on the latter aspect. In the light of present-day conditions, the forms of manifestation of a religion or belief enumerated in Article   9, namely, worship, teaching, practice and observance, might also consist of use of the internet and social media. Such forms of “manifestation” were, in principle, protected by Article   9. The freedom to manifest one’s religion also encompassed the right to try to convince one’s neighbour, for example through “teaching”. The Court acknowledged that when an individual exercising sensitive duties belonged to a “religious movement” which, in view of its characteristics, was regarded by the competent administrative authority as representing a risk for democratic society and its values in the medium to long term, that fact might, in principle, justify the taking of a preventive measure against the individual concerned. However, such a measure, in order to be compatible with Article   9, had to comply with a number of Convention requirements. Those were as follows: (1)     The Conseil d’État had to ensure that the impugned measure had a legal basis which met the quality-of-law requirements of accessibility and foreseeability. (2)     It had to also ensure that the impugned measure pursued at least one of the legitimate aims enumerated in Article   9 §   2: that list was exhaustive and the definition of the permitted exceptions to the individual’s freedom to manifest his or her religion or beliefs was restrictive. (3) The measure had to be necessary in a democratic society. In that respect consideration had to be given to the following criteria. (a)     A pressing social need – The proceedings which gave rise to the request for the present opinion did not concern an ordinary employee, but rather an individual who, in the context of his employment, was vested with a degree of authority and was bound by an administrative authorisation procedure. In carrying out the risk analysis the requesting court would have to take into account the nature of that specific role, since the risk incurred was different from any risk that might be represented by an employee working in a sector or branch of occupational activity that was considered less sensitive, as indeed was reflected in the Belgian legislation. The assessment of the nature, reality, scale and immediacy of the risk was a matter for the competent natural authorities which enjoyed a wide margin of appreciation, for they were best placed to make such an assessment, subject to review by an independent judicial authority. More specifically: (i)     Nature of the risk – The risk had to be subject to an individual and detailed assessment, in the light of, inter alia , the substance of the beliefs or ideology in question and the character of the person concerned and his or her actions, role and degree of adherence to the relevant religious movement. As to the ideology in question, the specific risk identified by the State Security Service was a risk to the democratic and constitutional order, together with a serious threat to fundamental rights and freedoms, in particular those of women and, more generally, non-Muslims, stemming from the influence exerted by supporters of scientific Salafism. More specifically, there was said to be a risk of: a legal regime ultimately being established on the basis of Sharia law; community segregation and “the emergence of truly parallel societies where the authority of a State and of a democratic system would no longer apply”; “polarisation of society”; and the undermining of the principles of “sexual equality” and “living together”. The Conseil d’État had 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 Salafist ideology, was sufficiently concrete and substantiated in terms of the means used and the process through which the risk might ultimately materialise. The character analysis had 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 Salafist ideology. That analysis therefore 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.   It would also be appropriate to take account of the nature of the tasks assigned to the post of security guard or officer that the individual in question wished to hold. The existence of a risk that individuals employed as a security guard or officer might use the advantages and powers conferred on them by their duties for unlawful purposes could not therefore be ruled out as a matter of principle. In carrying out their assessment the authorities had to avoid 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. Furthermore, that personalised assessment could not entirely disregard the general context for which it was intended, in particular the degree to which the religious movement in question had spread and established itself in society and any risk it might represent for the latter. 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. Lastly, the absence of professional misconduct or complaints against the person concerned, as well as the absence of repressive measures (dissolution or banning) against the movement, were factors to be taken into account but not necessarily decisive. (ii)     Reality and scale of the risk – There had to be a real risk, namely, one that was sufficiently established, it had to be serious and even carry a certain gravity. (iii)     Immediacy of the risk – The authorities were bound by a positive obligation to act where they knew or ought to know of the existence of a “real and immediate” risk to the life or bodily integrity of an individual. They had to do all that could be reasonably expected of them to prevent such a risk from materialising (the so-called “ Osman test”). Where, however, the acts of a political party, an association or a group were regarded as representing a risk for all or part of society, such a risk must be assessed differently, taking account of the fact that the risk in this sort of case would not usually take shape immediately but would emerge from a rather gradual and ongoing process. In such cases, the State could not be required to wait, before intervening, until a political or other movement had taken action to undermine democracy or has had recourse to violence. According to the State Security Service, the ideology of the religious movement of which S.B. was said to be a supporter represented a threat to the State in the medium to long term. [It would nevertheless 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 . It would be difficult to conceive that a democratic State could tolerate the idea of entrusting tasks requiring full allegiance to the values of a democratic society to a person who was submissive, or even subservient, to a religious or other movement whose ideology was considered by the competent authorities to be incompatible with those values and whose concrete actions had been shown to constitute a threat to that State. (iv)     Review by a judicial authority – The review of the legality of preventive 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, was a very weighty safeguard in terms of ensuring that measures based on confidential information – and challenged by those who suffer the consequences thereof – complied with the Convention’s requirements. According to the information available to the Court concerning Belgian law, the Conseil d’État might be given access to the classified documents in the file compiled by the State Security Service, as could the auditeur at that court. Such access could therefore be seen as a means of enabling that court to perform an effective review of the impugned measure, and that review, in order to meet Convention requirements, must concern the reality of the risk identified, its scale, its nature and its immediacy. (b)     Proportionality – 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 pursued, which meant ensuring that it or they could not be achieved by any less intrusive or radical means. The Court noted a number of considerations the competent national authorities had to take into account when carrying out the assessment. Further, the measure had to be surrounded by appropriate procedural safeguards, such as to avert any risk of arbitrariness. In particular, there would be a need for the person concerned to be involved in the decision-making process, taken as a whole, to a degree that was sufficient to ensure the requisite protection of his or her interests. The Court reiterated that where a measure that was unfavourable to the individual concerned had been based on classified information, only measures restricting procedural rights which did not affect the very essence of those rights would be permissible. In cases where evidence had not been disclosed to one of the parties on grounds of a duly justified public interest, the ensuing difficulties for that party would have to be sufficiently counterbalanced by the procedure followed by the judicial authorities to ensure that, as far as possible, it complied with the requirements to provide for adversarial proceedings and an equality of arms and it incorporated appropriate safeguards to protect the interests of the person concerned. Those counterbalancing factors would include a review by the relevant court of the content of the classified information and its use in the reasoning of the decision appealed against, while, if appropriate, to the extent compatible with maintaining the confidentiality and proper conduct of investigations regarding an individual, informing that person, at the very least summarily, of the substance of the accusations against him or her. It would therefore be for the Conseil d’État to ensure that adequate counterbalancing measures, sufficient to mitigate the effects of the limitations of the person’s procedural rights, had been applied or will be applied when the domestic proceedings resumed. Conclusion (unanimously) : The established fact that an individual belonged to a religious movement that, in view of its characteristics, was considered by the competent administrative authority to represent a threat to the State might justify a refusal to authorise that individual to work as a security guard or officer, provided that the measure in question: (1)     had an accessible and foreseeable legal basis; (2)     was adopted in the light of the conduct or acts of the individual concerned; (3)     was taken, having regard to the individual’s occupational activity, for the purpose of averting a real and serious risk for democratic society, and pursued one or more of the legitimate aims under Article   9 §   2 of the Convention; (4)     was proportionate to the risk that it sought to avert and to the legitimate aim or aims that it pursued; and (5)     might 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. (See also Osman v.   the United Kingdom , 28   October 1998, Legal Summary ; C.R. v.   Switzerland (dec.), 40130/98, 14   October 1999, Legal Summary ; Refah Partisi (the Welfare Party) and Others v.   Turkey [GC], 41340/98 et al., 13   February 2003, Legal Summary ; Ivanova v.   Bulgaria , 52435/99, 12   April 2007, Legal Summary ; Association of Citizens “Radko” and Paunkovski v.   the former Yugoslav Republic of Macedonia , 74651/01, 15   January 2009, Legal Summary ; Eweida and Others v.   the United Kingdom , 48420/10 et al., 15   January 2013, Legal Summary ; Vona v.   Hungary , 35943/10, 9   July 2013, Legal Summary ; Muhammad and Muhammad v.   Romania [GC], 80982/12, 15   October 2020, Legal Summary ; Kurt v.   Austria [GC], 62903/15, 15   June 2021, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click   here . For non-official translations into other languages click   here .