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 [2023] ECHR Request no. P16-2023-001 was a request from the Belgian Conseil d’Etat/Raad van State for an Opinion under Protocol No. 16 to the ECHR.

Background

SB was a guard with Securail, the organisation responsible for the security of the Belgian railway infrastructure and its users. He was employed as a security officer in the control room located at Bruxelles-Midi railway station [14]. As a precondition of employment, he held an identification card, expiring on 18 June 2024, issued by the Minister of the Interior at the request of his employer, which entitled him to continue working as a security guard [15].

In March 2020, the State Security Service informed the Ministry of the Interior that SB was known to the intelligence services on account of his contacts with several individuals of the “scientific Salafist “orientation and

“According to our assessment [SB] is a supporter of this ideology. Supported by a majority of Salafists, the ‘scientific’ branch considers preaching to be the main instrument for spreading its ideology, and eschews political intervention and violence as means of action. Most of the proselytising carried out within scientific Salafism therefore takes the form of teaching activities, the production of teaching aids about Islam or the dissemination of sermons” [18].

As a result of that report, his ID card was withdrawn [19-24].

In addition, the Ministry based its decision on extracts from a brochure on Salafism from the State Security Service’s website, where the Service explained that scientific Salafism and political Salafism posed a threat for the following reasons:

“First, an intolerant version of religion, refusal to recognise the legitimacy of Belgian law (in relation to Sharia law) or community sectarianism clearly represent a danger for the democratic and constitutional order. Such a sectarian application of religion could lead to the emergence of truly parallel societies where the authority of a State and of a democratic system would no longer apply.

Secondly, sexual inequality, a backward view of the role of women and the position vis-à-vis religious freedom may, in the long run, seriously threaten fundamental rights and freedoms. Examples include repeated calls to hatred of Jews or of Western values, an obligation for women to be invisible in public places, prohibition of mixing and the resulting quasi-apartheid of the sexes, or threats proffered against opponents and against critics of Islam (genuine or not), thereby seriously impugning freedom of expression.

Lastly, since Salafists claim to speak for all Muslims, they tend to make generalisations, thus triggering heated reactions among far-right groups toward the Muslim population as a whole. This has the effect of polarising society and undermining the principle of ‘living together’ (le vivre-ensemble). It should further be noted that the main victims of Salafists are often other Muslims” [25].

SB then lodged an application with the Conseil d’État on 25 October 2021 against the Belgian State (represented by the Ministry of the Interior) seeking the setting aside of the Minister’s decision to withdraw his ID as a security officer and to refuse to issue him with a second ID card for employment as a security guard [28].

In the subsequent domestic proceedings, SB said that his employers had known about his Muslim faith and that it had never posed the slightest difficulty. He argued that the mere fact of having exchanges about religion with his relatives in a private context fell within the private practice of worship and did not constitute a “form of proselytising”. The Minister’s decision of 15 October 2021 had, in his view, been the result of a manifest error of judgment [31].  He had never shown any lack of integrity in his work, he had never encountered any difficulties with his colleagues, his managers or members of the public, and he had never shown any lack of respect for fundamental rights or democratic values [32].

The question before the ECHR

The Belgian Conseil d’État sought an Advisory Opinion on 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 Convention, for taking an unfavourable measure against an individual, such as a ban on employment as a security guard?”

The Court acknowledged that when the competent administrative authority regarded an individual exercising sensitive duties belonging to a religious movement which it regarded as representing a risk to democratic society and its values, it might, in principle, take preventative measures against the individual concerned. However, to comply with Article 9, those measures had to have a legal basis that met the requirements of accessibility and foreseeability, had to pursue a legitimate aim under Article 9 § 2, and had to be necessary in a democratic society. As to the last of these:

• there had to be “a pressing social need”, established by a proper risk-assessment; and
• the measures had to be proportional to the case and should not limit the individual’s Article 9 rights beyond what was necessary to achieve the legitimate aim or aims pursued – which meant ensuring that the aims could not be achieved by any less intrusive or radical means.

The Opinion

The Court replied as follows:

“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.”