Proposition 51K1598

Projet de loi modifiant la loi du 11 décembre 1998 relative à la classification et aux habilitations de sécurité.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Feb. 7, 2005

Official page

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Status

Adopted

Requirement

Simple

Subjects

protection of privacy secret service public safety police

Voting ¶

Voted to adopt

Vooruit PS | SP Open Vld MR

Voted to reject

FN VB

Abstained from voting

CD&V Ecolo LE N-VA

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Discussion ¶

March 3, 2005 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Deputy Prime Minister and Minister of Justice, I have the honour to report to you on the discussion of Bill No. 1598/1-5 amending the law of 11 December 1998 on classification and safety authorisations.

We first received an introductory explanation from the Minister of Justice, in which the Minister pointed out that in this time, in which the right to security exists and something to which some even wish to grant a constitutional character, it is useful to reiterate that security is an unspoken condition for the exercise of rights and freedoms. The Minister also pointed out that it is necessary to continually strive for the right balance between the legitimate concern for security and the careful observance of public freedoms between superior state interests that ensure the democratic order and the preservation of the rights and privacy of everyone.

The Minister also pointed out that it is correct that some laws involve a greater interference in the private sphere. As such interference becomes more important, it is also necessary that the legal framework in question is exactly aligned with the rules of the principles of legality, proportionality and subsidiarity so that the Standing Committee for the Supervision of Police Services, better known as Committee P, and the Standing Committee for the Supervision of Intelligence and Security Services, better known as Committee I, and the parliamentary committees responsible for its follow-up, respect the legal limits which fall within their mandate.

The supervision exercised by those institutions includes both the protection of the rights guaranteed to individuals by the Constitution and by the laws, as well as the coordination and efficiency of the police services and, on the other hand, the intelligence and security services.

In order to fully clarify the scope of the current designs, it is necessary to recall that the controls on persons take two forms, namely those of safety examinations and those of safety verification. The Minister has given additional explanations in order to better understand what distinguishes the two categories from each other.

In short, the regime of safety investigations was described. The Minister referred to the Law of 11 December 1998 on classification and security authorisation, which aims to protect sensitive classified information by restricting its disclosure. Only persons who are holders of a safety authorisation and who need to be aware of it may have access to that information.

The safety authorisation shall be granted by the national safety authority on the basis of the results of a safety investigation carried out by one or another intelligence service.

The Act of 11 December 1998 establishing an appeal body for safety authorisation allows an appeal to the Standing Committee I against the decision to refuse or withdraw an authorisation or against the absence of an authorisation within the framework. The reduction in the number of occupations, the minister noted, could be a sign of a greater sense of responsibility of the security institutions in the explanation of their decisions and also of a greater social acceptance.

The Minister then explained more about the safety checks. Unlike the security investigation, which involves an active intelligence investigation and reaches to the partner and other cohabitants of the data subject, the security verification is limited to consulting the existing databases and to the data subject itself. The Minister pointed out that these checks are intended either to regulate temporary access to facilities, in so far as access to information does not imply, in order to ensure safety in public places, public buildings of the State or during certain events. Finally, the Minister noted that the necessary controls should also be exercised on the checks, which, for reasons of public safety, verify whether the conditions have been met. According to the Minister, there are two heterogeneous problems: some of them do not have a legal basis, which leads to the lack of legal guarantees for the persons concerned.

The Minister noted that for the reform two bills were drafted, which respectively aim to provide an explicit and legal basis for the security checks of intelligence and police services and to establish an effective appeal in court. The preliminary draft laws were prepared in close consultation with the chairs of the Commission for the Protection of Privacy and the Standing Committee for the Supervision of Intelligence Services. They were examined by the Council of Ministers, the Commission for the Protection of Privacy and by the Law Division of the State Council with reference to the dates of those opinions, 9 December 2004.

The amendments to the law concern classification and security measures. The first bill deals with the cases of a possible request for safety verification based on two assumptions, safety certificates and safety advice. The public authorities seek to ensure public safety in certain places and in certain events by having access to it preceded by a control. The Minister proposes to refer to such authorisation as the safety certificate, which is issued on the basis of a safety verification and whose validity is limited in order, time and space depending on the application.

In other cases, the administrative authority may, for reasons of public safety and the security of the State, consider it necessary to subject access to a profession or a position, the issuance of a permit or a appointment, to special conditions, including a safety verification. In the draft law concerning the administrative authorities, it does not apply to the opinions to be given to the legislative authority in the case of naturalizations, opinions to be given to the legislative authority in the case of acquisition of the Belgian nationality and information provided to international institutions or to foreign governments, on the basis of international agreements. Nor does the draft specify the circumstances for which a formal law has already made consultations or the advice of the intelligence services clear, such as the law for private detectives, surveillance companies and the like.

The Minister also pointed out the examples to which the draft applied: permission to possess and carry weapons, export and transit of weapons, obtaining identification badges at airports, derogation from nationality conditions for religions, recognition of the members of the executive of the Muslims of Belgium who are proposed to the Minister of Justice, obtaining permission to enter the prison for alms, obtaining permission to reside and the establishment and recognition of technical personnel engaged in the installation and maintenance of the central interception chamber of the federal police.

The draft law specifies the scope of the safety checks and provides a limited listing. Unlike in the area of authorisations, only the data relating to the person for whom the certificate or advice is requested are examined. It is precisely because there is no survey in its true sense and there is no research, that the prior consent is also not required.

Finally, the Minister noted that the draft law provides that the persons concerned by the safety checks are informed of this, as well as of the notification and motivation of the safety certificates and opinions of which they are the subject.

Regarding the amendments to the law on the establishment of an appeal body, the Minister points out that the establishment of a specific appeal in the field of safety certificates and safety advice, both for the government and for the user, is one of the key points of the reform for legal certainty.

The composition of the competent appeal body, both in terms of authorisations and in terms of safety certificates and opinions, is amended. From now on, the Chairman of the Standing Committee for the Supervision of Police Services and the Chairman of the Commission for the Protection of Privacy shall sit together with the Chairman of the Standing Committee. The professional body therefore offers several advantages. From now on, it is composed exclusively of magistrates. The presence of the Chairman of the Standing Committee P is also justified. In fact, the data of the police services can constitute a determining assessment element in the context of the safety investigations and verification. The presence of the President of the Commission on the protection of privacy is an additional guarantee for the protection of individual rights. The appeal is open not only against the decisions of refusing or withdrawing a certificate and against a negative safety advice, but also against the prior decision on the admissibility of the request for a certificate or advice.

The Minister concludes by saying that the proposed reform seeks to ⁇ a balance between the higher interests of the State and the fundamental rights and freedoms. She said that it is definitely a hectic enterprise in a climate where safety is so important. She added that the precedent of safety authorisations was taken as a model and that there was little controversy about it, either in terms of efficiency or in terms of the protection of freedoms. According to the Minister, the proposed solution meets the requirements of the State Security and the respect for the rights of citizens.

The general discussion followed. In this context, I would like to draw your attention to a passage on page 14, third last paragraph in which, although not within the prescribed time limit, but at the request of Mr Van Parys, the paragraph beginning with the words "zulks" and ending with "as if our nose bleed" must be read. “In those circumstances it was the political responsibility of the Minister of Justice to take into account the data of the screening, which also happened in 1998. In 2003, the Minister did not want to take this into account. The Committee I analyzed the 1998 procedure. This analysis is reflected in the Annual Report 2001. The Committee I concludes that the screening by the State Security in 1998 was in accordance with its legal mandate. It would have been irresponsible not to take into account the screening of the State Security or to take the risk that the Muslim executive would have been infiltrated by fundamentalist elements. This was accepted in 2003." Colleagues, you find this back in the report.

After reading the passage as it has been amended, Mr Van Parys argues that this does not affect the fact that he is in favour of incorporating that screening scheme into a legal basis, which will promote legal certainty. He also did not deny that the government would have done a lot of work to do so. However, this does not mean that Parliament must discuss this draft in such a quick manner.

Mrs. Genot notes that it is a very complicated and intricate text. She called for a thorough and serious action and asked three questions. First, why was an administrative jurisdiction chosen as established appeal bodies and not a more traditional judicial body? Secondly, if the Security of the State issued a negative opinion in the context of a nationality procedure, the persons concerned can bring an appeal to the court of first instance. Ms. Genot asked for further explanation regarding this procedure. Third, within the scope of the application of these bills, it is expressly referred to the Executive of Muslims of Belgium. Mrs. Genot asked if only this organ was intended.

Mr. Massin recalled that this debate has been held for a longer time than today and everyone has already repeatedly stated on the subject.

Mr. Laeremans wanted to know to what extent the draft laws are urgent and when an initial screening would take place. Mr Borginon responded that the date of the elections was fixed on 20 March 2005 and that that date was urgent. Mr. Laeremans noted that it was not intended to screen all candidates, but only the elected candidates and therefore the Parliament had more time to discuss some of them.

Collega Van Parys subsequently published the report to which he referred here, in particular the statements of Mrs Lizin, which were literally included in the report and to which I will therefore not return today. Mr Van Parys requested that a hearing would be held with those services that are competent for the granting of the various instruments, authorisations and more.

Regarding Article 4 of the first draft law, President Borginon said that it clearly defines which authorities are to be considered when introducing a new Article 22a. Furthermore, he repeated that from the discussion of the present bills it was not clear whether the total workload of the services would decrease or increase. He wanted to hear the Minister’s opinion on this. Their

Onkelinx responded in a first phase to the questions of Mr Laeremans, stating that under Article 21 of the Constitution, the State has the right not to interfere with the organization of worship services and more specifically with the appointment or installation of the servants of any worship services. The Minister argued that the Constitution does not allow the installation of servants to be preceded by safety checks and that the draft in Article 22quinquies does not allow such checks as the servants of the worship services were not appointed by a government but by a religious body. According to the Minister, the State Security is therefore authorized to provide intelligence about individuals or groups that make very strong statements against the survival of democracy.

There was another question about the urgency. In this regard, the Minister referred to the general assembly of the Muslims of Belgium scheduled for March 20th and specified that no security checks would be carried out on the candidates for those elections but on the directly elected candidates who wish to candidate for a mandate in the executive of the Muslims. On the question of whether private persons request to carry out security checks in connection with access to their own building, the Minister’s response was negative. On the questions of Mrs. Genot, the Minister replied that the bill only deals with verification at the request of the legislative or judicial authority where the opinions of the State Security in the context of obtaining the nationality therefore fall outside the scope of the bill discussed.

Asked why disputes relating to security checks are not dealt with before an existing jurisdiction or an administrative court but rather before a specific jurisdiction, the Minister replied that in this appeal body to be established there are magistrates, each of whom has special knowledge on intelligence and security at their level. The College therefore has specific powers and also has access to various data even though they have been declared secret.

When asked why the executive of the Belgian Muslims should be screened while that is not the case for the other recognized religions, the minister referred to the approval of the law of 20 July 2004. The Muslim service occupies a specific place because its internal organization does not rely on any hierarchical structure.

The institution of the Executive requires, according to the Minister, a regulatory action that is not necessary for another, recognized religion.

Asked by Mr. Borginon what should be understood under the term "public authorities with certain powers in the context of security", the Minister specified that it concerns governments that can request a safety certificate from persons who wish to gain access to either buildings or sites with a government function. She summed up a whole category to which something would also relate.

Mr Borginon had asked what was the impact of the bill on the workload of the intelligence and police services and also asked whether there would be an increase in the number of requests. The Minister replied that the sole purpose of the bill was to provide the security checks currently carried out with a sufficiently solid legal basis. The Minister said that it was primarily about checks listed in the memorandum of explanations and that the Committee R has clearly described in the activity report for 2003.

Asked why certain laws are excluded from the scope of the draft laws discussed, the Minister replied that the aim is to provide legal support for safety checks that have no undeniable basis.

The Minister concluded her first series of answers with the mention that, in her opinion, for those fundamental rights and freedoms preventive measures could and should only be taken with the utmost caution, which, in her opinion, did not exclude the Government’s desire to emphasize that sufficient, closing safeguards would be incorporated in the draft laws to prevent possible abuses.

During the members’ responses, Mr Wathelet asked whether the text provided for the possibility of appealing against the desirability of setting up a safety verification or not.

Mr Borginon asked whether it was possible in case of case that, years after the decision for a safety verification was taken, another similar appeal would be brought. The Minister clarified that this was indeed possible.

Mr Wathelet wondered why the composition of the appeal body needed to be expanded and whether the amended composition had to do with certain questions or problems that had been raised. The Minister replied that the presence of the Chairman of the Standing Committee for the Supervision of the Police Services in the appeal body was logical. In addition to data from intelligence services, police data may also be exploited in the procedure.

Mr Van Parys noted that the CD&V group had no fundamental objections to seeking a legal basis for the safety certifications and verification. Nevertheless, he stressed that it was necessary to verify whether the draft legislation meets the general principles as set out in the Constitution and in the ECHR.

Mr. Van Parys also wondered how the bill would allow a screening of the members and candidates of the executive of the Belgian Muslims. He assumed that the screening would take place on the basis of the proposed Article 22quinquies. He also asked himself how to demonstrate which interest was threatened to be damaged.

Mr Van Parys also asked another question concerning the fact that the Financial Information Processing Unit would not be subject to or was subject to a security authorisation. He stated that there is no objective basis for not doing so. This also applies to the professional body.

Onkelinx responded to Mr Wathelet’s question that the appeal body consists of three magistrates. This resulted in a discussion between Mr. Van Parys and the Minister regarding the composition of this college. President Borginon requested that this issue be discussed in the article-by-article discussion. Ms Taelman pointed out that the members of the monitoring committee believed that a specific arrangement should be developed for the members of Parliament. This is a problem that was raised by colleague Van Parys.

In the response, Mr. Laeremans asked what the scope of the bill was with regard to matters that do not belong to the public sphere but that have to do with security. What about surveillance companies? What should be done with it? Ms. Genot pointed out the importance of the present draft law because it provides the possibility to provide a legal basis for the safety checks. In her last reply, the Minister repeated that private persons cannot be included in the system. In response to Mrs. Genot’s comment that she regretted that only the Muslim Executive should be screened while this is not the case for other recognized worship services, the minister replied that the Muslim community already in 1998 was in favor of screening on condition that there was a legal basis for it. This is precisely the purpose of the present bill.

Chairman Borginon also raised the issue of the constitutionality of the screening of the members of the Executive Committee of Muslims. He stated that he was in favour of the screening and agreed with the Minister of Justice that there should be a legal basis for it. Finally, colleague Van Parys wanted to make sure that the bill in question did not prejudice the rights of parliamentarians to have access to certain buildings and documents in the name of their powers and on the part of legislation and control. The Minister replied that there could be a debate on the statute of parliamentarians but that this debate went beyond the scope of the present bill.

Until then the general discussion.

The second bill was followed by a brief discussion with questions from Mr Van Parys. He wondered whether anyone with respect to whom the State Security is conducting an investigation will be informed. The Minister replied that both bills cover the safety authorisations delivered to those who must have access to certain protected buildings or who must perform a special assignment.

Regarding the discussion of the articles, Mr. Speaker, colleagues, no comments were made on Articles 1 and 2. On Article 3, a comment was made by Mr Van Parys, saying that there was no reason to provide for an exception for the Financial Information Processing Cell. This article was adopted by 9 to 2 votes. With regard to Article 4, several colleagues took the floor. This article was also eventually adopted with 9 votes against 2. The same applies to Articles 5 to 9. Their

As for the second bill, Articles 1 to 3 were adopted with 9 votes against 2.

On Article 4, an amendment was submitted by the Government, after which a discussion broke out. The article was eventually adopted unchanged, causing other amendments to fall.

Articles 5 to 15 were approved without comments.

Here is the report of both projects.

There are six speakers registered for the general discussion: Mr. Wathelet, Mr. Borginon, Mr. Massin, Mr. Schoofs, Mrs. Genot and Mr. Van Parys last.

I would like to please Mr. President. Daems and I will be very long, as he asked me.

Instead of pleasing someone who is not there, you can be short and please those who are present!

I want to give him time to come back.

Mr. Minister, dear colleagues, we can only approve these two projects as regards the objective they pursue, namely giving this legal status to security checks and extending and adapting the appeal procedure provided for in the law of 11 December 1998. The absence of legal basis had previously been condemned by the State Council. In fact, security checks constitute in themselves an interference in privacy within the meaning of Article 8 of the ECHR and Article 22 of the Constitution. They should therefore be regulated by a formal law which determines the cases and conditions of such interference and must be subject to the control of an independent and impartial body within which an effective legal remedy can be executed. The Permanent Committee R concluded this in its Annual Activity Report 2003.

The Minister of Justice recalled this in her introductory explanation: a just balance must, in a permanent manner, be sought between legitimate security concerns and the scrupulous respect for public freedoms, between the supreme interests of the State, guarantor of the democratic order, and the safeguarding of the rights and privacy of each. I think it is really in this respect, in this balance of interests between public security and respect for privacy that this project enters.

We can only subscribe to this way of seeing or, in any case, to the objectives to be achieved with regard to this necessary proportionality to be found between the two interests at stake. However, some comments from the State Council or the Privacy Protection Commission have been well incorporated in this regard. On the other hand, others, in our opinion, have not been at all or not sufficiently. There are some criticisms to be made about this project.

It seems to me, first of all, difficult to admit that those laws of 11 December 1998 which constitute a legal basis and a general framework for security checks may not be applicable to certain verification procedures for which a formal law already exists: the authorisation to exercise professions such as that of private detective or the authorisation to operate a custody company, for example. This exception does not necessarily appear to be justified, as the Commission on the Protection of Privacy noted.

This law must be the general framework within which any other provision must enter, even if it is more specific or even if it concerns more specifically certain professions. Then, the requirement of law readability and predictability may not be sufficiently met as the articulation between the two projects — and I discovered it at the end — could be improved. Indeed, at the reading of the first draft, which is based on Article 78 of the Constitution, the consequences to be deducted from decisions from opinions rendered or the absence of a decision on opinions rendered and the possibility of having an appeal against these decisions are not directly detailed in this draft. This is normal, but they are not even returned there.

Indeed, it is only in the draft based on Article 77 of the Constitution that these appeal procedures are provided. We believe that it might have been necessary to refer to it in the draft based on Article 78, allowing these possibilities of appeal to be seen more specifically in the articles relating to checks.

The explanation emphasizes that the project provides for the warning of persons affected by security checks. Nevertheless, in our opinion, this aspect is not sufficiently explicit in the project and this, contrary to what was provided for security authorizations in article 16 of the 1998 law. This Article 16 has not been made applicable to certificates and safety notices. It would have been preferable, as recommended by the Privacy Protection Commission, that the person be informed in advance of the modalities of the security verification procedure, the type of data examined or verified and the possible remedies, as well as the validity period of the certificate or the security notice eventually issued.

Although it may be admitted that the consent of the person is not required in the field of security verification, contrary to what is provided for security authorisations, the information and warning of the person should, however, clearly appear in the law as a general principle, this requirement being justified even more because, as the State Council points out, no consent of the person – and that is normal – is required for that security verification to be carried out. Such precise and complete information should in particular be expressly included in the call for candidacy for the positions referred to in Article 22quinquies.

The project also has some inaccuracies. In fact, Article 22quinquies provides for the possibility of conducting a security check to authorise the exercise of a profession, a function, a mission or a mandate; these notions seem singularly vague. The way in which the scope of the measure is determined cannot, in my opinion – and the Council of State also stresses it – be considered to be in accordance with the requirements of predictability and necessity laid out by the European Court of Justice in this regard. by

The scope of the discretion conferred on the different competent administrative authorities is not delimited with sufficient precision to provide the individual with adequate protection against arbitrariness, in accordance with the requirements of the European Court of Human Rights and the case-law of the European Court of Justice which insists on this need for unfathomed predictability, in our view, given the absence of a clear limitation of the occupations concerned. Are there, indeed, multiple functions, professions and mandates which, when exercised in an inappropriate manner, can undermine the defense of the territorial integrity or the security of the State? So does not the appointment of managers of computer networks, the appointment of a religious teacher in a school, and even the appointment to a political post, if they are used in an inappropriate way, meet these problems relating to the security of the State?

Shouldn’t it have been necessary to specify more in the law that these were functions or positions which were themselves important from the point of view of the said security of the State?

The Commission for the Protection of Privacy points out, for example, that security surveys, so far limited to very particular functions and directly linked to the security of our country and our fellow citizens, see their scope expanded to increasingly banal and daily activities and to increasingly numerous functions, without apparent and automatic connection with security imperatives. In view of the extension of the material scope and in particular of Article 22 quinques relating to safety notices and the extent of the discretion conferred on that administrative authority, can procedural safeguards be considered sufficient in the light of the European Court of Human Rights? Indeed, the further we go in the possibility of cases concerned, the more the appeal body and the supervisory body must ensure that they perform their functions in the best possible way.

The State Council doubts this fact. The role of the appeal body will be crucial in that it is difficult to consider the national security authority as an independent appeal body within the meaning of Article 13 of the European Court of Human Rights. The control that the appeal body will have to exercise over the reasoning of the request for a security check or the decision taken in the matter by the public or administrative authority is fundamental. I think everyone agrees with this principle. Such control shall be admitted in the widest possible manner on the grounds of the request or decision. The appeal body should thus be able to refuse motivated requests for safety checks when the reasoning is insufficient or when the request is disproportionate, or even to challenge the well-founded nature of the reasoning invoked.

The independence of this body is therefore essential. The quality of the judges of the members of this body is fundamental. I will not return to the discussions that took place in the committee, Mrs. Minister, but I insist on this point: the quality of magistrates of each of its members must be guaranteed. Why not have an adjunct, for example, a state advisor magistrate or an advisor to the Arbitration Court to establish a balance between the members dedicated to security (Committee R, Committee P) and those dedicated to privacy, this to respect the weighting, the proportion mentioned so far and allow respect for fundamental rights and respect for privacy.

It is known that this appeal body will decide with a two-thirds majority. This implies that two persons, the representatives of Committee P and Committee R could put in minority another member of that same appeal body whose primary concern would be respect for privacy which must counterbalance security interests.

We consider that, in this appeal body where only three persons are present, a priority is given to the “security” section, given that two out of three persons come from that Committee R or that Committee P, and that this “security” section is not fairly counterbalanced or sufficiently balanced by the “respect for privacy” or “respect for fundamental freedoms” section. That is why I refer here to a State Counselor or a person belonging to the Arbitration Court.

Mr. Wathelet, I apologize for interrupting you. In the current state of affairs, according to the law of 1998, we have only members of the Committee R; therefore we are probably even more today in a security framework, as you mention it, than in what may come. Isn’t there a logical problem in your speech?

I asked this question to the Minister in committee. I asked her why to provide two additional people, if she wanted to remain faithful to the spirit of the 1998 law.

In other words, it is truly judicial. I explained this in the committee.

To supplement the reasoning and ensure this proportion, with this balanced distribution between the security-type component – Committee P and Committee R – and the “Privacy Respect” component, we believe that within this appeal body one should have a parity: one person from Committee P and one person from Committee R, as well as one person guaranteeing respect for privacy and fundamental freedoms.

I would like to explain what you want to include in this project.

I would like to comment on Mr. by Wathelet.

Mr. Wathelet, why do you say that the Chairman of Committee R and the Chairman of Committee P, who are magistrates, have a security objective? Rather, they ensure that, in the exercise of their mission, the intelligence services and police services respect all of our constitutional values, including respect for privacy.

Mr. Minister, it was you yourself who told me in the committee that this section "Committee R and Committee P" should be counterbalanced by a person from the Commission on the Protection of Privacy. It was you who spoke about it!

This is obvious, and it was in particular at the request of the Committee R itself.

You accept, however, that, as part of this file, we were proposing ideas, a little late ⁇ , that is true, but you will recognize that we had to work very quickly, that is the least we can say. And we have indeed accepted the urgency; so I assume that you will accept that we advance ideas. I think this is the kind of project that should be analyzed as thoroughly as possible. Ideas come little by little.

Let’s go in this proportion. That is why I am launching here the idea of having an appeal body, better balanced in our opinion, which can better respect this principle of proportionality between the “security” component that must be present and the component “respect for fundamental freedoms and privacy”. We believe that this better balanced body, two/two, will be able to ⁇ this goal more effectively. Of course, members of Committee R and members of Committee P – and I hope it will always be so – will always keep this notion and this obligation to respect fundamental freedoms and privacy in mind. We should be worried if that was not the case.

With regard to interference in freedom of thought, conscience and religion, Article 19 of our Constitution, which is even more restrictive than Article 9, § 2 of the European Convention on Human Rights, prohibits any regulation of the preventive type. It therefore seems to me that the security certificate imposed by the public authority for access to a local - building or site - where freedom of thought, conscience or religion is exercised is not in accordance with this article 19 of the Constitution, since it leads to preventative preventing someone - I insist on this term - from expressing their religious opinions or not or to limit this expression. I agree with the State Council on this point. It is the preventive aspect that could pose a problem.

Finally, a fundamental question is whether both the European Convention on Human Rights and our Constitution allow us to carry out security checks, as a precaution, with respect to an organ outside the service of worship.

During the discussions, you confirmed, Madame the Minister, that it was not possible, in view of the Constitution, to carry out security checks prior to the establishment of ministers of worship. While it is perfectly understandable that authority can and must provide an appropriate response to a real risk of violation of physical integrity, it is still necessary that violations of fundamental freedoms – freedom of thought, conscience, religion, assembly, right to respect for privacy – are proportionate to the legitimate goal pursued.

It is for all these reasons, because of all these shadow areas, all those inaccuracies that will require to be checked on the field or over time, that we do not have all of our comforts. Therefore, my group will abstain from voting on these two projects, despite the praiseable objective that is yours, Mrs. Minister.

Mr. Speaker, Mrs. Minister, colleagues, I will not respond to the request of my group leader to be exhaustive, but I will nevertheless raise some concerns that I think are important in the context of the draft.

I would like to make it clear in advance that today, with the draft, we are building on something that began in 1998, when an attempt was made to give the State Security and everything around it a legislative framework. In the past, there was the system of security surveys that not only consulted the available files, but also sent police officers on the spot to contact neighbors and family members to check whether or not it was a person to trust. These safety examinations existed under the Act of 1998 and resulted in a safety authorization. But in addition, both the State Security and ADIV have an important task with regard to security verification, which they already carry out today and that without any legal framework.

There are a number of figures in the report. For example, in 2004, the State Security conducted 8,400 such checks, only for the issuance of identification badges at airports. In other words, it is a very common practice, which is not regulated by law, and which also does not involve any possibility of appeal, which is organized in some way. What is our goal today? Our aim is nothing but to add an additional chapter to the Act of 1998 in order to create a legal framework for those investigations, version light, and at the same time to provide for a decent appeal procedure. In other words, the effect of the two draft laws consists essentially in strengthening the legality and the defence of the rights of the data subjects.

I would like to explain this a little before I discuss one or two more substantive issues.

The first point I want to go into a bit more thoroughly, because I think it is a bit the nephralgic point in the current design, is the relationship of the design to the potential screening of candidates for the Muslim executive. Per ⁇ I should tell you how the fork is exactly on the steel. Why is the current draft linked to the screening of members of the Muslim executive? Simply, immediately after these elections are held, on March 20th, an Executive Committee will be formed. This executive must be accepted by the Minister.

At the time of acceptance of the Executive of the Muslims, the Minister has the opportunity to carry out the screening procedure. Their

One question that we must, of course, ask is whether, in such a sensitive subject as freedom of worship or of association, one can organize an interference from the Security of the State. That is always a difficult weighting and one that must be played on two levels. On the one hand, the functioning of the European Convention on Human Rights and the whole framework contained therein, which, in addition to listing all those rights, also defines a number of criteria, both formal and substantial, allowing the restriction of those rights. I think that, globally speaking, for what one wants to do with the Executive of the Muslims, the problem does not rise so much at the level of the European Treaty. I think that both the formal and the substantive criteria can be met fairly easily. The problem, however, is that we have a number of provisions in our Constitution that are not identical to those in the European Treaty. Their

Article 19 of the Constitution, which proclaims the freedom of worship, states that that freedom can only be restricted by the possible punishment of crimes committed on the occasion of the exercise of that freedom of worship. The article in the Constitution that speaks about freedom of association expressly speaks about the prohibition of preventive measures. That prohibition of preventive measures is a difference between our constitutional model and what is provided in European treaties. It is therefore not enough to refer to the ECHR to say that this text is constitutional: we must indeed demonstrate that we remain within the stricter standards that the Constitution imposes on us. Although there is a certain tendency to interpret the constitutional articles in question in the light of the principles as included in the ECHR, the fact remains that the constitutional provisions are stricter. Therefore, I would like to provide some elements in the debate, why I think that this draft and the effect it can have on the Muslim executive, really fall within the constitutional provisions in question.

First and foremost, the Muslim executive as such is not in itself an element of the practice of worship. A Muslim, whether abroad or in this country, does not need the Muslim executive to fully experience his worship. A proof of this is that in many countries, in a vast majority of not only Western countries but also countries with an Islamic majority, there is no similar executive. Their

It cannot be said that Muslims in any Arab state or state in the Middle East would not have the full freedom to profess their religion. I do not think that one can say that the Executive of the Muslims as such is an exercise of worship and therefore the aspect of the preventive restriction of the freedom of worship does not play in relation to the Muslim Executive.

The second argument refers to the role that the Muslim executive plays in the overall functioning of our institutions. In fact, it is a flow for financial resources. That is the essence of the Muslim executive. In no way has that executive any form of doctrinal authority or authority to determine how Islam should be practiced in this country. It is essentially an instrument by which the government can contact to organize the financial and administrative aspects with respect to the Muslims.

In the past, the Court of Arbitration has already stated that in cases where a government pushes forward all sorts of aspects of control measures in order to verify in some way that an entity that is indeed such a flow of public funds, that is willingly a permissible form of public control, precisely for that reason.

The third argument for which I think that it really falls within our constitutional order is that one cannot speak of discrimination here. One could, of course, say that this screening will be carried out for the members of the Executive of the Muslims and not for the representatives of the other worship services. One might argue that this is a discriminatory situation.

I think the word discrimination here is not in place. I can establish that there is a different treatment, but that different treatment does have an objective and clear reason. The reason is simple. In other worship services there exists a generally accepted hierarchy, which is not challenged. The Catholics in this country do not dispute the right of the Bishops’ Conference to observe the leadership of the Catholic Church in Belgium, and one can extend the same reasoning for the other worship services. Islam does not know that same natural interlocutor for the government. The specificity of the worship of Islam requires this government action to come to an interlocutor. Therefore, the discussion of the framework conditions for the recognition of the executive of the Muslims is not discriminatory to Islam.

My fourth argument is that we should also see this legislation in the whole context in which it is created. It is not true that we have a long tradition of providing extensive resources for the Muslim community in this country, nor that we suddenly come up with the idea of conducting a screening of the members of the Muslim Executive, which would have solved all problems. This is not the reasoning that has grown. The actual situation is one in which so far from the Islamic community can indeed be put forward a number of solid arguments to say that it is not treated in an equal manner as the other worship services in terms of financing. If we try to introduce, with the use of this bill, as well as with the previous bill that the election commission installed, a number of legal measures regarding the organization of those elections and the composition of the Executive of the Muslims, it is not intended to harm Islam in any way. On the contrary, we want to try precisely to enable equal treatment through all these measures. Of course, the restrictive aspects of these measures must be seen in the context of a whole attempting to establish the equality between the services of worship.

My fifth argument relies on the discussion of why the Muslim Executive is screened, but the other worship services are not. I have just said something about this. There are a number of other objective factors that indicate that we are facing a different situation in that area.

First, the past has shown that there is a risk of infiltration by a Muslim Executive. The history of recent years has proved that in fact there has been at least an important social debate about whether or not the Muslim Executive was infiltrated by persons who, in terms of public safety, did not belong to it. That is an objective element that cannot be stopped for other worship services at this time.

An additional element is that the current analysis of international terrorism leads to one of the biggest debates currently taking place globally, in particular precisely on the question of how to deal with terrorism that originates in a certain form of Muslim fundamentalism. In other words, that is also a specific context that justifies that we are somewhat more cautious with regard to that worship than with regard to the other worship services.

This is absolutely not a blame for the Islamic community of this country. Only one must understand that when there are indeed a number of objective elements for that worship that cause a problem to exist, the government therefore has the right to try to remedy it, precisely to ensure that one does not go to generalization.

Precisely to ensure that the Islamic association in this country belongs to what is granted to them on the basis of the principle of equality.

I have another argument. Suppose you get into a situation where there appears to be a problem with a candidate for the Executive of the Muslims, even with the security guarantees given. Even then, the Muslim executive remains the representative of that general assembly because she was elected by the Muslims. It is not because an individual candidate may encounter a problem that the body pushed forward at a given moment by the elected representative of the Muslims would no longer satisfy the full representation of the Muslims.

It will always be so that those people who are part of that Executive will indeed have a behaved support in the general assembly. Otherwise, they will never be nominated and will never be part of the Executive. In this sense, it is also not a restriction of the freedom of worship.

I come to a seventh argument that I would like to raise. Of course, one could argue that the individual who, as a result of a security verification, is actually de facto banned from the Executive as an individual could have been affected in his right to freedom of worship. However, I would like to challenge this too for the simple reason that being part of the Executive of the Muslim community is absolutely not the exercise of his individual religious freedom. One can perfectly live his religion in full as an Islamist without being part of the Executive. It is not at all necessary to be a member of the Executive of the Muslims in order to fully confess the worship service. I would like to go a little deeper into this, Mrs. Minister, colleagues. I think it is important that we also raise the arguments that exist. If in the future there ever arises a debate about the constitutionality of this law, it will be in the context of the Muslim executive. After studying the arguments, I have come to the conclusion that we can indeed say that this law remains within the limits of our constitutional model.

Finally, I would like to say something about another point because it has also come up in our discussions and maybe later on this tribune will also be discussed. It is about the element in which it is said that this legislation could also be applied to our members of parliament. However, I think that if one puts this out, one must give a correct representation of what our rights as members of parliament are and what the right of parliament in general is. It goes without saying that there is such a thing as the legislation on the publicity of the administration. However, in the Act of 1998 relating to the classification of certain information within the government as secret, with all categories that belong to it, it has already been explicitly stated that the legislation on the publicity of the administration does not apply to those classified as secret information. I think it is not unimportant to mention that.

Second, it is obvious that as an individual parliamentary member I have an interest and desire to be able to consult as much information as possible from the government, the executive power. However, I think that the organization of our parliamentary work today is not of the kind to state that as a member of Parliament I can pick up my badge and call at any public service and that I must be allowed there at any time of the day to show me any document.

The evidence that this is not the case is legio. They are not to be found in any obscure circular letter that one must have visited in any State Gazette 30 years ago. The evidence of this is included in the annexes of our own Rules of Procedure. Whether it comes to access to prisons and military facilities or how we can obtain information from the Court of Auditors, it will always be repeated that restrictions have been imposed on the right of individual parliamentarians to obtain certain public information.

Let me give you an example that is very relevant. If one wishes to visit a military installation, one must write a letter to the Minister of Land Defense. Moreover, in accordance with a procedure adopted by a then Conference of Presidents and included in our Annex to the Rules of Procedure, the letter must be written seven days in advance. Why 7 days? I have a silent suspicion that within those seven days the competent minister — which is not stated on paper — can ask ADIF whether the visit would not cause problems.

As much as I fully trust the majority of members of this House in such matters, one cannot bypass the assumption that it is perfectly possible that at a certain moment of history in this parliamentary assembly people are elected who, for ideological reasons, have no good intentions at all with the information they can get. That is why our constitutional legislator himself made a clear choice in this regard. The Constitution does not state that the right of investigation and the right to obtain all information that can be obtained from the executive power belong to the individual member of parliament. The Constitution states that the right to investigate belongs to the House. In its implementation, we know the system of the investigative committees, for which a decision of the Chamber in its entirety is necessary again and again to obtain that information. The same procedure applies when seeking comprehensive information from the Court of Auditors. The Chamber as a whole must decide.

Today there is a situation where safety checks leading to a safety permit or a safety advice are not regulated by law. In such situations, it cannot be ruled out at all that members of Parliament are subject to such unregulated safety checks. We are going to a system in which a legal framework has been developed with the possibility of appealing to an organ composed of three persons appointed by Parliament, in this case the chairs of the Committees I, P and the Privacy Committee. In this regard, the two draft laws offer greater protection than the current situation.

I will limit myself to these two elements. The VLD will fully support the two bills.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. Sorry for the length of my speech, but I will try to be brief. In any society, we tend to consider that security, which is sometimes a legitimate concern of citizens and sometimes an objective fear, can contribute to the development of democracy. This project, which is presented to us today, is the result of a long work in which all stakeholders collaborated and expressed themselves, namely the Committee R, the Commission for the Protection of Privacy and, as underlined by other stakeholders, a very precise opinion of the State Council.

Within the framework of greater legal certainty, all the Democrats we are can only approve of the fact that a legal basis is devoted to security checks that, and that is the case, are already being carried out. It is undeniable that the absence of legal basis is harmful. At present, security checks actually pose a double problem, that of heterogeneity and the lack of legal basis for some of them, with the consequence of the lack of legal guarantee for the persons concerned.

I recall in this regard that, in its Annual Activity Report 2003, which was approved on 18 June 2004 by the competent committees of the House and the Senate, the Standing Committee R stressed that security checks constitute an interference with privacy, within the meaning of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 22 of the Constitution. Those security checks should therefore be governed by a formal law determining the cases and conditions of such interference and be subject to the control of an independent and impartial body before which an effective legal remedy can be exercised. Therefore, it seems to me that we are in this framework, namely the regulation by a law, the cases in which interference in privacy can be made, the control of an independent and impartial body and the legal remedy that can be made by the person concerned. Here is the opinion, the report on the activities of the Standing Committee R which was voted and the subject of the examination of the bill that concerns us.

As part of this project, it should be highlighted the appeal procedure which is also provided for certification and safety notice. The proposed appeal body consists of three experienced magistrates appointed by Parliament. This appointment seems to me to provide sufficient guarantees on the level of their competence. There are two judges and a referendary. Mr. Van Parys, you will agree with me that referendums are not just lawyers. You know it as well as me!

In the former legislation, only the Standing Committee R served as an appeal body. The legislation we are proposing today provides for an extended composition that guarantees skills and independence. The Chairman of the Standing Committee for the Control of Police Services and the Chairman of the Commission for the Protection of Privacy surround the Chairman of the Standing Committee R.

I would also like to recall that when the project was mentioned before the monitoring committee, neither the Standing Committee for the Control of Police Services nor the Standing Committee R raised any objections. The head of the Permanent Committee R simply specified that the project only followed their recommendations. This is also reflected in the report developed by Mr. and Marinower.

Furthermore, it is important to emphasize that this legislation does not contradict international instruments for the protection of human rights, in particular Article 8, paragraph 2, of the already mentioned Convention.

Finally, I repeat, given the appeal body, these projects provide sufficient safeguards to prevent possible abuses and offer the indispensable safeguards. The independent appeal body may control a decision of interference in the exercise of one of the freedoms; it may verify whether the aim pursued is in accordance with the law and whether the measure is proportionate to the aim. Furthermore, the project provides for the warning of the persons concerned by the security checks as well as the notification and motivation of the safety attestations and notices to which the persons are subject. This seems to me to be a significant advance, since this was not previously stated in the law.

In this matter concerning the individual rights of people, it is important that a balance is established, is achieved, but it is also important to ensure that this balance is ⁇ ined over time. Any security check is an interference in privacy. A just balance must be permanently sought between legitimate security concerns and the scrupulous respect for public freedoms, between the supreme interests of the State and the safeguarding of the rights and privacy of each. I think this project meets this right balance. That is why the Socialist Party will support it.

First Mr Schoofs is speaking, then Mrs. Genot and then Mr. Van Parys.

There is always a saying that good wine does not need a crown. Bad wine does not need a crown. It is shortened shortly and strongly. For all clarity and for all honesty, it is not so much the taste of this wine and the contents of the bottle, but rather the way it was donated, which gives a wrange aftertaste. I am talking about the content of these two bills. Their

The discussion in the committee was held on his janboer flies. This is an unworthy parliament. This was clearly reflected in the discussion of the procedure. For all clarity, Mr. Speaker, colleagues, I do not want this to be forgotten, the Flemish Interest is not a principled opponent of the safety authorisations, the safety certificates, the safety investigation, and so on, on the contrary. As I said before, however, the way in which these two designs are being chased by the Chamber is a reflection.

In any case, in accordance with the principles of the rule of law and the guarantees of fundamental rights and freedoms, the right to the protection of private life can indeed be partially omitted, namely when it concerns individuals or certain situations or work situations that could pose a serious potential danger to public security.

There is one but. It is in the timing of the file. The discussion of these two bills, which should be clear to everyone, has not been conducted in a normal way, nor within a reasonable time. She was rushed. Hurry and speed are rarely good, I would like to remind you. It happened so quickly that they even forgot to approve an amendment. Then, of course, they stumbled on the Flemish Importance. The cordon sanitary was used once in a different sense. For once, the majority in a cordon sanitary was pushed into the committee. I forgot to approve an amendment. It was thought to revise the vote for a moment, although, of course, no regulatory provision gives rise to this. Now one is convinced that a particular amendment could not be approved by the government, because the Flemish Interest has stated that the parliamentary discussion and vote should be taken seriously, not only in the plenary session but also in the committee. As a result, that one amendment, which states that the working members are members of the appeal body, has not been approved. I come back to that way.

The main objection of the Flemish Interest is not only the way this discussion was conducted. There are also two substantive objections. First, the fact that — it was previously cited — parliamentary members can be screened. I wonder, I address myself more specifically to the colleagues of my group, whom the Minister of Justice would have in mind. Members of Parliament can be screened. Could this be used for a particular group? I do not know, I leave it in the middle, but it is still striking to have to hear in the discussion of the two bills that parliamentarians can be screened. Their

Second, another fact is, of course, the provision stating that the appeal body is not composed in parity. This is reflected in the preparatory works and in the draft laws and articles submitted. Two of the three members of the appeal body will be French speakers in the current constellation. This will continue to be the same in the future. Let us not make illusions about this. It is a right and a privilege that the PS has acquired. Therefore, the appeal body will always consist of 2 French speakers and 1 Dutch speaker. What that will give in terms of the principle of equality and any appeals to the Court of Arbitration, we leave in the middle, but it is still signaled.

After the last objection, we come to the why. Why did the debate have to take place so quickly in the committee? Why was there so much hurry? That is because it is not only and not even so much the PS to do the screening of all kinds of state-threatening individuals, but also to be able to compile the representative bodies of the Muslims in a timely manner – and that is also evidenced by the report of the discussion. This is scheduled for March 20. I dare to say here on the floor and whoever feels called may contradict me: it is for electoral reasons. The PS is not so burned here on the – rightly – screening of certain figures of the Muslim world that are dangerous when the representative bodies are composed. No, the PS is especially looking forward to assembling the representative Muslim bodies as soon as possible in order to get rid of them and thus serve its electorate. For those who want to contradict me, I refer to the statements made by Mr. Eerdekens at the time. I would like to repeat it.

I find it pathetic that Mr. Borginon has cited seven arguments to argue that what stands here today is not discriminatory towards Muslims. Don’t worry, Mr. Borginon, in Flanders, not only that well-thinking part to which you belong, but throughout Flanders one will have understood the message why a screening is needed when representative bodies are composed. There is still experience with this in the past, such as when the minister considers figures drawn by the Security of the State as being extremist yet admitted to the representative bodies. In Flanders, you know what it is about.

We could have agreed with the legislative work presented here today, if it had followed the normal parliamentary path, without problems, but the way the wine is donated leaves a bitter aftertake. Therefore, the Flemish Interest will not approve the two bills and vote against them.

First of all, I would like to regret the way the work has been done in the committee. Indeed, we worked quite quickly and summarily, since it was in the session that we received the opinions of the Committee P, the Commission for the Protection of Privacy or the State Council on the projects, which is not always the best way to work.

You have also been able to judge for yourself: the report of the discussions arrived on your banks only in the course of the afternoon. For parliamentarians who want to inform themselves in advance of the projects they are going to vote in the evening, this is not a more balanced way of working. The decision to include this point on the agenda was obtained at the Hussard. We also saw this in the afternoon. by

The reasons for precipitation seem unjustified. Even Ms. Lizin felt that we were doing a bad service to this bill by organizing a hasty discussion. It should be noted, however, that the discussion began in the Senate. This may not be the best demonstration. This precipitation furiously reminds of the one that prevailed during the vote of the law for the establishment of a commission charged with organizing the renewal of the Muslim worship organ, concluded in both assemblies both in commission and in plenary session in ten days at the heart of the holidays. How can Parliament work quickly when it wants to!

Let’s go back to the project itself. It is, in my opinion, positive to finally have a text that better delimits this sensitive matter and that presents a real possibility of appeal. The existence of a legal basis is a real progress, but only if it creates the clearest possible framework and guarantees the rights of citizens in the best possible way. As this matter is complex, the search for a balance is difficult. Many speakers have said this before me.

The first element of this text that can make us uncomfortable is the very wide scope of this law, which has been criticized by the Privacy Protection Commission. The following excerpt "any element that could harm domestic or external security or economic potential" attests to this.

Furthermore, it is stipulated, “public authorities may, for reasons of public order, subject the access of persons to sites or to a determined national event to the possession of the certificate.” What is a “National Determined Event”? I had never heard of this term. But maybe we can now understand this concept better. So would a major European Summit be a national determined event? I think certain concepts need to be clarified.

The text has already been clarified following some comments from the State Council but I admit that the scope of application remains very broad. The same is true for the other definition of the field that requires to apply for certificates for a number of professions, assignments or appointments. Yet, despite the illustration by examples, the scope of application remains very broad. Furthermore, the State Council asks itself whether the very extensive discretion is proportionate to the legitimate aim pursued and protects the individual from arbitrariness. The Privacy Protection Commission asks – you have already had the opportunity to answer in a committee – about the possibility of seeing religious teachers, for example, involved in this list. You have cited a set of professions that are already subject to these checks but the scope is really very wide since an official at the Foreign Affairs Commission must apply for this certificate in a large number of cases.

We are therefore aware of the extent of the task: it ranges from the least person who enters a nuclear installation — and given the subcontracting that is currently taking place in these installations, it represents a lot of people — to military installations and landing tracks. The field is very wide.

The second major problem, which is not addressed in the project, is the difficult task entrusted to the Security to estimate the dangerousness of a person and which will lead to the refusal of an attestation. For example, if someone belongs to an extremist organization, when can they be considered dangerous? European law considers that there is a problem when there is a lack of clarity and predictability and that there is predictability when a person can reasonably foresee the consequences of a particular act. Otherwise, it emphasizes the risks of arbitrariness. So here is a concrete question: Can an active member of the PTB, a small Belgian Communist and Revolutionary Party, receive a certificate to work on the landing tracks in Zaventem?

By developing an example taken by the Committee R in its 2001 report, I have already been able to show the difficulties encountered by some people who had shown some sympathy for the PKK, which turned into Security reports by “participating in PKK training camps.” The R Committee investigation demonstrated that these allegations were absolutely unfounded, that the source of this information was unreliable, that the poor official who had to process the information was overcrowded and therefore unable to process it. This was not ⁇ reassuring.

One of the arguments that comes back regularly when addressing this topic is the lack of means of the Security which does not allow it to perform a real quality work.

Let us come to a point that Mr. Mr. has long discussed. Borginon as well as by other speakers and which is used to justify the urgency, namely the "screening" of candidates to the Executive of the Muslim cult. This "screening" is not explicitly provided in the project but is mentioned in the exposition of reasons and in the presentation of the minister in commission; in fact, the project is applicable for the recognition of the members of the Executive of the Muslims of Belgium proposed to the Minister of Justice.

Several reasons are invoked to justify that only the Executive of Muslims is subject to "screening": it is an organ consisting of people who are not ministers of worship and a royal decree is needed to designate the members of that Executive. A first royal decree designated the Executive as a recognised body, a second is required to nominatively recognize these persons. It is already a discriminatory element in the sense that, to my knowledge, if I am not mistaken, when the Protestant cult wanted to change its representative organ, a simple letter informed the minister that the Protestant cult was now represented by a new association, which posed no problem. The fact of relying on this discrimination to establish a second one does not seem to me to be ⁇ relevant.

The Minister said that she could not rely on the strict application that the State Council makes of Article 53 of the European Convention on Human Rights because this would mean that the State, under very specific circumstances, would be deprived of the possibility to provide an appropriate response to a real risk.

What does the State Council say? These measures do not directly affect the freedom of cults, but the functioning of the representative bodies of the cults necessarily has an influence on the cults concerned. The measures envisaged are of such nature as to influence the composition of the authority having competences specific to the organization of the cult itself. They would therefore entail restrictions on freedom of religion.” The State Council further specifies that “necessary interference may be provided by law”. But why is it necessary for some religions and not for others?

And there, the State Council is very clear: "It is, indeed, difficult to find that it is only the Islamic cult that would be the subject of the measure of surveillance and control aimed at the decree. The result is a difference in treatment between the representatives of this cult and those of other recognised cults.”

The State Council specifies a little further: "this could result in the body being no longer representative."

This is the reason for this difference in treatment. I listened to Mr. Demonstration. Borin and those motivations seem to me very weak.

I would like to know how things will actually go. Are you going to ask for the “screening”?

Mr. Genot has long discussed this issue in the committee. She asked whether there was a discrimination between Muslim cult and other cults recognized and subsidized in Belgium or non-confessional philosophical communities.

I answered him longly to explain to him that there was no discrimination. For example, all prison clerks are subject to a security check. I say “all”, regardless of the confession to which they belong, even if they are part of a non-confessional philosophical community.

The Muslim Executive, I say and repeat, is not a religious authority. It is an organ that manages the timeline of the cults. It is not a religious authority.

I have absolutely not disputed the fact that all the worshippers were subject to the same rules. From the beginning of my exhibition, I have been speaking of the organ of the Muslim cult. I think I have been quite clear about this.

You are talking about a cult. For my part, I simply say that the Executive is not a religious authority.

It is the organ of Muslim worship that is recognised so far. The State Council itself considers that the fact of influencing the organ of representative worship can influence religious freedom. This is how I understand the opinion of the State Council — page 6 — on the royal decree which could not result.

There is clearly discrimination. This discrimination is based on elements that I find ⁇ weak.

Let me now return to my specific question to which you have not answered. How will things be practically organized? Will you have to perform a particular administrative act to request this "screening"?

( ... )

It is perfect! We know that when the "screening" is carried out, the minister can decide whether or not to follow the results. Given the fact that she does not have access to all the data since, in my knowledge, she is not more empowered than I to consult them, how will she be able to proceed and take responsibilities in this matter?

On the other hand, do we not risk one day to see "screening" the ASBL of financing parties that, however, do not do politics? In its opinion, the Privacy Protection Commission, which does not seem to be a highly fancy body, asks the following question: "Can we not invoke the same reasons tomorrow to control candidates for certain political positions?"

I do not invent it, it is the Privacy Protection Commission that affirms it and it is a highly recognized body by all.

The Senate itself has raised a number of concerns regarding the fact that only the organ of Muslim worship is concerned. And I would like to quote a few passages from the Moureaux report which seems to me an interesting document to be re-entered in this context, report that Mr. Moureaux addressed the government, as a "wise", on the functioning of the Muslim Executive.

"The Constituent Assembly proposes to the Government the persons to be appointed to form the chief body of worship. The official designations will be approved after hard-working negotiations linked to a will to control the elected — "screening" — by the government."

A little further: “The Executive no longer has the confidence of the assembly. This mistrust has probably crystallized excessively a majority who found on this occasion a strong way to question the "screening" implemented during the creation of the Executive. This does not prevent that this mistrust exists, that it persists, at least in part, and that it explains the internal subterfugees of the Executive."

It must be remembered that, when the members of the assembly wanted to be candidates for the Executive, in a series of cases, the number of eligible candidates corresponded roughly to the number of positions to be occupied; this could, in fact, have raised some concern.

Last point: in his proposals, when Mr. Moureaux speaks of a "better controlled screening", he says himself: "It is obvious that it appears quite incredible that a religion is, on this level, treated differently from others." It is Mr. Moureaux says: “It is obvious that it appears quite incredible that a religion is, on this level, treated differently from others.” I am quite surprised.

Read other extracts of the report, especially when it sets the legal framework for continuing security checks, Mrs. Genot!

In any case, the following sentence says: "The proposal made in this framework is therefore only part of a concern of pragmatism."

But you can read the entire report: it is seven pages.

The whole thing is whether or not you agree to carry out security checks for the Muslim Executive. That is what interests me!

My position is very clear: equality. Equal treatment for all religions. What does that mean? Eventually a "screening" for the whole of the representative bodies of the cults or, if one judges that it is an interference in the religions, no "screening", for any cult. This is very clear.

So you consider that the Executive of Muslims is a religious authority!

I consider it a representative body and ...

I do not ask you that! I ask you if it is a religious authority.

It is not a religious authority.

So you just proved to yourself that there is no interference in religion.

The State Council itself considers that the fact of interference in this representative body has an influence on the organization of religion. It is not me who says it, but the state council.

Moreover, I consider that this way of proceeding is quite stigmatizing and ⁇ undesirable in the current climate. by Mr. Borginon spoke of a history of infiltration of the Executive. I will not pronounce. Others refer rather to the fact that the extremist elements denigrate the representative body and give it a very bad image. These are two different expressions of the current reality of this Executive. I will not comment on this. Equality seems to me to be a central element and, unfortunately, little respected in this case.

The last point I would like to address is that of the possibilities of appeal. The Council of State, based on European law, emphasizes the importance, in the case of a posteriori checks, to be exercised by judicial bodies, as these bodies offer the best guarantees of independence, impartiality and regular procedures.

Since 1998, the only appeal against a refusal of authorisation was the Committee R, which was already working, for these cases, as an independent administrative judicial body. There were few complaints to deal with. Decisions were motivated and were not subject to any other appeal.

In naturalization proceedings, the court of first instance regularly found that the evidence was not sufficient to refuse persons on the basis of security elements. I have cited them to you recently in the case raised by the Committee R, but other cases have been regularly ⁇ to me by lawyers who followed this type of affairs.

Theoretically, the P and R committees are independent bodies at the service of the legislative body. In practice, humanly, develop, with the knowledge of the controlled organ, its shortages of staff, the difficulties it encounters, a certain proximity, which is quite normal. I find that the suggestion from our colleague Wathelet to expand the organ is an interesting proposal. Indeed, extending the body to members who would have a more traditional judicial culture could be useful, whether they are magistrates of the Higher Council of Justice or magistrates of the State Council or the Arbitration Court. The fact of having this classical type jurisdictional culture seems to me to be an important element. As has been stressed, the magistrateship of the members of the appeal body and the organization of a genuine collegial court with hearing of the complainant and his lawyer allow, however, to presume a certain rigor in the proceedings.

The Council of State remains an additional appeal, but when it has annulled a decision, the problem will return to the same instance, composed in the same way. This is not always the best way to proceed.

That is why we ask ourselves whether a second stage of appeal, both in substance and in form, should not be introduced, which allows not only to guarantee the confidentiality of sensitive data but also to actually examine the tangible evidence that allows to refuse the security authorization. Given the sensitive nature of these matters relating to fundamental rights, a single remedy, this seems a bit short. Given the very wide scope of the law, given that the "screening" is addressed only to candidates of the Muslim Executive, given that the appeal body currently planned does not allow us to be fully reassured, we can find the relatively fragile balance. We are dangerously at the limit and we should not demolish democracy under the pretext of defending it.

Mr. Speaker, our group will abstain from voting on these drafts. The main reason for the abstinence lies in the fact that the work was organized in such a way that a proper review of the draft law on fundamental principles, as contained in Article 22 of the Constitution concerning respect for private life and Article 19 of the Constitution concerning respect for and the exercise of worship services, could not be done seriously.

I would like to point out that since 16:00 it is known that the debate on this subject will take place here tonight. At that moment our decision was made. Nor have we been able to review the text of Article 8 of the European Convention on Human Rights. Our abstinence is therefore a signal of fundamental protest against the way the debates were organized.

When one says that the urgent treatment was necessary given the upcoming elections of the representative bodies of the Muslims of Belgium, that is not at all consistent with the reality. The urgency, after all, is due to the fact that the government submitted the draft very late. We must not reverse the reasoning. Had they been submitted at the appropriate time, there would never have been a problem of high urgency.

I would like to add two other elements as an explanation for our abstinence. You know that our group is an absolute supporter of the screening, in view of the composition of the Executive Committee of the Muslims of Belgium. This was concretized by our group at the moment we were faced with that responsibility. I have not been able to verify it, and I have not the pretension to give a statement here tonight on the floor that will give this exclusion, but when the procedure for screening developed in the draft law is generally applied to the candidates for the executive of the Muslims of Belgium, I fear that this will give rise to proceedings up to the European Court of Human Rights. This could be based, among other things, on considerations in the opinion of the Privacy Committee and in the opinion of the Council of State. This will make it even better to deal with the current situation. It consists in informing the Minister, in accordance with the legal competence of the Security of the State, of a number of matters that endanger the security of the State, on the basis of which the Minister assumes its political responsibility.

I am in favour of a legal framework, but then it will have to be formulated in such a way that it cannot give rise to numerous procedures that will ultimately result in the inefficiency of the screening. Again, I don’t pretend to do this analysis in five hours.

Finally, I would like to repeat what I said in the committee. It is irresponsible, unreasonable and careless that the appellate body is composed ideologically unbalanced. In safety matters, this is not done and in any case the necessary precautions are taken to avoid all kinds of discussions. It is not about the persons, but about the structure of the professional body. Furthermore, I consider that Mr Wathelet’s intervention in this regard was excellent.

On the basis of all these elements, we, like the CDH, will abstain from voting on these bills.

First of all, I would like to thank Mr. the rapporteur, Claude Marinower, as well as the various speakers – even critical – because, by recalling elements of the debate we had in the committee, they demonstrated that a real substantive debate took place within this committee

By listening to them, we will be able to understand that there is a broad consensus on the objective. This, I recall, is to offer a legal and precise framework for the security certificates and authorizations that exist by thousands in our country as well as a capacity for appeal before a judicial instance for private persons, concerned with security checks and investigations. This project was not obvious to conceive, it was said. Indeed, we protect certain constitutional or European Convention on Human Rights rights and freedoms — in particular the right to life, individual freedom, right to property — by restricting certain other values, in particular constitutional, such as the protection of privacy provided in Article 22 of the Constitution.

The General Assembly of the Legislative Section of the State Council has long analyzed this project. We have taken into account the guarantees demanded by the Commission and the Privacy Protection Commission to ⁇ the continuously sought balance between protecting our rule of law, protecting our democratic order, and protecting individual rights and freedoms, on the one hand. In the committee, we talked a lot about the project in terms of the right to respect for freedom of thought, conscience and religion. In this regard, I justified our choice by citing extracts from the arbitration court’s judgment of 21 December last year concerning particular research methods.

In addition, as previously stated, Mr. Borginon, the specificity of the Muslim cult and the nature of the Executive which, I recall, is not a religious authority. In this regard, I refer to the report of Mr. and Marinower. I regret that Ms. Genot stigmatizes the Muslim cult with its continuous confusion.

I also answered long questions about the right to an effective remedy and the procedural guarantees contained in both bills. by Mr. Massin reminded him just recently.

It was also mentioned that Mr. Borginon addressed the subject — the question of parliamentarians and their rights. The report makes a broad reference to this.

I don’t understand anything about some of Ms. Genot’s questions, such as whether a political party funding ASBL could be enforced by law or whether security checks could not be requested for some members of these ASBLs.

A simple reading of the law shows that this is absolutely not within its scope!

Why come to this tribune to give explanations that are not, to cause confusion that really has no tail or head?

It is not me who found this example, it is the Privacy Protection Commission to which you attach great importance since you give it a mandate in this appeal body. So I imagine that you find its analytical capabilities interesting and relevant.

In its assessment, the Privacy Protection Commission is concerned and says: "Couldn't we, tomorrow, invoke the same reasons for controlling candidates for certain political positions?"

If you had properly examined the file, you would have seen the bill before and after the transfer to the Privacy Protection Commission and the State Council. You would then have noticed the guarantees we have taken to adhere to this need to preserve the political scope of the application of this law.

None of the questions were addressed except by Mr. Wathelet and by Mrs. Genot. I would like to answer, that’s why I wanted to take advantage of this tribune.

This is the requirement of predictability. This requirement has actually been reminded by the State Council. Speaking finally of the necessary safeguards to restrict the protection of privacy, the State Council recalled some basic safeguards.

Only the legislature is entitled to restrict this protection. The law must present certain qualities, in particular to be accessible and predictable. Restrictions may only take place for legitimate, permissible purposes, as set out in Article 8, §2 of the European Convention on Human Rights. This restriction must be necessary and must be accompanied by preventive controls or a posteriori controls by independent bodies. There must be an effective remedy.

We obviously looked very closely at these opinions of the State Council and the Privacy Protection Commission. As I just said, we have substantially modified our first projects in this area.

That being said, although the texts have been clarified on several points, I must emphasize that I disagree with certain positions of the State Council. I explain to myself: the European Court of Human Rights has tempered, to some extent, all the requirements I have just cited when restrictions to the law are dictated by national security measures. I would therefore like to cite the Court in its judgment in Leander v Sweden of 26 March 1987, and several judgments followed that basic judgment. The Court has thus admitted, and I quote, that in the particular context of secret control of personnel assigned to sectors affecting national security, the requirement of predictability cannot be the same as in other fields. Thus, it cannot mean that an individual must be able to accurately anticipate the checks that the competent authority will carry out on him in an effort to protect national security. This does not mean arbitrary power in the head of public authorities, but rather a balance between the superior interests of the State and the rights and freedoms of individuals.

As regards the requirement of the criterion of necessity, the Court has ruled, in the same judgment, that this criterion implies an interference based on an imperative social need, in particular proportionate to the legitimate aim pursued, but recognising, however, that the national authorities enjoy a discretion whose extent depends not only on the purpose but also on the character proper to the interference. In the present case, it is intended to balance the interest of the defendant State in protecting its national security with the gravity of the infringement on the applicant’s right to respect for his private life. In order to safeguard national security, the Contracting States undoubtedly need laws empowering the competent internal authorities to collect and store, in secret files, information about persons and to use it when it comes to evaluating the suitability of candidates for positions of security importance. I think that the case-law of the European Court of Human Rights obviously serves us to justify the peculiarity of the case. As regards the need for an effective remedy, the minimum requirement is that the appeal body is informed of information concerning national security and that a certain contradictory procedure is organised. That is what we did!

This is, Mr. Speaker, the precision I wanted to make following the new questions that have been raised.

In conclusion, the proposed reform strives, it has been said repeatedly, to ⁇ a balance between the superior interests of the State and fundamental rights and freedoms. By getting out of the shadow these security checks that exist by thousands ....

The Minister did not answer all of my questions.

Mrs. Genot, I answered today your questions regarding politics and I had answered in committee your other questions. This is how I am not bound, for example for a specific question that you have asked in a committee, by the certificates issued by the national security authority but it is clear that if I am not the decisions of that authority or the appeal body, I must take a motivated act to explain why I am not the decisions; this actelà would, of course, be attacking before the Council of State.

Mr. Speaker, by removing these security checks from the shadow, I am convinced that it will strengthen the legal certainty not only of citizens but also of the intelligence and police services, who are too often accused of acting outside the law.