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  • ECHR Ruling Relating to Sharia Law 2003

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    Source: “Annual Report 2003 of the European Court of Human Rights, Council of Europe”

    Noting that the Welfare Party had pledged to set up a regime based on sharia law, the Court found that sharia was incompatible with the fundamental principles of democracy as set forth in the Convention. It considered that “sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it”. According to the Court, it was difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverged from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervened in all spheres of private and public life in accordance with religious precepts.

  • ECHR Ruling: 

    "sharia law is incompatible with democracy and human rights"

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    Annual Report 2003 of the European Court of Human Rights

    Council of Europe

  • Country: 
    Greece
    News Date: 
    19/12/2018
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    A Greek court was wrong to prioritise sharia 'law' provisions over those of the country's domestic legal code, the European Court of Human Rights (ECHR) has ruled. The ECHR  that the Greek Court of Cassation's decision to allocate a man's legacy according to the principles of sharia 'law' was incorrect. It ruled

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    These cases of openings to a justice parallel to that of the State raise several problems. The first is that the acceptance of parallel court decisions is an acceptance of communitarianism. This calls into question the unity of justice in a territory as well as the equality of men before the law, since depending on the religion of the former, the applicable law would not be the same. The applicability of the ECHR in the signatory countries is questioned or at least restricted in certain areas. Areas of “different right” (sometimes called “no rights” zones) where the signatory State would have accepted more or less officially that its right be derogatory.

    Finally, this raises the question of the acceptability of certain principles or values. The former PACE Rapporteur explained in her note that “The Court has ruled that Sharia law is in compatible with the European Convention on Human Rights, but obviously this does not mean that there is absolute incompatibility between the Convention and Islam”      

    This distinction between Sharia and Islam to consider the former as incompatible with the ECHR contrary to the second is not obvious. At the beginning of her note, she states precisely that “Sharia law is understood as being ‘the path to be followed’, that is, the ‘law’ to be obeyed by every Muslim.” If Islam “ordained a law” (Surah 5, verse 48) to every Muslim and “assigned a path” (id.) is sharia, then sharia becomes something consubstantial to Islam. A Muslim may not be a good Muslim if he does not apply the Sharia. There would thus be an incompatibility between the ECHR and Islam, which is not surprising as the need to create human rights in Islam testifies.

     CEDH, Refah Partisi (The Welfare Party) and others v. Turkey [GC], n° 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003, § 123.                                                                                                                            

     Committee on Legal Affairs and Human Rights, Compatibility of Sharia law with the European Convention on Human Rights: can States Parties to the Convention be signatories of the ‘Cairo Declaration’? Introductory Memorandum, AS/JUR (2016) 28, 7 October 2016, § 6. All following passages are excerpts from this note, which contains all sources, .

  • ECHR: INFORMATION NOTE No. 50 on the case-law of the Court February 2003(Sharia)

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    With regard to the main grounds for dissolution, these could be classified into three main groups:

    (i) a plurality of legal systems cannot be considered compatible with the Convention system, as it would introduce a distinction between individuals based on religion and thus, firstly, do away with the Stateís role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of different religions and beliefs and, secondly, create an unacceptable discrimination;

    (ii) as to the application of sharia within the context of such a plurality of systems, explicitly proposed in certain of the statements referred to, the Court accepted the Constitutional Courtís conclusion that these statements formed a whole and gave a clear picture of a model proposed by Refah of a state and society organised according to religious rules; however, sharia is incompatible with the fundamental principles of democracy, since principles such as pluralism in the political sphere and the constant evolution of public freedoms have no place in it and a regime based on sharia clearly diverges from Convention values; Contracting States may oppose political movements based on religious fundamentalism in the light of their historical experience, and taking into account the importance of the principle of secularism in Turkey the Constitutional Court was justified in holding that Refahís policy of establishing sharia was incompatible with democracy;

    (iii) as to the relationship between sharia and the plurality of legal systems, Refahís policy was to apply some of shariaís private law rules to the Muslim population in the framework of a plurality of legal systems; however, such a policy goes beyond the freedom of individuals to observe the precepts of their religion and falls outside the private sphere to which Turkey confines religion, thus suffering from the same contradictions with the Convention system as the introduction of sharia; freedom of religion, including freedom to manifest religion, is primarily a matter of individual conscience and the sphere of individual conscience is quite different from the field of private law, which concerns the organisation and functioning of society ñ it had not been disputed that in Turkey everyone can observe in his private life the requirements of his religion but on the other hand any State may legitimately prevent the application within its jurisdiction of private law rules of religious inspiration prejudicial to public order and the values of democracy;

  • CEDH - Jugement relatif à la charia (2003)

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    Cour européenne des Droits de l’Homme - charia

    Relevant qu’en l’espèce le Parti de la Prospérité s’était notamment donné pour but d’instaurer un régime basé sur la charia, la Cour a estimé que celle-ci était incompatible avec les principes fondamentaux de la démocratie, tels qu’ils résultent de la Convention. En effet, « la charia, reflétant fidèlement les dogmes et les règles divines édictés par la religion, présente un caractère stable et invariable. Lui sont étrangers des principes tels que le pluralisme dans la participation politique ou l’évolution incessante des libertés publiques ». D’après la Cour, « il est difficile à la fois de se déclarer respectueux de la démocratie et des droits de l’homme et de soutenir un régime fondé sur la charia, qui se démarque nettement des valeurs de la Convention, notamment eu égard à ses règles de droit pénal et de procédure pénale, à la place qu’il réserve aux femmes dans l’ordre juridique et à son intervention dans tous les domaines de la vie privée et publique conformément aux normes religieuses.

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