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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.

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    ECHR Ruling:  "sharia law is incompatible with democracy and human rights"

    Source:  Annual Report 2003 of the European Court of Human Rights Council of Europe
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    The European Court of Human Rights has ruled against the deportation of an Afghan Christian convert from Switzerland on the grounds that they would be in serious danger if they returned to Afghanistan.

    Christian legal group ADF International intervened in the case in support of the man known as A.A. (anonymised for security reasons) saying the asylum seeker could face severe social and formal persecution if sent home.

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    108. Furthermore, it is significant that the experts also noted that, although Hizb ut-Tahrir clearly aspired to gain political power in order to overthrow non-Muslim governments and impose Islamic rule worldwide, it rejected any possibility of participating in the democratic political process. The terminology used in Hizb ut-Tahrir’s literature to refer to the methods to be employed to gain political power was so ambiguous as to give cause to believe that recourse to violent methods was envisaged (see paragraphs 21 and 37 above; see also the reports on the ideology of Hizb ut-Tahrir by reputed international NGOs cited in paragraphs 44-50 above). It follows from the above that the means which Hizb ut-Tahrir plans to use in order to gain power and to promote a change in the legal and constitutional structures of the States where it is active cannot be regarded as legal and democratic.

    109. Nor are the changes in the legal and constitutional structures of the State proposed by Hizb ut-Tahrir compatible with the fundamental democratic principles underlying the Convention. The Court notes that the regime which Hizb ut-Tahrir plans to set up after gaining power is described in detail in its documents. An analysis of these documents reveals that Hizb ut-Tahrir proposes to establish a regime which rejects political freedoms, such as, in particular, freedoms of religion, expression and association, declaring that they are contrary to Islam. For example, Hizb ut‑Tahrir intends to introduce capital punishment for apostasy from Islam and to ban all political parties which are not based on Islam (see paragraph 51 above).

    110. Furthermore, in its literature Hizb ut-Tahrir clearly states its intention to introduce a plurality of legal systems, that is, a distinction between individuals in all fields of private and public law, with different rights and freedoms afforded depending on religion. #ff0000">Thus, according to Hizb ut-Tahrir’s Draft Constitution (see paragraph 51 above), only Muslims will have the right to vote and to be elected, to become State officials or to acquire membership of political parties. Different tax rules and family laws will be applicable to Muslims and to adherents of other religions. The Court has already found that such a system cannot be considered to be compatible with the Convention system because it undeniably infringes the principle of non-discrimination on the ground of religion (see Refah Partisi (the Welfare Party) and Others, cited above, § 119). Similarly, some provisions of the Draft Constitution promote differences in treatment based on sex, for example providing that women cannot take up high-ranking official positions. These provisions are hard to reconcile with the principle of gender equality, which has been recognised by the Court as one of the key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 115, ECHR 2005‑XI).

    111. Lastly, the Court observes that the regime that Hizb ut-Tahrir intends to set up will be based on sharia. However, it has previously found a regime based on sharia to be incompatible with the fundamental principles of democracy, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. An organisation whose actions seem to be aimed at introducing sharia in a State Party to the Convention can hardly be regarded as complying with the democratic ideal that underlies the whole of the Convention (see Refah Partisi (the Welfare Party) and Others, cited above, § 123).

    112.#ff0000"> It is significant that the activities of Hizb ut-Tahrir are not limited to promoting religious worship and observance in private life of the requirements of Islam. They extend outside the sphere of individual conscience and concern the organisation and functioning of society as a whole. Hizb ut-Tahrir clearly seeks to impose on everyone its religious symbols and conception of a society founded on religious precepts (ibid., § 128; see also Leyla Şahin, cited above, § 115).

    113. In view of the above considerations, the Court finds that the dissemination of the political ideas of Hizb ut-Tahrir by the applicants clearly constitutes an activity falling within the scope of Article 17 of the Convention. The applicants are essentially seeking to use Articles 9, 10 and 11 to provide a basis under the Convention for a right to engage in activities contrary to the text and spirit of the Convention. That right, if granted, would contribute to the destruction of the rights and freedoms set forth in the Convention and referred to above.

    114. It follows that the applicants’ complaints under Articles 9, 10 and 11 are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

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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 ruled 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 that the difference in treatment which the man's wife suffered in comparison to a beneficiary of a wi

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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”      

    #ff0000">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.

    #_ftnref1" name="_ftn1" id="_ftn1">[1] 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.                                                                                                                            

    #_ftnref2" name="_ftn2" id="_ftn2">[2] 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, accessible here.

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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;

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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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