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CASE OF KASYMAKHUNOV AND SAYBATALOV v. RUSSIA

Date Published: 
Saturday, 9 March, 2019

Author(s):

Summary: 

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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. 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. , § 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. 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.