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

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

Date Published: 
Friday, 28 February, 2003

Author(s):

Summary: 

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;