European Court of Human Rights on Shariah Law: Difference between revisions

{{Quote||As I do every year, I will tonight outline some of the main messages which emerge from our case-law over the past year. This year I shall talk about four cases.  

 

The first concerned the dissolution, by the Turkish Constitutional Court, of a political party, the Welfare Party, on the grounds that it wanted to introduce sharia law and a theocratic regime. A Grand Chamber of the Court found unanimously that there had been no violation of Article 11 of the Convention, which protects freedom of association. This case gave the Court the opportunity to conduct an in-depth analysis of the relationship between the Convention and democracy, political parties, and religion.  

 

In its judgment,<ref>Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, judgment of 13 February 2003, to be reported in ECHR 2003-II.</ref> the Court first noted that freedom of thought, of religion, of expression and of association as guaranteed by the Convention could not deprive the authorities of a State in which an association, through its activities, jeopardised that State’s institutions, of the right to protect those institutions. It necessarily followed that a political party whose leaders incited to violence or put forward a policy which failed to respect democracy or which was aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy, could not lay claim to the Convention’s protection against penalties imposed on those grounds. Such penalties could even, where there was a sufficiently established and imminent danger for democracy, take the form of preventive intervention.  

 

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.  

 

There is no doubt that this judgment is one of the major judgments of the Court in which it endeavours to define the shape and the boundaries of democracy and the rule of law. }}