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

{{Quote||JUDGMENT IN THE CASE OF REFAH PARTISI (THE WELFARE PARTY) ERBAKAN, KAZAN AND TEKDAL v. TURKEY

In a judgment[fn1] delivered at Strasbourg on 31 July 2001 in the case of Refah Partisi, Erbakan, Kazan and Tekdal v. Turkey (nos. 41340/98 & 41342-4/98), the European Court of Human Rights held, by four votes to three, that there had been no violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights and unanimously that no separate issues arose under Articles 9, 10, 14, 17 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1.

1.  Principal facts

The first applicant, Refah Partisi (the Welfare Party, hereafter the "RP") was a political party that had been founded on 19 July 1983. It was represented by its Chairman, Necmettin Erbakan. He is the second applicant and was a Member of Parliament at the material time. The third and fourth applicants, Şevket Kazan and Ahmet Tekdal, are politicians and lawyers and were at the material time Members of Parliament and Vice-Chairmen of the RP.

On 21 May 1997 the Principal State Counsel at the Court of Cassation brought proceedings in the Turkish Constitutional Court seeking the dissolution of the RP, which he accused of having become "a centre of activities against the principle of secularism". In support of his application, he relied on various writings and declarations made by leaders and members of the RP which he said indicated that some of the party’s objectives, such as the institution of Sharia law and a theocratic regime, were incompatible with the requirements of a democratic society.

Before the Constitutional Court the applicant’s representatives argued that the prosecution had relied on mere extracts from the speeches concerned, thereby altering their meaning and without looking at the documents as a whole. They also maintained that the RP, which at the material time had been in power for a year as part of a coalition, had consistently observed the principle of secularism and respected all religious beliefs and consequently was not to be confused with political parties that sought the establishment of a totalitarian regime. They added that some of the RP’s leaders had only become aware of certain of the remarks impugned in the case after the Principal State Counsel’s application for the dissolution of the party was served on them and that they had nonetheless expelled those responsible from the party to avoid the RP being seen as a "centre" of illegal activities for the purposes of the law on the regulation of political parties.

On 16 January 1998 the Constitutional Court made an order dissolving the RP on the ground that it had become a "centre of activities against the principle of secularism". It also declared that the RP’s assets were to be transferred by operation of law to the Treasury. The Constitutional Court further held that the public declarations of the RP’s leaders, and in particular Necmettin Erbakan, Şevket Kazan and Ahmet Tekdal, had a direct bearing on the constitutionality of the RP’s activities. Consequently, it imposed a further sanction in the form of a ban on their sitting in Parliament or holding certain other forms of political office for a period of five years.

2.  Procedure and composition of the Court

Jean-Paul Costa (French), President,

Willi Fuhrmann (Austrian),

Loukis Loucaides (Cypriot),

Riza Türmen (Turkish),

Nicolas Bratza (British),

Hanne Sophie Greve (Norwegian),

Kristaq Traja (Albanian), judges,

and also Sally Dollé, Section Registrar.

3.  Summary of the judgment[fn2]

Complaints

Decision of the Court

The Court held that the sanctions imposed on the applicants could reasonably be considered to meet a pressing social need for the protection of democratic society, since, on the pretext of giving a different meaning to the principle of secularism, the leaders of the Refah Partisi had declared their intention to establish a plurality of legal systems based on differences in religious belief, to institute Islamic law (the Sharia), a system of law that was in marked contrast to the values embodied in the Convention. They had also left in doubt their position regarding recourse to force in order to come to power and, more particularly, to retain power.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights

F – 67075 Strasbourg Cedex

Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)

Emma Hellyer (telephone: (0)3 90 21 42 15)

Fax: (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.}}