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

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The European Court of Human Rights (ECtHR) determined on July 31, 2001, that "the institution of Sharia law and a theocratic regime, were incompatible with the requirements of a democratic society." This statemant was made in connection with the banning of the Welfare Party (''Refah Partisi'', RP), an [[Islam|Islamist]] political party in [[Turkey]].
 
The European Court of Human Rights (ECtHR) determined on July 31, 2001, that "the institution of Sharia law and a theocratic regime, were incompatible with the requirements of a democratic society." This statemant was made in connection with the banning of the Welfare Party (''Refah Partisi'', RP), an [[Islam|Islamist]] political party in [[Turkey]].
  
The ban was upheld by the ECtHR on February 13, 2003. Noting that the Welfare Party had pledged to set up a regime based on the [[Shariah|Shari'ah]], 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."
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The ban was upheld by the ECtHR on February 13, 2003. Noting that the Welfare Party had pledged to set up a regime based on the [[Shariah|Shari'ah]], 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."
  
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{{Quote||JUDGMENT IN THE CASE OF REFAH PARTISI (THE WELFARE PARTY) ERBAKAN, KAZAN AND TEKDAL v. TURKEY
  
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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.
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1.  Principal facts
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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.
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 +
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
 +
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The applications were lodged on 22 May 1998 and declared partly admissible on 3 October 2000. A hearing on the merits was held on 16 January 2001. Judgment was given by a Chamber of seven judges, composed as follows:
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Jean-Paul Costa (French), President,
 +
Willi Fuhrmann (Austrian),
 +
Loukis Loucaides (Cypriot),
 +
Riza Türmen (Turkish),
 +
Nicolas Bratza (British),
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Hanne Sophie Greve (Norwegian),
 +
Kristaq Traja (Albanian), judges,
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 +
and also Sally Dollé, Section Registrar.
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3.  Summary of the judgment[fn2]
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Complaints
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The applicants complained of a violation of Articles 9 (freedom of thought), 10 (freedom of expression), 11 (freedom of association), 14 (prohibition of discrimination), 17 (prohibition of abuse of rights) and 18 (limitations on use of restrictions on rights) of the European Convention on Human Rights, and of Article 1 (protection of property) and 3 (right to free elections) of Protocol No. 1.
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Decision of the Court
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The Court considered that, when campaigning for changes in legislation or to the legal or constitutional structures of the State, political parties continued to enjoy the protection of the provisions of the Convention and of Article 11 in particular provided they complied with two conditions: (1) the means used to those ends had to be lawful and democratic from all standpoints and (2) the proposed changes had to be compatible with fundamental democratic principles. It necessarily followed that political parties whose leaders incited others to use violence and/or supported political aims that were inconsistent with one or more rules of democracy or sought the destruction of democracy and the suppression of the rights and freedoms it recognised could not rely on the Convention to protect them from sanctions imposed as a result.
 +
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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.
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The Court considered that even if States’ margin of appreciation was narrow in the area of the dissolution of political parties, since pluralism of ideas and parties was an inherent element of democracy, the State concerned could reasonably prevent the implementation of such a political programme, which was incompatible with Convention norms, before it was given effect through specific acts that might jeopardise civil peace and the country’s democratic regime.
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Judges Fuhrmann, Loucaides and Bratza expressed a dissenting opinion, which is annexed to the judgment.
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***
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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
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Registry of the European Court of Human Rights
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F – 67075 Strasbourg Cedex
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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.}}
  
 
{{page_title|European Court of Human Rights on Shari'ah Law}}
 
{{page_title|European Court of Human Rights on Shari'ah Law}}

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The European Court of Human Rights (ECtHR) determined on July 31, 2001, that "the institution of Sharia law and a theocratic regime, were incompatible with the requirements of a democratic society." This statemant was made in connection with the banning of the Welfare Party (Refah Partisi, RP), an Islamist political party in Turkey.

The ban was upheld by the ECtHR on February 13, 2003. Noting that the Welfare Party had pledged to set up a regime based on the Shari'ah, 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."

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

The applications were lodged on 22 May 1998 and declared partly admissible on 3 October 2000. A hearing on the merits was held on 16 January 2001. Judgment was given by a Chamber of seven judges, composed as follows:

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

The applicants complained of a violation of Articles 9 (freedom of thought), 10 (freedom of expression), 11 (freedom of association), 14 (prohibition of discrimination), 17 (prohibition of abuse of rights) and 18 (limitations on use of restrictions on rights) of the European Convention on Human Rights, and of Article 1 (protection of property) and 3 (right to free elections) of Protocol No. 1.

Decision of the Court

The Court considered that, when campaigning for changes in legislation or to the legal or constitutional structures of the State, political parties continued to enjoy the protection of the provisions of the Convention and of Article 11 in particular provided they complied with two conditions: (1) the means used to those ends had to be lawful and democratic from all standpoints and (2) the proposed changes had to be compatible with fundamental democratic principles. It necessarily followed that political parties whose leaders incited others to use violence and/or supported political aims that were inconsistent with one or more rules of democracy or sought the destruction of democracy and the suppression of the rights and freedoms it recognised could not rely on the Convention to protect them from sanctions imposed as a result.

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 considered that even if States’ margin of appreciation was narrow in the area of the dissolution of political parties, since pluralism of ideas and parties was an inherent element of democracy, the State concerned could reasonably prevent the implementation of such a political programme, which was incompatible with Convention norms, before it was given effect through specific acts that might jeopardise civil peace and the country’s democratic regime.


Judges Fuhrmann, Loucaides and Bratza expressed a dissenting opinion, which is annexed to the judgment.

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.