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Committee Opinion | Doc. 14803 | 21 January 2019
Compatibility of Sharia law with the European Convention on Human Rights: can States Parties to the Convention be signatories to the “Cairo Declaration”?
Committee on Political Affairs and Democracy
A. Conclusions of the committee
(open)1. The Committee on Political
Affairs and Democracy thanks Mr Antonio Gutiérrez, rapporteur of
the Committee on Legal Affairs and Human Rights, for his report
on a complex, topical issue which is essential for organising life
in society in Europe. The committee by and large supports the proposed
draft resolution.
2. The committee is not unaware that several provisions of the
1990 Cairo Declaration are extremely problematic as concerns human
rights. As pointed out by the rapporteur of the Committee on Legal
Affairs and Human Rights, however, the Cairo Declaration is a non-binding
political document whereas the European Convention on Human Rights
(ETS No. 5, “the Convention”) is an international instrument which
is binding on all Council of Europe member States.
3. What would be more worrying would be if Council of Europe
member States, or States whose parliaments have partner for democracy
status, formally recognised Sharia as a source of law in their Constitutions.
This is not the case, however. Some allow recourse to Sharia through
“Sharia courts” but only for matters relating to personal status.
Even that is too much if, as is often the case, it leads to discrimination against
women.
4. The committee fully agrees, therefore, with the report’s conclusion
that the Council of Europe member States which have endorsed implicitly
or explicitly the Cairo Declaration, and the countries whose parliaments have
partner for democracy status, should make use of available means
to make declarations so as to ensure that the 1990 Cairo Declaration
has no effect on their domestic legal orders that may be incompatible
with the European Convention on Human Rights. They should also make
every endeavour to revise the said Declaration along the lines of
the Convention.
5. The committee proposes five amendments to the draft resolution
in order to strengthen the report’s message and to make the title
easier to understand and more consistent with the Assembly’s previous documents.
B. Proposed amendments to the draft resolution
(open)Amendment A (to the draft resolution)
Change the title of the report as follows: “Sharia, the Cairo Declaration and the European Convention on Human Rights”
Explanatory note: This title is shorter and more neutral.
Amendment B (to the draft resolution)
In paragraph 9, insert the following at the end: “on the principle that where human rights are concerned, there is no room for religious or cultural exceptions”
Explanatory note: This principle, which appears in the summary of the report, has a place in the resolution as well, having already been stated by the Parliamentary Assembly on several occasions. It also underpins the recent European Court of Human Rights judgment on the application of Sharia in Western Thrace.
Amendment C (to the draft resolution)
At the end of paragraph 11.2, insert the following words: “and a source of inspiration for those whose parliaments enjoy partner for democracy status”
Explanatory note: Although these States are not bound by the European Convention on Human Rights, when applying for partner for democracy status their parliaments made an explicit reference to their aspiration to embrace the values of the Council of Europe.
Amendment D (to the draft resolution)
In paragraph 12, delete the following words: “as well as Jordan, Kyrgyzstan, Morocco and the Palestinian National Council, all signatories to the 1990 Cairo Declaration,”
Explanatory note: The Assembly has already addressed the partners for democracy in paragraph 11. Here the focus should be on member States because partners for democracy are not bound by the European Convention on Human Rights.
Amendment E (to the draft resolution)
In paragraph 12.2, delete the words “as applicable”
Explanatory note: If paragraph 12 is directed solely at the member States, this phrase no longer serves any purpose.
C. Explanatory memorandum by Ms Maryvonne Blondin, rapporteur for opinion
(open)1. Introduction
1. The report written by our colleague,
Mr Antonio Gutiérrez, rapporteur of the Committee on Legal Affairs and
Human Rights, is an integral part of the Assembly’s long-standing
work to protect our standards and values.
2. On 26 September 2016, the Committee on Political Affairs and
Democracy appointed Ms Anne Brasseur (Luxembourg, ALDE) rapporteur
for opinion. On 22 May 2018, the committee held an exchange of views
in Athens on the application of the Sharia in Western Thrace in
Greece, with the participation of Ms Maria Giannakaki, Secretary
General for Human Rights and Transparency, Ministry of Justice,
and Mr Yannis Ktistakis, Assistant Professor, Faculty of Law, Democritus
University of Thrace.
3. Following Ms Brasseur’s departure, the committee called for
candidates during the June 2018 part-session and appointed me as
rapporteur for opinion during the October 2018 part-session.
2. The situation in Western Thrace
4. During the exchange of views
in Athens on 22 May 2018, Ms Giannakaki spoke about Greek legislation which
enables Greek citizens of the Muslim faith living in Western Thrace
to opt for the use of Sharia. Under this provision, the family affairs
(including inheritance issues) of many Muslims in Western Thrace
are settled by the mufti. The Jewish community of Greece was also
able to opt to use Jewish community law until 1936, when they decided
that they no longer wished to be considered as a minority.
5. Ms Giannakaki pointed out that, in Molla
Sali v. Greece, the European Court of Human Rights was
called upon to consider whether the application of Sharia to the
applicant’s inheritance dispute, rather than the ordinary law applicable
to all Greek citizens, even though the will of her husband, a Greek
citizen who belonged to the Western Thrace Muslim minority, had
been drawn up in accordance with the provisions of the Greek Civil Code
(as a result of which she was deprived of three quarters of her
inheritance), amounted to a difference in treatment on grounds of
religion in violation of the European Convention on Human Rights.
Ms Giannakaki then informed the Committee that in January 2018,
following the European Court of Human Rights hearing in this case,
a new law abolishing the special regulations imposing recourse to
Sharia for the settlement of family-law cases within the Muslim
minority had come into force. Recourse to a mufti in matters of
marriage, divorce or inheritance was now only possible exceptionally,
in the case of a joint request by all parties concerned.
6. Mr Ktistakis, for his part, pointed out five incompatibilities
between the Cairo Declaration and the European Convention on Human
Rights: the Declaration stated that all people were equal in terms
of dignity, but not in law; there was no equality between women
and men; there was no freedom of belief or freedom to manifest one’s
religion; freedom of movement and the right to asylum were restricted
by Sharia; and Sharia was the sole source of reference for interpreting
or clarifying the Declaration. It was very difficult to interpret Sharia
in this context because there were four Sunni and several Shia schools
of thought in this regard. In conclusion, he considered that the
Cairo Declaration was incompatible with the Convention.
7. Commenting on the recent change in Greek legislation, Mr Ktistakis
was of the opinion that rendering the application of Sharia optional
for Western Thrace Muslims was not sufficient to ensure compatibility
with the Convention. He cited, in particular, the European Court
of Human Rights judgment of 22 March 2012 in Konstantin
Markin v. Russia in which it was held that “in view of
the fundamental importance of the prohibition of discrimination
on grounds of sex, no waiver of the right not to be subjected to
discrimination on such grounds can be accepted as it would be counter
to an important public interest”.
8. In its judgment in Molla Sali v.
Greece of 19 December 2018, 
the European Court of Human Rights confirmed
that the difference of treatment suffered by the applicant, as a
beneficiary of a will drawn up in accordance with the Civil Code
by a Greek testator of Muslim faith, as compared to a beneficiary
of a will drawn up in accordance with the Civil Code by a non-Muslim
Greek testator, had no objective and reasonable justification. It
accordingly concluded that there had been a violation of Article
14 of the Convention (prohibition of discrimination), read in conjunction
with Article 1 of Protocol No. 1 to the Convention (ETS No. 9) (right
to property). It should be emphasised that, in the view of the Court,
refusing members of a religious minority the right to voluntarily
opt for and benefit from ordinary law amounts not only to discriminatory
treatment but also to a breach of a right of cardinal importance
in the field of the protection of minorities, that is to say the
right to free self-identification.
the European Court of Human Rights confirmed
that the difference of treatment suffered by the applicant, as a
beneficiary of a will drawn up in accordance with the Civil Code
by a Greek testator of Muslim faith, as compared to a beneficiary
of a will drawn up in accordance with the Civil Code by a non-Muslim
Greek testator, had no objective and reasonable justification. It
accordingly concluded that there had been a violation of Article
14 of the Convention (prohibition of discrimination), read in conjunction
with Article 1 of Protocol No. 1 to the Convention (ETS No. 9) (right
to property). It should be emphasised that, in the view of the Court,
refusing members of a religious minority the right to voluntarily
opt for and benefit from ordinary law amounts not only to discriminatory
treatment but also to a breach of a right of cardinal importance
in the field of the protection of minorities, that is to say the
right to free self-identification.9. In noting that Greece was the only country in Europe which,
up until the time of the events, had applied Sharia to a section
of its citizens “against their wishes” and in noting “with satisfaction”
the recent legislative change, the Court seems to take the view
that since the application of Sharia is now only possible exceptionally,
at the request of all parties concerned, Greek legislation is compatible
with the Convention. Whether this is in fact the case, however,
remains to be ascertained when the judgment is executed or in future litigation
before the Court.
10. Lastly, in stating that “a person’s religious beliefs cannot
validly be deemed to entail waiving certain rights if that would
run counter to an important public interest”, the Court is upholding
the principle repeatedly stated by the Assembly that where human
rights are concerned, there is no room for religious or cultural exceptions.
3. The situation in Mayotte
11. In its report, the Committee
on Legal Affairs and Human Rights refers to the situation in the
French territory of Mayotte, before it became a département in 2011, where “personal
status”, a customary law modelled on Islamic law and African and
Madagascan customs, was in force.
12. The French Senate Information Report No. 675 of 18 July 2012
states that “several provisions of the personal status were also
incompatible with the European Convention for the Protection of
Human Rights and Fundamental Freedoms”. Despite the reservations
made by France upon signing the Convention, certain rules applicable
to Mayotte undermined some of its provisions: Article 6 (right to
a fair trial), Article 8 (right to respect for private and family
life) and Article 14 (prohibition of discrimination, in particular
on the grounds of sex or birth).
13. The transformation of Mayotte into a département marked
the end of qadi justice, with the introduction of a judicial system
based on ordinary law and a reorganisation of the courts. The qadis
lost their judicial powers and became mediators in family and social
matters.
4. The partners for democracy
14. As stated by the rapporteur
of the Committee on Legal Affairs and Human Rights, Jordan, Kyrgyzstan, Morocco
and Palestine, whose parliaments have partner for democracy status
with our Assembly, have endorsed the 1990 Cairo Declaration through
their membership of the Organisation of Islamic Co-operation (OIC).
Unlike member States, countries whose parliaments have partner for
democracy status are not bound by the European Convention on Human
Rights. However, those parliaments have stated that they share the same
values as the Council of Europe, namely pluralist and parity-based
democracy, the rule of law and respect for human rights and fundamental
freedoms. It should be reiterated that none of these States recognises
Sharia as a source of law in its Constitution (as does the Egyptian
Constitution, for example).
15. In its reports on requests for partner for democracy status,
and in its reviews of this status, the Assembly has made no direct
reference to Sharia. It has, however, made some comments in which
Sharia is mentioned indirectly: firstly, as regards abolition of
the death penalty and the introduction of a moratorium on executions; and
secondly, on gender equality, including as regards interreligious
marriages and inheritance law, fighting all forms of gender-based
violence, and promoting equal opportunities for women and men.
16. The Assembly has also concerned itself with the right to freedom
of thought, conscience and religion, including the freedom to change
one’s religion or belief, and the freedom, either alone or in community
with others and in public or in private, to manifest one’s religion
or belief in worship, teaching, practice and observance, in accordance
with Article 18 of the Universal Declaration of Human Rights.
17. It has criticised the use of torture, inhuman or degrading
treatment, poor conditions of detention and violations of freedom
of expression, assembly and association. In the case of Morocco,
it has encouraged public debate about abolishing polygamy. In the
case of Jordan, it has expressed regret that Article 6.1 of the Constitution,
which is discriminatory towards women, has not been amended.
5. Protecting Council of Europe standards and values
18. This is not the first time
that the Assembly has addressed the issue of the relationship between
religions and human rights. In its Resolution 1510 (2006) on freedom of expression and respect for religious beliefs,
the Assembly stated that “freedom of expression as protected under
Article 10 of the European Convention on Human Rights should not
be further restricted to meet increasing sensitivities of certain
religious groups”.
19. I would also like to mention Mr Tiny Kox’s report on “Combating
international terrorism while protecting Council of Europe standards
and values” (Doc. 13958 of 26 January 2016), in particular paragraphs 48 to
53 of the explanatory memorandum where it is stated that:
“48. Respect of everyone’s right to freedom of thought, conscience and religion, as enshrined in Article 9 of the Convention, is often confused with an “obligation” to accept anything which is put forward as a component of someone’s religion”.
49. More than two hundred years ago, a movement started in Europe towards the separation of church and State. As a consequence, secularism, that is the principle of the separation of State and religion, is today accepted as one of the pillars of a democratic society. The Assembly has stated that we must continue to protect this principle.
50. A similar process has not yet taken place in many Muslim countries, where Islam is seen both as a person’s religion and as a way of organising life in society. While any person’s right to his/her religious beliefs must be protected in a democratic society as far as these beliefs do not violate the rights of others, any rules which do not respect human rights must not be tolerated.
51. It is clear that parts of what is considered by some Muslims as a component of Islam, including most of the Sharia law, fall into this category and cannot therefore be accepted as civil law in societies that consider themselves democratic. It would be wrong, in the name of political correctness, to pretend that this is not so. The European Court of Human Rights determined on 31 July 2001 that “the institution of Sharia law and a theocratic regime were incompatible with the requirements of a democratic society”.
52. That is certainly not a process that should be imposed from the outside. Europe should, however, stand ready to support, in every possible way, Muslim democratic leaders and intellectuals, whom, together with relevant representatives of civil society, would embark on this long but inevitable process.
53. To begin with, Europe should ban in its territory all practices, religious or not, which do not respect human rights: where human rights are concerned there is no room for “cultural exceptions”. Education and the media should play important roles too.”
6. Conclusion
20. I fully share the opinion of
the rapporteur of the Committee on Legal Affairs and Human Rights
on the importance of clearly stating the values advocated by the
Council of Europe. We must make it clear that we will not accept
such values being subordinate to cultural or religious subjective
considerations.