See related documentsAddendum to the report
| Doc. 14787 Add.
| 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 Legal Affairs and Human Rights
Rapporteur : Mr Antonio GUTIÉRREZ,
Spain, SOC
Origin - Addendum approved by
the committee on 21 January 2019. 2019 - First part-session
1. Introduction
1. Since the adoption of the report
on 13 December 2018,
two new matters have arisen: firstly,
the judgment of the European Court of Human Rights in the case
Molla Sali v. Greece,
and
secondly, the receipt of a letter from Mr Samad Seyidov, Head of
the Delegation of Azerbaijan to the Parliamentary Assembly. Both give
rise to some amendments to the draft resolution to be proposed by
the Committee on Legal Affairs and Human Rights.
2. The
Grand Chamber judgment in Molla Sali v. Greece
2. The case of Molla Sali v. Greece is discussed
in paragraphs 32 to 44 of the explanatory memorandum. The European
Court of Human Rights (“the Court)” has now found Greece to be in
violation of the European Convention on Human Rights (ETS No. 5,
“the Convention”) (Article 14 in conjunction with Article 1 of Protocol No. 1
to the Convention (ETS No. 9)) for having imposed on people belonging
to the Muslim minority in Western Thrace the application of Islamic
law, which was found to be discriminatory. The Court recalled that
Greece was at the time the only country in Europe which applied
Sharia law to part of its citizens “against their will” and noted
with satisfaction that after recent legislative changes, Greek law
only allows the application of Sharia rules with the consent of
all parties concerned.
3. But the Court also ruled 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”. Whether or not
equal treatment of men and women is such an “important public interest”,
or to what extent Muslim believers may voluntarily subject themselves
to Sharia rules deviating from this principle, and how to ensure
the truly voluntary nature of any such choices are questions that
will remain to be examined in the process of implementation of this
judgment.
4. It is therefore suggested that the Assembly call on the Greek
authorities to rapidly and fully implement the above-mentioned judgment
of the Court, whilst monitoring whether the recent legislative changes
were sufficient to satisfy all requirements of the Convention.
3. The letter from
Mr Samad Seyidov dated 14 January 2019
5. The rapporteur has received
a letter dated 14 January 2019 from Mr Samad Seyidov, Head of the Delegation
of Azerbaijan to the Parliamentary Assembly. In this letter, Mr Seyidov
recalls that “Azerbaijan had been admitted to the Organisation of
Islamic Cooperation (OIC) as a member in 1991”, after the 1990 Cairo Declaration
on Human Rights in Islam had been adopted. The letter continues
by noting that “Azerbaijan had not been involved in the preparation,
coordination and adoption of this declaration”, and so cannot be considered
a signatory to it.
6. Although not mentioned in the letter, Albania is likely to
be in a similar situation.
7. It can also be noted, however, that the preamble of the
Statute
of the Independent Permanent Human Rights Commission (IPHRC), adopted by the OIC’s Council of Foreign Ministers in
2011, explicitly refers to the 1990 Cairo Declaration and “the provisions
of article 5 and article 15 of the
OIC
Charter which stipulate that: ‘The Independent Permanent Commission
on Human Rights shall promote the civil, political, social and economic
rights enshrined in the Organisation’s covenants
and declarations and in universally
agreed human rights instruments, in conformity with Islamic values’”.
The words in italics clearly encompass
the Cairo Declaration.
8. Since all OIC member States participated in the adoption of
the IPHRC Statute, Azerbaijan and Albania have thus agreed to using
the Cairo Declaration as one of the reference texts for its activities,
endorsing the promotion of the principles and rights enshrined within.
9. Mr Seyidov’s letter also mentions the revision process currently
underway within the IPHRC to update the Cairo Declaration, to be
renamed the “OIC Declaration on Human Rights”. All Council of Europe
member States which are also members of the OIC should be encouraged
to engage in this revision process so as to ensure that the future
OIC Declaration on Human Rights is fully compatible with the European
Convention on Human Rights, which is binding on all Council of Europe
member States. States whose parliament enjoys partner for democracy
status with the Assembly should also be encouraged to take part
in this process.
10. It is therefore suggested that the draft resolution be amended
accordingly and also the title of the report be changed in order
to shorten and simplify it.
4. Proposed amendments
Amendment A
Replace the title of the report with:
“Sharia, the Cairo Declaration and the European Convention
on Human Rights”
Amendment B (to the draft resolution)
In paragraph 4, last sentence, replace the words “are signatories
to” with the words:
“have endorsed,
explicitly or implicitly,”
and replace the word “are”, before the word “Jordan”, with
the word “have” (English only).
Amendment C (to the draft resolution)
In paragraph 11.2, replace the words “accept that the Convention
is an international instrument” with the following words:
“engage in the process of revision
of the Cairo Declaration launched by the OIC so as to ensure that
the future OIC Declaration on Human Rights is compatible with universal
human rights standards and the European Convention on Human Rights
which is”
Amendment D (to the draft resolution)
Delete paragraph 12.1 and add the following words at the end
of the first sentence of paragraph 12:
“consider distancing themselves from the 1990 Cairo Declaration
by:”
And replace the word “make” by the word “making” in the new
paragraph12.1 and replace the words “consider performing” by the
words “considering to perform” in the new paragraph 12.2.
Amendment E (to the draft resolution)
In paragraph 13.1, replace the words “monitor whether this”
by the following words:
“rapidly and fully implement the Grand Chamber
judgment of the European Court of Human Rights in the case of Molla
Sali v. Greece and in particular, monitor whether the above-mentioned”