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Resolution 2253 (2019) Provisional version
Sharia, the Cairo Declaration and the European Convention on Human Rights
1. The Parliamentary
Assembly recalls, inter alia,
its Resolution 1846 (2011) and its Recommendation 1987
(2011) on combatting all forms of discrimination based on religion,
as well as its Resolution
2076 (2015) on freedom of religion and living together in a democratic
society and its Recommendation
1962 (2011) on the religious dimension of intercultural dialogue.
On those occasions, the Assembly examined the co-existence of different
religions in a democratic society. It recalls that pluralism, tolerance
and a spirit of openness are the cornerstones of cultural and religious
diversity.
2. The Assembly reiterates from the outset the obligation on
member States to protect the right to freedom of thought, conscience
and religion as enshrined in Article 9 of the European Convention
on Human Rights (ETS No. 5, “the Convention”), which represents
one of the foundations of a democratic society. The right to manifest
one’s religion, however, is a qualified right whose exercise may
be limited in response to certain specified public interests and,
under Article 17 of the Convention, may not aim at the destruction
of other Convention rights or freedoms.
3. The Assembly also recalls that it has on several occasions
underlined its support for the principle of the separation of State
and religion, as one of the pillars of a democratic society, for
instance in its Recommendation
1804 (2007) on State, religion, secularity and human rights. This
principle should continue to be respected.
4. The Assembly considers that the various Islamic declarations
on human rights adopted since the 1980s, while being more religious
than legal, fail to reconcile Islam with universal human rights,
especially insofar as they maintain the Sharia law as their unique
source of reference. This includes the 1990 Cairo Declaration on Human
Rights in Islam, which, whilst not legally binding, has symbolic
value and political significance in terms of human rights policy
under Islam. It is therefore of great concern that three Council
of Europe member States – Albania, Azerbaijan and Turkey (with the
limitation “so far as it is compatible with its laws and its commitments under
international conventions”) – have endorsed, explicitly or implicitly,
the 1990 Cairo Declaration, as have Jordan, Kyrgyzstan, Morocco
and Palestine, whose parliaments enjoy partner for democracy status
with the Assembly.
5. The Assembly is also greatly concerned about the fact that
Sharia law – including provisions which are in clear contradiction
with the Convention – is applied, either officially or unofficially,
in several Council of Europe member States, or parts thereof.
6. The Assembly recalls that the European Court of Human Rights
has already stated in Refah Partisi (The Welfare
Party) and others v. Turkey that “the institution of
Sharia law and a theocratic regime were incompatible with the requirements
of a democratic society”. The Assembly fully agrees that Sharia
law rules on, for example, divorce and inheritance proceedings are
clearly incompatible with the Convention, in particular its Article
14, which prohibits discrimination on grounds such as sex or religion,
and Article 5 of Protocol No. 7 to the Convention (ETS No. 117),
which establishes equality between marital partners. Sharia law
is also in contradiction with other provisions of the Convention
and its additional protocols, including Article 2 (right to life),
Article 3 (prohibition of torture or inhuman or degrading treatment),
Article 6 (right to a fair trial), Article 8 (right to respect for
private and family life), Article 9 (freedom of religion), Article
10 (freedom of expression), Article 12 (right to marry), Article
1 of Protocol No. 1 (ETS No. 9) (protection of property) and Protocols
Nos. 6 (ETS No. 114) and 13 (ETS No. 187) prohibiting the death
penalty.
7. In this context, the Assembly regrets that despite the recommendation
it made in its Resolution
1704 (2010) on freedom of religion and other human rights for non-Muslim
minorities in Turkey and for the Muslim minority in Thrace (eastern
Greece), asking the Greek authorities to abolish the application
of Sharia law in Thrace, this is still not the case. Muftis continue
to act in a judicial capacity without proper procedural safeguards.
The Assembly denounces in particular the fact that in divorce and
inheritance proceedings – two key areas over which muftis have jurisdiction
– women are at a distinct disadvantage.
8. The Assembly is also concerned about the “judicial” activities
of “Sharia councils” in the United Kingdom. Although they are not
considered part of the British legal system, Sharia councils attempt
to provide a form of alternative dispute resolution, whereby members
of the Muslim community, sometimes voluntarily, often under considerable
social pressure, accept their religious jurisdiction mainly in marital
and Islamic divorce issues, but also in matters relating to inheritance
and Islamic commercial contracts. The Assembly is concerned that
the rulings of the Sharia councils clearly discriminate against
women in divorce and inheritance cases. The Assembly is aware that
informal Islamic Courts may exist in other Council of Europe member
States too.
9. The Assembly calls on the member States of the Council of
Europe to protect human rights regardless of religious or cultural
practices or traditions on the principle that where human rights
are concerned, there is no room for religious or cultural exceptions.
10. The Assembly notes with approval the 2008 judgment of the
United Kingdom’s House of Lords addressing these principles.
11. The Assembly calls on Council of Europe member States and
those whose parliaments enjoy partner for democracy status with
the Assembly to:
11.1. bolster pluralism,
tolerance and a spirit of openness by proactive measures, taken
by governments, civil society and religious communities, whilst
respecting common values as reflected in the European Convention
on Human Rights;
11.2. design and implement educational and vocational programmes
aimed at rooting human rights and fundamental freedom as enshrined
in the Convention, and in particular the principles of gender equality
and of non-discrimination based on religious beliefs, in the cultural
and legal tradition of their countries;
11.3. promote, within the multilateral organisations of which
they are members or observers, the universal values of human rights
without any discrimination based inter
alia on sex, gender, sexual orientation, gender identity,
and religious faith or the lack of it;
11.4. engage in the process of revision of the Cairo Declaration
launched by the Organisation of Islamic Cooperation (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 binding on all Council of Europe member
States and a source of inspiration for those whose parliaments enjoy partner
for democracy status.
12. The Assembly calls on Albania, Azerbaijan and Turkey, to consider
distancing themselves from the 1990 Cairo Declaration by:
12.1. considering withdrawing from
the Cairo declaration;
12.2. making use of all 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 inconsistent with their
obligations as Parties to the European Convention on Human Rights;
or
12.3. considering performing some formal act which clearly establishes
the Convention as a superior source of obligatory binding norms.
13. The Assembly, while noting the legislative change in Greece
which made the practice of Islamic sharia law in civil and inheritance
matters optional for the Muslim minority, calls on the Greek authorities
to:
13.1. 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, to monitor whether the above-mentioned legislative change
will be sufficient to satisfy the requirements of the Convention;
13.2. allow the Muslim minority to choose freely its muftis
as purely religious leaders (that is, without judicial powers),
through election, thereby abolishing the application of Sharia law,
as already recommended in Resolution
1704 (2010).
14. The Assembly, while welcoming the recommendations put forward
in the conclusions of the Home Office Independent review into the
application of sharia law in England and Wales, as a major step
towards a solution, calls on the authorities of the United Kingdom
to:
14.1. ensure that Sharia councils
operate within the law, especially as it relates to the prohibition
of discrimination against women, and respect all procedural rights;
14.2. review the Marriage Act to make it a legal requirement
for Muslim couples to civilly register their marriage before or
at the same time as their Islamic ceremony, as is already stipulated
by law for Christian and Jewish marriages;
14.3. take appropriate enforcement measures to oblige the celebrant
of any marriage, including Islamic marriages, to ensure that the
marriage is also civilly registered before or at the same time as
celebrating the religious marriage;
14.4. remove the barriers to Muslim women’s access to justice
and step up measures to provide protection and assistance to those
who are in a situation of vulnerability;
14.5. put in place awareness campaigns to promote knowledge
of their rights amongst Muslim women, especially in the areas of
marriage, divorce, custody of children and inheritance, and work
with Muslim communities, women organisations and other non-governmental
organisations to promote gender equality and women’s empowerment;
14.6. conduct further research on “judicial” practice of Sharia
councils and on the extent to which such councils are used voluntarily,
particularly by women, many of whom would be subject to intense community
pressure in this respect.
15. The Assembly calls on the countries (member States and observer
States) who are members of the OIC, on Greece and on the United
Kingdom to report back to the Assembly by June 2020 on the actions
they have taken as a follow-up to this resolution.