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Resolution 2253 (2019)
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 combating 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 these 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 pillars of a democratic society. The right to manifest one’s
religion, however, is a qualified right whose exercise may be subject
to limitations arising from certain specific points of public interest
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 Sharia is their unique source of reference.
This includes the 1990 Cairo Declaration on Human Rights in Islam, which,
while 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 (for the latter, 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 are incompatible with the requirements
of a democratic society. The Assembly fully agrees that Sharia 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 thought, conscience and
religion), Article 10 (freedom of expression), Article 12 (right
to marry), Article 1 of the Protocol to the Convention (ETS No. 9) (protection
of property) and Protocols Nos. 6 (ETS No. 114) and 13 (ETS No. 187)
abolishing 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
issues and Islamic divorce proceedings 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 also exist in other Council of Europe
member States.
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, while 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 freedoms 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
or religious faith or the lack thereof;
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 systems that may be inconsistent with their
obligations as Parties to the European Convention on Human Rights;
or
12.3. considering adopting 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 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-raising campaigns to promote knowledge
of their rights among Muslim women, especially in the areas of marriage,
divorce, custody of children and inheritance, and work with Muslim
communities, women’s organisations and other non-governmental organisations
to promote gender equality and women’s empowerment;
14.6. conduct further research on the “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) that 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.