Europe, Islam and Democracy ― Balancing Religious and Secular Values under the European Convention on Human Rights

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  • 1 LLB (Queens), LLM (Essex), Lecturer, Faculty of Law, University of Leicester.

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  • 1 For example, the principle motivation of the western nations that drafted the European Convention on Human Rights (1950) was a desire to provide a "bulwark against Communism" spreading from Central and Eastern Europe: David Harris, Michael O'Boyle and Colin Warbrick, Law of the European Convention on Human Rights (London,1995),1. 2 For an analysis of the growth of the radical and populist right in Western Europe see Hans- Georg Betz, "Contre la Mondialisation: Xenophobie, Politiques Identitaires et Populisme diEx- clusion en Europe", 21(2) Politique et Societes (2002), 9-28. 3 For example, one thinks of long-running conflicts in Kosovo, Bosnia, Northern Ireland, the Basque Region, Cyprus, etc. 4 On this generally see The European Union and the UN Convention Against Transnational Organised Crime (Luxembourg, OOPEC, 2002). 5 For example, see Vladimir Shlapentokh, "Russia's Acquiescence to Corruption makes the State Machine Inept" 36(2) Communist and Post-Communist Studies (2003), 151-61 and Eric Gordy, "Framing Democracy: Civil Society and Civic Movements in Eastern Europe", 82(1) SocialForces (2003), 421-3.

  • 6 On this generally see Roger Scruton, The West and the Rest: Globalization and the Terrorist Threat (London, 2002). 7 See Fernando Reinares (ed.), European Democracies against Terrorism: Government Policies and Intergovernmental Co-operation (Dartmouth, Aldershot, 2000). 8 For a review of the position of Muslims in a number of different Western European coun- tries see Lars Pedersen, Newer Islamic Movements in Western Europe (Ashgate, Aldershot,1999); Bernard Lewis and Dominique Schnapper (eds.), Muslims in Europe (London, 1994); and Tomas Gerholm and Yngve Georg Litham (eds.), 1he New Islamic Presence in Western Europe (London, 1988). 9 The argument that most Muslims are well integrated in Europe is made strongly by Brigitte Marechal in "De 1'Integration de fIslam et des Communautes Musulmanes en Europe: Quelques Eclairages", 39 Studi Emigrazione/Migration Studies (2002), 577-99. 10 Rollin Armour, Islam, Christianity and the West a Troubled History (New York, 2002). 11 For one view on this see Tariq Ramadan, To Be A European Muslim (The Islamic Foundation, Leicester, 1999), 199. On the issue of citizenship and Islam generally, see Nezar Alsayyad and Manuel Castells (eds.), Muslim Europe or Euro-Islam: Politics, Culture and Citizenship in the Age of Globalization (New York, 2002). 12 For example see John Richardson, (Mis)representing Islam: the Racism and Rhetoric of British Broadsheet Newspapers (Amsterdam, 2004). 13 Christopher Allen and Jorgen Nielsen, Summary Report on Islamophobia in the EU after 11 September 2001 ( Vienna, 2002). 14 For example see Emran Qureshi and Michael Sells (eds.), The New Crusades: Constructing the Muslim Enemy (New York, 2003).

  • 15 See Alan Travis, "Desire to Integrate on the Wane as Muslims Resent 'War on Islaiii, 7he Guardian,16 March 2004, 6. 16 Ibid. 17 See Tariq Modood, Britain's Ethnic Minorities: Diversity and Disadvantage (London, 1997), and Tariq Modood and Pnina Werbner (eds.), The Politics ofMulticulturalism in the New Europe: Racism, Identity and Community (London, 1997). 18 On this generally see Wasef Abdulrahman Shadid and Pieter van Koningsveld (eds.), Muslims in the Margin. Political Responses to the Presence of Islam in Western Europe (Kok Pharos, The Netherlands, 1996). For an analysis of Islam's search for representation and recognition in France and Germany see Riva Kastoryano, "Der Islam auf der Suche nach 'seinem Platz' in Frankreich und Deutschland: Identitäten, Anerkennung und Demokratie", 43(3) Politische Vierteljahresschrift (2002),184-206. 19 For example, one thinks of recent legislative proposals to ban the wearing of the headscarf (hijab) by Muslim females in French classrooms. For the full text of the law prohibiting the display of religious symbols in French public schools, passed by 494-36 votes in the Lower House of the French parliament on 10 February 2004 see See also the report of the French Commission on Secularity, 'Le Rapport de la Commission Stasi sur La Laicite', Le Monde,12 December 2003,17-24. 20 See Runnymede Trust, Islamophobia: ll Challenge To Usflll (London, 1997). 21 There have been, for example, calls for the creation of an "Islamic Common Market" and the application of Islamic law to "ultimately embrace the whole world". See Sayed Hassan Amin, Islamic Law and its Implications for the Modern World (Glasgow,1989), 396.

  • 22 ECtHR, Refah Partisi (the Welfare Party) and Others v. Turkey, (Grand Chamber), (2003) 37 EHRR 1. 23 On the origins and history of the ECHR see J.G. Merrills and A.H. Robertson, Human Rights in Europe (Manchester University Press, 2001),1-15. 24 In this article I refer to Islamic Law as `Sharia' (rather than, as used by some authors, Shari'a), since the former is the term that has been employed by the ECtHR in Refah Partisi (Grand Chamber). 25 John Esposito and John Voll, Islam and Democracy (Oxford, 1996), 202. 26 On this generally see Erik Zurcher, Turkey: AModern History (New York, 1998).

  • 27 Refah Partisi (Grand Chamber), paras.14-8. 28 Ibid., paras.12-3. 29 Ibid., paras. 40,41. 30 Ibid., para. 42. 31 EctHR, Refah Partisi (the Welfare Party) and Others v. Turkey, (Chamber), (2002) 35 EHRR 3. 32 The applicants invoked Articles 9,10,11,14,17,18 and Articles 1 and 3 of Protocol 1. 33 Article 11 provides that: (1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. (2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

  • 34 On the Court's interpretation of the term, 'necessary in a democratic society' see EctHR, Silver and Others v. UK, judgment of 25 March 1983, Series A, No.61, para. 97. 35 Refab Partisi (Chamber), paras. 81, 83. 36 Ibid., paras.74-6. 37 Ibid., paras.71-3. 38 Ibid., paras.65, 77, 81. 39 On referrals to the Grand Chamber see Article 43 of the ECHR. 40 Refah Partisi (Chamber), para. 72. 41 Refah Partisi (Grand Chamber), para. 75. 42 Ibid., para. 119.

  • 43 Ibid., para. 123. 44 Ibid. 45 Ibid., para. 124. 46 Ibid., para. 125. 47 Ibid. 48 Ibid. 49 Ibid., para. 127.

  • 50 Ibid. 51 Ibid., at para. 128. 52 For example, one Refab MP, Mr Ibrahim Halil Celik, had spoken in parliament of the need to establish Sharia law and of approving acts of violence, such as those that were taking place in Algeria at the time: "I too would like blood to flow ... And it will be a beautiful thing ... If anyone attacks me I will strike back. I will fight to the end to introduce sharia". Ibid., para. 37. Another Refah MP, Mr Hasan Huseyin Ceylan, issued threats to non-believers when he said: "I am speak- ing to you .. of the imperialist West, the colonising West ... it is to you I speak when I say: Do not waste your energy on us, you will die at the hands of the people of Kirikkale". Ibid., para. 34. 53 Article 20(2). 54 See UN Commission on Human Rights, E/CN.4/2000/40, preamble. 55 GA Resolution 55.82, adopted 26 February 2001, A/RES/55/82, at para. 3. 56 For example, see Glimmerveen and Hagenbeek v. the Netherlands, Appl. 8384/78 and 8406/78,18 DR 187 (1979). 57 Article 10 of the ECHR provides: (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formali- ties, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 58 Handyside v. UK (1976) 1 EHRR 737, para. 49.

  • 59 Castells v. Spain (1992) 14 EHRR 445. 60 Lingens v. Austria (1986) 8 EHRR 407 para. 42. 61 For example, concerns were raised by the dissenting judges in the Chamber ( Judges Fuhrmann, Loucaides and Sir Nicholas Bratza) on this ground: Refah Partisi (Chamber). 62 Refah Partisi (Grand Chamber), para. 94. 63 Ibid., para. 94. 64 Ibid., para. 99. 65 Judge Kovler, in a separate opinion in Refah, indicated that he was uneasy with the European Court using such terms that were "borrowed from politico-ideological discourse": Refah Partisi (Grand Chamber), para. O-II2. 66 Hoffmann v. Austria (1993) 17 EHRR 293, para. 33. 67 Hasan and Chaush v. Bulgaria (2000) 30 EHRR 50, para. 78. 68 Refah Partisi (Grand Chamber), para. 128. 69 See Report ofthe Committee on Culture, Science and Education, Religion and Change in Central and Eastern Europe, Doc. 9399, 27 March 2002, para. 37. 70 Jorgen Nielsen, Muslims in Western Europe (Edinburgh 1995),168. 71 (1998) 26 EHRR 121.

  • 72 Ben Olbourne, "Refah Partisi (The Welfare Party) v Turkey" 4 European Human Rights Law Review (2003), 437-44, 444. 73 In Refah, the European Court expressly refrained from examining the complaints under Article 17: Refah Partisi (Grand Chamber), para. 137.

  • 74 See J.G. Merrills and A.H. Robertson, Human Rights in Europe (Manchester University Press, 2001),1-15. 75 For example, see Kokkinakis v. Greece (1994) 17 EHRR 397. 76 For example, see Za Germany (1995) 21 EHRR 205. 77 For example, see Mathieu-Mohin and Clerfayt v. Belgium (1987) 10 EHRR 1. 78 See Handyside v. UK (1976) 1 EHRR 737, para. 48. 79 United Communist Party of Turkey v. Turkey (1998) 26 EHRR 121, para. 45. 80 See Refah Partisi (Grand Chamber), para. 89. 81 See Harry Goulbourne, 'Varieties of Pluralism: The Notion of a Pluralist, Post-imperial Britain', 17(2) New Community (1991), 211-27. 82 For example, one such author puts forward what he calls the 'non-reductive' view of religious pluralism: Muhammad Legenhausen, Islam and Religious Pluralism (London,1999),180. 83 For example see Joseph Raz, The Morality ofFreedom (Oxford, 1985). 84 71:Jorgeirson v. Iceland (1992) 14 EHRR 843. 85 Sunday Times v. UK (No.2) (1979) 2 EHRR 245. 86 Volt u Germany (1995) 21 EHRR 205. 87 Lingens v. Austria (1986) 8 EHRR 103. 88 Refah Partisi (Grand Chamber), para. 124.

  • 89 Ibid., para. 125. The European Court never actually referred to any regimes by name but it can perhaps be assumed that it had in mind the Islamic Republics of Iran, Pakistan (under General Zia ul-Haq) and Sudan (under Omar al-Bashir) as examples of states where Islamic parties, once in power, have sought to make significant changes to the political system. 90 United Cammunist Party ofTurkey v. Turkey, para. 45. 91 Refah Partisi (Grand Chamber), para. 103. 92 Ibid. 93 These criteria are: (i) the existence of "plausible evidence that the risk to democracy ... was suf ficiently imminent"; (ii) "whether the acts and speeches of the leaders and members of the politi- cal party concerned were immutable to the party as a whole"; and (iii) "whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a 'democratic society"': Refah Partisi (Grand Cbamber), para. 104. 94 Ibid., para. 98. 95 For an analysis of the historical relationship between Turkey and the West, see Gokhan Bacik, "The Transformation of Muslim Self and the Development of a New Discourse on Europe", 13(1) International Review of Sociology (2003), 21-38. 96 For example, see Frances Raday, "Culture, Religion, And Gender" 1(4) International Journal of Constitutional Law (2003), 663-715. 97 Judge Kovler, in a separate concurring opinion in Refah, referred to his "regret that the Court ... missed the opportunity to analyse in more detail the concept of a plurality of legal systems, which is linked to that of legal pluralism": Refah Partisi (Grand Chamber), para. O-II3.

  • 98 For example, see Rieia Blume and Others v. Spain (1999) 30 EHRR 632, where the Court found a violation of Article 5(1) but ruled that it was not necessary to examine Article 9, in a case where former members of new religious movements were allegedly subjected to "deprogramming". This reluctance to utilize Article 9 was also a characteristic of the case law of the now defunct European Commission on Human Rights. For example, see Ciraklar v. Turkey, No. 19601/92, decision of 19/1/95, DR 80, 46, where the Commission ignored Article 9 and confined itself to an examination of issues under Article 11 in a case involving the right to demonstrate by way of a procession. 99 See Samuel P. Huntington, "The Clash of Civilizations" 72 Foreign Affair (1973), 22-49. 100 Akbar S. Ahmad, "Media Mongols at the Gate of Baghdad", 10 New Perspective Quarterly (1993) 10, cited by Abdel Sidahmed and Anoushiravan Ehteshami, (eds.), Islamic Fundamentalism, (Boulder, Colorado, 1996), 15. 101 For example, see A. S. Ahmad, Ibid. 102 See Huntington, "The Clash of Civilizations".... 103 See Ayatollah I. Khomeini, Islam and Revolution, translated and annotated by Hamid Algar (Berkeley, 1981). 104 On the relationship between Islam and democracy generally, see Abdulaziz Sachedina, The Islamic Roots ofDemocratic Pluralism (Oxford, 2001); David Marquand and Ronald Nettler (eds.), Religion and Demooacy (Oxford, 2000); and John Esposito and John Voll, Islam and Democracy, (Oxford, 1996).

  • 105 "Surely we have accorded dignity to the sons of Adam", Quran, verse 17:7. 106 "Let there be no compulsion in religion", Quran, verse 2:256. 107 The Quran frequently says that for "the children of Adam" there should be no distinction on grounds of race, colour, gender or religion. 108 By way of contrast, for an analysis of how principles of the Sharia, such as apostasy and the status of non-Muslims, conflict with international human rights standards, see Abdullah Ahmed An- Na'im, "Human Rights in the Muslim World", 3 Harvard Human Rights Law Journal (1990), 13. 109 Andrew Ripon, Muslims. Their Religious Beliefs and Practices (London, 2001),187. 110 Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law (The Hague, 2000), 40. 111 Ibid. 112 See Aziz Al-Azmeh, Islams and Modernities (London, 1993). 113 See Abdel Sidahmed and Anoushiravan Ehteshami, "Introduction", in Sidahmed and Ehteshami Islamic Fundamentalism ...,14. 114 For example, see Enzo Pace, "Le Divisioni dell'Islam" ('The Divisions of Islam'), 39 Studi Emigrazione/Migration Studies (2002), 617-25. 115 See Taqi al-Din al-Nabhani, Nizam al-Hukm fi-1-Islam, (Beruit,1953),10. 116 See Sardar Ali, Gender and Human Rights in Islam, 40. 117 An-Na'im, Human Rights in the Muslim World. It is important however to note that An-Na'im concedes that his views are "appreciated by only a tiny minority of contemporary Muslims [and that to] the overwhelming majority of Muslims today, Shari'a... ought to prevail over any human law". Ibid.

  • 118 Mahmud Faksh, "The Islamic State System: A Paradigm for Diversity", Islamic Quarterly 28 (1989), 20. 119 Sidahmed and Ehteshami, Islamic Fundamentalism ..., 2. 120 Loek Halman and Ole Riis (eds.), Religion in Secularixing Society (Tilburg, 1999). 121 Sheena Ashford and Noel Timms, "The Unchurching of Europe?" in Shena Ashford and Noel Timms (eds.), What Europe Thinks: �I Study of Western European Values (Aldershot,1992), 33-47. 122 David Harris, Michael O'Boyle and Colin Warbrick, Law ofthe European Convention on Human Rights (London, 1995), 356. 123 Report of the Committee on Culture, Science and Education, Religion and Changes in Central and Eastern Europe, Doc. 9399, 27 March 2002, para. 37. 124 See Kevin Boyle and Juliet Sheen (eds.), Freedom of Religion and Belief, fl World Report (New York, 1997), 260. 125 Article 9 of the ECHR provides that: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are pre- scribed by law and are necessary in a democratic society in the interests of public safety, for the pro- tection of public order, health or morals, or for the protection of the rights and freedoms of others.

  • 126 Kalac v. Turkey (1999) 27 EHRR 552. 127 See also Baspinar v. Turkey (2002) 36 EHRR CD1, where the applicant's discharge from the army on the basis of his adoption of "extreme religions ideology" was justified under Article 9 of the ECHR. 128 Yanasik v. Turkey (1993) 74 DR 14. 129 flhmad v. UK (1982) 4 EHRR 126. 130 Steadman v. UK (1997) 23 EHRR CD,168,169. 131 See Karaduman v. Turkey, No. 16278/90 and Bulut v. Turkey, No. 18783/91, (1993) 74 DR 93, where the European Commission held that since the Muslim female applicants had chosen to attend secular universities, their complaints that they had been refused their university diplo- mas because they had been unwilling to provide photographs of themselves with their heads uncovered was rejected. See also Dahlab v. Switzerland, No 42393/98, (2002) 5 ECHR, where a Muslim teacher failed to challenge a ban on the wearing of her Islamic headscarf at school. 132 X u UK, No. 7992/76, decision of 12/7/78, (1978) 14 DR 234. 133 X v. UK, No. 8010/77, decision of 1/3/79. 134 See Christos Rozakis, 'The Case law of the European Commission as regards Freedom of Thought, Conscience and Religion' in Michele de Salvia and Mark Eugen Villiger (eds.), The Birth ofEuropean Human Rights Law, (Baden-Baden,1998), 40.

  • 135 House of Commons Hansard, 11 November 1947, vol. 444, col. 206. 136 For example, see the Human Rights Watch website for the Middle East and North Africa, 137 See John Esposito and John Voll, Islam and Demonacy (Oxford, 1996),14. 138 Abdullahi An-Na'im, Jeremy D. Gort, Henry Jansen, Hendrik M. Vroom (eds.), Human Rights and Religious Values, An Uneasy Relationship? (Michigan, 1995). 139 Tomas Dixon, "Ignoring God in the Constitution", Christianity Today, 25 June 2003. 140 Charlotte Smith, "The Place of Representatives of Religion in a Reformed Second Chamber," Public Law (2003), 674-96. 141 For example, the Reverend Ian Paisley is currently the leader of the largest political party in Northern Ireland (the Democratic Unionist Party) as well as the head of a church (the Free Presbyterian Church in Ireland). Similarly, the prominent Orthodox cleric, Archbishop Makarios, was formerly the president of Cyprus.

  • 142 For example, on the religious beliefs of the British Prime Minister, Tony Blair, see Jonathan Clark, "Blair Takes Risk Mixing Religion with Politics", The Times, 11 July 1994 and K. Ahmed, And on the Seventh Day Tony Blair Created", The Observer, 3 August 2003. 143 See David McClean, "Establishment in a European Context", in Norman Doe, Mark Hill and Robert Ombres (eds.), English Canon Law (University of Wales Press, Cardiff, 1998), 128. 144 Darby v. Sweden, Series A, no.187, (1991), 45. 145 John T.S. Madeley, "European Liberal Democracy and State Religious Neutrality", in 26 Western European Palitics (2003),18. 146 Grace Davie, Religion in Modern Europe: fl Memory Mutates (Oxford, 2000),15. 147 See Enes Karic, "Is `Euro-Islam' a Myth, Challenge or a Real Opportunity for Muslims and Europe?", 22,journal ofMuslim MinorityAffairs (2002), 435-42. 148 See Tariq Ramadan, To BeAEuropean Muslim (Leicester, 1999), 198.

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