The current EU migration crisis has confronted Europe with the need to manage an unprecedented influx of refugees and migrants, many of whom report Islamic religious identity. Not only have these recent developments brought about numerous acts of hostility and discrimination motivated by religious hatred, but they also seem to jeopardize, in the long run, inter-religious dialogue in Europe. The conflicts which result from this unexpected, and often unwanted, meeting of people with different cultural and religious background have revived or strengthened doubts about Islam being compatible with European identity. The actual concern is whether following the rules of Islam in everyday life (e.g. wearing of religious clothing and symbols, respecting gender equality, exercising parental rights) can be reconciled with the Western standards of human rights. The aim of the presentation is to address this question from the legal perspective. Unsurprisingly, it is not a new question, and it has been examined on many occasions—though rarely in an open manner—by the European Court of Human Rights (ECtHR) and other standard making bodies in the European legal space. This standard seems to be evolving, slowly and not in one direction, gaining some growing scholarly attention recently. As regards the Islamic legal order, it has been clear, at least since the ECtHR judgment in the case of Refah Partisi (2003), that the concept of Sharia law is incompatible with the fundamental principles of democracy. Applying some of Sharia rules by individuals in the private sphere may be permissible as part of their freedom to observe the precepts of their religion, but it should not be endorsed or enforced by the state. However, the recent relinquishment in favour of the Grand Chamber in a case concerning the application of Sharia law by a state court to an inheritance dispute between Greek citizens belonging to the Muslim minority suggests that this traditional view may soon be challenged. Not less surprising is the recent ECtHR judgment in the case of Hamidovic (2017), in which a violation of freedom of religion or belief has been found on account of the punishment of a witness for refusing to remove his Islamic skullcap while giving evidence before a criminal court. Even though the ECtHR declared that the case of Hamidovic is completely different from the cases concerning the wearing of religious symbols and clothing in the workplace, it is hard not to see this judgment as a breakthrough in the Court’s case-law as regards the accomodation of Islamic religious practice. At the same time, the interpretation of the European Convention of Human Rights seems to be well-established, and therefore continuously applied, regarding the admissibility of ban on concealment of one’s face in public places motivated by religion. This practice, which is often considered to be at odds which such values as dignity, liberty and gender equality—or even openly hostile to women’s rights—may be prohibited by domestic authorities. Unfortunately for the ECtHR, the application in the case of S.A.S. (2014), which brought such findings, was made by a woman whose arguments and willingness to find a compromise did not make it easy to dismiss her claims for accomodation as clearly incompatible with the European values. In the end, however, it is not only about Islamic practice being accomodated by the European standard makers. The question remains open if the idea of European identity itself needs to be transformed, redefining secularity and reflecting social changes in Europe.
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Jun 3, 2019
Abdul Jabbar + 5
Open Access
