Amsterdam, February 2017 Amsterdam Graduate Law School
Militant Democracy
The European Court of Human Rights on the Prohibition and
Dissolution of Salafi Church Communities in the Dutch Civil Code.
Engin Evren
Master thesis
LLM International & European Law Under Supervision of Mr. Dr. M. den Heijer
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Table of contents
Introduction 3
1. The Foundations of the Militant Democracy Doctrine 7
2. The ECtHR’s Use of Militant Democracy Measures Against
Antidemocratic Movements 11
2.1 Relevant ECHR Legislation 11
2.2 Democracy as envisaged by the ECtHR 12
2.3 The ECtHR on Sharia and Legal Pluralism 13
3. Church Communities in the Dutch Civil Code 16
3.1 The Status of Church Communities in the Dutch Civil Code 16
3.2 Case Law on the Prohibition and Dissolution of Associations Acting
Contrary to Public Order 17
3.3 Evaluation 19
3.4 A Critique on the Council of State’s Advice on Church Communities 20 4. Applying the Militant Democracy Doctrine to Church
Communities with Regards to Salafi Mosques 23
4.1 Applying the Militant Democracy Doctrine to Salafism 23
4.2 The ECtHR on the Prohibition and Dissolution of Church
Communities 27
Conclusion 32
3
Introduction
In an era in which democracies all over the world are turning their backs on liberal and progressive values, the belief that our contemporary understanding of democracy is being challenged has resurfaced. A prime example of democracy being dismantled by antidemocrats is the impotent Weimar Republic. As Goebbels, the Nazi Minister of Propaganda, once famously said: ‘It will always remain one of the best jokes of democracy that it provides its own deadly enemies with the means with which it can be destroyed’.1 The rise to power of the National Socialists lead to legal scholars questioning whether democracy must be fortified to combat antidemocratic actors aiming to abolish democracy. In the Germany of 1937, Karl Loewenstein for the first time coined the term ‘militant democracy’ in reaction to the inability of democracy to contain fascism. Although no generally agreed definition exists, in this research militant democracy will be defined as ‘…a political and legal structure aimed at preserving democracy against those who want to overturn it from within or those who openly want to destroy it from outside by utilizing democratic institutions as well as support within the population’.2 In order to protect peace, security and the democratic order, militant democracy measures interfere with the fundamental rights of antidemocratic actors, ‘in the name of democratic self-preservation’.3
In the Netherlands, the separation of church and state has become a much debated topic since 9/11. The Dutch state’s unique relation with religion was founded upon its history of religious conflicts and a subsequent period of relative tolerance towards various religious communities.4 The legal recognition of religious pluralism ultimately lead to a policy of appeasement which manifested itself in, e.g., the financial support of confessional schools.5 While the Netherlands was never a secular state, the belief that religion had left the public domain and entered the private sphere was generally accepted in the late 20th century. This belief has been much questioned since several religiously motivated attacks had taken place
1 András Sajó, ‘From Militant Democracy to the Preventive State?’ (2006) 27 Cardozo Law Review 2252,
2262.
2 Otto Pfersmann, ‘Shaping Militant Democracy’ in András Sajó (ed), Militant Democracy (Eleven International
Publishing 2004), 47.
3 Patrick Macklem, ‘Guarding the Perimeter’ [2010] Social Science Research Network <
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1660649> accessed 1 October 2016.
4 J.G. Brouwer, F.E. Keijzer, F.T. Oldenhuis & D.N.R. Wegerif, ‘Schurende relaties tussen recht en religie’
[2007] <https://www.detweedeverdieping.nu/images/Schurende-relaties-tussen-recht-en-religie.pdf> accessed 1 March 2017, 9.
5 Sophie van Bijsterveld, ‘Religion and the Secular State in the Netherlands’ in W.C. Durham, J.
Martínez-Torrón & D. Thayer (eds), Religion and the Secular State: National Reports (Complutense Universidad de Madrid 2015), 523, 535.
4
against individuals who had enjoyed their freedom of expression in a controversial manner. The realisation that religion had re-entered the public sphere and it being ‘intrinsically connected with views of the human being, society, and the state, and, therefore, with values and cultural patterns’ resulted in augmenting polarisation.6 The Dutch state’s unique relation with religion was not self-evident anymore.
Due to the rise of religious fundamentalism, the militant democracy doctrine has won renewed interest. The European Court of Human Rights’ (hereafter: ECtHR) judgment on Refah, in which the Court invoked militant democracy measures to dissolve the former governing party of Turkey, provided an enormous impetus for the concept.7 After the ECtHR branded Sharia law as being incompatible with democracy and numerous religiously motivated terror attacks since 9/11, the Dutch parliament questioned the religious privilege church communities (kerkgenootschappen) enjoy in the Duch Civil Code (hereafter: CC)8 Due to an exception in the law, it is uncertain whether church communities can be prohibited and dissolved if their acts are contrary to public order.9 As the Dutch secret services continuously warn the authorities to tackle the issue of growing Salafism, an orthodox branch of Islam, in defence of the liberal constitutional state, it is possible that Salafi’s organise themselves under the banner of a church community. Therefore, this research will first examine whether Salafism will pass the test of militant democracy by applying the criteria for the survival of democracy to the foundations and sources of Salafism. Subsequently, it will be assessed whether the decision by the Dutch judiciary to prohibit and dissolve a Salafi mosque, registered as a church community, would be upheld by the ECtHR. The latter is important as the removal of the religious privilege could lead to the infringement of the freedom of religion and/or association which are both protected by the Convention. In the past, the ECtHR has invoked measures which are part of the militant democracy doctrine to ban political parties and organisations. The case law of the ECtHR has created an ample substantive body of such measures which need to be taken into consideration by the Dutch judiciary as the ECtHRs judgments are binding on its Contracting Parties.
This research will be written from an external-normative perspective as the aim of this research is to critically reflect on the legal rules that apply in the Dutch legal order and the Council of Europe area. This research will elaborate in what way the existing law and
6 Sophie van Bijsterveld, ‘Religion and the Secular State’ (2010) 14.3 Electronic Journal of Comparative Law <
http://www.ejcl.org/143/abs143-2.html> accessed 8 October 2016, 1.
7 Refah Partisi v Turkey App nos 41340/98, 41342/98, 41343/98 (ECtHR, 13 February 2013).
8 Parliamentary Papers II 2003-2004, 29 757 nr. 3 & Parliamentary Papers II 2015-2016, 34 465, nr. 3. 9 Article 2:2(2) of the Dutch Civil Code.
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jurisprudence is invoked and utilized by citizens, church communities, and the judiciary and to what extent it needs to be amended. Subsequently, it will be normatively evaluated whether the militant democracy doctrine orders the removal of the religious privilege in the Dutch law in order to improve the protection of the democratic state. By studying the removal of the religious privilege, the law will be utilized as a means to influence the particular social process of combatting antidemocratic church communities. The militant democracy doctrine itself does not have a standardized model with guidelines.10 It is described as an abstract normative concept which can be applied to religious, political, and legal-institutional conceptions.11
The first chapter of this research will describe the theoretical framework of the militant democracy doctrine. The development of the doctrine will be discussed by delving into the work of Karl Loewenstein, George van den Bergh and Bastiaan Rijpkema. Furthermore, the principles for the protection of democracy and the problems relating to the paradox of militant democracy will be discussed and later applied to church communities in chapter four.
In the second chapter, the jurisprudence of the ECtHR will be studied. Throughout the years, the Court has proven to be a staunch defendant of the pluralist nature of its Contracting Parties. In this research, the body of militant democracy measures forwarded by the ECtHR have to be taken into consideration, as the application of the principles of chapter one will have to remain within the margins of the ECtHRs jurisprudence. The ECtHRs description of what a democracy must encompass and its view on the compatibility of Sharia with democracy will be used to determine whether the practices of Salafi mosques must lead to a ban. Also, the legal pluralism phenomenon will be discussed.
The third chapter will describe and discuss the Articles and case law regarding ‘church communities’ in the Dutch Civil Code. The religious privilege will be discussed, as well as case law concerning the prohibition and dissolution of associations and the debate amongst legal scholars on the dissolution of church communities.
Finally, the last chapter will answer the two research questions. The principles of the militant democracy doctrine, discussed in chapter one, will be invoked to determine whether the religious privilege needs to be removed. The principles will be applied to the sources of Salafism. Subsequently, the jurisprudence of the ECtHR will be discussed to determine
10 Jan-Werner Müller, ‘Protecting Popular Self-Government from the People?’ (2016) 19 Annual Review of
Political Science 249, 253.
11
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whether the decision to prohibit and dissolve a Salafi mosque would be upheld by the ECtHR in Strasbourg.
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1. The Foundations of the Militant Democracy Doctrine
Over the past decades the concept of ‘militant democracy’ has resurfaced amongst comparative constitutional lawyers, human rights scholars and political scientists.12 While Karl Loewenstein has been generally accepted as the founding father of the militant democracy doctrine, George van den Bergh wrote on the same topic as well as Bastiaan Rijpkema in recent years. The principles, criteria and characteristics of the militant democracy doctrine discussed in this chapter, will be applied to Salafi mosques in the last chapter of this research. After examining Loewenstein, Van den Bergh, and Rijpkema’s articles, the paradox of democracy will be discussed along with two conceptions of democracy, namely the substantive and procedural conception.
In the 1930’s, Karl Loewenstein first articulated the term ‘wehrhafte Demokratie.’13 Scarred by the rise to power of the Nazi’s, he urged democracies to arm itself against subversive movements. In his articles, Loewenstein describes how democracies in Europe are in an existential battle with autocracies. He urges the ‘pacifist and apathetic’ democracies of Europe to fortify themselves against parties that threaten its survival.14 Democracy must become militant.15
Militant democracy measures limit the liberties of antidemocratic actors and cause severe infringement of the actor’s liberties; the ‘paradox of militant democracy’. This paradox is alarming when antidemocratic actors advocate the abolition of democracy, yet reject violence. Respect for human rights and the equality of ideas is a fundamental tenet of democracy.16 Will the liberal democracy that limits the liberties of an antidemocratic actor cease to be a democracy?
A legal scholar who wrote about this paradox is George van den Bergh. He described the ‘self-correcting capacity’ of democracy as being fundamental for its survival.17 His theory demonstrates that the laws decision-makers propose in a democracy are a reflection of the
12 Kathleen Cavanaugh & Edel Hughes, ‘Rethinking What is Necessary in a Democratic State’ (2016) 38.3
Human Rights Quarterly 623, 625.
13 Karl Loewenstein, ‘Autocracy versus Democracy in Contemporary Europe, I’ (1935) 29.4 The American
Political Science Review 571, 580.
14 Paul Cliteur & Bastiaan Rijpkema, ‘The Foundations of Militant Democracy’ in Afshin Ellian & Gelijn
Molier (eds), The State of Exception and Militant Democracy in a Time of Terror (Republic of Letters Publishing 2012), 235.
15 Loewenstein (n 13) 593.
16 Paul Harvey, ‘Militant Democracy and the European Convention on Human Rights’ (2004) 29.3 European
Law Review 407.
17 George van den Bergh, De democratische Staat en de niet-democratische partijen (N.V. De Arbeiderspers
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will of the electorate. If certain policy decisions draw criticism, the electorate is able to revoke such decisions through recurring elections. As such, a democracy is a state of ‘permanent self-correction.’18 However, the abolition of democracy is the only act that cannot be revoked through democratic self-correction.19 Therefore, advocacy for the abolition of democracy, even without violence, conflicts with the essence of democracy, and should not be permitted.20 Ultimately, from Van den Bergh’s articles, three characteristics of democracy can be deduced, namely, intellectual freedom, equality before the law and democracy’s self-correcting capacity.21 If a movement urges the abolition of one of these characteristics, it disqualifies itself from enjoying democratic liberties. In Rijpkema’s book on militant democracy, the self-correcting capacity of democracy is supplemented with three additional principles that also need to be met: the principle of evaluation, of political competition and of free speech.22
Another philosopher whose work is of importance for the militant democracy doctrine is Karl Popper. His book touches upon the ‘paradox of tolerance’:
‘Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.’23
Popper’s plea for the right not to tolerate the intolerant implies that democracy should be more combative towards those acting contrary to it and its values.24 One measure Popper proposes is placing ‘any movement preaching intolerance’ outside the law.25 Incitement to intolerance should be made criminal.26 Popper also incorporates Plato’s criticism of democracy in his work by stating that democracy is not only about procedure, but also about
18 Cliteur & Rijpkema (n 14), 244. 19
Van den Bergh (n 17), 10.
20 Bastiaan Rijpkema, Weerbare democratie (3rd edn, Nieuw Amsterdam 2016), 65. 21 Ibid, 147.
22 Ibid, 176. 23
Karl Popper, The Open Society and Its Enemies, Volume 1 (5th edn, Princeton University Press 1966) 265, note 4.
24 Kent Roach, 9/11 Effect (Cambridge University Press 2011), 56. 25 Popper (n 23).
26
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substance.27 Therefore, democracy should also be able to protect fundamental liberties from the rule of a majority whose aim is to curb those very liberties.28
Plato’s criticism of democracy has been at the forefront of the debate surrounding the acceptability of militant democracy measures. Legal scholars have differentiated two types of conceptions of democracy, namely the substantive and procedural conception.29 This differentiation is crucial for the legitimacy of militant democracy measures by the state. The procedural conception views democracy as value neutral.30 Only a legislative majority is required to pass legislation while the substance of stances and measures is not reviewed.31 As a consequence, the procedural democracy is able to abolish itself through a majority vote. Substantive democrats, on the other hand, believe that democracy is more than just a formal decision-making procedure.32 It must pro-actively defend itself against ‘democratic suicide.’ It must also protect the fundamental rights and freedoms of its citizens.33 In other words, it requires that legislation and decision-making procedures meet certain substantive qualities and take fundamental rights into consideration.
The militant democracy doctrine seems to correspond more with a democracy of the substantive conception. By strengthening the framework for continuous democratic self-correction, fundamental rights within a society can be permanently protected. In a democracy with a procedural conception however, a majority rule could enforce a concept of good life that does not correspond with alternative concepts.34 According to Loewenstein, such regimes are held together by ‘emotionalism,’35 e.g., fascism, nationalism and religious fundamentalism.36 An important aspect of emotionalism is the intimidation of ‘others,’ namely individuals or groups who do not endorse the movement or regime.37 Although Loewenstein’s theory of emotionalism was tailored for the fascism of the 1930’s, it can be applied to current totalitarian religious fundamentalism and extreme-right populism.38 This research specifically focusses on religious fundamentalism as the aim is to examine whether religious fundamentalism within Salafi church communities can be combatted.
27 Ibid. 28 Ibid, 265-266. 29 Harvey (n 16) 408-409. 30 Rijpkema (n 20), 131. 31 Ibid. 32 Ibid, 133. 33 Ibid. 34 Sajó (n 1). 35
Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, I’ (1937) 31.3 The American Political Science Review 417.
36 Sajó (n 1), 2263.
37 András Sajó, ‘Militant Democracy and Emotional Politics’ (2012) 19.4 Constellations 562. 38
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In the next chapter, the ECtHR’s use of militant democracy measures will be discussed. The Court has proven to be a firm defendant of the liberal democracy by conceptualizing it and invoking the doctrine against antidemocratic movements. Based on the case law, the ECtHR’s view on democracy, Sharia and legal pluralism will also be discussed.
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2. The ECtHR’s use of militant democracy measures against
antidemocratic organizations
Since its establishment, the ECtHR has increasingly referred to militant democracy measures in its rulings when deciding on the dissolution of political parties. The relationship between antidemocratic activities and public order generated the proliferation of legal arguments supporting militant democracy measures. Besides fascist and communist organizations, these measures currently also apply to religious fundamentalist movements.
In order to determine whether the militant democracy doctrine, discussed in chapter one, is applicable to church communities, one needs to consider the legislation of the European Convention on Human Rights and the jurisprudence of the ECtHR. Throughout the years, the ECtHR has delivered several landmark decisions on political parties advocating the implementation of Sharia and on what the democracy of a Contracting Party of the Council of Europe must encompass. These rulings are of importance as the ECtHR is able to hand out binding judgments for its 47 members, including the Netherlands. This chapter will discuss the militant democracy measures invoked by the ECtHR as well as under what conditions the ECtHR allows a member state to abolish political parties, the ECtHR’s view on democracy, and the compatibility of Sharia with democracy.
The judgments regarding political parties can be applied to associations as both are within the scope of Article 11 ECHR.39 Also, in the Dutch Civil Code, associations and church communities are both codified in Title 1 of book 2. For that reason, the judgments which are discussed in this chapter can be applied analogously to church communities.
§2.1 Relevant ECHR legislation
Several provisions of the Convention clearly showcase the spirit of the militant democracy doctrine. Articles 11 and 10 which guarantee the freedom of association and speech, allow restrictions on the exercise of rights if necessary in a democratic society. In the KPD v. Germany case, the first judgment by the ECtHR on the dissolution of a political party, the abuse clause codified in Article 17 was invoked.40 According to the ECtHR, this Article was ‘designed to safeguard the rights’ listed in the Convention against abuse by totalitarian and
39 United Communist Party of Turkey and Others v. Turkey App no. 133/1996/7852/951 (ECtHR, 30 January
1998), para 25.
40 German Communist Party v. Federal Republic of Germany App no 250/57 (European Commission on Human
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extremist groups and to protect ‘the free operation of democratic institutions’.41 However, once the ECtHR applies Article 17, it is not required to comment on the issues raised by the complainant nor is it required to decide whether there was a violation42. Therefore, this provision will not be applied in this research.
In the following paragraph, the ECtHR conceptualizes the democracy conception. It also gives more legal tools to determine whether a democracy is under threat by antidemocratic actors.
§2.2 Democracy as envisaged by the ECtHR
After a period of silence regarding new militant democracy measures, the ECtHR gave an extensive overview of a party dissolution procedure in the 1998 United Communist Party of Turkey case by first discussing the relationship between democracy and the Convention. Democracy is characterized as a fundamental feature of the European public order.43 The Preamble of the Convention states ‘that the maintenance and further realization of human rights and fundamental freedoms are best ensured […] by an effective political democracy and […] by a common understanding and observance of human rights.’44 Democracy is the only political model compatible with the Convention.45
The ECtHRs stance that there can be no democracy without pluralism is relevant for this research.46 In order to safeguard pluralism and multiple religions coexisting, it may be necessary to place restrictions if the exercise of that freedom clashes with the ‘aim of protecting the rights and freedoms of others, public order and public safety.’47 Furthermore, there are certain limits within which political organizations need to act in order to enjoy the freedoms of the Convention. If new legislation or changes to the constitutional structures of a state are proposed, two conditions have to be met. ‘Firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principle.’48 As activities aiming to abolish the rights or freedoms of the Convention can bring about the destruction of democracy, compromise and concessions by individuals or groups are necessary to safeguard pluralism and the greater stability of the
41 Ibid and Ždanoka v. Latvia App no 58278/00 (ECtHR, 16 March 2006). 42 Svetlana Tyulkina, Militant Democracy (1st edn, Routledge 2015), 96-97. 43 United Communist Party of Turkey (n 39), para 45.
44
Ibid.
45 Ibid.
46 Handyside v. The United Kingdom App no 5493/72 (ECtHR, 7 December 1976), para 49. 47 Dahlab v Switzerland (dec) App no 42393/98 (ECtHR 15 February 2001).
48
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state as a whole.49 This reasoning of the ECtHR follows the writings of Karl Loewenstein.50 The inherent weaknesses of democracy, conceptualized by Loewenstein, make it possible for antidemocratic actors to corrupt the liberties and freedoms offered by the Convention.
It is important to discuss the ‘fundamental democratic principles.’ In the concurring opinions of the Refah case, judge Ress elaborates that it must be read in light of United Communist Party of Turkey.51 The judgment states that ‘freedom of expression constitutes one of the essential foundations of a democratic society.’52 The ECtHR’s democracy conception is broad, and rooted in the rule of law.53 It is liberal, ‘constituted by popular elections, the rule of law and human rights.’54 The ECtHR’s reasoning corresponds with the militant democracy doctrine. The freedom of expression is also a condition for Van den Bergh’s theory of self-correction. Without intellectual freedom, a democracy’s self-correcting characteristic cannot function effectively.
In the next paragraph, the ECtHRs judgment on the compatibility of Sharia with democracy will be discussed. Also, the question whether legal pluralism is allowed under the Convention will be answered.
§2.3 The ECtHR’s views on Sharia and legal pluralism
In Refah, the ECtHR is critical of a Turkish Islamist political party’s alleged aim of setting up a plurality of legal systems and applying Sharia to the internal and external relations of the Muslim community. First, the introduction of legal pluralism would undo ‘the State’s role as the guarantor of individual rights and freedoms’ and its impartiality regarding the practice of religions.55 The state’s positive obligation to protect the rights and freedoms guaranteed in the Convention, for every individual within its jurisdiction, would be tarnished by the introduction of legal pluralism.56 Secondarily, Article 14 ECHR prohibits legal pluralism.57 It is asserted that such a legal system would ‘undeniably infringe the principle of non-discrimination between individuals’ and genders, as individuals would be allocated a legal system on the basis of their religion.58 The freedom of religion ‘is primarily a matter of
49 German Communist Party (n 40), para 23. 50 Cliteur & Rijpkema (n 14).
51 Refah (n 7), concurring opinion of Judge Reis, joined by Judge Rozakis. 52 United Communist Party of Turkey (n 39).
53 Rijpkema (n 20), 169. 54
Kevin Boyle, ‘Human Rights, Religion and Democracy’ (2004) 1.1 Essex Human Rights Review 1, 8.
55 Refah (n 7), para 119. 56 Ibid.
57 Ibid. 58
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individual conscience,’ while the legal pluralism proposed by Refah belongs to the field of private law, which ‘concerns the organization and functioning of society as a whole.’59 The ECtHR’s firm stance on legal pluralism leading to discrimination seems to correlate with Van den Bergh’s criterion of equality before the law. An organization which pleads the contrary on the basis of religion is therefore deemed antidemocratic.
Furthermore, the ECtHR analyzed Refah’s members advocating a regime based on Sharia. The ECtHR states that Sharia is incompatible with the fundamental principles of democracy, due to ‘its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.60
The decision by the ECtHR to brand Sharia law as completely incompatible with fundamental democratic principles gave rise to considerable controversy.61 Despite the criticism, the ECtHR has steadily branded Sharia and democracy as being fundamentally incompatible.62 In 2006, a decision to dissolve an Islamic association on grounds of its aim to implement Sharia was upheld by utilizing the arguments set forth in Refah.63 In 2012, the ECtHR once again invoked Article 17 against the Islamist organization Hizb Ut-Tahrir due to its advocacy for the establishment of the caliphate and anti-Semitic statements of its members.64 The same conclusion was reached the following year in a case brought forward by two members of Hizb Ut-Tahrir.65 In another case, that does not touch the topic of Sharia but rather religion in general, the ECtHR stated that ‘avoiding the emergence of parallel societies based on separate philosophical convictions’ is in the general interest.66 ‘Religion-based parallel societies are a threat to democracy,’ which ultimately justifies preemptive interference with party activities.67
In the next chapter, the provisions and case law regarding church communities in the Dutch Civil Code will be discussed. The militant democracy measures invoked by the ECtHR in this chapter prove that there is a precedence of scrutinizing religiously inspired associations on the international plane and that occasionally, states have an obligation to ban them. Although church communities within Dutch law are recognized as legal persons like
59 Ibid, para 128. 60
Ibid, para 123.
61 Rory O’Connell, ‘Militant Democracy and Human Rights Principles’ (2009) Constitutional Law Review 84,
95.
62 Tyulkina (n 42), 194. 63
Kalifatstaat v. Germany App no 13828/04 (ECtHR, 11 December 2006).
64 Hizb Ut-Tahrir and Others v. Germany App no 31098/08 (ECtHR, 19 June 2012).
65 Kasymakhunov and Saybatalov v. Russia App nos 26261/05, 26377/06 (ECtHR, 14 March 2013). 66 Fritz Konrad and Others v. Germany (dec), App no 35504/03 (ECtHR, 11 September 2006) 67
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associations, the religious privilege codified in Article 2:2(2) CC leads to uncertainty on the question whether church communities can be banned when acting contrary to public. The next chapter will discuss when and why the Dutch judiciary orders the abolition of an association, as a Salafi mosque registered as a church community would face the same treatment if the privilege was to be lifted.
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3. Church Communities in the Dutch Civil Code
To fully comprehend the possible impact of the militant democracy doctrine on church communities, the provisions in the Dutch Civil Code need to be discussed. In this research, the exemption church communities enjoy is characterised as a religious privilege. Also, the judgments concerning associations acting contrary to public order and the scientific debate on the religious privilege will be discussed. If the privilege is removed, it would take away the uncertainty about the possibility to ban church communities on grounds of the arguments set forth below.
§3.1 The status of church communities in the Dutch Civil Code
The Dutch separation of church and state guarantees the institutional independence of the church from the state.68 While no such principle is codified in the law, the freedom of religion and belief (Article 6 of the Dutch Constitution), the freedom of association (Article 8) and the provision on equal treatment and non-discrimination (Article 1) ensure this principle. Article 6 of the Constitution also protects religious institutions, which implies that church communities enjoy freedom of religion.69 In addition, Articles 6 and 8 need to be read in light of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) ECHR.70
Dutch law does not contain any provision defining the term ‘church communities’ (kerkgenootschappen). The Supreme Court, however, has acknowledged church communities as such if ‘(i) the organisation’s activities revolve around religion; (ii) an organisational structure can be discerned; and (iii) the organisation expresses the will to manifest itself as a church.’71
Within Dutch law, church communities enjoy legal personality if they intent to be considered as one. Article 2:2(1) CC states: ‘Church communities and their independent subdivisions and bodies in which they are united, have legal personality’. A manifestation of the principle of the separation of church and state is the religious privilege. Article 2:2(2) CC states: ‘With the exception of Article 2:5, the below listed Articles of the present Title (Title 2.1) do not apply to them.’ Title 2.1 is the chapter that regulates the general provisions
68
Sophie van Bijsterveld, ‘Religion and Law in the Netherlands’ (2015) 17.1 Insight Turkey, 121, 125.
69 Ibid.
70 Martijn NJ 2014/507 (Supreme Court, 18 April 2014), para 3.6.
71 ECDL & ODIHR, Guidelines on the Legal Personality of Religious or Belief Communities, 1, 27 and
17
regarding legal persons. As a result of the exemption, church communities are legal categories sui generis.72
A matter of concern regarding the privileged status is the exemption of prohibition and dissolution of church communities in a civil procedure when their activities are contrary to public order. In the memorandum of reply of Article 2:20(1), the Dutch government specified ‘contrary to public order’ by declaring that ‘acts that interfere with generally accepted foundations of our legal system, can justify the prohibition of an association or other legal persons.’73 The use of force or threatening to use force against public order or against those whose views the perpetrators, […] do not agree with also fall under this provision.’74 The incitement of hatred and discrimination or expressing discriminatory statements are also contrary to public order.75 The foregoing examples have in common that they impair the essential foundations of our legal system, which would seem to have a disruptive effect on society if applied on a large scale.76 Ultimately, these acts can be regarded as acts which undermine the democratic state and the fundamental rights of individuals. Thus, an association can be banned ‘if it can be derived from the activities of an association that it aims to abolish democracy, to discriminate, or if it aims to deprive individuals or society of certain fundamental rights of equality and freedom.’77
In the next paragraph, the case law concerning acts contrary to public order will be discussed. If the religious privilege were to be lifted, the abolition of church communities would be largely realized by the arguments set forth in these judgments.
§3.2 Case law on the prohibition and dissolution of associations acting contrary
to public order
Article 2:20(1) states that legal persons whose activities are contrary to public order can be prohibited and dissolved by the District Court, upon a request of the Public Prosecution Service.78 So far, the Dutch Supreme Court has reviewed four legal persons under this provision. Hells Angels79 and Martijn80 are two judgments which are of importance for this
72 Van Bijsterveld (n 6), 8. 73 Parliamentary Papers II 1981/82, 17 476, nr. 5, 3. 74 Ibid. 75 Ibid. 76 Ibid.
77 Gelijn Molier, ‘Syrië-gangers wacht ‘strijdbare democratie’’ (2014) Civil Mundi Digital 22 <
http://www.civismundi.nl/index.php?p=artikel&aid=2224> accessed 3 October 2016.
78 Article 2:20(1) of the Dutch Civil Code.
79 Hells Angels LJN BI1124 (Supreme Court, 26 June 2009). 80
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research as they clearly demonstrate the Supreme Court’s changing view on what type of criteria must be invoked in order to determine whether an association should be banned.
In 2009, the Supreme Court ruled on the question whether motorcycle club Hells Angels, registered as an association, should be prohibited and dissolved. The main question was whether the criminal activities of its individual members could be considered as activities of the association, and if so, whether the association’s activities could lead to a ban. According to the Court, activities can be considered as such, if there is ‘a structural situation and culture of committing’ such activities.81 Ultimately, the Supreme Court upheld the Court of Appeal’s conclusion that the evidence forwarded by the public prosecutor was not sufficient to prove a structural culture.82 Banning an association is regarded as an ultimum remedium.83 Finally, the Court concluded that the association committed no ‘acts which are regarded as an actual and significant encroachment of the essential principles of our legal system and no acts which disrupt or could disrupt our society.’84 Therefore, Hells Angels was neither prohibited nor dissolved.
In the Martijn judgment, the Supreme Court ruled on an association which endeavoured the legal and societal acceptance of (sexual) relations between adults and children. The Supreme Court upheld the Court of Appeal’s judgment that the activities of Martijn are ‘an actual and significant encroachment of the essential principle that the physical and sexual integrity of a child requires protection.’85 However, the Supreme Court did not uphold the Court of Appeals judgment that Martijn did not or could not disrupt society.86 Instead of applying the limitations codified in Articles 7 and 8 of the Dutch Constitution as the Court of Appeals did, the Supreme Court invoked the limitations of Articles 10 and 11 ECHR.87 The Supreme Court states that the Court of Appeal ‘should have investigated whether the prohibition and dissolution of the association was necessary in a democratic society, in the interest of […] public order or the protection of the rights and liberties of others.’88 Also, it is not necessary that there is an actual threat to public order.89 Unlike in Hells Angels, a state is allowed to act preventively.90 Subsequently, the Court states that
81 Hells Angels (n 79), para 3.5. 82 Ibid, para 3.7.4. 83 Ibid, para 3.3. 84 Ibid. 85 Martijn (n 70), para. 3.11.3. 86 Ibid, para 3.10. 87 Ibid, paras 3.7-3.9.5. 88 Ibid, para 3.10. 89 Ibid, para 3.8. 90
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states should be reticent to ban associations. However, due to the exceptional nature of the activities of Martijn and the Netherlands’ commitments to international treaties protecting children, the Court decided that ‘in a democratic society it is necessary that the association is prohibited and dissolved, considering the interest of protecting the health, the rights, and the liberties of children.’91
The next paragraph will evaluate the judgments discussed in this paragraph, its consequences for church communities and alternative measures.
§3.3 Evaluation
Contrary to previous judgments, since Martijn, an association is not required to commit criminal activities in order to be banned. Also, instead of the disruption-test, the Court now invokes the ‘necessary in a democratic society’-test. The Martijn judgment demonstrates that by following the ECtHR’s reasoning, the Court has lowered the threshold for a ban, as the criteria in Martijn are less strict than in Hells Angels. It is however, unclear to what extent international treaties regarding child protection have influenced the final outcome. On the one hand, the Court’s repeated emphasis on protecting children and the extensive enumeration of provisions regarding child protection seem to carry a lot of weight on the final outcome. On the other hand, Article 2:20(1)’s aim is not the protection of children, but the protection of public order. Children are protected by criminal law.
As the Supreme Court has invoked the limitations of the Convention, one can tentatively conclude that the reasoning behind the prohibition and dissolution of Martijn has made it easier to ban associations in the future. Therefore, if the religious privilege was to be removed, the range of legal tools to combat an antidemocratic church community would be broadened.
Another incentive to remove the religious privilege is Article 140(2) Dutch Criminal Code. This provision states that those who have participated ‘in the continuation of the activities of an organization that has been declared prohibited by final judicial decision […] shall be liable to a term of imprisonment.92 Therefore, besides a prosecution on civil level, the removal can also lead to a criminal prosecution.
Compared to when Title 2.1 CC came into force, in the current political climate, it would be questionable to uphold a legal threshold which allows groups to abuse the legal personality of a church community in order to promote antidemocratic activities. Especially
91 Ibid, para 3.11.3 92
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with regards to the principle of equality, allowing a religious organization more freedom than other organizations in times when religion’s role in society is questioned seems unreasonable and would be unjust towards organizations that do abide by Article 2:20 CC. In the past, the Dutch judiciary has proven to be reticent when deciding on the abolition of organizations. Therefore, fears that the removal of the religious privilege would lead to the infringement of the freedom of religion can be taken away by studying previous judgments on associations.93 When in doubt, the judiciary has refused to ban organizations.94
As previously mentioned, the ban of an association is an ultimum remedium. In less severe cases, individuals could be criminally prosecuted or forced to pay fines by the civil court. At the same time, one must be aware that the removal of the religious privilege and the prohibition and dissolution of a church community is no holy grail for the possible problems regarding Salafi mosques. It is the ‘last bulwark’ in a range of legal measures.95 ‘Legal instruments are merely subservient to the political culture.’96 To avoid dependence on legal measures, a state must invest in education in order to create a political culture with respect to individual liberties.97 A democracy without democrats would face continuous internal threats.
The next paragraph will discuss the Council of State’s statement on a bill which aims to lift the religious privilege. Throughout the years, legal scholars have reached diverging conclusions when studying the privilege. Therefore, the scientific debate surrounding this topic will also be discussed.
§3.4 A critique on the Council of State’s advice on church communities
On 6 December 2016, the Council of State released an advisory statement on a legislative proposal which aims to lift the religious privilege.98 The Council is of the opinion that church communities can already be prohibited and dissolved due to the first sentence of Article 2:2(2) CC which states that church communities ‘are governed by their own charter insofar the rules thereof are not in conflict with the law.’99 ‘The law’ needs to be of a mandatory character, which, according to the Council, is the case for Article 2:20 CC. As a result, if the charter of a church community is contrary to rules with a mandatory character, the possibility
93 Teunis van Kooten, ‘Democratische rechtsstaat’ (2008) <
http://www.vankootenadvocaten.nl/kantoor/publicaties> accessed 4 January 2017.
94 Ibid.
95 Shlomo Avineri, ‘Introduction’ in András Sajó (ed), Militant Democracy (Eleven International Publishing
2004), 6.
96 Ibid. 97 Ibid.
98 Council of State, Advice W03.16.0119/II (23 June 2016). 99
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for prohibition and dissolution of Article 2:20 CC can be invoked.100 Furthermore, the Council states that the privilege that church communities enjoy in the second sentence of Article 2:2(2) CC can be discarded due to the same Article’s first sentence which prohibits governance by its own charter insofar the rules are in conflict with the law.101 As a result, the Council advices parliament to reconsider the legislative proposal and to instead focus on penal measures.
This case of legal acrobatics is contested amongst legal scholars. The interpretation of ‘the law’ varies from study to study. For example, Diepenhorst states that the law should be interpreted as ‘fundamental rules of the general law with a mandatory character,’ according to Van Schilfgaarde it should be interpreted as ‘mandatory law’ and according to Van Ee as a ‘broad public order.’102 In contrast, the parliamentary debate on Article 2:20 stresses that the notion of public order should be a narrow one.103 Another legal scholar, Van Kooten, is of the opinion that an abolition is not possible at all.104 Contrary to the Council’s advice, he states that there can be no analogical application of Article 2:20 CC as a dissolution would always be contrary to the charter of a church community.105
When one looks at the parliamentary debate on book 2 CC it becomes clear that the then Minister of Justice could not rule out the possibility of prohibition and dissolution if a church community encourages committing criminal acts.106 However, a concrete guarantee of abolition is not present in the law, nor in the jurisprudence. And, as will be discussed in chapter 4, the antidemocratic acts that undermine the constitutional state do not always fall under a criminal code provision.
Because of the uncertainty surrounding the religious privilege, several legal scholars have advocated for its removal. Santing-Wubs argues that the possibility to combat excesses should exist and should not be frustrated by a charter.107 A church community should not be able to harbor ill-intentioned practices.108 Maeijer states that church communities should have
100 Council of State (n 98). 101 Ibid.
102 Parliamentary History of the New Civil Code. Book 2. Legal Persons, 135; P. van Schildfgaarde,
Rechtspersonen, Algemeen deel (Kluwer 1979), 125 & J.W. van Ee, ‘In strijd met de wet’ (1996) 5
Rechtsgeleerd Magazijn Themis, 163, 178. (RM Themis 1996), 178.
103 Parliamentary Papers II 1984-1985, 17 476, nr. 5, 2.
104 T. van Kooten, ‘Het kerkgenootschap’ in L.C. van Drimmelen & T.J. van der Ploeg (eds),
Geloofgemeenschappen en recht (Boom Juridische Uitgevers 2014), 381.
105
Ibid.
106 Parliamentary Papers II 1985-1986, 16 635, nr. 7, 8-9.
107 A.H. Santing-Wubs, Kerken in geding (Boom Juridische Uitgevers 2002), 55.
108 A.H. Santing-Wubs, ‘De positie van kerkgenootschappen in het civiele recht’ in A.P.H. Meijers & T.J. van
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the same legal status as legal persons and that concrete boundaries for church communities should exist,109 while Ellian argues that the religious privilege is currently outdated.110
In light of the previous chapters, the next and final chapter will assess whether the militant democracy doctrine obliges Dutch lawmakers to lift the religious privilege. Subsequently, it will be discussed whether such a decision would be upheld by the ECtHR considering its continuing use of militant democracy measures in its judgments.
109
J.M.M. Maeijer, Rechtspersonen, godsdienst en levensovertuiging (Noord-Hollandsche Uitgevers Maatschappij 1986), 33/81.
110 A. Ellian, ‘Asscher en Van der Steur blijven blind voor salafistisch onheil’ (Elsevier, 23 February 2016) <
http://www.elsevier.nl/nederland/opinie/2016/02/asscher-en-steur-blijven-blind-salafistisch-onheil-2767970W> accessed 9 March 2017.
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4. Applying the Militant Democracy Doctrine to Church
Communities with regards to Salafi Mosques
The aim of this research is to determine whether the militant democracy doctrine obliges the removal of the religious privilege. Therefore, in this chapter, the characteristics and criteria for the survival of democracy, formulated in chapter 1, will be discussed in light of the ideology and practices of Salafism and its mosques. Subsequently, it will be assessed whether the decision by the Dutch judiciary to prohibit and dissolve a Salafi mosque, registered as a church community, would be upheld by the ECtHR.
§4.1 Applying the militant democracy doctrine to Salafism
Salafism is an umbrella term for fundamentalist movements within Sunni Islam.111 The aim of these movements is to strive for a literal, but idealized, return to the ‘pure’ Islam, of which the life of the prophet Muhammed is the most pure.112 One of the concerns regarding Salafism is the fact that its adherents proclaim a moderate and integration-focused message externally which differs from what is proclaimed internally.113 As there is no central authority, Salafism has diverged into various interpretations.114 Besides different interpretations, this divergence is a result of ‘strategic considerations, pragmatism or opportunism.’115 The religious principles can be ambiguous or contradictory and can change depending on the context.116
As was discussed in chapter one, the three characteristics formulated by Van den Bergh which are of importance for the survival of the liberal democracy, will be applied to the practices and beliefs of Salafi’s. The first characteristic, intellectual freedom, is not encouraged within a Sharia state. The intolerant isolationism that Salafists subject themselves to is not prone to criticism or self-reflection. By intimidating forms of dissidence, Salafi movements want to ensure the domination of the rule of God.117 As the Quran is
111 AIVD & NCTV, ‘Salafisme in Nederland’ [2015] <
https://www.aivd.nl/publicaties/publicaties/2015/09/23/salafisme-in-nederland-diversiteit-en-dynamiek> accessed 2 October 2016, 4.
112 Ibid, 4-5.
113 AIVD, ‘Wegwijzer façadepolitiek’ [2009] <
http://www.binnenlandsbestuur.nl/Uploads/Files/Document/wegwijzerfaadepolitiek.pdf> accessed 2 October 2016, 4. 114 AIVD & NCTV (n 111), 6. 115 Ibid. 116 Ibid. 117 Ibid, 13.
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acknowledged as the literal word of God, no criticism of it is accepted,118 nor can the human system of logic be applied to it.119 One of the principles of Salafism, al-Walâ wal-Barâ, orders Salafi’s to keep a distance from those that do not live according to the same interpretation as Salafi’s do.120 The AIVD stresses that such acts result in self-chosen societal isolation and ‘an intolerant and polarizing attitude towards dissidents.’121 An example of Salafism being contrary to intellectual freedom are the death threats to Zineb el Rhazoui, a former editor of Charlie Hebdo and currently ‘the most protected woman of France.’122 After the Charlie Hebdo attacks political commentator Nick Cohen described the new climate:
‘We have a blasphemy law. No electorate has approved it. No parliament has passed it. No judge supervises its application and no jury determines guilt beyond reasonable doubt. There’s no right of appeal. And the penalty is death.’123
As a result, Muslim-dissidents, journalists and comedians complain of a ‘climate of self-censorship’ in which substantial criticism of Islam is avoided and discouraged.124 As rationalism is the most dangerous challenge to pure Islam,125 the blatant attacks on freedom of speech demonstrate that under Sharia law, the intellectual freedom of individuals or of the public debate is not respected.
Secondly, the test of equality before the law also fails. One simply needs to take a look at the position of women in Islamic sources. Several Quran verses state: ‘for the male, what is equal to the share of two females;’126 ‘marry those that please you of women, two or
118 Ineke Roex, Sjef van Stiphout & Jean Tillie, ‘Salafisme in Nederland’ [2010], <
https://www.wodc.nl/onderzoeksdatabase/ontwikkeling-van-het-salafisme-in-nederland.aspx> accessed 2 October 2016, 16.
119 Quintan Wiktorowicz, ‘Anatomy of the Salafi Movement’ (2006) 29.3 Studies in Conflict and Terrorism,
207, 210.
120 AIVD & NCTV (n 111), 13. 121
Ibid.
122 Emma-Kate Symons, ‘Zineb el Rhazoui, Charlie Hebdo survivor, discusses why the world needs to ‘Destroy
Islamic Fascism’’ (The New York Times, 18 October 2016) <
http://nytlive.nytimes.com/womenintheworld/2016/10/18/zineb-el-rhazoui-charlie-hebdo-survivor-discusses-why-the-world-needs-to-destroy-islamic-fascism> accessed 4 January 2016.
123 Nick Cohen, ‘Paris attacks: unless we overcome fear, self-censorship will spread’ (The Guardian, 11 January
2015) < https://www.theguardian.com/commentisfree/2015/jan/11/paris-attacks-we-must-overcome-fear-or-selfcensorship-will-spread> accessed 3 December 2016.
124
Thijs Niemantsverdriet & Pieter-Bas van Wiechen, ‘Cabaretiers over de grenzen van de humor’ (Vrij
Nederland, 8 January 2015) <https://www.vn.nl/cabaretiers-over-de-grenzen-van-de-humor> accessed 3
December 2016.
125 Wiktorowicz (n 119). 126
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three or four;’127 ‘And if there are not two men, then a man and two women from those whom you accept as witnesses’128. To those who stress that these verses are taken out of context, numerous Quran verses and other Islamic sources showcase the same hostile attitude towards the principle of equality of men and women. In the Netherlands these sources continue to inspire varying practices such as women being urged not to leave home without male guardianship or women being told to not study or to not perform paid work.129 Also, believers of other religions are regarded as eternal enemies aiming to destroy Islam which results in conspiratorial views of non-Muslims.130 As a counterargument one can assert that on Dutch territory only Dutch law applies, and that Sharia law is not recognized by the authorities as being applicable law. While the latter is true, the decision by the mayor of The Hague to work with the Salafi As-Soennah Mosque to patrol the streets of the Schilderswijk during New Year’s Eve is a remarkable development.131 Besides legitimizing legal pluralism it also demonstrates that the police of the Hague is willing to partner with an organization that does not acknowledge the principle of equality.132 Furthermore, Salafi’s claim of ‘pure’ Islam and their partnership with the authorities could further legitimize the orthodox branch in the eyes of ‘moderate Muslims.’ Another example of implicit recognition is a judgment by the District Court of Rotterdam on the topic of Islamic wedding.133 In this specific case, a husband refused to divorce his wife and was only willing to cooperate with a dissolution if the divorce was to be settled in a Sharia court. This case of marital captivity resulted in a judgment in which the judge concluded that the marriage was not valid under Dutch law as no civil marriage had taken place.134 While the wife requested a unilateral repudiation (talak) on the husband, the judge chose to refer the couple to a Sharia court, completely disavowing the unequal position of women in Islamic marriages and the acceptance of this inequality in Sharia courts.135
127 Ibid, verse 4:3. 128 Ibid, verse 2:282.
129 AIVD, ‘Weerstand en tegenkracht’ [2009] <
https://www.aivd.nl/publicaties/publicaties/2009/12/17/rapport-weerstand-en-tegenkracht> accessed 2 October 2016, 7.
130 Wiktorowicz (n 119), 218.
131 Al-Hidayah, ‘Surveilleren op Oud en Nieuw groot succes’ (Al-Yaqeen, 6 January 2014) <
https://al-yaqeen.com/nieuws/surveilleren-op-oud-nieuw-groot-succes> accessed 3 December 2016.
132
Bas Paternotte, ‘Kritiek op ‘shariapolitie’ Den Haag zwelt aan’ (HP De Tijd, 30 December 2011) < http://www.hpdetijd.nl/2011-12-30/kritiek-op-sharia-politie-den-haag-zwelt-aan> accessed 3 December 2016.
133 C/10/482958 / HA ZA 15-873 (District Court of Rotterdam, 6 January 2016). 134 Ibid, para 4.2.
135
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Finally, the self-correcting capacity of democracy needs to be assessed. Despite the differences amongst Salafi’s, a common religious creed, the aqida, unites them.136 According to Salafi’s, in order to be a ‘real Muslim,’ all the principles of aqida need to be acknowledged.137 One of the principles, the tahwid, encompasses the idea that God is ‘the sole creator and sovereign of the universe.’138 Deviating from this belief is considered as ‘the greatest sin a Muslim can commit.’139 As a result, secular laws or the principle of the separation of church and state are rejected as they are the creation of the human mind. The principle of tahwid is contrary to the Dutch Constitution. Article 68 states that ‘Acts of Parliament shall be enacted jointly by the Government and the States General’. Thus, by rejecting all man-made laws, the constitutional state of the Netherlands is also rejected.
In order to fully assess the self-correcting capacity, three additional principles formulated by Rijpkema also need to be discussed, the first being the principle of evaluation. As previously expressed, the rejection of all man-made legislation leads to the rejection of democracy and therefore elections.140 The AIVD has underlined that influential believers urge others, sometimes under threat of violence, not to participate in the institutions of the democratic state, such as elections.141 Some influential Salafi’s do advice their followers to vote, however, this does not mean that they have distanced themselves from the ideal of Sharia.142 In a Sharia state, elections are redundant and therefore the principle of evaluation does not exist. Secondly, the principle of political competition is also alien to Salafi’s. For a Sharia state, only a political party aiming to implement the word of God would be acceptable as all man-made laws are rejected. As such, one cannot speak of a free market of ideas, necessary for political competition. Thirdly, the freedom of expression in a Sharia state is also a problem. Even Western democracies have experienced a tremendous regression of free speech due to pressure from Islamic circles. The attacks on Charlie Hebdo (freedom of expression), Brussels and Club Reina (religious freedom), Bataclan (cultural freedom) and Colorado (sexual freedom) demonstrate that the freedom of expression, in its broadest sense, has been attacked. The AIVD reports that Muslim-dissidents in the Netherlands face pressure
136 Wiktorowicz (n 119), 208. 137
Ibid.
138 Ibid.
139 Ineke Roex, ‘Leven als de profeet in Nederland’ (DPhil thesis, Universiteit van Amsterdam 2013), 18. 140 AIVD, ‘Transformatie van het jihadisme in Nederland’ [2014] <
https://www.aivd.nl/publicaties/publicaties/2014/06/30/transformatie-van-het-jihadisme-in-nederland> accessed 2 October 2016, 33-34.
141 AIVD, ‘Radicale Dawa in verandering’ [2007] <
https://www.aivd.nl/actueel/nieuws/2007/10/09/aivd-signaleert-nieuwe-fase-in-ontwikkeling-islamitisch-radicalisme> accessed 2 October 2016, 27.
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to conform to Islamic behavioral norms, especially women, homosexuals and liberals.143 Also, the emergence of an ex-Muslim association was seen as a threat by Salafists, which resulted in numerous death threats and a low number of members due to continuing controversy.144 Efforts to question certain Islamic dogmas from within have continuously been made impossible. In 2011, a debate on Islam and democracy with a lesbian Muslim speaker was obstructed by political Salafi’s,145 while Salman Rushdie was forced to go into hiding due to ongoing death threats. Moreover, even non-Muslims can succumb to pressure. After the murder of Van Gogh, former prime-minister Balkenende warned journalists to take a step backward in their criticism;146 then Minister of Justice Donner pleaded to reintroduce the prohibition of blasphemy, a dead letter;147 professor Van der Horst planned to discuss anti-Semitism within Islam in his valedictory address but was pressured by the Rector Magnificus to withdraw those passages due to security threats.148 In view of the foregoing, one can conclude that the freedom of expression is not acknowledged by Salafi’s. All the previous characteristics and principles, in various degrees, demonstrate that Salafism rejects the safeguards for the liberal constitutional state. One can conclude that the militant democracy doctrine justifies the removal of the religious privilege in order to combat antidemocratic activities within Salafi church communities.
In the next and final paragraph, the far reaching judgments of the ECtHR will be discussed in order to determine whether the decision by the Dutch judiciary to ban a Salafi mosque would be upheld by the ECtHR.
§4.2 The ECtHR on the prohibition and dissolution of church communities
As the ECtHR is able to hand out binding decisions on its members states, it is necessary to discuss whether the Convention and the jurisprudence of the ECtHR obliges the abolition of a church community acting contrary to public order. Thus, in this paragraph it will be examined whether, after having exhausted all domestic remedies, the decision by the Dutch judiciary to prohibit and dissolve a Salafi mosque, would be upheld by the Court in Strasbourg.
143 AIVD (n 140). 144 Ibid, 24.
145 Robin de Wever, ‘Onruststokers in De Balie, wat wil Shariah4Belgium?’ (Trouw, 8 December 2011) <
http://www.trouw.nl/tr/nl/4728/Islam/article/detail/3069964/2011/12/08/Onruststokers-in-De-Balie-wat-wil-Shariah4Belgium.dhtml> accessed 3 December 2016.
146 Bastiaan Rijpkema, ‘Onze democratie kan niet zonder een strak regime’ (NRC, 16 December 2015) <
https://www.nrc.nl/nieuws/2015/12/16/democratie-mist-strak-regime-1567401-a1171364> accessed 3 December 2016.
147 Ibid.
148 Margreet Fogteloo, ‘Slappe knieën’ (De Groene Amsterdammer, 30 June 2006) <
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The ECtHR first reviews whether the restrictions of Article 11(2) of the ECHR are applicable. The first condition is whether the interference is prescribed by law. As a legal person, a Salafi mosque must be familiar with Title 1 of book 2 CC and must have foreseen that its activities might be contrary to the spirit of the constitutional state and the Convention. As the provision is ‘formulated with sufficient precision’, it offers a sufficient basis to prevent arbitrary application.149 Thus, the interference was prescribed by law, accessible and could have been foreseen by the church community.
The second condition is whether the interference served a legitimate aim. An interference is justified if its aim is to protect ‘public safety, national security, the rights and freedoms of others and the prevention of crime.’150 With regards to what was discussed in the previous paragraph, one can stress that an interference serves a legitimate aim. For example, the practice of holding a religious wedding before a civil one is against the law; the societal pressure Salafi’s exert towards dissidents; the ideology that Salafi’s spread which lays the groundwork for radicalization,151 and, in the worst case, violence, thus affecting national security; Salafi mosques spreading literature that encourages female genital mutilation and the killing of homosexuals;152 recruitment for Jihad, and so on.153 The continuing controversies surrounding antidemocratic activities, originating from Salafi ideology, justify the interference as it serves the legitimate aims listed in Refah.
The third condition, necessary in a democratic society, requires a more extensive discussion. The ECtHR has stated that democracy cannot exist without pluralism, and therefore, pluralism must be actively protected.154 The ECtHR has created two conditions for political parties if it wants to change the constitutional structures of the state and continue enjoying the freedoms offered by the Convention.155 Firstly, the means used to that end must be legal and democratic. According to the AIVD, Salafi’s urge other followers to provoke and polarize society in order to create interreligious and interethnic tensions.156 The intolerant isolationism that arises from the tensions causes discrimination, hate speech and sedition with the ultimate aim of creating local parallel legal systems wherein the divine law is
149 Refah (n 7), para 57. 150 Ibid, para 67.
151 AIVD & NCTV (n 111), 9.
152 Janny Groen & Lidy Nicolasen, ‘Islam-gids: ‘Gooi homo’s van hoge gebouwen’’ (De Volkskrant, 22 april
2004) < http://www.volkskrant.nl/binnenland/islam-gids-gooi-homo-s-van-hoge-gebouwen~a714523> accessed 3 December 2016.
153 Roex, Van Stiphout & Tillie (n 118), 29. 154 Handyside (n 46) & Dahlab (n 47) 155 Refah (n 7), para 98.
156
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dominant.157 These undemocratic activities do not harm the democratic constitutional state as a whole, yet they do undermine the principle of ‘one law for all’ within Dutch jurisdiction, and as such, the constitutional state is diminished. Secondly, the change proposed must itself be compatible with fundamental democratic principles. Although church communities do not propose change in the way a political party as Refah did, their ultimate aim of creating a Sharia state, or at least, creating parallel legal systems wherein Sharia law rules, does not correspond with fundamental democratic principles. The type of democracy the ECtHR envisages is one that is liberal, ‘constituted by popular elections, the rule of law and human rights.’158 According to the ECtHR, ‘the maintenance and further realization of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights.’159 The implementation of Sharia law which breaches the human rights of numerous minority groups; the irreversible act of abolishing political democracy, and; dismantling the rule of law by unlawfully creating legal pluralism demonstrate that the changes proposed are not compatible with fundamental democratic principles. Also, even if the change proclaimed is in conformity with these principles, the ECtHR warns that parties may conceal their true objectives and intentions.160 As a result, actions and positions leaders defend must be reviewed as well.161
The question of whether there is a ‘pressing social need’ to prohibit and dissolve a Salafi mosque depends on the circumstances. Due to external factors such as the war in Syria, the reestablishment of the caliphate by ISIL and the tensions between Shiites and Sunnis, the appeal of Salafism is growing.162 As a result, there is a great risk that Salafi’s returning from war regions might continue violent acts in the Netherlands.163 Other acts that point towards a pressing social need are signs of indoctrination. The AIVD reports that in an Islamic educational institution leaded by a Salafi, children are explicitly taught not to become friends with non-Muslims.164 Others report of Islamic children refusing to study the evolution theory, the Holocaust and homosexuality.165 During Quran classes students are encouraged to
157
Ibid, 76-77.
158 Boyle (n 54).
159 United Communist Party of Turkey (n 39), para 45. 160 Ibid, para 58. 161 Ibid. 162 AIVD & NCTV (n 111), 8. 163 AIVD (n 139), 53. 164 Ibid, 33. 165
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correct others if they act in an un-Islamic way.166 These warning signs show that the philosophy of Sharia and its effects on society will continue in the future. And even if there is no pressing need, the ECtHR has ruled that states may take preventive measures ‘if it is established that such a movement has started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy.’167 The ECtHR also stresses that the exceptions of Article 11 must be construed strictly for political parties, therefore, a contrario, the prohibition of church communities allows more leeway.168
As Salafi mosques are not political parties, a demonstrable moment to prove the negative effect of Salafism on society is not present. Salafi’s do not aim to seize power through elections. Therefore, the appropriate time for dissolution-test needs to be approached from a different angle. In Refah, the ECtHR allowed a dissolution at that time due to the large possibility that Refah would form a majoritarian government and thus could implement its antidemocratic agenda.169 While Refah aimed to take power through general elections, Salafi’s enforce their dogmatic version of the truth and its philosophy through intimidation of, and moral pressure on individuals.170 The moral authority that Salafi’s enjoy amongst conservative Muslims has increased the influence of Salafi’s on the Muslim community by, e.g., increasingly entering the boards of mosques.171 In a democracy, the freedom of religion is a fundamental right, however, this freedom can only be enjoyed within the legal framework of democracy, the rule of law and fundamental rights.172 Advocacy for the abolition of democracy, even without violence, conflicts with the essence of democracy.173 Van den Bergh stated that this cannot be permitted. On the one hand, the abolition of parties needs to be delayed as far as possible in order to combat such parties in the democratic arena.174 On the other hand, minorities within the Muslim community might demand an early dissolution
166 Andreas Kouwenhoven, ‘Iedereen bij moskee wist van shariahuwelijken’ (NRC, 1 November 2014) <
https://www.nrc.nl/nieuws/2014/11/01/iedereen-bij-moskee-wist-van-shariahuwelijken-1436272-a454193> accessed 3 December 2016 & Shirin Musa, ‘Een vrouw die naar vrijheid streeft, verdient onze steun – toch?’ (NRC, 9 February 2016) < https://www.nrc.nl/nieuws/2016/02/09/een-vrouw-die-naar-vrijheid-streeft-verdient-onz-1586426-a1039536> accessed 3 December 2016.
167 Refah (n 7), para 102. 168
United Communist Party of Turkey (n 39), para 46.
169 Refah (n 7), para 110. 170 AIVD & NCTV (n 111), 13 171 Ibid, 6 & 10.
172 Leo Neels, ‘Godsdienst kan geen rechtsbron zijn’ (Knack, 20 February 2017) <
http://www.knack.be/nieuws/belgie/godsdienst-kan-geen-rechtsbron-zijn/article-opinion-817555.html> accessed 7 March 2017.
173 Rijpkema (n 20). 174 Ibid, 198.
