Types of the family in the case law of the European Court ‎of Human Rights, with presenting Islamic analysis

Document Type : Research Paper

Authors

1 Women Research Center, Alzahra University, Tehran, Iran‎

2 Department of Family and Women's Studies, Faculty of Social Sciences and Economics , Alzahra ‎University, Tehran, Iran

Abstract

Context and Aim: When examined issues related to family, the concept and types of the family is assumed as an obvious fact. However, with deep fundamental differences between different perspectives, may be this types offered by each of the schools of thought and law do not match together. As far as in some cases, this discrepancy has progressed to the point of general contradiction. In this regard, in order to create a common understanding of the different concepts and types of the family in Islam and the West, in this paper case law of the European Court of Human Rights will be studied. Which is one of the most important human rights judicial institutions and its case law and practice in the field of international law has the legal validity. In this article the case law of the European Court of Human Rights has been examined as an example of thinking based on secular ideas. Also, the view of Islam on the issues raised in the cases of the Court was studied to explain the issue.
Research Method: The present article, with a legal approach and based on an analytical exploratory research, seeks to answer the question that; what is the types of the family in western societies? And what do the findings, which are based on the case law of the European Court of Human Rights, what does it have to do with Islamic culture?
Findings: After studying the procedure of the European Court of Human Rights and the Islamic perspective, we found that: The scope of relationships that include the legal protection of the right to family life based on the court's practice is much narrower than the concept of family or Rahem in Islam, which is under the special protection of Islamic legislator and these relationships cannot be severed under any justification. Some of these relationships are consistent with what is supported and emphasized in Islam under the title of “Sele Arham"[1]; such as the relationship between spouses, parents and children, grandparents, sisters, brothers and aunts and uncles.  Among these, some of these relationships are not only unacceptable in Islam, rather, heavy punishments are also enforced. Such as free relationship based on sexual orientation outside marriage contract and illegitimate relationship which in case of approving such relationship under ‘family’, it would lead to family breakdown and degeneration as defined by Islam and tradition and would cause disorder in nurturing children and future generations.
Conclusion: Finally, the important point to consider is that from Islamic viewpoint, family is defined based on the lineal and marriage and the existence or absence of the aforementioned basic elements are not effective in approving or disapproving relationship within family life. However, the European Court of Human Rights procedure despite the importance of genetic relations(lineal) and relations based on marriage, the basic elements within the court procedure are determining and effective when identifying and approving relations based on family life  in such a way that in certain cases  when there are basic elements for clarifying family at court without genetic relations,  the relationship is  described  as family and even in some other cases  in spite of genetic relations,  in case of absence of basic elements, the relationship is not regarded within family life  but recognized as private life. In fact, it is the humanistic approach that in court procedure the mutual enjoyment is considered as a basic element in family and based on this notion by overlooking legal frameworks such as the principle of marriage between man and woman within family, attempts are made to change these frameworks and offer newly emerging definitions on family. Unlike the Islamic view, the concept and examples of family within the western views are variable and are described based on social norms. Hence, the courts unlike the Islamic viewpoint do not consider marriage only based on religious teachings for family formation and development as it has been stressed upon many times. Therefore, considering the absence of compatibility of this thinking with religious obligations, and the intertwining of public morality with the Iranian public interests within Islamic topics, the enforcement by the governance and its compatibility with human rights issues in Iran, it has led to protect the Islamic views for our country. Since issues such as white marriage and homosexuality and other illegal sexual orientation can in no way be compatible with the Islamic doctrine and it would seriously contradict public morality and our national interests.
 

1. The Principle of Continuity Devotion to Family.

Keywords

Main Subjects

References

  1. v. United Kingdom, App.No.8000/08, 20 September 2011.
  2. v. Switzerland, App.No.39350/13, ECtHR, 30 June 2015.
  3. H. Khan v. the United Kingdom, App.No.6222/10, 20 December 2011.
  4. Abdulaziz, Cabales & Balkandali v. UK, 24 April 1985, 15/1983/71/107-109.
  5. Affaire Chavdarov c. Bulgarie, Requête no 3465/03, 21 décembre 2010.
  6. Ahmadinejad, Maryam, Aminroaya,  Yaser, Legal Nature of the Margin of Appreciaton Doctrine, Foreign Policy Quarterly , 30, Number 2 , Serial Number 118 July 2015, Pages 115-139 (In Persian).
  7. Ahmadinejad, Maryam, Aminroaya,  Yaser, Women's Right to Equal Recognition with Men from the Perspective of the International System of Human Rights and Islam, vol. 11, Issue 2, Autumn & Winter, October 2020,Pages 405-430 (In Persian).
  8. Al-Ḥurr al-ʿĀmili, Muhammad bin al-Ḥasan(1988), Wasā'il al-Shīʿa, vol. 21, Qom: Institution Ahl Al-Bait (p.b.u.th) (In Arabic).
  9. Al-Kulayni, Muhammad ibn Ya'qub(1986), Al-Kafi, vol. 2, Tehran: Dar Al-kitab Al-islamiyah (In Arabic).
  10. Al-Kulayni, Muhammad ibn Ya'qub(1986), Al-Kafi, vol. 5, Tehran: Dar Al-kitab Al-islamiyah (In Arabic).
  11. al-Kulayni, Muhammad ibn Ya'qub(1996), Al-Kafi, Mohammad-Baqer Kamarehei, vol. 4, Qom: Osveh (In Persian).
  12. Al-Nashif &Others v. Bulgaria, App.No.50963/99, 20 June 2002.
  13. Babiarz v. Poland, App.No.1955/10, 10 January 2017, Dissenting Opinion of Judge Pinto Dealbuquerque.
  14. Bayev & Others v. Russia, App.Nos.67667/09 and 2 others, 20 June 2017.
  15. Beizaras & Levickas v. Lithuania, App.No.41288/15, 14 January 2020.
  16. Berrehab v. The Netherlands, App.No.10730/84, 28 May 1988.
  17. Boughanemi v. France, App.No.22070/93, 24 April 1996.
  18. Boyle v. UK, App.No.16580/90, Eruopean Commission on Human Rights, 9 February 1993.
  19. Bronda v. Italy, 40/1997/824/1030, 9 June 1998.
  20. Butt v. Norway, App.No.47017/09, 4 December 2012.
  21. Costello, Cathryn (2016). The Human Rights of Migrants in European Law, UK:Oxford University Press.
  22. Dufalová, Lenka, Tamara Cipková, Katarína Burdová (August 2019). legal consequences of marriage and cohabitation under the Slovak law, ISSN: 2386-4567.
  23. El Boujaïdi v. France, 123/1996/742/941, 26 September 1997
  24. Elsholz v. Germany, App.No.25735/94, ECtHR Grand Chamber, 13 July 2001.
  25. Evers v. Germany, App.No.17895/14, 28 May 2020
  26. N. v. United Kingdom, App.No.3202/09, admissibility decision, 17 September 2013.
  27. Harris, David, Michael O'Boyle, Ed Bates, Carla Buckley(2014). Law of the European Convention on Human Rights, UK:Oxford University Press.
  28. Ibn Babawayh, Abu Ja'far Muhammad ibn 'Ali(1992), Who is Not in the Presence of a Jurisprudent, Ali Akbar Ghaffari, vol. 3, Qom:Islamic Publication Office (In Arabic).
  29. Ibn Babawayh, Abu Ja'far Muhammad ibn 'Ali(2006), Causes of the Legal Rulings, Qom:davari (In Arabic).
  30. Ibn Babawayh, Abu Ja'far Muhammad ibn 'Ali, UYUN AKHBAR AL- REZA (as) (The source of traditions on Imam Reza), Mohammad Taqi Agha Najafi Esfahani, vol. 2, Tehran: Islamic Scientific Publications (In Persian).
  31. ILGA-Europe staff (May 2013). Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe 2013.
  32. Jama Warsame v. Canada, UN Human Rights Committee, CCPR/C/102/D/1959/2010, 1 September 2011.
  33. Kamarehei, Mohammad-Baqer(1985), Etiquette -Translation of volume 16 of Bihar al-anwar, Tehran: Eslamiyeh (In Persian).
  34. Kashani, Fathollah(1314 S.H), Manhaj Al-Sadeghin Fi Elzäm Al-Mokhälefin, vol. 3, Tehran: Eslamiyeh (In Persian).
  35. Kautzor v. Germany, App.No.23338/09, 22 March 2012.
  36. Kocherov & Sergeyeva v. Russia, App.No.16899/13, 29 March 2016.
  37. Kroon & Others v. the Netherlands, App.No.18535/91, 27 October 1994.
  38. v. Finland, App.No.25651/94, 27 April 2000.
  39. v. The Netherlands, App.No.45582/99, 1 June 2004.
  40. Levakovic v. Denmark, App.No.7841/14, 23 October 2018, FINAL23/01/2019.
  41. Majlesi, Mohammad-Baqer(1982-1983), Bihar al-anwar, vol. 38, Beirut: Arab Heritage Revival House. Majlesi, Mohammad-Baqer(1982-1983), Bihar al-anwar, vol. 71, Beirut: Arab Heritage Revival House (In Arabic).
  42. Majlesi, Mohammad-Baqer(1982-1983), Bihar al-anwar, vol. 76, Beirut: Arab Heritage Revival House (In Arabic).
  43. Majlesi, Mohammad-Baqer(1985), Roza Al-Mutaqeen in description of Who is Not in the Presence of a Jurisprudent, Editor: Hossein Mousavi Kermani, vol. 5, Qom: Koushanbour Islamic Cultural Institute (In Arabic).
  44. Makarem Shirazi, Nasser(1992), Tafsir Nemone, vol. 3, Tehran: Dar Al-kitab Al-islamiyah (In Persian).
  45. Marckx v. Belgium, App.No.6833/74, 13 June 1979.
  46. Maslov v. Austria, Application no. 1638/03, Grand Chamber, 23 June 2008.
  47. Moretti & Benedetti v. Italy, App.No.16318/07, 27 April 2010.
  48. Mousavi Al-Khomeini, Seyyed Ruhollah(2004), Tahrir al-Wasile, , vol. 3, Qom:Islamic Publication Office (In Persian).
  49. Moustaquim v.Belgium, App.No.12313/86,18 February 1991.
  50. Mughniyeh, Mohammad Javad(1999), Translation of Tafsir Al-Kashif Musa Danesh, vol. 6, Qom: Book Garden Qom (In Persian).
  51. Mustafa & Morgan Akin v. Turkey, App.No.4694/03,6 April 2010.
  52. NBC News, Hungary amends constitution to redefine family, effectively banning gay adoption, Dec. 15, 2020, Source: Reuters, https://www.nbcnews.com/feature/nbc-out/hungary-amends-constitution-redefine-family-effectively-banning-gay-adoption-n1251251.
  53. Nouri, Hossein bin Muhammad Tāqi(1987), Mustadrak al-Wasāʾil wa-mustanbaṭ al-masāʾil, vol. 15, Qom: Institution Ahl Al-Bait (p.b.u.th) (In Arabic).
  54. Novruk & Others v. Russia, App.Nos. 31039/11, 48511/11,76810/12,14618/13&13817/14, 15March2016.
  55. Okhovat, Ahmadreza (2012), Thoughtfulness in the field of Bayt , Tehran: Publishing of the Qur'an and Ahl al-Bayt of Prophethood (In Persian).
  56. Onur v. the United Kingdom, App.No.27319/07, 17 February 2009.
  57. Paradiso & Campanelli v.Italy[GC], App.No.25358/12, 24 January 2017.
  58. Pla & Puncernau v. Andorra, App.No.69498/01,13 July 2004.
  59. Polat v. Austria, App.No.12886/16, 20 July 2021.
  60. Qaraati, Mohsen(2009), Tafsir Noor, 7, Tehran:Lessons from the Holy Qur'an Culture Center (In Persian).
  61. Roland Hofmann v. Germany, App.No.1289/09, 23 February 2010.
  62. Russian Federation, Federal Law no. 135-FZ of 29 June 2013.
  63. Shariati Najafabadi, Elham (2013), Rights of the natural child, Tehran: Khorsandy (In Persian).
  64. Slivenko v.Latvia[GC], App.No.48321/99, 9 October 2003.
  65. Strand Lobben & Others v. Norway, App.No.37283/13, 10 September 2019.
  66. S. & J.J. v. Norway, App.No.15633/15, 11 October 2016.
  67. Tabatabaei, Seyed Mohammad Hossein(1374 S.H), Translation of Tafsir Al-Mizan, volume 16, Qom: Islamic Publications Office (In Persian).
  68. Tabresi, Ali ibn Hasan(1965), Mishkat al-anwar fi ghurar al-akhbar, Najaf: Haidari Library (In Arabic).
  69. Taleghani, Mahmoud(1362 S.H), A light of Quran, vol. 1, Tehran: Enteshar Company (In Persian).
  70. Taleghani, Mahmoud(1362H), A light of Quran, vol. 4, Tehran: Enteshar Company (In Persian).
  71. Tayyeb, Abdul Hussein, (1990), A Good Explanation in the Interpretation of the Quran, vol. 2,Tehran:Islam Publication (In Persian).
  72. The Committee of Ministers of the Council of Europe, Resolution (70) 15 of 15 May 1970 on the social protection of unmarried mothers and their children.
  73. Topčić-Rosenberg v. Croatia, App.No.19391/11, 14 November 2013.
  74. D. & others v. Russia, App.No.72931/10, 9 April 2019.
  75. Valdís Fjölnisdóttir & Others v. Iceland, App.No.71552/17, 18 May 2021.
  76. Vallianatos & Others v.Greece[GC], App.Nos. 29381/09 and 32684/09, 7 November 2013.
  77. Vesna KRUŠKIĆ & others v. Croatia, App.No.10140/13, 25 November 2014.
  78. Wagner & J.M.W.L. v. Luxembourg, App.No.76240/01, 28 June 2007.
  79. X & Others v.Austria[GC], (App.No.19010/07) 19 February 2013.
  80. X, Y & Z v. the United Kingdom, App.No.21830/93, 22 April 1997.
  81. S. & O.S v. Russia, App.No.17665/17, 15 June 2021.
  82. Zaieţ v. Romania, App.No.44958/05, 24 March 2015.
  83. Zeynodini, Fateme, Razavi, Seyed Mohamad Hassan, The Requirements of Introducing the Common Property System to the Iranian Matrimonial Regime with a view to the Quebec Matrimonial Regime, Family Research Quarterly, vol. 16, Number 1 , Serial Number 1, June 2019, Pages 7-24 (In Persian).
  84. Znamenskaya v.Russia, App.No.77785/01, 2 June 2005.
Comparative Law Review
Volume 14, Issue 1
Spring & Summer 2023
July 2023
Pages 55-84

Files

Share

How to cite

Statistics