On 19 December 2018, the European Court of Human Rights (ECtHR) issued a highly anticipated judgment regarding the application of Sharia law for family law disputes arising among the Turkish Muslim minority in Greece. In Molla Sali v. Greece, (no. 20452/14) the Grand Chamber unanimously held that there had been a violation of Art. 14 (prohibition of discrimination) of the ECHR, read in conjunction with Art. 1 of Protocol No. 1 (protection of property) to the Convention.

The Molla Sali case concerns the recognition of Islamic Sharia Law by Greek courts in inheritance disputes between Greek citizens who are members of the Muslim Turkish minority. This judicial practice stems from the 1923 Treaty of Lausanne, which officially recognizes the Muslims as a minority in Greece and allows for the application of Islamic sharia law to the members of this minority in matters of personal status law.

In this case, Greek Courts applied Shariah law contrary to the will of the deceased (the applicant’s husband, also Muslim) who had bequeathed his whole estate to his wife under a will drawn up according to the provisions of the Greek Civil Code. The domestic courts considered the will devoid of effect because they deemed that the law applicable to the case was Islamic inheritance law. Mrs. Molla Sali, the applicant, who had been deprived of three-quarters of her inheritance, claimed that she had suffered a difference in treatment on the grounds of religion because had her husband not been of Muslim faith, she would have inherited the whole estate.

This blog post aims to provide an analysis of how the European Court of Human Rights scrutinized a unique, century-old (yet problematic) practice of legal pluralism in Molla Sali v. Greece. In this regard, it first examines how the Treaty of Lausanne regulates the status of the Muslim minority of Western Thrace and the ECtHR’s interpretation of the treaty vis-à-vis Greek jurisprudence. Then it turns to the Court’s negative reading of the right to free self-identification for religious minorities within the context of non-discrimination. Before concluding, this post will discuss the previous concerns of international organizations regarding the mandatory application of Shariah law, Greece’s introduction of the new opt-in legislation, and include a few comments on the judgment.

Minority protection under the Treaty of Lausanne: Greek approach vs. the Strasbourg approach

Greece has been the only country in Europe which applies Sharia law to a section of its citizens against their wishes, as noted by the Court in its decision in Molla Sali. This practice is grounded in the 1923 Treaty of Lausanne, Greece’s duty to honour its international obligations and the specific situation of the Thrace Muslim minority.  Furthermore, in its settled case-law, the Greek Court of Cassation has ruled that matters of inheritance within the Muslim minority had to be dealt with by the mufti in accordance with the rules of Sharia law, for the legitimate aim of the protection of the Thrace Muslim minority.

The 1923 Treaty of Lausanne provides the following:

 

“Article 42 § 1

The Turkish Government undertakes to take, as regards the non-Moslem minorities, in so far as concerns their family law or personal status, measures permitting the settlement of these questions in accordance with the customs of those minorities.

Article 43

Turkish nationals belonging to non-Moslem minorities shall not be compelled to perform any act which constitutes a violation of their faith or religious observance, and shall not be placed under any disability by reason of their refusal to attend Courts of Law or to perform any legal business on their weekly day of rest.

This provision, however, shall not exempt such Turkish nationals from such obligations as shall be imposed upon all other Turkish nationals for the preservation of public order.

Article 45

The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Moslem minority in her territory.”

Thus, when the mandatory application of Sharia law for family law disputes between the members of the Western Thrace Muslim community is compared to the actual text of Article 42, which refers to “permitting the settlement of these questions in accordance with…customs”, it can be concluded that the Greek practice is based more on the interpretation and case-law of the Court of Cassation, rather than a strict textual approach to the international obligations under the Treaty of Lausanne.

Indeed, the ECtHR was not convinced by Greece’s justification and has ruled that the “…Treaty of Lausanne did not impose any obligation on Greece to apply Sharia law. More specifically, the Treaty of Lausanne did not explicitly mention the jurisdiction of the mufti but guaranteed the religious distinctiveness of the Greek Muslim community” (§151).

The negative aspect of the right to free-self identification

In addition to its interpretation of the obligations under the Treaty of Lausanne, the ECtHR emphasized freedom of religion and the negative aspect of the right to free self-identification for religious minorities. The Court stated that according to its case-law, “freedom of religion does not require the Contracting States to create a particular legal framework in order to grant religious communities a special status entailing specific privileges. Nevertheless, a State which has created such a status must ensure that the criteria established for a group’s entitlement to it are applied in a non-discriminatory manner” (§155).

The Grand Chamber further ruled that “[r]efusing members of a religious minority the right to voluntarily opt for and benefit from ordinary law amounts not only to discriminatory treatment but also to a breach of a right of cardinal importance in the field of protection of minorities, that is to say, the right to free self-identification”  (§157). Accordingly, the negative aspect of this right, which is the right to choose not to be treated as a member of a minority is not limited like the positive aspect of that right: it is completely free, provided that it is an informed and free choice of the individual. It must thus be respected both by the other members of the minority and by the State itself.

Previously raised concerns

Concerns about the discriminatory aspect of the application of Sharia law to Greek Muslims in Western Thrace has been repeatedly expressed by several international organizations and civil society in recent years. The reports of the Commissioner for Human Rights of the Council of Europe, the most recent report of the Working Group on Greece’s Universal Periodic Review , and CEDAW’s most recent Concluding Observations on Greece have all noted that the application of Sharia law to family and inheritance law cases may lead to discrimination against Muslim women. However, no significant efforts to introduce new legislation had been made until recently.

In addition to the problematic application of Sharia law, other discrimination issues concerning the Turkish Muslim minority in Western Thrace are worthy of note. In several decisions (Tourkiki Enosi Xanthis and Others v. Greece, Emin and others v. Greece),  the ECtHR has upheld that certain legal processes (dismissal of registrations requests, orders for dissolution) against minority associations bearing the term “Turkish” in their title, constitute a violation of Art. 11 (freedom of assembly and association). A narrow interpretation of the Treaty of Lausanne by Greece, which leads to an acceptance of a Muslim minority but the denial of the ethnic Turkish identity of the minority communities causes many problems including the relative underdevelopment of the Turkish minorities.  This situation has even led to the prosecution of politicians referring to the ethnic character of the Western Thrace Turkish minority (Sadik Ahmet v. Greece).

The much-anticipated opt-in legislation

The controversy around the mandatory application of Sharia law by muftis peaked when Mrs. Sali took her case to the ECtHR. As a result, legislation allowing the Western Thrace Muslim community members to opt into the civil court system and to go before a Greek civil court for divorce, child custody and inheritance matters instead of muftis, was passed in the Greek parliament with overwhelming support on 9 January 2018, and came into force on 15 January 2018, nearly a year before the judgment was issued. The system of sharia courts and state-appointed muftis has not, however, been fully abolished but the members of the Western Thrace Muslim community are now granted the right to choose, instead, to go before Greek courts to resolve the disputes in question.   The new legislation was also strongly supported by Prime Minister Tsipras, and described as a “historic step”. The provisions of the new law had no impact on the situation of the applicant in the Molla Sali case  but the Court expressed its satisfaction with the long overdue legislative change in its judgment (§160).

Thoughts on the possibility of intersectional discrimination claims, and further impact of Molla Sali

In her application, Mrs. Sali did not claim intersectional discrimination based on sex and religion, and limited her claims to discrimination based on religion. However, the Mufti tribunals and the extensive application of Sharia law has been repeatedly criticized, specifically, for failing to safeguard Muslim women’s rights. Indeed, the Grand Chamber in its judgment (§70-77, §154) and especially Judge Mits, in his concurring opinion (§9), referred to the findings of international bodies and emphasized the concern about the discrimination created in particular against women and children. Having said this, and despite the importance of the gender aspect, a discrimination claim on the ground of sex could not be raised because of an important element in this case: interestingly, in Molla Sali, the Grand Chamber has examined and found discrimination by association. In other words, the violation of Article 14 in conjunction with Article 1 of Protocol No.1 was found not based on the applicant’s, but instead on her husband’s, Muslim faith, in accordance with the applicant’s claims. This blog post, however, agrees with Judge Mits’ concurring opinion, that the violations in question were grounded in the religion of both the applicant and her husband (§13).

In sum, Molla Sali v. Greece perfectly exemplifies the practical difficulties and complexities of modern legal pluralism in the context of the operation of Sharia law in the Greek judicial system. In parallel with the developments in Greece, on 25 November 2018, the cabinet of Tunisia approved a bill providing equal inheritance rights for men and women, with a possibility to opt-out in favour of the application of Sharia law. Can these newly emerging opt-in/opt-out mechanisms start a new trend for legal pluralism? That remains to be seen. However, for the time being, this post proposes that the opt-in/opt-out mechanisms are promising alternatives for balancing freedom of religion and gender equality.