21/07/2017: Written comments on the Case Chatitze Molla Sali v. Greece (on sharia law)

            GREEK HELSINKI MONITOR (GHM)
Address: P.O. Box 60820, GR-15304 Glyka Nera
Telephone: (+30) 2103472259 Fax: (+30) 2106018760
e-mail: panayotedimitras@gmail.com website: https://greekhelsinki.wordpress.com


 

Written comments on the Case Chatitze Molla Sali v. Greece (no. 20452/14)

21 September 2017

The Court’s question addressed here:

“Le refus d’appliquer au cas de la requérante, en raison de sa confession, le droit commun applicable à tous les citoyens grecs et le règlement de la succession de son mari défunt selon la loi musulmane sacrée alors que le testament était établi selon les dispositions du code civil ont-ils porté atteinte au droit de la requérante à un procès équitable, garanti par l’article 6 § 1, pris isolément et en combinaison avec l’article 14 de la Convention?”

The question addresses the issue of compliance of Islamic Canonical Law (Sharia) as applied in Greece with the pertinent international human rights law principles.

  1. UN CEDAW and HRCttee on Sharia in  Greece

GHM has repeatedly made to UN Treaty Bodies submissions on the incompatibility between Sharia and international human rights law, countering Greece’s submissions to the same bodies arguing on the contrary that Sharia does comply. Invariably, the UN Treaty Bodies issued recommendations to Greece to either abolish the application of Sharia or harmonize its application with the corresponding international treaties. Most recently, in its 2013 concluding observations, UN CEDAW stated inter alia the following:[1]

Committee on the Elimination of Discrimination against Women

Concluding observations on the seventh periodic report of Greece adopted by the Committee at its fifty fourth session (11 February – 1 March 2013)

(…) Marriage and family relations

  1. The Committee is concerned about the situation of women in the State party in the area of marriage and inheritance. The Committee remains concerned about the inconsistent application of the State law in all communities. In this regard, the Committee is concerned about the non-application of the general law of the State party to the Muslim community of Thrace regarding marriage and inheritance. (…)
  2. The Committee recommends the State party to fully harmonize the application of local Sharia law and general law in the State party with the provisions on non-discrimination of the Convention, in particular with regard to marriage and inheritance; (…)

The UN CEDAW had previously received a special GHM submission on Sharia whose content relevant to the present intervention is reprinted here.

In the April 2005 Conclusions and Recommendations on Greece by the UN Human Rights Committee, the following related concern and recommendation were included:[2]

“8. The Committee is concerned about the impediments that Muslim women might face as a result of the non-application of the general law of Greece to the Muslim minority on matters such as marriage and inheritance. (articles 3 and 23)

The Committee urges the State party to increase the awareness of Muslim women of their rights and remedies and to ensure that they benefit from the provisions of Greek civil law.”

In July 2006, an authoritative study on Sharia and Muslim Greek Citizens was published (Sakkoulas publisher). Its author Yannis Ktistakis was at the time a Lecturer on Human Rights Law at the University of Thrace; most importantly, the published version of the 6th National Report of Greece to CEDAW (Athens, June 2005) mentions him as the scientific editor of the report. The study was prefaced by George Koumantos, the late Professor Emeritus of University of Athens, Greece’s leading family law expert and co-drafter of the 1982 reform of family law. GHM summarizes hereafter the findings (all references are to Ktistakis).

 “In the European continent, only Greece continues to implement the sharia for its citizens … which in the way it is interpreted and applied by Holy Courts in Western Thrace represents the most anachronistic form of modern Islam [Ktistakis, pp. 24, 158]. (…) Hence, a section of the Greek population is condemned to live under an archaic status of Family and Inheritance Law, that is contrary to the modern aspects of respect of human rights, and is moreover not susceptible to evolution (since, of course, the Koranic rules can never evolve as no resurrection of the Prophet is foreseen…)… After a detailed examination of all international treaties binding Greece, the study concludes that the implementation of the sharia should not have been recognized by the courts. This has been argued in the past (for example in my 1988 manual ‘Family Law’) but the current negative conclusion is based on an exhaustive analysis: no international treaty obliges Greece to implement the sharia… The failure of Greek courts to investigate the conformity of [mufti] rulings based on the sharia with the Greek constitution and the international treaties that have far superior validity when compared with common Greek laws is an omission which is twice unacceptable since there is no international commitment to implement the sharia.” [Koumantos, p. 14-15].

“The validity of sharia in the Greek legal system is based on Article 4 of Law 147/1914. [p. 27]. The prevailing legal opinion is that this provision introduces a personal legal system of local character that is an exception concerning only the Greek Muslims living in Western Thrace. Greek Muslims living outside Western Thrace are subjected exclusively to the provisions of the Civil Code. [pp. 35-6]. Article 5 paragraph 2 of Law 1920/1991 states: ‘The Mufti has jurisdiction among Muslim Greek citizens of his region on marriages, divorces, alimonies, custodies, guardianships, emancipation of minors, Muslim wills, and indiviso inheritance, if these relations are ruled by the sharia’” [p. 47]

Inheritance rights are governed only by sharia, i.e. by indiviso inheritance (feraiz) [p. 78]. Men are entitled to twice as much inheritance as women of the same kinship [p. 78]. If the deceased had only one daughter, she would be entitled only to half the inheritance (as opposed to common civil law where she would get all the inheritance) [p. 80]. It is noteworthy though that, while almost all Muslims in Thrace uphold the sharia for weddings, divorces and custody, they ignore it for inheritance issues, either transferring property to their children while they are still alive or turning to secular courts [p. 82].

The study concludes with a thorough review of international treaties and conventions binding Greece. There is a reference to the fact that after the end of the Greek-Turkish war and the exchange of populations between the two countries, Turkey abolished in 1926 the sharia and asked Greece to do likewise in 1931, but Greece refused to do so for its “Turkish minority” –as then Prime Minister Eleftherios Venizelos called it, a term banned in today’s Greece [pp. 9, 104-106]. The study makes clear that, contrary to Greek state claims, “no provision of the Treaty of Lausanne (not even Article 42 para.1) makes obligatory the implementation of the sharia or the functioning of Holy Courts for the minority members” [p. 115]. Naturally, it is argued that the deviation for the Greek Civil Code for the minority members is in violation of the fundamental principles of modern human rights protection [p. 116]. Greek courts in confirming the muftis’ rulings repeatedly check if they were issued within the muftis’ jurisdictions, but argue that they are not in a position to judge if the provisions of sharia were applied correctly and the evidence before the mufti was correctly appraised [p. 118]. Hence only 1 out of 2679 Holy Court rulings since 1991 was overturned by a Greek secular court as unconstitutional: this 152/1991 Single-Member First Instance Court of Rodopi ruling found unconstitutional the granting of 14/24 of the inheritance to the son and 7/24 to the daughter of the deceased. Making a mockery of that court decision, the mufti issued a new decision replacing the fractions with the term “corresponding shares” and the same court was this time satisfied (ruling 166/1991). In only eight cases were the decisions appealed to the Multi-Member First Instance Court on grounds that the appellant had not be summoned (a very common practice at the expense of Muslim women) and thus there was a violation of a fair hearing according to Article 6 paragraph 1 of the ECHR: all appeals were rejected, in one case even arguing that the ECHR’s Articles 9 (religious freedom) and 12 (right to marry) allow the Greek courts to respect and apply the sharia and not the legal principles of Western societies (11/2001 ruling of Multi-Member First Instance Court of Xanthi). It need be noted that the European Court of Human Rights has on the contrary considered the sharia incompatible with the ECHR [pp. 127-9, 150-1]. Otherwise, there is no effective remedy (as called for by Article 13 of the ECHR) against sharia decisions. Greek courts cannot review the merits of decisions which are based on an unwritten law that Greek judges ignore, while they are also written [the mufti decisions] in a language (Ottoman Turkish) that they cannot read, and whose translations are not always reliable [pp. 151-8].

      2. PACE and Commissioner on Human Rights on Sharia in Greece

On 7 October 2016, the PACE Committee on Legal Affairs and Human Rights published an introductory memorandum on the compatibility of Sharia with the ECHR addressing also the situation in Greece. The relevant excerpts are reprinted here.

Compatibility of Sharia law with the European Convention on Human Rights:

Can States Parties to the Convention be signatories of the ‘Cairo Declaration’?[3]

Introductory memorandum

Rapporteur: Ms Meritxell MATEU, Andorra, Alliance of Liberals and Democrats for Europe

43. In theory, every Muslim citizen in Greece is able to choose freely between a mufti and a Greek court. 79 However, this right to choose is interpreted very narrowly by the Greek Supreme Court, and the coexistence of this parallel legal system has been much criticised. 80 In its Judgment No. 1097/2007 of 16 May 2007, the Greek Supreme Court acknowledged that for Greek Muslims inheritance of unencumbered property was strictly governed by ‘Islamic holy law’ and not the Greek Civil Code. Under ‘Islamic holy law’ it is not possible, amongst other things, to inherit through a will. A number of experts and international bodies have noted an extension of the muftis’ authority and application of Sharia law to Greek Muslims living outside Western Thrace and even outside Greece (in Australia, under Ruling No. 12/2001 of the Komotini Religious Court; in the United Kingdom, under Ruling No. 146/2002 of the Xanthi Religious Court), with no real review of muftis’ rulings by the Greek civil courts. Law No. 1920/1991 extends muftis’ jurisdiction to cover maintenance, guardianship and trusteeship, and emancipation of minors.

Previously, in 2010, PACE had called for the abolition of Sharia in Greece:

PACE Resolution 1704 (2010)1 Freedom of religion and other human rights for non-Muslim minorities in Turkey and for the Muslim minority in Thrace (eastern Greece)[4]

“18.5. … the Assembly urges the Greek authorities to… abolish the application of Sharia law – which raises serious questions of compatibility with the European Convention on Human Rights – as recommended by the Commissioner for Human Rights;”

The recommendation by the Commissioner for Human Rights of the Council of Europe invoked by PACE was included in his report after his 2008 visit to Greece:

REPORT by Thomas Hammarberg Commissioner for Human Rights of the Council of Europe Following his visit to Greece on 8-10 December 2008[5]

(…) 35. The Commissioner shares the comments of the above competent national and international human rights institutions whose reports have clearly indicated that the Sharia Law-related practice as outlined above, based notably on early 20th century treaties concluded between Greece and the Ottoman Empire and later Turkey, raises serious issues of compatibility with the undertakings of Greece following the ratification of the post-1948, core international and European human rights treaties, especially those relating to the human rights of the child and of women, which should, in any case, be effectively applied and prevail. (…)

61. The Commissioner, however, wishes to note that he is favourably positioned towards the withdrawal of the judicial competence from Muftis, given the serious, aforementioned issues of compatibility of this practice with international and European human rights standards, and towards the subsequent, direct election of the Muftis (solely as Sharia Law experts) by the members of the Muslim minority, in conformity with Article 15 and the standards set by the Advisory Committee of the Framework Convention for the Protection of National Minorities. In the meantime, the Greek authorities are urged to take promptly all necessary measures for strengthening the substantive review and control by domestic courts of the Muftis’ judicial decisions so that they are effectively and fully in line with the standards of international and European human rights law. (…)

     3. ECtHR and UK Lords case-law on Sharia

The Court has ruled that Sharia is incompatible with the Convention in a 2003 seminal judgment:

In the case of Refah Partisi (the Welfare Party) and Others v. Turkey
(13 February 2003 – Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98)[6]

  1. The Court concurs in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention:

“72. Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, 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. … In the Court’s view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.”

Ten years later, the Court confirmed its ruling:

In the case of Kasymakhunov and Saybatalov v. Russia
(13 March 2013 -Applications nos. 26261/05 and 26377/06)[7]

111. However, it has previously found a regime based on sharia to be incompatible with the fundamental principles of democracy, particularly with regard to its criminal law and criminal procedure, 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. An organisation whose actions seem to be aimed at introducing sharia in a State Party to the Convention can hardly be regarded as complying with the democratic ideal that underlies the whole of the Convention (see Refah Partisi (the Welfare Party) and Others,cited above, § 123).

In the meantime, in 2008, the UK’s House of Lords ruled that Sharia is incompatible with UK law as it is incompatible with the ECHR:

Judgments – EM (Lebanon) (FC) (Appellant) (FC) v Secretary of State for the Home Department (Respondent)[8]
[23 October 2008] UKHL 64 on appeal from: [2006]EWCA Civ 1531

The fact is however that Shari’a law as it is applied in Lebanon was created by and for men in a male dominated society. The place of the mother in the life of a child under that system is quite different under that law from that which is guaranteed in the Contracting States by article 8 of the Convention read in conjunction with article 14. There is no place in it for equal rights between men and women.

Conclusion

From all the above, the Court should confirm its case law and draw the same conclusion with the other human rights bodies of the UN and the Council of Europe that Sharia is generally incompatible with the Convention and every other international human rights instrument and in particular in the way it is applied in Greece inter alia in cases of inheritance.


[1] http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/GRC/CO/7&Lang=En

[2] Human Rights Committee (HRC), Eighty-third session, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant. Concluding observations of the Human Rights Committee: Greece (CCPR/CO/83/GRC), 25 April 2005; available at:    http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.83.GRC.En?OpenDocument

[3] http://www.assembly.coe.int/Committee/JUR/ajdoc282016.pdf

[4] Text adopted by the Assembly on 27 January 2010 (6th Sitting) http://www.mfa.gr/images/docs/ellinotourkiko/resolution_1704_hunault.pdf

[5]https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2954590&SecMode=1&DocId=1368674&Usage=2

[6] http://hudoc.echr.coe.int/eng?i=001-60936

[7] http://hudoc.echr.coe.int/eng?i=001-117127

[8] http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/leban-1.htm

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