Minority Rights Challenged by the Legally Pluralist Coexistence of a Nation’s Civil Law with Islamic law: A Case-study of Greece

This blogpost serves as a summary of my LL.M thesis which concerns the problematic coexistence of Islamic Law with Greek Civil Law regarding the protection of the Muslim minority in Western Thrace in Greece. The aim of this post is to emphasise the importance of the conceptual understanding when confronting legal issues that entail a different set of values and political complicacies. The coexistence of two or multiple legal regimes within a country can raise several legal issues. For instance, the co-presence of Greece’s civil law with Sharia underlines precisely the judicial controversy and the differences between the Islamic values and those of the Greek Constitution and human rights law. Let us not forget that Greece is also a member State to several international human rights conventions and has the responsibility to respect, protect, and fulfil its human rights obligations. Notably, a multiple set of different legal frameworks and regimes are entangled for the protection of the Muslim minority’s rights. 

The Molla Sali v. Greece challenged the compatibility of a religious community’s separate legal status with the principles enshrined by the European Convention on Human Rights (ECHR). The case accentuated the debatable compatibility of Sharia with the ECHR principles. The applicant of the Molla Sali v. Greece case belongs to the Muslim minority of Western Thrace in Greece to which the applicable legal regime for inheritance and family issues is Sharia. Molla Sali complained that the implementation of religious adjudication to her issue by the Greek Court of Cassation deprived her of her right concerning the protection of property.

The outcome of the case has a significant impact on the parallel operation of Sharia law and the Greek Civil law for the minority. Before the case of Molla Sali, Sharia was compulsorily applied for the settlement of private law issues. The dual existence of these legal systems in Greece as a distinct setting for the religious minority in Thrace is a result of numerous international treaties between Greece and Turkey. The most important legal text that sets up the legal framework for the protection of the minorities in Greece is the 1923 Treaty of Lausanne. It is the most determining legal document regarding the legal status of the minorities in the country.  The Greek legislation’s interpretation of Articles 42 and 45 of the Lausanne Treaty is of great significance. The mandatory application of the Sharia law for the Muslim minority is nowhere explicitly provided in the Treaty. Instead, it mentions that the Government needs to adopt appropriate measures for the minority’s interpersonal disputes on family and inheritance law following the customs of the minority. Thus, the establishment of the Islamic adjudication system for the minority is viewed by the Greek Court of Cassation as stemming from international obligations set by the Treaty.

The European Court of Human Rights (ECtHR) did not accept the Greek Government’s arguments that the mandatory implementation of Sharia was to protect the distinctive characteristics of the minority according to its obligations set from the Treaty of Lausanne. The Court reiterates in its Judgement that according to its case-law, freedom of religion does not entail the requirement for the Contracting States to establish a specific legal system for the protection of the special status of a religious community that requires particular entitlements. It, therefore, did not commend that a State proceeded to the establishment of a religious regime just to secure the distinct needs of the minority. 

Moreover, the ECtHR in its Judgement in the Molla Sali v Greece case did not address the debatable compatibility of Islamic Law and Human Rights Law despite its opportunity to do so. Considering the Court’s general approach according to its previous case law towards Sharia (Refah Partisi v. Turkey), no determination is given on to what degree Sharia’s operation in Greece conforms with the Convention. At the same time, the Greek State was not requested by the Court to abolish the enforcement of Sharia for the minority. What the Court did was only to condemn the mandatory character of Sharia’s operation “but not Sharia itself.”

Consequently, the case of Molla Sali v. Greece introduced another version of the legal parallel regime in Greece. Its outcome is Sharia’s optional implementation according to the reformed Law in Greece. Precisely, in case of a disagreement between the involved parties, the dispute will be settled by civil law. The right to exit the minority’s legal order and the right to choose the civil law instead of Sharia highlights the right to self-identification, which agrees with the ECHR. Therefore, the new law seems to have ended a state of discrimination for the minority in Thrace. However, the complicacy in this case is that the individual choice of a minority member may conflict with the minority’s identity with religious law.

The automatic dispute resolution in cases of disagreement by the Greek Civil Code undermines the weightiness of Sharia within the context of Islam and the customs of Muslim communities in general. It needs to be stressed that even the optional implementation of Sharia law could undermine the religious legal system of the minority and its customs. Other members who identify themselves with their religion and its sacred rules will probably feel side-lined by the indirect imposition of civil law. Considering that there is no delivered Judgment on the new law yet, the religious freedom’s individualistic approach will be put under test in the future.

Finally, aside from the case’s legal problematic, a contextual understanding is essential. It must be underlined that concerns involving the minority in Thrace have often been put in the middle of bilateral political disputes between Turkey and Greece. The Greek Government’s hesitancy regarding the law’s modification for the Muslim minority’s interpersonal disputes settlement, before the case of Molla Sali, is partly due to those political sensitivities. Any change in the applicable law in Thrace could incite Turkey’s demand for “changes to the Lausanne Treaty’s” provisions, which are ongoing and not limited to the Muslim minority’s situation.

In conclusion, apart from the legal assessment of the case, a more conceptual and anthropological approach as an assessment tool, could have been a solid base for the peculiar situation in Greece. This case could have highlighted the multi-faceted role of minorities regarding the stabilization of bilateral State relations. Potentially, it could also have illustrated how the human rights mandate is applied to such complicated conditions. Especially, the implementation of law in conjunction to the complexity of internal and external political situations of States. 

  Source: Greece: Status of Minorities | Law Library of Congress (loc.gov)

Guest Post by Niki Manafa. Niki is a postgraduate LL.M Student of Utrecht University's Public International Law Programme. She has worked as a Trainee at the International Organisation for Migration in Athens, Greece and in the Greek Consulate in Munich, Germany and has also undertaken several research internships related to human rights law and international relations.