Molla Sali v. Greece and Undermining the Autonomy of Greece’s Muslims in Thrace: Equality versus Community

The European Court of Human Rights (“ECtHR”) in its recent Molla Sali v. Greece decision (Dec. 19, 2018) radically undermined the right of Greece’s Thrace Muslim community to preserve its legal autonomy within the structure of the Greek state and the broader European Union. First, the background: Greece’s Muslim population, which resided historically in the Thrace region of Greece, are ethnically Turkish, but were exempt from the population transfers that took place between Greece and the Republic of Turkey in the wake of World War I. Pursuant to a series of treaties between Greece and first the Ottoman Empire and then the Republic of Turkey, the Greek government undertook to preserve the Turkish Muslim minority population’s religious freedoms and autonomy with respect to family law and related matters such as succession. The 1913 Treaty of Athens was the most explicit in this regard, with Article 11 of that treaty vesting jurisdiction over “Muslims in matters of marriage, divorce, maintenance payments (néfaca), guardianship, trusteeship, emancipation of minors, [and] Islamic wills” in the mufti of the Muslim community.[1] Article 14 § 1 of the Treaty of Sèvres required the Greek government “to take all necessary measures in relation to Moslems to enable questions of family law and personal status to be regulated in accordance with Moslem usage.”[2] Finally, the 1923 Treaty of Lausanne required the Turkish government to adopt “as regards the non-Moslem minorities [of Turkey], 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,” and required Greece to adopt reciprocal measures toward its Muslim minority.[3]

Greek courts, according to the ECtHR at least, adopted different interpretations of the meaning of these treaties in Greek domestic law. The Greek Supreme Administrative Court interpreted the Treaty of Lausanne as imposing only an obligation of non-discrimination toward minorities, and thus took it as abrogating the commitments set out under the 1913 Treaty of Athens. The civil bench of the Court of Cassation, however, held that the 1913 Treaty of Athens was still in force, and was the source of Greece’s obligation to apply Islamic family law to its Muslim citizens, and that the special status of Greece’s Muslims did not lapse as a result of the adoption of the Civil Code in 1946. As a result of these treaty relations, Greece was, anomalously, the only member of the European Union applying Islamic law as a formal part of its legal system, thus setting the stage for this litigation.

Now, the dispute that gave rise to this case: Given the explicit hostility the ECtHR has displayed toward Islamic law in decisions such as Dahlab, Refah Party, and Şahin, among others, it was inevitable that the communal autonomy that Greek’s Muslim population enjoyed would come under threat. What is perhaps surprising was the form in which that legal attack came. One might have expected, for example, a challenge to one or other aspect of the various gendered rules of Islamic law, e.g., rules regulating divorce or succession. But in Molla Sali, all the parties in interest were women, and no rule implicating a problematic gender-based classification was involved. In this case, a widow sought to inherit pursuant to her dead husband’s public will that he had executed prior to his death. In his will, he left all his property to her, disinheriting completely his two living sisters. The decedent had no other legal heirs.

Under applicable principles of Islamic law, the widow was entitled to one-quarter of the estate, the two surviving sisters would share two-thirds of the remaining three-quarters of the estate, giving each sister 1/4th of the decedent’s estate (1/2 * 2/3 * 3/4= 6/24). The remaining one-quarter would escheat to the public treasury. Assuming that the Greek Muslim community lacks a public treasury, the widow and the sisters would divide the unallocated 1/4, in accordance with their respective claims to the estate, with the final distribution amounting to approximately 30% for the widow, and approximately 35% for each sister.

The widow was initially successful in Greece’s lower courts in bypassing the Islamic law of succession, but the Court of Cassation sided with the sisters and held that Islamic law had to apply to the distribution of the husband’s estate. The ECtHR, however, overturned the Court of Cassation, and held that the husband’s estate should pass via the terms of his public will, and not Islamic law. In so doing, it held that the relevant comparator was the rights of a non-Muslim Greek citizen to dispose of his property pursuant to a public will, not other members of the Greek Turkish Muslim community.

Greek inheritance law does not provide testators with complete freedom to dispose of their property as they wish; rather, the decedent must provide for each heir a minimum share equal to one-half the share the heir would have received had the decedent died intestate. The commitment to secure minimum entitlements to the heirs gives Greek inheritance law a resemblance to Islamic inheritance law, which also restricts testamentary freedom in favor of guaranteeing the decedents’ legal heirs a determinate share of the estate. Just like Islamic law, Greek law distinguishes between near relations and more distant relations, with near relations excluding more distant relations from inheriting except through testamentary disposition. The most important conflict between Greek and Islamic inheritance schemes, then, is the classification of heirs as primary and secondary: While Greek law limits the primary heirs to the surviving spouse and the decedent’s children, Islamic law expands the definition of primary heirs to include surviving siblings. This is no doubt driven by Islamic law’s broader concern for preserving an extended family, particularly in circumstances where the decedent does not leave a surviving son. (As far as I know, there is never a situation in Islamic inheritance law of an unallocated share when the decedent dies leaving a son.)

In its resolution of the conflict between Greek inheritance law and Islamic inheritance law, the ECtHR gave no weight to the role of the rule recognizing siblings as heirs of the first degree in preserving “the customs of [the Turkish minority].” It instead read down Greece’s international commitments to its Turkish Muslims as merely a guarantee of non-discrimination, with no weight given to preserving the community of Greek Muslims of Turkish heritage. This is despite the fact that the Greek state itself, for more than a century, had understood those commitments as providing a limited form of self-government to that community.

It is illuminating to contrast the ECtHR’s approach to the autonomy of subnational groups with the US approach to the self-governing rights of federally recognized Indian tribes, and the qualified application of constitutional equal protection norms to Indian law-making. The Indian Civil Rights Act of 1968, for example, imposed on Indian tribes the duty “in exercising powers of self-government [not to] . . . deny to any person within its jurisdiction the equal protection of its laws,”[4] (emphasis added) meaning the tribe’s laws, not the laws of the United States. Courts have therefore upheld laws that what would otherwise have constituted invidious discrimination if they were satisfied that such rules were necessary to preserve the continued existence of the tribe.[5]

If the ECtHR had adopted such an approach in this case, it would have inquired into the importance of the extended family in maintaining the Turkish Muslim community in Greece. If it determined that it was of vital importance, it might have found in favor of the sisters and required the widow to share the estate with the decedent’s sisters in accordance with black-letter Hanafī law. It might have taken a bolder approach and adopted a hybrid approach, recognizing the validity of the decedent’s public will, but applying Greek law’s notion of a minimum share for all statutory heirs in light of Islamic law’s inclusion of siblings along with the spouse and children as first-degree heirs. This would have given each sister one-eighth of the decedent’s estate rather than completely disinheriting them as was the outcome of the ECtHR decision.

By reducing Greece’s treaty commitments merely to an obligation of non-discrimination, and therefore rendering the jurisdiction of the Muslim community over its own affairs contingent on the individual’s assent—as though this were a question of each individual’s religious freedom—the ECtHR took a radically assimilationist position toward Greece’s Muslim minority. This outcome, on any fair reading of the treaties in question, however, seems precisely to be the result that the treaties were intended to prevent.



[1] Molla Sali v. Greece, Eur. Ct. H.R. ¶63 (2018) available at{%22fulltext%22:[%22molla%22],%22itemid%22:[%22001-188985%22]}.

[2] Id. at ¶64.

[3] Id. at ¶65.

[4] 25 U.S.C. § 1302(8) (2006).

[5] Daly v. United States, 483 F.2d 700, 705 (8th Cir. 1973) (holding that a tribal rule requiring that at least one-half of councilmen from each district were one-half or more “of Indian blood,” did not violate the Indian Civil Rights Act guarantee of equal protection so long as the rule is “applied uniformly”).

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