This is part 1 of a four-part series of posts will examine the sharīʿa courts in Greece, starting with the establishment of the courts in the 1920s and concluding with suggested avenues for reform of the courts in Greece following the European Court of Human Rights (ECtHR)’s 2018 decision in the Molla Sali v. Greece case.
The genealogy of the sharīʿa courts
The Balkans, a region where Christianity and Islam have come into close contact since the 14thcentury, is an interesting study in legal pluralism. The Ottoman millet system, under which distinct ethnic-religious communities—including Muslims—were granted partial institutional autonomy within the Empire, was, by the late 19thcentury, a convenient legal paradigm to accommodate (Muslim) minorities within the new (Christian) nation-states. Greece retained a legal regime that to some extent granted legal autonomy to the Greek Muslim population that survived a population exchange with Turkey at the end of the Greco-Turkish War of 1919-1922. The Lausanne Treaty granted the Muslim population of (Western) Thrace in Greece a special minority protection regime as a reversed neo-millet of a Muslim community within a Christian state. The Muslim minority of Thrace is seen as a community preserving its own schools, religious-judicial authorities, and properties (waqfs). Within that framework, sharīʿa is applied by the local muftīs who have special jurisdiction over certain matters of personal status. The applicable norms are only related to a series of family and inheritance disputes and are based on the Ḥanafī law school as it evolved in the Ottoman period.
Permitting the application of sharīʿa within a “Western” legal order, not to immigrants but to a specific group of citizens, certainly represents a peculiar situation in which legal pluralism has been partially maintained in Greece in relation to Muslim Greek citizens since 1881.[1] The case of the Islamic courts in Thrace is an illuminating case study for exploring the compliance of sharīʿawith international human rights law[2] and the eventual reform of sharīʿa and its courts.
The legal and social structures of Greece’s Muslim communities have continuously maintained a strong communal profile. After the annexation of Thessalia (1881) and the Balkan Wars (1912-13), the community’s organizational structures, schools and foundations (waqfs), as well as religious hierarchies (muftīs) were integrated into a modern legal system.[3] In the Greek legal order, the muftī became both judge and interpreter of sharīʿa in cases pertaining to Muslim disputes involving personal status, namely disputes of family and inheritance law.[4] With the legislation of Act 2345 (1920)[5] concerning the authority and status of the muftis, sharīʿa was established as the law on a series of matters of personal status for the Muslims of Greece.
At the end of the Greco-Turkish War of 1919-22, the fall of the Ottoman Empire, and the establishment of the Turkish Republic, the Lausanne Conference adopted measures sanctioned by international law that effectively involved ethnic cleansing in a bid to achieve homogeneous nation-states in Greece and Turkey. The population exchange between the two countries was decided as a counterweight to the Greek Orthodox population already expelled from Asia Minor. Over 400,000 Muslims of Greece were forced to migrate to Turkey. However, under the Convention of Lausanne (January 1923), the Muslims of Western Thrace were exempted from the population exchange, as were the Greek Orthodox community of Istanbul and the Greeks of the islands of Imvros and Tenedos. The subsequent Treaty of Lausanne (July 1923) guaranteed special minority rights to non-Muslim Turkish citizens in Turkey and to Muslim citizens in Greece who were exempted from the population exchange.
The jurisdiction of the muftīto apply sharīʿa in Thrace was previously regulated by the Treaty of Sèvreson minoritiesin Greece (1920), and its provisions were confirmed by the Treaty of Lausanne (1923). The latter, which constitutes the foundation for the protection of the minority of Thrace, states in Article 42, Paragraph 1:
The [Greek] government undertakes, as regards [Muslim] 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.
This provision remains to date the cornerstone of the legal regime governing the sharīʿa courts of Thrace.
The discussion of the status of the muftīwithin the Greek and European legal regimes inevitably touches upon the issue of how to accommodate community-based laws within a uniform legal order. This legal pluralism must negotiate the demands for integration, the preservation of minority identity, and the relationship between individual and collective identity as potential fields of normative action. The religious and political elite of the Turkish-Muslim minority of Thrace rejects any criticism of the applicability of sharīʿa, arguing that its application is safeguarded under the minority protection regime which should remain “untouchable.”
The untouchable muftī
The legal content of Act 2345 (1920) on the authority and status of the muftīs did not change even when the law was replaced by Act 1920 (1991), which retained both the substantive law and the procedure of the Act 2345 (1920). Under this regime, the muftī system has survived, albeit with some limitations. Within their areas of jurisdiction, the three current muftīs of Thrace (serving in Komotini, Xanthi, and Didymoteiho) have jurisdiction over family law and inheritance disputes between Muslim Greek citizens. At the same time, they are the highest-ranking administrative officials for the Muslim communities within their respective jurisdictions. They supervise the mosques and religious officials in each place of worship, as well as the cemeteries and religious foundations (waqfs). They also issue exhortations and legal advice to the faithful, direct charity work, and perform marriages.
Act 1920 (1991) on Muslim Religious Servants
Article 5a. The muftī exerts in his region duties provided by the present Act, as well the religious duties according to the Sacred Law of Islam. [The muftī] appoints, supervises, and fires the Muslim religious servants, celebrates or ratifies religious marriages between Muslims, and issues legal opinions in matters related to the Sacred Law of Islam.
Article 5b. The muftī has jurisdiction among Muslims Greek citizens of his region in matters of marriage, divorce, minors’ emancipation, custody, Islamic testaments of ab intestat succession as far as these legal relations are governed by the Sacred Law of Islam.[6]
According to Article 7 of the Act, the muftī has to be a Greek citizen because “[t]he muftī . . . is considered to be a civil servant” and a judge. The qualifications and competence of muftīs are not on a par with those required for other judges, which is one of the reasons that the system has been criticized. The three muftīs of Thrace are not trained in official judicial procedures before they are appointed by the government[7]. Moreover, as they are also not necessarily well-educated in Islamic law, they adjudicate cases on the basis of a vague understanding of Islamic law: There are no textual sources that the muftīs can refer to; there is no guidance in Greek legislation; there is no guidance from Greek courts or from foreign courts where the Ḥanafī school of Islamic jurisprudence is applied.
In 2018, the age of retirement of the muftīs was set at 67, according to Act 4559.[8] As a result, the muftīs of Xanthi and Komotini had to retire and were replaced. Thus, a long tradition according to which the muftīs served with no age limitations was broken. New ad interim muftīs have been appointed in all three Muftiates. According to the Minister of Education and Religious Affairs a new mode of selection would be set up, which is still pending. The discussion over a more liberal/communitarian selection method was once again triggered by Resolution 2253 (2019) adopted by the Parliamentary Assembly of the Council of Europe that urged Greece to “allow the Muslim minority to choose freely its muftis as purely religious leaders (that is, without judicial powers), through election, thereby abolishing the application of Sharia law […]”[9]. The Greek government has considered only how procedural norms applied by the sharīʿa courts would comply with human rights. The status of the muftī-judge would be subject more and more to norms that govern civil servants, and the Muftiates would become more and more like state authorities.
In June 2019, the Presidential Decree No. 52[10], which was drafted in accordance to the authorizing Act 4511/2018[11] issued procedural reforms that were triggered by the case Molla Sali. These reforms provided each Muftiate with a new administrative structure, designated the “Directorate of Cases under the Jurisdiction of the Muftī,” and supported by a series of public servants to staff each Directorate. The new arrangement created new structures within the Muftiates at the expense of the state and ensured that the secretariat of the sharīʿa courts would be standardized and staffed to provide assistance to the muftī-judge. This arguably encroaches on the institutional autonomy guaranteed to a minority religious community under both the ECHR and the Treaty of Lausanne. Sharīʿa courts are becoming closer to a state court model than to a community institution. Lastly, it is questionable that the sharīʿa courts are put under the administration of the Ministry of Education and Religious Affairs and not the Ministry of Justice.
The muftī as part of Greek-Turkish antagonism
Turkey has maintained a strong interest and involvement in Muslim minority issues in Greece, as has Greece in Orthodox Christian issues in Turkey. In the 1930s and 1950s, Turkey had suggested the abolition of the muftī’s jurisdiction; whereas after the late-1980s, Turkey politically supported the election of pro-Turkish muftīs.
The ongoing political dispute since the late 1980s over the control of the MuftīOffices of Thrace makes the legal system of this Greek minority a field of contention within the broader Greek-Turkish antagonism. Before 1990, the muftīs were, in practice, appointed following an agreement between the minority’s elders and the government.[12] In the period from 1985 to 1990, Greek governments became concerned about controlling the influence of the Turkish government on the muftīs, and passed Act 1920 (1991), which enabled the Greek government to supervise appointment of the muftīs (Article 1). The appointment process for muftīs by the Greek government has renewed Greek-Turkish hostilities.
The muftī selection process has also triggered strong political reactions among pro-Turkish circles of the Greek Muslim minority, starting in the late 1980s and existing even to this day. This led to an intense standoff, with the minority rallying around the then-independent deputies elected in the Greek parliament (1989-1993), invoking their Turkish identity. Since then, along with the three officially recognized muftīs (in Xanthi, Komotini, and Didymotyho), there are two parallel muftīs (inXanthi and Komotini) elected by a limited electorate. These parallel muftīscontrol most of Thrace’s mosques and act as political leaders with the support of the Turkish Consulate of Komotini.
The issue of the election of two “parallel” muftīs, not recognized by the government and persecuted for “usurping a known religion,” ended up in the European Court of Human Rights (ECtHR) after lengthy procedures before the penal and administrative Greek courts. A series of rulings in the Serifand Aggacases (the two “parallel” muftīs) concluded that Greece had violated Articles 9 and 6 of the European Convention on Human Rights (ECHR) for interfering with the applicants’ rights to be recognized as religious leaders by their own religious community—a measure not “necessary in a democratic society for the protection of public order.”[13] The ECtHR, in upholding the applicants’ rights to manifest their religion, recognized that social tensions may arise in situations where a religious or any other community becomes divided; it suggested that this was one of the unavoidable consequences of pluralism.[14]
The selection methods for muftīs reflect the tension that the dual nature of this position entails. On the one hand, the muftīs’ appointment by the state may infringe on the moral obligation to respect the community’s will to choose a religious leader. On the other, since he is a judge, election of the muftī by the community contravenes the fundamental constitutional rules of Greece about the status of judges as founded in the European legal order.[15]
Notes to part 1:
[1] For an account of the legal regime governing Muslims in Greece see Konstantinos Tsitselikis, Old and New Islam in Greece: From Historical Minorities to Immigrant Newcomers (2012).
[2] Such as the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
[3] The Treaty of Constantinople (1881), and then the Treaty of Athens (1913), established the special jurisdiction of the muftīs over the more than half-a-million Muslims who became Greek citizens. A series of Greek laws implemented the provisions of the Treaty of Athens (Article 11 of the Act 4734/1913 and Article 4 of Act 147/1914). Later, sharīʿa courts chaired by a single judge, the muftī, were organized by Act 2345/1920.
[4]The muftīs in Greece have been granted jurisdiction over personal status issues of the Muslims with Greek citizenship since the treaties of Constantinople (1881), Athens (1913), and Lausanne (1923). Before the population exchange, there were about fifty Muftī Offices throughout Greece that also had a prominent political role as representatives of the Muslim communities. Today there are three muftīs in the region of Thrace heading their respective Muftī Offices.
[5] Nomos (1920:2345) Peri prosorinou Arhimoufti tn en to krati Mousoylmanon kai peri dioiikiseon ton Mousoulmanikon koinotiton [On the Interim Arch-Muftīof the Muslims within the State and on the Administration of the Muslim Communities], Ephemeris tes Kyverneseos tes Hallenikes Demokratias [E.K.E.D.]1920, A:148.
[6] Nomos (1991:1920) Kyrosi tis apo 24is Dekemvriou 1990 Praxis Nomothetikou Periehomenou ‘Peri mousoulmanon thriskeutikon Leitourgon’ [Certification of the Act adopted on December 24, 1990 on Muslim Religious Servants], Ephemeris tes Kyverneseos tes Hallenikes Demokratias [E.K.E.D.]1991, A:11.
[7] The appointed muftīs are not trained in Greece. They are selected among Muslim Greek citizens who have been educated in Islamic studies abroad, in Saudi Arabia or Egypt, in most of the cases. They apply norms of sharīʿa law of the Ḥanafī school of Islamic jurisprudence.
[8] Nomos (2018: 4559) Panepistimio Ioanninon, Ionio Panepistimio kai alles diataxeis [On the University of Ioannina, Ionian University and other provisions], Ephemeris tes Kyverneseos tes Hallenikes Demokratias [E.K.E.D.]2018, A:142.
[9] Eur. Parl. Ass., Sharia, the Cairo Declaration and the European Convention on Human Rights, 4th Sitt., Res. No. 2253, para. 13 (2019).
[10] PD (2019:52) Dikonomikoi kanones epi ypotheseon dikaodosias Mouftidon Thrakis. Systasi, organosi kai leitoyrgia Dieuthinsis ypotheseon dikaiodosias Mouftidon Thrakis [Procedural norms on cases belonging to the jurisdiction of the Muftis of Thace. Establishment, organization and operation of the Department of cases belonging to the jurisdiction of the Muftos of Thrace], Ephemeris tes Kyverneseos tes Hallenikes Demokratias [E.K.E.D.]2019, A:90.
[11] Nomos (2018:4511) Tropopoiisi tou arthrou 5 tis apo 24.12.1990 Praxis Nomothetikou Periohomenou Peri Mousoulmanikon Thriskeutikon Leitourgon (Α΄182) pou kyrothike me to arthro mono tou n. 1920/1991 (Α’11) [Amendment of Article 5 of the Legal Content Act of December 24, 1990 on Muslim Religious Officials (A’ 182), certified through the article of law 1920/1991 (A’ 11)],Ephemeris tes Kyverneseos tes Hallenikes Demokratias [E.K.E.D.]2018, A:182.
[12] Vemund Aarbakke, The Muslim Minority of Greek Thrace(2000) (unpublished Ph.D. dissertation, University of Bergen) (on file with author).
[13] Serif v. Greece, 1999-IX Eur. Ct. H.R.; Agga v. Greece (No. 2), Eur. Ct. H.R. (2002), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60690; Agga v. Greece (No. 3), Eur. Ct. H.R. (2006), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-76317; Agga v. Greece (No. 4), Eur. Ct. H.R. (2006), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-76319.
[14] Serif v. Greece, supra note 13, at para. 53. In a similar case concerning the muftī of Bulgaria, the Court held: “In democratic societies the State does not need to take measures to ensure that religious communities are brought under a unified leadership.” Hasan v. Bulgaria, 2000-XI Eur. Ct. H.R. 78.
[15] In most European countries, a judge cannot be elected; he or she must be appointed by the state and must enjoy independence from community pressure. According to Article 88 of the Greek Constitution, judges are appointed for life until retirement.