This is part 2 of a four-part series of posts will examine thesharīʿa 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.
Adjudicating personal status: legal discrepancies and the content of sharīʿa
The coexistence of two legal systems in Thrace, applying both Islamic law and the Greek Civil Code, creates a number of discrepancies.[1] These discrepancies arise from the dual authority of the muftīs as legal and religious leaders, creating procedural problems and raising competency and authority issues, resulting in jurisdictional ambiguities related to mixed marriages and problems of enforceability by foreign courts. This structure also creates concerns in relation to substantive law, e.g., about whether muftīs should apply the principle of non-discrimination or comply with Greek constitutional norms, and whether Greek courts have control over these decisions to ensure their constitutionality and conformity with European human rights expectations.[2] Sharīʿa procedural and substantial law in many cases differs when compared to the norms of Greek civil law. The most ambiguous cases relate to gender equality and the child’s best interest as guaranteed by the Greek Constitution and international law.
This post will examine the procedural concerns, while the next post will examine the substantive cleavages between the sharīʿa courts and Greek and international law.
Procedural Concerns & Reforms
The equality of the litigants is not safeguarded when male litigants are given a stronger position in the muftīs’ courts compared to female litigants (e.g., in divorce or inheritance cases). Nor are the rights to representation by an attorney in law and due process through predictable and transparent application of the rule of law guaranteed. In practice, there are also both substantive and procedural differences in the administration of justice between the three religious courts. Sharīʿa, as applied by the muftīs’ courts of Thrace, is not standardized or codified and is left to the broad interpretation of the judge. These norms are embodied in the Qurʾān and the ḥadīth according to the muftī’s own reading of the law, and thus sometimes the implementation of law differs from court to court. This ambiguity is exacerbated as long the the muftīs’ decisions is notproperly justified if not at all.
As explained in the previous post, Act 1920/1991 acknowledges the muftī as a judge whose jurisdiction should in theory be concurrent to mainstream civil courts, and the muftī’s decisions should not contravene the Constitution as far as the free will of the litigant is concerned. The muftī’s jurisdiction should not be mandatory or exclusive.The judicial competence of the muftīshould be preferential and supplementary in the sense that Muslims should be free, upon agreement, to choose between the civil courts and Islamic jurisdiction. In case of disagreement on jurisdiction, the civil court should be obligatory as it is for any citizen. Muslim litigants would have the right to opt for civil law instead of sharīʿa, and as to the applicability of sharīʿa, the implementation of Greek law would not depend on the religious convictions of the citizens. However, until 2018, the possibility of choosing between the two jurisdictions was not clear and, as a last resort in many cases, the Court of Cassation said that sharīʿa should be mandatorily applied to Muslims.In practice, the possibility for a Muslim to resolve a family law or inheritance law dispute before a Greek civil court had been very limited. In most of the cases brought before a civil court, the latter had referred the case to the muftī court as the only and exclusive competent judicial authority (this practice has been ratified by the Court of Cassation in Judgment 2138/2013).[3] Therefore, for years, it was a normal occurrence for female Muslim plaintiffs to have restricted access to civil courts, which undermined their equality and freedom to choose their court of choice.
An amendment to the muftī’s law was submitted in December 2017 before Parliament, a few days before the hearing in the case of Molla Sali v. Greece before the Grand Chamber of the ECtHR. The new law of January 2018 (Act 4511/ 2018, A’ 2)[4] made clear that the civil courts will have jurisdiction by default for all civil disputes, unless both of the litigants make an agreement to have their case adjudicated by the muftī. According to the new law, sharīʿa courts have jurisdiction only when both litigants wish to submit to them their case. In all other cases, jurisdiction belongs to the civil courts. Therefore, civil courts are competent to adjudicate cases when Muslim litigants cannot agree upon jurisdiction. Although the new law required the enactment of further procedural norms on the judicial process before the mufti-judge in order to be fully implemented, a new amendment to the law in October required immediate implementation.[5] These amendments anticipated the ruling of the ECtHR in December 2018 that found a violation of the right to property in combination with discrimination in Molla Sali v. Greece[6] on the grounds that the Court of Cassation had imposed sharīʿa without the explicit wish of the members of the Muslim minority of Thrace.[7] However, the question of incompatibility with the Constitution and the ECHR of the content of the applicable law by the muftī still remains open.
Lastly, the Presidential Decree on the regularization of the muftī’s court procedure has been adopted in June 2019.[8] For the first time the sharīʿa courts of Thrace are subject to procedural norms set by the state. The main points of the reform are:
- The presence of an attorney in law who represents the litigants is obligatory;
- The enforceability of the muftī’s judgment by the civil courts is dependent on the compatibility of the judgment with the Constitution (Article 4.2 on non-discrimination is mentioned) and the ECHR;
- There is now a detailed procedure through which the litigants have to sign an agreement of choice for the sharīʿacourt;
- The judgment has to be properly justified. It has to be written in both Greek and Ottoman (sic) languages. An official translation in Arabic, Turkish, or English can be delivered upon request.
These amendments to the law on sharīʿatackle some of the major issues of concern that accumulated criticism in the past 25 years: a) violations of the right to a fair trial, protected under Article 6 of the ECHR, when equality of the litigants is not safeguarded, and neither representation through a lawyer nor predictability and visibility of the applicable law is guaranteed; b) lack of efficient control of the merits of the muftī’s decision and lack of effective means to control the constitutionality of such decisions; c) lack of recourse to civil courts and conflicts resulting from parties choosing different forums; d) lack of the right to appeal against the muftī’s decision; and e) lack of codification and homogenization of the applicable law. Among these, a, b, and c have been satisfactorily resolved by Presidential Decree No. 52 (art. 12, para. 3).
Sharīʿa can be directly applied only by the muftī or taken into consideration by a civil court while testing the constitutionality of the religious court’s decision. The decisions of the muftī can only be executed after being ratified by the Civil Court of First Instance (Polymeles Protodikeio).[9] Consequently, civil courts should monitor the constitutionality of muftīs’ decisions and the margin of divergence between the substantial legal norms of civil law and sharīʿa, as in cases of Islamic alimony (nafaka), child custody, or inheritance shares of the female heir. However, most of the muftīs’ decisions are ratified by the Greek courts even if they infringe women and children’s rights enshrined in the Constitution and the ECHR. The United Nations Human Rights Committee commented on this issue, urging Greece “to increase the awareness of Muslim women of their rights and the availability of remedies, and to ensure that they benefit from the provisions of Greek civil law.”[10] These decisions are subject to appeal before the First Instance Court, limited to the issue of the muftī’s jurisdiction. As there is no second instance within the muftī‘s court, the muftī’s decision is, in fact, largely unappealable, which endangers not only the legal interests of citizens who come under his jurisdiction, but also the authority and reputation of this important Muslim institution.
Notes to part 2:
[1] Konstantinos Tsitselikis, Applying Shari’a in Europe: Greece as an Ambivalent Legal Paradigm, in 2 Yearbook of Muslims in Europe663 (Jørgen Nielsen et al. eds., 2010).
[2] For detailed case law of the muftīs’ courts, see Yannis Ktistakis, Charia, Tribunaux religieux et droit grec [Sharīʿa, Religious tribunals and Greek law] (2013).
[3] Areios Pagos [A.P.] [Supreme Court] 2138/2013.
[4] 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.
[5] Nomos (2018:4569) I) Kentrika Apothetiria Titlon, II) Prosarmogi tis Ellinikis Nomothesias stis diataxeis tis Odogias (ΕΕ) 2016/2258 III) Loipes diataxeisαι [I) Central depositories of titles. II) Adaptation of the Greek legislation to the Directive (EU) 2016/2258 III) Other provisions], Ephemeris tes Kyverneseos tes Hallenikes Demokratias [E.K.E.D.]2018, A:179, art. 48, para. 3.
[6] Molla Sali v. Greece, Eur. Ct. H.R. (2018), https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22molla%22],%22itemid%22:[%22001-188985%22]}.
[7] The Court, however, was reluctant to examine the alleged violation of Article 6 of the ECHR (right to a fair trial).SeeEleni Kalampakou, Is There a Right to Choose a Religious Jurisdiction over the Civil Courts? The Application of Sharia Law in the Minority in Western Thrace, Greece, 10 Religions260 (2019).
[8] Diatagma (2019:52) Name of decree [English translation], Ephemeris tes Kyverneseos tes Hallenikes Demokratias [E.K.E.D.]2019, A:90.
[9] 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, art. 3, para. 3.
[10] U.N. Human Rights Comm., Concluding Observations: Greece, 8, U.N. Doc. CCPR/CO/83/GRC (Apr. 25, 2005).