This is part 3 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.
Stemming from an institutional Ottoman legacy, a relic of the segregated millet system, today’s minority protection could serve as a strong case for legal pluralism. At the same time, inflexible societal segregation and problematic legal norms infringe on fundamental legal principles. Judicial procedures and law applied by the muftīs of Thrace need to take a generous leap forward. On the other hand, the case law as formed in the past 97 years by the civil courts failed to clarify the modalities of both the applicability of sharīʿa by the muftīs’ courts and the referral criteria from a civil court to the muftī. In this post, three areas of personal status law—marriage and divorce, child custody, and inheritance—which fall under the muftī’s special jurisdiction for the Muslims of Thrace will be examined.
Case law (on jurisdiction of the Muftīor the civil judge and the applicable law)
Case 1: The First Instance Civil Court of Rodopi, while (constitutionally) supervising the muftī’s decision (4/1991) according to Law 1920/1991, upheld that Article 4, paragraph 2 of the Constitution was infringed on the ground of gender equality. The applicant was a Muslim, the mother of a boy and a girl whose father had passed away. The Court of Rodopi confirmed the muftī’s decision only in part regarding the custody of the children and rejected the muftī’s application of the Islamic law on inheritance, which favored the male heir (a share of 14/21 of the estate) to the detriment of the female (a share of 7/21).[1]
Case 2: In a child custody case, the Court of Cassation quashed the Court of Appeal judgment. according to the Court of Cassation, the Ottoman Civil Code should be applied by the First Instance Court. Moreover, the Court said that implementation of sharīʿa is mandatory for all Muslims of Thrace, and therefore it is mandatory (as the cornerstone of his jurisdiction) for the muftī to apply and interpret it as an inherent part of Islamic culture. Conversely, civil courts are not permitted to implement sharīʿa norms as they consist of religious rules and not a complete legal system which could be developed through time and applied by autonomous courts.[2]
- Marriage and Divorce
Marriage, family and childhood receive specific protection under Article 21 of the Greek Constitution. Private law on marriage and inheritance matters is governed by the Civil Code, which applies to anyone who is under the jurisdiction of Greek civil courts. Religious marriage celebrated by any of the “known religions” is valid, having legal effects upon registration. Therefore, civil and religious marriages are both equal and optional,[3] and any relevant dispute is adjudicated according to the Civil Code by the civil courts. Consequently, everyone is subject to the ruling of a judge (civil court) and no one can be deprived of the civil courts’ jurisdiction as this is guaranteed by the Constitution.[4] Within this general legal framework, special jurisdiction is granted to the muftī courts of Thrace in Xanthi, Komotini, and Didymotyho, which apply certain provisions of Islamic law according to Law 1920/1991.[5]
As defined in Law 1920/1991 on the muftīs, their special authority and jurisdiction apply to all marriages of Muslim residents of Thrace belonging to the minority of Thrace. As stated, the question of whether the muftī has exclusive authority is a thorny question and one that Greek jurisprudence has not resolved to date.
Τhe Greek civil code regulating the relationship between spouses in marriage and divorce is applied regardless of the spouses’ religion, unless otherwise foreseen, as in the case of Muslim Greek citizens who want to “activate” their religious law.[6] However, in practice, it is likely that a case brought by the wife before the civil court against the husband (for divorce or child custody) will be remanded to the muftī. Lastly, disputes related to couples married before the municipal authorities under civil code provisions cannot be adjudicated by the muftī.
Case law
Case 1: The husband asked for a divorce before the muftī as his wife had left their house. The wife had signed a declaration at the police station confirming that she had left the house. The muftīcourt, referring to the pertinent sharīʿa provisions, declared the divorce and said that the wife was deprived thereof from all rights she would have according to the marriage contract related to the three-month alimony and the divorce indemnity (mihir/mahr).[7]
Case 2: The marriage of a 14-year old Muslim girl was challenged before the civil court, which concluded that the marriage of a minor by the muftī is valid and there is no reason to annul it because it was accepted by the local society, the parents of the wife were not opposed to it, the husband was good, working, and honorable, and therefore the future of the marriage was sustainable.[8]
As mentioned above, the muftī has competence to adjudicate divorce and alimony (nafaka). Therefore, cases related to the property of a divorced couple would not be subject to the muftī’s jurisdiction.[9]Other questions that are rarely encountered by the Greek courts include whether the regulation of the marriage contract (nikah) and the clause of indemnity due to the wife in case of divorce (mihir) and the obligation of the husband to maintain the wife during the wedlock or after dissolution for three months (nafaka) according to Islamic law would abolish Muslim women’s right to alimony as set by the Greek Civil Code.[10]
The main issues of divergence between Greek law and the muftī’s rules on marriage are with regard to the equality of sexes, the age of the spouses, marriage through authorization, and bigamy. According to Islamic law, the male and the female spouse have differentiated access to divorce. Only the husband can initiate a divorce without the consent of the spouse; the wife can have the marriage terminated only if her husband has done something egregiously bad. Unilateral divorce through the practice of ṭalāq is effective only through the muftī’s decision. Without the muftī’s decision, a divorce cannot have legal effect within the Greek legal order. In the case of divorce by consent (khulʿ), the wife must compensate her husband. Moreover, according to Islamic law, minors can get married with the consent of their parents, while, according to the Greek Civil Code, minors can only marry under special circumstances.[11] Pregnancy of a minor could constitute such a special circumstance in practice, though the extent to which this circumstance is used is rather disturbing. In many cases of poor Roma Muslims, for instance, young girls are married as young as 13 or 14. Marriage by proxy (the father representing his absent daughter) as permitted by the Ḥanafī school of Islamic jurisprudence has long been seen as complying with Greek public policy. With the introduction of Article 1350 of the Civil Code in 1983, the practice was disputed since it was clearly stated that both spouses have to be present at the wedding. Although the Legal Council of the State[12] has said that marriage by proxy does not contradict the Greek law, a circular of the Ministry of the Interior[13] made clear that marriage by proxy—through power of attorney—and polygamy were deemed contradictory to public policy; as such, legal acts in this vein conducted by the muftīsare considered null and void and not subject to registration. Similarly, the National Committee for Human Rights has said that marriage by proxy should be illegal in the future and that the age limit for a marriage without parental authorization should be 18 instead of 12, which is the minimum age judged by the muftīcourts.[14]
According to another Ministerial decision, the solemnization of a marriage before the muftī for Muslims residing outside Thrace, between a Muslim and a non-Muslim, or between alien Muslims, would not be recognized by the state as legal.[15] This restrictive measure was endorsed by courts which also often refuse to ratify the muftī’s decision on divorce when the divorced spouses are not both Greek citizens or do not live in the same province.
- Child Custody & the Emancipation of Minors
As mentioned earlier, the muftī has competence to adjudicate the tutelage (child custody, epimeleia teknou) and emancipation of minors. As explained, the scope of the muftī’s jurisdiction cannot be extended through the interpretation of the law. Therefore, cases related to adoption, children born out of wedlock, and communication with children are not subject to the muftī’s jurisdiction. By 2008, a series of court decisions also ruled that child custody was exempted from the jurisdiction of the muftī based on a narrow interpretation of the term tutelage.[16] In 2010, the Muftī of Komotini protested against this practice of the courts of Thrace, which he described as having overturned “the established legal norms.” In many more areas, the muftī’s jurisdiction remains disputed, such as the nature of parental relations and the rights of children born out of wedlock. According to Islamic law, the period of pregnancy could be extended in legal terms up to two years with a view to facilitate the recognition of a child by the father.[17]
Case law
Case 1: The plaintiff was a divorced Muslim mother who opened a child custody case before the First Instance Court of Rodopi. The Court denied jurisdiction and remitted the case to the muftī. The muftī adopted a loose interpretation of sharīʿa in order to deliver a ruling in accordance with the Civil Code. The muftī in fact did not take into consideration the sharīʿa rules on the age of the child and ordered the mother to take custody instead of the father.[18]
Case 2: The Muftī of Xanthi revoked his decision to issue a divorce for a couple who were Muslims living in Thrace, because the religious marriage was not registered at the Registry of the Muftī Office. The wife then opened a child custody and alimony case before the First Instance Court of Xanthi. The husband appealed before the Court of Appeals, which upheld that according to international norms regarding Muslims in Greece, the Ottoman Civil Code (sic)[19] should be applied in relation to children’s tutelage and that alimony is not a rightful claim. Finally, the Supreme Court, which adjudicated the case in Cassation, upheld that, as the Muftī had revoked his jurisdiction, civil courts had jurisdiction over the case in all matters, alimony included.[20]
The main issue remains the divergence between norms and practices in the Civil Code and the implementation of sharīʿa failing to take into account the notion of the child’s best interest. According to the International Convention on Children’s Rights (Article 3, paragraph 1) and the Convention on the Elimination of All Forms of Discrimination Against Women (Article 16, paragraph 1d), among other international instruments, the best interest of the child should prevail. According to Islamic law, after the dissolution of the marriage, the mother obtains custody of the children only until a certain age. The ex-husband has to maintain the ex-wife during a period of three months after the dissolution of wedlock and provide alimony up to the age of 7 for sons and 9 for daughters, respectively. After this age, children are placed in the direct custody of the father.
- Inheritance
The Civil Code regulates issues of inheritance and wills for all those who are subject to civil courts. The muftī has jurisdiction in cases relating to Islamic wills (in which the inheritance allocated does not exceed one-third of the overall property the deceased has bequeathed to people other than his/her relatives) and intestate succession. The major issue at stake in inheritance cases is that the male heir gets twice the share of the female heir, thus breaking the principle of equality of sexes endorsed by both the Greek and European legal order.[21]
In practice, after 1985, such cases became rare, as Muslim heirs (members of the minority of Thrace) are using a fatwā on inheritance before the notary and the taxation office in order to register and apply for the necessary transactions. However, certain disputes reach the courts. In some cases, the civil courts said that the muftī had exclusive jurisdiction, while in other cases they ruled that there is a concurrent jurisdiction between civil courts and the muftī courts. In some cases, the civil courts have contested the right of Muslims to leave a will before a notary (dimosia diathiki).[22] Finally, in the milestone case that ended up to the Court of Strasbourg, the Supreme Court said in 2015 that a will drafted by a Muslim before a notary has no legal effects vis-à-vis any Muslim heir (Case 3).
Case law
Case 1: The Court of Appeals of Thrace adjudicated a dispute between a widow and two sisters of the deceased husband over the validity of the public will (according to the Civil Code) and the property left by the latter (all were Muslims of Thrace). The Court ruled in favor of the freedom of Muslims to opt for one or the other legal system, namely the sharīʿa applied by the muftī court or the civil law applied by the civil court. Thus, the widow could have the full inheritance according to the public will.[23]
Case 2: The two sisters from the previous case appealed, claiming that the will drafted before a notary by their brother could not be valid as it is not in harmony with sharīʿa and that only the muftī could have jurisdiction over the case. The Court upheld the appeal and said that the muftī has exclusive jurisdiction over property left by a deceased member of the Muslim minority of Thrace and that a Muslim did not have the right to draft a will before a notary according to the civil law, as lex specialis, namely Article 5 of Law 1920/1991 is the only applicable law.[24]
Case 3: The widow filed an application before the ECtHR on the grounds of the right to a fair trial (Article 6), right to property (Article 1), and non-discrimination (Article 14). The case was adjudicated by the Grand Chamber of the Court in Molla Sali v. Greece.[25] The Court found that there was violation of the right to the property of the applicant in conjunction with the prohibition of discrimination“by association” on the basis of the religion of the deceased husband. The Court said that the right to self-identification of the member of a minority means also the right to opting out from that minority’s protection framework. According to the Court:
Refusing members of a religious minority the right to voluntarily opt for and benefit from ordinary law amounts not only to discriminatory treatment but also to a breach of a right of cardinal importance in the field of protection of minorities, that is to say the right to free self-identification.[26]
According to the Law 4511/2018, all wills drafted by a Muslim can be subject to civil law, clarifying a long-standing ambiguity, until the case Molla Sali put forward claims for daring reforms.
Notes to part 3:
[1] Monomeles Protodikeio Rodopis [Mon. Pr.] [First Instance Court of Rodopi], 152/1991.
[2] Areios Pagos [A.P.] [Supreme Court] 2138/2013.
[3] Astikos Kodikas [A.K.] [Civil Code] Articles: 1367, 1368, 1371, and 1416.
[4] 1975 Syntagma [Syn.] [Constitution]art. 8.
[5] 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. 5(b).
[6] Athina Kotzabassi, Greek title in Latin alphabet [The Family Legal Relations of the Greek Muslims] 14 (2003).
[7] Ierodikeio Komotinis [I.K.] [Muftī Court of Komotini], 32/2001.
[8] Monomeles Protodikeio Rodopis [Mon. Pr.] [First Instance Court of Rodopi], 51/2006.
[9] Epheteia [Ephet.] [Court of Appeals of Thrace], 119/2006.
[10 ]As mentioned, most of the civil disputes are referred from civil courts to the muftī courts. In general, women are quite reluctant to break through a male-dominant Muslim society.
[11] Astikos Kodikas [A.K.] [Civil Code] Article:1350, para. 2.
[12] Symboulion Epikrateias [S.E.] [Supreme Administrative Court] 686/1993.
[13] Circular by the Ministry of Interior, no. 31, dated Sept. 20, 2002.
[14] Decision of the National Committee for Human Rights dated July 5, 2003.
[15] Decision of the Deputy Minister of the Interior, F.97920/20138, dated Oct. 31, 2003 adopting the opinion of the 3rd Section of the Council of State in Symboulion Epikrateias [S.E.] [Supreme Administrative Court] 347/2003.This decision remained in force only temporarily. See also Yannis Ktistakis, Charia, Tribunaux religieux et droit grec [Sharīʿa, Religious tribunals and Greek law] 38 (2013).
[16] Monomeles Protodikeio Rodopis [Mon. Pr.] [First Instance Court of Rodopi], 130/2008; 140/2008; and 183/2008.
[17] See the prosecutor’s opinion in Monomeles Protodikeio Amexandroupolis [Mon. Pr.] [First Instance Court of Alexandroupolis], 1/1990.
[18] Ierodikeio Komotinis [I.K.] [MuftīCourt of Komotini], 21/2002.
[19] The Ottoman Civil Code is by no means a source of Greek law.
[20] Areios Pagos [A.P.] [Supreme Court] 2138/2013.
[21] Aspasia Tsaoussi and Eleni Zervogianni, Multiculturalism and Family Law: The Case of Greek Muslims, in European Challenges in contemporary family law209, 219 (Katharina Boele-Woelki and Tone Sverdrup, eds., 2008).
[22] Epheteio [Ephet.] [Court of Appeals of Thrace], 642/2009. See alsoCase 2, infra note 47.
[23] Epheteio [Ephet.] [Court of Appeals of Thrace], 392/2011.
[24] Areios Pagos [A.P.] [Supreme Court] 1862/2013.
[25] On different approaches to this case, see Eleni 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); İlker Tsavousoglou, The Curious Case of Molla Sali v. Greece: Legal Pluralism Through the Lens of the ECtHR, Strasbourg Observers (Jan. 11, 2019), https://strasbourgobservers.com/2019/01/11/the-curious-case-of-molla-sali-v-greece-legal-pluralism-through-the-lens-of-the-ecthr/; Iakovos Iakovidis and Paul McDonough, The Molla Sali Case: How the European Court of Human Rights Escaped a Legal Labyrinth While Holding the Thread of Human Rights, 8 Oxford J.L. & Relig. 427 (2019).
[26] Molla Sali v. Greece, Eur. Ct. H.R. (2018), para. 157, https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22molla%22],%22itemid%22:[%22001-188985%22]}.