Sharīʿa in Greece :: Part 4 :: Future Prospects for Greece’s Sharīʿa Courts After Molla Sali v. Greece

By Konstantinos Tsitselikis

This is the final part 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.

Time to reform?

The discrepancies between sharīʿaas applied by the muftīs’courts and fundamental principles of human rights (both substantive and procedural) could be remedied in two different ways: either by abolishing the muftī’s jurisdiction, or by channelling the development of sharīʿain a direction that will not contradict public policy (ordre public).[1] That would require the development of this legal system in consonance with the Greek Constitution and the European Convention of Human Rights.

Not surprisingly, a series of international and national bodies have expressed their concern about the noncompliance of the muftī courts with human rights standards. For instance, the Commissioner for Human Rights in the Council of Europe has made recommendations that Greece should consider withdrawing the judicial competence of the muftÄ«s, given the courts’ incompatibility with international human rights standards; strengthening the substantial review of themuftī’sjudicial decisions by domestic courts; and/or formalizing an open and continuous dialogue with representatives of the Muslim minority in order to start the process of achieving compliance.[2] Also, the plenary of the Presidents of the Bar Associations in Greece proposed the abrogation of the muftÄ«‘s jurisdiction.[3] As stated, the Molla Salicase triggered a series of amendments to the law on sharÄ«Ê¿a courts. The new rules adopted in 2018-19 quashed a series of procedural deficiencies in a positive direction. However, attempts at reform must consider the political situation first and foremost, if an overall harmonization with international human rights norms is to be achieved. The survival of the muftī’s jurisdiction over decades constitutes a supreme example of instrumentalized resistance to attempts at liberal reform. The reasons for this resistance stem from the competitive political and ideological embrace of the Muslim minority by both the Greek and the Turkish governments going back to 1923, i.e., from the historical beginning of this minority in Thrace and the implementation of the Lausanne Treaty, still considered an immutable legal foundation of minority protection today.

The coexistence of two different legal systems in Western Thrace could be seen as a case of legal pluralism, provided it ensures a system of options for one or the other judicial system and does not lead to any direct violation of fundamental rights. If one religious judicialsystem were imposed on the individual on the basis of his religious affiliation, it would contradict the general principles and values of the European system and democratic society.[4] At the same time, the alignment of sharīʿa with European standards should not mean the total elimination of sharīʿa and its absorption into European law. That would simply reflect the hegemony of a dominant legal system over a minority legal system. As the European Court of Human Rights (ECtHR) stated, “The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.”[5]

In considering proposals for the abolition or the maintenance of Islamic law, one has to very carefully evaluate the social and political factors that together make up the “minority problem” of Thrace, without fear and passion and free of any preconceptions about the antagonisms between majority and minority. One promising development in resolving the tension between religious minority rights and Western democratic standards may be the call by Islamic scholars for internal reform of Islamic law and policies. The written sources of sharīʿa could be interpreted through ijtihād, namely the critical hermeneutic endeavor of jurists to analyze and comprehend the written sources of sharīʿa with “justice and equity.”[6] Sharīʿa could develop new approaches encompassing legal principles which establish the foundations of the European legal order. If that were to happen in Greece, sharīʿa implemented by the muftīcourts and reformed from within could comply with fundamental human rights principles, and Greek law could accommodate Islamic law. At last, implementation of sharīʿa has become optional, and thus legal discrepancies are now limited to cases in which both litigants willingly take their case before the sharīʿa courts.

Conclusions: Wither Greece’s sharīʿa Courts?

The discussion of the status of sharīʿa (norms related only to limited cases of personal status, such as family and inheritance law) within the Greek and European legal order[7] inevitably touches upon the issue of how to accommodate the non-liberal laws of a minority in a liberal legal context. To move forward, this discussion must maneuver between the demands for integration, and the preservation of minority, collective, and individual identity, as potential fields of normative action.

There is increasing criticism – not unjustified – that sharīʿa as the muftī courts apply it does not comply with human rights norms, such as equality of the sexes and the right to a fair trial. The religious and political elite of the Thracian minority counters this criticism by pointing to the central importance of the adjudication by the muftī for the enjoyment of minority rights. What could serve as a strong case for legal pluralism and minority protection infringes upon fundamental legal principles. Stemming from the Ottoman milletsystem, this model results in the imposition of social and legal segregation on the basis of religion. The Molla Sali case before the ECtHR already triggered a series of changes in procedural law, in compliance with human rights. As the Court stated in Molla Sali, no disadvantage shall result from the choice to belong or not to belong to a minority from the exercise of the rights which are connected to that choice (paragraphs 67-68).

The law applied by the muftīs of Thrace needs to submit to comprehensive reforms. The questions they raise are multifaceted: Through what process could a reform of the applicable sharīʿanorms reconcile both sharīʿa and human rights for members of the Muslim minority? What would be the nature of a reform that tackles the substance of sharīʿa? Would the abolition of Islamic law be the only path sufficient to satisfy the European and Greek legal orders? Changes to the law should be initiated and supported from within the community by its leaders, civil society, and government. An alternative, culturally-accommodating structure of adjudication could thus be put forward as a democratic paradigm.[8]

Notes to part 4:

[1] The ordre public (public policy) consists of a series of fundamental norms and principles that supersede and reflect the legal, social, economic, religious, ethical, and other beliefs that govern legal relations. The concept is related to norms that are so fundamental for the legal order that they have to be respected, regardless of procedural obstacles. Overriding of the ordre publicoccurs when these beliefs are offended and legal relations are disrupted.

[2] See Report by Thomas Hammarberg, the Commissioner for Human Rights Following His Visit to Greece on 8-10 December 2008, Council of Eur., CommDH(2009)9, at 59-61, https://rm.coe.int/16806db821(last visited Sept. 22, 2019). See also Eur. Parl. Ass., Freedom of Religion and Other Human Rights for Non-Muslim Minorities in Turkey and for the Muslim Minority in Thrace (Eastern Greece), Res. No. 1704 (2010), http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17807&lang=en; and the associated report by Michel Hunault. Eur. Parl. Ass., Michel Hunault: Freedom of Religion and Other Human Rights for Non-Muslim Minorities in Turkey and for the Muslim Minority in Thrace (Eastern Greece), Doc. No. 11860 (2010), http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-en.asp?FileID=12681&lang=en.

[3] Olomeleia Dikigorikon Syllogon Elladas[Bar Associations of Greece], Deltio Typou[Press Release] 2009.

[4] Refah Partisi v. Turkey, 2003-II Eur. Ct. H.R.

[5] Serif v. Greece, 1999-IX Eur. Ct. H.R, para. 53.

[6] “After carefully digesting what these new giants of Sharialaw [of the university of Cairo] wrote, I am fully convinced that the corpus-juriselaborated by the jurists of the past is not a closed book, but an open one which can be brought to life and rejuvenated in order to cope with the requirements of the modern world.” Ahmed Sadek El Kosheri, Islamic Schools of Law, inIslamic Law and Its Reception by the Courts in the West43 (Christian v. Bar ed., 1999).

[7] In the European continent sharīʿa courts (of limited jurisdiction) having enforceable jurisdiction exist only in Greece. In the United Kingdom, Muslim arbitration tribunals adjudicate cases of personal status and commercial/economic issues having an important impact. The applicable law stems from a broad variety of Islamic traditions. In other countries, too, local Muslim communities apply sharīʿa to a certain extent, unofficially, in internal disputes.

[8] Konstantinos Tsitselikis, Muslims of Greece: A Legal Paradox and a Political Failure, in Legal Pluralism in Muslim Contexts 80 (Norbert Oberauer et al. eds., 2019).

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