Sharia and inheritance in Western Thrace: the Grand Chamber judgment in Molla Sali

Background

Ms Chatitze Molla Sali, a Greek national born in 1950, lives in Komotini in Western Thrace. When her husband died, she inherited his entire estate under a will drawn up by him before a notary; however, his two sisters contested the will, arguing that because he had belonged to the Muslim minority in Western Thrace, matters of succession in his case were therefore subject to sharia and to the jurisdiction of the mufti rather than to the provisions of the Greek Civil Code. They relied in particular on the 1920 Treaty of Sèvres and the 1923 Treaty of Lausanne, which provided for Islamic customs and Islamic religious law to be applied to Greek nationals who were Muslims.

The two sisters’ claims were dismissed both at first instance and on appeal. In September 2011, the Thrace Court of Appeal held that Mr Sali’s decision, as a Greek Muslim and a member of the Thracian religious minority, was an expression of his statutory right to have his estate disposed of after his death under the same conditions as any other Greek citizen. However, the Court of Cassation vacated that judgment on the grounds that the rules of sharia applied to the will and remitted the case for fresh consideration to a differently-constituted bench of the Court of Appeal. The new bench ruled in 2015 that sharia did apply to Mr Sali’s estate and that the contested will was therefore of no legal effect.

Ms Molla Sali appealed to the ECtHR, arguing that the application of sharia to the dispute had violated her rights under Article 6 §1 ECHR (fair hearing), taken alone and in conjunction with Article 14 (discrimination). She also alleged that she had been subjected to a difference in treatment on grounds of religion and that, under Article 1 of Protocol No. 1 (property), by applying sharia rather than Greek civil law to her late husband’s will, the Court of Cassation had deprived her of three-quarters of her inheritance.

The Greek Government tried to justify the difference in treatment by arguing that the settled case-law of the Court of Cassation pursued an aim in the public interest: the protection of the Thracian Muslim minority in accordance with Greece’s duties under the Treaties of Sèvres and Lausanne and their specific situation.

In June 2017, the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber.

The judgment

In Molla Sali v Greece [2018] (No. 20452/14), the Grand Chamber held, unanimously, that the difference in treatment suffered by Ms Molla Sali as the beneficiary of a will drawn up under the Civil Code by a Greek testator of the Muslim faith, as compared with a beneficiary of a will drawn up under the Civil Code by a non-Muslim Greek testator, had not been objectively and reasonably justified.

First, the Treaties of Sèvres and Lausanne did not impose any obligation on Greece to apply sharia law. More specifically, the Treaty of Lausanne did not explicitly mention the jurisdiction of the mufti; instead, it guaranteed the religious distinctiveness of the Greek Muslim community [151]. Moreover, there were divergences in the case-law of the Greek courts as to whether or not the application of sharia was compatible with the principle of equal treatment and with international human rights standards; and those divergences created legal uncertainty incompatible with the requirements of the rule of law [153].

Secondly, under the case-law of the Court, freedom of religion did not require states parties to create a particular legal framework in order to grant religious communities a special status entailing specific privileges [155]. Nevertheless, “a State which has created such a status must ensure that the criteria established for a group’s entitlement to it are applied in a non-discriminatory manner” [155]. Moreover, it could not be assumed that a Muslim testator, having drawn up a will in accordance with the Civil Code, had automatically waived his right, or that of his beneficiaries, not to be discriminated against on the basis of his religion. A person’s religious beliefs could not validly be deemed to entail waiving certain rights if that would run counter to an important public interest, nor could the State take on the role of guarantor of the minority identity of a specific population group to the detriment of the right of that group’s members to choose not to belong to it or not to follow its practices and rules [156].

Lastly, refusing members of a religious minority the right voluntarily to opt for and benefit from ordinary law was not only discriminatory but was also to a breach of “a right of cardinal importance in the field of protection of minorities”: the right to free self-identification [157]. The negative aspect of that right – to choose not to be treated as a member of a minority – was not limited in the same way as its positive aspect. Provided it was an informed choice, it was a completely free one and it had to be respected both by the other members of the minority and by the State itself:

“That is supported by Article 3 §1 of the Council of Europe Framework Convention for the Protection of National Minorities which provides as follows: ‘no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice’. The right to free self-identification is not a right specific to the Framework Convention. It is the ‘cornerstone’ of international law on the protection of minorities in general. This applies especially to the negative aspect of the right: no bilateral or multilateral treaty or other instrument requires anyone to submit against his or her wishes to a special regime in terms of protection of minorities” [157].

Greece was the only country in Europe which, at the material time, had applied sharia law to a section of its citizens against their wishes. That was particularly problematic in the present case because its application had put Ms Molla Sali in a legal situation which neither she nor her husband had intended [158]. On 15 January 2018, the obligation to apply sharia to the settlement of family law cases within the Muslim minority had been repealed [for which see our earlier post: scroll down] and recourse to a mufti in matters of marriage, divorce or inheritance was now only possible with the agreement of all those concerned – but Ms Molla Sali’s case had been decided with final effect under the old system prior to the enactment of the new law [160].

In conclusion,  the difference in treatment had had no objective and reasonable justification and there had therefore been a violation of Article 14 read in conjunction with Article 1 of Protocol No. 1 [161].

Cite this article as: Frank Cranmer, "Sharia and inheritance in Western Thrace: the Grand Chamber judgment in Molla Sali" in Law & Religion UK, 19 December 2018, https://lawandreligionuk.com/2018/12/19/sharia-and-inheritance-in-western-thrace-the-grand-chamber-judgment-in-molla-sali/

 

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