Response: Forging a Habsburg Islamic Legal System?

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Should Greek Muslims expect any protection by the Lausanne Treaty (1922/3), which would allow them to practice aspects of their traditional life? ShouldMuslim convicts (converts or not) expect some deference to their religious beliefs in US prisons? How about the extent of the rights that should be given to Muslim immigrants, old or new, in Germany? AreWestern societies better for Muslims today thanMuslim-majority societies? Do historical backgrounds give us any insights into how to answer these questions? Or are these basic questions of Human rights? These are some of the issues we hope to cover in the next ten weeks.

With the exception of the last piece (on Egypt), each assignment in the reader will correspond to three class sessions. If you plan to miss too many classes or sections, please drop out. Forty percent (40%) of your grade is based on oral participation in class and sections and 60% are assigned to an essay, a reaction to a never-seen-before text, which you will receive on the last day of classes and have 12 hours to complete.

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The Last Sharīʿa Court in Europe: On Molla Sali v. Greece (ECHR 2018)

Maurits S. Berger Leiden University

Abstract On its face, the ruling in Molla Sali v. Greece (European Court of Human Rights 2018) was about choice of forum: in an inheritance dispute, could heirs choose to apply Islamic inheriance law or did a will drawn up in ac- cordance with Greek inheritance law govern a Muslim decedent's estate? The case is significant not so much for its outcome, but because it involved features of two legal systems that are relatively unknown among Europe- an and American jurists: interpersonal law and Islamic law in the autono- mous region of Greece. The Court's reasoning provides detailed insight into how features of these systems may clash with systems of European civil and common law, particularly in the framework of human rights.

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Introduction

The 2018 ruling of the European Court of Human Rights in the case of Molla Sali v. Greece1 reminded me of a heated conver-

sation I had in 1998 with an Arab lawyer. She had studied law in Europe but practiced in the Middle East. The discussion started pleasantly enough with talk about the intricacies of Islamic fam- ily law. Then she asked about the legal possibilities for Jews and Muslims in Europe, but when I answered that almost all European countries apply a single civil law to their citizens, she flew into a rage: “What, are they not entitled to their own religious family laws? But that is against freedom of religion!” Taken aback, I ar- gued that all Europeans were perfectly free to fulfill religious legal requirements for their family life, but that the principle of equali- ty before the law demanded that nationals were governed by the same law. It did not convince her: my call for equality before the law clashed with her demand for religious diversity as a matter of freedom of religion. This was a veritable clash of legal cultures. “If I were a European, I would take this matter to the European Court of Human Rights!” she ended our talk bellicosely. It took twenty years for this to happen.

The ruling of Molla Sali v. Greece is not so significant for its outcome, but for the fact that it involved choice of law questions in two legal systems that are relatively unknown among European and American jurists: interpersonal law and Islamic law. These are two systems of law with their own internal logic and coherence. The Court's reasoning provides close insight into how the features of these legal systems may clash with systems of European civil and common law, particularly in the framework of human rights.

I. The Case

Molla Sali and her husband belonged to the Muslim mi- nority of a Greek province called Western Thrace, located at the

1 Molla Sali v. Greece, App. No. 20452/14, Eur. Ct. H.R. (2018), https:// hudoc.echr.coe.int/eng?i=001-188985 [https://perma.cc/EFA7-7DL7].

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most eastern tip of the European continent.2 This minority was entitled to have its family and inheritance law regulated by Islamic law, as will be explained in more detail below. However, the hus- band decided to make his will according not to Islamic law but to Greek civil law, and he left his entire estate to his wife. When he died, his sole heirs were his wife and two sisters. These sisters contested the deceased’s will because under civil law they were not considered heirs, whereas under Islamic inheritance law they were intestate heirs. The question therefore arose whether the husband had the freedom to choose Greek inheritance law or was bound by Islamic inheritance law.

While the legal question in this case seems quite straight- forward—is choice of law allowed?—the typical situation in this part of Greece and the manner in which the case was legally put before the European Court of Human Rights raised several other legal questions of importance. But before we discuss these points, we first need an understanding of the Greek situation.

II. Interpersonal Law

Greece is perhaps the only country in Europe that inherit- ed the Ottoman system of plurality in family law. According to this system, there is not one single (civil) family law for the entire pop- ulation, but a number of religious family laws that coexist within a single state. In the case of the late Ottoman Empire, thirteen re- ligious communities (millets) were recognized by the state, each with its own family law and courts.3

This system of plurality in family law is still maintained in many countries in the world, whereby these family laws can per- tain to ethnic as well as religious communities. In the case of the

2 To name a region “Western” while it is located in the east is confusing, but the region of Thrace straddles Greece on its western part and Turkey on its eastern part.

3 These thirteen were: Greek Orthodox, Catholic, Syrian Catholic, Chal- dean Catholic, Syrian Jacobites, Armenian Gregorians, Armenian Catholics, Prot- estants, Melkites, Jews, Bulgarian Catholics, Maronites, and Nestorians. Kamel S. Abu Jaber, The Millet System in the Nineteenth-Century Ottoman Empire, 57 Muslim World 214 (1967).

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Middle East, for instance, Syria has one Islamic, one Druze, eleven Christian, and two Jewish family laws;4 Egypt has one Islamic, six Christian, and two Jewish family laws;5 and Israel has one Islamic, one Druze, four Christian, and two Jewish family laws.6 Greece is not as excessive as this, and with its two family laws (civil and Is- lamic) is more comparable to Morocco (Jewish and Islamic law).

In legal theory, such systems are considered a sui generis field of law, referred to as “interpersonal law” (or “interreligious law” when the laws in question are all religious). Most studies of this field in English, French, or German date from the first half of the twentieth century, mostly as a matter of colonial interest.7 Both the lack of study and practice of interpersonal law in Europe since then may explain why this system of coexisting national fam- ily laws is exotic and little known to today’s European jurist. We will see below that this had its effect on the Court’s ruling.

To understand the relevance of all this to Greece, we need to go back to the nineteenth century, when Southeastern Eu- ropean peoples were fighting Ottoman rule and claiming inde- pendence, often resulting in the practice of ethnic and religious cleansing. While this was mostly done by means of armed conflict, Greece and Turkey decided to do so by mutual agreement with regard to the Muslim Turks residing in Greece and the Orthodox Greeks residing in Turkey. In 1923, Greece and Turkey agreed to swap these nationals: an estimated 1.5 million Greeks were forced

4 Maurits S. Berger, The Legal System of Family Law in Syria, 49 Bulle- tin d’études orientales 115 (1997).

5 Maurits S. Berger, Public Policy and Islamic Law: The Modern Dhimmi in Contemporary Egyptian Family Law, 8 Islamic L. & Soc’y 88 (2001).

6 Jayanth K. Krishnan & Marc Galanter, Personal Law and Human Rights in India and Israel, 34 Isr. L. Rev. 101 (2000).

7 There is no recent literature on this topic. In my own research I have made grateful use of authors like: Kessmat Elgeddawy, Relations entre systèmes confessionnels et laïque en droit international privé (1971); Klaus Wähler, Internationales Privatrecht und interreligiöses Kollisionsrecht (1981); G.W. Bartholomew, Private Interpersonal Law, 1 Int’l & Comp. L.Q. 325 (1952); Raoul Benattar, Problème de droit international privé dans les pays de droit personnel, Re- cueil des cours de l’Académie de droit international de La Haye 121 (1967); Pierre Gannagé, La distinction des conflits internes et des conflits internationaux de lois, in 1 Mélanges en l’honneur de Paul Roubier 228 (1961).

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to move from Turkey to Greece, and an estimated half a million Turkish Muslims from Greece to Turkey.8 Only a small community of Turks in the Greek province of Thrace and a small community of Greeks in Istanbul were not included in this population exchange. For them, Greece and Turkey concluded treaties in which they re- ciprocally guaranteed that these minorities could maintain their rights.9 These rights were the typical religious minority rights of that time, which included the right to have religious family law applied.10

In the case of Greece, the jurisdiction of Islamic family, property, and inheritance law for the Muslim minority in Western Thrace was given to the muftīs, Islamic scholars who doubled as ju- risconsults and judges, and whose rulings were recognized by the Greek state.11 In Western Thrace, three Islamic courts (muftiyet) were established in the cities of Xanthi, Komotini, and Didymote- icho. In the century following these treaties, this arrangement in Western Thrace was a freeze frame of Ottoman times. The law and the judicial system in this region remained as it was, untouched by any changes. The most typical example of the fossilization of this arrangement is perhaps the fact that the rulings in the court of Komotini are still written in the old Ottoman language and script

8 Onur Yildirim, Diplomacy and Displacement: Reconsidering the Turco-Greek Exchange of Populations, 1922–1934, at 90, 106 (2006).

9 Treaty of Peace with Turkey Signed at Lausanne (Treaty of Lausanne), July 24, 1923, 18 L.N.T.S. 11 (1924), reprinted in 18 Am. J. Int’l L. 4 (Supp. 1924), inter alia, art. 45: “The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Moslem minority in her territory.”

10 Treaty Concerning the Protection of Minorities in Greece (Treaty of Sèvres on Minorities), Aug. 10, 1920, 28 L.N.T.S. 243, reprinted in 15 Am. J. Intl’l L. 161 (Supp. 1921), inter alia, art. 14: “Greece agrees to take all necessary measures in relation to Moslems to enable questions of family law and personal status to be reg- ulated in accordance with Moslem usage.”

11 Treaty of Athens (1913), art. 11: The muftis, in addition to their authority over purely religious af- fairs and their supervision of the administration of vakouf [pub- lic] property, shall exercise jurisdiction between Muslims in mat- ters of marriage, divorce, maintenance payments (néfaca), guard- ianship, trusteeship, emancipation of minors, Islamic wills, and succession to the position of Mutevelli. The judgments rendered by the muftis shall be executed by the proper Greek authorities.

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that was officially abolished in Turkey in 1928 and has become a dead language ever since, except in this corner of Europe.12

This arrangement was exclusively for the Muslim minori- ty in Western Thrace. No such status was created for Muslims in other parts of Greece, like the islands of Kos and Rhodes, hence the distinction in official terminology between “Muslim minori- ty” (the name for the Muslims in Western Thrace) and “Muslim community” (the name for the Muslims on Kos and Rhodes).13 The “Muslim community” has its own imāms, but no Islamic judges or schools as the “Muslim minority” in Western Thrace has. To com- plicate matters, these Muslims are together called “Old Muslims,” as opposed to the “New Muslims” who have come to Greece as im- migrants during the past decades. The New Muslims, with an esti- mated number of 200,000, are more numerous than the Old Mus- lims. Still, the special status under discussion here only applies to the estimated 130,000 “Muslim minority” in Thrace. And it is to this minority and their legal status that the Molla Sali case applies.

III. Dynamics of Greek Interpersonal Law

As of late, the position of the muftī and the application of Islamic family law in Western Thrace has become a matter of debate in Greek society. The muftī is questioned because of an alleged lack of procedural rule of law, and Islamic family law is criticized for its contravention of human rights standards, in par- ticular the notion of gender equality.14 However, the Greek Consti- tutional Court has consistently adhered to the notion of pacta sunt servanda, arguing that the state of Greece has committed itself by

12 Personal observation by the author in February 2018. 13 For a thorough study on this, see Konstantinos Tsitselikis, Old and

New Islam in Greece: From Historical Minorities to Immigrant Newcomers (2012).

14 Yüksel Sezgin, Muslim Family Laws in Israel and Greece: Can Non-Mus- lim Courts Bring About Legal Change in Shariʿa?, 25 Islamic L. & Soc’y 235 (2018); Angeliki Ziaka, Greece: Debates and Challenges, in Applying Sharia in the West: Facts, Fears and the Future of Rules of Islam on Family Relations in the West (Maurits S. Berger ed., 2013).

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treaty to this legal situation, and that this commitment cannot be altered unilaterally.15

Within the Muslim minority a more practical and pressing question had arisen, namely whether they are obliged to refer to the Islamic court for their family law matters, or if they are allowed to refer to the civil court. In other words, do they have a choice of forum? Since 1982, the Muslim minority members have had the option to choose between a religious (Islamic) or civil marriage.16 But does this mean that all the legal consequences of that mar- riage are governed by that same law? Had a civil marriage been chosen, the answer would have been affirmative: according to the civil court in Xanthi (one of the three cities in Western Thrace), the spouses’ choice for a civil marriage “implicitly indicates their desire not to be subject to the jurisdiction of the divine Muslim law, but to the civil law, like other Greek citizens.”17 A Muslim who had concluded his or her marriage in accordance with civil law was therefore assumed to have opted for civil law for all family law matters after that.

But did the same reasoning also apply to Muslims who had entered into a religious marriage? Had they in doing so “im- plicitly” opted for religious law? This was a controversial issue in the courts until the Molla Sali case. Here was a case of a couple who belonged to the Muslim minority of Western Thrace, who had married in accordance with Islamic law, but where the husband had bequeathed his entire estate to his wife in accordance with civil law.

The Thrace Court of Appeal ruled on September 28, 2011, that the husband was free to choose the type of will he wished to draw up, and therefore was not obliged to follow Islamic law. The Greek Court of Cassation, however, ruled on October 7, 2013, that the law applicable to the deceased’s estate was the Islamic law of succession, based on the various international treaties that

15 Sezgin, supra note 14, at 262–63. 16 Law no. 1250 (1982). 17 Sezgin, supra note 14, at 259 (referring to Xanthi Court of First Instance,

case no. 1623/2003).

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stipulated thus. According to this court, Islamic law was, “pursu- ant to Article 28 § 1 of the Constitution, an integral part of Greek domestic law and prevailed over any other legal provision to the contrary.”18

The case was then brought before the European Court of Human Rights in September 2017, but while still pending there, the Greek legislature moved quickly and introduced a law in Janu- ary 2018 promulgating that:

Inheritance matters relating to members of the Thrace Muslim minority shall be governed by the provisions of the Civil Code, unless the testator makes a notarised declaration of his or her last wishes…,explicitly stating his or her wish to make the succession subject to the rules of Islamic holy law.19

This settled the matter. A year later, the European Court of Human Rights came to the same conclusion based on the rea- soning that denying such choice of forum, as the Greek Court of Cassation had done, would constitute a form of discrimination.

IV. The Ruling

The plaintiff, Molla Sali, had argued her case in terms of non-discrimination: because the Greek state requires the applica- tion of Islamic inheritance law, she was put in a more disadvanta- geous position than if she had been a widow to whom civil inheri- tance law is applied. She invoked the prohibition of discrimination as stipulated by Article 14 of the European Convention on Human Rights: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or

18 Molla Sali, supra note 1, ¶ 18. 19 Law no. 4511 (2018), art. 1, subsection 4(c), which came into force on

Jan. 15, 2018.

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other opinion, national or social origin, association with a national minority, property, birth or other status.”

In order to ascertain whether discrimination had taken place, the European Court of Human Rights followed its standard methodology in such cases: a) is the person in question discrim- inated against, b) is that discrimination justified by a legitimate aim (keeping in mind a “margin of appreciation” for the defending state), and c) are the means pursued proportional to this aim?

To ascertain the discrimination, the Court made the com- parison between the widow of a Muslim man (to whom Islamic family law applies) and the widow of a non-Muslim man (to whom civil law applies).20 The difference was clear, the Court conclud- ed, as according to Islamic inheritance law the Muslim wife would only inherit one-fourth of her husband’s estate (the sisters of the deceased are entitled to the remaining three-fourths) while the non-Muslim woman according to Greek civil law would inherit all of it (as sisters of the deceased are not considered heirs). The ap- plication of “Sharia law,” the Court explained, would deprive the Muslim widow of three-quarters of the inheritance,21 and there- fore “placed the applicant in a different position from that of a married female beneficiary of the will of a non-Muslim husband.”22

The Court then continued with the question whether this difference was justified by a legitimate aim. The Court did not fully address this question as it curtly stated that “it is not necessary for the Court to adopt a firm view on this issue because in any event the impugned measure [i.e., the imposition of Islamic inheritance law] was in any event [sic] not proportionate to the aim.”23 In other words, the Court saw no need to define and evaluate the aim of the Greek state in imposing Islamic inheritance law as this subject of the Court’s argument would be addressed in the last question on

20 The Court “needs to ascertain whether the applicant, a married woman who was a beneficiary of her Muslim husband’s will, was in an analogous or relevant- ly similar situation to that of a married female beneficiary of a non-Muslim husband’s will” (¶ 138 of the ruling).

21 Molla Sali, supra note 1, ¶ 145. 22 Id. ¶ 140. 23 Id. ¶ 143.

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proportionality. The Court was firm in its decision that the means used by

the Greek state were not proportional to the aim, for two reasons. First, the application of Islamic law to the estate at issue “had seri- ous consequences for the applicant, depriving her of three-quarters of the inheritance.”24 Second, Greece was wrong in assuming it was bound by the treaties: “The Court notes that there can be no doubt that in signing and ratifying the Treaties of Sèvres and Lausanne Greece undertook to respect the customs of the Muslim minori- ty. However…those treaties do not require Greece to apply Sharia law.”25 Moreover, the Court argued that “the highest Greek courts disagree as to whether the Treaty of Athens is still in force.”26 The Court also concluded that “the Treaty of Lausanne does not ex- plicitly mention the jurisdiction of the mufti…nor did the treaty confer any kind of jurisdiction on a special body in relation to such religious practices.”27

From this, the Court concluded that the Muslim minority in Greece has the right of choice of family law:

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 impor- tance in the field of protection of minorities, that is to say the right to free self-identification.28

The Court further argued that this freedom should allow the minority members the right to opt in to, as well as the right to opt out of, the family law that was in place specially for them.

V. Comments on the Ruling

24 Id. ¶ 145. 25 Id. ¶ 151. 26 Id. ¶ 44. 27 Id. ¶ 151. 28 Id. ¶ 157.

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a. Prohibition of Discrimination

Molla Sali argued that an obligatory application of Islamic inheritance law constituted a form of discrimination, as it would put her in a legal position that would be less advantageous than under civil law. The Court, in following her in this argument, how- ever, made a skewed comparison. Ascertaining the act of discrim- ination requires that it is done within the same environment: a woman gets paid less than the man for doing the same job; a ho- mosexual is not allowed for the same function that a heterosexual is admitted for; a woman with a headscarf is not admitted in a restaurant that allows other women. In the case of Molla Sali, that same environment is inheritance law. However, in this particular case there are two entirely different systems at work within this environment: civil and Islamic inheritance law.

In civil inheritance law, there is an equal distribution of inheritance shares among all the heirs. Islamic inheritance law, on the other hand, has a complex two-tier system.29 On the one hand, there is the equal distribution of inheritance shares among all the male heirs. This was the existing, pre-Islamic system. Islam introduced a second tier by allotting shares to those persons ex- cluded from this system. They were mostly women, like the wife, daughter, or sister of the deceased. These heirs did not share with the other male heirs, however, but were given fixed fractions of the inheritance. These fractions differed per person (daughters had a higher fraction than the widow, for instance), but could also differ depending on the composition of the family (when there are many daughters, they need to divide their fraction among themselves and may individually have less than the widow). Moreover, these fixed fractions are specifically mentioned in the Qurʾān and conse- quently enjoy an untouchable status in Islamic law.

In the case of Molla Sali we are therefore confronted with the rather unique situation of an inheritance case involving only

29 Islamic inheritance law is very structured and mathematical, but extreme- ly complex. See the seminal work by N.J. Coulson, Succession in the Muslim Fam- ily (1971).

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female heirs who, consequently, are each entitled to a so-called “Qurʾānic fraction” (farīd qurʾanīya). In this case, Islamic law is spe- cific in the legal fractions allotted to these women: one-fourth for the widow, and three-fourths for the sisters (to be divided among them).30 It is this particular case that the Court used for its com- parison with civil law. The Court held that the widow would be deprived of three-fourths of the inheritance if Islamic inheritance law were applied. She is therefore better off under civil law. That is true in this particular case. But would the Court have decided differently if the widow would have been better off under Islam- ic law? One can imagine a situation where the widow inherits less under civil law than under Islamic inheritance law.31 One can also imagine a situation where the presence of other family members had left the widow with a higher share under Islamic law than she would have received under civil law.32 In these cases, the logic of the Court would dictate that, as a matter of non-discrimination, Islamic law should be upheld, because that would be more beneficial to the widow than civil law. This brings an element of arbitrariness in the Court’s reasoning, as the measuring stick for comparison ap- plied here by the Court is—albeit unwittingly—not fair and equal treatment, but the best interests of the party in question, in this case the widow.

The Court’s assessment of non-discrimination also over- looks another consequence: it denies the legal rights of other par- ties, in this case the sisters-in-law. The Court correctly states that by applying Islamic inheritance law the widow only receives one-fourth and is deprived of the remaining three-fourths of the inheritance

30 There are no English-language tables for these calculations. A website that is helpful (but should not be considered conclusive) is Islamic Inheritance Cal- culator, http://www.inheritancecalculator.net [https://perma.cc/TFY5-F3AQ].

31 For instance, in the situation that the husband, in accordance with civil law, had bequeathed most (or all, if permissible by law) of his estate to his children or a foundation, and the wife were left with a legal share that would be less than the legal one-fourth to which she would have been entitled if Islamic law were applied.

32 For instance, in the case of male heirs like sons and a father-in-law, the Qurʾānic share of the widow would then be reduced to one-eighth, but if she had more than six sons (or four sons and four daughters), this share would then be higher than what she would receive under civil law.

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that she would otherwise receive under civil law. But the same ar- gument applies vice versa to the sisters-in-law: if Islamic inheritance law is not applied, the two sisters are equally deprived of their in- testate share under Islamic inheritance law, which is three-fourths of their brother’s estate. Either way, one of the parties is deprived of part of the inheritance, and hence put in a position that may be considered discriminatory. One may, of course, argue that the wife and the sisters of the deceased do not enjoy the same status as heirs. But this is the position that most modern European inheritance laws might take. In Islamic family law, we have seen, both the wife and the sisters of the deceased are equally entitled to legally fixed fractions of the inheritance.

In short, by comparing the position of the widow in civil and Islamic inheritance law, the Court compared apples to oranges. Moreover, in doing so, the Court did not make an absolute assess- ment, but a relative one based on an incidental and particular situ- ation. As a result, the Court had made a consideration not based on non-discrimination, but on the litigant’s best interests.

b. Interpersonal Law

The Court’s inconsistencies in comparing the

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