By İlker Tsavousoglou, Doctoral Candidate at Human Rights Centre, Ghent University, Attorney at Law
On 19 December 2018, the European Court of Human Rights delivered its judgement on the case of Molla Sali v. Greece. In its ruling, the Grand Chamber unanimously held that there has been a violation of Article 14 of the European Convention on Human Rights in conjunction with Article 1 of Protocol No. 1 to the Convention. The Applicant, Ms Chatitze Molla Sali, a Greek national and member of the Muslim minority of Western Thrace, was the beneficiary of her deceased husband’s estate based on a notarised testament of civil law. Following a domestic legal dispute, the Greek Court of Cassation found that the will drafted by a Greek of Muslim faith is devoid of effect. This was because, pursuant to a series of binding international agreements and the relevant domestic norms, the law applicable to the case was Islamic inheritance law instead of the relevant civil law.
The case concerned the legal fate of the inheritance left by the Applicant’s late husband. Both the Applicant and her husband were members of Muslim minority community. In February 2008, before his death, the deceased, Mustafa Molla Sali, had visited a notary and had drawn up a will in accordance with the canons of the Greek Civil Code. By that will, he had bequeathed the whole of his property to his wife, Ms Chatitze Molla Sali. Ηis deed, practically, resulted in the exclusion of the rest of his family from his estate and specifically his two sisters. In June 2008, the will had been opened and approved by the Court of First Instance of Komotini. In April 2010, the Applicant proceeded to the formal acceptance of the inheritance while taking all the necessary steps in order to register the property with the pertinent Land Registry.
In the meantime, in December 2009, the two sisters of the deceased had initiated legal procedures with the aim to challenge the validity of the will drafted by their brother. Specifically, they argued in the national judicial proceedings that they and the deceased belonged to the Muslim minority of Western Thrace and that, on grounds of binding international obligations, namely the Treaty of Sevres (1920) and the Treaty of Lausanne (1923), Islamic law was the applicable law to certain relations of Greek nationals of Muslim faith. Hence they claimed that any aspect of succession to the proprietary rights of the deceased should have taken place according to Islamic law of inheritance instead of the rules of the Civil Code and consequently that they should have inherited three-quarters of the estate. However, neither the Rhodope Court of First Instance nor the Thrace Court of Appeal withheld their argumentation. Both courts found that it was not legally possible to invalidate such a testament without causing a prohibited discriminatory treatment. The Court of Appeal, particularly, underlined inter alia that the testator was not obliged to observe religious law. This was because a Greek citizen of Muslim faith was free to choose the type of will by which he/she wishes to determine the fate of his/her post mortem property, exercising a right under the same legal position as all Greek citizens. It added as well that Islamic law did not regulate public wills, which in any event did not fall under the jurisdiction of the Mufti.
In January 2012, the sisters of the testator appealed on points of law and resorted to the Greek Court of Cassation (Areios Pagos). Respectively, the Court of Cassation reiterated its long-established position that Islamic law is being applied in Greece as domestic law based on obligations deriving from international law, part of which was also the Treaty of Athens (1913). Consequently, as the court maintained, the interpersonal relations of the Greeks of Muslim faith were governed by their religious law and the Mufti was allowed to exercise jurisdiction on a number of matters including Islamic wills and intestate succession. Moreover, it stressed that the above regulation, relevant specifically to Greeks of Muslim faith, was introduced in the national legal order pursuant to Article 28 of the Constitution which accorded it prevalence over any other norm of the opposite stipulation. As a result, it decided that the appellate court had breached the existing legal framework because the law applicable to the case in issue had to be the Islamic law of succession. Finally, it added that the estate in dispute was characterised as mülk which according to the former Ottoman law was known as belonging to private individuals and used to be governed by religious law. As a consequence, the will of the deceased had to be ruled invalid. The case, then, was remitted to the Thrace Court of Appeal.
Following the remittal of the case, the Court of Appeal aligned with the judgment of the Court of Cassation. A second recourse of the Applicant to the Court of Cassation was not successful either. Ms Molla Sali, then, resorted to the ECtHR complaining that there had been a breach of Article 6 § 1 of the Convention read and in conjunction with Article 14 and Article 1 of the Protocol 1 to the Convention.
The Grand Chamber
First of all, it is worth noting that the Court considered the case only in the scope of Article 14 in conjunction with Article 1 of the Protocol No.1, leaving aside Article 6 § 1 of the Convention. In the assessment of the application, the Court focused principally on the fact that applying Islamic law counter to the will of the deceased entailed the invalidation of the latter and the deprivation of the rights of the Applicant. The examination was deployed on the basis of three major steps. First, the Court considered the applicability of Article 14 in conjunction with Article 1 of the Protocol No.1. In this respect, it was necessary to see that the fact of the case or, in other words, the proprietary elements deprived of the applicant, constituted “possession” according to Article 1 of Protocol No 1. It was then checked whether the applicant was in an analogous or relevantly similar situation to that of a beneficiary of a civil law will drafted by a non-Muslim testator and whether the treatment she suffered was different yet reasonably justified.
Respectively, it was established that the disputed proprietary elements, indeed constituted “possession” within the wide meaning of the Convention, and thus was enforceable according to domestic law and guaranteed in the scope of Article 1 Protocol No 1. In view of the developments in the national legal order, the Court subsequently ascertained, on the one hand that Ms Molla Sali has been placed in a different position as compared to that of a married female beneficiary of the testament of a non-Muslim husband while on the other that religion was the ground of the differential treatment.
However, as the Court pointed out, difference in treatment can be excused only if it is objective and reasonably justified. According to the Court’s position, differential treatment can be justified when it demonstrates a “legitimate aim” or there is a “reasonable relationship of proportionality” between the means used and the aim pursued. The Government from its part argued that the application of Islamic law was based on international agreements and derived from the nature of the property as mülk . Thus the treatment described was justified because Greece sought to honour its agreements and provide protection to the Muslim minority as foreseen in the above-mentioned treaties. The Court found that the wording of the Treaties of Sèvres and Lausanne does not provide for any application of religious law nor does the latter refer to any certain Mufti jurisdiction Without considering the examination of the legitimacy aspect necessary, the Court decided that the described divergence in treatment was not justified. In other words, it held that the measure implemented was not proportional to the aim pursued.
Further, the Court noted that divergent case law in the national legal order, with regard to the application of Islamic law and its compatibility with the equality principle and international human rights standards, has created legal uncertainty that was in conflict with the rule of law. The Court added that the ambiguity of the situation in Thrace had been obvious enough to be observed by various international bodies as well. Most importantly, however, the Court reiterated that freedom of religion does not necessitate the establishment of a special regime in order to acknowledge religious communities a status which involves particular prerogatives. In any case, it was noted that a State that had already introduced such a status should guarantee that the conditions set forth for the group’s access to it are applied in a non-discriminatory way. This is because denying members of a religious community to exit the minority confines and resort to regular law leads not only to discriminatory treatment but also to a violation of a right of chief importance that is the right to self-identification. The Court highlighted that this right constitutes a cornerstone in international law on the protection of minorities. Particularly, in its negative reading, it conveys the meaning that, in the name of minority protection, nobody is required to be subject to a particular regime without his/her consent. Consequently, the Court held unanimously that there has been a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No 1 to the Convention.
Lastly, in his concurring opinion Judge Mits agreed with the outcome, however, he expressed reservations as to whether the Court had to address the complaint on grounds of the sex of the applicant as well as on grounds of the results of the implementation of a special religious regime in a culturally diverse context within the wider European confines. He concluded by stressing that there had been a violation of the said articles, yet that was on the grounds of both the applicant’s and her husband’s religion.
The judgement in the case of Molla Sali v. Greece has been a much-awaited judgement. This is because it was the first time a legally plural regime originating in religious diversity, was to be scrutinised by a major international adjudicatory body in the light of an international legal framework as significant as the European Convention on Human Rights. Moreover, the regime under examination was unique in its occurrence and, after approximately a century of existence, still a functioning instance of official legal pluralism in the European context.
The European Court of Human Rights delivered a fair judgement. Ms Molla Sali had indeed been treated discriminatorily on grounds of religious beliefs. However, what is equally significant is not only the outcome itself but the way the Court has arrived to the stated conclusion. Therefore, I address below a few points that I consider questionable in the reasoning of the said judgment.
First of all, I refer to the approach the Grand Chamber adopted as regards the aim and the reading of the international treaties, relevant to the application of Islamic law in Thrace. In particular, the Court aptly recognised that the treaties of Sèvres and Lausanne bear a protective character of the respective minority. Yet, focusing on the wording of the texts, the Court inferred that neither the adoption of religious law was mandatory nor the establishment of any religious jurisdiction was specifically foreseen. However, in my opinion, this was not necessarily the legally appropriate interpretation. If not generally, surely in this case, grammatical interpretation disregards both the general historical and legal context as well as the nature of these international agreements. The Treaty of Lausanne, specifically, is a residue of the League of Nations period of international law . Moreover, along with the treaties of Athens and Sèvres, it constitutes the legal foundation for the adoption of a millet-style legal pluralism . The former Ottoman way of administration (millet) was known for the freedom it accorded to various religious minorities, to regulate —inter alia— their family and inheritance relations according to their customs, even to settle their disputes before their special religious forums. Therefore, an international treaty context which aims to protect the distinctiveness of the Muslim minority, that introduces freedoms and rights, befits a teleological-inclusive rather than a confining interpretation. In this respect, it is not unusual to consider that within the said framework both the application of Islamic law and the function of a religious jurisdiction was/is appropriate.
Second, it seems that the confusion and legal uncertainty that permeates the wide spectrum of the national jurisprudence and case law has affected the reasoning of the Court. It is worth noting that, in the domestic legal order, there is no such legislation which prohibits the possibility of Muslims to choose between jurisdictions. Empirical knowledge from the field demonstrates that contemporarily, yet recently increasingly, the members of this minority community could conclude civil marriages, resort to inter vivos property transfers or draft wills and inherit on grounds of testate succession. However, what was not possible was the switch between forums once their jurisdiction was established (e.g. after the conclusion of a religious marriage instead of a civil). In this light, it seems that the issue in hand was created partly by the poor regulatory framework and partly by controversial interpretation of the relevant law by the Greek Court of Cassation.
Thirdly, it is unfortunate that the Court rushes to make general claims about Islamic law as a source of ill-treatment of minority individuals. Without intending to defend possible problems inherent to Islamic jurisprudence, I believe there are certain caveats that apply to the Court’s position. First, Islamic law is not a concrete body of law and most importantly, like all religions, it can show diversity of interpretation according to context, that is mainly time and place. Similarly, religious law in Thrace demonstrates its own particularities. Islamic law in this region is related to the religious customs and traditions of the local Muslim/Turkish minority which are neither identified as the Treaty of Lausanne provides nor codified. Moreover, its scope is very limited and highly influenced by an inadequate national legal framework and questionable State policy towards the minority . These are generally the reasons why the Greek case is not relevant to legal pluralism and the application of Muslim law in contexts such as the UK or other European countries.
In conclusion, I tend to believe that the Court has not fully comprehended how legal pluralism and the application of Islamic law in Western Thrace had been introduced and is being applied. It was not necessarily Sharia law that resulted in the discriminatory treatment but the way it was implemented . Eventually, and albeit the Court refrained from the assessment of legitimacy, the aim of the Greek polity to protect the religious distinctiveness of the minority was/is legitimate, yet the means exerted to this end were not adequate and reasonably proportionate. The point of significance, though, as I tried to show above, was why those means did not carry the said qualities.
 Under Ottoman law mülk was known as a freehold land tenure acknowledged to individuals. In contrast, land could be State-owned, namely arazi-i emiriye.
 Thornberry P. (1991) International Law and the Rights of Minorities, Oxford University Press, pp. 38-54.
 See Tsitselikis, Κ. (2012) ‘Aspects of Legal Communitarianism in Greece: Between Millet and Citizenship’ Oñati Socio-legal Series 2 (7), p. 109, where he defines this system as ‘neo-millet’; see also, Tsavousoglou, I. (2015) ‘The Legal Treatment of Muslim Minority Women under the Rule of Islamic Law in Greek Thrace’, Oslo Law Review (Special Issue: Legal Pluralism) p. 244.
 Western Thrace has been contemporarily a region of polarisation and competing political interests between Greece and the kin-State of the minority that is Turkey. See, for example, Tsitselikis K. (2012-2013) ‘Seeking to Accommodate Shari’a within a Human Rights Framework: The Future of the Greek Shari’a Courts’ Journal of Law and Religion 28 (2) 341, 351;
 Past tense is used here because the regulatory framework of Islamic law in Thrace has been amended already a year before the delivery of the judgement in issue (see paragraph 160 of the judgment). Specifically, by Law 4511/2018 religious jurisdiction has been rendered exceptional. According to this major amendment, all legal affairs of minority members are now considered to be regulated by civil law. Mufti jurisdiction can be established only when prospect litigants agree to resort to the Mufti