Personal Status for the Muslims of Thrace: Is Something Missing?
As stated above, the mufti is not only a religious leader but also a judge: According to article 5 of Law 1920/1991, “The mufti has jurisdiction over Muslim Greek citizens of his region in matters of marriage, divorce, minors' emancipation, custody, Islamic wills and ab intestat succession as far as these legal relations are governed by the Sacred Law of Islam”.
SharLa law can be directly applied only by the mufti, the sacred courts of Thrace or taken into consideration by a civil court while testing the constitutionality of the sacred court's decision. In practice, most of the mufti's field of jurisdiction concerns divorce. The Muslims of Thrace settle their will through donations in life to their heirs before a notary. The First Instance Courts have also curtailed the muftis' jurisdiction over children's custody.[240]The contact between Sharita law and civil law can be seen at three different instances: a. when applied by the mufti in the framework of his special jurisdiction according to art. 5 of Law 1920/1991; b. When the First Instance Court has to review the constitutionality and the competence exerted by the sacred court; and c. When a civil court remands a case to the sacred court denying the application of civil law (Law 4511/2018 reduced seriously this possibility). In all three cases, compatibility between Sharita law and human rights standards are at stake.
In theory, the mufti's decision should not contravene the Constitution as far as the free will of the litigant is concerned. The judicial competence of the mufti should be preferential and supplementary in the sense that Muslims are free to choose between the Civil Court and Islamic jurisdiction. If the mufti'sjurisdiction was obligatory it would be a legally imposed segregation among Greek citizens on the ground of religion, a situation which would contradict the Constitution, and international human rights law (art.
9, 14 of the Convention and Convention on the Elimination of All Forms of Discrimination against Women, art. 1, 2, 15, 16). Most of the muftis' decisions infringe women's (equality of sexes) and children's rights as endorsed by the Constitution or the Convention. The applicable Sharita law is neither standardised nor codified and is left to the broad interpretation of the judge. Two more questions in relation to the procedures taking place at the Mufti Court regard: a) right to fair trial, under article 6 of the echr, when equality of the litigants is not safeguarded, nor representation through a lawyer or predictability and visibility of the applicable law is provided; b) lack of efficient remedy for the review of the merits of the mufti's decision, and lack of effective means to review its constitutionality.[241] [242]It is not surprising that all relevant international and national monitoring bodies have repeatedly expressed their strong concerns about the issue and addressed their recommendations to align the way Sharita law is applied in Greece with the principles and norms of fundamental human rights. The Greek National Commission for Human Rights stated in 2016 that it is concerned because, “the Greek civil law does not apply to the Thrace Muslim minority regarding marriage and inheritance” while reporting to the ICERD.13 The Committee on the Elimination of Discrimination against Women, in their concluding comments and remarks (of 2007 and 2013), expressed concerns about the non-application of the general law of Greece to the Muslim minority on matters of marriage and inheritance, as Muslim communities can choose to be governed by Muslim law:
The Committee is concerned about the situation of women in the State party in the area of marriage and inheritance. It is concerned that this situation leads to discrimination against Muslim women, in contravention of the Greek Constitution and article 16 of the Convention,
and called the Greek government
to fully harmonise the application of local Sharita law and general law in the State party with the provisions on non-discrimination of the Convention, in particular with regard to marriage and inheritance.[243] [244] [245] The Committee recommended that the government train the legal profession, including the judiciary, as well as ethnic communities’ and religious leaders on the Convention and the Committee’s General Recommendations and encourage them to refer to the Convention and the norms and standards contained therein?5 The UN Committee on Human Rights of the International Covenant on Civil and Political Rights expressed its concern about the problems Muslim women could face because general Greek law in the field of marriage and inheritance did not apply to the Muslim minority in Thrace. It strongly urged Greece “to increase the awareness of Muslim women of their rights and the availability of remedies, and to ensure that they benefit from the provisions of Greek civil law,,.i6 Lastly, the most recent report on Islam in Europe, presented before the Parliamentary Assembly of the Council of Europe, upholds that “the application of Sharita law in Western Thrace is prejudicial to women”.[246] [247] [248] Despite the above-mentioned critique from a human rights viewpoint, the Greek government fell short in attempting to reform the sacred courts and the applicable law, although they never expressed an overt support to the mandatory applicability of Sharita or the subordination of the principle of nondiscrimination to Sharita. 59. The law provides for the potential application of the Sharita law in matters of family and inheritance law among members of the Muslim minority in Thrace. The choice whether to use the ShafTa or the Greek Civil Code in the above mentioned matters is made by the members of the Muslim minority themselves. As shown over the last years, by cases involving women from the minority, this option is a fact of life in Thrace. 60.Members of the Muslim minority in Thrace are completely free to address themselves either to the civil courts or the local Muftis. Whenever they choose the former, general legislation is applied. Whenever they choose the latter, the Sharita law is implemented to the extent that its rules are not in conflict with the fundamental values of the Greek society and the Greek legal and constitutional order. The law provides that the courts shall not enforce decisions of the Muftis which are contrary to the Greek Constitution. In this respect, derogations from civil law provisions are minor: concepts such as polygamy, marriage below legal age without court permission, marriage by proxy, repudiation, etc. are not allowed, on the basis of the aforementioned principle. 63. Finally, it is important to clarify that in Greece there are no “parallel legal orders” or “separate societies”, dependant on the religious affiliation of Greek citizens. Muslim women of the minority are fully included in gender equality policies and participate in relevant programs implemented by the competent authorities. Despite these declarations made by the Greek government, the Greek civil courts often deny justice to Muslim litigants and remand the case to the mufti or uphold that the mufti's judgments do not breach the constitutional principle of equality of sexes. In some other cases, Muslim testators were not allowed to draft public wills. The courts held that only Sharita law was applicable and therefore only Islamic will or intestate succession were available to them. The established case-law on the applicability of Sharita law, mostly endorsed by the Court of Cassation (Areios Pagos), renders Islamic law mandatorily applicable and the civil code inaccessible to Muslims of Thrace. 6