The Failed Citizenship

Equality before the law and the principle of non-discrimination are pillars of democracy and rule of law. A pluralistic society also demands special treat­ment for those who have special needs.

The jurisdiction of the mufti for Muslim personal status in Thrace, as it is applied by the Greek juridical authorities, has a mandatory character for all Muslims which results in denial of justice for those who would otherwise opt to submit their cases before the general civil courts. In the case presented above (Molla Sali v Greece), the freedom of a Muslim of Thrace to opt for one or the other law in accordance to international human rights law is essential for the whole political program that civic citizenship entails: Namely, a global equality of citizens before the law, beyond origin or religion.^[263] The prevailing judicial practice that breaches the human rights of the members of the Muslim minority fragments the uniform citizenship and undermines/frustrates the le­gitimate expectation that fundamental norms of rule of law are universally applicable. It can be also asserted that the Court of Cassation by upholding that Shari^ta law has to be applied even against the wish of the testator brought severe interference with the right of all Muslims of Greek citizenship to have fair proceedings.

The mandatory referral to Shari^ta law by the Greek courts against the wishes of the litigant and the elimination of the legal effects already produced by the civil courts rulings annul the context of ‘active citizenship' that presupposes active civic membership within a given society and legal order.

any obligations that may arise out of the 1923 Lausanne Peace Treaty, or any other early 20th century treaty, should be viewed and interpreted in full and effective compliance with the subsequent obligations under­taken by the ratification of European and international human rights instruments^[264]

Then, as already said, the non-discrimination principle has to be tested: The restrictions against Muslim (female) plaintiffs from having access to Civil Courts systematically undermines the equality of individual Muslim women when Shari^ta law is applied. It is also worth noting that, while women have the choice to appeal to the civil court, in practice they face social pressures to appeal before the mufti. The UN Human Rights Committee commented on this issue, urging 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”.^[265]

The ECtHR adopted most of these comments: It upheld that there was viola­tion of the right to property in conjunction to the prohibition of discrimina­tion. Most important, the Court said “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 impor­tance in the field of protection of minorities, that is to say the right to free self­identification” (para.

An amendment to the Mufti's law, anticipating the ECtHR judgment, was submitted in December 2017 before the Parliament and finally adopted by Law 4511/2018. It made clear that the civil courts will have competence by default for all civil disputes, unless both of the litigants make an agreement to have their case adjudicated by the mufti. Moreover, all wills drafted by a Muslim can be subject to civil law. By a Presidential Decree the mufti's court procedure will be also regularised. After the implementation of the new law which com­menced in October 2018 through a new amendment to the law, it is expected that the number of cases brought before the mufti will be considerably de­creased. However, the questions of incompatibility of the content of the ap­plicable law by the Mufti will be still remaining open.

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