The European Court of Human Rights’ judgment in Molla Sali: A call for Greece to modernise its system for national-minority protection?
Greece is one of eight Council of Europe member states not to have ratified the Framework Convention for the Protection of National Minorities. It has, nevertheless, kept in place a system for safeguarding certain distinct identities, the origins of which are to be traced in pre-WWII treaties still governing important aspects of its relations with Turkey. All of these treaties contained “minority-protection” clauses. Although there is disagreement about the scope and continued validity of some of these clauses, most of the implementing domestic legislation has survived. As a result, until recently, Muslims in Greece were considered to be subject to the compulsory application of Sharia, insofar as certain family and inheritance matters were concerned. All related disputes had to be decided by clerics, the muftis, whose decisions were enforceable, under certain conditions, by the Greek civil courts.
Escaping the straitjacket of the system was not easy, as the applicant in Molla Sali discovered when her late husband’s sisters obtained an order annulling a will he had drawn up in her favour under the Greek Civil Code. The deceased was Muslim, Islamic law was applicable and the widow could only inherit one fourth of his property, the national judges eventually found.
Turning to the European Court of Human Rights was the only option left to Molla Sali, who rightly felt hard done by. The case was assigned, because of its importance, to the Grand Chamber, which on 19 December 2018 unanimously ruled that the applicant had been discriminated against in the enjoyment of her “possessions” under Article 1 Protocol No. 1. The Court, in order to reach this rather bold conclusion, implicitly considered that Islamic law had not extinguished the applicant’s “right” to inherit the remaining three fourths of the property. It also relied on the concept of discrimination by association: the violation was not linked to the applicant’s gender but to her late husband’s religion.
Although the Court has not yet decided on the amount of compensation the applicant should receive, the Greek authorities will probably not encounter any difficulties in ensuring compliance with its ruling. Shortly before the Grand Chamber hearing, the Government announced plans to make the application of Sharia optional and reduce the muftis’ role to that of arbitration courts (as this author had recommended in an article published in the JMGS in 1995). The Molla Sali judgment is, however, important because it recognises that the framework for the protection of Greece’s Muslim minority is not entirely satisfactory. It refers to “legal uncertainty” and, as specialists know, this results from the application of the pre-WWII treaties. It is also noteworthy that the judgment – contrary to Refah Partisi – refrains from criticising Islamic law as such. On the contrary, it recalls that Sharia is applied in many Europe countries by virtue of private international law and notes “with satisfaction” that the Greek government’s above-mentioned plans concerning the muftis’ role have been carried through.
In our view, Greece’s efforts to modernise its minority-protection legislation (which include reconciling the preservation of distinct religious identities with non-discrimination) deserve attention. There might be a hitch, however: Greece has always approached national-minority issues as aspects of its often-strained relations with neighbouring countries. As already suggested, the country has plenty to gain by placing these matters in a multilateral context, that of the Council of Europe and its specialised conventions. In Molla Sali, the Court reminded Greece that a lot of water had gone under the bridge since the pre-WWII treaties; standards had evolved, for example, on minority members’ right to free self-identification. Quite significantly, a 1950 UN study considered that international law did not prevent Greece from escaping these agreements’ minority-clauses straitjacket without jeopardising the overall treaty settlement. The Court’s findings in Molla Sali could, therefore, act as a catalyst for further reflection on what have become some of the most challenging legal (and sociopolitical) questions nowadays.