Last Updated on May 2, 2019 by LawEuro
Information Note on the Court’s case-law 224
December 2018
Molla Sali v. Greece [GC] – 20452/14
Judgment 19.12.2018 [GC]
Article 14
Discrimination
Application of Islamic law (sharia) in litigation concerning succession to estate of Greek Muslim: violation
Facts – On the death of her husband, the applicant inherited his entire estate under the terms of a will he had drawn up before a notary. The deceased’s two sisters contested the will on the grounds that their brother had belonged to the Muslim community and that all matters relating to his estate were therefore subject to Islamic religious law and to the jurisdiction of the mufti rather than to the provisions of the Greek Civil Code. They relied in particular on the 1920 Treaty of Sèvres and the 1923 Treaty of Lausanne, which provided for Islamic customs and Islamic religious law to be applied to Greek nationals who were Muslims. Following the remittal of the case by the Court of Cassation, the Court of Appeal held that the law applicable to the deceased’s estate was Islamic religious law and that the public will in question did not produce any legal effects.
On 6 June 2017, at the applicant’s request, the Chamber to which the case had been assigned relinquished jurisdiction in favour of the Grand Chamber.
Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1: The case concerned the applicant’s right to inherit under a will made in her favour, in accordance with the Civil Code, by a Greek testator of Muslim faith. Whereas the applicant’s husband had decided to bequeath his whole estate to her, the Court of Cassation had considered that the Islamic law of succession should be applied to her case. That had had the consequence of depriving the applicant of her rights under the will made by her husband, which was rendered without any legal effect.
The applicant’s proprietary interest in inheriting from her husband was of a sufficient nature and sufficiently recognised to constitute a “possession” within the meaning of the rule laid down in the first sentence of the first paragraph of Article 1 of Protocol No. 1. Consequently, the applicant’s proprietary interest fell within the ambit of that provision and of the right to respect for property guaranteed therein, which was sufficient to render Article 14 of the Convention applicable.
(a) Whether there was an analogous or relevantly similar situation and a difference in treatment – During his lifetime the applicant’s husband, who was a member of the Thrace Muslim community, had drawn up a notarised public will in accordance with the provisions of the Civil Code, bequeathing his entire estate to his wife. It was beyond doubt that she had expected, as any other Greek citizen would have done, that on her husband’s death his estate would be settled in accordance with his will.
The Court of Cassation had found that the law applicable to the deceased’s estate had been the Islamic law of succession, which was part of domestic law and which applied specifically to Greek Muslims, thereby placing the applicant in a different position from that of a married female beneficiary of the will of a non-Muslim husband.
The applicant, as the beneficiary of a will made in accordance with the Civil Code by a testator of Muslim faith, was in a relevantly similar situation to that of a beneficiary of a will made in accordance with the Civil Code by a non-Muslim testator, and was treated differently on the basis of “other status”, namely the testator’s religion.
(b) Whether the difference in treatment was justified – The Government submitted that the settled case-law of the Court of Cassation pursued an aim in the public interest that was the protection of the Thrace Muslim minority. In the particular circumstances of the case, the Court doubted whether the impugned measure regarding the applicant’s inheritance rights had been suited to achieve that aim. However, it was not necessary for the Court to adopt a firm view on that issue because in any event the impugned measure was not proportionate to the aim pursued.
The application of Sharia law to the estate in issue had serious consequences for the applicant, depriving her of three-quarters of the inheritance. The main consequence of the approach adopted by the Court of Cassation in inheritance cases was that notarised wills drawn up by Greek nationals of Muslim faith were devoid of legal effect because Sharia law only recognised intestate succession, except in the case of Islamic wills.
There could be no doubt that, in signing and ratifying the Treaties of Sèvres and Lausanne, Greece had undertaken to respect the customs of the Muslim minority. However, in view of the wording of the provisions in question, those treaties did not require Greece to apply Sharia law. More specifically, the Treaty of Lausanne did not explicitly mention the jurisdiction of the mufti, but guaranteed the religious distinctiveness of the Greek Muslim community, which had been excluded from the population exchange provided for in that treaty and had been expected to remain in Greece, where the large majority of the population was Christian. Nor did the treaty confer any kind of jurisdiction on a special body in relation to such religious practices.
Several international bodies had expressed their concern about the application of Sharia law to Greek Muslims in Western Thrace and the discrimination thus created, in particular against women and children, not only within that minority as compared with men, but also in relation to non-Muslim Greeks. For instance, in his report following his 2008 visit to Greece (see document CommDH (2009)9), the Commissioner for Human Rights of the Council of Europe noted that the application of Sharia law to matters concerning family law and inheritance was incompatible with the international undertakings entered into by Greece, particularly after its ratification of the post-1948 international and European human rights treaties, including those relating to the rights of the child and women’s rights. He recommended that the Greek authorities interpret the Treaty of Lausanne and any other early twentieth-century treaty in compliance with their obligations flowing from international and European human rights instruments.
Freedom of religion did not require the Contracting States to create a particular legal framework in order to grant religious communities a special status entailing specific privileges. Nevertheless, a State which had created such a status had to ensure that the criteria established for a group’s entitlement to it were applied in a non-discriminatory manner. Refusing members of a religious minority the right to voluntarily opt for and benefit from ordinary law amounted not only to discriminatory treatment but also to a breach of a right of cardinal importance in the field of protection of minorities, that was to say the right to free self-identification. The negative aspect of that right, namely the right to choose not to be treated as a member of a minority, was not limited in the same way as the positive aspect of that right. The choice in question was completely free, provided it was informed. It had to be respected both by the other members of the minority and by the State itself. No bilateral or multilateral treaty or other instrument required anyone to submit against his or her wishes to a special regime in terms of protection of minorities.
In 2018 the law abolishing the special regulations imposing recourse to Sharia law for the settlement of family-law cases within the Muslim minority came into force. Recourse to a mufti in matters of marriage, divorce or inheritance was now only possible with the agreement of all those concerned. Nonetheless, the provisions of the new law had had no impact on the situation of the applicant, whose case had been decided with final effect under the old system in place prior to the enactment of that law.
In conclusion, the difference of treatment suffered by the applicant, as a beneficiary of a will drawn up in accordance with the Civil Code by a testator of Muslim faith, as compared to a beneficiary of a will drawn up in accordance with the Civil Code by a non-Muslim testator, had had no objective and reasonable justification.
Conclusion: violation (unanimously).
Article 41: reserved.
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