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Seeking to Accommodate Shari'a Within A Human Rights Framework: The Future of The Greek Shari'A Courts

Published online by Cambridge University Press:  24 April 2015

Konstantinos Tsitselikis
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The Balkans, a region where Christianity and Islam have come into close contact since before World War Ii, is an interesting study in legal pluralism. The millet system, under which distinct ethnic-religious communities including Muslims were granted partial institutional autonomy, was at that time a convenient legal paradigm to accommodate minorities within the new national states being created. However, the communist regimes that succeeded the War in the Balkans eradicated legal pluralism in favor of a uniform legal order. As a consequence, the authority to employ shari'a in Muslim communities in this region was abolished under communism.

The political changes occurring in the Balkans after communism was dismantled in the 1990s did not bring back the shari'a courts in most of the Balkans. However, Greece, having escaped these radical political shifts, retained a continuous legal regime that included some legal autonomy granted to the Greek Muslim population that survived a population exchange with Turkey at the end of the Greek-Turkish war of 1919-1922. As a result of the Lausanne treaty, the Muslim population of (Western) Thrace in Greece was granted a special minority protection regime that applied shari'a law to Muslim Greek citizens residing in that region of Thrace. However, shari'a is only applied to certain disputes of family and inheritance law by the local Mufti in Western Thrace who has special jurisdiction over these matters.

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Articles
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Journal of Law and Religion , Volume 28 , Issue 2 , January 2013 , pp. 341 - 360
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Copyright © Center for the Study of Law and Religion at Emory University 2013

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References

1. See Crossing the Aegean: an Appraisal of the 1923 Compulsory Population Exchange Between Greece and Turkey (Hirschon, Renee ed., Berghahn Books 2003)Google Scholar.

2. The Treaty of Constantinople (1881) adopted this paradigm, followed by the Treaty of Athens (1913), which established the special jurisdiction of the Muftis over the more than half a million Muslims who became Greek citizens. A series of Greek laws implemented the provisions of the Treaty of Athens (Article 11 of the Act 4734/1913, Article 4 of Act 147/1914). The special Shari'a courts chaired by a single judge, the Mufti, were organized by Act 2345/1920.

3. The Muftis were inherited from the Ottoman legal order into the Greek system as leaders of the local Muslim communities and interpreters of shari'a law. They were/are heading the Mufti Office and assumed limited adjudication on personal status within the secular Greek legal order.

4. The Muftis in Greece have been granted jurisdiction over personal status issues (pertaining to some aspects of family and inheritance law) of the Muslims of Greek citizenship since the treaties of 1881, 1913, and 1923. Before the population exchange, there were about fifty Mufti Offices throughout Greece that also had a leading political role as representatives of the Muslim communities. Today there are three Muftis in the region of Thrace heading the respective Mufti Office. Tsitselikis, Konstantinos, Old and New Islam in Greece: From Historical Minorities To Immigrant Newcomers 557-59 (Martinus Nijhoff Publishers 2012)CrossRefGoogle Scholar.

5. Convention Concerning the Exchange of Greek and Turkish Populations and Protocol, Greece-Turkey, art. 2, Jan. 30, 1923, 32 L.N.T.S. 77, available at League Of Nations: Treaty Series, http://treaties.un.org/doc/publication/unts/lon/volume%2032/v32.pdf.

6. Treaty of Peace, Signed at Lausanne, arts. 37-45, July 23, 1923, 28 L.N.T.S. 13, available at League Of Nations: Treaty Series, http://treaties.un.org/doc/publication/unts/lon/volume%2028/v23.pdf [hereinafter Treaty of Lausanne].

7. Treaty Concerning the Protection of Minorities in Greece, Aug. 10, 1920, 28 L.N.T.S. 243, available at League of Nations: Treaty Series, http://treaties.un.org/doc/publication/unts/lon/volume%2028/v28.pdf [hereinafter Treaty of Sevres]. Article 14, par. 1 of the Treaty of Sevres provided that “Greece agrees to take all necessary measures in relation to Moslims to enable questions of family law and personal status to be regulated in accordance with Moslim usage.”

8. Tsitselikis, supra note 4, at 170-75.

9. Nomos (1991:1920) Κύρωση της από 24-12-1990 Πράξης Νομοθετικού Περιεχομένου «Περί Μουσουλμάνων Θρησκευτικών Λειτουργών» [Ratification of Dec. 24, 1990 by Legislative Act “The Muslim Religious Workers”) Ephemeris Tes Kyverneseos Tes Hellenikes Demokratias [E.K.E.D.] 1991, A: 11 [hereinafter Act 1920(1991)].

10. Id. at art. 5a.

11. Id. at art. 3, par. 3.

12. Minaidis, S., Religious Freedom Of The Muslims In The Greek Legal Order 363 (A.N. Sakkoulas 1990) (Greek)Google Scholar; Tsitselikis, Konstantinos, The Mufti's Position in the Greek Legal Order, in Legal Issues Of Religious Alterity In Greece 271 (Christopoulos, D. ed., Kritiki 1999) (Greek)Google Scholar; Tsitselikis, Konstantinos, Personal Status of Greece's Muslims: A Legal Anachronism or an Example of Applied Multiculturalism?, in The Legal Treatment Of Islamic Minorities In Europe 109 (Beck-Peccoz, Roberta Aluffi & Zincone, Giovanna eds., Peeters 2004)Google Scholar, Ktistakis, Y., The Holy Law Of Islam And Muslim Greek Citizens (Sakkoulas 2006) (Greek)Google Scholar; Tsitselikis, Konstantinos, The Jurisdiction of the Mufti as a Religious Judge: On the Occasion of the Case No. 405/2000 of the First Instance Court of Thiva, 49 Nomiko Vima 583 (2001) (Greek)Google Scholar; Wilson, Robin Fretwell, Privatizing Family Law in the Name of Religion, 18 Wm. & Mary Bill RTS. J. 925 (2010)Google Scholar.

13. Such as the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

14. Tsitselikis, Konstantinos, Applying Shari'a in Europe: Greece as an Ambivalent Legal Paradigm, in Yearbook Of Muslims In Europe 673 (Nielsen, Jorgen, Akgônül, Samim, Alibaàic, Ahmet, Maréchal, Brigitte & Moe, Christian eds., Brill 2010)Google Scholar.

15. As regards equality of sexes, a similar narrow interpretation has applied since 2008 concerning the Mufti's competence related to the custody of minors, and the decisions of the Muftis in this matter remain unenforceable. Ktistakis, Y., The Holy Law Of Islam And Muslim Greek Citizens (Sakkoulas 2006) (Greek)Google Scholar.

16. The Mufti of Komotini is considered highest in rank among the three Muftis of Thrace. It should be noted that the Mufti of Rhodes (in the Dodecanese Islands) has no legal status.

17. Tsitselikis, Mufti's Position, supra note 12, at 298.

18. The following describes the cases taken by the Mufti of Komotini for the period 1998-2008: 1998: eighty-seven divorces, one case on nafaka, five cases on custody of minors; 1999: ninety-nine divorces, seven cases on nafaka, ten cases on custody of minors; 2000: seventy-one divorces, three cases on nafaka, eight cases on custody of minors; 2001: ninety-three divorces, five cases on nafaka, four annulments of marriage, six cases on custody of minors; 2002: ninety-five divorces, five cases on nafaka, one annulment of marriage, eleven cases on custody of minors; 2003: seventy-seven divorces, six cases on nafaka, one annulment of marriage, fourteen cases on custody of minors; 2004: eighty- six divorces, six cases on nafaka, three annulments of marriage, ten cases on custody of minors; 2005: seventy-four divorces, three cases on nafaka, one annulment of marriage, nine cases on custody of minors; 2006: ninety-eight divorces, two cases on nafaka, three annulments of marriage, eight cases on custody of minors; 2007: one hundred divorces, three cases on nafaka, one annulment of marriage, eleven cases on custody of minors, two on annulment of will; 2008: eighty-six divorces, four cases on nafaka, seven cases on custody of minors. The ad interim Moufti of Didymoteiho issued in 2000 thirty-one divorces, in 2001 forty-three, and in 2002 thirty-one, including alimony and custody.

The Moufti of Xanthi issued fifty-seven decisions on divorces, seven on custody of minors, and one on will in 2003.

Tsitselikis, supra note 8, at 401 n.172.

19. In most European countries a judge cannot be elected; he must be appointed by the state and must enjoy independence from community pressure. According to Greek Constitution judges are appointed for life term. 1975 Syntagma [SYN.] [Constitution] 88.

20. Act 1920 (1991), art. 7.

21. See sources cited, supra note 12.

22. Vemund Aarbakke, The Muslim Minority of Greek Thrace (2000) (unpublished Ph.D. dissertation, University of Bergen).

23. Act 1920 (1991), art. 1.

24. Tsitselikis, Mufti's Position, supra note 12.

25. Interview with Meco Cemali, Mufti of Komotini, in Komotini (May 2, 2010).

26. Act 1920 (1991), art. 5, par. 3.

27. Ktistakis, supra note 12.

28. See sources cited supra note 12.

29. Tsitselikis, supra note 8.

30. See relevant binding documents protecting international human rights, supra note 13.

31. Tsaoussi, Aspasia & Zervogianni, Eleni, Multiculturalism and Family Law: The Case of Greek Muslims, in European Challenges In Contemporary Family Law 209, 219, (Boele-Woelki, Katharina & Sverdrup, Tone eds., Intersentia 2008)Google Scholar.

32. “The appointment by government of religious officials, such as Muftis, infringes on the right of persons belonging to the Muslim minority to effectively participate in the decision-making processes that affect their daily lives.” Independent Expert on Minority Issues, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, 95, U.N. Doc. A/HRC/10/1 l/Add.3 (Feb. 18, 2009).

33. Serif v. Greece, 1999-IX Eur. Ct. H.R., hammarberg http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58518; Agga v. Greece (No. 2), Eur. Ct. H.R. (2002), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60690; Agga v. Greece (No. 3), Eur. Ct. H.R. (2006), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-76317; Agga v. Greece (No. 4), Eur. Ct. H.R. (2006), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-76319.

34. Serif, 1999-IX 53. In a similar case concerning the Mufti of Bulgaria, the Court held that “In democratic societies the State does not need to take measures to ensure that religious communities are brought under a unified leadership,” Hasan v. Bulgaria, 2000-XI Eur. Ct. H.R. 78, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58921.

35. The ordre public (public policy) consists of a series of fundamental norms and principles that supersede and reflect the legal, social, economic, religious, ethical, and other beliefs that govern legal relations. The concept is related to norms that are so fundamental for the legal order that they have to be respected, regardless of procedural obstacles. Among many others, see de Lange, Roel, The European Public Order, Constitutional Principles and Fundamental Rights, 1 Erasmus L. Rev. Issue 1, at 3 (2007)Google Scholar. Overriding of the ordre public occurs when these beliefs are offended and legal relations are disrupted. This flexible definition allows for restrictive interpretations of the law, which may reflect the opinion of a majority to the detriment of a minority. Both ECJ and ECtHR have dealt with the principles connected to constitutional norms that constitute the “hard core” legal framework within which the legal order operates.

36. Commissioner for Human Rights of the Council of Europe, Report by Thomas Hammarberg Following his Visit to Greece on 8-10 December 2008, 59–61, CommDH(2009)9 (Feb. 19, 2009)Google Scholar.

37. Refah Partisi v. Turkey, 2003-II Eur. Ct. H.R. at 126-28, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60936.

38. The Refah political party declared that in the name of respect for legal pluralism, “The citizen must be able to choose for himself which legal system is most appropriate for him, within a framework of general principles. Moreover, that has always been the case throughout our history…. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace. Why, then, should I be obliged to live according to another's rules?” Id. at 28 (quoting Mr. Necmettin Erbakan).

39. Id. at 70-76.

40. “And if you rule between people you must rule with justice” Koran, sura 4.58. “O ye who believe! Stand out firmly for God as witness to fair dealing and let not the hatred of others to you make you swerve to wrong and depart from justice. But just: That is next to piety, and fear God is well acquainted with all that ye do” Id. at sura 5.8.

41. “After carefully digesting what these new giants of Shari'a law “of the university of Cairo” wrote, I am fully convinced that the corpus-juris elaborated by the jurists of the past is not a closed book, but an open one which can be brought to life and rejuvenated in order to cope with the requirements of the modem world.” Kosheri, Ahmed Sadek El, Islamic Schools of Law, in Islamic Law And Its Reception By The Courts In The West 43 (Christian v. Bar ed., Karl Heymanns Verlag Kg 1999)Google Scholar.

42. Karčič, Fikret, The Bosniaks And The Challenges Of Modernity (El-Kalem 1999)Google Scholar. For the accommodation of secularism and “European values” such as rule of law and human rights by Bosnian Islam, see Moe, Christian, A Sultan in Brussels? European Hopes and Fears of Bosnian Muslims, 55 Sudost Europa 374 (2007)Google Scholar.

43. Karčič, supra note 42.

44. See, e.g., the case of codification of Islamic law in Egypt, Sonbol, Amira El Azhary, Law and Gender Violence in Ottoman and Modern Egypt, in Women, The Family And Divorce Laws In Islamic History (Sonbol, Amira El Azhary ed., Syracuse Univ. Press 1996)Google Scholar.

45. Press Release, Presidents of the Bar Ass'ns in Greece (May 2, 2009).

46. Commissioner, supra note 36, 59-60; Parliamentary Assembly of the Council of Europe, Resolution 1704 (2010); Parliamentary Assembly Comm, on Legal Affairs and Human Rights, Freedom of religion and other human rights for non-Muslim minorities in Turkey and for the Muslim minority in Thrace (Eastern Greece), Doc. 11860 (Apr. 21, 2009) (Michael Hunault).

47. Personal interviews with a series of Muslim notables, 2008-10.

48. On the Kadi system in Mayotte, see H. Hsaini, L'encadrement de l'Islam à travers les droits cultuels français et grec et à la lumière de la jurisprudence de la Cour Européenne des Droits de l'Homme, thèse de doctorat, Faculté de Droit et de Science Politique (Université Panthéon-Sorbonne/Paris 1, 2011).

49. Mayotte. Le 101è département est bien né!, Le Telegramme.Com (Mar. 31, 2011), http://www.letelegramme.com/ig/generales/france-monde/france/mayotte-le-101e-departement-est-bien-ne-31-03-2011-1252671.php.

50. This is my conclusion after conducting a series of interviews with Muslim immigrants. No scientific research is published on this issue of which I am aware.

51. Interview with Halil Moustafa, lawyer, in Komotini (Nov. 13, 2009).

52. Tsaoussis & Zervogianni, supra note 31. The authors take into consideration the discussion on extra-judicial settlement of family disputes among Muslims in Canada.