ECHR ruling of December 19, 2018 in the case of Molla Sali v. Greece (application No. 20452/14).
In 2014, the complainant was assisted in preparing an application. Subsequently, the application was communicated to Greece.
The case was successfully considered for the application of the laws of Islam (Sharia) in a lawsuit relating to the inheritance of the property of a Muslim-Muslim. The case has violated the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
After the death of her husband, the applicant inherited all of his property in accordance with a will, which he made at the notary’s office. The two sisters of the deceased challenged the will on the grounds that their brother belonged to the Muslim community, and therefore all matters relating to his property were governed by Islamic religious law, and not by the provisions of the Greek Civil Code and belonged to the mufti's jurisdiction. In particular, the sisters referred to the Treaty of Sevres in 1920 and the Treaty of Lausanne in 1923, which provided for the application of Islamic customs and Islamic religious law to the citizens of Greece, who were Muslims. After the court of cassation made its decision, the appellate court ruled that the law applicable to the deceased’s property is Islamic religious law, and that the disputed testament does not have any legal consequences.
On 6 June 2017, at the request of the applicant, the Chamber of the European Court to which the case was transferred, ceded jurisdiction to the Grand Chamber of the European Court.
QUESTIONS OF RIGHT
Regarding compliance with Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention. The present case concerned the applicant’s right to inherit in accordance with the Civil Code under a will made in her favor by a Greek who was a follower of the Muslim faith. Considering that the applicant's husband decided to bequeath all her property to her, the cassation court considered that the Islamic inheritance law should be applied to her case. This led to the deprivation of the applicant of her rights in accordance with the will of her husband, which did not lead to any legal consequences.
The claimant’s property right in inheriting her husband’s property was significant and was sufficiently recognized as “possession” in the sense of the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention. Therefore, the property right of the applicant falls within the scope of this provision and the right to respect for the property guaranteed by him that was sufficient for the application of Article 14 of the Convention.
(a) Whether there was a similar or relatively similar situation and a difference in circulation. During his lifetime, the applicant's husband, who was a member of the Muslim community of Thrace, compiled a notarized public testament in accordance with the provisions of the Civil Code, in which he bequeathed all his property to his wife. No doubt his wife expected, as any other citizen of Greece would have done, that after the death of her husband his property would be transferred to her in accordance with his will.
The court of cassation found that the law applicable to the property of the deceased was Islamic inheritance law, which was part of the law of the respondent state and applied specifically to the Greek Muslims, which would put the applicant in a position different from that of a married woman the testament of a non-muslim husband.
The applicant, as heir to the bequest drawn up in accordance with the Civil Code by the testator, a follower of the Muslim faith, was in a position similar to that of the heir to the bequest drawn up according to the Civil Code by a non-Muslim testator, and various treatment based on it was applied " other status ", namely the religious faith of the testator.
(b) Whether the difference in treatment was reasonable. The Greek authorities argued that the established case law of the cassation court pursued a goal that constituted the public interest, that is, the protection of the Muslim minority of Thrace. In view of the particular circumstances of the present case, the European Court doubted that the impugned measure with regard to the applicant's inheritance rights was appropriate for achieving this goal. However, the European Court did not need to adhere to a firm position on this issue, since in any case the contested measure was not proportionate to the aim pursued.
The application of Sharia law to this property had serious consequences for the applicant, depriving her of three-fourths of the inheritance. The main consequence of the approach taken by the court of cassation in inheritance cases was that notarized testaments made by Greek citizens professing the Muslim faith did not have legal consequences, since only inheritance by law was recognized in Sharia law, except when the will It was compiled according to Islamic law.
There is no doubt that by signing and ratifying the Treaty of Sevres and the Treaty of Lausanne, the Greek authorities committed themselves to respect the customs of the Muslim minority. However, given the wording of the relevant provisions, these treaties do not require the application of Sharia law by the Greek authorities. In particular, the Lausanne Treaty does not explicitly mention the jurisdiction of the mufti, but guaranteed the religious identity of the Greek Muslim community, which was excluded from the population exchange provided for in this treaty, and was expected to remain in Greece, where the majority of the population are Christians. In addition, this treaty does not grant any jurisdiction to a special body with respect to such religious practices.
Several international organizations have expressed their concern about the application of Sharia law to Greek Muslims in Western Thrace and the resulting discrimination, in particular against women and children, not only within this minority compared to men, but also against non-Muslim Greeks. For example, in his report after his visit to Greece in 2008 (see CommDH (2009) 9), the Council of Europe’s Commissioner for Human Rights noted that the application of Sharia law in matters relating to family law and inheritance is incompatible with international obligations Greece, especially after ratifying international and European human rights treaties concluded after 1948, including those relating to the rights of the child and women. He recommended that the Greek authorities interpret the Treaty of Lausanne and any other treaty of the beginning of the 20th century in accordance with their obligations arising from international and European human rights treaties.
Religious freedom does not require that States parties to the Convention create a special legal framework for granting special status to religious communities, entailing certain privileges. However, the state that introduced such status should ensure that the criteria established for the right of the group to this status are applied on a non-discriminatory basis. The refusal of members of a religious minority to voluntarily choose and enjoy customary law is reduced not only to discriminatory treatment, but also to a violation of the right of particular importance in the field of minority protection, that is, the right to freedom of self-identification. The negative aspect of this right, namely the right to choose not to be considered a minority representative, is not limited in the same way as the positive aspect of this right. In this case, the choice was completely free, provided that he was conscious. He must be respected by both the other members of the minority and the authorities of the respondent state themselves. No bilateral or multilateral treaty, or any other document requires that a special minority protection regime be applied to any person against his will.
In 2018, a law came into force abolishing special provisions regulating the application of Sharia law for settling family law cases in the Muslim minority. Appeal to the mufti in matters of marriage, divorce or inheritance was possible only with the consent of all parties concerned. However, the provisions of the new law did not affect the situation of the applicant, since the decision on her case entered into force in accordance with the old system, which was in force before the adoption of this law.
In conclusion, it should be noted that the difference in treatment to which the applicant was subjected as a heir to the will, drawn up by the testator, a follower of the Muslim faith in accordance with the Civil Code, was not objective proper justification.
The case was a violation of Article 1 of Protocol No. 1 to the Convention (adopted unanimously).
In application of Article 41 of the Convention. The question of fair compensation is not ready for consideration.