Across Europe, the practice of Islamic family law is under pressure

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Source: The Economist

A ruling on Greece has wider European implications

A GREEK Muslim woman who lost out because her late husband’s will was adjudicated by Islamic law has been vindicated by the European Court of Human Rights, in a ruling that could have implications for other parts of Europe. The decision, issued on December 19th by 17 judges from across Europe, upheld the complaint of Hatice Molla Sali that she had suffered unfair discrimination. She said she had forfeited three-quarters of the inheritance she expected from her spouse, because in the course of a Greek legal battle, his sisters had successfully invoked the principles of sharia to claim their rights to a substantial share of the estate. That was despite the fact that the husband had drawn up a civil will bequeathing his possessions to his widow.

The case highlights the unusual status of the long-established Muslim minority in Western Thrace, a region of northern Greece which adjoins the land border with Turkey. Under the Treaty of Lausanne concluded in 1923, this community (along with the Greeks of Istanbul) was excluded from a compulsory exchange of religious minorities that was enforced in other parts of the region. The community was also guaranteed some respect for its cultural rights. In practice, this has meant that the Thracian Muslims’ marital and inheritance matters have generally been dealt with under Islamic law, with a mufti adjudicating where necessary.

But the Strasbourg judges found that neither the Lausanne Treaty nor the Treaty of Sèvres concluded in 1920 actually obliged Greece to apply Islamic law. And in cases where a religious minority lived under a particular legal framework, that state had a duty to ensure that individuals who did not wish to live under that framework were protected from discrimination. According to a summary of the decision issued by the ECHR:

Under the case law of the court, freedom of religion did not require the contracting states to create a particular legal framework in order to grant religious communities a special statute entailing specific privileges…[and] a state which had created such a status had to ensure that the criteria…were applied in a non-discriminatory manner….It could not be assumed that a testator of the Muslim faith, having drawn up a will in accordance with the civil code, had automatically waived his right, or that of his beneficiaries, not be discriminated against on the basis of his religion.

The decision will not make very much difference in Greece because, about a year ago, the government anticipated this verdict and adjusted national legislation to make clear that the application of Islamic family law was voluntary (ie, a matter of consent between the interested parties) rather than compulsory.

But the verdict will be read carefully in other parts of Europe, where the application of Islamic law to family matters is becoming a social reality among substantial Muslim minorities. A report delivered to the British government earlier this year after an 18-month investigation confirmed that sharia councils, which number at least 30 in England and Wales, exercise considerable authority. As the report put it: “Although they claim no binding authority, they do in fact act in a decision-making capacity when dealing with Islamic divorce.” The report recommended a voluntary system of regulations for the councils, but the government declined to adopt this proposal, on the grounds that regulating would amount to legitimising a parallel legal system.

But if a person in Britain or any other west European country feels her interests have been harmed by a sharia council, and that the secular law of the land has failed to redress this harm, she now stands a chance of making a successful appeal to the ECHR in Strasbourg.

Reference

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