The Legal Treatment of Muslim Minority Women under the Rule of Islamic Law in Greek Thrace

1 Introduction

The status of women in the context of the Islamic faith and their various rights have been subjects of detailed examination and lively discourse for many years.¹ Questions concerning their just treatment arise in most of the Muslim world where Islamic law is applied and combined with the operation of religious courts.² Similarly, over the last decade or so there has been extensive debate over whether Islamic traditions should be recognised in non-Muslim majority legal orders where Muslim populations reside.³ These debates, whilst generally involving discussions over the compatibility of Muslim law with the values of Western civil society, often focus on concerns whether Muslim women are confronted with discriminative treatment and impediments to their access to justice. Many recent studies observe the uneasy relation between Muslim women’s rights and the practice of various Islamic foundations that claim competence in regulating the personal affairs of their adherents.⁴ The growing presence of Muslims in those legal orders, combined with their relevantly increasing demands to exercise their religious commitments creates a conflicting environment, both in the social and legal sense, while, at the same time, keeping the debates over the accommodation and application of Islamic law on the agenda.

In this context, Greece occupies a unique position. Greece constitutes the only European State that has officially recognised and preserved the application of Islamic law for more than a century. The application of Islamic law in the national legal order represents an instance of official legal pluralism in which religious norms co-exist with the system of secular state laws. Religious bodies of special jurisdiction presided over by Muftis constitute the cornerstone of the administration of Islamic justice. These tribunals are considered the forum to which the Muslims of Western Thrace resort for the dissolution of their family law disputes and the regulation of their inheritance law affairs. As will be demonstrated, the regulatory framework of this regime appears to be ambiguous and the way religious tribunals operate directly impacts the legal sphere of the Muslim women who fall within its ambit. Therefore this normative structure has been repeatedly criticised for failing to protect Muslim women’s rights. The criticism mainly concentrates on the issues of gender discrimination and the breach of the right to a fair trial.⁵

This article engages with the legal treatment of women who belong to the Muslim Minority of Western Thrace as the latter is defined by the scope of the 1923 Treaty of Lausanne. More concretely, it seeks to show the ways in which this religious normative regime affects their access to justice and the potential impacts that are generated from their subjection to the authority of the system thereof. For this purpose, the article first describes the current statute that is the basis for the application of Sharia and outlines its essential features. Secondly, it briefly refers to the obligations of the Greek State as they derive from the accession into a series of international human rights conventions. It then proceeds to illustrate the mode of operation of the religious jurisdiction. Subsequently, the study addresses a number of key issues, namely, Islamic marriage and divorce, Islamic dower, and post-divorce maintenance and succession, as they are specifically handled by the Sharia tribunals of Western Thrace.

The following analysis is based on a methodology that combines the study of domestic and international legal scholarship with insights that were drawn from the study of representative case law of the local Sharia courts and of the competent civil courts.⁶ This includes approximately 60 religious court decisions on Islamic divorce and maintenance from the 1980s until 2013. Specifically, the decisions belonging to the years 2011 and before were individually identified through the relevant literature and reassessed for the purposes of this study (targeted selection). The remaining part consists of the total of judgments issued in 2012 and the majority of those issued in 2013 on the same subjects. All the decisions were manually collected from the archives of the Courts of First Instance of Rhodope and Xanthi. This was possible because civil courts’ archives, along with being complete and accurate, can be accessed by legal professionals upon permission provided by the authorities. In addition, useful knowledge was incorporated into the study from the empirical observations made by the author developed from his involvement in the religious jurisdiction as a legal practitioner in the region.

2 The Statute that Governs the Application of Islamic Law

It is aptly contended⁷ and widely supported by the relevant jurisprudence⁸ that the application of Islamic law in the Greek legal order has been introduced by a series of consecutive international treaties,⁹ the last of which was the 1923 Peace Treaty contracted between Greece and Turkey in Lausanne, Switzerland.¹⁰ Significantly, the Treaty of Lausanne, under the principle of exception from population exchange, resulted in the creation of minority communities in each signatory State. In a legal sense, it became the regulatory instrument of their protection and just treatment under the status of minorities. It afforded the people the right to adhere to their customs that involved personal status and family relations’ self-regulation as a means of community autonomy.¹¹ Respectively, as regards the Greek polity, the existing Islamic construction is received as a manifestation of freedom of religion for the Muslim — or widely believed as Turkish — minority of Western Thrace, a large community of people,¹² which, in the vast majority, reside in the homonymous region of North-Eastern Greece. Practically, the religious regime in Thrace can be defined as a reverse form of, or as a regime in succession to, the former Ottoman millet system, where, in the case under investigation, the minority status is attributed to the Muslim community of Western Thrace.¹³

In the implementation of the above international obligations, the application of Islamic law in the Greek legal system is based on the stipulation of two domestic laws: Act 147/1914¹⁴ and Act 1920/1991.¹⁵ Thus, in the Greek context, Islamic law is recognised as national law.¹⁶ However, it is worth noting that what is called domestic is actually the statute that introduces the applicability of Muslim law and the adumbration of the religious authority’s jurisdiction. The Greek legal order, contrary to those of other States (eg Egypt, Tunisia, South Africa) does not codify the substantive religious law.¹⁷ Therefore, what should be anticipated in Western Thrace to be administered is Sharia as derives from its primary sources but without any reference to certain documentation. On the other hand, its formal nature implies that this normative framework generates binding legal effects and that its regulations are enforceable. In addition, the scope of its application is restricted in terms of subjective and objective fields of applicability (partial application). Although not indisputable, contemporarily, Islamic law is accommodated in the Greek legal order as a source of law that regulates only a specified number of the legal affairs¹⁸ of the Muslims of Western Thrace.¹⁹ However, it is notable that the lack of clarity in the scope of the legal provisions allows their differentiated interpretations, which in turn results in confusion and legal uncertainty. It seems that much of the confusion is generated because of the mismatch between the extent of the applicable law (Act 147/1914) and the limits of the religious jurisdiction (Act 1920/1991).

It is no less significant to stress that, today, entering the religious regime is considered optional for the Muslims of the region.²⁰ Accordingly, they are able to opt for their preferred legal regime before the formation of social institutions such as marriage,²¹ or even write testaments of civil law. This involves that the personal relations of the spouses will thereafter be governed by the law of their preference (including possible divorce). Similarly, their succession will take place in accordance with the provisions of their last will and not of their religion. This right of preference, even though not described in any law and contested by the Greek Supreme Court,²² should be considered a manifestation of citizenship, a right that all Greek citizen Muslims of Thrace naturally enjoy. Like all Greek citizens, the Muslims of Western Thrace have (or should have) the inalienable right to take advantage of any benefit provided by the national legal order.

3 The Subsequent International Commitments of the Greek State

Alongside maintaining the application of Islamic law, Greece has signed and ratified a series of major international human rights instruments, such as the European Convention on Human Rights (ECHR), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), as well as the International Covenant on Civil and Political Rights (ICCPR).²³ The accession to these agreements contributed to the liberalisation of many aspects of the general law and introduced a new set of obligations for the Greek State. Progressive as it was/is, it established, together with the Constitution,²⁴ new standards in terms of the treatment of men and women, affecting the entire spectrum of social, economic and political life. Accordingly, this wave of reformation has gradually been reflected in the Greek family law.²⁵ The law set forth by the relevant amendments was in congruence with the norms of the treaties thereof because, among others, it enshrined the principles of equality between spouses and the best interest of the child, qualities which both constitute the foundations of the modern domestic family law.²⁶ The Greek legal order acquired a hybrid and demanding nature. The case of the Muslims of Thrace offers a useful example of how challenging the co-existence of two legal spheres (secular and Islamic) of different, if not dissenting, spirits can be.

4 The sui generis Mufti Jurisdiction

The religious regime in Thrace rests on a controversial Mufti authority. The Muftis are granted by law multiple duties that include religious, judicial and administrative responsibilities.²⁷ In particular, in his district, the Mufti is the spiritual leader, the judicial authority as well as the head of his office, the latter considered as public service according to the law.²⁸ Of this complex of activities, in a strictly legal sense, the most interesting, yet problematic one is the administration of justice. In this context, the Muftis act as single-member religious tribunals (Sharia courts).²⁹ Their jurisdiction is a sui generis Greek conception, considering that in the Islamic administration of justice, the Qadi is the genuine judicial authority whereas the Mufti is the divine interpreter and qualified consultative theologist,³⁰ commissioned to provide legal assistance by issuing the fetwa.³¹ According to the law, his jurisdiction comprises dispute-resolution of issues pertaining to Muslim marriages and divorces, the personal relations of the spouses, maintenance, guardianship, custody, kinship, emancipation of minors, as well as Muslim wills and intestate succession.³² In this regard, Muftis adopt the Hanafi doctrine of Islamic thought (fiqh), which was also the prevailing tenet in the Ottoman Empire.

Although embodied in the legal order as domestic law, the particularity of Islamic jurisprudence as compared to the secular national legal system is connoted by the reservations that the law introduces for the implementation of the Mufti judgments. More concretely, as it is stipulated, Mufti judgments do not acquire force of precedent (ne bis in idem), nor can they be implemented unless declared enforceable by the competent Court of First Instance.³³ However, the regular court is not competent to review the judgments of the Muslim authorities, it examines only whether each decision has been issued within the limits of the religious jurisdiction and whether its provisions are in compliance with the Constitution (clause of constitutionality). Thereby the law assigns regular courts the duty to control the adjudicative activity of the religious courts, requiring it to be in line with the norms of the Constitution. The decisions of the Muftis are final and thus they are not appealable. This renders Islamic tribunals the only judicial authorities whose decisions cannot be substantially reviewed by superior courts.

The examination of the relevant legislation reveals that there are no certain rules to follow and there is no regulation that guarantees the applicability of the basic principles of procedural law for the process before the Muftis.³⁴ This is because Mufti jurisdiction is not part of the national system of justice administration and thus the Greek Code of Civil Procedure is not applied in the case of religious tribunals. This lack of regulation is translated into a number of procedural deficiencies that are easily perceivable from a lawyer’s point of view, particularly when one participates in the process of litigation. The lack of formality is one of the aspects that draws attention when it comes to Islamic adjudication. It denotes that the procedures are not structured, a quality which often results in the emergence of multiple hearings, confusion and perpetuation of disputes. In addition, it is notable that the respondent barely receives adequate notification of a filed petition and thus the included arguments are not communicated, a malpractice which shows that the right of defence cannot be sufficiently safeguarded.³⁵ However, these are minor shortcomings compared to the lack of reasoning. It is observed that Mufti judgments do not demonstrate fair levels of substantiation of the provided regulations. If not all then certainly the vast majority of the decisions do not include any articulation of the rule that is applied to each individual dispute. In most cases, the text of the decision consists of a very brief citation of the facts of the case, followed by the judgment, which provides no reference as to how the tribunal has reached its conclusion.³⁶ Hence, one cannot truly understand or assess the regulation formulated by the religious authority.

5 The Impact of the Religious Jurisdiction on the Rights of Minority Muslim Women

6 Factors Underlying the Failure of Women’s Rights to Receive Adequate Protection

The above illustration of Muslim women’s treatment reveals that the failure to safeguard their rights is multifaceted. As shown, the deficiency largely stems from the way the religious courts operate and the position they adopt in the broad spectrum of their competence. Yet, this constitutes only part of the problem. The research also clearly finds that state law or state (civil) justice providers preclude Muslim women’s access to justice. There are reasons for this: on the one hand, it is due to the maintenance of a vague and inadequate normative framework regulating legal pluralism and Islamic law, on the other, the reluctance of civil justice to exercise the required constitutionality control.

The regulatory framework related to the application of Islamic law fails to illustrate the substantive quality of a well-drafted, precise and perceivable law. Rather adversely, inadequacy promotes legal uncertainty, which, in turn, puts the proper legal treatment of the individuals that are subject to its force at stake. As a result, contemporarily we have a set of domestic laws⁷⁹ that address the same topic but which are unable to establish legal cohesion in order to satisfy a reasonable regulation of the existing legal plurality. In particular, the statute falls short of providing a clear definition of the legal relations that are subject to the force of the religious law. This is the case from both substantive and procedural points of view. More than a century after the introduction of Islamic law in the national legal order, neither legal scholars nor the judiciary have reached unanimity regarding the scope of Sharia and the limits of the Mufti jurisdiction. It is notable that, until around 2001, child custody was considered part of the Islamic jurisdiction. Since then, following the shift of jurisprudence,⁸⁰ civil courts do not ratify the custody provisions of Mufti decisions, although it appears to be stipulated in the law that these matters fall within the limits of the religious jurisdiction.⁸¹ Notwithstanding the fact that these are positive developments from women’s perspective, because in Islamic law child custody is governed by gender-based rules, they are also indicative of the legal fragmentation and variability in the conception and interpretation of the statute in force.

The unregulated and informal methods of justice administration reveal the legal vacuum that poor legislation on the accommodation of Islamic law has created. Individual aspects such as the lack of reasoning and the absence of the right to appeal are legal disruptions that deteriorate the legal position of litigants, and specifically the vulnerable parties of this religious order, that is Muslim women of the minority. In a legal framework where gender equality is not a prerequisite, the existence of procedural impediments and the lack of legal remedies suggest major violations of human rights. This is perhaps the reason for the emergence of the theory of concurrent jurisdictions. Particularly, part of the Greek legal scholarship suggests that religious jurisdiction, instead of being exclusive, may operate concurrently with the civil jurisdiction.⁸² Mostly, it is conceived as another method of forum shopping or another level of optionality in that it is based on the assumption that Islamic law and Mufti jurisdiction might not always advance the protection of the fundamental rights of Muslim women as conceived in civil law. Therefore, it is argued that in such circumstances (eg divorce by seeking the consent of the husband to divorce) religious jurisdiction should be replaced by the jurisdiction of civil courts.⁸³ This theory does not prevail among the judiciary and it was only exceptionally adopted in the past.⁸⁴ Thereby it is illustrated that one cannot invoke the principle of optionality to opt out of the religious regime. Unfortunately, this is also to the detriment of Muslim women, who are not allowed to mobilise their cases according to their best interest.

Moreover, as mentioned earlier, the irregular application of Islamic law is an additional factor that undermines the access of Muslim women to just treatment. Ultimately, it becomes evident that Muslim women are being prevented from enjoying benefits that Sharia reserves to them. The inconsistency delineated here comprises a collateral element of divergent treatment in conjunction with the absence of reasoning and other legal remedies. Thus, it is noteworthy that, while participating in an adjudication process of an Islamic tribunal, nobody can be sure whether the law applied is the proper religious law or a version that resembles it, and whether, at the same time, incorporates individual interpretations of the presiding authorities. Therefore, it is evident that Muslim women’s legal treatment is dependent on the wide and uncontrolled margin of appreciation of the Islamic authorities. Additionally, it is equally important to underline that it is not necessarily the imperative of Islamic law that produces the differentiated treatment of Muslim women but the practice of the religious bodies themselves.

As regards the clause of constitutionality, it should be underlined that it is a legal construction, creating a condition that postulates Mufti decisions to be in compliance with the Greek Constitution.⁸⁵ In the context of the religious regime in force, the clause of constitutionality proves to be the only substantial legal instrument in terms of protecting the rights of Muslim women. This is because the Greek Constitution, while being the supreme source of law in the domestic hierarchy of laws, enshrines and promotes gender equality⁸⁶ and the right to judicial protection.⁸⁷ Unfortunately, the reality shows that this measure has utterly failed to serve its objective. A recent national study commented that of a total of 2,679 Mufti decisions (in the period of 1991-2006) only one Mufti decision was dismissed by the civil courts on the grounds of contravention of the Constitution.⁸⁸ Similarly, on the basis of more recent data, of a total of 16 decisions of the Sharia Court of Komotini relating to the period of 2012-2013, none of these were dismissed. Undoubtedly, the results are striking. They illustrate the extent of the deficiency in protecting the fundamental rights of women, while also connoting the overall failure of the legal system of application of Islamic law in Greece.

7 Conclusion

In conclusion, the legal treatment of Muslim women in Western Thrace is largely dependent on the wide and non-reviewable appreciation of the presiding Islamic authorities. In addition, the failure of civil justice to safeguard the rights of women by means of constitutionality control results in the implicit endorsement of the existing legal disorder. As a consequence of this, legal pluralism in Western Thrace operates as an aggregate dysfunctional mechanism, a discriminatory and partly irregular legal context that is implemented through unregulated and informal religious adjudication that entails the deprivation of principal rights for the Muslim women of the region. Furthermore, this legal framework retains another level of differentiated treatment as well. Currently, the Greek legal order comprises a religion-based distinctive regulation of its female citizens status. This is reflected in the subjection to two normative orderings of divergent spirit and content (secular and religious). This divergence can be explained and becomes reasonable only under the premise of optionality, which has been endangered by the aforementioned rulings of the Greek Supreme Court. Moreover, it is the imperative of the Treaty of Lausanne that guarantees the enjoyment of civil and political rights by the minority members and necessitates no faith-based discrimination in the exercise of those rights.⁸⁹

Additionally, the accommodation of a normative regime that operatively induces disparities in the treatment of men and women and/or inefficient access to justice, does not conform with the position of a State that is a contracting party to major international conventions/covenants (eg ECHR, CEDAW). The particularities of the Greek case lately have been observed by officials of international organisations, namely the Commissioner for Human Rights of the Council of Europe and the Committee on the Elimination of Discrimination against Women. Both the Commissioner and the Committee have articulated their concerns regarding the disparities that Sharia law and the operation of religious justice cause in relation to equality of the sexes and the rights of children. Respectively, the Committee, in consideration of Greece’s periodic reports of the years 2007 and 2013,⁹⁰ among others, confirms the discriminatory treatment of Muslim women as an outcome of an extensive application of Sharia in their family and inheritance relations. It finds this situation to be incongruent with the national constitutional order and Article 16 of the Convention, and urges the officials to strengthen the knowledge of Muslim women concerning their rights and the civil law alternatives. The Committee observes, moreover, that discrepancies in the treatment of Muslim women are persistent, particularly in the area of marriage and inheritance. In order to tackle the problems, it recommends the harmonisation of the application of local religious and general law with the provisions on non-discrimination of the Convention. In addition, it supports the enhancement of awareness of the detrimental aftereffects of early marriages, as well as the training of legal professionals (including the judiciary) and religious leaders on the norms and principles of the Convention. On the other hand, the Commissioner has put forward his position towards the revocation of Muftis’ judicial powers while urging officials, in the meantime, to initiate the enhancement of judicial control of Mufti decisions.⁹¹

In this respect, in December 2010, a preparatory legislative committee presided over by prominent legal scholars, drafted a bill that envisaged, among others, the abolition of Sharia.⁹² The committee underlined the disparities generated by subjection to the rules of Islamic law and the discriminatory treatment of the sexes, which, it asserted, is in conflict with the subsequent international commitments of the State and the principles of the Greek Constitution. However, it seems that this initiative received very little appreciation and was never brought before Parliament for discussion.

The sharp conflict of the existing situation with fundamental human and women’s rights makes clear the need for revision of this dysfunctional religious regime. This is not an easy task however. Western Thrace is a region where there is polarisation and many aspects of minority interests are politicised.⁹³ The determination of a possible solution is only part of the challenge; efficient implementation is equally important for the viability of any project. A feasible and standing intervention requires sincere dialogue with the community in issue and presupposes that any initiatives of imposition would be avoided. Most importantly, however, any functional solution demands scientific research that, among other things, accounts for the agency of the individuals under consideration, that is, Muslim women of the minority. Hence, any potential venture of revision should provide them the opportunity to articulate their positions. After all, successful establishment of a viable solution through collective and effective endorsement of human rights would enhance the notions of legal pluralism and multiculturalism and effect the improvement of the levels of legal culture in Greece.