Kyriaki Topidi is head of Cluster on Culture and Diversity/senior researcher at the European Centre for Minority Issues (ECMI, Germany).

Background: Application of Sharia in Greece

The intensified presence of Muslim groups in Western Europe resulting from recent migration has largely overshadowed reflection, in both political and research terms, on legal pluralist scenarios involving historical Muslim minorities in European countries. In Western Thrace, at the northeastern tip of Greece bordering Turkey, Muslim groups have enjoyed special legal status connected to the legacies of the Ottoman Empire, captured in the 1923 Treaty of Lausanne.[1] State-endorsed Muslim autonomy in Greece has entailed, in particular, government-appointed muftis with (until 2018 legislative amendments) compulsory jurisdiction in certain family matters.

Speaking predominantly Turkish, the historical Muslim minority of Western Thrace is a small but far from uniform population: among an estimated 100,000–120,000 Muslims, 50 percent are of Turkish origin; 35 percent are Pomaks (Bulgarian Muslim minority), expressing Pomak identity and speaking a Bulgarian dialect; and another 15 percent express Roma identity, speaking either Romany or Turkish.[2] The groups in question operate their own institutions, including mosques, schools, and associations. Their enjoyment of rights as minorities are, however, territorially limited to Thrace, including the application of sharia as personal law, for family matters.

In a diachronically tense political environment, nuanced self-identification of this small minority group along religious and ethnic, let alone across gender lines, is not encouraged by either the Greek or Turkish states due to competition for national identity patronage between the two neighboring countries. The institution of the mufti, available in the areas of Xanthi, Komotini, and Didymoteicho, has functioned as a religious leader for Muslims in Western Thrace, supplemented by his role as interpreter-judge of sharia. He presides over special religious courts, with jurisdiction over family matters and inheritance. The daily operations of religious minority courts revolve largely around divorce. Following the 2018 legal amendments, the mufti’s judicial competence has become optional, as Greek Muslims can choose to submit to either civil court or Islamic jurisdictional authority. Under the new legal framework, civil courts will have competence by default unless both litigant parties jointly decide otherwise.

Absence of Gender as a Consideration in Sharia Courts

The practice of muftis’ decision-making has often entailed gender-discrimination violations, characteristically shown in divorce outcomes and maintenance decisions. This affirms a broader concern over religious arbitration mechanisms becoming a “judicial ghetto” for vulnerable members of Muslim communities such as women. This is also the case in the Greek context for several reasons:

First, applicable sharia-inspired principles within mufti decisions are not standardized or codified. Decisions reached by the mufti, following the Hanafi doctrine of Islamic thought, are neither explicitly substantiated nor justified. They usually include a brief citation of facts, followed by a judgment issued by the mufti but without an explanation as to how the decision was reached. This leaves the religious judge considerable room for discretion.

Second, procedurally, sharia court cases are not always aligned with fair trial guarantees (as articulated in Article 6 of the European Convention on Human Rights), neither do they abide with due process, as the religious courts are not required to advise parties of a right to be represented by legal counsel. In the absence of a lawyer, women are commonly accompanied by elder male or female relatives. Overall, the religious court environment is rather hostile to women, as it is fully male in its composition, including judges, clerks, and secretaries.

Finally, review of the merits of mufti decisions by state courts has not been efficient. The restrained stance of civil courts vis-à-vis mufti jurisdiction has been attributed to political/security concerns connected to the tense relationship between Greece and Turkey. By treating sharia law as “special law” and exempting it from constitutional review, state civil courts have contributed to the creation of a “segregated” judicial scope of application of sharia. More recently, presidential decree 52/2019 introduced procedural rules for the muftis’ jurisdiction while creating a new administrative structure called the Directorate for Cases of the Mufti Jurisdiction to support the role of the mufti. Additionally, Law 4964/2022, replacing Law 4511/2018, reinforced the commitment of civil courts to undertake rigorous review of mufti decisions to ensure their compatibility with the Greek constitution. These reforms were introduced to mitigate the negative rule-of-law effects of sharia court decisions, but the practical effect of the reforms remains unclear.

Social factors are equally complex in the adjudication of Muslim women’s claims before sharia courts. There is a track record of intersectional discrimination affecting Muslim female claimants in Greece. The UN Human Rights Committee has noted the need to “increase the awareness of Muslim women of their rights and the availability of remedies, and to ensure that they benefit from the provisions of Greek civil law.” While recent empirical data is not available on the use of religious courts in Western Thrace by Muslim community members, particularly women, it is reasonable to deduce that for reasons of social stigmatization or pressure, female community members may still avoid resorting to state civil courts.

Patterns of marginalization and discrimination are evident: for example, in matters of divorce, Muslim religious courts in Western Thrace have denied women divorce when sought on grounds (tafriq) that do not require the consent of the husband. Instead, religious courts have encouraged women to seek a khul divorce, whereby the wife can obtain the husband’s consent, often by renouncing her dowry (mahr) in exchange for her release from the marriage, as a form of compensation to the husband. Such practices lead inevitably to the economic disempowerment of the women involved. Similarly, mufti validation of marriage contracts of underage girls is also a practice that persists that, combined with the weak socioeconomic status of these young women, perpetuates their disempowerment. Additionally, in adjudication of maintenance claims after the dissolution of a Muslim marriage, there is little clarity on the criteria muftis use to calculate the amounts awarded to wives, not to mention any examination of the extent to which these amounts correspond to the actual needs of these women.

Toward a More Gender-Sensitive Award of Justice

Adjudication within Muslim judicial fora in Greece exhibits conservative trends, which has led to increased pressure for “internal” reform of traditionalist elements prevalent in the courts’ practice. This type of reform, however, presupposes that the state proactively offers guarantees of “external protection” mechanisms. Leaving transformation of the interpretation of Islamic law to the agency of individual minority members, including through strategic recourse to national and supranational courts, is not sufficient. The Greek state has long been reluctant to become involved with the application of sharia, even when other fundamental rights, such as the right to equality, have been at issue. In the absence of empirical data that might shed light on why Muslim women predominantly continue to resort to the muftis, the regulation of sharia courts in Western Thrace remains a puzzle, raising cumulative concerns for female Muslims.

Soon after the 2018 law entered into force, the number of decisions issued by muftis in Western Thrace dropped dramatically in 2019. The new law has allowed the termination of religious marriages before civil courts, when applicants rely on the law’s principle of default competence of civil courts. The issue that remains unresolved, however, is the religious termination of a religious marriage, especially where husbands resist it even after a civil divorce. In other words, the law fails to address the need for certain women to be considered divorced in the eyes of their religious and social communities, which is at the root of their vulnerability in the first place. In the end, these women are required to make a choice between protecting their individual rights or their cultural affiliation to a group.

Overall, the conflicting interpretation of religious norms that enjoy state-law recognition should be viewed more holistically as a process depending on numerous factors. The issue from a normative perspective tends to be perceived, not always accurately, as located within Islam itself, but in reality political interests, local culture, socioeconomic backgrounds, and gender considerations, as well as religious dogma, shape the interpretation and use of such norms.

From the perspective of the state, the Greek model in its post-2018 frame still struggles to resolve the issues of consent (i.e., to what extent those using the religious judicial system genuinely wish to do so), of agency (i.e., on what basis members of a religious minority decide to forum shop between jurisdictions), and of the broader compatibility of human rights with Islamic family law. Answers to these questions should advise and guide future reform of sharia courts in Greece.

References: