Sharia: What emerges from the Molla Sali v. Greece Judgment

Does Sharia have its place in Europe? If so, under which conditions? These are the questions currently facing the bodies of the Council of Europe.

Up to the 18 December 2018, the European Court of Human Rights considered that Sharia law is, in its very principle, incompatible with the values of democracy and human rights. This is no longer the case today: the Court is now accepting the application of some Islamic laws in Europe under certain conditions.

In 2003, the ECHR had validated the dissolution of an Islamist political party –despite its victory in the elections– on the grounds that it wanted to establish Sharia law in Turkey. The Strasbourg judges then concluded, bluntly, “that sharia is incompatible with the fundamental principles of democracy” and with the standards of the European Convention on Human Rights (Refah Partisi and Others v. Turkey, 13 February 2003).

Yet, in its Molla Sali v. Greece case, the Court failed to reiterate this condemnation in principle of Sharia. This can be explained firstly by the fact that the application of Sharia law in Greece is not new. Inherited from the Ottoman Empire, it continued to apply to Muslim populations under Greek jurisdiction after the recapture of Western Thrace. The treaties of Sèvres (1920) and Lausanne (1923) regulating after the War the fate of “minorities” in Turkey and Greece provided that they could continue to live according to their own customs. Thereafter, the Greek courts have held that Sharia law must apply to all members of the Muslim community of Thrace, in matters of marriage, divorce, and succession.

This is what a woman is challenging before the European Court of Human Rights. The former, in fact, was deprived of most of the inheritance of her late husband because of the application of Sharia law to her estate, even though he had chosen to bequeath to her his property, under common law. The Greek courts annulled the will, ruling that the Muslim couple had an obligation to settle the succession according to Sharia law, making it largely go to the sisters of the deceased. It was therefore brought before the European Court to decide whether “the sacred Muslim law” can be applied forcibly to Greek nationals on the grounds, in particular, of the “protection of minorities” and the respect of the international commitments of Greece.

Unsurprisingly, the European Court has condemned this forced application of Sharia . . . yet not Sharia law itself. The Court ruled that the compulsory application of Sharia law on Muslims was discriminatory compared to a non Muslim Greek testator. Greece had anticipated this decision by making the use of Sharia law and the mufti jurisdiction optional through a law of 15 January 2018. The Court welcomed this legislative change but, contrary to the Parliamentary Assembly of the Council of Europe (Resolution 1704 (2010), it did not condemned Sharia law per se, nor invited the Greek authorities to abolish its application in Thrace.

More interestingly, and unnoticed by the press, the European Court took advantage of this case to lay down its general conditions for the application of religious norms, such as Sharia law, in Europe.

First, the Court considers that a State is not obliged, but can, if it so desires, “create a particular legal framework in order to grant religious communities a special status entailing specific privileges”. In other words, a European state can grant its Muslim community the freedom to be governed by Sharia norms, without this being in itself contrary to the European Convention on Human Rights. Two conditions are laid down as to such a special status: the respect of the will of the interested parties and that, elliptic, of the “important public interest”.

Regarding respect of one’s will, the Court places as a “cornerstone” to its approach, the “right to free self-identification”, i.e. the right “the right to choose not to be treated as a member of a minority”, both by the members of the minority in question and by the State. The Court adds that the respect by the State of “minority identity of a specific population group” must not prejudice the “right of that group’s members to choose not to belong to it” or “not to follow its practices and rules”. In a word, the State must respect the minorities while avoiding to contribute to lock their members inside them. Thus, when the State accepts the application of Sharia law in its territory, it must be optional.

Regarding the essential point of the content of Sharia, the Court does not judge it. Here again, it addresses the issue from the point of view of individual consent, believing that any individual can validly waive certain rights for religious reasons (i.e., to submit to Sharia norms) unless an “important public interest” opposes it.

The Court therefore adopts an approach that is both liberal and communitarian, capable of accommodating the coexistence of diverse communities with legal privileges within the same state. It thus follows the recommendation of the Greek government, which invited the Court to “to draw a distinction between the present case and the case of Refah Partisi (the Welfare Party) and Others v. Turkey” and to not pronounce itself on the “application of a plurality of legal systems based on Sharia law, or its compatibility with fundamental rights” but to examine the case, “having regard to such criteria as respect for multiculturalism in today’s Europe and the difficulty of formulating policies applicable to religious communities.” The Greek government furthermore argued that “in view of the complexity of the “modern identity” of the inhabitants of Europe, the Court should conduct a case-by-case examination of each rule of Sharia law applying to actual cases concerning Muslims residing in non-Muslim States”. It is indeed the approach followed by the Court, echoing the obligation, recently developed in the Austrian blasphemy case (E. S. v. Austria), “to ensure the peaceful co-existence of religious and non-religious groups and individuals under their jurisdiction by ensuring an atmosphere of mutual tolerance”.

This approach gives rise to serious difficulties in its implementation.

First, it is based on the assumption of consent. The Court assumes that “the choice in question is completely free, provided it is informed”. However, as Muriel Fabre-Magnan has perfectly shown, in her recent essay The Institution of Freedom, consent is not enough to guarantee freedom. For example, it is not because a young Muslim woman agrees to marry a man chosen by her parents that her choice is free. Moreover, when we know how much Islam can constitute a closed society, there is reason to wonder about the true freedom to leave it, especially since Sharia punishes apostasy with death. There is great hypocrisy in believing that consent is enough to guarantee freedom and perhaps also some cowardice.

This approach may then place the public authorities in the defensive position of having to justify refusing to claiming Muslims the “enjoyment” of such and such Sharia norm, as long as they already accept others. In fact, it is not only Greece and the United Kingdom that are already accepting Sharia laws in some areas, but also all countries that recognize the value of “halal” food standards. Therefore, we do not see why one would refuse the application of other Sharia norms, in finance for example. Sharia is a legal system that covers all aspects of life.

Moreover, by accepting the very principle of the applicability of Sharia laws in Europe, even in a limited way, this judgment allows political parties that want it to be applied to pretend to act “in the respect of human rights”.

Finally, regarding the content of the “important public interest” that may be opposed to Sharia by States, it will have to be determined on a case-by-case basis. It is clear that it has no precise material content; it refers to values, such as equality, non-discrimination and individual freedom. But the interpretation of “values” is dangerously shifting, particularly in the light of demographic, cultural, and electoral developments, all the more so as judges feel that they have to change their interpretation of rights and freedoms, according to social changes. For example, it is with regard to the same value of "religious freedom" that the European Court allows the ban on the public port of the burqa while the U.N. Human Rights Committee opposes it. In law as in the stock market, the characteristic of values is to fluctuate. Opposite them, however, Sharia seems to enjoy great stability.

The ruling does not give an example of such “public interest”. Surprisingly indeed, it does not criticize Sharia itself, to the extent that it is contrary to women’s rights for example, but only to recall that several international bodies “expressed their concern” about its application and about the discrimination thus created, particularly to the detriment of women and children, and in certain respects has considered it “incompatible with the international undertakings entered into by Greece”.

The Court could have taken a stand against Sharia law as a matter of principle, but preferred to set a framework for assessing the applicability of each of its norms.

Why so much prudence? Is it not to offend the Muslim communities in Western Europe which unofficially, or officially like on the United Kingdom, already apply some of Sharia laws ?

Is it not to further offend Turkey, whose President is an heir to the once banned Refah Party, and who has decided to significantly reduce its financial contribution to the Council of Europe? Is it not to offend Turkey, Azerbaijan, and Albania which, although members of the Council of Europe, have also signed the Cairo Declaration of Human Rights in Islam (1990), which declares especially that Islam is the birth religion of everybody, and that human rights are subject to Sharia law?

It is also this question of the application of Sharia law in Europe, including in provisions contrary to the European Convention, which is currently causing concern to members of the Parliamentary Assembly of the Council of Europe, and which will be the subject of discussions and of a vote next January in Strasbourg. While this House has long adopted a benevolent speech towards Islam, declaring again in 2010 that “Islam is a religion that advocates peace” and that we should not ban the wearing of the full veil or the construction of minarets it seems to be more critical now.

The draft resolution of January 2019, among other things, expresses concern about the “judicial” activities of “sharia courts” in the United Kingdom and muftis in Greece, and calls on Turkey, Azerbaijan, and Albania to “consider withdrawing from the Cairo Declaration”, but also to act in order to establish “clearly the legal primacy” of the European Convention upon this Islamic declaration.

Europe is thus reduced to having to defend the European Convention on Human Rights to stand the competition against Islamic human rights, which claim to be universal too. And this defence is not obvious, because by making the consent – that is to say, the individual will – the central criterion of human rights, one cannot see what allows the European authorities to pretend that their system is better than their neighbour’s. For it, too, can claim to rely on the consent of the people; the Cairo Declaration has moreover been ratified by a larger number of States than the European Convention.

In fact, the opposition between libertarian individualism and Sharia offers no satisfactory solution, as both systems have in common the denial of the very foundation of human rights, namely the existence of a natural right that can be known thanks to reason by observing human nature, and that exists independently of the arbitrary will of “Allah” or of individuals. What is likely to happen, and already appears in this case, is the introduction of Sharia, by the individual will, into human rights: it is the subjective “right to the Sharia”. Ironically, one of the new postmodern rights.

The only way to escape libertarian individualism and from then on Sharia law is to return to an objective understanding of human rights, rooted in natural law. Human rights would then get back to their universality. But we do not seem to take that path; we prefer that of communitarianism, all while we refuse to say what we are, as Europeans. The Court does not give a definition of the “important public interest” for society; yet it remains the ultimate refuge of justice and of our European civilization.

This silence is that of the renunciation of the European identity in favour of universalism; that’s nothing new. Already, during the drafting of the treaty which gave rise to the Council of Europe in May 1949, the founding States renounced mentioning “Christian civilization” as the basis of the European project, and preferred notions of “spiritual and moral values”. Three years later, the States also waived, under Turkish pressure, the presence of a cross on the European flag, even though this choice received a large support.

To define Europe, the authorities that govern us have bet on abstract values and of a universalism, that of blurred-outlined living together; it is not sure that this will be enough towards Islam.

This op-ed was originally published on December 26, 2018 in the Figaro Vox. Translation by BMG