Human Rights Issues Arising from the Implementation of Sharia Law on the Minority of Western Thrace—ECtHR Molla Sali v. Greece, Application No. 20452/14, 19 December 2018
2. Religious Communities as Right-Holders According to the Case Law of the ECtHR
3. Minority Rights versus Individual Rights
4. The Legal Position of the Applicant Due to the Implementation of Sharia
4.1. Article 1 of the 1rst Protocol to the Convention
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. [...]”
“where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it.” 18
“the applicant’s proprietary interest in inheriting from her husband was of a sufficient nature and sufficiently recognised to constitute a “possession” within the meaning of the rule laid down in the first sentence of the first paragraph of Article 1 of Protocol No. 1 [...]”.(MS, § 131)
4.2. Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
5. Concluding Remarks
Conflicts of Interest
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There are diverging views in the case law of the Greek courts regarding the source of the special treatment of Greek Muslims, as there are court rulings that justify this treatment based on the Treaty of Athens (1913), which pre-dates the Treaty of Lausanne and which, according to several Greek courts, is still in force today. The issue is further complicated as the Greek legislator incorporated the provisions of the Athens Treaty into law no. 1920/1991 Ratification of the Legislative Act of 24 December 1990 “On Muslim Clerics” (A΄ 182).
According to the case law of lower courts (Courts of First Instance, Courts of Appeal) and the Supreme Administrative Court, the implementation of the Sharia is incompatible with the Constitution or with international treaties of rights protection.
See Areios Pagos judgment no. 1831/2013, Nomos Database.
In Molla Sali the ECtHR makes a special reference to this aspect of the case law (MS, § 156).
This delay is due to the fact that none of the states that have ratified the Convention acknowledges a similar legal status of exemption from the general rules on the basis of religion except Greece and France, which accepted such an exception only for the population of the island of Mayotte up to 2011.
See Jewish Liturgical Ass’n Cha’are Shalom ve Tsedek v. France, no. 2471/95, 27 June 2000, § 95.
See Serif v. Greece, no. 3817/97, 14 March 2000, § 52.
See Canea Catholic Church v. Greece, no. 25528/94, 16 December 1997, §§ 41, 42.
The element of voluntary participation is very important in the ECtHR case law (Leigh 2012, p. 116). An example of such case law is the non-implementation of article 6 in cases involving the dismissal of priests by a decision of church authorities, see Duda & Dudová v. Czech Republic, no. 40224/98, 30 January 2001.
See Lombardi Vallauri v. Italy, no. 39128/05, 20 January 2010, §§ 55, 56, 71; Schüth v. Germany, no. 1620/03, 23 December 2010, §§ 73, 74; Pellegrini v. Italy, no. 30882/96, 20 July 2001, §§ 46, 47.
See Thlimmenos v. Greece, no. 34369/97, 6 April 2000, §§ 46–49. In Thlimmenos the ECtHR ruled that the denial of Greek Authorities to allow a Jehovah Witness to have access to the profession of charter accountant, because of his earlier conviction by a Greek Court due to his religious beliefs, is contrary to the protection of his religious freedom, enshrined by article 9 of the Convention.
Up to Molla Sali the group dimension of religious freedom has been examined through the lenses of the organizational autonomy of religious community, since the jurisprudence of the ECtHR was quite reluctant to recognize the group dimension of religious autonomy (Evans 2010, pp. 338–42).
See Sidiropoulos and Others v. Greece, no. 57/97, 10 July 1998, §§ 42–46; Stankov and United Macedonian Association Ilinden v. Bulgaria, nos. 29221/95 and 29222/95, 2 October 2001, §§ 90–105.
See law no. 4511/2018 Amendment of Article 5 of Legislative Act of 24 December 1990 “On Muslim Clerics” (A΄ 182), ratified by the Sole Article of Law 1920/1991 (A’ 11).
Refah Partisi (the Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98, 41344/98, 13 February 2003, §§ 123–29.
Dahlab v. Switzerland, no. 42393/98, 15 February 2001.
S.A.S. v. France, no. 43835/11, 1 July 2014.
See also the ECtHR case law after Kopecký in Beeler-Sigron 2018, p. 854 at n. 8.
The above cases are usefully summarized in European Union Agency for Fundamental Rights and Council of Europe 2018, pp. 51 et seq. and 187 (Guberina), 84 (Škorjanec), 52 (Weller).
Under Sharia only a Muslim can inherit a Muslim (see Pantelidou 2014, pp. 810, 816).
The highlights are in the original text.
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Koumoutzis, N.; Papastylianos, C. Human Rights Issues Arising from the Implementation of Sharia Law on the Minority of Western Thrace—ECtHR Molla Sali v. Greece, Application No. 20452/14, 19 December 2018. Religions 2019, 10, 300. https://doi.org/10.3390/rel10050300
Koumoutzis N, Papastylianos C. Human Rights Issues Arising from the Implementation of Sharia Law on the Minority of Western Thrace—ECtHR Molla Sali v. Greece, Application No. 20452/14, 19 December 2018. Religions. 2019; 10(5):300. https://doi.org/10.3390/rel10050300Chicago/Turabian Style
Koumoutzis, Nikos, and Christos Papastylianos. 2019. "Human Rights Issues Arising from the Implementation of Sharia Law on the Minority of Western Thrace—ECtHR Molla Sali v. Greece, Application No. 20452/14, 19 December 2018" Religions 10, no. 5: 300. https://doi.org/10.3390/rel10050300