The European domestic legal orders can deal with Islamic law based on the shari’a in various ways:
1) the uniform private international law rules of the European Union (e.g. in matters of legal separation and divorce pursuant to Regulation (EU) No 1259/2010), private international law rules contained in international conventions (e.g., on the protection of minors under the 1996 Hague Convention) or domestic private international law rules in non-harmonized fields (e.g. on the parentage) may refer to the law of a State whose legal order is based on the shari’a; in this context, it is also possible that the conflict-of-law rules refer to the law of a State having more than one legal system, in which, on a personal basis, the shari’a is applied, so, to Muslims people (let’s think of India);
2) a judgement issued in a third State and based on the application of a domestic law that includes the shari’a among its sources of law may lead to an application for recognition and enforcement in a European State on the basis of domestic laws (or contained in international conventions) in the field of decisions effectiveness;
3) a European legal order could let the application of Islamic law based on shari’a in proceedings before authorities within its territory: this happens, for example, at least in practice, in Great Britain by authorities in adopting non-binding decisions, such as the so-called Shari’a Councils, or before arbitration panels when parties choose Islamic law as the applicable law to the merits (e.g, the Muslim Arbitration Tribunal).
However, the application of the shari’a is considered suitable to raise difficulties on protection of fundamental rights with reference to the possible discrimination that it determines to the detriment of women, especially within the marriage relationship.
When the issue of the application of the shari’a arises because of the operating of private international law rules (and, therefore, in the determination of the applicable law in a domestic proceeding or in the recognition or enforcement of a foreign judgement), there are traditional tools that can be used in order to fulfil the needs related to the protection of fundamental rights.
In particular, the incompatibility of certain Sharia law rules with public order can both prevent their application as a foreign law referred to by the conflict-of-law rules, and exclude the effectiveness of foreign judgements that apply them (in this sense, albeit in different terms, see Italian Court of Cassation, 7 August 2020 n. 16804 and Italian Court of Cassation, 14 August 2020 n. 17170), due to the contrast with the protection of fundamental rights, also of a procedural nature (e.g. respect for cross-examination in the context of Islamic repudiation).
From a different point of view, in order to limit the effects of the shari’a application, the qualification technique may come into play, through which legal devices coming from foreign origin can be referred to – or excluded from – certain legal notions of domestic law in relation to their nature: this technique was, for example, followed by the Court of Justice of the European Union, which stated that an Islamic divorce before a Syrian religious court should be considered in the same way as a private divorce (judgment of 20 December 2017, C-372/16, Sahyouni, EU:C:2017:988). Based upon this classification, the Court of Justice of the European Union ruled that type of divorce was out of the scope of application of both Regulation (EU) No 1259/2010 on the law applicable to legal separation and divorce and, at the same time, Regulation (EC) No 2201/2003, relating to jurisdiction and the recognition and enforcement of judgments in matrimonial matters.
matters. A more complex problem arose in relation to the Greek legal order and the legal status of the Muslim minority in the Western Thrace region. Indeed, in the aftermath of World War I and due to the inclusion of areas previously belonging to the Ottoman Empire in the territory of the Greek State, the latter, with the Treaty of Sèvres of 1920 and the Treaty of Lausanne of 1924, entered into international commitments in the sense of guaranteeing the Muslim population the application of Islamic customs in matters of personal and family law (including succession matters). These commitments were then realized with the enacting of domestic legislative rules, which the case law of the Greek Court of Cassation considered as a special legal framework on a personal basis and, as such, applicable to Muslim minorities in the Greek territory even beyond an express individual willingness in this sense, although the non-settled domestic case law, especially in relation to the persistent relevance of the international commitments entered into by Greece under the aforementioned treaties.
This situation has been dealt with in judgement by the Grand Chamber of the European Court of Human Rights (19 December 2018) in the Molla Sali v. Greece case, in which the application was filed by the wife of a member of the Greek-Muslim community, who had died but providing for testamentary provisions drawn up according to the discipline of the Greek Civil Code, rather than according to the shari’a rules. However, the domestic courts stated that will was null and void, because it did not comply with the special rules applicable to the testator on a personal basis, and, as a result, the wife was excluded from the succession. Therefore, she pleaded the violation of Arts. 6 and 14 of the European Convention on Human Rights combined with Art. 1 of the 1st Additional Protocol to the Convention, due to the fact that the application of the rules based on the shari’a had been considered mandatory, regardless of the will of the interested party, resulting in discrimination to the detriment of members of the religious minority, as they were thus deprived of the possibility of benefiting from the application of the ordinary rules under the Greek Civil Code and were, therefore, referred to different treatment in relation to their religion.
The European Court of Human Rights, upholding the filed application, stated that, following the rulings issued by the domestic courts, there had been discrimination to the detriment of the applicant, who had the right to expect, like any other Greek citizen, that her husband’s succession was governed by the will drawn up in the forms provided for by the Greek Civil Code, and that such discrimination was not of a proportionate nature. To reach this conclusion, the Court first of all noted that a specific obligation to apply the shari’a could not be derived from the Treaties of Sèvres and Lausanne and underlined that, as pointed out by part of the Greek case law and by various international organizations, the application of the shari’a is capable, in itself, of determining a violation of fundamental rights, since the principles that can be derived from it have a discriminatory nature towards women and minors. The Court, then, referred to the need to prevent the application of a special legal framework to members of a religious minority from resulting in a discriminatory practice: in particular, such a special legal framework must in any case allow the members of the minority to opt for the ordinary discipline applicable to all citizens, also by reason of the right of members of a minority group to choose not to be considered as such, in compliance with the principles established by the Council of Europe Framework Convention for the Protection of National Minorities.
In the light of the above considerations, the European Court of Human Rights has concluded that the application of the shari’a, when it is not to be applied as a result of the operating of private international law rules (and, therefore, withing the limits set by them), is possible only in cases of a consistent will of the interested party. On the other hand, the European Court of Human Rights stated that this was the situation not only before the courts in the territory of the United Kingdom, as mentioned above, but also in the Greek legal order itself, as a result of a law that entered into force in 2018, which allows the application of Islamic law in matters of marriage, divorce and succession only if all the parties involved agree to this effect. Therefore, the application of the shari’a not as a foreign but as a source of law recognized in the domestic legal order remains today confined to cases in which all the parties have manifested, to the extent that the domestic law permits so, their direct will to allow it.
Note – This document is subject to the warning set out here.