INTERNATIONAL SUCCESSION REVIEW – Minority protection vs. non-discrimination in European succession law

Vol. 1, No. 1                                                                                                                                                                                                                   April 2019

Dear Reader,

What follows is the first issue of a new initiative in which we reflect on a topic encountered with growing frequency in our lives today: namely, that of international succession.

In the 21 st century, as our family and financial relations become increasingly international, it is no longer rare to meet families with members of various nationalities, or people or families having assets in several different countries.

At the same time, international private law and the national rules that govern these relations do not paint a coherent picture, often reminding us of a colourful puzzle of innumerable pieces, a “game” in which participants must find their way through a labyrinth of coexisting bi- or multi-lateral international conventions and European Union norms, along with frequently incongruent national
rules, in order to efficiently solve problems.

The aim of our publication is to address the practical issues surrounding international succession law, while also shedding light on the theoretical context. We want to produce a review that makes interesting reading not only for lawyers, but also for others interested in these issues. With that in mind, our plan is to attempt to – over the space of two or three pages – discuss one particular area per issue, while also sharing the results of our research on the topic with readers whose interest runs deeper.

So what specific topics will be discussed? Over the coming months, we will cover, among other things, all major succession law systems, including specific characteristics of those of several countries (e.g. France, the United Kingdom and the United States of America), and will discuss both in general, and in detail the regulation that has been in force in Europe since the summer of 2015. We also welcome topic proposals from our readers and hope that you will share with us the international succession law issues that are of concern to you.

In our first issue, we discuss, as a teaser of sorts, a particularly interesting recent case in which minority protection rules originating from a near-100-year-old peace agreement were found to be in competition with fundamental human rights principles, that also offers a taste of how Islamic law can become part of the national law of a European Union country – in short, everything the heart desires!

Happy reading!

Dr. Péter Kun and Dr. Olivér Spiriev

Dr. Péter Kun
managing partner of KUN & PARTNER Legal Partnership, member of the Budapest Bar Association and the Paris Bar Association, registered as TEP with the London-based Society of Trust and Estate Practitioners (STEP), vice-president of STEP Hungary, member of the International Estate Planning Commission of the Union Internationale desAvocats and of the International Relations Committee of the Budapest Bar Association,
direct contact:
Dr. Olivér Spiriev
consultant of KUN & PARTNER Legal Partnership
direct contact:


Minority protection vs. non-discrimination in European succession law – the case of Molla Sali vs. Greece

In a recent ruling (20452/14 19 December 2018), the European Court of Human Rights (ECHR) declared as contrary to the principle of non-discrimination an instance in which the Greek courts pronounced judgment on the validity of a will made in accordance with Greek law by a Greek national belonging to the Muslim minority based on Islamic (Sharia) law. In the Molla Sali vs. Greece case the Strasbourg-based court declared that the application of Islamic law cannot be made mandatory in a case where a testator belonging to the Muslim minority has made a will in accordance with the Greek Civil Code.

The facts

In 2003, Moustafa Molla Sali, a member of the Muslim community of Greece’s West Thrace, made a will certified by a public notary in accordance with the Greek civil code, in which he left all of his assets to his wife, Chatitze Molla Sali. The majority of the estate comprised properties owned by the testator located in the Greek province of West Thrace.

Following the testator’s death in 2008, the two sisters of the deceased challenged the validity of the will before the Greek court, arguing that in inheritance law cases among members of the Muslim minority, not Greek civil law, but Sharia law – under the jurisdiction of the mufti (Muslim legal expert) – should be applied.

The arguments of the case and of the sisters of the deceased were based on case law as established in the wake of international agreements originally concluded with the aim of protecting minorities. Following the collapse of the Ottoman Empire, Greece had been obliged to safeguard the rights of the large Muslim minority living in its territory via several international agreements – i.e. the Treaties of Athens of 1913, of Sèvres of 1920 and of Lausanne of 1923. As a key element, Greece had ensured for members of the Muslim minority the application of their own customs and laws with regard to certain types of interpersonal cases, such as marriage, divorce, guardianship and Islamic wills, as well as the decision-making authority of the mufti in these matters. However, case law established over the years was not consistent, and over the past decades Greek courts took radically opposing positions in several cases with regard to both the validity of the international agreements and the specific obligations arising from them. In general it can be said that, while the Public Administration Supreme Court ruled that the mandatory application of Sharia law is contrary to the requirement of equal treatment, the Appeals Court consistently held that it follows clearly from the minority protection provisions of the international agreements that in certain affairs among Muslims, the application of Islamic law and the jurisdiction of the mufti are not optional but mandatory.

In the legal dispute between the testator’s sisters and his wife, interpretation of the Greek regulation was of great significance, because while the testator’s will, which gave the entire inheritance to his wife, was considered valid based on Greek civil law, a will of such content was contrary to the succession rules of Islamic law. According to Sharia law, a will can only serve as a supplement to lawful inheritance: with his testament, a testator can give only one-third of his succession assets to third parties other than legal heirs. Thus, in the case of Islamic law, Sali’s will would be considered invalid, and his wife might claim only one-quarter of the estate as her lawful inheritance.

The claim of the deceased’s sisters was rejected by the Greek courts of the first and second instances, which declared unambiguously that a Muslim testator of Greek nationality was entitled to make a will in accordance with Greek national law, and that mandatory application of Islamic law, without regard to the wish of the testator, would be contrary to the principle of non-discrimination on a religious basis.

However, during the review procedure, the Appeals Court overturned the rulings of the lower courts, citing a violation of law. In accordance with earlier case law, it ruled that under both the aforementioned international treaties, and Greek national rules, Islamic law should have been applied to both the succession, and the validity of the testator’s will, due to the testator’s religion and the subject of the succession.

In the retrial, in accordance with the ruling of the Appeals Court, the courts annulled the will of Moustafa Molla Sali as contrary to Sharia law, thereby depriving Chatize Molla Sali of a large part of her inheritance and granting her only one-quarter of the estate, her lawful inheritance under Sharia law.

The Procedure and Decision of the European Court of Human Rights

In 2014, Chatize Molla Sali filed an application against Greece with the European Court of Human Rights over violations of the right to fair trial, non-discrimination, and the right to property, all enshrined in the European Convention of Human Rights. In her application, she argued that although her husband had made his will in accordance with Greek national law, due to his religion, the Greek courts had applied Sharia law to her inheritance from him, thereby blocking her from obtaining a significant part of the estate given to her in his will.

First, it should be noted that the ECHR interpreted the case solely in the light of non-discrimination and – in conjunction with it – the right to property enshrined in the European Convention of Human Rights, deeming any examination of the right to a fair trial, also referenced by the applicant, unnecessary.

In assessing the application, the ECHR primarily focused on the fact that the application of Islamic law had resulted in the cancellation of the will, as a consequence of which the testator’s wife had lost three-quarters of the inheritance it had accorded her.

The ECHR had before it two main issues on which to formulate a position: (i) whether the applicant was in an analogous or essentially similar situation to the wife of a non-Muslim testator, and if so, whether she had been treated in a discriminatory manner; (ii) in the case of discriminatory treatment, whether said treatment could be justified by an overriding reason relating to the protection of public interest, and whether the difference in treatment was proportionate to the public interest objective in question.

In regard to the first issue, in a ruling adopted on 19 December 2018, the ECHR stated clearly that the wife of the deceased had indeed been in a situation comparable to that of the wife of a non-Muslin testator, and that, based on the will made in accordance with Greek law, she had the same lawful claim to the estate as has any other wife who is a Greek national based on her husband’s will. As in spite of this, Chatize Molla Sali had not obtained the inheritance she was entitled to from the will, she had been subject to discrimination, the sole reason for which was her husband’s religion.

As regards the question of the justification of discriminatory treatment for reasons of public interest, the ECHR stated that, although the Greek government had argued that, with the application of Sharia law, it had been fulfilling its minority protection obligations under international treaties, the obligation to apply Sharia law, especially where this went against the will of the testator, was not apparent from
the text of the international treaties cited.

The ECHR also pointed out that for decades, the Greek courts had interpreted the international treaties on which the application of Sharia law is based in a contradictory manner, and that this controversial jurisprudence has led to a significant degree of legal uncertainty in the inheritance cases of Greek Muslims, a state of affairs that is contrary to the requirement of the rule of law. The ECHR did not take a position as to which of the different interpretations of the Greek courts should be regarded as correct, examining only whether the specific interpretation applied by the courts in this particular case was compatible with the European Convention of Human Rights.

It follows from the decision of the court that whichever interpretation of the minority protection provisions of international treaties should be accepted as correct, that interpretation must not result in the deprivation of members of the Muslim minority of their opportunity of choosing national law. This would be contrary to the freedom of self-expression, one of the fundamental rights of minorities and a
cornerstone of minority protection. According to the ECHR’s clear case law, members of a minority should be given the opportunity to choose whether to exercise the rights granted them in certain cases, or rather to follow general rules.

In light of the above, the ECHR unanimously concluded that there had been a violation of the principle of non-discrimination and, at the same time, a violation of the right to property.

Thus, under the decision of the ECHR, the application of Islamic law is contrary to the European Convention of Human Rights if the deceased has made a will in accordance with the Greek Civil Code, an act that constitutes a clear declaration of will. Additionally, the obligations arising from the international treaties on which the case law is based should not result in a situation in which members
of a minority are not able to decide as to whether they wish to exercise the privileges they have been granted.

It is important to note that the ECHR does not have the power to annul or alter the rulings of national courts and that the above decision does not, therefore, result in Chatize Molla Sali’s actually obtaining the inheritance granted her by her husband’s will. What the ECHR can do where a breach of the European Convention of Human Rights has been committed is to compensate the injured person by providing ‘fair satisfaction’ and to oblige the state in breach of the Convention to reimburse the applicant.

Chatize Molla Sali asked the ECHR to award her a total of almost EUR 1 million in compensation for the violation of her right to property and unequal treatment suffered, and an additional EUR 8,500 to cover her costs. The ECHR will decide on the amount to be paid in a separate procedure.


The ruling was a highly anticipated event, and one which the international professional community largely considered correct and logical, agreeing that the Greek courts had violated the requirement of non-discrimination. One positive aspect of the case is that Greece, remedying a long-standing legal uncertainty via a law that came into force on 15 January 2018, even before the ruling was adopted, abolished its provisions on the mandatory application of Sharia law in family and inheritance cases. In the future, Islamic law will apply to these subjects – and the mufti will have decision-making authority – only where all concerned consent voluntarily.

It should be noted, however, that even though several international organisations have dealt with the issue of the compatibility of Sharia law with human rights in connection with case law, contrary to the expectations of many, the ECHR did not take a clear stand on the issue. Certain rules of Sharia law are in conflict with both the requirement of gender equality, and the principle of religious non- discrimination. Also, though men are entitled to a greater lawful inheritance than women, and non- Muslims may not inherit from a Muslim testator, the ruling of the ECHR did not touch on the compatibility of these rules with European public order.

The ruling also left open the issue of whether religious legal systems that co-exist with a nation’s civil law are compatible with the requirement of rule of law as understood in the European sense and/or with the public order of individual states, and if so, to what extent.

Because such issues will be of interest in the future, it is worth following both subsequent decisions brought about by individual states and international courts, and the positions of the international organisations that deal with them.