TrustHLT/LaCour huggingface dataset:
Guido Raimondi (JudgeP): On 28 August 2017, on 30 August 2017 and 1 September 2017 respectively, the Greek Helsinki Monitor, the Christian Concern, and the Hellenic League for Human Rights were granted leave under Article 36, Paragraph 2 of the Convention, and Rule 44, Paragraph 3 of the rules of court, to make written submissions to the court as third parties.
Guido Raimondi (JudgeP): The government are represented by their agent's delegate, Mrs. Vasileia Pelekou, advisor, state legal counsel,
Guido Raimondi (JudgeP): assisted by Mrs. Aikaterini Magrippi, counsel,
Guido Raimondi (JudgeP): by Mrs. Maria Telalian, counsel,
Guido Raimondi (JudgeP): and by Mr. Elias Kastanas, advisor.
Guido Raimondi (JudgeP): The applicant is represented by Mr. Konstantinos Tsitselikis,
Guido Raimondi (JudgeP): counsel, and Mr. Yannis Ktistakis, counsel,
Guido Raimondi (JudgeP): assisted by Mr. Deniz Memet, advisor.
Guido Raimondi (JudgeP): Mr. Ömer Faruk Cankat and Mr. Tayfun Ünay
Guido Raimondi (JudgeP): are also present on behalf of the applicant.
Guido Raimondi (JudgeP): I also welcome the group of judges and prosecutors from the European Judicial Training Network.
Guido Raimondi (JudgeP): Mr. Magrippi and Mr. Telalian for the government
Guido Raimondi (JudgeP): will speak first, and then Mr. Ktistakis and Mr. Tsitselikis
Guido Raimondi (JudgeP): for the applicant.
Guido Raimondi (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Russian has been authorized.
Guido Raimondi (JudgeP): That interpreting is not arranged by the court, and no transcription of the oral translation will be included in the official record of the proceedings.
Guido Raimondi (JudgeP): I call Mrs. Magrippi.
Guido Raimondi (JudgeP): You have the floor, please.
GR3 (Government): Mr. President, Honourable Members of the Court,
GR3 (Government): the Greek Government have the honour to make the following pleadings.
GR3 (Government): First of all, we are in the position to inform the Court of the Government's initiative to introduce a law reform concerning the optional application of the Sharia.
GR3 (Government): The initiative was taken by the Government within the margin of appreciation in the direction of strengthening the protection of the rights of the members of the Muslim minority in Thrace, mostly of women and children, taking into consideration that some disputes are raised within the minority, questioning the mandatory implementation of the Sharia, so following a change throughout the years of the ethics and the circumstances within the minority.
GR3 (Government): The final provisions of the law will be submitted to your Court as soon as they are adopted by the Parliament.
GR3 (Government): In this context, a reform of the family law, for which your Court raises question number six, as proposed seven years ago by certain law professionals expressing their academic opinion, is not relevant, not being adopted by any Government to be introduced to the Parliament as a draft law.
GR3 (Government): So coming to review the specific application of Molla Salli in concreto, there is not any admission that this case is admissible and valid on its grounds.
GR3 (Government): The principle of legal certainty governing all secessions concluded before the legal reform, affecting the members of the Muslim minority in Thrace and any other beneficiary of property rights, should prevail and should not be compromised.
GR3 (Government): The specific case, we have the opinion, that is not qualified to be examined on its merits by your Court.
GR3 (Government): I shall briefly point out why.
GR3 (Government): Firstly, it is apparent that the applicant presents herself before your Court as being herself the victim of violation of human rights, not in the name of her deceased husband, although her main complaint concerns her husband's right to draft a will.
GR3 (Government): Moreover, all reasoning of national courts in favour or against the applicant never made any reference to her personal status as a woman nor to her religious status as a Muslim.
GR3 (Government): Therefore, issues of violation of Article 6, Paragraph 1, taken either independently or in conjunction with Article 14, may not be admissibly raised.
GR3 (Government): In addition, the applicant's case was heard five times by national courts.
GR3 (Government): The Supreme Court's choice of Sharia in the disputed individual case may not be considered as a manifest error nor as a denial of justice towards the applicant.
GR3 (Government): It is a ruling of an independent and impartial Supreme Court having a specific, detailed reasoning and following a longstanding case law on the matter.
GR3 (Government): Secondly, there is not any admissible basis of violation of Article 1 or the first protocol in this case.
GR3 (Government): National authorities have never upheld in any way whatsoever that the applicant was the exclusive heir of her husband's property.
GR3 (Government): Law-accused decisions overturned by the Supreme Court are obviously not final, without any legal effect, not been possible to be invoked by the applicant.
GR3 (Government): The applicant could have predicted that the ruling of the Supreme Court would not be in her favour, taking into account the applicable rules and the longstanding case.
GR3 (Government): Therefore, the applicant had not even any legitimate expectation to become the exclusive heir of her husband.
GR3 (Government): Coming to the exhaustion of domestic remedies at the time of the introduction of the application, the applicant never denied that she has considered that there were still chances to overturn the critical matter of the validity of the disputed will.
GR3 (Government): This was her main argument before the Turkish restriction.
GR3 (Government): In order to prove the seriousness of such argument, she finally lodged her appeal in Cassation before the Greek Supreme Court, supporting till the end that it was well-founded.
GR3 (Government): So two parallel proceedings, one before your courts and the other before the Greek Supreme Court, were pending at the same time in the same case, seeking for the exact same result, the ruling that the will should have never been annulled.
GR3 (Government): The Supreme Court, before rejecting the applicant's appeal as ill-founded, has reviewed it on its merits.
GR3 (Government): Let me clarify that it was the applicant's first appeal in Cassation, acting for the first time during the whole litigation as a plaintiff and not as a defendant.
GR3 (Government): Following the government's observations of the issue, the applicant argued for the first time, exclusively before your court, that she was obliged to appeal in order to organize her defense.
GR3 (Government): I quote paragraph 10 of the applicant's observation before the first section.
GR3 (Government): In fact, this was against the position of the Turkish First Instance Court, as the applicant admits in paragraph 5 of her observations to the ground chamber.
GR3 (Government): In any case, this argument is irrelevant.
GR3 (Government): On our behalf, we may briefly inform the court of what the litigants of the applicant have recently made known to the government concerning the litigations in Turkey.
GR3 (Government): There was a first litigation, a lawsuit for the annulment of the same Greek will initiated in 2011 against the applicant in Turkey, which was still pending on the grounds raised by the applicant that the annulment of the will is not final in Greece, since her appeal in Cassation was pending before the Greek Supreme Court.
GR3 (Government): The applicant has also evoked a legal opinion of a Greek law professor for such purpose, asking the Turkish courts to appoint experts on the matter.
GR3 (Government): And there was a second litigation initiated by the applicant for the acknowledgment of the will in Turkey, which has been irrevocably rejected in 2014 upon the decision of the Turkish Supreme Court, long before the lodging of the applicant's appeal in Cassation before the Greek Supreme Court.
GR3 (Government): Consequently, there was never any legal obligation to lodge the appeal in Cassation.
GR3 (Government): As the applicant admits, it was her discretional choice and legal strategy to maintain and invoke before the Turkish courts that the litigation in Greece was still pending and that the will was not finally annulled by lodging the appeal in Cassation before the Greek Supreme Court.
GR3 (Government): Shouldn't all jurisdictions, including your courts, treat this case in the same identical manner, namely as a case pending before national courts, despite the fact, or to be precise, exactly because the applicant invokes exhaustion of domestic remedies before your courts and non-exhaustion before national courts?
GR3 (Government): For all the above reasons, we consider that the application does not satisfy the conditions provided in Article 35 of the Convention.
GR3 (Government): Now we come to briefly point out a few crucial matters concerning the merits of the case.
GR3 (Government): Firstly, we would like to observe that the applicant and the intervenors refer to general matters not applicable to the circumstances of this specific case.
GR3 (Government): For example, the argument of differentiation of treatment of women in phrase is not even applicable in this case, with the applicant and all heritage, the sisters of the deceased, are all women.
GR3 (Government): In this case, we do not have a state imposing the mandatory application of the Sharia.
GR3 (Government): We have two women members of the mass minority of race requesting the Greek courts to rule on the application of the Sharia based on their legitimate expectation to become the co-heirs of the brothers as per the longstanding implementation of the Sharia among the members of their family.
GR3 (Government): In fact, if these women had chosen not to dispute the brother's will, the will would be perfectly valid.
GR3 (Government): Besides, even the existence of a choice of the deceased in favor of the civil code and waiving the Sharia is questioned by the circumstances of this case.
GR3 (Government): We have explained our reasons in our observations.
GR3 (Government): One of them is that the deceased chose to marry the applicant solely under the Muslim ritual and not with a civil wedding, an element that, according to the case law of certain lower civil courts, could have waited in favor of the application of the civil code in their family relations.
GR3 (Government): Judgment number 1623 of 2003, the correct number is 1653 of the First Instance Court of Xanthi, for which your court raises question number five, is not final since it is an interim measure's resolution without any legal effect as a res judicata.
GR3 (Government): However, it proves the above argument.
GR3 (Government): Contrary to the case of Mollasalli, there was a civil wedding.
GR3 (Government): For the second case for which your court raises question number five, where the parties have not been married with a civil wedding, the final ruling was that civil courts do not have any jurisdiction.
GR3 (Government): In particular, the judgment of the First Instance Court of Xanthi number 102 of 2012 has been appealed and overturned by the Court of Appeal of Thrace under judgment number 178 of 2011.
GR3 (Government): 2015, excuse me.
GR3 (Government): Answering to your court's question number three, the religious marriage of Greek citizens in Greece is perfectly valid with full civil effects as long as a ceremony is held by a former priest of a faith or religion known in Greece pursuant to Article 1367 of the civil code.
GR3 (Government): Coming to the end, we need to emphasize in our case, the husband had any right as long as he lived to duly and validly transfer all his property to the applicant under the Greek property law without any application of the Sharia.
GR3 (Government): In summary, the predictable implementation of Sharia in the case of the applicant did not constitute discriminatory treatment against him.
GR3 (Government): Such an application was based on the law and pursued a prevailing aim of public interest as detailed in our observations.
GR3 (Government): There was also a reasonable relationship of proportionality since the testator could have achieved the duly transfer of his property exclusively to the applicant under other property deeds.
GR3 (Government): And in any case, the applicant has remained the heir at a percentage of 25% of her husband's property.
GR3 (Government): Now, the head of the legal department of the Ministry of Foreign Affairs will answer to your remaining question.
GR3 (Government): Thank you for your attention.
Guido Raimondi (JudgeP): much. I call Mrs. Telalian.
GR2 (Government): Mr. President, honorable members of the court,
GR2 (Government): with respect to questions one and two, I will first address the issue of the extinction of the provisions of the Treaty of Athens and of the Treaty of Sevres relating to the protection of minorities.
GR2 (Government): Thereafter, I will turn to the commitments undertaken by Greece and Turkey under the minority clauses of the Treaty of Lausanne of 1923.
GR2 (Government): The Treaty of Athens between Greece and the Ottoman Empire of 1914 addressed various issues between the two countries, including inter alia in Article 11, questions relating to the status of Muslim and Muslim communities living in the territories which came under Greek sovereignty after the wars of 1912 and 1913 by virtue of international treaties.
GR2 (Government): Now, it should be noted that the provisions on minority protection of this treaty, according to the letter of the Article 11, did not apply to the entire Greek territory, but only to those territories ceded to Greece in 1913.
GR2 (Government): However, Western Thrace did not form part of Greece at that time, as this region was ceded to Greece in 1923 by virtue of the Treaty of Lausanne of 1923.
GR2 (Government): Therefore, it is clear that the Treaty of Athens was not applicable to the Muslim inhabitants of Western Thrace.
GR2 (Government): Now, this is a position that Greece has always argued on the basis of the following two important arguments.
GR2 (Government): First, following the conclusion of the Convention of 30 January 1930, 23, on the compulsory exchange of Greek and Turkish populations and the ensuing transfer of all Muslims established in Greece to Turkey, with the exception of the Muslims of Western Thrace, the minority provisions of the Treaty of Athens, which applied, as was mentioned, in the area ceded to Greece in 1913, became devoid of purpose, and their performance became impossible.
GR2 (Government): Indeed, according to Article 62 of the Vienna Convention of the Law of Treaties, the fundamental change of circumstances is a ground for terminating a treaty, while Article 61 of the Vienna Convention qualifies the supervening impossibility of performance also as a ground for termination.
GR2 (Government): These provisions, which can also apply to specific clauses of a treaty, according to Article 44 of the Vienna Convention of Law of Treaties, also codify pre-existing customer international law.
GR2 (Government): Mr. President, the reason I'm mentioning
GR2 (Government): Article 44 of the Vienna Convention is because the Treaty of Athens also contains provisions relating to territorial adjustments in Greece.
GR2 (Government): So as you understand, our argument is that these provisions, this particular provision, remain in force.
GR2 (Government): According now to both the above Article 62 and 61 of the Vienna Convention, the minority provisions of the Treaty of Athens are no longer in force since the departure of Muslims from Greek territories where they were applicable made their practical implementation impossible.
GR2 (Government): In addition, the abolition in Turkey of the caliphate in 1924 had a direct impact on the entire minority protection system of the Treaty of Athens.
GR2 (Government): Second argument, in accordance with Article 59 of the Vienna Convention on the Law of Treaties, the minority provisions of the Treaty of Athens have been abolished by virtue of the Treaty of Lausanne of 1923.
GR2 (Government): Indeed, Article 37 and the rest of the articles of the Lausanne Treaty provide a comprehensive regime for the protection of minorities, including clauses relating to the settlement of questions relating to the family law or the personal status of their members in accordance with their customs.
GR2 (Government): The fact that the Treaty of Lausanne makes no reference to the minority provisions of the Treaty of Athens is a strong indication that these provisions were considered as devoid of purpose and terminated.
GR2 (Government): In addition, the ratio of the relevant clauses of the Treaty of Lausanne, which is based on the equal treatment of the members of the minorities with other citizens of Greece or Turkey respectively, was not compatible with that of the minority provisions of the Treaty of Athens, which provided for the autonomy of the Muslim communities in Greece in a manner similar to that of the millet system, which was prevailing in the Ottoman Empire at that time and which disappeared with the dissolution of the empire.
GR2 (Government): Furthermore, this autonomous regime was also linked to the institution of the Halifax, which, as was mentioned earlier, was also abolished by Turkey itself.
GR2 (Government): To conclude, even if the minority provisions of the Treaty of Athens had survived the compulsory exchange of populations between Greece and Turkey, quod non, the Lausanne Peace Treaty abolished them through the establishment of a totally different regime for the protection of minorities, as will be explained to you in a while.
GR2 (Government): Mr. President, as for the Treaty of Sèvres of 1920,
GR2 (Government): its provisions, as we know, have been placed, according to its Article 16, under the guarantee of the League of Nations.
GR2 (Government): Following the end of the Second World War, the legal validity of the undertakings concerning minorities whose implementation was linked to the League of Nations system was the object of a study in 1950 by the United Nations Secretariat, which, after having taken into account various factors, came to the conclusion, on the basis mainly of the fundamental change of circumstances doctrine, that the former minority protection regime has ceased to exist, with the exception of the Lausanne Treaty of 1923.
GR2 (Government): Furthermore, in the addendum to the above study, the UN Secretary General, referring to both the Treaty of Sèvres and the Treaty of Lausanne, stressed, I quote, only in regard to the specific regime established bilaterally between Greece and Turkey under the Treaty of Lausanne, does the Secretariat take the position that Greece and Turkey may still be bound.
GR2 (Government): So it is very clear, even from this wording, that the status of the members of the Muslim minority in Thrace is regulated only by the Treaty of Sèvres.
GR2 (Government): Regulated only by the Treaty of Lausanne of 1923, to the exclusion of the minority provisions, and in particular of Article 11 of the Treaty of Athens, or the provisions of the Treaty of Sèvres.
GR2 (Government): In view of the above, I will now touch upon your question on the application of Article 30 of the Vienna Convention on Law of the Treaties, in relation only to the Lausanne Treaty of 1923.
GR2 (Government): As was stated already, the Treaty of Lausanne contains provisions relating to the Muslim minority, which are based on the principles of human rights and of equal treatment of minority members with the rest of the population as regards the enjoyment of their civil and political rights.
GR2 (Government): Likewise, this treaty guarantees special minority rights, such as educational, linguistic, religious, cultural rights for the members of this minority.
GR2 (Government): Hence, the European Convention of Human Rights and the Lausanne Treaty, far from being contradictory or conflicting, are fully consistent, compatible, and mutually reinforcing.
GR2 (Government): At this point, I should note that the respondent has not invoked the Lausanne Treaty to justify any derogation or deviation from its obligations under the European Convention on Human Rights.
GR2 (Government): Now, I will turn to the Treaty of Lausanne and the question of whether Greece was obliged to apply the Sharia law in the present case under the minority provision of this treaty.
GR2 (Government): First, let me clarify the territorial application of minority protection clauses of the 1923 Lausanne Treaty.
GR2 (Government): These provisions, according to the letter of Article 45 of this treaty, applied in respect of Greece only with regard to the only Muslim minority that was exempted from the compulsory exchange of populations pursuant to the 30 January 1923 Convention, which allow me to say that preceded the conclusion of the Lausanne Treaty, August 1923.
GR2 (Government): And this is the Muslim minority of Western France.
GR2 (Government): That was the only minority that existed on Greek territory at the time of the conclusion of the 1923 Convention.
GR2 (Government): So this, I believe, answers also your question regarding the territorial application of the Treaty of Lausanne.
GR2 (Government): Likewise, under Article 42 of the Lausanne Treaty, Greece was committed to take in so far as it concerns family law or personal status of the Muslim minority, measures permitting the settlement of these questions in accordance with the customs of this minority.
GR2 (Government): It is obvious from the letter of this article that it does not impose any legal obligation on Greece to apply the Sharia law.
GR2 (Government): But rather, it allows the settlement of the issues in accordance with the customs of this minority.
GR2 (Government): In other words, the Treaty of Lausanne enables and allows Greece to apply the Sharia law in those very specific matters in a manner that the legislator deems most appropriate and consistent with the country's other international obligations.
GR2 (Government): Indeed, the above article makes reference to the customs of the Muslim minority and customs, Mr. President, by definition,
GR2 (Government): are not static, stable, or invariable, cast in stone.
GR2 (Government): But on the contrary, they evolve, they adjust to changing circumstances and societal attitudes, both within the local and the wider minority society.
GR2 (Government): Thus, the question, to what extent a religious law should regulate inter alia inheritance law matters, may receive different answers which vary over time.
GR2 (Government): It is worth mentioning, however, that in recent years, the number of the Muslim minority members in Thrace who make and register public will has increased.
GR2 (Government): And this is something that should be noted.
GR2 (Government): As has repeatedly been stressed before the UN treaty bodies, the Greek government takes into consideration the expressed preferences and wishes and the social norms of the majority of the Muslim minority on religious, social, and legal matters.
GR2 (Government): Let me say that the new law to which Mrs. Magrippi made
GR2 (Government): reference earlier was submitted yesterday, I mean Monday, to the parliament.
GR2 (Government): And it proves Greece's continuous efforts to respect the wishes of the Muslim minority in Thrace while preserving the human rights obligations undertaken by Greece and most particularly the European Convention of Human Rights.
GR2 (Government): I will now reply to your questions regarding the Jewish community in Greece.
GR2 (Government): On this question, I'll be very brief.
GR2 (Government): And I would like simply to point out that there is no international obligation in place regarding the Jewish community and its family matters.
GR2 (Government): These issues, the family matters and the personal status of the Jewish community are regulated by internal legislation.
GR2 (Government): And this legislation has always taken into account the customs of the Jewish community.