Islamic Law's Foothold in German Legal System
An appeals court in northwestern Germany has decided a contentious divorce case based on Islamic Sharia law.
The ruling is the latest in a growing number of court cases in Germany in which judges refer or defer to Islamic law because either the plaintiffs or the defendants are Muslim.
Critics say the cases -- especially those in which German law has taken a back seat to Sharia law -- reflect a dangerous encroachment of Islamic law into the German legal system.
In the latest case, the Appeals Court [Oberlandesgericht] in Hamm, a city in German state of North Rhine-Westphalia, ruled on June 2 that whoever marries according to Islamic law in a Muslim country and later seeks a divorce in Germany must abide by the original terms set forth by Sharia law.
The case involved a 23-year-old Iranian woman who married a 31-year-old Iranian man in Iran according Sharia law in 2009. The couple later immigrated to the German city of Essen, gave birth to a daughter but then separated in 2011. A lower court in Essen granted the woman a divorce in November 2012 and the husband appealed the decision.
The appeals court in Hamm sided with the woman because, according to the German judge, the couple agreed to abide by the principles of Sharia law at the time they were married and thus the case should be decided according to Islamic law, regardless of whether the couple was now living in Germany.
The court ruled that the woman was legally entitled to talaq, an Islamic means of obtaining a divorce by reciting the phrase "I divorce you" three times. The court also said the husband had violated the original terms of the Islamic marriage agreement by failing to provide financial support for his wife for a period of six months.
The ruling has opened another round in a long-running debate about the role of Islam in German jurisprudence.
Supporters of the decision say it is fair and consistent with Article 14 of the Introductory Statute to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche, EGBGB], which states that the law governing a marriage generally should be the law of the country in which the marriage took place. But critics of the ruling say it should not be the role of German courts to enforce the arcane provisions of Sharia law.
In a similar but separate case, the appeals court in Hamm announced in April 2013 that it had overturned a previous decision by a lower court in Dortmund and ordered a 33-year-old Iranian man to pay his estranged 29-year-old wife (also an Iranian) the equivalent of 800 gold coins as part of a divorce settlement.
That case revolved around a couple who were married in Iran in 2001, immigrated to Dortmund and later obtained German citizenship. The couple separated in 2007.
As part of the marriage agreement, the husband had promised to pay his wife a dower of 800 Bahar Azadi gold coins payable upon demand. The court ordered the husband to pay €213,000 ($280,000), the current equivalent value of the coins, in compliance with a marriage contract he signed in accordance with Islamic law, despite the fact that both individuals are now German citizens.
In February 2011, Germany's Federal Labor Court [Bundesarbeitsgericht, BAG] in Erfurt ruled that a Muslim supermarket employee was legally entitled to refuse to handle bottles of alcohol on religious grounds.
The case in question involved a 47-year-old Turkish man who had been employed at a supermarket in the northern German city of Kiel since 1994. The problem had begun in 2003, when the man was assigned to work in the beverages department, but refused to stock the store's shelves with alcoholic drinks, based on the argument that Islam forbade him from any contact with alcohol. In response, the store manager reassigned the employee to stock milk bottles in the dairy department, but the man complained that he was not accustomed to working in a refrigerated environment, so he frequently called in sick. The man was eventually sent back to work in the beverages department, where the conflict over the alcohol bottles intensified. The employee was eventually fired in March 2008.
In a decision that generated considerable controversy in Germany, the court ruled that the supermarket was unjust in firing the employee and was obliged to offer him an alternative position that did not conflict with his religious beliefs. The court rejected the argument set forth by lawyers representing the supermarket that the man should have been able to do his job without a fuss because Sharia law forbids only the drinking of alcohol, not the touching of bottles. The court noted that the employee had become increasingly religious and that any direct or indirect contact with alcohol would have been offensive to him.
In another case, in March 2007, Christa Datz-Winter, a judge at the Family Court [Familiengericht] in Frankfurt, cited the Koran in a divorce case involving a 26-year-old German woman of Moroccan origin who had been repeatedly beaten by her Moroccan husband. Although police had ordered the man to stay away from his estranged wife, he continued to abuse her and at one point threatened to kill her.
While not denying the facts, Judge Datz-Winter nevertheless refused to grant the divorce, arguing that a woman who marries a Muslim man should know what she is getting herself into. In her ruling, the judge quoted Sura 4, Verse 34 of the Koran, which justifies "both the husband's right to use corporal punishment against a disobedient wife and the establishment of the husband's superiority over the wife."
The ruling generated so much outrage that the judge was removed from the case.
In Kassel, the Federal Social Court [Bundessozialgericht] approved the claim of a second wife for half of her dead Moroccan husband's pension payments, which the man's first wife wanted to keep all to herself. Although polygamy is illegal in Germany, the judge ruled that according to Sharia law, the two wives must share the pension.
In Koblenz, the Administrative Appeals Court [Oberverwaltungsgericht] granted the second wife of an Iraqi living in Germany the right to remain permanently in the country. The court ruled that after five years of a polygamous marriage in Germany, it would be unfair to expect her to return to Iraq.
In Düsseldorf, an Appeals Court [Oberlandesgericht] ordered a Turkish man to repay a €30,000 ($40,000) dowry to his former daughter-in-law, in accordance with Sharia law. In Cologne, a judge ruled that an Iranian man must repay his ex-wife's dowry of 600 gold coins, based on the Sharia law followed in Iran.
In Munich, a Local Court [Amtsgericht] decided that a German widow was entitled to only one-quarter of the estate left by her deceased husband, who was born in Iran. The other three-quarters of the inheritance should go to relatives in Tehran. The court ruled that because the man did not have German citizenship, Sharia law applies to the division of the inheritance.
A growing number of German legal experts are now sounding the alarm about the rise of a parallel Islamic justice system in Germany.
In an interview with the German newspaper Die Welt, Mathias Rohe, an expert in Sharia law at the University of Erlangen, discusses the rapid spread of Islamic law in German jurisprudence. He describes Sharia law as a "highly complex system of Islamic religious and legal norms" and warns, "We must be careful that we are not creating parallel [legal] structures."
According to Joachim Wagner, a German legal expert and former investigative journalist for ARD German public television, Sharia law in Germany is far more widespread than most people realize, and that this "parallel justice system" is undermining the rule of law in Germany.
In a 236-page book entitled "Judges Without Law: Islamic Parallel Justice Endangers Our Constitutional State," Wagner writes that, in addition to the use of Sharia law in German courts, Muslims are also establishing a shadow justice system, with Islamic Sharia courts now operating in all major German cities.
Wagner writes that Muslim jurists often seek to settle criminal cases out of court -- without the involvement of German prosecutors or lawyers -- before law enforcement can bring the cases to a German court.
Settlements reached by the Muslim mediators often mean perpetrators are able to avoid long prison sentences, while victims receive compensation in line with Sharia law. When cases are tried in German courts, victims are often pressured to make sure their testimony in court does not lead to a conviction, according to Wagner.
In an interview with the German newsmagazine Der Spiegel, Wagner describes the Islamic shadow justice system in Germany as "very foreign, and for a German lawyer, completely incomprehensible at first. It follows its own rules. The Islamic arbitrators aren't interested in evidence when they deliver a judgment, and unlike in German criminal law, the question of who is at fault doesn't play much of a role."
When Der Spiegel asked why it was wrong for two parties to try to resolve a dispute among themselves, Wagner replied: "The problem starts when the arbitrators force the justice system out of the picture, especially in the case of criminal offenses. At that point they undermine the state monopoly on violence. Islamic conflict resolution in particular, as I've experienced it, is often achieved through violence and threats. It's often a dictate of power on the part of the stronger family."
Wagner says political correctness is contributing to the rise of Sharia law in Germany. In an interview with the German broadcaster Deutsche Welle, Wager states: "I've studied 16 recent crime cases here with Muslim citizens involved. In almost 90% of all cases where Muslim arbitrators were commissioned, the perpetrators were acquitted by German courts or the cases were dropped altogether by the prosecution for lack of evidence. It's an alarming finding, and it throws a bad light on our courts."
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