Mon, 11 Jul 2022
Sarah Asmeta, a French-born and fully qualified lawyer who chooses to wear the hijab (a headscarf worn by Muslim women) has lodged her case at the European Court of Human Rights after the French Cour de Cassation (the highest court of appeal in France) rejected her appeal on 2 March 2022, endorsing a ban by the Lille Bar Council that prohibits French lawyers wearing the hijab or other markers of faith in court. The Cour de Cassation said the ban was necessary to ensure the ‘independence of lawyers’, the ‘equality of citizens’, and the ‘right to a fair trial’.
Mrs Asmeta holds an undergraduate degree and multiple masters’ degrees. She has also worked at the International Criminal Court. The effect of the Cour de Cassation’s ruling is that she is effectively prevented from practising in her chosen area of criminal law, and is limited to practise in cases or areas of law that do not require her to represent clients in court, causing both financial and professional detriment to her career in law. If Mrs Asmeta were to appear in court wearing the hijab to represent her own clients she would be suspended, and ultimately, disbarred.
Sultana Tafadar QC led the legal team representing Mrs Asmeta in her appeal to overturn this ban in the European Court of Human Rights.
Over the weekend, the team lodged Mrs Asmeta’s application against France at the European Court of Human Rights, asserting violations of Articles 6, 9, 10, 13, and 14 of the European Convention on Human Rights.
It is argued the ban is a violation of these rights, including by:
- Article 6 (fair trial rights) – The ban undermines the independence of lawyers in private practice who are not public servants, not affected by the classical definition of laicite, and therefore should be free from this type of state interference (actual or perceived), as well as able to and perceived to be able to act freely, independently, and fearlessly on behalf of clients. The ban also presents an unjustified limitation on the right to choice of lawyers and an interference with equality of arms between lawyers.
- Article 9 (freedom of religion) – The ban constitutes an unjustified interference with the right to freedom of religion which pursues no legitimate aims, and is neither necessary nor proportionate. Amongst other things, the claim that wearing the hijab undermines the independence of the applicant as a lawyer is unsubstantiated and misconceived, the ECHR does not allow states to pre-emptively allege lack of professional independence without any evidence of lack of independence, and there is no correlation or causal link between bias or a lack of independence and the wearing of the hijab. To the contrary, state interference in this remit precisely undermines the perceived independence of lawyers, and any inability to treat lawyers equally because of religious signifiers would suggest discrimination on the part of the tribunal and not any fault by the lawyer.
- Article 14 (prohibition on discrimination) – The ban constitutes indirect discrimination and indirect intersectional discrimination because the applicant is treated less favourably than other lawyers due to the protected characteristics of gender/sex and religion.
In addition to Sultana, Mrs Asmeta’s legal team consists of Clara Gandin (1948 Avocats), Dr Christina Lienen (Cornerstone Barristers), Daniel Grütters (One Pump Court), and leading academics Dr Stephanie Berry, Senior Lecturer in International Human Rights Law at the University of Sussex, as well as Dr Shreya Atrey, Associate Professor in International Human Rights Law at the University of Oxford.