Asmeta v France: France ban on Female Muslim lawyers wearing hijab in court goes to European Court of Human Rights

07 Jul 2022

Public Law and Judicial Review

Sarah Asmeta, a fully-qualified French lawyer who chooses to wear the hijab (Islamic headscarf), has lodged her case at the European Court of Human Rights after the French Cour de Cassation (France’s highest court for civil matters) rejected her appeal on 2 March 2022, endorsing a ban by her local Bar Council (the Lille Bar Council) that prohibits French lawyers wearing the hijab or other markers of faith in court (with the gown/robe). 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, who holds an undergraduate degree and multiple masters’ degrees and has worked at the International Criminal Court, is effectively prevented from practising in her chosen area of criminal law, and is limited to practise in the very few areas of law that do not require her to represent clients in court, which is difficult to sustain financially, especially as a junior lawyer. If Mrs Asmeta were to appear in court wearing the hijab to represent her own clients she would face temporary suspension and, ultimately, disbarment.

Dr Christina Lienen is a part of the legal team working to overturn this ban.

Last week, the team lodged Mrs Asmeta’s application against France at the European Court of Human Rights, on the basis of Articles 6, 9, 10, 13, and 14 of the European Convention on Human Rights and Fundamental Freedoms.

It is argued the ban is a violation of these rights, including by:

• Article 6 – The ban infringes the right to a fair trial because it presents an unjustified limitation on the right to choice of lawyers and an interference with equality of arms between lawyers.
• Article 9 – 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.
• Article 14 – The Ban constitutes indirect discrimination and indirect intersectional discrimination because the applicant is treated less favourably than other lawyers on the basis of the protected characteristics of gender/sex and religion.

The application is made in the context of a growing anti-Muslim climate in France in which Muslim women in particular are increasingly asked to make a hard choice between being Muslim and freely participating in – and contributing to – society. Mrs Asmeta, whose experience is but one example of a dangerous trend, is asking the European Court of Human Rights to reinforce its mandate to secure an acceptable standards of fundamental human rights protection in France and across the states bound by the Convention.

In addition to Christina, Mrs Asmeta’s legal team consists of Clara Gandin (1948 Avocats), Daniel Grütters (One Pump Court), Rabah Kherbane (Doughty Street Chambers) 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). The team is led by Sultana Tafadar QC (No. 5 Chambers).