The single judge and the single-sentence motivation (2): The bewildering dismissal of Asmeta v France

Eva Brems

In a previous blogpost I wondered whether scholars and teachers of the ECHR can really understand how the Court interprets the Convention, if we do not know what happens in the large majority of cases, in particular those dismissed as inadmissible by a single judge in a four-line decision devoid of motivation.

This point struck home to me when I learned about the Court’s decision in Asmeta v France. This is a case about a headscarf ban. As it happens, we have a lot of those in Belgium, and as a result, I have been writing about headscarf bans in the light of the ECHR since the 1990s. Still, even though I am very familiar with the ECtHR case law in this field, I find it hard to predict how the Court would rule on a headscarf ban in a setting or circumstances on which it has not ruled before. This includes the setting of the Asmeta case, which concerns an attorney who is prohibited by a Bar Council to wear a hijab in court.

Sarah Asmeta was an attorney in training at the Lille bar, when the Council of that Bar, in June 2019, announced a change in its internal rule, to the effect that ‘an attorney cannot wear with their gown any kind of decoration, nor any ostentatious sign of a religious, philosophical, communitarian or political affiliation or religion’. It was argued in court by another attorney intervening in his own name, that this change of the rules was a direct result of the arrival of Sarah Asmeta as an attorney in training wearing a hijab, and of the ‘difficulties’ this caused both in the training school for attorneys and at the moment of her taking the oath as a trainee. She challenged this ban before the domestic courts, seeing her claim dismissed by the Court of Appeal as well as the Court of Cassation. The Court of Appeal ruled that the ban was a proportionate restriction of the religious freedom of the attorney in the name of the protection of the rights of the attorney’s clients. The Court of Cassation ruled amongst others that as an attorney in training, the applicant was not obliged to wear the gown, and therefore could not claim a current violation of her Convention rights.

The French ‘human rights ombudsperson’, le Défenseur des droits, intervened in this case at the appeal level, arguing essentially that the restriction of the right at issue lacked a basis in the law.

After the ruling of the Court of Cassation on 2 Mars 2022, Sarah Asmeta, supported by a team of UK-based attorneys, submitted an application before the European Court of Human Rights, alleging a violation of Articles 6, 9, 10, 13 and 14 ECHR. From the communication of the legal team, we learn that she is in the meantime a fully qualified attorney, whose preferred field of practice is criminal law. Instead, she ‘is limited to practice 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’.

It is notoriously difficult to win a case about a hijab ban at the European Court of Human Rights. The only successful applicant in such a case was Hagar Lachiri, who challenged a ban that applied to her as a civil party attending a criminal case in a Belgian courtroom. This was a very specific case, because the purpose of the ban was the maintenance of public order, and the Court ruled that the measure was not necessary for that purpose. At the same time, the Lachiri judgment includes a tricky phrase in para. 45 about neutrality as a potential basis for headscarf bans in the courtroom: ‘a court is a ‘public’ institution, where respect for neutrality vis-à-vis beliefs can get priority over the free exercise of the right to manifest one’s religion, as in public schools’.

To me, it seems absurd that an attorney would have a duty of neutrality. And, as a teacher of law students, I am horrified by the fact that – in Belgium as well as in France- some of our graduates cannot practice law without giving up a key part of their identity.

At the same time, given the Court’s case law that generally accepts headscarf bans in the name of neutrality or the protection of the rights of others, and given the tricky sentence in Lachiri, I think I would have advised Sarah Asmeta that the outcome of her case in Strasbourg would be uncertain.   

But given that the Court has not previously ruled on headscarves worn by attorneys, I would not doubt that the Court would examine the case on the merits. 

Yet the decision in this case, taken by a single judge, rules that the application is inadmissible.  

Translated from French, the full decision reads:

The second sentence of this four-sentence decision suggests that inadmissibility is based on the application being considered manifestly ill-founded. Yet the third sentence, with its broad reference to articles 34 and 35, throws some doubt on this. Does the Court consider that the applicant is not a ‘victim’ in the sense of article 34, because she was an attorney in training at the time she first challenged the ban before the French courts? Either ruling would be very problematic in my view and I could write a lot about the reasons why, but that is not the point I want to make here.

The point is that a case, which experts have good reason to expect would be addressed on the merits, was dismissed by a single judge, and that for lack of motivation, the decision does not reveal why this happened.

Not knowing the reasons behind the rejection of Sarah Asmeta’s claim, is highly problematic. The applicant does not know what her rights are, and neither do others in her position. If the application was rejected because she did not meet the ‘victim status’ requirement as long as she was not yet obliged to wear a gown and hence to take off hear headscarf in court, she could presumably start a new case and have a chance of winning it, now that she is a fully qualified attorney. In that new case she would then be able to focus on the merits, i.e. argue that the ban is neither pertinent nor proportionate to the invoked aim of protecting the client’s rights. Yet if the application was dismissed for being ‘manifestly ill-founded’, she cannot submit a new application, because that would be substantially the same as was already examined by the Court. Similarly, in that scenario, another female attorney who is refused to wear a hijab in a French courtroom would know that her chances of winning a case in Strasbourg are slim.

For an organization wishing to initiate strategic litigation on this matter, additional considerations come into play. A single-judge decision means that no deliberations have taken place on this matter, and that it could be the result of the interpretation of a single registry lawyer, endorsed by a single judge. Hypothesizing that the view of these two individuals on what is ‘manifestly ill-founded’ is not necessarily shared more broadly, one could consider submitting an application in a different section, relating necessarily to a different country.

But of course, rights holders do not know what they need to know to make these decisions.

On the Court’s website, the  Guide on Article 6 ECHR  includes a section on ‘the reasoning of judicial decisions’. For a recent summary of the key principles on this important fair trial guarantee, a reference is included to Zayidov v Azerbaijan (no 2), para 91:

This is an important rule provided by the European Court of Human Rights. I respectfully submit that we can and should expect the Court to comply with it.