EGMR: Forthcoming judgment on Thursday 19 May 2016 – Barik Edidi v. Spain (no. 21780/13)

The applicant, Zoubida Barik Edidi, is a Spanish national who was born in 1970 and lives in Getafe. The case concerns a lawyer (the applicant) who wore the hijab in court and was asked by the president of the court to return to the area reserved for members of the public, on the ground that lawyers appearing before the court could only cover their head with the official cap (biretta).

In October 2009 Ms Barik Edidi, a lawyer, attended hearings held before the Audiencia Nacional as part of a trial concerning offences related to Islamic terrorism. During the first hearings, Ms Barik Edidi, who was sitting in the area reserved for members of the public, wore a hijab (Islamic headscarf) without any comments being made by the court. At the hearing of 20 October 2009, she sat in the part of the courtroom reserved for the parties, wearing a lawyer’s gown and with her head covered by the hijab, again without any comments being made. At the hearing of 22 October the president of the court asked her to return to the part of the courtroom reserved for members of the public, on the ground that the lawyers appearing before the court ought not to have their heads covered. On the following day Ms Barik Edidi informed the Observatory of Justice of the Madrid Bar about the incident.

On 11 November 2009 Ms Barik Edidi lodged an alzada appeal (hierarchical appeal challenging an administrative decision) with the division of the Audiencia Nacional that had jurisdiction for matters concerning the internal functioning of the courts. The Audiencia replied that it did not have jurisdiction, since the applicant was complaining about an act that was purely organisational in nature, rather than judicial, and referred the case to the General Council of the Judiciary (CGPJ). Having received no response from the latter body, Ms Barik Edidi applied to the Supreme Court for special judicial review, seeking protection of her fundamental rights; the Supreme Court dismissed her appeal. Holding that the referral of the case to the CGPJ was not justified, the Supreme Court dismissed the appeal without going into the merits of the case, considering that a body that did not have jurisdiction could not be criticised for remaining silent, and noting that the applicant had not objected to the case being referred. Ms Barik Edidi applied to have the Supreme Court’s decision declared invalid, but her request was dismissed.

She lodged an amparo appeal with the Constitutional Court against the dismissal of her application to have the Supreme Court’s decision declared invalid, then applied again to the Audiencia Nacional; it declared her appeal inadmissible as being out of time, noting that the applicant had lodged her alzada appeal beyond the 5-day period laid down by law. For its part, the Constitutional Court declared the amparo appeal inadmissible on the ground that there had been no violation of a fundamental right.

At the same time, Ms Barik Edidi requested that disciplinary sanctions be imposed on the president of the court who had asked her to return to the area of the courtroom for members of the public. The disciplinary committee decided that no further action should be taken on the complaint.

Relying in particular on Article 6 § 1 (right to a fair hearing), Ms Barik Edidi alleges that her complaints were not examined on their merits. She further relies on Articles 8 (right to respect for private and family life) and 9 (freedom of religion) and Article 1 of Protocol No. 12 (general prohibition of discrimination).

Press release ECHR 151 (2016) 12/05/2016

Veröffentlicht in Aktuell, EGMR, Rechtsprechung. Schlagwörter: , . Leave a Comment »

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