Ms Zoubida Barik Edidi is a Spanish advocate. In the course of a trial of Islamic terrorist offences before the Audiencia Nacional, at a hearing on 20 October 2009 she sat in the part of the courtroom reserved for the parties, wearing her advocate’s gown and a hijab. No comment was made on that occasion; however, at the hearing on 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 should either be bareheaded or wear the appropriate headgear: the biretta (connoisseurs of ecclesiastical tat please note).
On the following day, she told the Observatory of Justice of the Madrid Bar about the incident. Her subsequent administrative appeals and her request for judicial review were dismissed, as was her appeal to the Constitutional Court. Moreover, no action was taken on her request for disciplinary sanctions against the President of the Court who had asked her to return to the public area of the courtroom.
Relying on particular on Article 6 § 1 (fair hearing), in Barik Edidi v Spain  No. 21780/13 she argued that her complaints had not been examined on their merits. She further complained of breaches of Articles 8 (respect for private and family life) and 9 (thought, conscience and religion) and Article 1 of Protocol No. 12 (general prohibition of discrimination).
The Court noted that the domestic courts, and especially the Supreme Court, had held that the appropriate channel for her complaints was that laid down in sections 556ff of the Judicature Act (Law no. 6/1985) and that, under those provisions, the Audiencia Nacional had declared her complaint inadmissible as out of time.
The Court also noted that she had lodged her azalda appeal (an appeal against an official decision made by a public authority) with the division of the Audiencia Nacional with jurisdiction over the internal functioning of the courts but that the corresponding procedure was clearly governed by sections 556ff of the Judicature Act and that the Supreme Court’s judgment had been unequivocal on this point. As a result, she could not rely on Article 59 of the Rules governing the Administrative Bodies of Courts, a provision that concerned only appeals brought before the General Council of the Judiciary (CGPJ).
She had taken two parallel approaches in dealing with the dismissal of her application to have the Supreme Court’s decision declared invalid. First, she had lodged an amparo appeal (an exceptional mechanism/appeal in order to protect fundamental rights) with the Constitutional Court, but that was declared inadmissible on the ground that there had been no violation of a fundamental right. Secondly, she again applied to the Audiencia Nacional, which – having regard to the judgment delivered in the meantime by the Supreme Court – declared that on this occasion it did have jurisdiction to examine the case (which it had initially remitted to the CGPJ) but, referring to sections 556ff of the Judicature Act, declared the appeal inadmissible as out of time, because it had been submitted well after the five-day deadline stipulated by the Act. The domestic courts had already found that those provisions were applicable to her case and that, at last instance, the Constitutional Court had held that her amparo appeal was inadmissible, on the ground that there had been no violation of a fundamental right.
Therefore, because her alzada appeal was out of time, Ms Barik Edidi had herself created the situation of which she complained: her conduct had prevented the domestic courts from ruling on the merits of the case. Given that the application of sections 556ff of the Judicature Act could not be viewed as unreasonable or arbitrary, the Court dismissed her complaint as ill-founded.
Articles 8 and 9 and Article 1 of Protocol No. 12
The Court further held that because the submission of her alzada appeal out of time had deprived the domestic courts of an opportunity to rule on merits, her complaint under Articles 8 and 9 and Article 1 of Protocol No. 12 had to be rejected for failure to exhaust domestic remedies.
In short, an own goal: so we’ll never know whether or not a Spanish advocate can wear a hijab instead of a biretta – until, maybe, the next time it happens.
The decision is available only in French: this note was compiled from the Court’s press release.