CAS procedures compatible with right to a fair trial except for refusal of public hearing (european court of Human Rights)
By Natalie Voser & Benjamin Gottlieb
In Mutu and Pechstein v Switzerland (Applications no. 40575/10 and no. 67474/10) (ECHR 324 (2018)), the European Court of Human Rights has confirmed that the procedures of the Court of Arbitration for Sport are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights. However, in one of the claims, it did find a violation of the right to be heard with regard to a denial of public proceedings.
Speedread The European Court of Human Rights (ECHR) has held, by a majority decision, that the right to a fair trial granted under Article 6(1) of the European Convention on Human Rights (Convention) had not been violated by an alleged lack of independence by the Court of Arbitration for Sport (CAS). In considering two independent applications by athletes Darian Mutu and Claudia Pechstein, the ECHR did not find any general structural absence of independence and impartiality in the CAS. It also denied the criticism regarding personal impartiality of certain arbitrators. However, in the case of Pechstein, the ECHR recognised a violation of the right to a fair trial with regard to the denial of public proceedings before the CAS. It held that, in view of the compulsory nature of the arbitration in her case, the questions concerning the merits of the sanction imposed on Pechstein for doping, required a hearing before the CAS that was subject to public scrutiny. The judgment brings, at least for the time being, two long standing sagas in sports arbitration to a close, which have kept the arbitration community in suspense for eight long years. It furthers legal certainty in that it reinforces the legitimacy of CAS tribunals and clarifies that states have a responsibility to ensure compliance with human rights, even in cases of private adjudication bodies. (Mutu and Pechstein v Switzerland (Applications no. 40575/10 and no. 67474/10) (ECHR