By Prof Dr Ian Blackshaw
Following the Decision on 2 October 2018 by the European Court of Human Rights (ECHR) in the Claudia Pechstein and Adrian Mutu Cases, the Court of Arbitration for Sport (CAS) may well have to open its doors to the general public when hearing cases in the future.
To date, CAS hearings have been held in private and only the parties and their legal representatives and any witnesses have been present. This is in line with the general nature and attractiveness of arbitration proceedings, which are confidential. In fact, sports persons and bodies prefer not to ‘wash their dirty sports linen in public’ but have their disputes settled ‘within the family of sport’. In other words, behind closed doors.
This practice, it seems, will now have to change following the award by the ECHR of moral damages of €8,000 to Claudia Pechstein who, having requested a public hearing, was denied one. This, it was held, was in breach of her human rights under Article 6.1 of the European Convention on Human Rights – the right to a fair trial.
On this point, the ECHR in its Decision of 2 October 2018 held as follows:
“The public nature of the judicial procedures is a fundamental principle of Article 6 § 1 of the European Convention on Human Rights; such principle is also applicable to non-State courts ruling on disciplinary and/or ethics matters. In the case of Claudia Pechstein, the CAS should have allowed a public hearing considering that the athlete had requested one and that there was no particular reason to deny it.”
Addressing this particular issue in its Media Release on the Pechstein and Mutu Cases, issued on 2 October 2018, the CAS commented as follows:
“ICAS [the Governing Body of CAS] has already envisaged the possibility of having public hearings at its newer and much larger future premises at the Palais de Beaulieu in Lausanne.”
So, CAS is on the move to bigger headquarters, where it appears that it will have better facilities to accommodate any public hearings in future.
The issue now before the CAS is whether, under revised procedural rules (the Code of Sports-related Arbitration), it will be the norm to hold hearings in public in all cases; or whether CAS will only allow them on a case-by case basis, that is, in those cases where the parties have expressly requested one.
This is a tough call for CAS, which is handling around 550 cases a year, and one, it might even be said, on which its very future may depend!
For a review of the Pechstein and Mutu ECHR Cases, see the post on the GSLTR website of 3 October 2018 by Dr Thilo Pachmann, and also the full text of the CAS Media Release, headed ‘The ECHR recognises that CAS fulfils the requirements of independence and impartiality’, which was posted on the website on the same date.
Prof Dr Ian Blackshaw may be contacted by e-mail at ‘firstname.lastname@example.org’