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“Meždunarodnoe pravosudie” (International Justice) Journal

№4 (28) 2018

European Court of Human Rights: review of the judgment of 2 October 2018 (Third section) in the case of Mutu and Pechstein v. Switzerland (applications nos.40575/10, 67474/10)

Abstract

In the judgment in the case of Mutu and Pechstein v. Switzerland, the Chamber of European Court of Human Rights considered an issue concerning the lawfulness of proceedings brought by professional athletes before the CAS. Relying on Article 6 §1 of the Convention, the applicants submitted that the CAS could not be regarded as an independent and impartial tribunal. The second applicant complained that she had not had a public hearing before the ISU disciplinary board, the CAS or the Swiss Federal Supreme Court, despite her requests. She also alleged that the mechanism of appointing the arbitrators to the arbitration panel had led to the structural absence of impartiality and independence of CAS. The question before the Court arose whether, in accepting the jurisdiction of the CAS, the applicants had waived freely, lawfully and in an unequivocal manner their rights to the guarantees provided for by Article 6 §1. The Chamber distinguished “obligatory” and “voluntary” arbitration and inquired the character of agreement given by the applicants to accept the jurisdiction of the CAS. The Chamber also defined what is “the court established by law”. The Court found that the CAS arbitration proceedings which the applicants had been parties to were required to follow all the principles of a fair hearing guaranteed by the Article 6 §1 Convention. The second applicant’s allegations concerning a structural absence of independence and impartiality in the CAS were rejected, as well as the allegations of the first applicant about the absence of independence and impartiality of certain arbitrators in his particular case. At the same time, the Court held that the questions concerning the dismissal of the second applicant for use of doping discussed before the CAS, required a public hearing. The Court concluded that there had been a violation of Article 6 §1 on account of the non-public nature of the proceedings before the CAS. The Court also held that there had been no violation of the applicants’ Article 6 §1 rights on account of a lack of independence and impartiality on the part of the CAS.

Keywords

doping; professional athletes; right to a fair trial; arbitration for sport; breach of labour contract in sport; independence and impartiality of arbitrators.

Citation

(2018) Evropeyskiy Sud po pravam cheloveka: obzor postanovleniya ot 2 ok­tyabrya 2018 goda (Sektsiya III) po dely Mutu i Pekhshtain protiv Shveytsarii (zhaloby No.40575/10, 67474/10) [European Court of Human Rights: review of the judgment of 2 October 2018 (Third section) in the case of Mutu and Pechstein v. Switzerland (applications nos.40575/10, 67474/10)]. Mezhdunarodnoe pravosudie, vol.8, no.4, pp.29–34. (In Russian).

 
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