Landmark Judgment from the European Court of Human Rights on Fair Trial Guarantees in International Arbitration
The Grand Chamber of the European Court of Human Rights has handed down a landmark judgment in Caster Semenya v. Switzerland, finding a violation of the right to a fair trial in the context of compulsory sports arbitration.
The case concerned Ms. Semenya, a professional athlete who, in 2018, was barred by World Athletics from competing in the female category of international track and field competitions, because she refused to undergo treatment to lower her natural testosterone levels. She challenged the relevant regulations, without success, before the Court of Arbitration for Sport (‘CAS’) in Lausanne and, subsequently, before the Federal Supreme Court of Switzerland (‘FSC’), the only domestic court with jurisdiction to review CAS arbitral awards.
Can Yeginsu represented the United Nations High Commissioner for Human Rights, Mr. Volker Türk, before the Grand Chamber, together with Mr. Paul Oertly, Senior Legal Policy Adviser to the UN High Commissioner.
The focus of the UN High Commissioner’s intervention was on the scope of a Council of Europe State’s positive obligations to secure a victim’s human rights in cases of compulsory arbitration. The intervention was cited in the judgment of the Grand Chamber and can be read here, in full.
Judgment
The Grand Chamber found a violation of Article 6 (right to a fair trial). The Court outlined how, while arbitration does not in principle offend against the Convention, fair trial guarantees are particularly engaged in cases of compulsory arbitration, where individuals have not freely waived the guarantees under Article 6. Applying this to Ms. Semenya’s case, the Grand Chamber found that:
- Given the structural imbalance between athletes and sports governing bodies, and the compulsory nature of CAS’s jurisdiction, athletes are effectively confined to a civil-law appeal before the FSC. Fair trial guarantees under Article 6 are of particular importance in such circumstances.
- The FSC’s review of arbitral awards on “public policy” grounds (under the Private International Law Act) accords especial importance to the protection of fundamental rights.
- As a dispute which involved civil rights under Article 6(1) ECHR that also corresponded to fundamental rights in domestic law, the applicant’s right to a fair hearing required a particularly rigorous review by the FSC.
- The review of the CAS award carried out by the FSC with regards to public policy did not reach the required level of rigour. Although CAS itself had voiced serious concerns in relation to the proportionality of the challenged regulations, the FSC conducted only a limited review, despite having the competence to review the award’s compliance with substantive public policy.
- The FSC had also rejected, without sufficient examination, the applicant’s reliance on Francelino da Silva Matuzalem v. Fédération Internationale de Football Association. That case had similarly concerned the proportionality and impact of sporting rules on the exercise of fundamental rights, and led to a rare partial annulment of a CAS award by the FSC.
In a partly dissenting joint opinion, Judges Eicke and Kucsko-Stadlmayer disagreed regarding the Court’s finding that the FSC was required to conduct a “particularly rigorous review” of the applicant’s case.
At the same time, the Grand Chamber found that the applicant’s claims under Article 8 (right to private life) did not fall within its jurisdiction. The link between Switzerland and the applicant did not go beyond the fact that CAS is seated in Switzerland and that the Federal Supreme Court examined her appeal to set the award aside. This was not sufficient to establish the extraterritorial jurisdiction of the Convention.
Judges Bošnak, Zünd, Šimáčková and Derenčinović disagreed on this finding in a partly dissenting joint opinion.
The Grand Chamber’s judgment and the respective opinions can be read in full here. The Court’s press release is here.
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