The Future of the Rule of Law in Sports Law: Ali Riza and Others v. Turkey

This blogpost was written by Jernej Letnar Černič who is Associate Professor of Human Rights and Constitutional Law at the Faculty of Government and European Studies of the New University (Ljubljana/Kranj, Slovenia). He is co-author of the forthcoming book on “The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond” (Oxford, Hart/Bloomsbury, 2020).

Are domestic and international sports arbitration bodies obliged to follow the rule of law and ensure at least basic procedural safeguards? Fair trial guarantees have been, for quite some time, a hot potato in (international) sports arbitration. Athletes have been, in the past, mostly unsuccessful when arguing for a violation of Article 6 (1) of the ECHR before the ECtHR (see for example Bakker v. Switzerland (26 September 2019, admissibility decision); Mutu and Pechstein v. Switzerland, 2 October 2018). Nonetheless, the Court already recognized the right to public hearings before CAS (Mutu and Pechstein v. Switzerland, para. 183). Therefore, it appears that a consensus has been increasing for fair trial guarantees to be introduced and/or strengthened both at the domestic and international levels. The Second Section of the European Court of Human Rights has on 28 January 2020 in its seminal judgement in the case of Ali Riza and Others v. Turkey confirmed the importance that sport arbitration bodies uphold basic fair trial guarantees in compulsory sport arbitration such as the right to an independent and impartial tribunal by introducing strict normative safeguards against conflicts of interests.

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Tell me more, tell me more: the obligation for national courts to reason their refusals to refer to the CJEU in Sanofi Pasteur.

By Jasper Krommendijk (Radboud University, the Netherlands)

On 13 February 2020, the ECtHR found for the fourth time ever a violation of Article 6(1) ECHR for a failure of the highest national court to give proper reasons for its refusal to refer preliminary questions to the Court of Justice of the EU (CJEU) in Sanofi Pasteur. In 2014 and 2015, the ECtHR already determined a breach for a similar omission of the Italian Court of Cassation in Dhahbi and Schipani, while the Lithuanian Supreme Administrative Court was given a rap over the knuckles in 2019 in Baltic Master. This time it was the French Court of Cassation who took the blame in a claim for damages for bodily harm resulting from vaccination against hepatitis B. The company Sanofi Pasteur was found liable by lower French courts and appealed to the Court of Cassation. It unsuccessfully requested the Court to refer questions about the Product Liability Directive 85/374 and, more specifically, the obligation for the victim to prove the damage, defect and causal relationship between defect and damage. The Court dismissed the appeal whereby it explicitly noted that it did so without a need to refer. In this comment I will argue that this judgment shows once again the unpredictability and inconsistency in the case law of the ECtHR. What is needed is a Grand Chamber judgment as well as guidance from the CJEU to tell us more about the exact requirements for national courts. Continue reading

Murtazaliyeva v. Russia: on the examination of witnesses and the “corrosive expansion” of the overall fairness test

On 18 December, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Murtazaliyeva v. Russia, finding no violation of the right to a fair trial in a case concerning the conviction of a Chechen woman for terrorist offences.  The most significant aspect of the judgment concerns the applicant’s complaint that the domestic courts’ refusal to call two defence witnesses violated Article 6 § 1 and § 3 (d) of the Convention.[1] As the Strasbourg case law was underdeveloped in this area, this case provided an important opportunity for the Court to clarify Convention standards.  Unfortunately, in doing so, the Grand Chamber yet again expanded the scope of the “overall fairness of the proceedings” test under Article 6 § 1, which now also serves as the final benchmark in this area. In this blog post, it will be argued that the increasing recourse by the Court to this test risks depriving defendants of meaningful procedural protection. Continue reading

Unravelling Salduz and the EU: Grand Chamber judgment of Beuze v. Belgium on the right of access to a lawyer

This guest blog post was written by Cedric Serneels, Teaching Assistant & Researcher at Institute for European Law, KU Leuven

On 9 November 2018, the Grand Chamber of the European Court of Human Rights delivered its long-awaited judgment in the case of Beuze v. Belgium. In the present case, the Court was confronted with the question when a restriction on the right of early access to a lawyer in criminal proceedings renders those proceedings unfair and thus constitutes a breach of Articles 6(1) and 6(3)(c) of the European Convention. The majority ruled that under the principle established in Salduz v. Turkey a systematically applied general and mandatory restriction on the right of access to a lawyer will only amount to a breach of Article 6 ECHR when it compromises the overall fairness of the criminal proceedings. Accordingly, the mere existence of such a restriction does in itself not constitute a violation of the Convention. In a Concurring Opinion, analysed below, it is asserted that the majority interpreted Salduz in a way that departs from and even contradicts that judgment’s original meaning and that it adopted a much more relative — and thus less protective — approach without sufficient justification. While the Court was unanimous in finding a violation of the Convention, the soundness of its legal reasoning has thus been fiercely contested. Further, it will be argued that this ruling is particularly interesting for EU lawyers as well, as it provides an example of the two-directional interplay between EU fundamental rights law and the Convention. Continue reading

Mutu and Pechstein v. Switzerland: Strasbourg’s Assessment of the Right to a Fair Hearing in Sports Arbitration

This guest post was written by Cathérine Van de Graaf, a PhD student at Ghent University.

In Mutu and Pechstein v. Switzerland, the European Court of Human Rights considered the lawfulness of proceedings at the Court of Arbitration for Sports (CAS) in Lausanne. In its analysis, the Court focussed on three elements: the free acceptance of the arbitration clause by the applicants; the status of the CAS as an independent and impartial tribunal established by law and the absence of a public hearing. Continue reading

Correia de Matos v. Portugal: Fragmented protection of the right to defend oneself in person

Dr. Dorothea Staes (affiliated researcher, The Perelman Center for Legal Philosophy, ULB, Belgium and trainee at the European Commission)

In the Grand Chamber judgement Correia de Matos v. Portugal of 4 April 2018, the European Court of Human Rights (hereinafter: the Court) decided by a majority of nine votes to eight that the right to a fair trial was not violated with regards to the applicant, who was not allowed to conduct his own defence in the criminal proceedings against him. The blog focuses on how this judgement upholds fragmentation between the interpretation of human rights by the Court and the United Nations Human Rights Committee (hereinafter: HRC). It also develops arguments as to why harmony – instead of fragmentation – should have been the preferred option. Continue reading

Tariq v United Kingdom: Closed Material Procedures Green-Lit by European Court

Lewis Graham, PhD Student at Pembroke College, Cambridge.

The First Section Committee recently handed down its Decision in Gulamhussein and Tariq v the United Kingdom (Application Nos. 46538/11 and 3960/12) (hereafter “Tariq v UK”). It acts as a de facto appeal from a UK Supreme Court decision handed down seven years ago, and sees the European Court of Human Rights returning to the thorny issue of Article 6 protections in the context of closed material procedures. The takeaway point is this: the ECtHR has clarified the position of its previous case law, and in doing so has ultimately approved the UK courts’ approach to Article 6 in the context of closed material procedures. Continue reading