As we await the upcoming judgment from the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) in the Semenya v. Switzerland case, among the various issues at hand, one question seems to be interesting from a legal point of view, despite its absence from the judgment of the Chamber: the issue of the independence and impartiality of the Court of Arbitration for Sport (CAS). The discussion was triggered by a third-party intervention involving myself and two other academics (Dr. Antoine Duval and Professor Dr. Cesare P.R. Romano) putting into question the independence of the CAS, inviting the GC to scrutinize it. Interestingly, the Court decided to ask both parties to comment on the issue during its May 15 hearing.
Before this hearing, the question of the independence and impartiality of CAS was often deemed settled after the holding of the ECtHR in the Mutu & Pechstein case (paras. 138-159), finding that CAS is sufficiently independent and impartial. The Third Chamber of the ECtHR also, in its decision in the Semenya case, simply referred in passing to that conclusion (para. 172). However, and we take some responsibility for it, the question of the independence and impartiality of the CAS was rightly, and quite unexpectedly for many, revived during the hearing of the GC, like a dormant phoenix rising from the ashes.
In response to the question of the GC, the State argued that the athlete had at no point raised such concerns and that they were only introduced through our third-party intervention into the case. This defense raises two questions. First, whether Semenya has actually failed to exhaust domestic remedies on this issue and, second, whether it is possible for her to tacitly waive her right to an independent and impartial tribunal.
The athlete’s side elaborated on the issue, citing the third-party intervention. Towards the end of the hearing, as the judges of the GC posed questions, and even though this question was barely raised by the judges, the State once again voiced objections to reopening this question regarding CAS.
The unexpected emergence of this question at this late stage of the legal battle is an interesting (and, in our view, welcome) legal development. This blog will elaborate on the grounds that justify a thorough evaluation of CAS’s independence in the GC’s judgment in spite of Switzerland’s objections.
1. Did Caster Semenya exhaust domestic remedies?
The exhaustion of domestic remedies is a well-known precondition for litigating cases in many international courts. The rationale behind the rule is that the State, through its national courts, should have the opportunity to address and rectify the alleged violation before it is escalated to an international tribunal (Vučković and Others v. Serbia, para 70).
In the Semenya case, although the athlete did not initially raise the independence of the CAS during the arbitration, as I argue below, the question was subsequently addressed by the national court in a way that leaves little ambiguity about the fact that local remedies had been exhausted on this issue.
Indeed, the Swiss Federal Court (SFC), while reviewing the arbitral award and discussing the admissibility of the case, took the initiative to directly address whether CAS is an independent and impartial tribunal. It referenced several cases of the SFC and eventually relied on two ECtHR judgments to establish that the applicant was able to bring her case in front of an independent and impartial tribunal (SFC judgment, paras. 5.1.2, 5.1.3). Furthermore, the Third Chamber of the ECtHR, as well, touched upon the issue by reminding the conclusion of the majority in the Mutu and Pechstein case (here, para 172).
Arguably, in situations where a high domestic court has substantively reviewed an issue, the purpose of the exhaustion requirement is met because the domestic legal system has had a fair chance to correct any potential shortcoming, regardless of whether the applicant has raised the issue or the court has independently taken on the question.
The ECtHR’s case law corroborates this argument in similar situations. As pointed out in the Lee v. the United Kingdom case, a “specific Convention complaint presented before it must have been aired, either explicitly or in substance, before the national courts” (Lee v. The United Kingdom, para 68). Furthermore, in the case of Claudia Pechstein, the question of the independence and impartiality of the CAS was raised before the SFC, and the court found the claim inadmissible since it was not previously raised in front of the CAS. However, when the issue was raised again in front of the ECtHR, the court argued that “domestic remedies have not been exhausted when an appeal is not accepted for examination because of a procedural mistake by the applicant…, however, since the Federal Court, after setting out the grounds of inadmissibility, nevertheless referred, albeit briefly, to the independence and impartiality of the CAS … the Court takes the view that this complaint cannot be rejected for non-exhaustion of domestic remedies” (M&P, para 74).
Therefore, even though the issue was not explicitly raised by the athlete, it was effectively addressed in practice, particularly through the SFC’s motu proprio approach. As a result, domestic remedies on the issue have been fully exhausted.
2. The right to an independent tribunal is non-waivable
Another question in this regard is whether the athlete has waived her right to an independent tribunal by failing to challenge the CAS at the prior stages of the procedure. Answering this question requires an analysis of waivable and non-waivable rights in international human rights law (IHRL).
IHRL recognizes two categories of rights: waivable and non-waivable. International jurisprudence highlights that the right to an independent tribunal belongs to the latter group.
A fair hearing conducted by an independent and impartial tribunal is a matter of public interest and not merely at the disposal of individuals. This right is one of the institutional prerequisites to the right to access a court enshrined in Article 6.1 of the ECHR. The Strasbourg Court itself has emphasized that “the right to be tried by an impartial tribunal is of essential importance, and that the exercise of that right cannot depend on the parties alone” (Mamić and Others v. Croatia, para. 128). Moreover, while one key condition for a valid waiver of human rights is that it must not contradict an important public interest (Dorozhko and Pozharskiy v. Estonia, para. 46), the ECtHR has firmly linked the principles of independence and impartiality to the broader concept of public interest and specifically, has emphasized that respecting the authority of the courts by State officials “is an indispensable precondition for public confidence in the courts and, more broadly, for the rule of law” (Agrokompleks v. Ukraine, para. 136). In this context, the ECtHR is constantly emphasizing that the (appearance of) independence and impartiality of courts is an essential element to fulfilling the mantra that “justice must not only be done, but must also be seen to be done” (Ramos Nunes de Carvalho e Sá v. Portugal, paras 144-150). It seems, therefore, difficult for the GC to shy away from this question while the independence of the CAS is fundamentally contested (see the dissent under Mutu and Pechstein) and, we believe, clearly incompatible with the jurisprudence of the Court on this question.
In fact, the ECtHR has already stressed in the past that even if a waiver is made regarding the right to an independent and impartial tribunal, the issue still needs to be scrutinized from the standpoint of the Convention (Bulut v. Austria, para. 30). It can thus be argued that this right has a non-waivable status within the framework of IHRL (See here, at 75-80; and here, at 282). Even when the conditions for a valid waiver of human rights—such as being voluntary, unequivocal, etc.—are met, courts are still required to scrutinize the independence and impartiality of courts regardless because of its importance for public interest.
3. Is Semenya’s silence on the issue reasonable?
Lastly, even if one were to concede, quod non, that the right to an independent tribunal is waivable, in the Semenya case, the athlete’s silence on the issue throughout the entire process appears to be a reasonable position to take.
There were few reasons for Semenya to raise an issue that both the CAS (see here and here) and the SFC (see here and here) have deemed settled, before and particularly after the Mutu and Pechstein judgment. Furthermore, raising the matter before the Chamber was also unlikely to succeed in light of the prior jurisprudence of the Court in Mutu and Pechstein. The GC is the only legitimate body to revisit this, in our view, fundamentally flawed decision and the right instance for Semenya to raise the issue as she forcefully did during the hearing.
In fact, in McGonnell, the ECtHR addressed a similar situation. The applicant failed to raise the issue of the independence of a bailiff in front of the national courts and the Commission. In front of the ECtHR, the State claimed non-exhaustion of domestic remedies and alleged a tacit waiver by the applicant on this issue. While the court highlighted the lack of an express waiver in this situation, it further inquired to see whether such failure could have been deemed reasonable in the circumstances of the case. The Court noted the holding of domestic courts on the issue in other cases and concluded that:
“Given the clear statement of the Court of Appeal in the Bordeaux Vineries case that the Bailiff’s constitutional functions in connection with the States do not impinge on his judicial independence, and the fact that a domestic challenge was not only not pursued by the applicant in the domestic proceedings, but was not raised by the Government until a late stage of the Convention proceedings, the Court finds that the applicant’s failure to challenge the Bailiff in Guernsey cannot be said to have been unreasonable, and cannot amount to a tacit waiver of his right to an independent and impartial tribunal” (McGonnell v. The United Kingdom, paras. 42-45).
In the case of Semenya, her silence on the issue seems amply justified by the totally implausible prospect of the CAS and the SFC changing their mind on the matter. It is the responsibility of the Grand Chamber to provide clarity on this issue and to assess whether the Mutu and Pechstein judgment is compatible with the ECtHR’s own jurisprudence on the independence and impartiality of Courts.
4. Conclusion
The Semenya case raises many novel and difficult legal and moral questions for the ECtHR, as both the majority and the dissent of the Third Chamber acknowledged (See here, at 2). One issue that was not yet touched upon at length before the Third Chamber but that deserves a very close look from the GC is the question of the independence and impartiality of CAS. As argued in the blog, we believe that the GC has the competence to pronounce itself on this matter and would even do a service to all parties involved in clarifying once and for all the status of the CAS. On the merit, we have presented in our amicus brief a range of arguments to the Court demonstrating in our view that in its current structure, the CAS is not objectively impartial and sufficiently independent from the Olympic Movement to comply with the Court’s own interpretation of that requirement under Article 6.1 ECHR. In this regard, we are joining Judge Keller, the Swiss judge who famously dissented (with Judge Serghides) in the Mutu and Pechstein case, as well as others (see here), in calling for the Court to ensure that athletes benefit from the same standard of justice as all of us.
Why the ECtHR’s Grand Chamber should rule on the independence and impartiality of the Court of Arbitration for Sport in its Semenya judgment
Written by Faraz ShahlaeiAs we await the upcoming judgment from the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) in the Semenya v. Switzerland case, among the various issues at hand, one question seems to be interesting from a legal point of view, despite its absence from the judgment of the Chamber: the issue of the independence and impartiality of the Court of Arbitration for Sport (CAS). The discussion was triggered by a third-party intervention involving myself and two other academics (Dr. Antoine Duval and Professor Dr. Cesare P.R. Romano) putting into question the independence of the CAS, inviting the GC to scrutinize it. Interestingly, the Court decided to ask both parties to comment on the issue during its May 15 hearing.
Before this hearing, the question of the independence and impartiality of CAS was often deemed settled after the holding of the ECtHR in the Mutu & Pechstein case (paras. 138-159), finding that CAS is sufficiently independent and impartial. The Third Chamber of the ECtHR also, in its decision in the Semenya case, simply referred in passing to that conclusion (para. 172). However, and we take some responsibility for it, the question of the independence and impartiality of the CAS was rightly, and quite unexpectedly for many, revived during the hearing of the GC, like a dormant phoenix rising from the ashes.
In response to the question of the GC, the State argued that the athlete had at no point raised such concerns and that they were only introduced through our third-party intervention into the case. This defense raises two questions. First, whether Semenya has actually failed to exhaust domestic remedies on this issue and, second, whether it is possible for her to tacitly waive her right to an independent and impartial tribunal.
The athlete’s side elaborated on the issue, citing the third-party intervention. Towards the end of the hearing, as the judges of the GC posed questions, and even though this question was barely raised by the judges, the State once again voiced objections to reopening this question regarding CAS.
The unexpected emergence of this question at this late stage of the legal battle is an interesting (and, in our view, welcome) legal development. This blog will elaborate on the grounds that justify a thorough evaluation of CAS’s independence in the GC’s judgment in spite of Switzerland’s objections.
1. Did Caster Semenya exhaust domestic remedies?
The exhaustion of domestic remedies is a well-known precondition for litigating cases in many international courts. The rationale behind the rule is that the State, through its national courts, should have the opportunity to address and rectify the alleged violation before it is escalated to an international tribunal (Vučković and Others v. Serbia, para 70).
In the Semenya case, although the athlete did not initially raise the independence of the CAS during the arbitration, as I argue below, the question was subsequently addressed by the national court in a way that leaves little ambiguity about the fact that local remedies had been exhausted on this issue.
Indeed, the Swiss Federal Court (SFC), while reviewing the arbitral award and discussing the admissibility of the case, took the initiative to directly address whether CAS is an independent and impartial tribunal. It referenced several cases of the SFC and eventually relied on two ECtHR judgments to establish that the applicant was able to bring her case in front of an independent and impartial tribunal (SFC judgment, paras. 5.1.2, 5.1.3). Furthermore, the Third Chamber of the ECtHR, as well, touched upon the issue by reminding the conclusion of the majority in the Mutu and Pechstein case (here, para 172).
Arguably, in situations where a high domestic court has substantively reviewed an issue, the purpose of the exhaustion requirement is met because the domestic legal system has had a fair chance to correct any potential shortcoming, regardless of whether the applicant has raised the issue or the court has independently taken on the question.
The ECtHR’s case law corroborates this argument in similar situations. As pointed out in the Lee v. the United Kingdom case, a “specific Convention complaint presented before it must have been aired, either explicitly or in substance, before the national courts” (Lee v. The United Kingdom, para 68). Furthermore, in the case of Claudia Pechstein, the question of the independence and impartiality of the CAS was raised before the SFC, and the court found the claim inadmissible since it was not previously raised in front of the CAS. However, when the issue was raised again in front of the ECtHR, the court argued that “domestic remedies have not been exhausted when an appeal is not accepted for examination because of a procedural mistake by the applicant…, however, since the Federal Court, after setting out the grounds of inadmissibility, nevertheless referred, albeit briefly, to the independence and impartiality of the CAS … the Court takes the view that this complaint cannot be rejected for non-exhaustion of domestic remedies” (M&P, para 74).
Therefore, even though the issue was not explicitly raised by the athlete, it was effectively addressed in practice, particularly through the SFC’s motu proprio approach. As a result, domestic remedies on the issue have been fully exhausted.
2. The right to an independent tribunal is non-waivable
Another question in this regard is whether the athlete has waived her right to an independent tribunal by failing to challenge the CAS at the prior stages of the procedure. Answering this question requires an analysis of waivable and non-waivable rights in international human rights law (IHRL).
IHRL recognizes two categories of rights: waivable and non-waivable. International jurisprudence highlights that the right to an independent tribunal belongs to the latter group.
A fair hearing conducted by an independent and impartial tribunal is a matter of public interest and not merely at the disposal of individuals. This right is one of the institutional prerequisites to the right to access a court enshrined in Article 6.1 of the ECHR. The Strasbourg Court itself has emphasized that “the right to be tried by an impartial tribunal is of essential importance, and that the exercise of that right cannot depend on the parties alone” (Mamić and Others v. Croatia, para. 128). Moreover, while one key condition for a valid waiver of human rights is that it must not contradict an important public interest (Dorozhko and Pozharskiy v. Estonia, para. 46), the ECtHR has firmly linked the principles of independence and impartiality to the broader concept of public interest and specifically, has emphasized that respecting the authority of the courts by State officials “is an indispensable precondition for public confidence in the courts and, more broadly, for the rule of law” (Agrokompleks v. Ukraine, para. 136). In this context, the ECtHR is constantly emphasizing that the (appearance of) independence and impartiality of courts is an essential element to fulfilling the mantra that “justice must not only be done, but must also be seen to be done” (Ramos Nunes de Carvalho e Sá v. Portugal, paras 144-150). It seems, therefore, difficult for the GC to shy away from this question while the independence of the CAS is fundamentally contested (see the dissent under Mutu and Pechstein) and, we believe, clearly incompatible with the jurisprudence of the Court on this question.
In fact, the ECtHR has already stressed in the past that even if a waiver is made regarding the right to an independent and impartial tribunal, the issue still needs to be scrutinized from the standpoint of the Convention (Bulut v. Austria, para. 30). It can thus be argued that this right has a non-waivable status within the framework of IHRL (See here, at 75-80; and here, at 282). Even when the conditions for a valid waiver of human rights—such as being voluntary, unequivocal, etc.—are met, courts are still required to scrutinize the independence and impartiality of courts regardless because of its importance for public interest.
3. Is Semenya’s silence on the issue reasonable?
Lastly, even if one were to concede, quod non, that the right to an independent tribunal is waivable, in the Semenya case, the athlete’s silence on the issue throughout the entire process appears to be a reasonable position to take.
There were few reasons for Semenya to raise an issue that both the CAS (see here and here) and the SFC (see here and here) have deemed settled, before and particularly after the Mutu and Pechstein judgment. Furthermore, raising the matter before the Chamber was also unlikely to succeed in light of the prior jurisprudence of the Court in Mutu and Pechstein. The GC is the only legitimate body to revisit this, in our view, fundamentally flawed decision and the right instance for Semenya to raise the issue as she forcefully did during the hearing.
In fact, in McGonnell, the ECtHR addressed a similar situation. The applicant failed to raise the issue of the independence of a bailiff in front of the national courts and the Commission. In front of the ECtHR, the State claimed non-exhaustion of domestic remedies and alleged a tacit waiver by the applicant on this issue. While the court highlighted the lack of an express waiver in this situation, it further inquired to see whether such failure could have been deemed reasonable in the circumstances of the case. The Court noted the holding of domestic courts on the issue in other cases and concluded that:
“Given the clear statement of the Court of Appeal in the Bordeaux Vineries case that the Bailiff’s constitutional functions in connection with the States do not impinge on his judicial independence, and the fact that a domestic challenge was not only not pursued by the applicant in the domestic proceedings, but was not raised by the Government until a late stage of the Convention proceedings, the Court finds that the applicant’s failure to challenge the Bailiff in Guernsey cannot be said to have been unreasonable, and cannot amount to a tacit waiver of his right to an independent and impartial tribunal” (McGonnell v. The United Kingdom, paras. 42-45).
In the case of Semenya, her silence on the issue seems amply justified by the totally implausible prospect of the CAS and the SFC changing their mind on the matter. It is the responsibility of the Grand Chamber to provide clarity on this issue and to assess whether the Mutu and Pechstein judgment is compatible with the ECtHR’s own jurisprudence on the independence and impartiality of Courts.
4. Conclusion
The Semenya case raises many novel and difficult legal and moral questions for the ECtHR, as both the majority and the dissent of the Third Chamber acknowledged (See here, at 2). One issue that was not yet touched upon at length before the Third Chamber but that deserves a very close look from the GC is the question of the independence and impartiality of CAS. As argued in the blog, we believe that the GC has the competence to pronounce itself on this matter and would even do a service to all parties involved in clarifying once and for all the status of the CAS. On the merit, we have presented in our amicus brief a range of arguments to the Court demonstrating in our view that in its current structure, the CAS is not objectively impartial and sufficiently independent from the Olympic Movement to comply with the Court’s own interpretation of that requirement under Article 6.1 ECHR. In this regard, we are joining Judge Keller, the Swiss judge who famously dissented (with Judge Serghides) in the Mutu and Pechstein case, as well as others (see here), in calling for the Court to ensure that athletes benefit from the same standard of justice as all of us.
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