Avrupa Insan Hakları Mahkemesi’nin Pecshtein Kararı Çerçevesinde CAS’ın Tarafsızlığı ve Bağımsızlığı

Abstract

European Court of Human Rights (ECtHR) rejected, by a majority vote, the application of Claudia Pechstein, an international athlete, who claimed that Court of Arbitration for Sport (CAS) is not an impartial and independent arbitration institution, thus CAS has violated her right to fair trial. Many criticism has been brought against this judgment of the ECtHR, which solidified CAS’s role in the world of sport. The focal point of this criticism, which was also expressed by two ECtHR judges who wrote dissenting opinions, is the fact that ECtHR was estranged from its own case law with respect to courts’ impartiality and independency. The subject matter of this article is the examination of the ECtHR’s judgment in the Pechstein case with a critical view in light of principles laid down in the case law of the ECtHR and the proposition of potential revisions to be made by CAS in order to be accepted as an impartial and independent judicial mechanism. Another ground for Pechstein’s application to the ECtHR was that CAS hearings were held privately despite Pechstein’s request for public hearings. ECtHR unanimously upheld this application and found the breach of right to fair trial. This article also analyses this issue and informs the audience on the amendments made in the CAS rules in this vein.