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PECHSTEIN SAGA: VIOLATION OF THE RIGHT TO A PUBLIC HEARING













In a landmark decision published on 12 July 2022, the appeal brought before the German Constitutional Court (Bundesverfassungsgericht) by German ice skater Claudia Pechstein, who was suspended for two years at the time because she was deemed to have violated world anti-doping regulations which, among other things, prevented her from participating in the Vancouver Winter Olympics in February 2010, was upheld.


The German Constitutional Court ruled that the CAS arbitration clause which was compulsorily accepted by the ice-skater Pechstein when she entered the 2009 World Ice Skating Championships organized by the International Skating Union (ISU), violated the athlete’s constitutional right of access to justice under Article 6 ECHR, applicable to cases of compulsory arbitration.


In particular, since the CAS’ ‘Code of Sports-related arbitration’ did not, at the time of events, provide for the possibility of a public hearing, in violation of Article 6 ECHR applicable to the present case, the German Constitutional Court annulled the decision of the German Federal Court of Justice on the grounds that it did not give sufficient weight to the fundamental right of access to justice of the ice-skater Pechstein while also failing to consider that the proceedings before the CAS in Lausanne did not respect the procedural guarantees required by Article 6 ECHR.


In view of the fact that CAS rules currently provide for the possibility of holding public hearings, as was the case in the notorious case of the Chinese swimmer Sun Yang, this decision may not have a major practical impact on sports arbitration, although it represents a significant victory for the athlete Pechstein.

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