Legal summary
July 2025
Semenya v. Switzerland [GC] - 10934/21
Judgment 10.7.2025 [GC]
Article 1
Jurisdiction of States
Applicant’s civil-law appeal to Federal Supreme Court against Court of Arbitration for Sport’s award created a jurisdictional link with Switzerland with regard to Article 6 of the Convention
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Fair hearing
Failure by Federal Supreme Court to conduct particularly rigorous examination of award by Court of Arbitration for Sport, rejecting complaint from professional athlete with differences of sex development concerning non-State regulations requiring her to lower her natural testosterone level in order to compete in women’s category in international competitions: violation
Facts – The application was lodged by a South African international-level athlete, specialising in middle-distance races (800 to 3,000 m), who complained about a set of regulations issued by the International Association of Athletics Federations (IAAF – now called World Athletics) entitled “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)” (“the DSD Regulations”), requiring her to take hormone treatment to decrease her natural testosterone level in order to be able to take part in international competitions in the female category. Having refused to undergo the treatment, she was no longer able to take part in those competitions. Her legal actions challenging those regulations were rejected by the Court of Arbitration for Sport (CAS), which has its seat in Switzerland, and then by the Federal Supreme Court (FSC).
While the proceedings were ongoing, the IAAF amended the list of differences of sex development (DSD) covered by the DSD Regulations; they subsequently applied only to “46 XY DSD” athletes, that is, to persons with XY chromosomes, not to those with XX chromosomes. In other words, athletes with XX chromosomes having an increased level of testosterone were no longer subject to the DSD Regulations.
On 11 May 2023 a Chamber of the Court held, by four votes to three, that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8, and of Article 13 in relation to Article 14 taken in conjunction with Article 8. The Chamber considered that the applicant’s complaint of an alleged violation of her right of access to a court did not give rise to any separate issue, and it followed that there was no need to give a separate ruling under Article 6 § 1.
On 6 November 2023 the case was referred to the Grand Chamber at the Government’s request.
Law – Article 1:
(1) Switzerland’s jurisdiction in terms of the territoriality principle – There was no territorial link between Switzerland on the one hand, and the applicant, the adoption of the DSD Regulations and their effects on her personal situation on the other, bar the proceedings brought before the CAS and the FSC. The applicant did not therefore fall within the territorial jurisdiction of the respondent State.
(2) Switzerland’s jurisdiction as an exception to the territoriality principle –
(a) The complaint under Article 6 § 1 – Once a person had brought a civil action in the courts of a member State, where the domestic law recognised a right to bring an action and the right claimed was one which prima facie possessed the characteristics required by Article 6, then that person fell within that State’s jurisdiction with regard to respect for the rights guaranteed by that provision, even if the events giving rise to the application had occurred outside its territory.
The applicant had brought a civil-law appeal, which was examined by the FSC, against the CAS’s award in her case. The rights asserted by the applicant before the CAS and the FSC possessed the characteristics required by Article 6, in so far as the dispute raised by her concerned “[her] ... civil rights” within the meaning of that provision. Thus, the applicant’s appeal to the FSC, following on from her application to the CAS, had created a jurisdictional link with Switzerland, entailing an obligation for that State, under Article 1, to ensure respect for the rights protected by Article 6 in the proceedings before the FSC. The applicant therefore fell within Switzerland’s jurisdiction as regards her complaint under Article 6 § 1.
(b) The complaints under Article 8, taken alone or in conjunction with Article 14 and Article 13 – The fact that the FSC had examined the applicant’s civil-law appeal seeking to have the CAS award set aside did not suffice to establish Switzerland’s jurisdiction in respect of the applicant in the context of her complaints under Articles 8 and 14. Moreover, the Court did not discern any special features in the present case which, either separately or in conjunction with the above procedural aspect, could have constituted a jurisdictional link in relation to those complaints. There were therefore no specific circumstances in the present case linking the applicant to Switzerland.
The applicant argued that the respondent State had had control over and influenced her interests under the Convention, in that she had been obliged to make use of the Swiss legal system in order to defend her rights. Extraterritorial jurisdiction as conceived under Article 1 required, however, control over the person himself or herself rather than the person’s interests as such.
Accordingly, the applicant did not fall under the jurisdiction of Switzerland in respect of her complaints under Article 8, taken alone or in conjunction with Article 14. The same applied to her complaint under Article 13 in conjunction with those provisions.
Article 6 § 1:
The fact that arbitration was imposed by a private entity rather than by law was not sufficient to give rise to a violation of Article 6 § 1.
However, it was necessary to have regard to the fact that sports arbitration occurred in the context of the structural imbalance which characterised the relationship between sportspersons and the bodies which governed their respective sports. Sport governing bodies were in a position to dictate conditions in their relationship with sportspersons, in that they regulated international sports competitions, were able to impose the mandatory and exclusive jurisdiction of the CAS for the examination of disputes relating to that system of regulation, and exercised structural control over the international sports arbitration system.
Compliance with the right to a fair hearing had required the FSC to carry out a particularly rigorous examination of the applicant’s case, since the arbitration had been imposed by the DSD Regulations (which had been issued by a private-law entity) and the compulsory arbitration concerned a dispute relating to “civil rights”, within the meaning of Article 6 § 1, corresponding in domestic law to fundamental rights.
Furthermore, the breach of “civil” rights complained of by the applicant had arisen from a set of regulations that had been issued by a private entity and restricted these rights; in addition, her privacy, bodily integrity and dignity had been at stake. The circumstances of the present case raised an issue with regard to the right to respect for dignity, since under the DSD Regulations the relevant athletes who wished to compete in international competitions had no other choice but to undergo an intrusive examination, and to take chemical substances or to undergo surgery.
In its assessment of whether the DSD Regulations were reasonable and proportionate, the CAS had left open the point concerning the potential difficulty faced by 46 XY DSD athletes in maintaining their testosterone level continuously below the maximum threshold of 5 nmol/L, although this point was not only at the heart of the applicant’s detailed argument but also decisive for the outcome of the dispute brought by her. The FSC’s subsequent substantive review had been limited to whether the CAS award was “incompatible with public policy” within the meaning of the Federal Act on Private International Law. The FSC’s review in the present case had thus been limited to whether, on the basis of the findings as established by the CAS, the award’s conclusion was “unjustified”. The FSC had merely noted that the CAS had not definitively endorsed the DSD Regulations but had instead expressly reserved the right to re-examine their proportionality as applied in a (different) particular case. In so doing, and despite the fact that the CAS had expressed very serious concerns (thereby rendering ambiguous its reasoning in relation to proportionality), the FSC had conducted only a limited review of this aspect of the award.
It was thus apparent that the assessment of this fundamental and detailed aspect of the applicant’s dispute by the FSC, within its competence to review the compatibility of the award with substantive public policy, had not been subjected to the particularly rigorous examination called for by the circumstances of the case.
The CAS had left open other questions, about which it had nevertheless expressed concerns when examining whether the DSD Regulations were reasonable and proportionate; the FSC had not, however, sufficiently acted on the doubts expressed.
The provisions on international arbitration in the Federal Act on Private International Law covered all types of international arbitration without distinction, whether in the areas of sport or commercial contracts, and limited the substantive review of arbitral awards conducted by the FSC to whether they were compatible with “public policy” (ordre public).
In sum, the specific characteristics of the sports arbitration to which the applicant had been subject, entailing the CAS’s mandatory and exclusive jurisdiction, had required an in-depth judicial review – commensurate with the seriousness of the personal rights at issue – by the only domestic court having jurisdiction to carry out such a task. The review of the applicant’s case by the FSC, not least owing to its very restrictive interpretation of the notion of public policy, an interpretation which it also applied in its review of arbitral awards by the CAS, had not satisfied the requirement of particular rigour called for in the circumstances of the case. The Court therefore concluded that the applicant had not benefited from the safeguards provided for in Article 6 § 1 of the Convention.
Conclusion: violation (fifteen votes to two).
(See Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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