In Semenya v. Switzerland, the Grand Chamber of the European Court of Human Rights (ECtHR) held that Switzerland violated the right to a fair hearing under Article 6(1) of the European Convention on Human Rights.
The case concerned Ms Semenya, a South African middle-distance runner, who challenged the 2018 regulations issued by World Athletics (formerly the IAAF), requiring athletes with differences of sex development (DSD) to reduce their natural testosterone levels to compete in certain women’s events. Her challenge was dismissed by the Court of Arbitration for Sport (CAS) and subsequently by the Swiss Federal Supreme Court, which upheld the CAS decision.
Ms Semenya subsequently brought proceedings to the European Court of Human Rights relying on Article 6 (Right to a fair hearing), Article 13 (Right to an effective remedy), complaining of a violation of her rights and arguing that the review carried out by the Federal Supreme Court had been excessively limited. Furthermore, she bought complaints relying on Article 8 (right to respect for private life) arguing that the DSD Regulation affected her bodily and psychological integrity and identity. Lastly, she brought complaints under Article 14 (prohibition of discrimination), submitting that the DSD Regulations led to discriminatory treatment.
The application was lodged with the Court in February 2021. In its judgment in 2023, a Chamber of the Court, held by a majority, that there had been a violation of Article 8, 13 and 14 as the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland. This case was subsequently accepted to be taken by a Grand Chamber.
The Grand Chamber considered Article 1 of the Convention which provides that the State parties undertake to “secure to everyone within their jurisdiction” their rights and freedoms defined in the Convention. The court held that a State’s jurisdiction under Article 1 is primarily territorial and that there was no territorial link between Switzerland and the applicant, the adoption of the DSD Regulations and their effect on her personal situation. The exception being where a State had exercised its jurisdiction outside of its national territory. The court held that Ms Semenya “did not fall within Switzerland’s jurisdiction in respect of her complaints under [Articles 8, 13 and 14].”
The courts, however, did find that the complaints under Article 6(1) did fall within the exception as Ms Semenya’s appeal to the Swiss Federal Supreme Court had created a jurisdictional link with Switzerland. In the Court’s view, the specific characteristics of the sports arbitration to which the applicant had been subjected to, entailing the CAS’s mandatory and exclusive jurisdiction, had required a rigorous judicial review that was commensurate with the seriousness of the personal rights at issue by the only domestic courts with jurisdiction to carry out such a task. However, the Swiss Federal Supreme Court had not satisfied the requirement of particular rigour in their review of Ms Semenya’s case, especially in its narrow interpretation of public policy under Swiss law. The Court concluded that the safeguards of Article 6(1) were not upheld in the applicant’s case.