Authored By: Agbeyo John
Obafemi Awolowo University
Case Title: Semenya v. Switzerland [GC], no. 10934/23, ECHR
Court Name and Bench: European Court of Human Rights (ECtHR), Grand Chamber, July 10, 2025
Judges; Marko Bošnjak (Slovenia), President, Síofra O’Leary (Ireland), Arnfinn Bårdsen (Norway), Gabriele Kucsko-Stadlmayer (Austria), Mattias Guyomar (France), Faris Vehabović (Bosnia and Herzegovina), Mārtiņš Mits (Latvia), Pauliine Koskelo (Finland), Tim Eicke (the United Kingdom), Jolien Schukking (the Netherlands), Erik Wennerström (Sweden), Raffaele Sabato (Italy), Andreas Zünd (Switzerland), Diana Sârcu (the Republic of Moldova), Kateřina Šimáčková (the Czech Republic), Davor Derenčinović (Croatia), Sebastian Răduleţu (Romania)
Parties Involved:
Applicant; Mokgadi Caster Semenya; An international-level South African athlete and long and mid distance runner, appealing the award of the Court of Arbitration for Sport (CAS) and then the decision of the Swiss Federal Supreme Court.
Respondent; The Republic of Switzerland, named as a party against an appeal of the decision of the Swiss Federal Supreme Court, by the applicant
Facts of the case: The Applicant , in June 2018 appealed to the Court of Arbitration for Sport (CAS) to challenge the rules of the sports body, the International Association of Athletics Federations’ (IAAF) (now World Athletics). In particular, its rules on differences of sex development (DSD), which required athletes with DSD to take testosterone-reducing medication to compete in certain female events. The rules required her to decrease her natural testosterone level in order to be allowed to take part in international competitions in the female category. The Applicant ‘s prayers were rejected in 2019, then the Applicant lodged a civil-law appeal with the Federal Supreme Court, seeking to have the CAS award set aside under section 190(2)(e) of the Federal Act on Private International Law. The said section provision allowed for the purview of the Federal Supreme Court, to of challenging awards made, in Switzerland if they were incompatible with public policy.
This appeal was also rejected, leading the Applicant to institute action under this court, as regards the abuse of her human rights by both the CAS and the Federal Supreme Court. The European Court of Human Rights (ECtHR), ruled in July 2025 as regards her appeal, that the Swiss court failed to conduct a “rigorous judicial review, denying her a fair hearing under section 6 of the European Charter of Human Rights.
Issues Raised: Semenya v. Switzerland, raised some very interesting issues, left for the grand chambers of the European Court of Human Rights (ECtHR) to distill upon. The Applicant , in their claims, had stated that the decision of the Federal Supreme Court, has breached several human right provisions under the European Charter of Human Rights (ECHR). Citing in their claim, a breach of Article 14 of the charter, providing a legal right to freedom from discrimination among other fundamental human right violations. The Applicant also cited a breach of Article 6 of the European Charter of Human Rights, alleging that she had not been given a fair trial, by the Federal Supreme Court (FSC), in its role to decide on appeals from Arbitral Tribunals under section 190(2)(e) of the Federal Act on Private International Law. The said section empowered the Court to decide on appeals and their merit as against the rules of public policy. The Applicant raised issues requiring the court’s guidance. These issues, paraphrased and inferred, include
– Whether or not the Federal Supreme Court erred in law and had breached her right to freedom from discrimination, in their examination of her appeal?
– Whether or not the FSC erred in law, as regards her right in Article 6 of the European Charter of Human Rights (ECHR), to fair hearing and review of the award given by CAS?
– Whether or not, the FSC had properly interpreted and applied section 190(2)(e) of the Federal Act on Private International Law (PILA) considering the case of Francelino da Silva Matuzalem v. FIFA?
The respondent on the other hand, raised issues to the jurisdiction of the European Court of Human Rights (ECtHR), to hear the Applicant ‘s appeal. Particularly, probing as to the link between the Applicant and the court, to hear the appeal, based on the provisions of Article 1 of the European Charter of Human Rights (ECHR).
Arguments of the Parties:
The Applicant; The Applicant , in their appeals towards the court, argued that the originating facts causing her appeal to the court, was the discriminatory nature of the World Athletics DSD Regulations, requiring her to decrease her natural testosterone level. Apart from, her argument alleging that the award by the CAS, clearly highlighted the open ended nature of the rules. As the Applicant argued, that the World Athletics body had failed to provide direct evidence suggesting any manner of increased performance in the specific level of testosterone, specified within its rules.
Flowing from the above, as regards matters lying directly within her appeal from the FSC, the Applicant argued that the FSC had failed to properly analyse her appeal under section 190(2)(e) of the PILA. Citing the case of Francelino da Silva Matuzalem v. FIFA, where the FSC overturned an award by the CAS, as contrary to public policy in 2012. The Applicant argued that the court had failed to properly and thoroughly interpret the provision of the section, as her case fell into awards “contrary to public policy”, as the award effectively breached her right to identity. The PILA, which also provided a clause as to the seriousness of appeals to be initiated at the FSC, was argued to the applicable to this case, as it was clear that the outcome of the proceedings was crucial, as it affects the applicant’s ability to take part in competitive athletics, in the mid length track event. The crux of the argument, being the lack of a thorough and detailed interpretation of the law, and analysis of the facts of her case, and even further, her appeal.
The Respondent; The Respondent in summary argued, as to the locus standi of the ECHtR, to hear the appeal. While the respondent’s arguements, didn’t dispute most of the facts alleged by the Applicant, it argued before the court that an appeal from the FSC, must have seen to have flowed from its territorial jurisdiction.
The bulk of the statues cited, flowed from the European Charter of Human Rights, as well as previous cases of the Federal Supreme Court of Switzerland, such as Francelino da Silva Matuzalem v. FIFA, and many more.
Judgement/Final Decision: Upon the sitting of the Grand Chamber of the European Court for Human Rights, the 17 judges pronounced their final judgment in July 2025, in favour of the applicant. The appeal being partially allowed, and a pronouncement for the respondents to bear the costs, and pay damages to the applicant, flowing from Article 41 of the European Charter of Human Rights. Despite the fact that the applicant had not submitted a claim for damages, she was awarded the sum of 80,000 euros in respect of costs and expenses.
Legal Reasoning/Ratio Decidendi: The grand chamber of the European Court for Human Rights (ECtHR), pronounced its judgment in favour of the applicant, in part. While it did not directly issue judgment, as regard the legality of the rules of the World Athletics boys itself, it ruled in favour of the applicant as regard the breach of her human rights, during the appeal, particularly in Article 6 of the ECHR. Per the ECtHR, recognised the structure of the applicant’s need to appeal, and appear before the Court of Arbitration for Sports. The court recognised that the jurisdiction of CAS extending not from legal provisions, but from the rules of an Athletic body, provided a context, where athletes and their governing body, were not on the same plane. This imbalance, should’ve prompted the FSC to conduct a more thorough and rigorous assessment of the award by CAS, as regards the Applicant. Seeing as Article 6 of the European Charter of Human Rights, provides for fair hearing, duty fell upon the court to analyse the issues raised by both parties, more likely in the present case. This line of reasoning was adopted considering the peculiar nature of the jurisdiction of CAS, and the provision of legal remedy for the Applicant, where her rights have been breached.
The court’s judgment had certain separate judgments which some concurring and one dissenting, yet overall, its decision was clear in the responsibility of ensuring justice isn’t only done, but seen to be done.
Conclusion: This serves as a short summary of the case of Semenya v Switzerland, a very impactful case in the world of sports.
