Access to Remedy in the Grand Chamber’s Semenya v. Switzerland Decision

by Daniela Heerdt

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Between the first and the eight of October, the Strasbourg Observers blog is hosting a symposium examining various aspects of the ECtHR’s ruling in Semenya v. Switzerland. The symposium was curated by Dr. Antoine Duval and Dr. Faraz Shahlaei. An introduction to the symposium and the case can be found here.

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Introduction 

The European Court of Human Rights’ (ECtHR) Grand Chamber (GC) judgment in the case of Caster Semenya versus Switzerland was highly anticipated by members of the sports and human rights movement, in particular by those that were hoping that the groundbreaking judgment of the ECtHR’s Chamber from 2023 would be upheld. In its current form, the sport and human rights movement is emerging through civil society actors and other stakeholders who are raising concerns about sport’s impacts on human rights,  including the impact of mega-sporting events on human rights, and in international and national sport bodies like the IOC, FIFA, UEFA, or National Olympic Committees making commitments to respecting human rights at their events and beyond. Arguably, the increase in sport-related human rights disputes over the last decade, with the Caster Semenya case being at the forefront, is a sign of this movement accelerating as well.

However, access to remedy in cases of sport-related human rights harms remains a key struggle for those impacted by or in sport (see here, here or here). The fact that the GC dismissed Semenya’s claims on the basis of the right to access to an effective remedy as enshrined in Article 13 of the European Convention on Human Rights (ECHR) because the alleged violations did not fall within the scope of Swiss jurisdiction, could give the impression that the plight of athletes in this regard will not improve. However, the GC’s judgment as such holds significant implications that could help strengthen athletes’ access to effective remedies. This blog discusses these implications with a focus on the various elements that the right to an effective remedy entails.

Access to effective remedy – a human right of all athletes

Generally, the right to effective remedy, or access to remedy, means that those whose rights have been violated, or who claim that their rights have been violated, can obtain relief within the domestic legal order. To use the words of the OHCHR: ‘Without effective remedies for harm, it is difficult for people to feel that their rights are real’. As a human right, it is enshrined in various international and regional human rights instruments, such as Article 8 of the UDHR, or Article 2 (3) in combination with Article 14 of the ICCPR, or Article 13 of the ECHR. In many instruments, including the ECHR, the right to remedy has no independent existence and can only be invoked in combination with another article. It also forms the third pillar of the UN Guiding Principles on Business and Human Rights, a framework that has become the authoritative source for some sport bodies to understand and embed their human rights responsibilities into policies and practice. This framework distinguishes between procedural and substantive elements of access to remedy – or, in other words, between remedy as a process, and remedy as an outcome.

Under the ECHR, the right to remedy entails the right to a domestic remedy to deal with the substance of an arguable complaint, and if the former is provided, then there is the right to have the claim decided and to obtain redress (See Guide on Article 13 of the ECHR, 2025). Other instruments include similar elements and overall, common features of the right to an effective remedy include the right to initiate proceedings, the right to an effective investigation of the claim, the right to a determination of the claim, and the right to request and receive appropriate redress. Whereas the first three relate more to remedy as a process, the last one concerns remedy as an outcome.

That athletes are humans first and athletes second, and therefore are entitled to human rights like any other human being, including the right to an effective remedy, is out of question. While a number of international, regional, and national sport bodies have recently committed to respecting internationally recognised human rights, access to remedies for sport-related human rights abuses continues to be a core struggle for athletes and other rights-holders. The current sport and human rights remedies landscape can best be described as a patchwork of ineffective mechanisms from within and outside of sport. Sport-internal mechanisms can often not be accessed by those whose human rights have been harmed in sport, for instance when it concerns fans, or the harmful act constitutes a form of athlete abuse that is not covered by any relevant codes. As a result, for some particular human rights harms, there simply are no mechanisms available within sport. Where mechanisms are available and accessible, they often lack human rights expertise. Mechanisms outside the world of sport, such as national or regional courts, OECD National Contact Points or other international human rights mechanisms have started to play a more significant role in human rights-related cases, however, sport bodies’ statutory prohibitions on recourse to ordinary courts of law can present significant obstacles among others (see for example Article 84.2 of World Athletics’ Constitution, or Article 61 of the FIFA Statutes).

From the start, the Semenya case presented a crucial opportunity to challenge the current landscape and understand better to what extent it can ensure access to effective remedies for athletes who want to directly challenge a federation’s rules, in this case World Athletics’ DSD Regulations, due to their negative human rights impacts.

Access to the ECtHR under Article 6 (1) – the right to initiate proceedings

One of the groundbreaking findings of the Chamber judgment was the acceptance of jurisdiction based on the argument that ‘if the Court were to find that it did not have jurisdiction to examine this type of application, it would risk barring access to the Court for an entire category of individuals, namely professional female athletes, which would not be in keeping with the spirit, object and purpose of the Convention’ (para 111, Chamber judgment). This essentially could have opened the door to all athletes who went through CAS proceedings to eventually end up challenging a CAS award to the ECtHR to claim not just procedural rights, but also substantive rights violations committed by Switzerland. The GC overturned this part of the Chamber’s judgment regarding the admissibility of Caster Semenya’s claims based on substantive rights, due to the lack of a territorial link with Switzerland (see Sally Thin’s blog in this symposium); however, by concluding that Semenya fell within Swiss jurisdiction regarding her complaint under Article 6 (1), the GC indirectly confirmed her right to an effective remedy. One reason for this is that Article 6 (1) is a lex specialis in relation to Article 13, because the guarantees of Article 6 § 1 are stricter than, and absorb, those of Article 13 (see e.g. Kudła v. Poland [GC], 2000, or Brualla Gómez de la Torre v. Spain, 1997, § 41). Furthermore, in terms of content and analysis, the decision of the GC has many similarities with the judgement of the Chamber from the perspective of access to remedy. The GC’s recognition of the need for rigorous scrutiny of CAS awards by the FSC aligns with the guarantees enshrined in Article 13 of the Convention concerning the availability of effective remedies at the national level. In this way, the Court’s holding not only strengthens judicial oversight of arbitral decisions but guarantees also the right to an effective remedy of individuals compelled to submit their disputes to CAS. The only condition seems to be that in the underlying case, fundamental rights of the athlete are at stake in a way that a CAS award can be challenged at the Swiss Federal Court (FSC) on public policy grounds.

Interestingly, judges Bošnjak, Zünd, Šimáčková and Derenčinović point out in their dissenting opinion (para 2) that the territorial link could simply have been established by the fact that athletes from around the world ‘participate in competitions which are held […] in Switzerland’, with explicit reference to the World Class Zürich and Athletissima in Lausanne (para 4), an almost yearly recurring international athletics competition that just celebrated its 50^th anniversary. If the GC had followed this line of reasoning, the right of athletes to initiate proceedings before the ECtHR could have been strengthened even more, as Switzerland continues to play a key role in international sports as a territory in which sporting rules are applied and implemented. This year alone, it hosted the UEFA Women’s EURO, the U19 Basketball World Cup, the mountainbike world championships, as well as a range of international winter sports and other events.

Access to remedy for DSD and transgender female athletes in elite sports  – the right to an effective investigation and determination of the claim

Another reason why this judgment was so highly anticipated is the expected impact it could have had on ongoing debates around one of the most controversial issues in contemporary sport: the inclusion of athletes with variations of sex characteristics, also known as DSD athletes, and potentially transgender athletes, in elite-level competition. In times where debates on gender and biological sex transcend the world of sport and enter parliaments and court rooms in various countries around the world (see here or here), the GC’s decision could have made a significant contribution to these debates by determining the rights at stake for DSD and transgender athletes.

Even though the majority of the Court rejected jurisdiction under Articles 8, 14 and 13, this does not mean that a substantive assessment and determination is entirely absent in the judgment. In fact, the GC in its consideration of the application of Caster Semenya under Article 6 (1) engaged in a critical review of the quality of the assessment conducted by the CAS and the FSC of the impact of the DSD Regulations on her substantive fundamental rights under Swiss law. The GC argues that in cases where CAS exclusive jurisdiction has been imposed on the sportsperson, the athlete must be able to benefit from the safeguards provided by Article 6 (1), which is particularly important when the rights at stake are recognised as fundamental rights under national law (paras 204 to 206). Specifically, the Court established that the FSC in checking a potential breach of public policy has to consider whether the award violated the respect for human dignity and the personality rights enshrined in Art. 27 et seq. of the Swiss Civil Code (para 207), as well as the fundamental right to privacy and bodily and psychological integrity (para 208). Accordingly, under the guise of a procedural review, the GC integrates considerations regarding the compatibility of the DSD regulations with substantive rights, such as the respect for human dignity, personality rights, as well as privacy and bodily and psychological integrity. Furthermore, while the GC did not directly assess the reasonableness and proportionality of the DSD Regulations, it indirectly engaged with them through a detailed examination of how the FSC failed to conduct an in-depth judicial review, pointing out fundamental issues such as the arbitrary selection of restricted events (para 233) or the making public of medical information (para 234).

Bringing this back to the elements of the right to effective remedy, the GC’s establishment of the ‘particularly rigorous examination’ requirement can be interpreted as emphasising the right to an effective investigation and the right to a full determination of the claim. These findings are important, in particular given the current trend that prevails in many sports to restrict or even ban transgender or DSD athletes from the elite level, without proper assessments of whether these measures are reasonable or proportionate (see the blog by Lena Holzer in this symposium). Clearly, for a review to be effective and to be able to determine a claim such an assessment is key.

Interestingly, this has recently been confirmed in a domestic court ruling of a civil court of first instance in Belgium on the same day the Semenya judgment came out. The case concerned a transgender female cyclist being denied to cycle in the ‘Elite Women’ category under a new rule that the Union Cycliste Internationale (UCI) adopted in 2023, which banned transgender athletes who transitioned after male puberty from participating in women’s events. She filed her case against UCI and the Royale ligue vélocipédique belge (RLVB), the Belgian cycling federation, on the basis of discrimination, and was supported by the Belgian institute for the equality of men and women. The court ruled that she was indeed discriminated against because UCI did not renew her license after issuing new eligibility rules in 2023. It decided that there was unequal treatment as cisgender women do not have to meet the requirements and argued that while protecting the female category is a legitimate goal, the measures taken by UCI are not proportionate and lack scientific evidence. In fact, it could be argued that the Belgian court did what the CAS and FSC failed to do, which is a rigorous proportionality assessment that led to the conclusion that the UCI failed to justify the proportionality of the rules, in particular due to its inability to present scientific evidence pointing out a disproportionate advantage for transgender athletes. As a consequence, the court declared that the eligibility rules discriminate against the claimant, declared the rules invalid and ordered the UCI to allow her to compete. The UCI also had to pay non-pecuniary damages to the cyclist.

Together with the Semenya judgment, these decisions provide authoritative sources and important precedents on which DSD or transgender athletes and their representatives can rely when challenging eligibility rules of SGBs for being unreasonable and disproportionate.

Remedy as an outcome  – appropriate redress  

What the analysis above tries to highlight is that even though the Court refused to consider Semenya’s claim under Article 13 ECHR, the GC’s reasoning under Article 6 (1) of the Convention vindicated Semenya’s right to access to an effective remedy by strengthening her right to initiate proceedings, to an effective investigation of her claim, as well as her right to a determination of the claim. However, when it comes to the right to receive appropriate redress and looking at remedy as an outcome, the GC’s judgment only provides limited insights. Generally, remedy as an outcome can take various forms, such as ‘apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions […], as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition’ (UNGPs, commentary to principle 25). To properly assess which form of remedy is the right one, one would first need to ask what appropriate redress would actually look like in each case, taking into account first and foremost the view of those affected (Roadmap to Remedy – Insights from Affected Persons, p. 10 ff).

In the present proceedings, Semenya claimed only costs for translations, lawyers, and related expenses, of which a fraction was granted (paras 242-244). The GC then argued that ‘translation expenses did not constitute expenses necessarily incurred to redress any potential violation of the Convention’ and ‘that, even if the case was of a certain complexity, it had not been necessary to employ six lawyers’. The fact that the case was affecting Semenya’s dignity and livelihood was not taken into account in the judgment, as Semenya did not submit a claim for damages. This might be a follow-up step that she could take with her legal team, most likely in a domestic court. However, if the core aim of the application was for Semenya and other athletes like her to be able to run, then the ECtHR cannot be considered a very effective remedy. Neither the Chamber judgment, nor this judgment will force World Athletics to change its eligibility rules in the short run and allow Semenya to participate in running competitions again. Nevertheless, for athletes and their representatives, the ruling constitutes an important precedent, which will influence future proceedings before the CAS and the FSC and shape their access to remedy in practice. Overall, for those protecting the rights of athletes, the judgment shows that the trend of embedding and protecting human rights of athletes in sport continues and gradually gains a stronger legal basis.