CAS 2015/A/4304 Tatyana Andrianova v. All Russia Athletic Federation (ARAF)
- Athletics
- Re-analysis of samples
- Scope of application of a statute of limitation
- Duty for a federation to respect the principles of human rights
- Limits to the retroactive application of the statute of limitation
1. According to the plain wording of the provision, the new statute of limitation contained in Rule 47 of the 2015 IAAF Anti-Doping Rules (ADR) implementing the 2015 World Anti-Doping Code “shall only be applied” to cases that have occurred prior to the entering into force of the 2015 ADR (Effective Date), if the “statute of limitation period has not already expired” by that date. It is rather obvious that the latter term (“statute of limitation period”) does not refer to the “new” statute of limitation in the 2015 ADR. Instead, it refers to the (old) statute of limitation previously in force. This is clearly evidenced by the fact that no reference is made in this context to “Rule 47”. Furthermore, any different reading would make little sense, because then the second half of the sentence (“provided however that Rule 47 shall only be applied retroactively if the statute of limitations period has not already expired by the Effective Date”) would be superfluous.
2. Even if the 2015 ADR deleted all references to human rights and have not – at least in this respect – implemented the 2015 WADC verbatim, a federation cannot opt out from an interpretation of its rules and regulations in light of principles of “human rights” just by omitting any references in its rules and regulations to human rights.
3. It does not necessarily follow from the qualification of the statute of limitation as a “procedural rule” that there are no limits to a retroactive application of such rule. Instead, it follows from Art. 6(1) ECHR that the procedure must be “fair”. CAS panels have repeatedly found that arbitral tribunals are indirectly bound by the ECHR. Applying retroactively a longer statute of limitation to a case that was already time-barred at the time of the entry into force of the new provision is incompatible with a “fair proceeding”. All the interests protected by a statute of limitation, in particular the legitimate procedural interests of the “debtor”/“defendant” would be violated if an association could retroactively allow for the persecution of a disciplinary offense already time-barred. Such open-ended approach to disciplinary cases poses a serious threat to the principle of legal certainty that constitutes a violation of Art. 6(1) ECHR. Therefore, the 10-year statute of limitation in Rule 47 of the 2015 ADR can only apply to those cases that were not already time-barred on 1 January 2015, i.e. at the time of the entry into force of the 2015 ADR.
On 2 October 2015 the Anti Doping Commission of the All Russia Athletic Federation (ARAF) decided to impose a 2 year period of ineligibility on the Russian Athlete Tatyana Andrianova after reanalysis of her sample – provided in August 2005 - tested positive for the prohibited substance stanozolol.
Hereafter in November 2015 the Athlete appealed the ARAF decision of 2 October 2015 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the ARAF decision and filed several arguments in her defence.
The Sole Arbitrator finds that the alleged anti-doping rule violation of the Athlete is asserted to have occurred on 9 August 2005 (the day of the sample collection). Every version of the ADR in force between 9 August 2005 and 31 December 2014 (i.e. the day prior of the entry in the force of the 2015 ADR) provided for an eight-year limitation period.
Thus, any disciplinary proceedings against the Athlete became time-barred with the expiry of 8 August 2013, i.e. well before the new 2015 ADR providing for a 10-year statute of limitations coming into force. To conclude, therefore, the Sole Arbitrator finds that the ARAF erroneously opened disciplinary proceedings in 2015 against the Athlete based on the sample (code 691833) and that for this reason the appeal must be admitted and the Appealed Decision annulled.
Therefore the Court of Arbitration for Sport decides on 14 April 2016:
1.) The appeal filed by Ms Tatyana Andrianova against the decision of the Anti-Doping Commission of the All Russia Athletic Federation dated 2 October 2015 is upheld.
2.) The decision of the Anti-Doping Commission of the All Russia Athletic Federation dated 2 October 2015 is set aside.
(…).
5.) All other or further claims are dismissed.
