Stimulerende zaken opgespoord : Evaluatie wetswijziging bestrijding doping in de sport

1 Sep 2005

Stimulating cases tracked down: evaluation of amendment of the act for the fight against doping in sport / J. Snippe, C. Ogier, H. Naayer, B. Bieleman. - Intraval ; i.o.v. ministerie van Justitie. - Groningen : Intraval, 2005
ISBN 9077115676

SUMMARY
Abuse of doping substances may lead to various risks for public health such as injuries due to improper use or due to the use of a product that has been prepared under suspicious circumstances, or injuries because veterinary drugs are mixed with human drugs. An important aim of the doping policy is to fight the use of doping substances in top sport and recreational sport.
To tackle the use of doping substances more effectively, an amendment of the applicable Act came into force in May 2001. The illegal trade in drugs wich are used for doping has now become part of the Economic Offences Act (Wet op de Economische Delicten: WED) while before it was part of the Dutch Provision of Medicine Act (Wet op de Geneesmiddelenvoorziening: WOG). The unauthorised production and delivery of medicines as well as the preparation, selling, delivery, import, trading or keeping in stock for delivery purposes of unregistered medicines are now regarded as economic offences. The objective of the amendment of the Act is to fight the illegal production and trade in medicines and is, therefore, also an approach that can be used more effectively for fighting the production and trade in doping substances. Experience of the investigative services has shown that the low punishment of offences of the Dutch Provision of Medicine Act in particular had an impeding effect on the investigation and prosecution of the illegal production and trade in doping substances. Therefore punishment has been increased with the amendment of the Act and the powers of the investigative services have been extended considerably.

Evaluation
INTRAVAL, bureau for research and consultancy, has evaluated the amendment to the Act on behalf of the Research and Documentation Centre (Wetenschappelijk Onderzoek- en Documentatiecentrum: WODC) of the Dutch Ministry of Justice. INTRAVAL has analysed if the fight against the illegal trade and production of doping substances has improved since the amendment of the Act. Within the framework of the research, interviews have been held with representatives of the organisations involved such as the Dutch Health Care Inspectorate (Inspectie voor de Gezondheidszorg: IGZ), the Economic Surveillance Department of the Inland Revenue Intelligence and Investigations Department (Economische Controle Dienst van de Fiscale Inlichtingen- en Opsporingsdienst: FIODECD), public prosecutors and heads of regional crime squads. In addition to this INTRAVAL has analysed and compared records related to criminal cases before and after the amendment of the Act, has analysed available registration data and has made a study of literature.
The research has shown that there are different bottlenecks. Due to the low priority given to trade in doping, familiarity with doping cases amongst the police and the Public Prosecution Service (Openbaar Ministerie: OM) is slight. As a result, the available number of doping-related cases is limited. It is also quite difficult to find records of doping trade in the registrations of the police and the Public Prosecution Service. In spite of the limitations of the registrations, it seems that most doping cases have been found again. This is also due to the intensive personal approach of investigating and prosecuting officers.

Results
It seems that the number of criminal cases has not increased after the amendment of the Act, but proportionally more doping-related investigations (preliminary to prosecution) have been started. The extended investigative powers have, moreover, been used more
often. The deployment of scarce and expensive investigative resources (telephone taps and surveillance teams) indicates that the Public Prosecution Service is giving higher priority to doping-related cases. A few investigations (preliminary to prosecution) have been started according to the involved parties since the amendment of the Act which would probably not have been carried out should the Act not have been amended. The cooperation between the Public Prosecution Service and the FIOD-ECD with regard to doping investigations seems to have intensified during the last few years. The FIOD-ECD becomes involved in the fight against doping substances because of their fight against various types of fraud, including intellectual property fraud. Frequent use is made of the expertise of the IGZ by all the parties involved in the fight against doping substances and trade, as was the case before the Act was amended. It is unknown to what extent the amendment of the Act has affected the size of the trade and the production of doping substances. Interviews with experts have, however, shown that traders are taking more care. The threat of a more severe punishment and the possible deployment of (extended) investigative resources have lead to them being more selective in their choice of customers. Obtaining doping substances has become more difficult for users because of the above. Doping substances are mainly imported from abroad into the Netherlands. No changes have occurred regarding this either, although there have been slight shifts in the countries of origin.

Conclusion
In spite of the bottlenecks encountered during the research and the information at hand, which is limited in scope, it seems that the contemplated effect of the amendment of the Act - the improvement of the fight against the illegal trade and production of doping
substances - has been achieved. Visible improvements have, in any case, occurred with regard to the effectiveness of the fight against this type of crime. The options to tackle the illegal trade have become greater since the amendment of the Act. The set of instruments available has become broader which has lead to more investigations (preliminary to prosecution). Due to the more severe punishments the Public Prosecution Service has become more eager in starting an investigation into the trade in doping substances. Various investigations (preliminary to prosecution) would not have been carried out without the amendment to the Act.

Dutch District Court 2014 Suspect X & Prosecutor vs Court - Appeal

14 Oct 2014

Rechtbank Oost-Brabant
's-Hertogenbosch
Team strafrecht
Hoger beroep
20-003545-13
October 14, 2014

ECLI:NL:GHSHE:2014:4263

Related case:
Dutch District Court 2013 Prosecutor vs Suspect X - Appeal
October 22, 2013

Facts
Suspect x and public prosecuter appeal against the judgment of the Court of Oost-Brabant of October 22, 2013 in the criminal section number 01-845125-13.

History
Suspect was partial free of charge for the selling of steroids with eventually health hazards for the buyers. The circumstances of the place were the products were discovered was not a sterile environment. However the suspect states he had prepared the product in another place. The court doesn't acknowledge the defence of the suspect. The suspect has proven that he improved his situation and has now a normal job, got married and has no addiction anymore.
The District Court regards the claims of the suspect as inadmissible, the public persecutor was only at one point admissible regarding the health hazards of the sold products. For this the suspect was free of charge but now he is guilty of this point.

Decision
1. The penalty is a imprisonment for a period of one year; the imprisonment will not be enforced, unless the suspect is guilty of a criminal fact before the end of a probation period of two years.
2. Condemns the accused to community service for a period of 60 hours, replaced by 30 days in prison if not properly performed.

Dutch District Court 2013 Prosecutor vs Suspect X - Appeal

22 Oct 2013

Rechtbank Oost-Brabant
's-Hertogenbosch
Team strafrecht
October 22, 2013
Hoger beroep
01/845125-13

ECLI:NL:RBOBR:2013:5776

Related case:
Dutch District Court 2014 Suspect X & Prosecutor vs Court - Appeal
October 14, 2014

Facts
Court Oost-Brabant charges suspect x for violations of medicine acts: the import, preparing and selling of medicines without permit.

History
Suspect had imported or prepared various medicine products without a licence in the period of January 1, 2012, till February 14, 2013. In the same period he had tried to sell these products without a license. Susppect was arrested on February 15, 2013, when his house was investigated a laboratory was discovered. The identified products [only doping related mentioned] were: Clenbuterol, Clomiphene, Stanozolol, Tamoxifen, Testosterone and Trenbolone. Allthough the preparation wasn't done in a sterile environment, there is no proof if the actual preparation wasn't done sterile and if there are health hazards for the buyers.

Decision
Accused is sentenced to community service of 180 hours and a
imprisonment of 270 days of which 165 days conditionally and
two years probation for the import, preparing and selling without permit. He is free of charge for the selling of these products with eventually health hazards for the buyers.

Ontario Superior Court of Justice 2007 CCES, Swimming Canada and Coaches vs Cecil Russell

7 Jun 2007

Facts
The Canadian Centre for Ethics in Sport (CCES), Swimming Natation Canada (Swimming Canada) and Coaches of Canada (Coaches) have applied to set aside the 2007 decision of the adjudicator Graeme Mew, dated October 29, 2005, reinstating the Respondent Cecil Thomas George Russell (Russell) as a national level swimming coach on the basis of fraud.

History
In October 1997 Russell was banned for life from participating in sports funded or recognized by the Government of Canada, because he was found to have committed a doping related infraction by reason of his criminal conviction for possession and conspiracy to traffic in anabolic steroids in 1996.
On June 24, 2005 Russell applied for reinstatement for the second time and after a hearing was held in September of 2005, Arbitrator Mew ordered that Russell be reinstated as a swimming coach in Canada. After the arbitration hearing was held the CCES learned from reading newspaper articles in the Globe and Mail and the Toronto Star, that Russell had pleaded and been found guilty of conspiracy to possess with intent to distribute MDMA (ecstasy) in Arizona and was sentenced to a term of four years imprisonment in March of 2004. At his reinstatement hearing before Arbitrator Mew in September of 2005, that Russell did not disclose his conviction for conspiracy to traffic in ecstasy in Arizona in 2004, to Arbitrator Mew.
In this application and motion the Court must decide the following issues:
1. Did Russell’s failure to disclose the material fact of his criminal conviction for a drug-related offence in Arizona in 2004 or the making of false representations in his application for reinstatement, constitute fraud?
2. Does the Superior Court have jurisdiction to hear this application?
3. Should Commission Counsel and his firm be removed from the record?
4. Should the Court strike out the portions of the affidavits which set out the false evidence that is alleged to have been given by Russell at the arbitration hearing, where there was no transcript; and the portions which relate to newspaper articles describing Russell’s admission to assisting an associate to dispose of a murder victim’s body?

Decision
The CCES, Coaches and Swimming Canada application to set aside Arbitrator Mew’s decision on the basis of fraud pursuant to s. 46.(1).9 of the Arbitrations Act of Ontario is granted and the matter is referred back to Arbitrator Mew for reconsideration based on the additional evidence.

SDRCC 2013 CCES vs Nathan Zettler

17 Sep 2014

Based on records from the Ontario Superior Court of Justice on June 21, 2013, the Athlete Nathan Zettler pleaded guilty to inter alia one count of possession, and two counts of possession for the purpose of trafficking in anabolic steroids. Convictions were registered on June 21, 2013.

Consequently the Canadian Centre for Ethics in Sport (CCES) has reported anti-doping rule violations against the Athlete for the Athlete's subsequent convictions on 3 counts of possession and possession for the purpose of trafficking in anabolic steroids.

Here the Athlete failed to respond to the CCES communications.
Considering aggravating circumstances in this case the SDRCC decides to impose a 4 year period of ineligibilty on the Athlete starting on 8 September 2014.

SDRCC 2014 CCES vs Mathieu Marineau

29 Sep 2014

Facts
The Canadian Centre for Ethics in Sport (CCES) alleges Mathieu Marineau, the athlete, for a violation of the Canadian Anti-Doping Program. On June 15, 2014, he underwent a urine test administered out of competition by the CCES. Analysis of the sample showed the presence of SARM S-22 which is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.

History
The Athlete requests a B sample analysis. He explained that he had recently received an injection for knee and shoulder pain and that
he would ask his physician whether the injection could be linked to the result of the analysis. The B sample confirmed the findings of the A sample. His physician confirmed that the positive test derived from an injection against inflammation. However an expert in this field explained that the serum of the injection couldn't have been responsible for the positive test. The athlete still claims he has now idea how the prohibited substance had entered his body, this still means he would not be discharged of the burden of establishing the absence of significant fault or negligence.

Decision
The sanction is a two years period of ineligibility beginning on July 8, 2014.

UKAD 2014 WRU vs Nicholas Clancy

10 Nov 2014

Facts
The United Kingdom Anti-Doping (UKAD) charges Nicholas Clancy, the athlete, for a violation of the Anti-Doping Rules. On August 14, 2014, UKAD collected an out-of-competition sample from the Athlete. Analysis of the sample showed the presence of a metabolite of stanozolol, a metabolite of nandrolone and drostanolone and its metabolite. All these substances are prohibited according to the World Anti-Doping Agency prohibited list.

History
The athlete had admitted the use of the prohibited substances.

Decision
1. The sanction is a period of ineligibility of two years.
2. The period starts on the date of 4 September 2014 and will therefore end at midnight on 3 September 2016.

UKAD 2014 WRU vs Peter Davies

16 Sep 2014

Facts
The United Kingdom Anti-Doping (UKAD) charges Peter Davies, the respondent, for a violation of the Anti-Doping Rules. On 14 May 2014 the Athlete failed to submit to sample collection and on 20 May 2014, during an out of competition doping control test respondent refused to provide a sample.

History
The respondent had not played rugby for a year and due to an injury he was not likely to play in the future. During the doping control he had tried on both occasions to provide an urine sample but was unable to comply. On 20 May 2014, he terminated the doping control in order to leave for an examination and he didn't sign the doping control form. However the respondent was allowed to rephrase his early admission. But his argumentation about leaving the doping control for an examination proved to be false because the actual time of this examination was later then he had mentioned.

Decision
The period of Ineligibility which is prescribed in these circumstances, absent any argument being advanced by UKAD for aggravation of sanction, is two years. The two year period starts on the date of commencement of the respondent's period of provisional suspension which was on receipt by the respondent of the UKAD letter of 13 June 2014, i.e. on 14 June 2014. Accordingly, the Athlete’s period of Ineligibility runs from and including 14 June 2014 until midnight on 13 June 2016.

World Rugby 2014 WR vs Maxim Gargalic (1)

28 Nov 2014

Related case:
World Rugby 2014 WR vs Maxim Gargalic (2)
June 29, 2015

In July 2014 World Rugby reported an anti-doping rule violation against the Athlete Maxim Gargalic after his sample tested positive for the prohibited substance 19-norandrosterone (Nandrolone). After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the World Rugby Judicial Committee.

The Athlete admitted the violation and claimed that he acted without fault. He explained that he underwent treatment in March 2013 for his shoulder injury by an orthopeadic doctor. The doctor prescribed medication and he assurred the Athlete that these medication did not contain prohibited substances.
However the prescribed medication Retabolin contains nandrolone and the Athlete failed to check whether the prescribed medication contained any prohibtied substances.

In his submission the doctor acknowledged that he didn't consider that the medication Retabolin is on the prohibited list for sportsmen. No evidence was led as to the plausibility of a nandrolone concentration remaining in the Athlete’s system over a year after receiving his last injection of Retabolil.

The Judicial Committee finds that the Athlete has committed the anti-doping violation without grounds for a reduced sanction.
The Committee concludes that the Athlete undertook no due diligence of his own and blindly took a series of injections following which he made a recovery that was significantly better than two surgeries had been able to achieve, he cannot establish that there was no fault or negligence on his part. All he needed to have done to be alerted to a concern about what he was taking was ask to see a product label for Retabolil or a basic search on the internet.

Therefore the World Rugby Judicial Committee decides on 28 November 2014 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 3 July 2014.

IRB 2012 IRB vs Shane Joubert

21 Apr 2014

Facts
The International Rugby Board (IRB) alleges Shane Joubert, the respondent for a violation of the Anti-Doping Rules. He has been charged in relation to trafficking or attempted trafficking; administration or attempted administration; use or attempted use; and possession of prohibited substances.

History
Rugby players Simbarashe Chirara and Dylan Coetzee were found to have committed anti-doping rule violations after samples they provided prior to the tournament held in Salt Lake City, US, returned adverse analytical findings for the presence of nandrolone, an anabolic androgenic steroid. Each of them received two-year bans and both players identified Joubert as their supplier, he had injected one personally with the prohibited substances to show how to use it. He had supplied others of his team and used it also to enhance his own sport performance.
He accepted responsibility for his actions, and expressed regret at “the end of my rugby” due to being “young, naïve and under pressure to perform (which) affected my ability to make the correct decisions”, he has displayed no remorse for the consequences of his conduct on others (specifically Chirara and Coetzee), his Union and indeed the Game

Decision
1. The sanction is a period of ineligibility six years on the respondent, commencing on 13 December 2012 (the date that the Union emailed the notice of provisional suspension to the Respondent) and ending on (but including) 12 December 2018.
2. During the period of Ineligibility, respondent can't participate in any capacity in a match and/or tournament (international or otherwise) or activity (other than authorized anti-doping education or rehabilitation programs) authorized or organised by the Board or any Union or Tournament Organizer. Such participation includes but is not limited to coaching, officiating, selection, team management, administration or promotion.

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