MINISTERS’ DEPUTIES

CM Documents

CM(2022)48-addfinal

20 April 2022

1432nd meeting, 20 April 2022 8 Youth and Sport   8.1 Monitoring Group of the Anti-doping Convention (T-DO) Recommendation CM/Rec(2022)14 of the Committee of Ministers to member States on general principles of fair procedure applicable to anti-doping proceedings in sport Explanatory Memorandum

Aim and purpose of the Recommendation

1.            The adoption of the World Anti-Doping Code has harmonised the fight against doping in sport and has evolved so as to ensure a fairer procedure for all parties. The Court of Arbitration for Sport (CAS), as a recognised forum for the resolution of disputes in the anti-doping area, also contributed to the development of principles of fair procedure.

2.            The aim and purpose of the Recommendation is to reinforce the human rights principles that should govern anti-doping procedures in sport. The principles set out in the Recommendation are drawn from human rights standards and particularly the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights which is applied by all jurisdictions within Europe and provides inspiration even beyond.

3.            As indicated in the last line of the Recommendation, it is to be the subject of “progressive implementation”. What is at stake is not only fairness for those accused with anti-doping infringements but ultimately public confidence in sports’ justice and sporting bodies.

4.            The fight against doping in sport requires fair proceedings while respecting the need to protect athletes’ private life including reputation and health-related information.

5.            The cases that have already been brought before national and European courts illustrate that the fight against doping in sport constitutes a matter of public interest, involving notably public and law enforcement authorities and national jurisdictions and, as such, it can no longer be treated as a purely private matter. Anti-doping rule violations have evolved considerably in recent years and are no longer based solely on biological-related findings. Increasing recourse is made to investigations and other types of non-analytical evidence.

6.            The main subjects of the Recommendation are the athletes and support personnel (such as coaches or managers), as well as legal persons such as national and international federations or clubs or companies. Non-athletes are referred to in the text as “other persons”.

7.            These principles should not prevent member States or sports organisations from reinforcing the rights guaranteed in anti-doping proceedings and to further protect the human rights of athletes and other persons.

8.            The elements below seek to further explain the specificity of certain principles contained in the Recommendation.

Independence

9.            Although the concept of “operational independence” is widely referred to in the anti-doping context, it is not commonly used in other judicial activities. It is widely understood, and repeatedly confirmed by national and European jurisdictions, that the judiciary should be independent from the prosecution and the parties to the dispute. This independence should be carefully protected. If one is to strengthen the system of justice in sport, the concept of independence should be fully embraced including by the use of appropriate terminology.

10.          The notion of independence referred throughout the document should be understood as meaning that those involved in the decision-making process, and particularly members of the panel and appeal body, are independent from internal and external influences and from the parties. They should also present an appearance of independence.

Investigations

11.          Investigations should be carried out by persons being part of or designated by institutions, such as national anti-doping organisations, which are independent from the organisation of any sport event. Investigators should operate independently from any external or internal interference.

Presumption of innocence, strict liability and provisional suspension

12.          The presumption of innocence protects individuals against arbitrariness and is a fundamental human rights and rule of law principle. It is a relevant concept and an important protection of fairness linked to public confidence in any judicial proceedings including in the disciplinary anti-doping context.

13.          The Recommendation specifically indicates that the principle of strict liability and provisional suspension should not be considered in breach of this provision. Presumptions of fact or of law do not impinge upon the fairness of proceedings providing that they are kept within reasonable limits. Provisional suspension is imposed in a limited number of cases and strict liability applies only to certain anti-doping rule violations. Anti-doping proceedings are also based on non-analytical findings.

Panel and Appeal body

14.          The term “Panel” in the Recommendation refers exclusively to the first instance jurisdiction.

15.          The term “appeal body” thus refers to those jurisdictions that hear appeals against the decisions of the first instance body as indicated in principle j. To reinforce the credibility and the fairness of the proceeding, it is advised that the Appeal body is composed, when appropriate, of an appellate court judge, assisted by two or more members experienced lawyers or experts in anti-doping related issues. It could also be a specialised appeal body within the existing appellate structure.

16.          The notion “established by law” reflects the principle of the rule of law. Its purpose is to ensure that the organisation of a judicial system does not depend on the discretion of the executive. In the context of an anti-doping proceedings, this notion requires that legislation or regulation of a legislative nature create the Panel and the Appeal body, organise their functioning and specify the appointment procedure of their members and their renewal. The Panel and the Appeal body could also be integrated into the existing judicial system with the possibility of contesting the final decision before a non-specialised jurisdiction such as a Supreme or a Cassation Court. It has to be noted that the Court of Arbitration in Sport is considered by the European Court of Human Rights as established by law.

17.          Anti-doping proceedings are regularly considered by arbitral jurisdictions including at the international level with the Court of Arbitration in Sport. Arbitration jurisdictions should be organised to be independent from the prosecuting body, usually anti-doping organisations or international federations from which they should be structurally and operationally detached. Safeguards should also be in place to protect their members from any internal or external pressure and to ensure that the appointment procedure respects the parity between the parties in the proceedings.

18.          The Chair of the Panel and of the Appeal body should, if necessary, be offered training in anti-doping.

19.          The principles set out in the Recommendation should apply equally to both bodies and should not prevent from ensuring further guarantees notably in respect to their composition.

Right to be heard

20.          Right to a hearing or the right to be heard, often called the right to a court, is a basic requirement of a fair trial. It encompasses several elements. Athletes or other persons accused of having infringed an anti-doping rule should have the right to defend themselves before the Panel. They have the right to be advised, defended and represented by a legal advisor of their choice at their own expense.

21.          The right to call witness should be ensured under the control of the Panel which could consider, for example, that the person has called sufficient experts or that the evidence is not pertinent. A similar approach should be taken regarding access to documents and evidence when they might undermine the integrity of the anti-doping process or jeopardise any future anti-doping investigation or where it would reveal the identity of an intelligence source or whistleblower.

22.          The right to be heard should not exclude the possibility to have the case resolved directly by the parties through an agreement (“case resolution agreement”). Furthermore, athletes or other persons can waive of their own free will, either expressly or tacitly, the entitlement to the guarantees of a fair hearing. However, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Further, it must not run counter to any important public interest.

Public hearings

23.          Public hearings protect litigants against the administration of justice in secret with no public scrutiny and is thus one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, it contributes to the achievement of the aim of a fair hearing, the guarantee of which is one of the fundamental principles of any democratic society.

24.          The public hearing is thus an important safeguard in anti-doping proceedings to protect those charged with anti-doping infringements, but also the national anti-doping organisations, national and international federations as well as hearing panels themselves against improper influence. Public hearings can also boost public confidence in the process.

25.          The principle of public hearing should not exclude per se that the interests of justice could be served by hearings held in camera. Considering that the proceedings at stake in this Recommendation are of a disciplinary nature, the Panel has a wider margin of appreciation to decide that a part of or the whole hearing be held behind closed doors. In considering this matter, the Panel could take into account the special nature of sports proceedings, the risks to reputation or the necessity to protect health related information. Moreover, the panel should consider the specific circumstances of each case, including, but not limited to, the age of the athlete, sensitive medical information, personal relationships, and addictions, that may be disclosed during the hearing. In considering the matter, the Panel should particularly take into account the expressed wishes of the athlete or of any other person against whom anti-doping proceedings are brought.

26.          It should also take into account the interests of the public or of other athletes who may have had their expectations impacted by the alleged doping infringement to favour a public hearing.

27.          When considering a request to waive a public hearing or to have to a written procedure, the panel may consider that public scrutiny may be sufficiently served by publication of its reasoned decision.

28.          In order to ensure a fair procedure, the parties, including any third party, should be seated separately during the hearing allowing a clear distinction among them.

29.          Further, part of or all the proceeding could take place through a written procedure, excluding any public hearing. Considerations such as the right to a hearing within a reasonable time, or proceedings devoted exclusively to legal or highly technical questions may comply with the requirements of a fair procedure in the absence of a hearing. In this context, the Panel or Appeal body should provide a reasoned decision to reject a public hearing request.

Notification and publication of decisions

30.          To ensure fair proceedings, the Panel and Appeal body decisions should be appropriately reasoned and promptly notified to parties particularly having in mind their potential consequences on athletes’ careers.

31.          Decisions should be published and made accessible to the public, with the apposite safeguards where appropriate, to ensure the accessibility and the consistency of the jurisprudence.