The court case of the Italian athlete Alex Schwazer is very interesting for its possible developments after the ECHR ruling on the Semenya case (Case 10934/21, ECHR, Section III, judgment of 11 July 2023). His case concerns his second disqualification, which took place in 2016 on the eve of the Olympic Games in Rio, and develops between the sports and state judicial orders with completely opposite outcomes. As far as sporting rulings are concerned, the Court of Arbitration for Sport disqualified the Italian marcher for eight years due to the alleged testosterone positivity found in urine tests. As far as the state courts are concerned, it was the Italian court, rather the Judge for Preliminary Investigations, who ruled that the charges be dismissed, arguing that it is highly credible that the urine samples were altered to make them positive and thus bring the athlete and his coach into disqualification and disrepute (18 February 2021). A first order of questions arises: which of the two will eventually prevail? On the basis of the dismissal of the indictment, the Italian athlete filed an application with the CAS for a review of the 2016 judgment, seeking the cancellation of the remaining disqualification. The CAS rejected the application; Schwazer's subsequent appeal to the Swiss Federal Supreme Court was also dismissed by the Court, on the grounds that the alleged impossibility of submitting further expert reports, due to the short-term procedure, could not be considered a ground for obtaining the review, as this procedure had been accepted in advance by the parties. Schwazer and his lawyer appealed to the European Court of Human Rights for violation of his right to a fair trial, against the judgment of the Swiss Federal Supreme Court, which rejected his appeal, without going into its merits. Although the appeal to the ECHR was made against the Swiss Federal Supreme Court, it is the system of sports justice that is being challenged, due to its closed system of jurisprudence, which considers athletes guilty unless they prove that they are innocent. In a word, the real question is whether this blatant imbalance is so unfair that it violates athletes' human rights. The European Court of Human Rights will consider, among other things, whether Rule 38 of the 2016/2017 IAAF Competition Rules violates Schwazer's right to a fair trial. It seems interesting to note that his appeal passed the assessment under Article 27 ECHR, assigning the case number 24108/22. What scenarios could arise if Schwazer's appeal is successful? After the ECHR ruling on the Semenya case, what could be the possible consequences if Schwazer's appeal is upheld? What would become of the fight against doping strongly supported by sports organisations? In general, is it right that the individual rights of athletes should be sacrificed in the name of the fight against doping?
The Alex Schwazer case: what could change after the ECHR Judgment in Semenya case
DI GIANDOMENICO, Anna
2025-01-01
Abstract
The court case of the Italian athlete Alex Schwazer is very interesting for its possible developments after the ECHR ruling on the Semenya case (Case 10934/21, ECHR, Section III, judgment of 11 July 2023). His case concerns his second disqualification, which took place in 2016 on the eve of the Olympic Games in Rio, and develops between the sports and state judicial orders with completely opposite outcomes. As far as sporting rulings are concerned, the Court of Arbitration for Sport disqualified the Italian marcher for eight years due to the alleged testosterone positivity found in urine tests. As far as the state courts are concerned, it was the Italian court, rather the Judge for Preliminary Investigations, who ruled that the charges be dismissed, arguing that it is highly credible that the urine samples were altered to make them positive and thus bring the athlete and his coach into disqualification and disrepute (18 February 2021). A first order of questions arises: which of the two will eventually prevail? On the basis of the dismissal of the indictment, the Italian athlete filed an application with the CAS for a review of the 2016 judgment, seeking the cancellation of the remaining disqualification. The CAS rejected the application; Schwazer's subsequent appeal to the Swiss Federal Supreme Court was also dismissed by the Court, on the grounds that the alleged impossibility of submitting further expert reports, due to the short-term procedure, could not be considered a ground for obtaining the review, as this procedure had been accepted in advance by the parties. Schwazer and his lawyer appealed to the European Court of Human Rights for violation of his right to a fair trial, against the judgment of the Swiss Federal Supreme Court, which rejected his appeal, without going into its merits. Although the appeal to the ECHR was made against the Swiss Federal Supreme Court, it is the system of sports justice that is being challenged, due to its closed system of jurisprudence, which considers athletes guilty unless they prove that they are innocent. In a word, the real question is whether this blatant imbalance is so unfair that it violates athletes' human rights. The European Court of Human Rights will consider, among other things, whether Rule 38 of the 2016/2017 IAAF Competition Rules violates Schwazer's right to a fair trial. It seems interesting to note that his appeal passed the assessment under Article 27 ECHR, assigning the case number 24108/22. What scenarios could arise if Schwazer's appeal is successful? After the ECHR ruling on the Semenya case, what could be the possible consequences if Schwazer's appeal is upheld? What would become of the fight against doping strongly supported by sports organisations? In general, is it right that the individual rights of athletes should be sacrificed in the name of the fight against doping?I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
