A year after the introduction of the leniency program, it is clear that it has had no effect on clarifying doping. Not a single insider has unpacked.
There are only a few experts in Germany who can assess the possibilities and weaknesses of the anti-doping law introduced in 2015 as well as Kai Gräber. The Munich public prosecutor runs an authority with a focus on doping. He successfully brought the largest criminal case in Germany in this area to a close at the beginning of last year: he had investigated the doping network so solidly against the defendants in the complex of proceedings for Operation Aderlass involving Erfurt doctor Mark Schmidt that they were all convicted.
A few months later, the German politicians improved Gräber’s tools: they added the leniency program regularly demanded by the senior public prosecutor to the anti-doping law. That was necessary, said Federal Minister of Justice Christine Lambrecht at the time, “to encourage insiders to disclose doping” and around “to facilitate investigations in this closed area”.
After a year of leniency, the balance sheet is sobering. Not a single procedure could be initiated on the basis of tips from an insider. There are potential witnesses, Graber insists, “But it’s not like the door is being broken down here. It’s still the case, of course, that the scene has raised the famous wall of silence.” One is in contact with one or the other athlete, says Gräber, “to just find out what options there are, what information can be given”.
Most prosecutors probably don’t even want to investigate
Seven years after the introduction of the anti-doping law, impatience and resentment at the lack of success are gradually growing. In theory, all advocates of the law had hoped that criminalizing self-doping would make it easier and faster for public prosecutors to track down the networks via positive doping tests. Positive test, initial suspicion, house search, mobile phone confiscation, conviction, preferably also of the people behind it. But in practice it has been shown that most public prosecutors, so the impression, do not want to.
The proceedings are discontinued in series due to minor guilt or lack of public interest. Many investigators seem to still have reservations about the law. The circle of top athletes affected is too exclusive and small, and their prosecution is not socially relevant enough given the mountains of files, some of which are serious crimes, piling up on the prosecutors’ desks.
In fact, the question of procedural economy arises, for example with Helen Grobert. The former mountain biker will probably have to answer before the Waldshut-Tiengen district court in 2023, for the second time. Threat of punishment: fine after testosterone was detected in her urine in 2017. The judgment of the first instance was overturned by the Karlsruhe Higher Regional Court. Grobert had already ended her career in 2018.
Model process with boxing world champion
The investigations are too laborious to prove the so-called subjective facts of an athlete: the intent to dope, the knowledge and willingness to take the banned substance for the purpose of improving performance. Precisely the part that does not have to be determined in sports law, because the athlete there has to actively prove his innocence after a positive test, while in criminal law the public prosecutors have to prove his guilt.
In the only conviction of a professional athlete under the anti-doping law that was even passed by the Federal Court of Justice after a main hearing, the Cologne public prosecutor found out and proved from the former professional boxing world champion Felix Sturm: It is enormously complicated and requires a lot of effort to get all to refute the defendant’s protective arguments in court. Two renowned experts from German anti-doping laboratories testified as experts, as did the manufacturer of some dietary supplements that had taken a storm. All to prove that the banned drug stanozolol did not get into the boxer’s body by accident or even sabotage.
demands for higher penalties
Public prosecutors who are inexperienced in doping offenses are overwhelmed. They either discontinue the proceedings voluntarily or suffer shipwreck before the main hearing. When the main hearing against the weightlifter Vicky Schlittig, who tested positive, was supposed to take place in Chemnitz, without the public prosecutor’s office having biochemically secured the accusation of guilt, the judge let the process burst without further ado. The problem that all prosecutors have in common: not a single key witness is in sight, almost all of the accused claim that they are innocent.
Experts agreed from the outset that the leniency program, “not the big one game changer becomes”, as Michael Kubiciel put it. The Augsburg criminal law professor had evaluated the anti-doping law for the federal government. The core problem: The probability of being convicted of doping is too low, and the threat of punishment too low to motivate dopers to come out and gain advantages.
If the practitioners have their way, the pressure should therefore increase and the law should be tightened again: “I think the range of penalties could be a bit higher, the maximum sentence could be five years“, says chief public prosecutor Gräber, “simply because the signal effect is different than when a doping violation is prosecuted like a verbal insult.”