The truth is that Schwazer was not acquitted. What happens now?

Criminal doping charges against Alex Schwazer have been dismissed, the GIP (Judge of preliminary investigations) of Bolzano, Walter Pelino, has closed his position in the order of 87 pages that he did kick up a fuss not just for the alleged urine manipulation that is believed “proven with a high degree of rational probability”, but also for the direct attack on WADA and World Athletics.

Those who speak of “sentence”in favor of Schwazer are wrong because in reality there was not even a trial. FIDAL President Stefano Mei (very close friend of Sandro Donati, Schwazer’s coach) is also mistaken, because in a recent interview on the radio rightly he pointed out that in this case we can not talk p acquittal, but he was wrong when he claimed “I read what the sentence says, but the sentence says some pretty serious things” and “judgments (of the courts) must be respected”. In this case, there is no criminal court ruling while since 2016 there has been a sports ruling, a TAS-CAS award which obviously is contested only in Italy.

There is a considerable difference between “dismissed” and “acquitted”, there is as much difference between a final judgment (sentence) and an order of the GIP. Dismissal does not block a possible reopening of investigations against a person previously investigated for that same crime, for which it does not establish anything definitive, as it is for a complete trial which after the three degrees of trial (in Italy) establishes the innocence or guilt of the accused with a sentence. But Schwazer’s case has always been complex and has always lent itself to misunderstandings and mystifications.

Alex Schwazer after the second sport disqualification by the TAS-CAS (August 2016), was investigated for violation of the Italian doping law (Law 376/2000) and at the same time he continued to cry out his innocence, complaining about the improbable manipulation of his urine and a plot against him. The preliminary investigation phase was conducted for 4 long years with elaborated but contested expertise of the RIS of Parma (italian CSI) which detected only Schwazer’s DNA but in concentration (picograms/microliter) considered excessive, and ended a few days ago with the dismissal order. Judge Pelino in his decision did not simply dismiss, but went far beyond the mere order, first criticizing the reasons for the dismissal request of the criminal prosecutor Giancarlo Bramante, then exposing the reasons for his decision with direct and heavy accusations against WADA and WORLD ATHLETICS, decorating everything with exclamation marks, quotes from Cicero, King Xerxes and excessive comments that have infuriated the World Anti-Doping Agency.

In summary, the judge believes “pproven with a high degree of rational probability” Alex Schwazer’s urine manipulation, even without having found the “smoking gun”, and links the whole story to a motive for revenge against Sandro Donati and Schwazer, repeating the same identical and unlikely defensive arguments to which we have been accustomed from the media blight of the conspiracy theory that has accompanied us in recent years.
So the judge deduces that if in the urine of an athlete (doping positive) there is only the DNA of that same athlete but with a high concentration above normal, then the only possibility is a tampering.

For Italian criminal justice Alex Schwazer is crimeless and his position must be dismissed for“not having committed the crime”. And it is this last formula, typical of acquittal sentences, which makes even more unusual the dismissal, that according to Italian law, it should be decreed for “unfounded crime report”, “unknown offender”, “lack of admissibility” or “tenuous fact”. But it is more correct that specific evaluations of this strangeness are the competence of jurists.

The news has attracted considerable media attention but it is neither an acquittal of Alex Schwazer nor a conviction of WADA and WORLD ATHLETICS. Many people, however, would make it seem that way because this story, after the past Bolzano investigation named “Olimpia”,is the new ram’s head for those who, like Sandro Donati, have criticized and attacked the sports system and international anti-doping for many years. But above all, it is the last resort for the Olympic obsession of Schwazer and his coach.

After the criminal dismissal, the Schwazer sports ineligibility is automatically annulled?
No, sports justice acts in a completely different context from criminal justice, it is autonomous and independent. A sports conviction for doping remains valid even in the face of a criminal acquittal (or dismissal) as is often the case in Italy, precisely because the evaluations of the two systems are different and not necessarily superimposable. The Pelino judge’s decision, especially since it is not even a final judgment, will arouse a stir since it is argued that the manipulation of urine is “proven with a high degree of rational probability” but it does not add much to a theory on which, despite everything, there is no certainty as to where, when and who would have implemented it and it is not explained which elements in fact would demonstrate with certainty how they would have opened and closed the B sample. The judges’ assessments in an order still have value and Schwazer always has the opportunity to try to request the cancellation of the disqualification from the Swiss Federal Court (the only authority capable of overriding a decision of the TAS-CAS).

The GIP could attack so directly WADA and WORLD ATHLETICS?
Without going too far into the prerogatives and limits of the GIP, his decision seems like a sentence but it is not, so this particular suits Schwazer and his legal staff who still desperately needed something to hold on to without the risk of going through a real criminal trial. It is not clear whether a GIP could formulate a dismissal in that way and with those words and accusations, the fact remains that the judge’s action on the one hand was defined as courageous, on the other hand it is at least unusual and has certainly “boundless” in many points.
For example, when the judge suggests to radically change the doping control procedures so that the anti-doping sample B is entrusted to third-party laboratories located in the athlete’s home state… a very dangerous proposal that if applied would certainly be welcomed with joy by rogue athletes from all over the world (just think of Russia) who were waiting for nothing more to keep the sample of confirmation analyzes available for real manipulations. Or when the judge quotes Pierre-Yves Garnier (in charge of doping controls at World Athletics) giving particular relevance to his three-month suspension for violations of the IAAF code of ethics, but totally forgetting that for that matter Garnier was later acquitted by the TAS-CAS. And finally when the judge once again mentions the doctors Pierluigi Fiorella and Giuseppe Fischetto who, according to him, “would have pushed the athletes to take drugs” in an Italian state doping scenario (never happened), a redundant hypothesis even in previous orders, which however clashes with their full acquittal on appeal and their total extraneousness to Schwazer’s second positivity.

WADA is right to get angry?
From a certain point of view no, it is evident that he took the question of the criminal case against Schwazer lightly, letting the hypotheses about the plot spread so much that now even the judge believes in it, but on the other hand the passive attitude and the missed answers (according to the judge) were evidently counterproductive and fueled suspicions; absurd and unlikely suspicions, but if a normal person has them it is irrelevant, while if a judge has them and is convinced that they are credible then everything is more problematic.
However, both WADA and WORLD ATHLETICS were the civil parties in the trial, which, from the start of the criminal proceedings against Schwazer, they wanted to pass as suspects. And actually in the face of the latest dismissal request from the Prosecutor who did not blame Schwazer, but did not even believe that there had been any manipulation of the urine (for this reason the international sports institutions did not oppose), it seemed that this story was moving towards a Solomonic conclusion. And instead Judge Pelino made an unusual direct and unexpected attack that humanly would have infuriated anyone. WADA in its reply statement expressly stated that was shocked by “reckless and baseless accusations made by the judge against the organization” and that “WADA provided overwhelming evidence which was confirmed by independent experts, which the judge dismissed in favor of unsubstantiated theories”. Serious accusations, harsh answers, above all because WADA claims that the concentration of DNA detected in Schwazer’s urine is not abnormal, and believes it has proved it with the latest report by Prof. Pascali (Italian expert appointed by WADA) that Judge Pelino even considers false.

What can WADA and WORLD ATHLETICS do now? Can they sue the judge?
In fact, the GIP directly accuses WADA and World Athletics of hindering its investigations in order to cover up the manipulation of urine, but it cannot accuse them of the actual manipulation, there is no certainty about this: where, when, how, and who would have done it? The lawsuit against the judge does not seem practicable, even in the face of unfounded accusations. There are other legal instruments such as a referral to the CSM (Superior Council of Magistracy Italian, though that may be little influence) or appeal to judge measure abnormal or anomalous, this is being studied by lawyers. Or WADA will wait if these accusations really lead to investigations and the presentation of defensive briefs, it being understood that the accusations against WADA and WORLD ATHLETICS do not involve investigations as organizations, but rather that specific individuals (the experts of part, lawyers, officials) for specific charges that are yet to be verified. The strategy, however, could be different for WORLD ATHLETICS which, instead of counterattacking promptly, seems more intent on a wait-and-see tactic, given that it is more interested in using its energies on Schwazer’s possible appeal to the Swiss Federal Court.

How many chances does Schwazer have to return to racing? What are his options?
Possibilities very close to zero. He can follow the only path of making an appeal again to the Swiss Federal Court (the only one who can delete the disqualification of the TAS-CAS) but that request has already been rejected in 2020. The reasons for that rejection had already been deadly because Schwazer had not provided new evidence and even the RIS report always referred to the alleged manipulation made in 2016 before the TAS-CAS. The new appeal can be made on the basis of the same evidence as the previous one plus the dismissal order of Judge Pelino which would not change much since it is not even a definitive sentence. In addition, the Swiss Federal Court had already pointed out that Schwazer had not explained why the examination on DNA in urine had not been requested in the context of the trial before the TAS-CAS; a confirmation of how Schwazer tried to play it at “home” in Bolzano instead of asserting all his objections within the sports justice system.

Even in the very remote hypothesis that the Swiss Federal Court accepts an appeal, it could certainly suspend the disqualification, but would order a new trial again at the TAS-CAS in Lausanne, the same situation of the Chinese swimmer Sun Yang . Paradoxically, with the suspended disqualification Schwazer could qualify for the Olympics, maybe manage to win a medal, but then he would always have to face a new trial which, as happened in other previous cases, in all probability would confirm the 8-year disqualification again, also canceling the results of the races held in the meantime. All the technical times for submitting and evaluating the appeal, decision times, and in the event of acceptance if there will still be competitions available to make the minimum Olympic qualification must also be considered. In short, in any case the only way would seem already blocked or in any case desperate.

There is talk of a “pardon” from the IOC. It’s possible?
IOC and Federations can issue pardons as part of their disciplinary sanctions. However, this does not concern anti-doping sanctions, for which no grace, leniency or pardon is envisaged. Furthermore, the decision of Schwazer’s disqualification was issued by the TAS-CAS of Lausanne, whose only “superior” is the Swiss Federal Court. Beyond the fact that a pardon is not possible, if absurdly the IOC could give it in the anti-doping field it would be a chaos of requests from all over the world with continuous pressure on the Olympic Committee by the most influential states, a grotesque and unacceptable situation. In this imaginative hypothesis, Italy would not make a good impression.



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