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[145] Series Lectures of Criminal Law: í░The Criminal Law Questions of Dopeí▒ was successfully held

  On 19 November 2018, a lecture on " The Criminal Law Questions of Dope " was held in room 917 of Mingde Building in Renmin University of China (RUC). The lecturer was Prof. Holm Putzke of University of Passau, and associate professor Chen Xuan of RUC Law School severed as the host. Prof. Feng Jun of the criminal law science center, Liu Xiaoxiong, the chief representative of Hanns Seidel Foundation, the project officers Shi Xiaodong, Angie Hart, and the translator Xiao Jun also attended the lecture.

  Before the lecture, Prof. Chen introduced Prof. Putzke, who showed sincere thanks to him and Prof. Feng. The lecture consisted of four parts: (1) Introduction: Current situations of sports events. (2) Criminal punishment for taking dope in Germany. (3) Anti-doping Law of Germany. (4) Relevant questions of Criminal Procedure Law.

(1) Introduction: Current situations of sports events

  Prof. Putzke asserted that the excitement that audience could feel when watching competitive sports came from the sports, original characteristics and their understanding for it. The aim of competitive sports was to reach a quicker, higher and farther level in competition, which was the nature of sports events. Meanwhile, sports represented health, fair and team spirit, so the best players would be examples for people because of his outstanding achievement and fair spirit. Besides, he emphasized that the influence fair brought to sports was related to commercialization. For example, Advertising and sports were affecting each other.

  Under such background, the tension existing between the natural limitation of human body and huge economic benefit promoted many people to behave better and break through the limitation, which would draw forth the topic today: The Criminal Law Questions of Dope.
  In his opinion, the reasons why we shouldn't take dope included: (1) it did harm to health; (2) it was unfair to other athletes; (3) it would damage the ethicality of sports events; (4) it was a deception for spectators and sponsors. The Anti-doping Law of Germany also mentioned these aspects.

(2) Criminal punishment for taking dope in Germany

  Prof. Putzke introduced the development history of criminal punishment for taking dope in Germany. In the 1960s, because some athletes managed to put themselves into a more favorable position than others by taking dope, Germany began to consider the criminal punishment for taking dope in sports events. At the very beginning the government didní»t choose to do so as they thought the punishment should be carried out by sports association but not the country. However, on one hand, the sports association was unwilling to punish, on the other hand, such punishment was difficult to go on due to the close relationship between the sports association and athletes. Then, in 1989, EU created the anti-doping treaty and Germany also established criminal punishment for taking dope in sports events, including taking dope, making a prescription for dope taker and other behavior relevant to use dope in events, in 1997. In 2005, the treaty banning the possession of dope stipulated by United Nations Educational, Scientific and Cultural Organization came into force and was not allowed to take effect in Germany until 2007. The Anti-doping Law was put into effect officially in Germany in 2015, before which Germany dealt with relevant problems according to Drug Act because the legislator at that time thought people should be responsible for themselves and taking dope was only related their own free will and health. Before Anti-doping Law was introduced, people taking dope would be punished only when they were cheating. In specific, in light of top athletes had to declare that they did not take dope when signing contract with sponsors or events organization, once they violated that declaration, the other party's benefit would be harmed.
  Nevertheless, after Anti-doping Law came into force, the national situation in Germany had changed a lot. Prof. Putzke told us the basic information of the law. The first part was its purpose of legislation, then was the behavior banned by law, the penalty for illegal behavior, the final part was about the protection of data.

(3) Anti-doping Law of Germany

  Prof. Putzke maintained that it was wise for legislators not to add a catalogue about prohibited substances and methods in law in terms of the legislative skill. Because it would take a long time to go through the whole procedure for the law while the regulations didn,t need so much time. Compared with the former law, the new regulations stipulated that people taking dope themselves would be punished, too. The rule could be divided into three dimensions: (1) holding dope and with the aim of taking part in events; (2) taking dope and with the aim of taking part in events next time; (3) taking dope and then taking part in events. The three behaviors above all had to be punished.
  On account of the regulation would punish the state of possession, it led to many controversies. Some thought it was improper to punish because it had some time between holding dope and taking part in sports, which would not damage the ethicality of the events. Criminal Law should be the last method and punishing people when they only had the will to do something illegal might be too early. Prof. Putzke introduced some detailed problems relevant to the regulation to us.
  First, "organized sports events" meant the sports race or sports meet held by national or international sports organization, and should obeyed the relevant rules. Some famous sports events we all knew included Olympic Games, Paralympics and National League One. Sometimes friendly matches would also in this scope. The events which were not in that field included private matches, sports meet in primary schools, junior high schools, senior high schools and universities.
  Besides, the subjects received punishment were limited to top athletes, which made the definition of "top athletes" become a question. According to the regulation, it was the anti-doping center or organization of every country that defined "top athletes". The athletes that in the anti-doping test list should be monitored and they would be the "top athletes".
  Therefore, there were two ways to confirm the standard: (1) The international level: the standard of World Anti-Doping Agency (WADA); (2) German level: the standard of National Anti-Doping Agency (NADA).
  However, some athletes didn't appear in the list but were still recognized as top athletes and legislators thought they also should be restricted by law. If they directly or indirectly got substantial income in sports events they should also belong to top athletes. "The directly or indirectly income" included appearance fee, competition prize, sponsorship fee and so on.
  Prof. Putzke pointed out that whether we had "definite enough way" to ensure what degree did the athletes, income reach in order to let them in the level of top athletes was a great problem, from the perspectives of criminal substantial law and procedural law. In terms of the judgement of Federal Constitutional Court of Germany, any law or regulation should be clear enough for every citizen to know whether their behavior was allowed or not when looking at it. But the legislators of Germany thought it was too complex to stipulate so detailed content in the law and we had to explain the law when trying to elaborate it. Plus, they did not definite the amount of income.

(4) Relevant questions of Criminal Procedure Law

  Prof. Putzke raised a question: whether could criminal law punish athletes when the sports association they belonged to had already punished them? Federal Constitutional Court thought the reason why a country had the qualification to punish was that disciplinary punishment was not in the sense of criminal law and "non-repeated penalty" only targeted at criminal law. However, professor asserted that some professional or industrial disciplinary punishment would be very strict, for example, athletes taking dope would not only receive money punishment but be prohibited from participating in races, which might sentence them to death in career.
  Due to the lack of binding force among different subjects, industry associations and judges might make diverse punishments. Prof. Putzke believed it had something to do with the following reasons: (1) Standard of proof of WADA and NADA were different. Some needed "exclude all reasonable doubt", while some required to be "highly convincing". (2) The independence of judges. There might be some situations that industry association thought didní»t have to punish while judges held the opposite view in practice, which led to controversies among people. This also about the uniformity of the law.
  Then, professor also talked about the exclusion of illegal evidence. In light of the principle that no one had to prove his own sin, if athletes were unwilling to test by blood sampling, the admissibility of evidence would be affected. The autonomy of blood test would influence the definition after submitting evidence. Prof. Putzke also suggested adopting exclusion of illegal evidence principle in his law remarks.

(5) Summary

  Finally, Prof. Putzke summarized that the litigation about anti-doping hadn,t appeared in German judicial practice after Anti-doping Law was introduced. In his opinion, punishing a self-responsible behavior was not legal and not convincing. The promulgation of the law also brought other questions like how to judge and define, for example, why it was the top athletes, duty to behave like a model while the undergraduate athletes didní»t have the same responsibility?


  During the Q&A, Prof. Feng Jun proposed questions including the punishment of self-mutilation and suicide as well as the decriminalization of marijuana in Canada and the countermove of dope in Germany these two different legislation trends. Prof. Chen Xuan asked about the decriminalization or constitutionality of the provision and the relationship between traditional legal interest concept and the punitive range of provision. Prof. Putzke responded respectively and clearly.

  In the end, Prof. Chen Xuan summarized that the discussion of frontier questions was always connected with basic theory, for example, the connection between Anti-doping Law and "the concept of legal interest" as well as "actors, self-responsibility" and other questions. He thanked Prof. Putzke for giving a wonderful and unforgettable lecture and expected him to visit RUC next time. Prof. Chen also showed sincere gratitude to Mrs. Xiao Jun for her professional and accurate translation. The lecture ended in warm applause.

Editor: ZHANG Jiayun

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