Forget the European Championship currently held in France or the
upcoming Olympic Games in Rio. Doping scandals are making the headlines more than
ever in 2016. From tennis star Sharapova receiving a two-year ban for her use of
the controversial ‘meldonium’, to the seemingly never-ending doping scandals in
athletics. As if this was not enough, a new chapter
was added on 14 June to one of the most infamous and obscure doping sagas in
history: the Operación Puerto.
The special criminal appeal chamber,
the Audiencia Provincial, has held that the more than 200 blood bags of
professional athletes that have been at the center of the investigations since
2006 can be delivered to the relevant sporting authorities, such as the Spanish
Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee
(CONI). In other words, there is now a good chance that the identities of the
involved athletes might eventually be revealed.
This case note will analyze the court’s ruling and summarize its most
important findings. Given the amount of time passed since the scandal first
came to light (2004), the blog will commence with a short background summary of
the relevant facts.
The saga can be traced back to the interview by the Spanish sports
newspaper AS with the cyclist Jesus
Manzano in 2004. During the interview, Manzano admitted that he, as well as
other members of his team (Kelme), were involved in blood doping practices, and
denounced his team doctor Eufemiano Fuentes as the mastermind behind the
As a result of his declarations, Manzano became the victim of regular abuse by
the “professional cycling world” and even received death threats. Manzano
reported the death threats to the Guardia
Civil (a Spanish law enforcement agency), who saw itself obliged to
investigate the matter. The results
of the Guardia Civil’s investigation proved that the information provided by Manzano
regarding names, locations and practices were correct. However, the scope of
the Guardia Civil’s investigations
was limited due to the fact that, according to Spanish law in force at the
time, doping was not considered a criminal offence.
On 23 May 2006, several people were arrested, including doctor Fuentes,
who was accused of committing a “crime against public health” enshrined in Article
361 of the Spanish Criminal Code. After
his arrest, the Guardia Civil conducted domiciliary visits in the various
domiciles owned by Fuentes, in which it found over 200 blood and plasma
samples. The blood and plasma bags were labelled with coded names, in order not
to reveal the true identity of Fuentes’ clients. Nonetheless, it was clear that
Fuentes’ network was much more extensive than previously anticipated and that he
had hundreds of clients, from a variety of sports and nationalities.
The relevant SGBs, such as WADA, petitioned for the blood samples to be analysed
and all the identities revealed, with the aim of sanctioning the athletes
involved. The Spanish public authorities, however, denied the SGBs requests, claiming
that handing over the blood samples would breach the athletes’ right to privacy
and reiterating that athletes involved in doping practices were not (at the
time) committing any criminal offence according to Spanish law.
A long-awaited judgment was finally delivered by the Madrid criminal court on 29 April 2013, a judgment which raised
many eyebrows worldwide (see for example this critical analysis by the French newspaper Le Monde). Fuentes received a one-year prison
sentence for committing a crime against public health and was suspended for
four years from practicing sport medicine. More importantly, the court ordered
the destruction of the blood samples, as well as other pieces of evidence, such
as documents and recorded telephone conversations once the decision becomes
Given that the case was not about a doping offense but about a crime against
public health, the court argued, the investigation of the blood samples would
be in breach of the privacy rights of the athletes.
The judgment was appealed by several parties, including Fuentes and the
SGBs (AEPSAD, WADA, UCI and CONI). Fuentes demanded to be acquitted, whereas
the SGBs appealed the order to have the blood samples destroyed.
Sentencia Nº 302/2016 of 14 June 2016
The Audiencia Provincial made
its judgment public on 14 June 2016. The judgment consists of 23 different
appeals by different parties. This case note, however, will only analyze
section 18 (on the question whether blood is considered a medicine) and section
21 (regarding the blood and plasma samples).
Section 18 – Is blood a medicine?
The answer to this question was highly relevant for Fuentes’ appeal
against the prison sentence. Article 361 of the Spanish Criminal Code provides inter alia that a person who offers medicine
in unauthorized locations or
does not fulfill the relevant hygiene criteria, shall be punished with an
imprisonment from six months to three years.
Fuentes argued that blood extracted from an athlete, which is later injected
back into the athlete, was legally not considered a medicine in 2006.
The court firstly established that the Criminal Code does not legally
define “medicine”, meaning that the definition needed to be found in
such as the Medicine Law. This law stipulates that blood derivatives could be considered
medicine, but blood as a whole cannot. The
court also looked for a definition in EU law, more specifically EU Council Directive 98/381/CEE laying down special
provisions for medicinal products derived from human blood or human plasma.
Article 1, point 2, holds that whole blood, plasma or blood cells of human
origin are outside the scope of the Directive. Having established that the
blood and plasma samples found in Fuentes’ domiciles cannot be considered
medicine, the court concluded that the doctor could subsequently not be
punished for committing a crime against public health as stipulated in Article
361 of the Criminal Code. A punishment of any kind would be contrary to the “principle
Section 21 – blood and plasma samples
The RFEC, WADA, UCI and CONI wanted to see the destruction order of the
blood and plasma samples overturned and, instead, the samples delivered to them. Importantly, both the criminal court in first
instance and the Audiencia Provincial
recognized that a possible doping investigation by the SGBs after a handover of
the blood samples would be an administrative procedure, rather than a criminal procedure
such as in the case at hand.
However, the first instance court had also indicated that the SGBs could
not use the blood samples, because administrative sanctioning procedures do not
allow this type of evidence to be used. To reach this conclusion, the court in
first instance referred to an administrative law case involving disciplinary
proceedings against a magistrate. In that case, recorded phone conversations
were not deemed receivable evidence because of a breach of privacy, which would
infringe Article 8 of the ECHR. The court transposed this reasoning to Operación Puerto and held that using the
blood samples for an administrative proceeding was inadmissible.
The Audiencia Provincial did
not follow this reasoning. Instead it referred to criminal case law, which
established a difference between the recording of phone conversations on the
one hand and domiciliary visits on the other. So-called “casual findings”
during domiciliary visits of evidence for crimes that were not the ones the
visits were authorized for, can still be used as evidence. In fact, the blood and
plasma bags cannot be considered “casual findings”, since the public
authorities were authorized to undertake the domiciliary visits to find
evidence for an alleged crime against public health. Moreover, contrary to the recording
of phone conversations which is only authorized in case of a penal procedure,
domiciliary visits are measures that could also be authorized in administrative
In other words, this type of evidence
obtained in the framework of a criminal procedure can also be used in an
administrative disciplinary procedure, such as doping cases.
As regards the transfer of the blood and plasma samples to an SGB, the
court stated the following: In accordance with the provisions of the 2013
anti-doping laws, the samples can be handed over to the Spanish Anti-Doping Agency. The Agency would
need to submit a formal request to a court, and the court would consider the
request taking into account the principle of proportionality. The Audiencia
Provincial considers that a transfer of the blood samples could be proportionate
since it pursues the objective of fighting against doping. This is so because:
doping use is contrary to the ethical values of sport, which are fair play and
competition. Not allowing the transfer of the blood and plasma samples would
give the impression that doping is not really a problem and might indicate that
in sports the end justify the means.
On the day the judgment was released, AEPSAD expressed its satisfaction
with the Audiencia Provincial’s decision
and stated that it is studying the possible measures it can now take, either by
itself or together with the other SGBs referred to in the judgment. WADA too acknowledged the court “for having reached the
decision to provide anti-doping authorities with this crucial evidence”, but
also stated that it is “dismayed that it took so long to receive the decision”.
Finally, UCI regrets it had to wait this long for the decision,
but will now partner with WADA, the RFEC, AEPSAD and CONI, to determine the
legal options available with regards to analyzing the blood and plasma bags;
and, where applicable, pursuing anti-doping rule violations.
In its press release, UCI points to the crucial question that will need
an (un)satisfying answer: Can the SGBs still pursue anti-doping violations, or
is too late? Article 17 of the 2015 WADA Code enshrines that the
statute of limitations is 10 years. Coincidentally, it has been 10 years and
two months since the arrests of Fuentes was made and Operación Puerto started taking shape. It is therefore unlikely
that doping sanctions will be handed out on the basis of blood samples collected
during the period 2002-2006. But simply discovering the identity of the doped
athletes could have far-reaching consequences on its own. For example, when
Bjarne Riis admitted in 2007 that he used EPO during his victorious 1996 Tour
de France, the UCI was not able to sanction him anymore. However, the Tour de
France organizing organization (ASO) has removed him as a past winner. Similar
consequences are thinkable with the discoveries of the identities in the Operación Puerto case. Furthermore, Operación Puerto, widely recognized as
the darkest chapter in the history of Spanish professional sport, can only
truly be closed when the identities of the athletes are revealed. Publicly
naming and shaming the athletes is an important mean to create a fairer
competition and to prevent other athletes from doping themselves.
 The actual interview
with AS is not available anymore. A
summary of the interview can be read at http://velonews.competitor.com/2004/03/news/more-from-manzano-its-like-an-open-bar_5763.
de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 7. A few months later,
in 2006, Article 361bis was added to the Spanish Penal Code, a provision that
made doping a criminal offense.
 Cyclists, such as
Jan Ullrich, Ivan Basso, Michele Scarponi and Óscar Sevilla were known to be among
Fuentes’ clients, for the most part thanks to journalist investigations. The
German cyclist Jörg Jaksche admitted voluntarily, and Spanish cyclist Alejandro
Valverde received a suspension by the Italian Olympic Committee CONI in 2010.
 As can be seen from
the 176-page judgment, the names of the suspects have been changed. For example,
primary suspect Eufemanio Fuentes is called “Juan Máximo”.
del Juzgado Penal de Madrid Nº 144/203 de 29 de abril 2013, pages 175-176.
 A hospital, for example,
would be considered an authorized location. A cycling team bus, or a hotel
room, could be considered unauthorized locations for the offering of certain
types of medicine.
361 Código Penal: “El que fabrique, importe, exporte, suministre, intermedie,
comercialice, ofrezca o ponga en el mercado, o almacene con estas finalidades,
medicamentos, incluidos los de uso humano y veterinario, así como los
medicamentos en investigación, que carezcan de la necesaria autorización
exigida por la ley, o productos sanitarios que no dispongan de los documentos
de conformidad exigidos por las disposiciones de carácter general, o que
estuvieran deteriorados, caducados o incumplieran las exigencias técnicas
relativas a su composición, estabilidad y eficacia, y con ello se genere un
riesgo para la vida o la salud de las personas, será castigado con una pena de
prisión de seis meses a tres años, multa de seis a doce meses e inhabilitación
especial para profesión u oficio de seis meses a tres años”.
de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 61.
25/1990, de 20 de diciembre, del Medicamento.
de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, pages
 Ibid., pages 69-73.
 Ibid., pages 76-77.
 Ibid., pages 78-79.
 Ibid., pages 80-81.
33(5) de la Ley Orgánica 3/2013, de 20 de junio, de protección de la salud del
deportista y lucha contra el dopaje en la actividad deportiva: “La Agencia
Española de Protección de la Salud en el Deporte podrá solicitar que le sean
remitidas aquellas diligencias de instrucción practicadas que sean necesarias
para la continuación de los procedimientos sancionadores. Dicha petición será
resuelta por el Juez de instrucción, previa audiencia de los interesados, en el
plazo de 20 días. En dicha audiencia los interesados podrán solicitar que sean
también remitidos los documentos que les puedan beneficiar. La resolución del
Juez será plenamente respetuosa con el principio de proporcionalidad,
entregando a la Administración, mediante resolución motivada, únicamente las
diligencias que la aplicación de tal principio autorice”.
de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 83.