Federal Administrative Court, Decision C-3007/2021 from 3 June 2022
15 July 2022 – In the present case, the Federal Administrative Court examined whether the lower court (Swiss Sport Integrity Foundation) was right to order the confiscation and destruction of the 150 dehydroepiandrosterone (DHEA) tablets of 50 mg that had been retained.
The complainant claimed that he was not able to participate in sport and competitions due to his health situation and therefore did not use DHEA for doping purposes in sport. In addition, he argued that there was an exception to the ban on importing doping substances based on a medically legitimate purpose. The Sports Promotion Act (Sportförderungsgesetz, SpoFöG) aims to restrict the availability of doping substances by providing for the confiscation and destruction of doping substances as administrative measures against doping, irrespective of any criminal proceedings (Art. 20 para. 4 SpoFöG). Thus, the acquisition of DHEA as well as its import into Switzerland falls under the import prohibited by the SpoFöG, irrespective of any sporting activity on the part of the complainant. This import ban as well as the ordered measures, confiscation and destruction, are aimed at combating doping – in contrast to a criminal case, which requires intent with regard to the purpose of doping.
Art. 20 para. 4 SpoFöG empowers the lower court to order the confiscation and destruction of doping substances as a measure to combat doping. It follows that the lower court may refrain from confiscating and destroying doping substances if they are used for legitimate medical purposes (exception). In this context, the Federal Administrative Court stated that a doctor licensed in Switzerland who was familiar with Swiss treatment and drug distribution practices confirmed the existence of a medically legitimate purpose by means of a medical prescription. In contrast, the confirmation issued after the import is as a subsequent attempt to legitimise an inadmissible act. In the present case, the Federal Administrative Court agreed with the lower court that no prescription had been issued prior to the importation and that the doctor had merely stated that the complainant had taken DHEA at a certain point in time and that he had observed an impact on the complainant's state of health.
Therefore, the Federal Administrative Court found that the lower court had been correct in ordering the confiscation and destruction of the 150 tablets of DHEA that had been withheld.
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