Decision Number 02/2016 PANEL OF THE IAAF ETHICS COMMISSION 7 January 2016 The Honourable Michael J Beloff QC (Chairman) Mr Akira Kawamura Mr Thomas Murray In the matter of: (1) Valentin Balakhnichev, (2) Alexei Melnikov, (3) Gabriel Dollé and (4) Papa Massata Diack and the IAAF Code of Ethics DECISION Introduction 1) The central issue in this case is whether each of the Defendants was in breach of various provisions of the IAAF’s Code of Ethics (the “Code’’) by their involvement in the suppression of findings of anti-doping violations by the female Russian marathon runner, Lilya Shobukhova (“LS”), and the exaction of monies from her as the price to pay for enabling her, by virtue of such suppression, to compete in athletics competitions. The Panel has come to the clear conclusion that the alleged breaches are made out. 2) The Defendants are: a) Valentin Balakhnichev (“VB”), former President of the All-Russia Athletic Federation (“ARAF”) and Honorary Treasurer of the IAAF; b) Alexei Melnikov (“AM”), former Senior ARAF Coach for long distance walkers and runners; c) Gabriel Dollé (“GD”), former Director of the IAAF’s Anti-Doping Department; and d) Papa Massata Diack (‘’PMD’’), former marketing consultant to the IAAF and son of the IAAF’s then President, Lamine Diack (“LD”). 3) The case comes before the Panel in the manner prescribed by the statutes and procedural rules of May 20151 (the “Rules”) of the IAAF’s Ethics Commission (the “EC”) (to be renamed the Ethics Board)2 as hereinafter set out. 1 Revised on 26th November 2015 (the “revision”). 2 For convenience the former name will be used in this Decision. 1 Procedural Background 4) In April 2014, the EC received a complaint3 in relation to the matter referred to in paragraph 1 above from Sean Wallace-Jones (‘’SWJ’’) who is the Senior Manager, Road Running of the IAAF. 5) On 1 July 2014, the Chairman of the EC, the Honourable Michael J Beloff QC, determined that there was a case fit for investigation and appointed the Right Honourable Sir Anthony Hooper, (“Sir Anthony”), a former Lord Justice of the Court of Appeal of England and Wales, to investigate the allegations made and issues raised by the complaint. 6) On 5 August 2015, Sir Anthony submitted his investigation report to the EC recommending that disciplinary charges be brought against all four Defendants for various alleged breaches of the Code. 7) On 14 August 2015, Kevan Gosper, a member of the EC, who had reviewed the outcome of the investigation and the investigator’s recommendations, endorsed the recommendations, in consequence of which the Chairman directed that adjudicatory proceedings be commenced. 8) On 14 September 2015, the Chairman appointed the Panel consisting of himself, Mr Akira Kawamura and Mr Thomas Murray. 9) On 14 September 2015, charges (the “Charges”) were sent to the Defendants, who thereafter submitted their defences and supporting evidence in accordance with a schedule directed by the Chairman of the Panel: a) In accordance with the Chairman’s directions, and a subsequent extension of time, GD’s defence was provided on 25 October 2015 but his defence was embellished in further correspondence with Sir Anthony up to and including on 15 December 2015. b) AM’s defence and exhibits were provided on 26 October 2015. He provided further documentation on 5 November 2015. c) VB’s defence and exhibits were provided on 26 October 2015. d) PMD’s defence was provided on 26 October 2015; his supporting evidence was provided on 6 November 2015. Law Procedure and Approach 10) Generally, the Rules appear to be based on an inquisitorial rather than an adversarial model; notably there is no provision requiring, as distinct from permitting, appointment 3 A complaint was at that time necessary for the initiation of EC disciplinary procedures but has not been so since the revision. 2 of a separate prosecutor4 . Specifically as regards the Panel’s adjudicatory function, Rule 13(16) provides: “The Panel shall in each proceeding (i) determine its procedure in accordance with these Rules and (ii) determine any other procedural matters arising in the course of the Proceedings that are not set out in the Rules, in accordance with the principles of natural justice. In particular, the Panel may in appropriate cases appoint a prosecutor or counsel to the Panel to present the case against the parties, or invite the investigator to present his or her conclusions to the Panel. The Panel may also conduct the Proceedings in an inquisitorial manner.” The Panel has directed itself in accordance with that provision. 11) Over 16-18 December 2015, a hearing took place in London. None of the Defendants appeared in person at the hearing: a) VB appeared by video link and was represented by Mr Artem Patsev, also by video- link. b) AM appeared by video link as did his two witnesses5. c) GD appeared by video link. d) PMD was represented at the hearing by Mr Christopher Moore and Ms Hannah Rogers of Cleary Gottlieb Steen & Hamilton LLP. e) Sir Anthony attended in his capacity as investigator and, at the invitation of the Panel, made an opening statement duly drawing attention to the salient features of his report and his conclusions. f) VB, AM (and his witnesses) and GD were all questioned by the Panel. LS and her husband Igor Shobukhov (“IS”) also appeared by video link and were questioned by the Panel and cross-examined by Mr Patsev. g) The Panel was assisted before and during the hearing by the two Legal Secretaries to the EC, Mr Tom Mountford and Ms Jana Sadler-Forster. 12) The charges against each of the Defendants are set out in Appendix A to this decision. 13) In order to determine whether the charges are made out the Panel must direct itself in accordance with the Rules which are themselves governed by and to be construed in accordance with Monegasque law (Procedural Rule 17(5)). They establish the following relevant principles: (i) The burden of proof lies upon the EC; 4 The relative merits of each are discussed in J.R.S. Forbes Justice in Tribunals, 3rd ed., pp. 199-204. 5 Whose evidence is discussed in ¶28) below. 3 (ii) The standard proof is set out in Rule 11(7) which provides that, “The standard of proof in all cases shall be determined on a sliding scale from, at minimum, a mere balance of probability (for the least serious violation) up to proof beyond a reasonable doubt (for the most serious violation). The Panel shall determine the applicable standard of proof in each case”; (iii) The approach to evidence is that set out in Rule 11 which provides, so far as material: “Types of evidence (1) The Ethics Commission shall not be bound by rules governing the admissibility of evidence. Facts relating to a violation of the Code may be established by any means deemed by the “Panel” hearing the case (the Panel) to be reliable. (2) Types of evidence shall include: the investigator’s report and other forms of evidence such as admissions, documents, oral evidence, video or audio evidence, evidence based on electronic media in any form and any such other form of proof as the Panel may deem to be reliable. Inadmissible evidence (3) Evidence that obviously does not serve to establish relevant facts shall be rejected. Evaluation of evidence (4) The Panel shall have the sole discretion regarding evaluation of the evidence. (5) […] (6) The Panel may draw an inference adverse to the party if the party, after a reasonable request to attend a hearing, answer specific questions or otherwise provide evidence, refuses to do so.” 14) In application of those principles in their legal context, the Panel determines as follows: (i) The charges against VB, AM and PMD are of the most serious kind involving as they do a form of blackmail. They must therefore under the present rules be proved beyond reasonable doubt, albeit the conventional standard for sports disciplinary proceedings is that of “comfortable satisfaction” which in the context of sports law, has its origins in Andrei Korneev v International Olympic Committee’6. (ii) The charge against GD is of a lesser degree of seriousness. It must therefore be proved to the standard of comfortable satisfaction, which is lower than the criminal but higher than the civil standard of proof7. 6CAS OG 003-4, 1996 (see discussion, in Beloff et al on Sports Law, 2nd edition (“Beloff”) ¶¶7.89-7.96. 7 Beloff, cit sup; see also World Anti-Doping Code, (“WADC”) Article 3.1. 4 (iii) Although the burden of proof in point of law lies upon the EC, the evidential burden may shift if the Investigator’s report (or other admissible and reliable evidence) establishes a case for a Defendant to answer. (iv) An unjustified refusal by a Defendant to attend a hearing may give rise to the Panel drawing an adverse inference against him. The importance of that provision is that it partly compensates for the circumstance that, unlike criminal courts, the Commission’s investigators have no powers to compel documents or cooperation and a Panel of the Commission has no power to compel a defendant to appear before it. Such provision is not incompatible with the European Convention on Human Rights (“ECHR”), which was ratified by Monaco on 30 November 2005 and came into effect in the Principality on the same date. There is a consistent line of jurisprudence from the European Court of Human Rights (‘’ECtHR’’) that the right to silence or the privilege against self-incrimination, in so far as either applies to disciplinary proceedings8, does not prevent a court or tribunal from drawing inferences from the failure of a defendant to provide an explanation for strong circumstantial evidence against him.9 Nor is the presumption of innocence in criminal proceedings enshrined in Article 180 of the Criminal Procedure Code of Monaco infringed by the drawing of such inference.