On April 22, 2022, the Italian Constitutional Court issued Decision No. 105, declaring unconstitutional a phrase in a Criminal Code provision concerning the use or administration of drugs or other substances for the purposes of altering the competitive performance of athletes.
The provision at issue, paragraph 7 of article 586-bis of the Code (which had been introduced by article 2, paragraph 1(d) of Legislative Decree No. 21 of March 1, 2018), reads as follows:
Anyone who markets drugs and pharmacologically or biologically active substances included in the classes indicated by law that are suitable for modifying the body’s psychophysical or biological conditions in order to alter the competitive performance of athletes or are capable of changing the results of the controls on the use of these drugs or substances, through channels other than pharmacies open to the public, dispensaries open to the public, and other facilities that hold drugs directly intended for use on patients is punishable by imprisonment from two to six years and with a fine of € 5,164 to € 77,468 [about US$5,441 to $81,618].
The court found the phrase “in order to alter the competitive performance of athletes” unconstitutional.
The Constitutional Court reviewed a constitutional legitimacy question raised by the Supreme Court of Italy (Corte di Cassazione), Third Criminal Section, on September 21, 2020, regarding the provision at issue. The Supreme Court had raised the question during its review of a decision by the Appellate Court of Lecce that had, in turn, confirmed the decision of the Ordinary Tribunal of Brindisi sentencing a criminal defendant to incarceration for one year and 10 months and a fine of 6,000 euros (€) (about US$6,327) “for having marketed, through delivery to numerous individuals practicing body building who attended the gym he owned – two of whom participate in public body-building competitions –, specialized medicines with anabolic action [that were obtained] through unofficial channels and … the preparation of falsified medical prescriptions.” (Decision, Statements of Fact, No. 1.1, para. 1.)
In particular, the Supreme Court had noted that the legislative history of the challenged provision showed that the administration of doping substances required “the specific wrongful aim of ‘altering the competitive performance of the athletes.’” (Decision, Statements of Fact, No. 1.1, para. 9.) However, as the appellate court did not analyze specific wrongful intent as required by the law, the Supreme Court had held that the lesser penalty should have been applied. (Decision, Statements of Fact, No. 1.2.)
The Supreme Court also mentioned that at the time when the crime of transacting in doping substances took place, Law No. 376 of 2000, article 9, paragraph 7 did not require the “specific wrongful ‘aim of altering the competitive performance of athletes.’” (Decision, Statements of Fact, No. 2.3, para. 1.) However, successive legal amendments to Law No. 376 introduced the requirement of specific wrongful intent. (Decision, Statements of Fact, No. 2.3, para. 2.)
Reasoning of the Constitutional Court
The Constitutional Court recalled that, historically, the legislative provisions dealing with doping differed significantly in relation to both the type of the offending conduct and the subjective element of wrongful intent in order to punish. (Decision, Statements of Law, No. 4.2, para. 6.) In fact, Law No. 376, article 9, paragraph 1 required specific wrongful intent (dolo specifico) directed to the aim of altering the competitive performance of athletes, whereas the crime of transacting in doping substances required only general wrongful intent (solo dolo generico). (Decision, Statements of Law, No. 4.2, para. 7.)
In addition, the court embarked on a complex analysis of the principle of legislative reservation, according to which the legislative branch may grant to the executive branch specific, limited powers to regulate a matter that has been legislated. The purpose of this analysis was to highlight that in introducing the phrase “in order to alter the competitive performance of athletes” to article 586-bis, paragraph 7 of the Criminal Code, the executive branch had exceeded the scope of the powers granted by the legislation, unduly “enrich[ing] the description of the crime of illicit trade in doping substances” (Decision, Statements of Law, Nos. 6.3, paras. 4 & 9, para. 1), thereby violating the binding indications of the original law and article 76 of the Constitution (Decision, Statements of Law, No. 12, para. 5).
Decision of the CourtAccordingly, the Constitutional Court declared the phrase “in order to alter the competitive performance of athletes” in article 586-bis, paragraph 7 of the Criminal Code unconstitutional. (Decision, Statements of Law, No. 13, para. 1.)