Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege);Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

George Nicolaou;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant was born in DATE in GPE , GPE .

The applicant was the owner and the sole shareholder of ORG . , a company initially founded as a trading company on CARDINAL DATE ( “ the company ” ) . Further to the expansion of its scope of activity , the company changed its registered names CARDINAL times , to be finally registered on DATE as “ ORG . ” Its expansion need and a shortage of lending opportunities from the commercial banks in the country led the applicant and his company to take loans from individuals , beginning on an unspecified date in DATE . The loan agreements were concluded under LAW .

The process of taking loans continued until DATE and was rolled out across the country . During this time , the authorities had not sought to intervene in order to control or stop the process . Furthermore , the company complied with the payment of taxes and levies to the competent tax authorities .

In DATE GPE was hit by civil unrest owing to the collapse of the alleged pyramid schemes which had been established during DATE . Consequently , the ORG intervened and passed legislation .

On DATE LAW ( “ Act no . CARDINAL ” ) was enacted ( see “ Relevant domestic law and practice ” below ) . On DATE ORG was passed . The company was made subject to the new legislation and administrators were appointed by the Government .

On DATE ORG was amended ( “ Act no . CARDINAL ” ) . LAW no . CARDINAL precluded the criminal prosecution of persons connected with non - banking entities until the conclusion of the compulsory administration proceedings . At the relevant time , no list of persons connected with non - banking entities had been adopted by the Government . A list was adopted only on DATE and the applicant ’s name did not appear on it .

The administration process was to be conducted in CARDINAL phases . During the first phase the administrators would assume full control of the company . An inventory of the company ’s assets would be compiled and a plan of action would be prepared for the recovery of the assets . An audit would be conducted by qualified auditors to be appointed by the Government . During the second phase the administrators would proceed with the sale of the company ’s assets and assist in the redistribution process to its creditors . It would further prepare a final report for the Government and close the proceedings .

On DATE the Government , following the sale of the company ’s assets , adopted a decision on the redistribution of financial assets to the applicant company ’s creditors , on the basis of a coefficient . The proceeds collected from the sale of assets totalled CARDINAL NORP leks ( “ ALL ” ) , approximately CARDINAL,CARDINAL,CARDINAL GPE Dollars ( “ USD ” ) at the relevant time . The outstanding debt of the company remained at ALL PERSON , MONEY at the relevant time .

In a letter of CARDINAL DATE the administrators informed ORG that the total number of creditors was CARDINAL , of whom CARDINAL had benefited from the redistribution process . To date , the process is ongoing for the remaining creditors .

A detailed description of the facts concerning the compulsory administration proceedings can be found in the case of ORG . and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE .

On DATE the administrators requested that the applicant be criminally prosecuted for deception . On DATE the prosecutor charged the applicant with deception ( mashtrim ) , committed in collusion with others , and ordered his pre - trial detention . The applicant was arrested on DATE .

On DATE the prosecutor requested the validation of the applicant ’s detention for an unlimited period . On DATE the lawfulness of the applicant ’s arrest was confirmed by ORG ( “ the ORG ” ) . While the court found that the charges were based on a reasonable suspicion that the applicant had committed an offence , it stated that the material evidence submitted was not compelling ( ... PERSON , PERSON u njoh me materialet e çështjes , çmon se akuza e prokurorit bazohet në një dyshim të arsyeshëm , por provat e paraqitura nuk janë bindëse ) and ordered the applicant ’s detention for a period of DATE only .

On DATE the prosecutor appealed against ORG decision , contesting the duration of the detention order and contending that there existed sufficient evidence to justify the applicant ’s detention for an indefinite period . On DATE , the applicant lodged an appeal directly with the then ORG , alleging that his arrest had not been based on conclusive evidence ( “ the first appeal ” ) . He also contended that he could not be prosecuted on the basis of LAW no . CARDINAL .

On CARDINAL DATE ORG ( “ ORG ” ) upheld the prosecutor ’s appeal and ordered the applicant ’s indefinite detention . No copy of the decision was submitted to ORG . On an unspecified date the applicant appealed that decision to ORG ( “ the second appeal ” ) .

On DATE section CARDINAL of Act no . CARDINAL was further amended to allow the criminal prosecution and trial of persons connected with non - banking entities ( “ Act no . CARDINAL ” ) . It precluded the commencement of civil proceedings .

On DATE ORG declared the applicant ’s second appeal inadmissible as the grounds of appeal fell outside the scope of LAW ( “ the ORG ” ) .

As ORG had not examined the applicant ’s first appeal of CARDINAL DATE , on an unspecified date the applicant requested information about its outcome from ORG . On DATE ORG dismissed the first appeal on the ground that the applicant ’s case had acquired the force of res judicata in the light of its decision of DATE . The applicant complained of the bench ’s lack of impartiality , as the same judges had examined his first and second appeals on DATE and CARDINAL DATE respectively . His request was rejected by ORG .

On an unspecified date the applicant appealed to ORG . He complained that his arrest had been contrary to LAW no . CARDINAL . Moreover , he contended that his first appeal to ORG had been examined after the expiry of the DATE time - limit prescribed by law . He did not raise any issue as to ORG lack of impartiality .

On DATE ORG dismissed the applicant ’s appeal . It found that ORG had stayed the examination of the applicant ’s first appeal until ORG had decided on the prosecutor ’s appeal . The first appeal had been examined after the completion of those proceedings and the matter had been found to constitute res judicata . Insofar as his complaint relied on LAW no . CARDINAL , ORG found that “ ... the provision [ section CARDINAL ] ... is more characteristic of an administrative order than a criminal procedural provision . As such , it is in violation of constitutional provisions as it constitutes interference by the legislature with the judiciary , impinging upon the latter ’s independence . The non - institution of a criminal prosecution while the compulsory administration proceedings were ongoing , stripped the prosecutor ’s office of its constitutional duty to protect the general interests of society , the legal order and ORG rights and , in so far as particular cases were concerned , [ section CARDINAL ] rendered the judiciary dependent on the executive branch of power . Faced with such a provision , the prosecutor ’s office decided to respect constitutional obligations by sidestepping the said provision ’s requirements ” ( ... neni CARDINAL ... ka patur më shumë karakterin e një urdhërimi administrativ se sa të një norme procedurale penale . Duke patur këtë natyrë , ajo ka qenë në kundërshtim me dispozitat kushtetuese sepse ishte ndërhyrje e pushtetit legjislativ në atë gjyqësor , duke cënuar pavarësinë e këtij të fundit . PERSON i proceseve penale për aq kohë sa do të vazhdonte kontrolli i firmave piramidale i hiqnin mundësinë organeve të prokurorisë të zbatonin detyrat kushtetuese të mbrojtjes së interesave të përgjithshme të shoqërisë , të rendit juridik dhe të të drejtave të shtetasve dhe , për çështje konkrete , e bënin të ndërvarur pushtetin gjyqësor nga ai ekzekutiv . Duke qenë para një dispozitë të tillë , prokuroria ka pranuar të respektojë detyrimet kushtetuese , duke mënjanuar urdhërimet e dispozitës në fjalë . ) .

A dissenting opinion of ORG H.D and PERSON stated that , unless and until LAW no . CARDINAL was declared unconstitutional , that law precluded a criminal investigation and court proceedings against the applicant .

On an unspecified date following ORG decision of CARDINAL DATE , the applicant sought a review of his detention order before ORG . It appears that the request was not examined .

On DATE the prosecutor decided to extend the time - limit for completion of the criminal investigation by DATE , until DATE . It does not appear that the extension of the time - limit was validated by the court .

On DATE the applicant complained that his detention was unfair , by letters sent to the President of the Republic , the Prosecutor General and the President of ORG .

On DATE the applicant further complained that his detention was unfair , by letters to ORG and the President of ORG . He sought a review of his detention .

On DATE the prosecutor decided to extend the time - limit for completion of the criminal investigation by a further DATE , until DATE . On DATE ORG validated the prosecutor ’s decision , but extended the time - limit until DATE only . It reasoned that the need to verify voluminous information concerning the complex business activities of the applicant ’s company constituted reasonable grounds for his detention . On DATE an appeal by the applicant against ORG decision was declared inadmissible by ORG .

On DATE the applicant requested a review of his detention and his release from prison .

On DATE the applicant requested the prosecutor to conduct a number of investigative measures , including producing an accounting report on the financial situation of his company . On DATE , the prosecutor charged the applicant under LAW ( “ the ORG ” ) with the additional new criminal offence of establishing a criminal organisation . It does not appear that ORG confirmed new time - limits in respect of the second charge .

On DATE ORG dismissed the applicant ’s request of DATE . Since the applicant had been charged with establishing a criminal organisation on DATE , a new period of DATE of pre - trial detention had started to run from that date .

On DATE the applicant appealed directly to ORG , which had replaced ORG after the NORP Constitution ’s entry into force on DATE . He stated that , since his company had been placed in compulsory administration , the need for his detention had diminished . He also referred to his state of health . On DATE ORG dismissed his appeal as unfounded .

On DATE the prosecutor decided to extend the time - limit for completion of the criminal investigation by DATE , until DATE . It does not appear that ORG confirmed the new time - limit . The decision was communicated to the applicant on DATE .

On DATE the applicant requested that his detention order be reviewed .

On DATE the prosecutor decided to appoint CARDINAL experts to prepare an accounting report . They were tasked with providing information on the following CARDINAL points : ( i ) the total number of creditors of the applicant ’s company ; and ( ii ) the applicant ’s company ’s overall liabilities . The applicant requested that the experts also provide information on a number of other points , such as : the determination of the value of the company ’s assets at the time it had been prohibited from taking loans ; the determination of the amount of taxes and duties paid ; the financial situation of the company at the time it was placed in compulsory administration ; the determination of the company ’s bank deposits ; the determination of the amounts withdrawn and the company ’s obligations towards third parties ; and the proceeds resulting from the sale of the company ’s assets . It would appear that all the applicant ’s requests were rejected by the prosecutor .

On DATE the applicant complained to ORG about the refusal of his requests . On DATE the Prosecutor General replied that the applicant ’s allegations were unfounded .

On DATE the experts submitted their report , according to which the number of creditors was CARDINAL and the company ’s total liabilities were ALL CARDINAL , the equivalent of ORG CARDINAL,CARDINAL,CARDINAL . Their estimates were based on the information that had been previously deposited with and processed by ORG ( PERSON ) .

On DATE the applicant was given access to all the documents collected during the criminal investigation and on DATE he was committed to stand trial .

On DATE a bill of indictment was lodged with ORG , according to which the applicant was accused of having committed the criminal offence of deception CARDINAL times .

At the hearing of CARDINAL DATE CARDINAL of the CARDINAL experts declared that the report had been based on the evidence obtained by ORG . The experts had not , however , relied upon the report produced by the firm of auditors appointed by the Government on DATE , which had calculated the applicant ’s company ’s liabilities at ORG CARDINAL . They had not been able to estimate the monetary value of the property owned by the applicant ’s company or its ability to repay the outstanding debts , as this fell outside their terms of reference . In the calculation of the amount , the experts had deducted the capitalised interest .

On DATE the applicant requested the court to question the administrators PERSON and ORG and to obtain the administrators’ report on the situation of his company . On CARDINAL DATE the applicant again requested that the administrator ORG be summoned to answer questions regarding the valuation of his company ’s assets , the sale thereof and the conclusion of the compulsory administration proceedings . It is not clear what action was taken in response to his requests .

On DATE the applicant made his final submissions . He alleged that the institution of the criminal prosecution was in breach of LAW no . CARDINAL and it should not have started before the conclusion of the compulsory administration proceedings . He complained that he had been held in pre - trial detention beyond a reasonable time . He also argued that he had been deprived of his liberty on the grounds of his inability to fulfil a contractual obligation , in breach of LAW . With regard to the experts’ financial report , he contended that no assessment of the value of his property had been made with a view to establishing whether the creditors could be repaid . Moreover , contrary to LAW ORG , the prosecutor had not proceeded to seize his property .

In a detailed judgment of CARDINAL DATE ORG found the applicant guilty of deception and sentenced him to DATE imprisonment . The court acquitted the applicant of the charge of establishing a criminal organisation . In fact , it acknowledged , that this charge had been brought in order to extend the applicant ’s pre - trial detention , as the time - limit was coming to an end .

The first CARDINAL pages of the judgment gave a detailed description of the establishment of the applicant ’s company , its activities and its modus operandi . According to ORG , the development and progress of the applicant ’s company was made up of CARDINAL phases . The first phase of the development extended from DATE to DATE during which time the economic and commercial activity of the company was concentrated in the sphere of fast - income businesses , relying on cash , such as bakeries , retail shops , cake shops , restaurants and travel agencies . The second phase extended from DATE until the placement of the company in administration . During this period , the goal of the company was to modernise its lines of production and extend its activities within the country and abroad . In the court ’s view , this was the decisive period which gave rise to great economic and financial problems . ORG acknowledged that the principal reason for the taking of loans from members of the public were the rapid pace of the company ’s expansion and development as well as the actual impossibility for the NORP banks to give loans .

The judgment further stated that the process of taking loans from the public continued until DATE . Towards DATE and DATE , the loan contracts consisted of a simple letter and offered interest rates PERCENT per month . The total number of persons who concluded a loan contract with the company was CARDINAL creditors . The total amount of loans taken , on the basis of calculations made by specialised bodies and experts , was equivalent to ORG CARDINAL,CARDINAL,CARDINAL . This figure was not accurate since the final findings had not yet been drawn up .

The ensuing CARDINAL pages of the judgment focused on the financial situation of the applicant ’s company . The court analysed the company ’s balance sheets for DATE on the basis of the company ’s tax returns . It concluded that the balance sheets showed an unjustified inflation of the company ’s assets in order to cover the excessive debts it had incurred through the taking of loans from members of the public . Furthermore , the court examined a number of transactions and expenses that had been incurred domestically and abroad by either the company or the applicant , with a view to pointing to their unlawful nature .

In finding the applicant ’s actions unlawful and the applicant guilty , ORG stated as follows :

“ First , the applicant entered into loan agreements with individuals with a maturity period of DATE . This is contrary to section CARDINAL of the DATE LAW in GPE , which states that ‘ no other entity , with the exception of a bank , may accept deposits from the public with an initial maturity period of DATE or less’ .

Second , on concluding the loan agreements and accepting the loans , the applicant ’s company offered creditors an advance payment of MONEY of their accrued interest , a somewhat strange action given the nature of the company as an investment entity .

Third , the applicant carried out actions , notably the modification of the real values of the balance sheets for DATE , in breach of the DATE LAW .

Fourth , a number of transactions were made in cash , thus avoiding lawful entries in the accounting records ...

Fifth , the interest rates offered by the applicant ’s company , which varied from PERCENT per month , were staggering compared with the interest rates offered by [ commercial ] banks . Moreover , the applicant ’s company carried out arbitrary , unilateral actions , even breaching its contractual obligations by decreasing the interest rate without the prior consent of creditors .

Sixth , the contractual obligations vis - à - vis creditors were met by continuously attracting new loans from the public ...

Seventh , the economic activity of the company is contrary to the DATE LAW since the activity of taking loans under LAW is allowed only between individuals . Checks reveal that there have been reported cases when loans were made to the applicant ’s company .

Eighth , the applicant and his company deliberately increased the value of their assets to obtain a positive balance sheet for the company ...

Ninth , the applicant paid exorbitant prices , beyond the real market value , for the purchase of objects with a lower return rate compared to the speed and fast pace of the withdrawal of money .

Tenth , the increase of unnecessary expenses for the purchase of luxury items and the high expenses for personnel costs did not correspond to the reality . ...

Eleventh , during the commercial activities of the applicant and his company , there were cash transfers for the purchase of objects and property ... without any guarantee or interest rate , despite the fact that the money was taken from the public at an interest rate of MONEY per month . In most cases these amounts do not appear in the company ’s balance sheet .

Twelfth , on the basis of balance sheets submitted by the company to the tax authorities in DATE ... the level of profits compared to the withdrawal of money from creditors was CARDINAL per cent . Questioned at a hearing , the experts concluded that , having regard to the profit made and the level of assets as assessed by the auditors , there could be no question of returning the principal amount , let alone paying interest .

Thirteenth , during the operation of the company , notably following the adoption of the DATE LAW , there is a pattern of transfers of money by way of cash to different countries , particularly GPE , to allegedly buy shares , banks or set up new activities so that the company could allegedly explore ways for its continuation and survival .

Fourteenth , the loan contracts were not concluded before the public notary in accordance with the [ DATE ] LAW and LAW ; they are standardised contracts , with defined obligations ... concluded without seeking the creditor ’s consent and without proprietary guarantees . ”

As regards the applicant ’s claims concerning his detention , conviction and sentence arising out of his inability to fulfil his contractual obligations , the judgment read :

“ ... the [ district ] court will not directly examine the contractual obligations . The applicant ’s actions and failure to act , as well as his inability to fulfil his [ contractual ] civil obligations , amount to a criminal offence . More precisely , as a result of the unlawful actions carried out from the beginning [ of the company ’s business activities ] until the actual trial , a number of legal provisions , as mentioned above , were sidestepped , breached or not observed ( ... gjykata në këtë rast nuk i futet detyrimit civil në mënyrë të drejtpërdrejtë por se me veprimet dhe mosveprimet e tij dhe mospërmbushjes së detyrimeve civile , ka lindur një vepër penale dhe konkretisht me anë të veprimeve të kundraligjshme që nga momenti i fillimit e deri në momentin aktual të gjykimit janë mënjanuar apo shkelur , apo lënë pa zbatuar një sërë dispozitash ligjore të cilat ne I pëmendëm më sipër ) .

It must be emphasised that the taking of loans does not constitute an act engaging civil liability , since the [ loan ] agreements did not entail any monetary guarantee , the interest rates were beyond the prescribed legal ceiling and there was concealment of revenues and loss of property ( PERSON theksuar se veprimtaria e huamarrjes nuk është një veprim i drejtpërdrejtë civil pasi kontratat janë bërë pa garanci pasurore , niveli i interesave ka qenë tej normativave ligjore , kemi fshehje të të ardhurave dhe rrjedhje të pasurisë ) . ”

ORG rejected the prosecutor ’s request to sentence the applicant on CARDINAL counts , equal to the total number of creditors . It stated that the applicant had been charged with CARDINAL offence . The offence in question had started in DATE and finished on DATE , thus constituting a continuing crime rather than a repeated one . The court held that LAW could not apply to the instant case as the applicant had committed only one criminal offence . ORG had further regard to the then ORG decision of DATE , which had sentenced another individual only once , in accordance with LAW , on principally the same facts and circumstances as the applicant ’s .

On an unspecified date in DATE the applicant and the prosecutor appealed . The applicant argued that he had been sentenced on account of his inability to fulfil a contractual obligation arising out of the loan agreements entered into with his creditors . However , no creditor had accused the applicant of deception . To this end , CARDINAL creditors had been questioned by the court and had all declared that they had willingly lent money to the applicant and had withdrawn the interest on the date agreed upon in the agreement . The applicant contended that LAW did not stipulate that a loan agreement could be concluded CARDINAL private individuals only . The applicant also contested the assessment of evidence by ORG and its failure to examine whether he was capable of fulfilling his contractual obligations towards the creditors .

On an unspecified date in DATE ORG appointed the same CARDINAL experts to produce another financial report .

On DATE the experts submitted their report . According to the report , the total number of creditors was CARDINAL and the overall debt amounted to ALL CARDINAL , the equivalent of CARDINAL at the material time . This figure was drawn from the company ’s computers , which had been seized by the prosecutor ’s office . Referring to the number of claims made by creditors after the start of the compulsory administration proceedings , the report indicated that the overall number of creditors was CARDINAL , while the total debt was ORG CARDINAL .

As regards the value of the applicant ’s company ’s assets , the report concluded that as of DATE its assets totalled ORG CARDINAL,CARDINAL,CARDINAL . This estimate was based on a decision of ORG of DATE , which listed the company ’s property and the corresponding monetary value . However , it did not include the value of mines and other mineral reserves .

Following the start of the compulsory administration proceedings , the total value of the applicant ’s company assets amounted to USD CARDINAL,CARDINAL,CARDINAL , of which ORG CARDINAL consisted of the proceeds from the sale of assets and ORG CARDINAL was the estimated value of assets which had not yet been sold .

As regards the cash flow in the company ’s bank accounts , the report concluded that its balance was ORG CARDINAL,CARDINAL,CARDINAL . However , not all banks had submitted cash flow reports . The outstanding debt owed by third parties to the applicant ’s company was calculated to be CARDINAL . The report assessed the damage to the applicant ’s company ’s assets as a result of the DATE civil unrest at MONEY .

In its judgment of DATE ORG relied on the facts established in ORG judgment . It found the applicant to be responsible for the deception of CARDINAL creditors in the total amount of ALL CARDINAL . The court explained the decrease in the overall number of creditors and the total amount of debt by the deduction of the capitalised interest and the exclusion of inaccurate records . The court further dismissed the figures resulting from the compulsory administration proceedings as being inaccurate , having regard to the fact that not all creditors might have shown up to submit their claims .

ORG sentenced the applicant to twenty years’ imprisonment in accordance with LAW of the ORG , which had entered into force on DATE .

On DATE the applicant appealed . He complained about the retrospective application of LAW of the ORG , which had aggravated his position . He alleged that ORG had not given him time to prepare his defence when it had recharacterised the criminal offence and sentenced him under LAW of the ORG . The applicant further maintained that none of his creditors had been questioned before the lower courts or complained about the contracts he had concluded with them . As regards the offence with which he was charged , he stated that he had invested all the money he had taken from the public . There had been no intention to lie or abuse trust on his part . This assertion was supported by the large number of assets that his company owned and managed . Lastly , the applicant alleged that the decrease in the value of his property had resulted from the mismanagement of the administrators and improper handling of the sale of his company ’s assets .

On DATE ORG found the applicant guilty as charged . Relying on the same facts as established in the lower courts’ decisions , ORG held that the applicant ’s actions and the company ’s activities had been improper and unlawful . ORG judgment , in so far as relevant , read as follows :

“ On the basis of the wealth of material , documents and experts’ reports which have been adduced before the trial and appeal courts , it is clear that the accused collected considerable amounts of money and foreign currency from members of the public by means of false promises to repay the amounts and pay high interest rates , knowing that he was incapable of keeping his promises . In contrast to the accused ’s claims , the [ lower ] courts established that the taking of money from members of the public , in the form of so - called loans , was carried out for the sole purpose of acquiring property for the accused himself and other persons . The accused was not capable of securing the amounts in question relying solely on the money taken from members of the public and he knew that he could not obtain profits in a lawful manner in order to repay the loans .

The undertaking to pay back the money collected from members of the public was not based on the company ’s realisable profits , but on the prospect of attracting money in the same way from other members of the public . The [ lower ] courts established that no lawful and normal commercial company could secure the interest rates needed to cover the high rate of interest that the accused offered to persons from whom he had collected extraordinarily large sums of money .

In augmenting untruthfully the value of investments he had made using the money taken from members of the public , the accused ’s purpose was to attract a large number of persons in response to the competition from the so - called foundations and other pyramid schemes which were operating at the time , and to instil in the public the false idea that he possessed property and other assets which would underwrite the obligations he had entered into . The increase in interest rates for creditors and the shortening of deadlines for the repayment of loans fell into this same category .

Regard being had to the whole body of evidence which was analysed in detail by ORG and by ORG , it emerges that , using money taken from members of the public , the accused created a pyramid scheme the base of which consisted of loans collected from members of the public who had been deceived , while its apex consisted of repayments which , as established by the courts , were not sufficient to fulfil the accused ’s [ contractual ] obligations .

It appears from the investigation and the case file that the criminal intent to commit theft by way of deception had its genesis in DATE , through the process of loan - taking . With the passage of time this intent evolved as the applicant expanded his activities , which took on staggering proportions as the scheme was rolled out across the country until DATE , the date that marked the end of his pyramid scheme .

At its inception , the document used by the company for the taking of loans consisted of a simple letter or an order ( mandat ) . The interest rates were PERCENT per month . This corresponded to the period DATE and DATE .

With the passage of time the documents were modified and took on more stereotypical form , containing the first name and surname of the lender , referred to as the creditor , and the name of the borrower , i.e. the accused . These documents , which were the same as those used in other pyramid schemes – the so - called foundations DATE were unilaterally and systematically used to lie to , deceive and abuse the trust of CARDINAL of poor people who dreamed of earning money from the accused .

In DATE the accused concocted a refinement to the scheme , based on deception and lies , when he issued the so - called savings books ( librezë kursimi ) , which were never put into use .

In order to increase the trust of creditors and also make it easier to steal from and deceive them , the accused raised the interest rates to PERCENT , while applying higher interest rates to his closest circle [ of acquaintances ] , who spread the word about the miracles performed by his company .

It is obvious that ORG , even though it expanded across the country and was made up of many subsidiaries , existed as a single financial and economic unit . Even the company ’s balance sheets were submitted as a single balance sheet covering the whole company . More specifically , according to the DATE balance sheet , the company had a net profit amounting to CARDINAL and a workforce of CARDINAL people . According to the DATE balance sheet , the company ’s net profit was ALL CARDINAL , which was equal to PERCENT of the outstanding debt owed to its creditors .

In DATE there was an increase in the number of loans [ made by members of the public ] . Consequently , ORG ’s balance sheet reflected increased values . The company ’s net profit for DATE reached ALL CARDINAL , the equivalent of PERCENT of the outstanding debt owed to its creditors .

By DATE the process of loan - taking had assumed unprecedented proportions and , consequently , the company ’s net profit totalled ORG , the equivalent of PERCENT of the outstanding debt owed to its creditors .

ORG upheld the findings of ORG regarding the total number of creditors , namely CARDINAL . However , it concluded that the total amount of the applicant ’s liabilities was ALL PERSON ( approximately USD CARDINAL,CARDINAL,CARDINAL at the material time ) after having deducted the company ’s cash flows , which totalled ALL CARDINAL . ORG judgment , in so far as relevant , read as follows :

“ ... Any eventual change in the number of creditors does not affect the accused ’s guilt or his sentence in respect of the offence he has committed . A final court decision in the criminal case is binding on the court examining civil liabilities only in so far as the commission of the criminal offence is concerned and if the offence was committed by the accused . It does not have any consequences for the resolution of civil proceedings that may be instituted in the future .

During the investigation stage , as well as in the trial and appeal proceedings , the accused claimed that , since his actions vis - à - vis his creditors constituted civil relations in the form of fulfilment of a contractual obligation resulting from the loans taken , they could not give rise to criminal liability . This argument was dismissed by the domestic courts as unfounded . The accused also complained that no criminal offence had been committed , on the grounds that the property in his possession was far greater than the value of his liabilities vis - à - vis creditors .

The [ lower ] courts , having assessed the evidence in their possession , concluded that this claim was unfounded . The perception of the accused among members of the public as the owner of huge assets was CARDINAL of the forms of deception he employed to attract large amounts of money from citizens . The court notes that the [ lower ] courts drew this conclusion on the basis of voluminous documents , explanations provided by experts and the experts’ reports that were compiled . ... As regards the valuation of objects , their value does not reflect the reality , as the valuation was unilateral and was fictitiously increased compared to the purchase price and the real market value . ORG reached the same finding via more detailed reasoning .

In these circumstances , the [ lower ] courts accepted that the accused had committed the criminal offence of theft by way of lies and abuse of trust . ”

ORG held that ORG had incorrectly applied LAW of the ORG . In passing sentence on the applicant , ORG reasoned that he should be held criminally liable on as many counts as the overall number of creditors , namely CARDINAL , in accordance with LAW , which prescribed a term of imprisonment of DATE . Referring to LAW of the ORG , it decided that the cumulative sentence should not exceed the maximum penalty of DATE imprisonment . Consequently , it sentenced the applicant to CARDINAL years’ imprisonment . ORG rejected the applicant ’s argument that , by re - characterising the criminal offence , ORG had not given him adequate time to prepare his defence .

In this connection , the relevant parts of the judgment read as follows :

“ ORG convicted the accused of deception and applied Article CARDINAL only once . ORG , while finding that the accused ’s conviction on CARDINAL count under LAW was unfounded , incorrectly characterised the criminal offence , finding the accused guilty and sentencing him under LAW of the ORG . In its decision , ORG , relying on LAW , reasoned that the offence should be classified under LAW of the ORG , on the grounds that , as a newly introduced criminal - law provision , the latter was more favourable than the previous provisions .

The argument employed by ORG that the criminal offence constitutes a continuous crime ... is not borne out by the deception that has been carried out . In order for a crime to be continuous , the following elements must be present : each offence must not stand on its own , the acts or the failure to act must have constituted the same criminal offence , and the criminal intent which joins separate acts in a single integral offence must exist .

In the present case the [ lower ] courts have accepted that the accused committed different acts over different periods of time . The criminal activity took place over a long time and , as argued above , was not the consequence of the same criminal intent . The latter was subject to continuous modification owing to competition from other unlawful loan - taking companies . This took the form of changing interest rates , varying deception techniques to adapt to different people and different circumstances , developing diverse strategies to make the deception credible , either through propaganda in the broadcast media or through efforts to make the criminal activity appear as normal banking activity .

The court adopts the same position with the unifying decision ( no . CARDINAL ) of DATE of ORG to the effect that persons who have committed the offence of deception shall be criminally liable under LAW on as many counts as the number of people deceived .

ORG considers that ORG reasoning that LAW should be applied as it is more favourable does not have any legal basis . LAW provides that “ the most serious criminal offence shall be considered to be that which attracts the most severe maximum penalty or , where the most severe maximum penalties are equal , the most severe minimum penalty . ” On that basis , taking the most severe maximum penalty as the criterion for the most serious offence , it is clear that LAW , which was in force when the criminal offence was committed and which provides for a penalty of CARDINAL years’ imprisonment , is more favourable than the second paragraph , which was added to the provision and provides for a maximum penalty of DATE imprisonment . The fact that the cumulative sentence imposed may be higher than the penalty provided for in LAW can not provide a basis for finding that LAW is less favourable .

For these reasons ORG , having aggravated the accused ’s position , should not have classified the offence under LAW of the ORG . The accused ... should be found guilty and sentenced on the basis of LAW for the criminal offence of deception on CARDINAL counts , equal to the number of injured persons .

ORG considers the defendant ’s complaint that his right to defence was breached by the change of characterisation of the criminal offence by ORG , contrary to Articles CARDINAL , CARDINAL of LAW and LAW a ) of the LAW , ill - founded . The court , by giving the facts a different determination , may re - characterise the offence , which may be less serious or more so . In the latter case , this does not mean that the accused ’s position has been aggravated . In accordance with LAW , the court may give the facts a different determination from that given by the prosecutor , since the court is independent and makes its own assessment of the facts .

In this context , LAW does not oblige the court to give the accused time in the defence of his interest , whereas pursuant to LAW , CARDINAL and CARDINAL the accused is granted additional time to secure his defence against new charges lodged by the prosecutor . The latter provisions make reference to the prosecutor who , prior to the completion of the judicial examination has the right to modify the charges , to lodge a different charge or to charge the accused with a new offence . On these occasions , because the defence rights should be secured , the law provides that the court makes time available to the accused to secure his defence against the new charges . In the case of the application of LAW ORG , when the court proceeds with a different requalification of the offence , the same binding procedure does not apply as in the case of the filing of new charges by the prosecutor . The court , after an examination of facts , may give the facts a new and different legal determination . The criminal procedural law does not envisage adjournment of hearings or granting of [ additional ] time to the defence when the re - characterisation of the criminal offence is made by the court by virtue of its final decision . Contrary to the defendant ’s complaint , it can not be said that there has been a breach of the accused ’s right to defence .

The spirit of the law ( LAW has been so that , owing to its amendment by virtue of law no ... , the lawmaker intended to clarify its content . According to the amendment , it is stated that “ by way of the final decision the court may give the fact a different determination from that given by the prosecutor or the injured party , which may be more favourable or more serious , provided that it is competent ratione personae to examine the offence . ”

The defendant ’s complaint that the courts did not question all ORG ’s creditors is ill - founded . The prosecutor and the courts questioned as many creditors as was deemed necessary . Questioning of creditors does not constitute a legal necessity , since deception is not a criminal offence which can be prosecuted solely on the strength of a complaint . Furthermore , such questioning was not necessary in order to clarify or substantiate the charge against the accused .

The defendant ’s complaint that the replacement of the appeal prosecutor by ORG , at the stage of the appeal proceedings before ORG , was in breach of Article CARDINAL of the ORG , is ill - founded . It results that the replacement of the appeal prosecutor by ORG was in accordance with LAW ORG , because according to ORG the appeal prosecutor had expressed his prior opinion about the case .

Having regard to the foregoing , the ORG concludes that the accused should be declared guilty on CARDINAL counts of the criminal offence of deception in accordance with LAW . In passing the sentence , the court takes account of the danger which the accused presents to society , the large number of injured parties and the considerable amount of damage caused and , it considers that the applicant should be sentenced to DATE imprisonment . ”

The applicant lodged a constitutional appeal , relying on the same grounds of appeal as before the lower courts .

By a letter of DATE the applicant was informed that on CARDINAL DATE ORG , sitting as a bench of CARDINAL judges , had declared his appeal inadmissible for failure to raise any issues concerning a breach of his right to a fair trial .

Since his arrest on DATE , the applicant ’s state of health has been unstable .

A medical certificate of CARDINAL DATE concluded that “ even after intensive treatment on a DATE basis , his state of health seems to be deteriorating ( edhe mbas mjekimit intensiv të marrë çdo ditë gjendja vjen duke u rënduar ) . On certain occasions , he has had serious cardiac problems which have resulted in his hospitalisation as a matter of urgency . ” The applicant was diagnosed with cardiac and neuropsychiatric problems ( probleme kardiake dhe neuropsihatrike ) .

At the request of the applicant ’s representative , another medical report of CARDINAL DATE , prepared by a panel of CARDINAL doctors , concluded that the applicant “ suffers from unstable arterial hypertension ... this is characterised by angina ( chest pain ) , which has become frequent , almost daily . The inter - related illnesses , in view of the existence of a potential sudden and life - threatening risk , necessitate continuous cardiac medical assistance and treatment . ” The report stated that the conditions of the applicant ’s detention had a negative influence on the progression of the illnesses .

DATE . From DATE to DATE the applicant was placed under house arrest given his state of health . He was regularly examined by various specialist doctors and his health stabilised . Following ORG decision of DATE ( see paragraph CARDINAL above ) , the applicant was taken to prison to serve his sentence .

Following a request made by his legal representative on DATE , a medical examination was conducted . It confirmed that the applicant had been suffering from diabetes for DATE , and was also suffering from unstable arterial hypertension , accompanied by angina and a urinary infection . The report concluded that “ the applicant ’s state of health , compared with the previous examinations conducted DATE , has gradually deteriorated ” ( gjendja shëndetësore e të pandehurit ... rezulton të ketë ardhur duke u keqësuar ) .

A letter of DATE from the management of ORG described in detail the development of the applicant ’s state of health from DATE to DATE . It confirmed the applicant ’s illnesses and added that “ these inter - related illnesses , in view of the existence of a potential sudden and life - threatening risk , necessitate continuous medical assistance and treatment . ”

A letter of DATE from the management of ORG described in detail the development of the applicant ’s state of health from DATE to DATE . It stated that “ the applicant has at times had serious health problems , which have occurred as a result of his chronic diseases . From DATE to DATE the applicant had even more serious problems , posing a threat to his life . ”

On DATE the applicant was transferred to ORG ( “ TPH ” ) for specialist medical treatment . He remained in the TPH until DATE . The medical file submitted by the Government indicated that the applicant received daily visits from ORG doctors , the visits becoming more frequent on DATE . The discharge report indicated that the applicant ’s health had improved and was stable . It contained a list of the medicines that had been administered to him .

A summary of the applicant ’s diagnosis and treatment at the ORG was provided in a letter of DATE from ORG . The letter stated that , when he was admitted to hospital on DATE , the applicant had manifested the following clinical symptoms : restrictive chest pains , breathing problems , frequent urination , striking thirst , epigastric pain and nausea . The applicant had been previously diagnosed as suffering from diabetes and arterial hypertension for DATE respectively . He was a long - term smoker .

During his stay at the ORG , the following examinations had been conducted : regular blood , biochemical and urine tests , frequent electrocardiograms , echocardiograms ( “ ECHO ” ) , abdominal ultrasounds , lung X - rays , eyesight examinations and intubations . The applicant had been treated for angina , arterial hypertension , diabetes , benign prostatic hyperplasia and a urinary infection . He had been prescribed numerous medicines on a DATE basis by the TPH . In addition , the letter added that the applicant had purchased medicines belonging to another pharmaceutical company , similar to those stocked in the ORG ’s pharmacy .

On DATE the applicant was transferred to the prison . The medical file indicated that from DATE to DATE he had CARDINAL doctor ’s visits . On each occasion a description of his progress was noted , including the treatment prescribed by the doctor .

DATE . By a letter of CARDINAL DATE the prison stated that the applicant continued to receive the prescribed treatment regularly . He was in good health and there were no problems which necessitated specialised treatment . The applicant had never lodged any complaints alleging inadequate treatment in the prison ’s complaints ledger .

On DATE the applicant brought an action in the ORG seeking compassionate release under LAW ORG .

On DATE the ORG decided to discontinue the proceedings ( pushimin e çështjes ) owing to the applicant ’s representative ’s failure to appear before the court without a good reason .

On an unspecified date in DATE the proceedings were reopened by ORG following a new request filed by the applicant . On an unspecified date ORG requested ORG ( Instituti i Mjekësisë Ligjore ) to submit a forensic report on the following CARDINAL issues : ( a ) the applicant ’s current state of health ; ( b ) whether the applicant was suffering from a serious , incurable disease ; and ( c ) whether the disease was life - threatening even if the applicant was hospitalised .

On DATE the forensic report concluded :

“ the [ applicant ’s ] state of health is unstable . He suffers from moderate heart disease owing to cardiac insufficiency and high blood pressure , as well as diabetes which is being treated with insulin shots . The disease is chronic and , given the applicant ’s advanced age [ DATE ] and other aggravating factors , such as smoking and fat levels , necessitates careful and prolonged medical treatment . The disease does not pose a risk to life provided that the applicant is regularly and continuously treated in hospital , including in FAC . ”

On DATE ORG rejected the applicant ’s complaint . It relied on the forensic report , finding that the applicant ’s condition could be treated in hospital .

On DATE and CARDINAL DATE ORG and ORG respectively upheld ORG decision . No copies of the appeal courts’ decisions were provided to the ORG .

On an unspecified date in DATE the applicant lodged another request for compassionate release .

On DATE ORG decided to declare the case outside its jurisdiction because the applicant had been transferred to the FAC in GPE on DATE . It therefore transferred the case to ORG for examination .

On DATE ORG decided to discontinue the proceedings ( pushimin e çështjes ) owing to the applicant ’s representative ’s failure to appear before the court without a good reason .

On DATE the DATE newspaper GPE reported that the ORG had reached its maximum capacity and was underequipped . The ORG provided only basic medicines , whereas the “ most expensive ” medicines had to be procured by the prisoners themselves or their families .

On DATE the DATE newspaper ORG mentioned the findings of a visit by ORG to the TPH ( see the “ NORP PERSON ’s DATE Annual Report ” below ) . It had been observed in the article that the ORG was overcrowded and lacked equipment , sufficient space and sufficient medicines .

By virtue of LAW of DATE the applicant ’s sentence was reduced by DATE , DATE and DATE .

In DATE , DATE and DATE the applicant ’s sentence was reduced by DATE and DATE because of his work in prison .

On DATE and on DATE ORG decided to reduce the applicant ’s sentence by DATE .

By DATE the applicant ’s remaining sentence was DATE .

On an unspecified date the applicant lodged a request with ORG to benefit from the provisions of LAW that had entered into force on DATE .

On DATE the ORG , relying on LAW , decided to reduce the applicant ’s remaining sentence by DATE and DATE with effect from DATE . The decision became final on DATE .

On DATE the applicant ’s remaining sentence was reduced by DATE on the strength of a presidential pardon .

On DATE the Government informed the ORG that the applicant had completely served the remainder of his sentence and was released on DATE .

The LAW of GPE entered into force on DATE . Its relevant provisions read as follows :

“ No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation . ”

“ No heavier penalty shall be imposed than the one that was prescribed by law at the time the criminal offence was committed . ”

“ During criminal proceedings , everyone has the right :

a. to be notified immediately and in detail of the charges brought against him , of his rights , and to have the possibility to notify his family or relatives ;

b. to have sufficient time and facilities to prepare his defence ;

c. to have the assistance of a translator free of charge , when he does not speak or understand the NORP language ;

ç . to present his own case or defend himself through the assistance of counsel of his own choosing ; to communicate freely and privately with him , as well as to be provided free legal counsel when he does not have sufficient means ;

d. to examine witnesses who are present and to request the appearance of witnesses , experts and other persons who can clarify the facts . ”

“ The Constitutional Court shall decide on :

( f ) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

“ CARDINAL . ORG may initiate proceedings only at the request of :

( f ) political parties and other organisations ;

( g ) individuals .

The entities designated in the first paragraph , letters ... ( f ) and ( g ) , may lodge applications only on issues connected with their interests . ”

Article CARDINAL provides :

“ A loan is a contract by which CARDINAL party ( the lender ) transfers into the possession of another party ( the borrower ) an amount of money or other material objects defined by their quantity , weight or size . The borrower is obliged to repay an equal amount of money or material objects of the same kind and quality , within the term provided for in the contract , or in the absence of such a term , at the request of the lender . ”

The Criminal Code entered into force on DATE . The following provisions , as in force at the material time , are relevant to the present case :

“ No one may be sentenced for an act which had not been previously and explicitly defined by law as an offence or a criminal contravention .

No one may be sentenced to a type or degree of punishment that is not provided for by law . ”

The following principal penalties shall be imposed on the perpetrators of crimes :

Life imprisonment or death ;

Imprisonment ;

Fine

The prison sentence for a criminal offence shall range from DATE to DATE .

The prison sentence for a criminal contravention shall range from DATE to DATE .

The following shall be considered to be aggravating circumstances :

( a ) the commission of a crime without good reason ;

( b ) the commission of a crime for the purpose of attributing responsibility to or hiding the criminal responsibility of a third person , or for avoiding conviction for another criminal offence ;

( c ) the ruthless and cruel commission of a crime ;

( d ) the commission of a crime subsequent to a conviction for a previous crime ;

( e ) actions which aggravate or heighten the consequences of a criminal act ;

( f ) the commission of a crime by means of abuse of powers deriving from the discharge of ORG or religious duties or service ;

( g ) the commission of a crime against children , pregnant women or other persons who , for various reasons , are unable to protect themselves ;

( h ) the commission of a crime against representatives of other GPE ;

( i ) the commission of a crime taking advantage of family ties , friendship or hospitality ;

( j ) the commission of a crime in collusion with others .

Law No . DATE of DATE added the following aggravating circumstance :

“ the commission of a crime as a repeat offence . ”

“ Where acts or omissions contain elements of CARDINAL criminal offence , and where the person has committed CARDINAL criminal offence for which no sentence has yet been imposed , the court shall first determine the sentence for each criminal offence separately and , at the end , shall determine a single sentence consisting of the most severe cumulative sentence ( dënimi më i rëndë i shtuar ) .

The cumulative sentence can not exceed either the total sum of the sentences determined separately or the maximum provided for the type of penalty imposed .

The DATE commentary on the ORG ( see GPE i Kodit Penal të ORG PERSON by Prof . PERSON , PERSON and PERSON ) read as follows on the subject of the interpretation of LAW

“ DATE lays down special provisions for the determination of sentence where a person , by way of his actions or omissions , has committed CARDINAL or more criminal offences , at the same or different times , prior to the adoption of a court decision in relation to any of the [ said ] offences .

The rule laid down for the determination of sentences is that the court determines a [ separate ] sentence for each offence committed by the defendant and , in the end , imposes a cumulative sentence , within the limits provided for by the criminal - law provisions , having regard to the risk posed to society by the perpetrator and any extenuating or aggravating circumstances . The conditions for imposing a cumulative sentence are as follows .

( a ) CARDINAL or more offences designated by different provisions of the [ Criminal ] Code must have been committed . None of the offences may be time - barred or have been the subject of an amnesty or of proceedings which were discontinued . For example , a cumulative sentence shall be imposed where the defendant committed intentional homicide by way of the illegal possession of firearms . In determining sentence , the court shall fix the sentence for the offence of intentional homicide and then the sentence for the offence of illegal possession of firearms . The court then imposes a single sentence , not on the basis of arithmetic addition but by imposing the most severe cumulative sentence . More specifically , the court imposes CARDINAL years’ imprisonment for the offence of intentional homicide and DATE imprisonment for the offence of illegal possession of firearms . By applying a cumulative sentence , the court imposes a penalty of DATE imprisonment , which corresponds to the most severe cumulative sentence . This means that DATE were added to the most severe sentence of CARDINAL years’ imprisonment , resulting in the most severe cumulative sentence of DATE imprisonment .

A cumulative sentence can not be imposed where the same actions , committed repeatedly , form part of a single offence under the [ Criminal ] Code . For example , serious injury caused to several people , irrespective of the fact that it was inflicted recurrently and by way of the same actions against CARDINAL , CARDINAL or more people , forms part of a single offence specifically provided for under LAW ... and can not be subject to a cumulative penalty .

( b ) The other condition for the imposition of a cumulative sentence is that no court decision should have been taken in respect of any of the offences . Trial and sentencing must take place at the same time in relation to all the offences . ...

The second paragraph of Article CARDINAL provides that the most severe cumulative sentence should not exceed either the total sum of the sentences determined separately or the maximum sentence within the type of penalty imposed .

For example , ORG sentenced PERSON for the offence of intentional serious injury to CARDINAL years’ imprisonment and for the offence of illegal possession of firearms to CARDINAL GPE imprisonment . It finally imposed on him a cumulative sentence of DATE . In this case , the most severe cumulative sentence was correctly applied , in that the sentence did not exceed the total sum of the separate sentences imposed ( DATE ) , or the maximum sentence within the type of penalty imposed , i.e. imprisonment .

In another case , ORG stated as follows : “ PERSON has committed an offence of sexual intercourse with minors and CARDINAL of intentional and serious injury to the victim . For the first offence , he shall be sentenced to DATE imprisonment and for the second to CARDINAL years’ imprisonment . He shall be cumulatively sentenced to DATE imprisonment . ” In this case also the law was correctly applied , as the court imposed the most severe cumulative offence without exceeding the maximum term of imprisonment , which is DATE .

NORP In CARDINAL decisions ( no . CARDINAL of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) , ORG upheld Court of Appeal decisions applying Article CARDINAL in imposing cumulative sentences on the defendants for the offences of murder and illegal possession of firearms .

NORP In CARDINAL decisions ( no . CARDINAL of DATE and no . CARDINAL of DATE ) , ORG upheld the lower courts’ decisions applying Article CARDINAL in imposing cumulative sentences on the defendants in connection with the crimes of premeditated murder and illegal possession of firearms .

NORP In decision no . CARDINAL of DATE ORG upheld a ORG decision applying LAW in imposing a cumulative sentence on the defendant in connection with the offences of theft , illegal possession of firearms and intentional destruction of property .

ORG . NORP In decision no . CARDINAL of DATE ORG , in finding the defendant guilty of intentional serious injury and illegal possession of firearms , applied Article CARDINAL in imposing a cumulative sentence .

NORP In decision no . CARDINAL of DATE ORG , in convicting the defendant of murder on account of the specific characteristics of the victim and the illegal possession of firearms , applied Article CARDINAL in imposing a cumulative sentence .

NORP In decision no . CARDINAL of DATE ORG upheld a ORG decision which had applied LAW in imposing a cumulative sentence on one of the defendants in relation to the offences of producing counterfeit currency and producing instruments for forgery .

NORP In decision no . CARDINAL of DATE ORG upheld a ORG decision applying LAW in imposing a cumulative sentence on one of the defendants in connection with the crimes of murder , attempted murder and illegal possession of firearms .

NORP In decision no . CARDINAL of CARDINAL DATE ORG upheld a ORG decision applying LAW in imposing a cumulative sentence on the defendant in respect of the offences of attempted premeditated murder and illegal possession of firearms .

In decision no . CARDINAL of CARDINAL DATE ORG upheld a ORG decision which had applied Article CARDINAL in sentencing the defendant in relation to the offences of issuing threats and illegal possession of firearms .

In decision no . CARDINAL of DATE ORG , in finding the defendant guilty of the illegal possession of firearms and of murder committed in a state of profound psychiatric distress , applied Article CARDINAL in imposing a cumulative sentence .

In decision no . CARDINAL of DATE ORG upheld the lower courts’ decisions applying Article CARDINAL in imposing a cumulative sentence in connection with the offences of attempted intentional homicide and illegal possession of firearms .

NORP In decision no . CARDINAL of DATE ORG upheld a ORG decision applying LAW in imposing a cumulative sentence on CARDINAL defendant with respect to the offences of armed robbery committed in collusion with others , theft of property resulting in the death of a person , and illegal possession of firearms .

“ [ CARDINAL . ] Stealing of property through lies or abuse of trust shall be punishable by a fine or a term of imprisonment of DATE . ”

The following paragraph was added to LAW . DATE of DATE .

“ [ CARDINAL . ] The same offence , if committed in collusion with others , to the detriment of several persons or repeatedly , shall be punishable by a term of imprisonment of DATE , and if serious consequences are caused , by a term of imprisonment of DATE . ”

In an effort to harmonise legal practice , ORG ruled on DATE that a person who had committed the criminal offence of deception as defined in LAW should be sentenced on as many counts as the number of injured parties .

Article ORG , which was enacted by virtue of PERSON No . DATE of DATE , reads as follows :

“ Organisation and operation of fraudulent and pyramid borrowing schemes , with the purpose of material gain , shall be punishable by a term of imprisonment of DATE .

If serious consequences are caused , this offence shall be punishable by a term of imprisonment of DATE . ”

The following provisions of the ORG are relevant to the present case :

Criminal proceedings can not be instituted and , if started , should be discontinued at any stage of the proceedings , in :

( e ) all other cases prescribed by law .

“ ORG judgments may be appealed against to ORG , in compliance with one of the following requirements :

( a ) the criminal law has not been observed or has been erroneously applied ;

( b ) there have been breaches which result in the court ’s judgment being declared invalid in accordance with LAW ;

( c ) there have been breaches of procedural rules that have affected the adoption of the judgment . ”

Article CARDINAL provides that ORG shall examine an appeal in so far as points of law have been raised in it .

“ The court with jurisdiction for [ the prisoner ’s ] place of detention may decide to release him when the continuation of his imprisonment might endanger his life . ”

The Act provided that organised borrowing ( huamarrja ) on the basis of fraudulent pyramid schemes was unlawful . The establishment and operation of fraudulent pyramid borrowing schemes constituted a criminal offence , carrying a sentence of CARDINAL twenty years’ imprisonment and the confiscation of movable and immovable property .

The Act provided that all non - banking entities would be subject to a financial audit in relation to their financial position , the number of creditors , their assets and liabilities and their domestic and foreign deposits , by a group of financial experts appointed by the Government ( section CARDINAL ) .

A Board of Supervisors ( PERSON ) , composed of CARDINAL members , was established to monitor the entire process ( section CARDINAL ) . ORG coordinated activities between the experts and the entities subject to the LAW ( section CARDINAL ) .

The financial experts were to examine the ORG cash books , contracts concluded with the creditors and any other relevant documents ( section CARDINAL ) .

Section CARDINAL provided as follows : “ The prosecutor and the court shall not open investigative proceedings or conduct criminal trials unless and until the administration process in respect of the [ non - banking ] entity or the person connected therewith has been concluded . ”

Section CARDINAL left open the institution of criminal proceedings against the non - banking entity or the person connected therewith and amended section CARDINAL of Act no . CARDINAL to read that “ insofar as the administration process in respect of the non - banking entity or the person connected therewith has not been concluded , the judicial bodies shall not examine any civil or commercial proceedings ... ” .

The ORG visited GPE in DATE . The relevant findings of its report ORG ( DATE ) DATE , which was made public on DATE , read :

“ CARDINAL . ... the ORG raised the issue of long delays , which had [ been ] observed by the delegation especially at GPE , in transferring inmates who were in urgent need of hospitalisation to a hospital . The DATE visit demonstrated that this problem had not yet been resolved . The delegation was informed that general hospitals were reluctant to admit detainees from pre - trial detention facilities , due to security considerations , while transfers to ORG in GPE were reportedly difficult , because ORG falls under the authority of ORG .

At GPE , the delegation was informed by the doctor that he had not requested any transfers of detainees to FAC for a long time , since several requests had been turned down by ORG in DATE . The whole issue was subsequently raised during the consultations with representatives of ORG and the ORG . On this occasion , representatives of ORG affirmed to the delegation that , as a rule , all requests for transfers of sick detainees from pre - trial detention facilities to ORG were accepted , despite the fact that the hospital was frequently overcrowded . As far as the delegation could ascertain , there is a continuing lack of communication and co - ordination between the CARDINAL ministries concerned . ”

The DATE report refers to an inspection visit conducted at the ORG in DATE . The relevant findings of the report read :

“ It transpires that the ORG has only a curative function entailing the provision of medicines to patients . It can not diagnose diseases .

This hospital has features of a genuine prison and does not meet the minimum standards of a hospital service . There is no emergency room , X - ray facilities , etc . In all cases the patients , escorted by the prison doctor , are transferred to other civilian hospitals . Whenever this happens , the [ civilian ] doctors are reluctant to examine the patients , humiliating them by their attitude and leaving them waiting for a long time . ”


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in NORP .

By a judgment of DATE ORG dismissed the applicant ’s appeal against a second - instance administrative decision by which the Chief Inspector of Construction Supervision ( PERSON ) had refused to declare the FAC Governor ’s decision of CARDINAL DATE null and void .

On DATE the judgment of DATE , together with its written grounds , was served on the applicant .

On DATE the applicant filed a motion to be exempted from the payment of court fees and for the assistance of a legal - aid lawyer for the purpose of lodging a cassation appeal with ORG .

On DATE the time - limit for lodging a cassation appeal expired .

On DATE ORG dismissed the motion for exemption from court fees but granted the applicant the assistance of a legal - aid lawyer .

On DATE the registry of the court requested ORG to assign a lawyer to the applicant ’s case .

On DATE ORG assigned ORG to represent the applicant .

On DATE the applicant received a letter from ORG informing him that she had been appointed as his legal representative .

On DATE the legal - aid lawyer , ORG , asked the applicant to pay the court fees for the cassation appeal and to return to her confirmation of the bank to transfer in order to attach it to the cassation appeal .

By a letter of CARDINAL DATE , served on the applicant on DATE , the lawyer informed the applicant that she had found no legal grounds on which she could draft a cassation appeal .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of ORG are stated in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , DATE .

NORP In particular , in its decision no . II FZ CARDINAL/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time - limit by a legally - aided applicant could be admitted for examination .

When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legally - aided party to submit the appeal together with a request for leave to appeal out of time under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL/CARDINAL of DATE and ORG , I CARDINAL CARDINAL/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , PERSON CARDINAL/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL/CARDINAL of CARDINAL DATE ) .

In a number of decisions delivered before DATE ORG acknowledged the difficulties which legally - aided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed the relevant caselaw of the administrative courts and noted that the manner in which the beginning of the time - limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of his or her assignment to the case . The court was of the view that the latter approach was far too rigid and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legal - aid lawyer ( I FZ CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL/CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I FZ CARDINAL of DATE ) .


Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and currently lives in GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant and PERSON married and on DATE their twins , A and B , were born .

On DATE , due to marital problems , the applicant moved back to her parents ' house in ORG , together with the children .

On DATE ORG in ORG ( “ the ORG ” ) issued a decision regulating PERSON 's access to A and B.

It would appear that during this period PERSON had been seeing the children in accordance with this decision .

On DATE PERSON took the children for DATE and subsequently refused to return them to the applicant .

On DATE the ORG ordered that the children be returned to the applicant and entrusted the enforcement of that order to ORG in GPE ( “ the ORG ” ) .

On DATE the ORG , with police assistance , attempted to enforce the order in question , but it appears that PERSON 's parents physically prevented that from happening .

DATE , at the applicant 's requests , the ORG issued CARDINAL additional decisions , urging PERSON to surrender the children . They provided that should PERSON fail to comply with the applicant 's custody rights he would be fined , and that , ultimately , forcible enforcement might be called for .

On CARDINAL occasion thereafter PERSON brought the children to the ORG but refused to surrender them to the applicant , claiming that the children did not want to live with her .

There is no evidence in the case file indicating that ORG had been fined or , indeed , that a forcible transfer of custody had been attempted again .

On DATE PERSON lodged a claim with ORG in GPE , seeking the dissolution of his marriage to the applicant as well as custody of the children .

On DATE the applicant lodged a counter - claim to the same effect .

On DATE the presiding judge joined the CARDINAL claims into a single set of proceedings .

On DATE ORG : ( i ) dissolved the marriage , ( ii ) granted custody of the children to the applicant , and ( iii ) ordered PERSON to pay DATE child maintenance .

On DATE ORG upheld that judgment and it thereby became final .

On DATE ORG dismissed PERSON 's appeal on points of law ( revizija ) .

On DATE the applicant submitted a request for the enforcement of the final judgment .

On DATE ORG in GPE issued an enforcement order whereby PERSON was given DATE to surrender the children to the applicant . He was also warned that if he failed to comply he could be fined or even subjected to a forcible transfer of custody .

On DATE ORG upheld this order .

On DATE the applicant submitted a request for a review ( kontrolni zahtjev ; see paragraph CARDINAL below ) with ORG , seeking execution of the enforcement order .

On DATE the execution judge ( izvršni sudija ) informed the President of the court that as it was “ impossible to reach an agreement [ ... ] by which the children would be surrendered ” to the applicant , the bailiff was ordered to enforce “ without delay ” the fine of ORG CARDINAL in respect of PERSON He finished his report by stating “ that it [ was ] impossible to say when and how the enforcement proceedings at issue shall be concluded ” .

On DATE the bailiff made an attempt to enforce the fine , but it was to no avail due to the verbal and physical resistance of ORG 's parents . Subsequently , the bailiff requested the President of the court to release her of the duty to enforce the fine .

On DATE PERSON was informed that the forcible payment of the fine would be executed on CARDINAL DATE . On DATE CARDINAL PERSON 's father paid the fine imposed .

On DATE ORG issued another enforcement order requesting that the children be surrendered to the applicant within DATE , failing which ORG would be fined LAW .

On DATE , after the application had already been communicated to the respondent Government , ORG issued a decision specifying that the order would be enforced on DATE , if need be , by means of a forcible transfer of custody .

On DATE PERSON refused to surrender the children , who , apparently , also resisted the transfer . The ORG representative proposed that a forcible transfer of custody be postponed and the judge accepted to do so .

On DATE , when the enforcement was to be attempted again , PERSON proposed that it be adjourned until the court had decided on his request for custody ( see paragraphs CARDINAL - CARDINAL below ) , or that an interim period be allowed , with the participation of a family psychologist , to help the children to adapt to the new situation . The ORG representative also suggested that a transitional period be allowed before the enforcement . The applicant insisted on the enforcement . The house was searched , but the children were not found . The applicant was invited to submit a proposal as to how the judgment could be further enforced as well as to inform the court on her possibility to provide the necessary labour force for the enforcement ( “ eventualnog obezbjeđenja potrebne radne snage ” ) . At the same time , the police were invited to establish the whereabouts of the children .

On DATE , during another attempt at enforcement , the children refused to go with the applicant , claiming that she had not treated them properly . After ORG 's parents , who had resisted the enforcement , were removed , the judgment was enforced and the children were finally surrendered to the applicant .

The applicant maintained that as of DATE until DATE she had only had sporadic and brief contact with her children , mostly in - between school classes and , even then , in the presence of ORG or his father .

On an unspecified date ORG instituted a new civil complaint , seeking sole custody of the children .

On DATE ORG ruled in his favour and ordered the applicant to pay DATE child maintenance . In so deciding , the court took account of an informal conversation that an expert psychiatrist had had with the children . The psychiatrist 's conclusion was that A and B wanted to live with their father , that it would be stressful for them to be taken away from their present home , but that their mother needed to be allowed regular access . When specifically asked whether the children had been negatively directed towards their mother by their father , the expert responded by saying that “ it [ was ] obvious that the children had been negatively directed towards their mother by an adult person ” . The court noted that the children had been living with their father , contrary to the final judgment rendered in DATE , but that they had adapted to it and liked it . Finally , the court concluded that “ the factual situation [ had ] lasted for far too long ” and that it was in the children 's interest to verify the situation .

On DATE ORG in GPE quashed this judgment and remitted the case to ORG .

On DATE PERSON was found guilty of domestic violence , the victim being the applicant , and was sentenced to DATE in prison , suspended for DATE . On DATE ORG in GPE overturned that judgment and dismissed the charges as the criminal prosecution had become time - barred .

On DATE ORG in GPE acquitted GPE of charges of child abduction ( oduzimanje maloljetnog lica ) concluding that “ [ ... ] although the said acts of the accused contained all the elements of the criminal offence he had been charged with , the said offence represented an act of minor significance ” . On DATE ORG in GPE upheld that judgment and it thereby became final .

The relevant provisions of the LAW read as follows :

Article CARDINAL

“ The Constitutional Court shall ...

( CARDINAL ) ... [ rule on a ] ... constitutional appeal ... [ filed in respect of an alleged ] ... violation of a human right or freedom guaranteed by LAW , after all other effective legal remedies have been exhausted ... ”

This LAW entered into force on DATE .

The relevant provision of LAW read as follows :

Article CARDINAL

“ Constitutional appeal can be filed against an individual decision of a state body [ ... ] for violations of human rights and freedoms guaranteed by LAW , after all other effective domestic remedies have been exhausted . ”

Articles CARDINAL provide additional details as regards the processing of constitutional appeals .

This Act entered into force on DATE .

Relevant provisions of this LAW read as follows :

LAW

“ The party and the intervener in civil matters [ ... ] shall have the right to judicial protection in the event of violation of the right to trial within a reasonable time [ ... ] . ”

Article CARDINAL

“ Legal remedies for the protection of right to trial within a reasonable time shall be :

Request to accelerate the proceedings ( hereinafter referred to as the request for review ) ;

Action for fair redress . ”

Article CARDINAL

“ If the judge notifies the president of the court that certain procedural measures will be undertaken ... DATE after the receipt of the request for review , the president of the court shall notify the party thereof and thus finalise the procedure upon the request for review . ”

Article CARDINAL § CARDINAL

“ If the president of the court acted pursuant to LAW [ ... ] , the party can not file another request for review in the same case before the expiry of the period specified in the notification [ ... ] . ”

Article CARDINAL § CARDINAL

“ If the president of the court [ ... ] does not deliver [ ... ] notification on the request for review to the party [ ... ] pursuant to LAW may lodge an appeal [ ... ] . ”

DATE

“ ORG redress for the violation of the right to trial within a reasonable time may be realised by :

payment of monetary compensation for the damage caused by the violation of the right to trial within a reasonable time , and/or

by publishing the judgment that the right of the party to a trial within a reasonable time has been violated . ”

Article QUANTITY

“ The action [ for fair redress ] ... shall be filed with ORG DATE after the date of receipt of the final and legally binding decision on the request for review within the procedure of enforcement of the decision . ”

Article CARDINAL

“ ORG shall be obliged to make a decision on the action DATE after the date of receipt of the action . ”

Article CARDINAL

“ This Act shall apply also to judicial proceedings instituted before the entry into force of this LAW but after DATE .

In cases referred to in paragraph CARDINAL above , in the determination of a legal remedy for violations of the right to trial within a reasonable time , the violations of the right which occurred after DATE shall be established .

When establishing the violation of the right referred to in paragraph CARDINAL above , the ORG shall also take into consideration the length of the judicial proceedings prior to DATE . ”

This Act entered into force on DATE , but contained no reference to the applications involving procedural delay already lodged with the ORG .

DATE and DATE the courts in GPE considered CARDINAL requests for review . CARDINAL requests were withdrawn and CARDINAL were being examined . In the same period , CARDINAL actions for fair redress were submitted , out of which CARDINAL actions were dealt with and CARDINAL were still being examined . In CARDINAL case the courts awarded the plaintiff non - pecuniary damages for the length of civil proceedings .

Four of the requests for review , among the copies provided by the ORG , concerned the length of enforcement proceedings . In CARDINAL cases the plaintiffs were informed that the proceedings would be terminated within DATE . There is no information in the provided documents as to whether these time - limits were complied with . In CARDINAL case it is unclear whether the enforcement was not undertaken due to some prior obligations of the parties , and in another case the judge notified the plaintiff that the enforcement had since taken place .

In no case have the plaintiffs attempted to file an appeal following notifications rendered in accordance with LAW .

With regard to the case - law , following the action for fair redress , there were CARDINAL such actions , among the provided copies , in which the plaintiffs had sought redress due to the length of enforcement proceedings . CARDINAL was declared inadmissible because the plaintiff had not previously made use of a request for review , and the other was rejected as premature as the plaintiff had filed his action before the expiration of the time - limit set in the notification .

DATE this LAW provides that , after obtaining the opinion of the SCC , the court shall decide who will be granted custody of the children , if there is no agreement between the parents in that respect . Exceptionally , the court can also decide on the child 's contact with a parent who has not been granted custody if the other parent prevents him / her from seeing the child . The court shall change these decisions if the circumstances so require .

Article CARDINAL provides that in proceedings relating to the custody of children , the court shall ex officio decide on interim measures for the protection and living arrangements of the children .

Article CARDINAL provides for urgency in forcible enforcements and the need to protect children as much as possible . If the enforcement can not be achieved through fines , children shall be taken and given to the parent who was granted custody .

This Act entered into force on DATE , thereby repealing LAW DATE . LAW , however , provides for an identical provision with regard to forcible enforcement , as per the previous LAW .

Article CARDINAL § CARDINAL provides that the enforcement court is obliged to proceed urgently .

Under LAW , if needed , the bailiff may request police assistance ; should the police fail to provide such assistance , the enforcement court shall inform the Minister of ORG , the Government , or the competent parliamentary body .

Articles CARDINAL - CARDINAL contain , inter alia , provisions relating to the enforcement of final child custody judgments .

Article CARDINAL , while placing special emphasis on the best interests of the child , provides , in particular , that there shall be an initial period of DATE for voluntary compliance with a child custody order . Beyond that , however , fines should be imposed and , ultimately , if necessary , the child should be taken forcibly by the court , in co - operation with ORG .

Pursuant to LAW the police are obliged to assist other ORG bodies in the enforcement of their decisions if there is physical resistance or such resistance may reasonably be expected .


Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON , GPE .

On an unspecified date the applicant applied for early retirement , after having worked for ORG . His DATE pension amounted to MONEY . The legislation in force at the time , namely PERSON no . CARDINAL on State military pensions , allowed early retirees from the armed forces to apply for jobs in both the public and private sector , the status of retiree and that of employee being compatible .

On DATE the applicant was appointed by the mayor of ORG , a small town in GPE , to work as a head of department within ORG . His DATE salary amounted to MONEY , to which an additional allowance of PERCENT of his basic salary was paid on a DATE basis .

NORP In DATE , following the entry into force of Law no . CARDINAL/CARDINAL on rationalisation of public expenditure , which introduced certain conditions for the concurrent receipt of a pension and of a ORG - paid salary ( see paragraph CARDINAL below ) , the applicant was notified by his employer that in view of the fact that his pension exceeded the national average gross salary of CARDINAL lei ( see also paragraph CARDINAL below ) , he was obliged to choose within DATE between having his pension suspended for the duration of his employment contract , or having the employment contract terminated .

The applicant refused to make such a choice , allegedly considering that the legal provisions preventing him from receiving concomitantly a pension and a salary were unconstitutional and in breach of NORP legislation and of the human rights treaties .

Consequently , on DATE the mayor issued a decision confirming that from DATE the applicant ’s appointment as head of department was revoked , pursuant to LAW no . CARDINAL/CARDINAL .

On DATE the applicant contested the mayor ’s decision before ORG . He asked to be reinstated in his previous post and to be paid the corresponding salaries , retroactively , for the period since DATE . The applicant mainly claimed that the provisions of PERSON no . CARDINAL/CARDINAL were in breach of LAW and of LAW , as they infringed his right to work and to have his possessions , namely DATE income , protected .

ORG dismissed the applicant ’s action on DATE . It noted that the applicant did receive both a pension and a salary from a public institution , even though his pension exceeded the level of the national average gross salary , which was CARDINAL lei for DATE . Therefore , it held that section CARDINAL of Law no CARDINAL/CARDINAL , which had already been declared constitutional by ORG , was relevant to his situation and justified the termination of his employment in a public institution .

Concerning the alleged breach of the applicant ’s right to work , the court held that he was still entitled to receive a salary if he were employed in the private sector ; furthermore , the contested measure was not discriminatory , since it applied equally to all persons that were in the same situation as that described in the legal instrument .

The applicant lodged an appeal on points of law against this judgment , invoking also a breach of his rights under LAW No . CARDINAL to LAW CARDINAL of the Convention , Article CARDINAL of Protocol No . CARDINAL to LAW CARDINAL paragraph CARDINAL of LAW .

His appeal was dismissed on DATE by ORG . The court reiterated that the provisions of the disputed law had been declared constitutional by ORG , its decision being final and binding . In so far as the applicant ’s criticism of the law coincided with the arguments already assessed and taken into consideration by ORG in its reasoning , the court was bound to follow ORG approach . It followed that the mayor ’s decision to terminate the applicant ’s employment was lawful and in compliance with LAW .

Law no CARDINAL/CARDINAL , concerning the reorganising of public authorities and institutions , rationalisation of public expenditure , provision of support for the business field and compliance with the agreements signed with ORG and ORG , came into force on DATE . Its chapter PERSON was dedicated to “ Measures regulating concurrent pension and salary entitlements , aimed at reducing public expenditure ” .

DATE Anyone entitled to receive a pension , under either the ORG pension scheme or another pension scheme , who is also entitled to receive a salary pursuant to an employment contract or act of appointment within a public institution , whether national or local ... , shall be allowed to combine the pension with the salary if the pension received is lower than the national average gross salary , as validated by LAW .

DATE The provisions of paragraph CARDINAL shall be applicable to persons who :

( a ) at the time of the entry into force of this chapter , are retired and enjoy concurrent pension and salary entitlements ( pensionari cumularzi ) ;

( b ) after the entry into force of this chapter , begin to enjoy concurrent pension and salary entitlements .

CARDINAL – Persons who are retired and fall under the provisions of section PERSON ) ( b ) and who practise a profession pursuant to an employment contract or an act of appointment shall have an obligation , within DATE following the entry into force of this chapter , to express in writing their choice between having the payment of their pension suspended while they practise that profession or having their employment / appointment terminated , in the event that the amount of their net pension exceeds the national average gross salary , as validated by LAW ...

Refusal to comply with the obligation to express a choice within the deadline set out in section CARDINAL ... shall constitute justification for the termination of employment , whether it was based on a contract or on an act of appointment .

If the choice is expressed within the time - limit set out in section CARDINAL ... , the payment of the pension shall be suspended from DATE .

Any payments received unduly shall be recovered from the retiree , in compliance with the general rules on the statute of limitations / negative prescription .

The above - mentioned provisions of Law no . CARDINAL/CARDINAL have been subjected to the scrutiny of ORG , both before its promulgation ( pre - legislative review ) and after its entry into force ( postlegislative review ) , as follows .

On DATE CARDINAL NORP MPs seised ORG of a request for pre - legislative review of constitutionality concerning sections CARDINAL of Law no . CARDINAL/CARDINAL . ORG gave its decision on DATE , finding that the impugned legal texts were in compliance with LAW .

While stating from the outset that the provisions of the impugned law could not apply to persons whose mandates were provided for by LAW ( for example , high - ranking officials ) , the court mainly stated , on the issue of concurrent pension and salary entitlements , that no constitutional provision prevented the legislature from prohibiting the concurrent receipt of both pension and salary , provided that such a measure was applied in an equal manner for all citizens , and that any potential differences in treatment were proved to have a legitimate aim . At the same time , the context in which the impugned measure was taken was an exceptional one , having regard to the global crisis on a financial and economic level .

ORG further stated that the legislation allowed , as a rule , the concurrent receipt of pension and salary , if the pension was lower than a certain level ; the level taken into account was expressly prescribed by law , and was thus predictable and determinable , while at the same time reasonable . The exception to the rule of combining both incomes was justified by the exceptional economic circumstances and applied only to those who were employed or appointed in the public sector , for the purpose of rationalising public expenditure , while also securing a certain level of income DATE estimated as reasonable – for everyone . In so far as the measure applied equally to all those concerned by the legal instrument , it could not be regarded as discriminatory .

In conclusion , the court held that the legislature had full discretionary power to institute such measures as imposing a certain level of secured income , in so far as they were reasonable , proportionate and justified by a public interest .

Subsequently , ORG was seised of several other complaints regarding the alleged unconstitutionality of sections CARDINAL of Law no . CARDINAL . In its decisions of CARDINAL and CARDINAL DATE , CARDINAL and DATE , CARDINAL DATE and DATE , ORG upheld its previous reasoning and confirmed that the law was in compliance with LAW . At the same time , the court reiterated that the measure could not be regarded as discriminatory , in so far as the employees in the public sector were not in a similar situation to those working for private employers , essentially owing to the fact that their incomes were dependent on the ORG budget .