A large number of our fellow citizens choose to buy their pharmaceutical products and preparations through the online trafficking of medicines. The phenomenon of buying medicines and supplements from various companies has existed for many years. A large number of our fellow citizens choose to purchase their pharmaceutical products and preparations online because of the low prices available on the market. They are distributed via the internet as medicines, medical devices, food supplements, or cosmetics without holding the relevant approval of the National Organisation for Medicines (EOF) (as medicines) and without having been notified or certified pursuant to the applicable provisions (as food supplements, cosmetics and medical devices).
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BEFORE THE PUBLIC PROSECUTOR OF THE ATHENS COURT OF FIRST INSTANCE
THROUGH
THE COMPETENT POLICE DEPARTMENT CONDUCTING THE EXAMINATION OF NEA PERAMOS, KAVALA
POLICE DIRECTORATE OF KAVALA
WRITTEN EXPLANATIONS
Of …………….. , with VAT number (AFM) …………………..
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In respect of the charges brought against me as a suspect, by virtue of the order dated ………… No. …………. of the Public Prosecutor of the Athens Court of First Instance, (Case Reference Number ABM: ………..), a preliminary examination was ordered for the offences of fraud committed in concurrence (κατά συρροήν απάτη) as well as for market regulation offences, all of which I categorically deny having committed, submitting the following.
I. BACKGROUND
I am the founder and legal representative of the company under the name «………….. Bulgaria Ltd», known by the distinctive title …………………… and based in Bulgaria, ……………… (exhibit 1).
My company has as its business object organic food supplements and health products approved by the Bulgarian Food Safety Agency (BFSA) (exhibits 2, 3, 4).
A core conviction of the company is that prevention is the best treatment. To this end, with affordable but high-quality health supplements, we target the financially sensitive population, who prefer organic herbal supplements that prevent diseases rather than their subsequent treatment with chemical medicines that have undesirable side effects.
In 2020 my company was awarded the Annual Balkan Business Award for innovation and steady growth (exhibit 6). Every purchaser of our products has the right to cancel their purchase and receive a refund within 14 days of receipt, without any justification required.
We have never until now encountered any problem with the consumers of our products or with the authorities.
On …………….. in a Press Release posted on the website of EOF, the public was warned that several products of my company, distributed online as food supplements, were erroneously presented as having therapeutic properties. This fact suggests pharmaceutical action, although the products do not hold the relevant approval of EOF, which simultaneously notified the competent authorities.
However, the reality is as follows.
On 01-10-2015 I hired at my company as Sales and Marketing Director ……………. with Unified Citizen Number ……………… resident of Sofia in the …………. district at ……………… (exhibit 7), who supposedly had experience in promoting food supplements, as she also stated in her CV from her prior experience in multinational companies in the British and American markets.
She, however, turned out to have no idea how food supplements are promoted, and organisationally she had neglected the company’s websites and their updating with new telephone numbers, emails and addresses. She was eventually dismissed (exhibit 8) some months before the problems with the wrong advertisements arose. Unfortunately we did not manage in time to lift the agreements she had already concluded on behalf of our company for advertising campaigns of our products in the wrong manner.
In simple terms, I was unaware that my company’s food supplements were being unlawfully promoted in the Greek market as having therapeutic properties. I owe an apology to the above three Greek consumers for the inconvenience caused, as well as to the Greek authorities for the multitude of errors of my associate.
I never hid from the Greek authorities; anyone who wished could find me.
Neither the company nor I personally have ever had any problems with the law (exhibit 5).
I maintain a very close relationship with Greece and the Greeks, and I also speak the Greek language. My holiday home in …………… is my favourite refuge.
I am married and the mother of two minor children (exhibit 15).
LEGAL PART
Article 63 of Law 4689/2020 expressly states: «The punishability is extinguished and the prosecution ceases for misdemeanours committed up to 30.04.2020, for which the law threatens a sentence of imprisonment of up to one (1) year or a monetary penalty» (exhibit 11). In the present case, Article 387 of the Penal Code (PK) does not fall within the exceptions, because the offence in question does not concern the purchase of goods on credit.
In respect of the charges levied against me, I submit for your assessment the following elements, which transform my offence from Fraud (Article 386 §1a PK) to Fraud of Minor Value (Article 387 PK), and pursuant to Article 63 of Law 4689/2020 the punishability is extinguished and the criminal prosecution ceases, since the act was committed in September 2017.
In the case file, three consumers are mentioned who had complaints about our products. More specifically:
To ……………….. (exhibit 12) we managed to refund the sum of €58, which he had paid for the product «…………………», noting that the consumer in question had no difficulty whatsoever in finding us.
To the other two, ……………….. (exhibit 13) and Georgios Kasapidis (exhibit 14), we did not refund the amounts of €34 and €82 respectively, which they had paid for the products «……………» and «……………» (naturally we are at any time at their disposal to refund them, should they contact us).
Total €116.
However, the prices of these products are now much lower, and to prove this, I attach the current prices of €25 and €62. (exhibits 9, 10).
Total current value, therefore, of the supplements «………..» and «……………»: €87.
In the New Penal Code, Article 387 PK no longer refers to the term «trifling value», to which case-law assigned a value between €70 – €150, but rather «minor value», the legislator clearly intending to raise the threshold of value for this particular mitigating circumstance.
Given that the punishable act was committed in September 2017 and is now demonstrably of «minor value», it falls within the mitigating circumstance of Article 387 PK and Article 63 of Law 4689/2020 applies.
In the alternative, pursuant to the new Code of Criminal Procedure (Articles 45 et seq. KPD), from the moment that the stage of the preliminary examination exists without criminal prosecution having yet been initiated, and provided there are sufficient indications of guilt, the Misdemeanours Public Prosecutor, with the approval of the Appeals Public Prosecutor (Article 45 §2 KPD) or the concurring opinion of a Judge of First Instance (Article 48 §1 KPD), may temporarily abstain from criminal prosecution, either due to the minor consequences of the act (Article 45 §2 KPD), or by imposing conditions such as the payment of a specified sum of money to a charitable institution (Article 48 §1b KPD).
Because the soundness and truthfulness of my submissions is reinforced by the following documentary evidence produced, with translations into Greek attached where required, in serial order of exhibit.
DOCUMENTARY EVIDENCE
1.- Articles of Association of «………………….» and balance sheets for 2019.
2.- Bulgarian Certificate for the marketing of the preparation «……………..».
3.- Bulgarian Certificate for the marketing of the preparation «……………».
4.- Bulgarian Certificate for the marketing of the preparation «……………».
5.- General Criminal Record from Bulgaria showing my law-abiding life.
6.- 2020 Annual Balkan Business Award for innovation and steady growth.
7.- Recruitment and notification of Dependent Employment Contract of the Sales and Marketing Director ………………
8.- Dismissal and termination of Dependent Employment Contract of the Sales and Marketing Director ……………….
9.- Advertisement for the preparation «……………..» stating the new 2020 price of the preparation at €25.
10.- Advertisement for the preparation «……………» stating the new 2020 price of the preparation at €62.
11.- Article 63 of Law 4689/2020.
12.- Statement of …………………………
13.– Statement of ……………………….
14.- Statement of ………………….
15.- Family Status Certificate.
Because, from all that has been analytically set out above, the conclusion is effortlessly drawn that neither subjectively nor objectively is the charge attributed to me of fraud committed in concurrence and breach of market regulation provisions made out.
As a witness, I propose my former associate and the person responsible for the commercial confusion in the Greek market, ……………. with Unified Citizen Number ……………… resident of Sofia in the …………. district at ………………..,
FOR THESE REASONS
I REQUEST
That the criminal prosecution against me cease pursuant to Article 63 of Law 4689/2020, because the offence was committed before 30.04.2020 and does not fall within the offences excluded from the said law; alternatively, in the further alternative, pursuant to Articles 45 §2 KPD or 48 §1b KPD, that the criminal prosecution against me be temporarily suspended upon payment of a specified sum of money to a charitable organisation.
Athens, 29-09-2020
The deponent of the written explanations
- See also article Online Fraud
- See also article Hacking
- See also Methods of Online Attacks
- See also article Malicious Software
- See also article Online Attacks
- See also article Online Piracy
- See also article Software Piracy
- See also article 10 Security Practices
FREQUENTLY ASKED QUESTIONS ABOUT ILLEGAL TRAFFICKING OF MEDICINES – LAWYER
1. What sentence do I risk for illegal trafficking of medicines?
The charges typically arise within the framework of fraud committed in concurrence (Article 386 of the Penal Code (PK)), market regulation offences and breach of pharmaceutical legislation for distributing products without approval from the National Organisation for Medicines (EOF). The sentence depends on the amount of benefit, the number of consumers and whether the products were presented as having therapeutic properties. In many cases, the act may be characterised as fraud of minor value (Article 387 PK) when the total amount is limited, opening the way for cessation of criminal prosecution or commutation. With proper defence, suspension of sentence (Article 99 PK), commutation to a monetary penalty or community service (Article 80 PK) and recognition of mitigating circumstances (Article 84 PK, e.g. prior law-abiding life, good conduct after the act) are pursued.
2. What can I do if I am summoned to a preliminary examination?
At the preliminary examination stage, criminal prosecution has not yet been initiated and there is significant scope to prevent it. Written explanations are submitted with detailed background, evidence (approvals from a foreign authority, marketing certificates, biological data of the products) and legal arguments. In the alternative, temporary abstention from criminal prosecution is requested under conditions (Articles 48-49 of the Code of Criminal Procedure (KPD)), such as payment of a sum of money to a charitable organisation, or, under certain conditions, cessation due to minor gravity. Where the product was wrongly promoted by an associate or third-party marketing without the knowledge of the legal representative, the subjective intent (dolus) of fraud is rebutted.
3. Am I at fault if my associate wrongly promoted the products?
Fraud requires intent, that is, knowledge and will to mislead the consumer. Where the misleading promotion was carried out by a senior executive or marketing department without instruction from the legal representative, intent is not made out. Evidence such as the recruitment and dismissal contracts of the responsible person, internal correspondence, instructions concerning the advertising material and immediate compliance after notification by EOF reinforce the defence. An important factor is also the immediate refund to consumers who complained, which demonstrates good-faith conduct and excludes the element of deception.
4. How long does the criminal procedure last?
The preliminary examination typically lasts from a few months to one year, depending on the workload of the prosecutor’s office and the complexity of the case file. If the case is archived after the written explanations, the procedure is concluded without an oral hearing. If criminal prosecution is initiated, the listing for hearing may be delayed by one to two years. In cases with a foreign element (company abroad, witnesses resident in another country) the procedure is extended due to translations and international judicial assistance. The lawyer accelerates the outcome with a complete file from the very first deposition.
5. What documents do I need for my defence?
Documents to be gathered include the company’s articles of association, the marketing authorisations of the products from the competent authority of the country of establishment, the certificates of incorporation and quality, evidence of lawful trading, a criminal record evidencing a law-abiding life, awards or distinctions, and family status certificate. Of particular importance are the recruitment and termination contracts of the marketing officer, evidence of refunds to consumers, as well as documents showing the current prices of the products. All foreign-language documents are produced with official certified translation. A well-organised file may change the characterisation of the offence and lead to cessation of prosecution.
6. What is the lawyer’s role in such a case?
The lawyer analyses the case file, identifies the weak points of the charge and forms a defence strategy aimed either at archiving, or at reclassification of the offence (fraud of minor value rather than felony fraud), or at cessation of criminal prosecution through Articles 48-49 KPD. He drafts the written explanations, proposes witnesses, organises the evidentiary means and represents the defendant at every stage. The Law Firm ZIAMPARAS D. & ASSOCIATES has handled cases of cross-border trafficking of food supplements with an international element and exploits every procedural possibility for the benefit of the client.