The Prosecutor’s Office will pay BGN 1.8 million in compensation for the ‘Octopus’ case

The Prosecutor’s Office was ordered to finally pay BGN 1,800,000 (one million and eight hundred thousand levs) to a private company. The record compensation was issued by an unappealable
decision
of the Supreme Court of Cassation of 12.08.2022. The company suffered substantial material damage from the prosecution’s actions, the court said. This amount is unprecedented in Bulgarian case law – and clearly illustrates how prosecutorial lawlessness (because they are defined as exactly such by the Supreme Court of Cassation) is actually very, very expensive for us, the Bulgarian taxpayers.

The background

The company Gold Leasing Ltd. has the subject of activity rental and operational leasing of cars and light commercial vehicles. Or rather, there was before gentlemen the caps could baste him. In early 2010, at the height of the swirling tsvetanovshtina, the Ministry of Interior and the Prosecutor’s Office raided the company’s office and seized all office computers and dozens of sacks of documents. This happened within the framework of the mega-operation “Octopus”, of which in the end only a small part went to court – the so-called. “Little Octopus.” So this “little” has been djuring (in Georgi Cholakov’s phrase) for a long time through the courts, and ultimately passes through the already closed Special Court. Almost no one was convicted in this case, including the famous Tractor, and for seven months it has been
announced
for decision in the Supreme Court of Cassation. So the final is expected to come soon, and if it will be inglorious.

Either way, the forceful seizure of, essentially, the company’s productive assets lead to it ultimately forgiving up its business. And this is because the prosecution has repeatedly refused to return his computers and documentation – or at least provide him with copies – so that he can continue his commercial activity. And so four years, until finally (in 2014) the prosecutors quietly terminated the pre-trial proceedings. However, even after that, they continue not to return to the company the assets necessary for its activities. To this day, calculate for yourself how many years these are. At the same time, the company went bankrupt. Most companies, especially in the financial sector, would not be able to last 4 months if they were worn out in this way – let alone for 4 years or more.

The Case and the Record Amount

Against the backdrop of total commercial losses of BGN 1.6 million, the company decided on the only possible – and at the same time unconventional – step, namely, to sue PRB itself for damages. However, this is not as easy as writing and submitting a claim. Over the years, a number of courts, especially at district and appellate level, have actually decided that the PRB cannot be held liable for damage to legal entities – but only for damage to individuals. The most common case, of course, is of illegally accused and/or held in custody – and it is such cases that form the mass practice of the hundreds of cases against the PRB every year. But convincing judges to award compensation to a legal entity is not an easy task.

This is clearly evident from the motives, for example, of the first instance SCC – where the company initially lost the case. Judge Margarita Georgieva’s logic is a bit strange, we would say. On the one hand, it held that the prosecution’s perennial inaction was unlawful (i.e. illegal). On the other hand, however, it does not accept that the damage to the company occurred precisely because of that inaction. Go find out – interesting what else would they have come from, then?! Either way, the SAS reversed the SCC’s decision – and awarded BGN 800,000 in principal, plus legal interest from the date of filing the lawsuit. The decisive motive of the SAS is precisely this – the prosecution bears property responsibility for its inaction. The court even points out that the specific supervising prosecutors are personally guilty – but according to the law, the mass is paid not by them personally, but by their employer (i.e. PRB).

And so we come to 31.01.2022, when in open court the SCC hears the case. The prosecution doesn’t even bother to send a representative to a courtroom, apparently so as not to pick up shame. Although both parties appealed the appellate decision, the Supreme Court of Cassation allowed cassation appeal only on the company’s appeal – the cassation appeal of the PRB was cut off entirely. The lawyers of the firm point to abundant practice of the ECJ and the EPSC during the pleadings – while the prosecution does not indicate… nothing. Nothing other than written notes painted with general, hollow phrases and verbal equilibristics (and not at a very high level). Seven months later, the final decision of the SCC came out. Although not as voluminous as the decision of the CAC, this decision is extremely valuable as a practice, as for the first time a supreme court in Bulgaria awards damages of such a huge amount – and to a legal entity! Therefore, we will dwell on it in a little more detail.

First of all, the SCC awarded the company an additional BGN 220,000, which claim was not respected by the SAS. The court panel held that these were receivables from lessees that had been written off by decision of the company’s General Assembly – i.e. this was a 100% loss. The court also held that the PRB was liable for this loss, and in this connection it is worth quoting in full the following passage: “This is also the case-law of the CJEU, which holds that the causal link between the damage suffered and the unlawful conduct of the debtor is not interrupted when the creditor fails to perform a certain act to prevent the damage from occurring, when that act constitutes an unusual commercial risk (Case T-178/98, confirmed by the ECJ in Case C-472/00 P).“Obviously, the prosecution, claiming the opposite, is not familiar with the practice of the CJEU – and even if it is familiar, it does not care. Or as the Shopp said: “Well, on (i.e. Luxembourg) that you told me!” The judges did not accept the other main prosecutor’s argument, namely that the statute of limitations had expired to claim property responsibility. This is, to put it mildly, brazen, because there is no way to run a statute of limitations as long as the prosecution itself is in de facto possession of the documents from the lack of which the damages have resulted! In other words, the prosecution tries to invoke and enjoy the fruits of its own unlawful behavior in order to evade responsibility and win the case “ex officio”. Such a flat and fatmash argument, however, cannot pass — or should not pass — before any self-respecting judge. At least in front of three judges – and at least in the SCC.

The solution is also remarkable with something else. As the judges themselves write, “Bulgarian jurisprudence for decades denied legal entities the right to claim non-pecuniary damage.” However, this decision, together with only a few such decisions, reverses this practice in the last 2-3 years. In fact, the company also claims the symbolic (in this case) BGN 50,000 for non-pecuniary damages as a result of the deterioration of his good name by the prosecutorial attack against him. It is the SCC that recognizes his right to receive them, although not in full (only 10,000 were awarded). After all, every trader has a reputation that is one of his most valuable assets. When this asset is damaged, i.e. when this reputation is damaged – in this case, by prosecutorial-Stakhanovo-Tsvetanov enthusiasm – this damage is subject to compensation.

In the end, in addition to the above 10,000, the SCC awards a total of ONE MILLION and twenty thousand leva compensation as “principal”. Since the case was filed in 2015, however, the Casketura also owes interest for the last 7 years – or a total of about BGN 800,000. Therefore, the total amount formed is over BGN 1 800 000. Of course, the interest will continue to accumulate every day-and-hour – until the moment when the prosecutor’s office does not pay and repay. And for dessert and to top it off, the prosecutor’s office will have to pay a total of BGN 30,000 in state fees and court costs. That’s right, after all.

The Prosecutor’s Office as a Continuous Cask

Over the past few years, other such decisions have begun to pile up, although they rarely come close in scale to the present. For example, recently the prosecution was
sentenced
(albeit only at first instance) to pay one million leva to a person whose business has ruined, bringing him an illegal and unsubstantiated charge. In this case, we can thank an anonymous hero (his name is not publicly known) from the Regional Prosecutor’s Office Targovishte. A reasonable assumption can be made that the accusation has been brought – respectively the business is ruined – to order, so that the company can then be bought for cheap. Realistically, it was really bought soon after – and for free. But about this – maybe some other time (in detail).

The general problem is that the matrix of the commissioned prosecutor’s office, although implemented for the first time by some notorious Plovdiv magistrates, over the years has been refined to perfection. And so nowadays PRB can be used as a huge, stupid hammer – with which to blur everyone and everything that is ordered. Or it can be used as a thin scalpel to lightly “clip” someone’s wings and ensure someone’s specific behavior. Report –
pre-trial
proceedings against the head of the NRA Rumen Spetsov (e.g. 10608/21) and the ingloriously
failed
“revision” of Delyan Slavchev Peevski. However, what the two cases have in common – the hammer and the scalpel – are the solid benefits that we subsequently have to pay. Because let us have no illusions – we pay them, not the prosecution. Because it is we and our taxes that are the source of the huge prosecutorial budget of BGN 330 million per year. Against the backdrop of this budget – and against the backdrop of the colossal damages awarded, which have recently become more frequent, Geshev orleva and raised her howl to heaven for a requested – but not received – budget increase of BGN 20 million. Insolence to the heavens, we would say – or rather not to the heavens, but only to the CC. The constitutional judges, however,
cut Geshev
and did not do what he wanted – namely, to pull the ears of the Finance Ministry and snap at him that he is obliged to give the prosecution as much money as he wants, whenever he wants it.
No pasarán
, comrade lieutenant (of the People’s Militia) Geshev and graduate of the Simeonovo-Magnaur Law School.

In fact, until 2016, the PRB published in its annual report the total amount of damages to which it was awarded. For each individual year this was approximately 5 million leva. From 2017 to 2021, however, the prosecution began to hide these key statistics. Journalists had to make their own
calculations
based on court registers, and NGOs had to conduct
cases
under the APIA for this information. Either way, the prosecution is obliged to publish this information instead of hiding its shame (figuratively speaking). But the bigger problem is what to do and how to move forward. We do not know that in another European country the prosecution has been sentenced to such huge sums for its illegal actions – neither as an absolute value nor as a percentage of its budget. Under Bulgarian law, individual prosecutors do not bear any responsibility – including property – when the prosecution is ordered to pay compensation. In theory, they should bear at least disciplinary responsibility, for example such as salary reductions, reductions or even dismissals. In practice, however, even this does not happen! And it’s not hard to explain why. First, the PC(P) of the SJC is entirely and solely dominated by the Prosecutor General (currently Geshev). There can and can not pass disciplinary measure – especially more radical – against which Geshev is opposed. Moreover, there is no way to initially come to disciplinary proceedings against a prosecutor for whom the PRB was convicted – because there is no one to submit such a request. Have you ever seen such a request? No, right? Well, you won’t see. And regarding the “independence” of the SJC PK(P) from the Main One, it is enough to laconically recall the screenshots from Geshev’s phone, when in the National Assembly he was detected cheerfully chatting with Pi Ar Sevi Boyko. Because then we saw another chat: Evgeni from VSS had written to Geshev “Fingers crossed!” (demek, do not close the NS favorite Geshevu special organs – well, they closed them anyway.) So, so much on the subject of the SJC.

After all, in our view, the only remedy is to introduce some mechanism for “indexation” the prosecution’s budget in such convictions – as well as some form of regressive claims by the state against specific prosecutors. Think only of a prosecutor (pardon investigator) The euro and its feats, for example. It would be delirious to expect that ministers such as Tsetska Tsacheva or Barney Rubble, say, would dare to bring such claims on behalf of the executive. The last galaxy of justice ministers, on the other hand… That’s another thing now. Because they showed that they are involved from a completely different dough – starting from Professor Stoilov, let’s get to Krum Zarkov now. It is not excluded, perhaps, to expect such a step in the near future – whether from Minister Zarkov or from the next regular justice minister. As a benchmark in this direction, we can point out Minister Nadezhda Yordanova’s
plans
to move towards a “program budget of the prosecution” – i.e. money for reforms and (most of all) results. If there are no results, there is no money. It’s (or it can be) simple. At the end of the day, we know that “It’s easy to be simple. It’s bad to be complicated.“– as Geshev’s coalition partner Boyko Borisov said. And we know it, because in the same recording we heard how Geshev “Abe and I love to be crazy – but you, boss, do very successfully.” And so, while Geshev and his prosecutors pretend to be crazy, perform dirty errands, hit some and systematically umbrella others (especially if the others are called
Peevski
and
Dogan
) – the state pays millions. And it will continue to pay – as much as even more colossal claims are being (or are already underway) are being set (or are already underway). Meanwhile, the Instrument is still in power – together with its coalition partners Dogan, Borisov and (recently) the Uchindolsk Television Hologram – as Slavi protesters defined on June 22, during the rally in support of the cabinet, just before the no-confidence vote. Or in other words – the Instrument is supported by the coalition Dogansaray, Bastunsaray and Diwansaray. It’s nice, only it’s expensive. Too expensive, as we told you above.

***

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