SCC confirmed 150,000 BGN compensation for Gen. Shivikov due to unlawful indictment

The Supreme Court of Cassation (SCC) upheld the decision of the Plovdiv Court of Appeal, by which Brigadier General Dimitar Shivikov was awarded compensation of 150,000 BGN for a nearly 6-year-long unlawful indictment alleging he had caused damages to the army in the amount of nearly 44,000 BGN. Thus, the supreme magistrates refused cassation control and left the appellate act in force.

The case before the SCC was initiated by a cassation complaint from the Prosecutor's Office of the Republic of Bulgaria. In it, a prosecutor from the Appellate Prosecutor's Office - Plovdiv requested the cancellation of the awarded compensation of 150,000 BGN and the attorney's fee of 10,650 BGN, describing it as "excessive".

The complaint presented arguments for the incorrectness of the attacked decision and requested that it be overturned, and that the compensation awarded to the plaintiff for non-pecuniary damages and the attorney's fee be reduced.

The contested compensation is for one of a total of three criminal proceedings against Gen. Shivikov, which interrupted the military career of the Bulgarian officer. Since one of the cases ended in a fiasco before the courts, the general sued the prosecutor's office for the unlawful accusations against him.

After the cases against the general began to multiply, the second charge collapsed before the first, and according to the practice of the SCC and the conclusions of experts regarding the psychological trauma sustained, the court factored in non-pecuniary damages also from the first, unconcluded proceeding.

The first charge against Shivikov, for which the amount of compensation is now in dispute, was for official misconduct under Art. 387, para. 3 in connection with para. 1 of the Penal Code. It was initiated based on an anonymous tip, and the general was accused of committing 13 official crimes, with which he allegedly caused damages to the "Land Forces" in the amount of nearly 44,000 BGN.

According to the accusation, he provided field equipment to the municipalities of Karlovo, Klisura, Kalofer, and the local hunting association for various celebrations without requesting rent for it. In addition, soldiers were sent to help in the preparation of food for the festivities, and the general compensated them only with days off. One of the charges was that he sent soldiers to renovate his apartment, and another that he kept a soldier's driver's license for a few days.

In this case, he was charged five times, with prosecutors adding new charges each time, imposing a ban on him traveling outside the country, revoking his security clearance for classified information, and other restrictions.

On December 15, 2015, an indictment was filed at the Military Court - Plovdiv. After numerous public court sessions and the personal appearance of the defendant, on July 19, 2018, Shivikov was found not guilty of the charge of causing damage to the army. In 2019, the acquittal was confirmed by the Military Appellate Court and entered into force on January 7, 2021.

The criminal proceeding, in its pre-trial and trial phase, lasted a total of 5 years, 8 months, and 21 days.

In parallel with the case for damages to the army, two more criminal proceedings were conducted against Shivikov. A prosecutor from the Military Appellate Prosecutor's Office - Sofia separated materials from the first case, and on August 20, 2015, a new one was initiated, known as the "blanket case".

In it, Shivikov was accused of embezzlement under Art. 202, para. 1, item 1 in connection with Art. 201 of the Penal Code, and the criminal saga began after the end of the ISAF operation in Afghanistan. Military prosecutors accused him of embezzling blankets, winter sets, winter jackets, tracksuits, balls, tin mugs, and field cots. He was also charged with a document crime that facilitated the embezzlement under Art. 311, para. 1 of the Penal Code.

It was established during the case that the soldiers in Afghanistan suggested to their commander that they transport the remaining undistributed property to Bulgaria and donate it to children from orphanages. He agreed after everyone in the company accepted the idea without objections. On August 24, 2010, 104 blankets with the ISAF emblem, 87 winter sets (jacket with pants, gloves, scarf, and hat) with ISAF markings, 104 winter jackets, 135 tracksuits labeled Afghanistan, 20 balls, and 18 field cots arrived at Plovdiv airport. Military police considered this a violation, and an inspection by the Ministry of Defense concluded that there was an "illegal import of property belonging to a coalition partner".

Finally, on April 1, 2019, the SCC confirmed the acquittal of the military courts and accepted that the property in question had not been handed to the commander in the course of his service, was not property of the Bulgarian army, but was intended for distribution to the local population. The prosecution's claim that the property belonged to NATO was also not proven during the case.

Even the prosecutor from the Supreme Cassation Prosecutor's Office did not support the protest against the acquittal of the Military Appellate Court - Plovdiv at the end.

After Shivikov was acquitted at three instances, the Plovdiv Court of Appeal awarded him compensation against the prosecutor's office under the State Responsibility for Damages Act (ZODOV) in the amount of 120,000 BGN, which the SCC later reduced to 80,000 BGN for the damages from the accusation of embezzlement of the "blankets".

In an open court session on this case, the appellate prosecutor from Plovdiv, Svetlozar Lazarov, called the trial against General Shivikov a "bludgeon" (tool for repression). He said: "There is nothing to deliberate. Morality and the law in this case are in a very cruel head-on collision. Brutal accusations have been brought. I state responsibly, without hesitation, that this is a 'bludgeon' case," and recalled that Shivikov, a "NATO general, was acquitted for 100 blankets and 10 soldier's tin mugs".

"All compensations under ZODOV are out of our pocket. Because of the interference of various 'big shots' in the judicial system, things turned out like this, unfortunately."

Regarding the prosecutor's request against the 150,000 BGN compensation in the case for damages to the army, the SCC found that a third case had been conducted against Shivikov. Regarding this proceeding, the appellate court indicated that there is a lack of evidence as to when it was initiated, what its subject matter was, when it ended, and the prosecutor's resolution for its termination was not presented, but data about it is contained in media publications presented with the claim.

The third case against Shivikov was related to an accusation that he disrupted the rhythm of the soldiers' physical training by allowing them to participate in military football championships. The Military Court in Plovdiv acquitted Shivikov in this case as well, which was remanded due to a lack of motives and subsequently terminated.