SCC returned for a new consideration to the Appellate Court – Sofia the case against Yanko Popov and Marcelo Jotolov for extortion. This is the process known as the “Octopus" case.
Alexey Petrov, who was killed last year, and Anton Petrov-Hamstera, who died after a jeep accident, were also defendants.
The two received suspended sentences for extortion, but Popov asked to be acquitted, and the prosecutor's office protested Djotolov's suspended sentence. The Supreme Court believes that the case should be re-examined for both, as it was not investigated clearly enough whether there were threats.
Here is the court's full announcement:
With Decision No. 439/09.08.2024 in criminal case No. 521/2023, a three-member panel of the Supreme Court of Cassation (SCC) annuls Decision No. 87 of 01.03.2023, issued under v.n.o. h.d. No. 1023/2022 of the Court of Appeal – Sofia, and returns the case for a new examination by another panel of the same court from the stage of the court session.
The case was initiated on cassation appeals of the defendant Popov and his lawyer against the decision of 01.03.2023 under v.n.o.h.d. No. 1023/2022 of the Court of Appeal – Sofia, with which the verdict of 09.11.2018 under the Criminal Code was confirmed. No. 633/2015 of the Specialized Criminal Court.
With the first-instance verdict, Yanko Popov and Marcelo Djotolov were found guilty in that in the period from 09.01.2007 to 04.04.2007 in the city of Pleven, the city of Sofia and the city of Belene under the conditions of a continuing crime , in order to force Nikolay D. to assume a property obligation and dispose of belongings, threatened him with violence and illegal actions with serious consequences for him and his relatives, and the acts were committed with the participation of an official (Marcello Jotolov) , are accompanied by a threat to kill and were committed by two persons, which is why and on the basis of Art. 213a, para. 3, item 5, para. 2, item 1 and item 4, para. 1 of Art. 26, para. 1 of the Criminal Code and Art. 55, para. 1, item 1 of the Criminal Code, each of the defendants was sentenced to three years of imprisonment, the execution of which was suspended for a probationary period of five years, on the basis of Art. 66, para. 1 of the Criminal Code, and a fine of four thousand BGN. The defendants were acquitted for the fact that the act on 09.01.2007 in the city of Pleven was committed with the complicity of Aleksei Petrov and was accompanied by the infliction of minor bodily harm, as well as that the acts of the ongoing crime were committed by a person under Art. 142, para. 2, item 8 of the Criminal Code and in complicity within the meaning of Art. 20, para. 2 of the NC.
By decision of 29.06.2021 of the Appellate Specialized Criminal Court, the first-instance verdict was confirmed in this part.
With a decision of 21.09.2022 of the Supreme Court of Appeals, the appellate decision was canceled in the part that confirmed the verdict regarding the conviction of Yanko Popov and Marcelo Jotolov, and the case was returned to this part of the Sofia Court of Appeal for a new hearing.< /p>
With the now contested decision of the SAC, the first-instance verdict is confirmed in the part concerning the conviction of the defendants Popov and Djotolov.
All grounds for cassation are cited in cassation appeals. Alternatively, it is requested that the defendant be acquitted, his sentence reduced or the appellate decision annulled and the case returned for examination by another panel of the Sofia Court of Appeal.
The decision-making body of the Supreme Court finds the appeals well-founded. In a detailed justification, the supreme judges accept that when passing the contested judicial act, the mandatory instructions of the cassation instance, given in its decision of 21.09.2022, were not fully complied with, and that the appellate decision does not fully comply with the norm of Art. 339, para. 2 of the Criminal Procedure Code, which obliges the appellate authority, when confirming the sentence, to state the reasons why it does not accept the arguments presented in support of the appeal or protest. The current cassation panel also considers that there were violations in the implementation of the evidentiary activity of the deciding court.
The supreme judges accept as well-founded, although not with regard to all the reasons presented, the objection in the cassation appeals that during the new consideration of the case, the mandatory instructions of the Supreme Court, given in the decision of 21.09.2022, were not fulfilled in their entirety. The previous the composition of the present instance found a lack of distinction between the threats formulated by each of the defendants, and in the now controlled decision regarding the first act included in the ongoing crime, this defect was corrected and the perceived facts outlined which lines were from whom sent – by the defendant Popov or by the defendant Djotolov. In their current decision, the supreme judges found an internal contradiction in the appellate decision attacked before them, since first of all the court act objectified the responses of each of the defendants, and further on only the defendant Popov was named as their author. An inconsistency in the perceived facts and the confirmation of the conviction of the defendant Djotolov for complicity in the second act of the continuing crime is noted. The supreme judges emphasize that for this act the incriminating facts are that the defendants had at least three telephone conversations in the period 03/01/2007 – 04.04.2007, in which threats were made to the witness D., and only the defendant Djotolov participated in the latter, and this activity was assessed as one crime committed with the complicity of the two defendants. In the challenged decision, the court assumed that there were two conversations, in one of which only the defendant Popov talked and threatened the witness, and in the other – the two have repeatedly threatened him. The courts of first instance completely uncritically adopted the construction proposed by the prosecution, without taking into account that the extortion under Art. 213a of the Criminal Code – the crime for which charges have been brought is a crime of formal commission and is completed by making the threat and bringing the victim to the knowledge of the behavior desired by the perpetrator. In this situation, the supreme judges find that considerations should have been presented as to whether it concerns a single act and whether the defendant D. is a co-perpetrator in this act.
The decision-making body of the Supreme Court accepted as not completely eliminated another violation established during the previous cassation review of the case and expressed in not specifying which expressions uttered by the defendants in the first act contained an expressed threat and which of them were interpreted as threatening . Starting from the principled position that, in order for the composition of extortion under Art. 213a of the Criminal Code, it is necessary to establish the implementation of the executive act, expressed in a threat, as the means by which the perpetrator causes fear in the victim are comprehensively listed, the supreme judges explicitly point out that the deciding court must analyze whether in the specific case they are used funds from the listed. As far as the accusation is about threats of violence and illegal actions with serious consequences for the victim, his wife and child, the cassation panel considers that the appellate court should have assessed and objectively assessed whether a threat of violence was actually committed and what the illegal actions consisted of with serious consequences and what is the active behavior that would endanger the victim and his relatives.
According to the present judicial panel, the appellate court did not convincingly answer the objections of the defendant P. and his defenders regarding the basis of the conviction of the testimony of the witness D., summarized in accordance with Art. 281, para. 4 of the Code of Criminal Procedure, and whether the prohibition under Art. 281, para. 8 of the Criminal Procedure Code (prohibition that the verdict is based only on testimony read in accordance with para. 4). The supreme judges state that with regard to the specific facts justifying the proportionality of the acts – the specific threats uttered by the defendants P. and D., and their direction, factual data are mainly contained in the testimony of the witness D. of the pre-trial proceedings, summarized in accordance with Art. 281, para. 4 of the CPC. In his cross-examination in the trial phase, this witness did not point to anything related to the above-mentioned circumstances. The decision-making body is categorical that, in order to be placed at the basis of the conviction, the court had to present convincing reasons why it considers that the prohibition under Art. 281, para. 8 of the CPC has been overcome. This procedural prohibition is designed to guarantee the fairness of the process according to the criteria of Art. 6 of the ECHR, insofar as the use of testimony, including parts of it, of a person whom the defendant could not confront at the time of their deposition, impairs the equality of resources of the parties in the trial.
The supreme judges accept that the decision should be annulled with respect to the non-appealing defendant D., given the factual and legal indivisibility of the substantive issues of the charge against the defendants P. and D. for a crime under Art. 213a, para. 3, item 5, para. 2, item 1 and item 4, para. 1 of Art. 26, para. 1 of the Criminal Code and in view of the provision of Art. 347, para. 2 of the Criminal Procedure Code, according to which the cassation instance cancels or amends the sentence or the decision also in relation to the non-appealing defendants, if the reasons for this are in their favor.