PANAMA Law and Practice Contributed by: Inocencio Galindo, Omar Rodriguez, Maria Eugenia Brenes and Joy Paull Torres, Morgan & Morgan
• repentance, when, by acts subsequent to the execution of the act, the agent has diminished or tried to reduce its consequences; • the effective collaboration of the agent; and • to have committed the crime in conditions of diminished capacity. 1.7 Damages and Compensation In order to claim compensation, the victim of the crime must first prove the occurrence of the crime and, sec - ond, that the crime caused them damage and harm. It is necessary for the victim to prove the amount of damage and harm they claim to have suffered as a result. The trial court is responsible for convicting a person of a crime and at the same time for declar - ing civil liability arising from the criminal act. No class action procedures or collective redress mechanisms are available in Panama’s criminal justice system; unfortunately, class actions are only found in con - sumer protection civil actions under Law 45 of 2007. 2. Enforcement 2.1 White-Collar Enforcement Authorities There is no civil or administrative enforcement in crimi - nal investigations (although evidence of crimes may arise from the investigation of administrative offences, and this evidence would need to be sent to the pros - ecutor for criminal investigation and/or prosecution). Only the criminal authorities – specifically the Public Prosecutor’s Office – have the competence to inves - tigate white-collar crime. Under the laws on compliance and on prevention of money laundering, financing of terrorism and financing of the proliferation of weapons of mass destruction, a series of powers has been created for the control enti - ties – namely the Superintendency of Banks and the Superintendency of Non-Financial Entities. Said enti - ties gather and have the duty to provide information to the prosecutors for the early detection of money laundering, financing of terrorism and financing of the proliferation of weapons of mass destruction. With respect to public policy/political pressure, in general, corruption and crime in the context of public contracts, as well as related money laundering, have
been subject to increased investigation and prosecu - tion. Political pressure affecting enforcement cannot be disregarded, but this has not impeded high-profile politicians and private persons from criminal investi - gation/prosecution. Cases under the criminal accu - satory system ( sistema penal acusatorio SPA), which came into effect in 2012 are expected to expedite investigation and prosecution of said offences (vis-à- vis the prior criminal prosecution system). 2.2 Initiating an Investigation Investigations of white-collar crimes can be initiated ex officio, by complaint or by direct accusation. This means that authorities can start an investigation on their own initiative, in response to a complaint filed by an individual or entity, or based on a formal accusation made by an interested party. This approach allows for more flexibility and effectiveness in the detection and prosecution of such crimes, ensuring that appropri - ate measures are taken regardless of how the crime is discovered. 2.3 Powers of Investigation The authorities responsible for investigating white- collar crime have broad freedom to conduct any type of investigation, if it relates to the facts under inves - tigation. However, they must avoid making broad or vague requests for information in the hope of uncov - ering incriminating evidence by chance rather than through targeted investigation. Authorities and pros - ecutors must be careful not to engage in fishing expe - ditions that lack specific grounds or probable cause. Individuals and authorities are required to provide the information needed to investigate these crimes. The official in charge of the investigation has legal powers to execute all matters related to this inquiry. Prior to the initiation of a criminal investigation, and in terms of prevention related to anti-money laundering (AML) or countering the financing of terrorism (CFT), obligated entities must take measures for registra - tion, liaison, due diligence and reporting of suspicious transactions. These obligated entities include: • entities engaged in financial services and insurance business; • companies in the Free Zones in the Republic of Panama;
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