PANAMA Law and Practice Contributed by: Inocencio Galindo, Omar Rodriguez, Maria Eugenia Brenes and Joy Paull Torres, Morgan & Morgan
4.2 De Minimis Panamanian criminal law provides very well-defined exemptions from guilt; however, most of these would apply to common crimes – for example, legitimate defence after an unjust aggression, lack of provoca - tion and the use of a rational means to repel the immi - nent damage. When talking about white-collar crime, everything is reduced to the intentionality of the act. Given that ignorance of the law does not exempt a person from liability, lack of knowledge that an act was illicit could hardly be used as an exception. 4.3 Plea Agreements, Co-Operation, Self- Disclosure and Leniency Article 220 of the Criminal Code provides rules on sentencing agreements, which are divided into two categories, as follows. Collaboration Agreements Collaboration agreements are designed so that the prosecutor can dispense with a prosecution in a total or partial manner depending on the information pro - vided by the collaborator, sometimes even negotiat - ing the provision of information in exchange for the imposition of a lesser sentence. Penalty Agreements In contrast, a penalty agreement involves the accept - ance of criminal responsibility, the penalty for which cannot be less than a third of the penalty that would otherwise be imposed for the crime under investiga - tion. 4.4 Whistle-Blower Protection Panama’s criminal laws provide protections as incen - tives for whistle-blowers. These protections include the possibility of not appearing in the proceeding and having their identity safeguarded by the prosecutor. However, it is important to note that, during the trial, the defence may have the right to know the identity of the protected witness. This balance aims to encour - age the reporting of wrongdoing while ensuring a fair trial process. In the realm of antitrust law, within the civil and admin - istrative spheres, whistle-blower protections and ben - efits are granted exclusively to the first individual who reports the wrongdoing. Subsequent witnesses who
provide information leading to evidence of monopolis - tic practices or actions that harm economic free com - petition and free market entry in the production, pro - cessing, distribution, supply or marketing of goods or services do not receive the same benefits. This policy aims to incentivise early reporting while maintaining a fair and competitive market environment. Whistle-blowing can significantly impact trade secrets and confidential information, potentially causing com - mercial disadvantages to a corporation. When an employee discloses information about illegal or uneth - ical practices, they might inadvertently reveal sensi - tive data that competitors could exploit. This could include proprietary technologies, business strategies or customer information. However, there is a delicate balance to maintain. Legal frameworks often provide protections for whistle-blowers to encourage the reporting of wrongdoing while also safeguarding cer - tain types of confidential information. For instance, whistle-blower laws typically include provisions to protect trade secrets and other sensitive informa - tion from unnecessary disclosure. The expectation is that only information directly relevant to the illegal or unethical activity should be disclosed, and measures should be taken to minimise any potential harm to the corporation’s legitimate business interests. The rule that protects a protected witness is set out in Article 340 of the Criminal Code, which states that the prosecutor’s office, within the development of the investigation, at the time of presenting the accusa - tion and announcing its elements of evidence, may accompany this with the identification data of wit - nesses and experts in a sealed envelope. This meas - ure loses force when the identity of the witness may be known to the defence in the intermediate phase of the criminal process, which leaves them exposed to any danger before the oral trial. The protected witness ceases to be a protected witness in the intermedi - ate phase, since they are revealed to the defence – a situation that could possibly jeopardise the amount of evidence to be debated in oral trial. Everything will depend on the way the defence acts and its proce - dural loyalty to the process. There is no anonymous reporting channel provided by regulators or prosecutors – the truth is that criminal
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