PANAMA Trends and Developments Contributed by: Inocencio Galindo, Omar Rodriguez, Maria Eugenia Brenes and Joy Paull Torres, Morgan & Morgan
The legal person will be punished for not having organ - ised itself adequately to avoid or considerably reduce the risks that its activity generates, expressed by the possibility that some natural person takes advantage of such a structural failure of the organisation to com - mit crimes that harm third parties. Therefore, it can be affirmed that criminal liability of the legal person is totally independent of the culpability of the natural person who committed the crime. Adequate self-regulation programmes or compliance programmes must include the objectives and val - ues of the entity. Depending on the sector in which it operates, it must adopt measures for due compliance, according to the complexity or possible harm derived from its activities, and for the prevention of criminal conduct. In this context, compliance programmes emerge as an internal normative body that manages criminal and administrative risks, structured considering a series of measures with a common objective: to promote compliance with legal norms and ethical rules in the entity, preventing the breach of existing regulations, including the commission of criminal acts. Compliance is not based on a legal duty in the strict sense, but rather on an incentive to better position the entity in the face of certain risks and scenarios with criminal consequences. When criminal liability is imputed to the legal person for not having organised itself adequately to mitigate risk of criminal acts in its business, the basis for its punishment will be what it did not do but should have done – ie, organise its structure in such a way as to prevent or considerably hinder the commission of crimes by the natural persons acting within its organi - sation. Therefore, an entity is not sanctioned directly for the criminal conduct of an individual, but is punished for factual scenarios of omission by the entity – essen - tially, for not adopting mechanisms of organisational compliance and adequate risk management inherent to its activity, which encompasses both the material sources of risk or danger and the personnel that man - age or employ these sources of risk or danger.
Consequently, the illicit act that is punished is of an omissive character: not having an adequate culture of regulatory compliance. If it is proven that the compliance programme in place exceeds all standards, and that the person commit - ted the crime by evading the effectiveness of these controls, the entity will be exempt from liability. This involves verifying that relevant parameters were fol - lowed to detect, avoid and address the conduct of applicable natural persons, showing that the entity was not indifferent to the consummation of the crime. The authors consider that the liability of the legal per - son must be based on an organisational defect. If a company has correctly established the management, organisation and control mechanisms to avoid crimes, and despite this a criminal act is committed, the entity will not be criminally liable, as there is no culpabil - ity. Furthermore, if, once the crime is committed, the company demonstrates adequate post-criminal behaviour, proving that the event was isolated and adopting the relevant internal norms to prevent new crimes in the future, the culpability and the penalty may even disappear. A new proposal for the criminal liability of legal persons In the Panamanian legal system, there are no proce - dural rules that guide or delimit the manner in which a legal person could be incorporated into the criminal process. Therefore, there is no clear or specific pro - cessing of cases in this matter; rather, through juris - prudence, doctrine and comparative law, the practice has been to achieve the appearance of legal persons in the process and verify potential criminal liability through the imputation of those natural persons who in one way or another have influenced the behaviour of the collective entity. In order to fill this legal gap, Bill 160 of January 2023 has been presented before the National Assembly, and seeks to create a regulatory regime for the crimi - nal liability of legal persons in Panama. According to the introduction of said bill, it is based on the need to implement a special regime supplemen - tary to the Criminal Code and the Criminal Procedure
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