PANAMA Trends and Developments Contributed by: Inocencio Galindo, Omar Rodriguez, Maria Eugenia Brenes and Joy Paull Torres, Morgan & Morgan
Code, in order to establish a transparent mechanism for prosecuting legal persons in Panama, separating the criminal liabilities of the organs of decision-making in the entity, its administration, legal representative, dignitaries, directors, council members, and other positions established in commercial laws and in the respective by-laws. Under the bill, criminal liability of legal persons is premised on the criterion of “objective dangerous - ness”, highlighting that only when a legal dangerous - ness is configured, which has endangered or injured legal interests protected by criminal law, can legal persons be held criminally liable within criminal pro - cesses in Panama. The bill provides that any of the following events shows “objective dangerousness”: • when it is proven that there was an organisational defect verified by the absence of preventative con - trols in the legal person; • when it is proven that there was express consent or acquiescence from the management or owners of a legal person; • when it is proven that the legal person is used solely as a facade to commit a crime; and • when it is proven that the legal person is used sole - ly for the integration of assets that are products of the commission of crimes. For its part, in its Article 15, the bill indicates the cases or scenarios in which legal persons can be declared criminally responsible, among which are: • when a legal person is created fraudulently as a facade to conceal a crime; • when a legal person is used fraudulently to commit a crime by its legal representatives, administrators, statutory managers and/or its ultimate beneficiar - ies; • when crimes are committed intentionally or negli - gently in the name or on behalf of the entity, and for its direct or indirect benefit, by its legal rep - resentatives or by those acting individually or as members of an organ of the legal person, author - ised to make decisions on behalf of or on account of the legal person or hold powers of organisation
and control within it, provided there is an organisa - tional defect in its structure; and • in the case where it is shown that it is a legal entity created by its promoters, founders, administrators and/or representatives for the purpose of evading criminal liability. In summary, the authors deem Bill 160 to represent an advancement in the sense of establishing crite - ria for the attribution of criminal liability of legal per - sons, since the current legislation is not sufficiently developed as only one article in the Criminal Code and another in the Criminal Procedure Code currently comprise the regime for this type of criminal liability. Bill 291 – the General Anti-Corruption Law: Progress or Inquisitorialism? Bill 291, called the “General Anti-Corruption Law”, has as its main objective the creation of a comprehensive regulatory framework for the specialised investiga - tion of crimes against the public administration and derived money laundering, following a model similar to Law 121 of 2013 against organised crime. It seeks to streamline and strengthen the procedural tools of the Public Ministry and other institutions in the fight against corruption. The bill aims to strengthen the criminal investiga - tion system regarding the aforementioned crimes in order to avoid impunity and overcome the budgetary and operational deficiencies that currently hinder the effective prosecution of such conduct. However, this strengthening must be carried out in strict accordance with the principles of the accusa - tory, adversarial and guarantee-oriented criminal pro - cedural system in force in Panama. Consequently, the incorporation of figures, methods or interpretations typical of inquisitorial systems that contravene (among others) the right to defence, the presumption of inno - cence and the impartiality of the judge is prohibited. Violation of due process and fundamental rights When a rule establishes, for example, prolonged inves - tigation confidentiality regimes that disproportionately favour the Public Ministry, indications of procedural imbalance arise. It may be argued that this does not strengthen the effectiveness of the investigation and
223 CHAMBERS.COM
Powered by FlippingBook