A SUMMARY OF THE PANAMANIAN CRIMINAL JUSTICE SYSTEM
Introduction
Panamanian law deals with people accused of criminal acts using two different procedural methods: a trial system for major crimes and a police magistrate system for minor offenses. It is very important to retain legal counsel at the earliest opportunity regardless of which system of justice confronts you.
Panama law provides for a public defender when the accused does not have the necessary funds to hire a private attorney. To request the services of a public defender the detainee must make a written request to the prison authorities, or the authority leading the process.
The Panamanian constitution requires that all practicing attorneys in the Republic of Panama be Panamanian citizens. To help you select legal counsel, the consular section provides a list of Panamanian attorneys compiled by the Embassy. Although the Embassy cannot recommend any attorney or accept responsibility for his/her professional integrity, it makes every effort to ensure that no attorney appears on the list if he or she has been shown to be dishonest or less than forthright in dealing with clients. You are under no obligation to select an attorney from the Embassy’s list.
You are responsible for paying the attorney. The amount of the fee is a matter decided between you and the attorney. You should arrange with your attorney the means by which the funds to pay legal fees will be transmitted to Panama. We suggest that you obtain legal counsel as soon as possible to expedite the processing of your case.
Under no circumstances can the Embassy or one of its officers or employees provide you with legal advice or guidance. The Embassy stands ready to ensure that your legal and human rights are respected, monitor progress of your case, and facilitate communication between you and your family. In addition, the Embassy will help your relatives, friends, or other interested parties send you small amounts of money ($100-$500) by means of a telegraphic trust account.
The following summary has been prepared to facilitate your understanding of the Panamanian criminal justice system. It is not intended to supplant legal counsel available from your attorney. The Embassy suggests that you raise any questions about the functioning of the Panamanian judicial system with your attorney who can tell you how your individual case is affected by this system.
The Trial System
When an accusing party reports a crime to the authorities or when the authorities themselves witness wrongdoing, they will try to arrest any person suspected of being a party of the crime. With the exception of cases involving domestic problems, such as adultery and non-payment of alimony/child support, legal proceedings begin against the accused at such time as the crime has been committed.
Major crimes are investigated by the fiscal superior (district attorney), for prosecution before a superior court Judge; for other crimes the circuit fiscal will prosecute before the circuit judge; certain minor crimes are investigated by the personero (municipal attorney) for prosecution before a Municipal Criminal Judge.
If the nature of the crime is serious enough to warrant the trial procedure, the suspect will be taken into custody (Article 2148, Codigo Judicial) until the fiscal or personero has questioned him/her and made or declined to make an initial statement or declaration.
Articles 2112 and 2113 of the Judicial Code specifies that the fiscal or personero may not compel a suspect to make a statement under oath unless the statement includes accusations against other people, and in accusing others, the suspect denies his/her guilt. A suspect may reserve the right to amend or to disapprove his/her declaration. (Article 25-Panama Constitution).
Pursuant to Article 22 of the Constitution of Panama, a person detained should be immediately informed of the reason for his/her detention in a matter that is understandable. Also, the suspect must be informed of the constitutional and procedural rights guaranteed under Panamanian law, as well as the right to be assisted by an attorney from the time of said declaration and for all police and judicial proceedings.
After the accused’s initial statement has been taken, the trial procedure goes through two stages before a verdict is reached.
First the fiscal will conduct an investigation sumarioto determine that a crime did occur and that the accused was its perpetrator. To do this, the fiscal may use the accused’s testimony, that of witnesses, results of police investigations, and expert opinion. The accused’s attorney may also question the witnesses called by the fiscal as well as the other evidence the investigating official compiles.
The fiscal is both the investigator and the prosecutor in these proceedings and can recommend the dismissal of a case under investigation if it appears that there are insufficient grounds for an indictment.
Although the fiscal should complete the investigation within two months (Article 2060, Judicial Code), Panamanian law permits a two-month extension of this period when there are several persons accused of a crime, upon the recommendation of the fiscal, or upon the demonstration of extenuating circumstances (Article 2126. Codigo Judicial, et seq).
The time the accused is held in custody is included in this two-month period, but the investigative stage of the trial process usually takes longer than two months. Moreover, the accused may be held in custody for as much time as is necessary to conduct the investigation and obtain an indictment or dismissal, but the custody time can’t be more of the minimum sentenced time established in law for each crime (law 43 1997 Article 2148-A Judicial Code).
This detention usually takes place in the following penitentiaries: La Joya, La Joyita, El Renacer (men) or Centro Femenino de Rehabilitacion (women) in the city of Panama or in one of the regional jails when the alleged crime was committed in another part of the country. During this investigatory stage, the accused or his/her attorney may request that the fiscal also gather evidence that may be useful to the defense.
The possibility of conditional release from custody on bail (fianza) exists for people accused of most crimes. The exclusions of this rule are established in the Article 2181 of the Judicial Code as follows:
- Those accused of crimes punishable by more than five years imprisonment;
- Those accused of kidnapping, extortion, rape, robbery, larceny, piracy, crimes against public safety, possession, trafficking, growing or refining illicit drugs, repeat possession or use of marijuana or canyac;
- Embezzlement in excess of ten thousand balboas (dollars);
- Recurrent criminals, or professionals;
- Crimes against individual freedom, torture, slander and libel;
- Those accused of crimes of which this Code or any special law denies bail.
The second part of the trial process (plenario) begins once the fiscal has completed the investigation and presented the evidence in the form of a written file to a court. The judge will examine the evidence and decide whether there are grounds to draw up an indictment.
If the judge decides affirmatively, he or she will follow strictly codified judicial procedure, arraign the accused, and order the trial to begin. However, if the judge finds that the evidence presented by the fiscal does not constitutes grounds for an indictment, the charges will be dismissed and the accused released from custody.
After receiving the evidence from the fiscal’s office, the judge has 45 days to arraign or dismiss a defendant or to return the file to the fiscal for further investigation (Article 2207C Codigo Judicial),
In this case the prosecutor will have a period of fifteen working days to send the evidence back to the judge. Due to procedural matters (and in practice), this time can become considerably longer.
A llamamiento a juicio (indictment)issued by a judge signifies that the accused has been arraigned and his/her trial begun. The indictment or dismissal of a case will be decided in an oral preliminary audience. A trial in Panama is rarely a public proceeding in an open courtroom with a jury.
Instead, in the usual Panamanian trial, the judge reviews the written evidence presented by both the fiscal and the defense attorney, and if necessary, calls and questions witnesses. The judge is present also at cross-examinations conducted by the fiscal and the defense attorney, and receives written arguments from both parties. Except in cases of confrontation (careo)between the accused and witnesses, the accused is not present during the trial. Once the trial has progressed through all the procedural steps demanded by law, the judge will, following precise rules of evidence, hand down a finding of guilt or innocence against the accused.
Again, the accused may not be present when the judge hands down his verdict. The verdict and the sentence, when the defendant is found guilty, are automatically appealed to a higher court.
Time spent in custody before the verdict is applied toward a convicted person’s sentence (Article 2415).
Either side can appeal procedural steps at any time during the trial. When the verdict is not guilty the accused is usually released shortly thereafter (Article 2417 Codigo Judicial).
The Police Magistrate System
The police magistrate courts in Panama deal with less serious offenses against the law than those brought to trial before a judge. Although crimes tried before the police magistrates are considered to be minor offenses, these courts have the power to impose burdensome penalties on those found guilty during their proceedings.
The magistrate courts may sentence a person to corrective detention for up to one year, give a type of good conduct bail, and impose fines of up to $600.00 (Article 898, Codigo Adminstrativo).
In Panama’s larger cities either a corregidoror a night court police judge is the adjudicating official in the magistrate court, the former during the daylight hours and the latter, as the title implies, during the nighttime.
The proceedings in these courts are summary and oral; there is never a jury. There are two different procedures for people brought before the police magistrate court system: one for people arrested after a complaint has been lodged against them by a third party and another for those arrested during the commission of a crime.
When a complaint has been filed against a person, he/she is brought before a magistrate court and usually granted a stay of three days by the presiding official for the purpose of obtaining legal counsel and preparing a defense. The presiding official also orders the accused to be jailed or turned over to the custody of a responsible person.
Upon returning to court the accused will usually face the same presiding official who is, in effect, both judge and prosecutor. As in the case of the trial system, it is very important to obtain legal counsel as soon as possible.
The police have three hours to deliver a person arrested during the commission of a crime to the magistrate court of the district, which has jurisdiction over the case. There is no delay for the preparation of a defense. The accused will be tried and, if found guilty, sentenced immediately.
The sentence of police courts may be appealed in some, but not all cases to the next higher official in the police hierarchy, usually the mayor of the city or the governor of the province.
The magistrates of police courts have one other important function. They can act in temporary capacity as the investigating official for crimes when a fiscal or personero is unavailable. Whey they exercise this function, however, they only substitute for the fiscal or personero until the case is transferred to a competent authority.
August 2002
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