MARTINELLI SENTENCE  – The shady world of business developed from power

Mixed sentence No. 02, of July 17, 2023, issued by the Second Criminal Case Settlement Court of the First Judicial Circuit of Panama, in charge of Judge Baloisa Marquínez, is a historical document in its own right. The 306 pages of the sentence are an x-ray of the shady world of business developed from power writes lawyer Rodrigo Noriega in La Prensa.

From the point of view of Criminal Procedure Law, the judge interpreted the crime of money laundering as an autonomous conduct, whose possible preceding crimes would be a corruption of public servants and embezzlement.

In the sentence, Judge Marquínez differentiates the roles of the authors, the facilitators with a degree of authorship and the participants without criminal responsibility.

There is a variety of legal issues that must be clarified before public opinion about the effects and scope of this sentence. The first aspect, and the most important, is that this judgment constitutes compliance with the first instance of this case. This resolution can be appealed by any of the parties involved, especially the five convicted and the Public Ministry.

The appeal, which must be decided by the Superior Court for Settlement of Criminal Cases of the First Judicial District, may take four to six months, given that the mixed inquisitive system is in the process of being closed and the New Business case, along with other processes high-profile, constitute the latest generation of cases in that judicial system.

After the appeal, the parties could file a criminal appeal before the Second Chamber of the Supreme Court of Justice, made up of magistrates María Eugenia López Arias, Maribel Cornejo Batista and Ariadne García.

The Supreme Court may refuse to admit this appeal if it does not meet the formal requirements. At that point, the case would end. If the Supreme Court admits it, a hearing would be held before the Second Chamber in which the parties would present their allegations and later the three magistrates would have to issue their decision.

The term that the criminal appeal could take is open since it depends on the agenda of the Supreme Court itself and the availability of the magistrates for this process.

The consequences
Hypothetically, if Judge Baloisa Marquínez’s decision is upheld, there would be important legal and political consequences. Obviously, the criminal conviction of a former President of the Republic is a fact that has not occurred in 68 years in Panama, since former President José Ramón Guizado was unjustly convicted of the assassination of President José Antonio Remón Cantera.

If the conviction of former President Ricardo Martinelli Berrocal is confirmed, as it is a criminal sanction of more than five years in prison, it would produce a legal effect with an electoral impact. Article 180 of the Political Constitution of the Republic of Panama establishes the following:

ARTICLE 180. “Anyone who has been convicted of an intentional crime with a custodial sentence of five years or more may not be elected President or Vice President of the Republic, by means of an enforceable sentence handed down by a court of justice.”

Since this is a constitutional prohibition, Judge Marquínez did not have to declare it. This prohibition would work from an enforceable sentence in this case, which maintains the conviction of former President Martinelli.

The final judgment can be produced with the appeal ruling, if the Second Chamber of the Supreme Court does not admit the appeal, or failing that, once the criminal appeal ruling is handed down by said court.

In either of the two previous situations, the Electoral Tribunal itself could determine ex-president Martinelli’s disqualification from candidacy for the post of President of the Republic.

Similarly, the Electoral Attorney General’s Office or any interested party could request the Electoral Tribunal to declare disqualification due to this constitutional prohibition.