The Accusatorial Criminal Justice System
A meeting was held to explain the new accusatory system in Panama On Friday, June 23rd in Gorgona Panama. Here is the document prepared in English that was used as a reference for the meeting.
The document aims to answer 100 questions on the Accusatorial Criminal Justice System in Panama.
The implementation of the Accusatorial Criminal Justice System, as a model of investigation, litigation and prosecution of criminal cases, constitutes one of the most relevant tasks that the justice administration system has faced in the last decade, with a view to modernization.
So far, the results from the assessments conducted reveal that the Republic of Panama has successfully exceeded the first challenges of the reform, since work is being done under a more dynamic and flexible investigation format, based on the presentation at the hearing of all the petitions that may involve impairment of the fundamental rights of the interventors, as prescribed by the law; oral methodology is used for decision making, the computer platform constitutes the support for each of the prosecutors ' actions and the rulings of the judges, which adds up to the level of statistical information that is now being processed by the system. Access to justice has been also strengthened by replacing the written and ritualistic system that was only understood by a few, by an oral, dynamic, public and non-formalized model.
The country has transitioned into the implementation of this novel system in the provinces of Cocle, Veraguas, Herrera and Los Santos, as well as into the criminal proceedings that are heard in first instance by the Supreme Court of Justice (Chamber and Plenary) and the National Assembly. Now, it is time to take on the new challenge that involves implementation in Chiriqui, Bocas del Toro and the Ngabe Bugle reservation. In this task, again, the 100 questions of the Accusatorial Criminal Justice System contribute to the awareness and dissemination work on the changes that the penal procedural reform involves, by giving a response to the most usual or common questions that often arise, so that the citizens can have a better understanding of this subject.
This publication constitutes a join new effort between the Judicial Branch and the Office of the Attorney General, now endowed with an update, in accordance with the experience gained from the implementation work of the Accusatorial Criminal Justice System.
• What is the Accusatorial Criminal Justice System?
It is an adversarial system, in which the parties (Public Ministry, complainant, if any, and the defense) face each other having equal opportunities, before impartial and independent judges, that shall make a decision of acquittal or conviction (within 24 hours) based on the evidences taken at the oral trial proceeding.
• What is the criminal process?
It is the mechanism in which the Public Ministry investigates the crimes, and if a person is linked as an alleged responsible, he/she is charged, accused and tried, where appropriate. If he/she is convicted, a punishment shall be applied to him/her.
Principles, guarantees and rules
• Which are the principles of the procedure contained in the new Criminal Procedure Code?
The principles are as follows: interpretation and prevalence, legality, of the due process, separation of functions, contradiction, immediacy, simplification, efficiency, orality, publicity, concentration, strict equality of the parties, procedural economy, constitutionalisation of the process, right to defense, presumption of innocence and prohibition of double jeopardy.
• What does the principle of interpretation and prevalence of the principles consist of?
It consists in that the norms contained in the Criminal Procedure Code shall always be interpreted in accordance with the principles. That is to say, that the principles shall always prevail over the rest of the norms.
• What does the principle of legality consist of?
It consists in that no person shall be convicted for a conduct that has not been previously defined or considered as a crime, nor sanctioned with a punishment or subject to a security measure that has not been previously established by law.
• What does the due process consist of?
It consists in that every person has the right to be investigated by the Public Ministry and tried by the competent judges, following the formalities and procedures that are established by the Constitution and the Law. Also, it involves that the procedure should be carried out respecting all the fundamental rights and guarantees contained in the treaties ratified by the Republic of Panama.
• What does the separation of functions consist of?
It consists in that the Accusatorial System accurately defines the roles, and therefore, the Prosecutor has the obligation to investigate and accuse, where appropriate, and the judge has the obligation to decide on innocence or guilt of the persons who are accused, and to authorize or carry out the jurisdictional activities, except for exceptions contemplated in the Criminal Procedure Code itself.
• What does the figure of natural judge consist of?
It means that no one shall be processed nor convicted by special or exceptional judges or courts. Only previously designated judges or courts shall be able to judge and apply a punishment or a security measure, in accordance with the Political Constitution, the Law, and pursuant to the competencies assigned to each one of them.
• What is the principle of orality?
It means that, at first, the parties, interventors and witnesses express themselves orally at a hearing before the judge or court and that the court rulings will be issued orally during the hearing session.
• What is the principle of contradiction?
It consists in that the parties (Public Ministry, complainant and defense) have the right to know, dispute or confront the evidence, as well as to intervene in its formation and object to the allegations of the other party or intervenor.
• What is the principle of immediacy?
This principle consists in that all the evidence must be taken and produced by the parties before the judge, at a public, oral and contradictory trial, in order for him/her to directly observe the behavior of the witnesses and experts when testifying, to be present during the examination of all evidence that is reproduced during the substantive hearing and that can be objectively assessed by him/her.
• What is the presumption of innocence?
It implies that every person shall be treated and considered as innocent during the investigation and the rest of the process, until he/she is declared responsible for the crime of which he/she is being accused in a ruling that becomes res judicata (a matter already judged).
• What is the principle of dubio pro reo?
It is the one that allows establishing that the burden of proof is placed on the Public Ministry in regard to the criminal responsibility. If, after jointly and rationally assessing the evidence submitted by the parties, the judge, has doubts about the criminal conduct or responsibility of the accused, he/she shall resolve in favor of the defendant, that is to say, that the doubt favours the accused.
• What is the principle of concentration?
It is the duty to take evidence and carry out proceedings at a continuous hearing preferably the same day, having all the parties present.
• What is the principle of publicity?
It consists in that all the hearings shall be public or open so not only the intervening parties have access to them, but also, the media and the community. The foregoing applies unless the Law provides for the secrecy of any acts.
• Are there exceptions to the publicity of the hearings?
Yes, the Court may decide, on good grounds, upon request of the parties or by itself, to conduct a total or partial private hearing, when the private life or physical integrity of some of the intervening parties may be affected; when risking an official, professional, particular, commercial or industrial secret from being disclosed, and this disclosure causes serious prejudice or when a victim is a minor.
• What is the prohibition of double jeopardy?
It consists in that no one can be validly investigated nor tried for criminal causes, more than one time for the same fact, even if it is given a different denomination.
• What does the principle of double instance consist of?
It is the possibility that the decisions of the judges or magistrates can be reviewed, upon request of a party, by a Higher Court, whenever the Law allows it.
• What does the right to privacy mean?
It means that the body, the property and the communications of the persons are inviolable, and they can only be examined by order issued by a Guarantee Judge, subject to the completion of the legal formalities and for defined reasons, without prejudice of the exceptions provided for in the Criminal Procedure Code.
• What is the right to freedom?
It is the right that the persons have so their actions and movements can be respected within the legal system, to not be deprived from freedom, but for the grounds set out in the Law.
• What does the respect to human dignity consist of?
It consists in that all the intervenors within the criminal process, shall be treated as human beings and not as objects, giving effect to the rights and guarantees enshrined in the Constitution, the Law, as well as the international treaties and conventions.
The Criminal Process Stages
• What are the criminal process stages, pursuant to the new Criminal Procedure Code? The Investigation Stage, wherein the Public Ministry investigates the crime based on the criminal hypothesis presented or seeks to resolve the dispute through alternative means for resolutions of criminal disputes and other alternative procedures, having the Guarantee Judge monitoring the specific acts prescribed by Law.
• The Intermediate Stage, in which the Public Ministry, based on the elements of conviction that it has, can ask for the case to be dismissed (whether they consider that the investigated facts do not constitute a crime, because there is no grounds to accuse, among other assumptions) or they can formulate the accusation clearly identifying the criminal fact that they consider it was committed and whoever has allegedly committed it, as well as the evidences that will contribute to prove what is intended. After the accusation is formulated, the complainant and the defense are notified.
• The oral trial stage, in which the parties shall debate before the trial court, based on the case theory, the proposed facts and the evidence that was admitted by the Guarantee Judge of the Intermediate Stage. In this stage, the principles of orality, immediacy, contradiction, equality of parties, among others.
• The punishment execution stage, in which, after the sentence is executed, the Compliance Judge administers and verifies that the punishment imposed is complied with.
• Which are the main hearings in the Accusatorial Criminal Justice System? At the Investigation Stage, they are the hearings of Control or Legality of Apprehension, Formulation of Charges and the Application of a Precautionary Measure; at the Intermediate Stage, they are the hearings of Dismissal of Charges or Formulation of the Accusation and at the oral trial stage, they are the hearings of Trial, Individualization of Punishment and Reading of Sentence.
• How does a Criminal Process start?
It starts when the Public Ministry comes to know that a crime was committed, due its own initiative, a report or a criminal complaint.
• Who are obliged to report a crime?
The below persons shall be obliged to report crimes of public action, that is to say, those that can be investigated on the authorities ' own initiative:
• Public officials while performing their duties.
• Persons working in any of the medical science fields of the facts known while practicing their profession or occupation.
• Certified Public Accountants and Notaries Public, when it comes to crimes that affect the property and public revenue.
• Receivers, whenever crimes are committed in regard to property managed, administered, under the care of or controlled by them.
• Who is not obliged to report a crime?
Unlike the previous Code, there is no a general obligation to report a crime in the current Criminal Procedure Code, except for the above-mentioned exceptions.
• What crimes should the victim report in order for them to be investigated?
Sexual harassment and dishonest abuse, whenever the victim is an adult,; crimes against the inviolability of the secret and domicile; scam and other types of fraud; misappropriation; usurpation and damages; falsification of documents to the detriment of individuals and crimes of electric power and water fraud.
• What crimes do require a criminal complaint in order for the process to initiate?
Crimes against honor; unfair competition; writing non-sufficient funds checks and disclosure of company secrets.
• Which are the victims' rights?
• Right to justice and right to compensation for damages;
• Right to receive protection and to participate in the criminal process in accordance with the Law;
• Right to receive medical, psychiatric or psychological, spiritual, material and social assistance, whenever required;
• Right to intervene as a complainant in the process so as to demand criminal responsibility of the defendant and right to obtain civil compensation for damages resulting from the crime;
• Right to seek security for himself/herself or his/her family in certain cases;
• Right to be informed about the status on the corresponding criminal process and
• Right to receive explanations related to the development of the process.
• What is the restorative action pursuant to the Criminal Procedure Code?
It is the one that can be brought by the victim of the crime within the criminal process, for replenishment of the loss and the compensation or reparation of damages resulting from the punishable fact, against the civilly liable author, accomplice or third party.
• What is the essential function of the Public Ministry?
To investigate, accuse and sustain said accusation during the oral and public trial, where appropriate. In this sense, the Prosecutor has the obligation to prove the facts that are considered as a crime and that are attributed to one or many persons. For the performance of the criminal prosecution, the Public Ministry directs investigations of crimes, conducting or ordering the execution of useful proceedings to determine the existence of the crime and those responsible for it, having the cooperation of the auxiliary investigation bodies (Directorate of Judicial Investigation and Institute of Legal Medicine and Forensic Sciences).
• What is the Directorate of Judicial Investigation?
The Directorate of Judicial Investigation is a specialized entity of the National Police, having
exclusive functions of judicial investigation police, pursuant to the Law, it is constituted as an
auxiliary body of the Public Ministry and the Judicial Branch.
• What is the Institute of Legal Medicine and Forensic Sciences?
It is a public entity attached to the Public Ministry, whose fundamental mission is to provide scientific and technical advice to the administration of justice in regard to the scientific or medical-scientific analysis, evaluation, investigation and description of the findings and medical-legal evidence. It has a Sub-Department of Criminalistics and a Sub-Department of Forensic Science.
• Who has access to the proceedings during the Investigation Stage?
The proceedings shall only be examined by the parties and their representatives. Therefore, it is restricted to third parties.
• How will the Public Ministry act in the Accusatorial Criminal Justice System?
It will act on the principle of unity, and therefore, the institution will be represented by each Prosecutor acting in the investigation or before the Courts and all of them shall have jurisdiction to conduct proceedings in the country, with proper coordination. Likewise, they will be able to act as a team during hearings.
• What decisions can a Prosecutor make after learning about an alleged criminal fact?
He/she can initiate the investigation acts in order to obtain the elements that allows him/her to establish if it is possible to file charges (to formally link a person, who is considered to be an alleged participant of the crime, to the process), and then, an accusation. Likewise, he/she can dismiss the accusations if he/she considers that the fact does not constitute a crime or order to archive the proceedings when the alleged responsible cannot be identified.
• Who is responsible for handling the place of events?
The investigative bodies officers, under the direction of the acting Prosecutor having jurisdiction over the case, with technical rigor, to ascertain the gathering and preservation of evidence.
• Can the Public Ministry (Public Prosecutor's Office) carry out the taking of evidence?
No. The evidence, except for those previously produced, shall be taken before the trial judge, at a public, oral and concentrated hearing.
• If the Public Ministry cannot carry out the taking of evidence, how does it conduct the
It conducts the investigation with the so-called acts of investigation, some of them require a previous authorization from the Guarantee Judge, and others require a subsequent control that does not require an authorization.
• Which are elements of conviction and the evidence?
The elements of conviction are those that are obtained during the Investigation Stage, and that perhaps, will be converted into evidence during the oral trial, as for example, the interviews of persons that have perceived the facts deemed as a crime, that may then be constituted as testimonies.
The evidence, in turn, are fingerprints, traces, stains, residues, vestiges, arms, instruments or objects used for its execution; money, personal property or other items derived from criminal activity; documents, photographs, filming or recordings, the reproduction of images, voices or sounds through the technical means that are the most convenient and that will be presented at oral trial, through an expert`s report or other type of report.
• What is chain of custody?
It is a procedure that ascertains the authenticity of evidence, ensuring that what it was found and collected at the place of the facts (the scene of the alleged crime) or other place for purposes of the investigation, it is the same that will be presented at the oral trial for assessment. The chain of custody allows for the integrity of evidence to be maintained, so that they are replaced or altered throughout the criminal process.
• Who is responsible for chain of custody?
Every official or specialist that is in contact with the elements of material evidence or physical evidence.
• Which are the main functions of the Guarantee Judges?
To pronounce about the control of the acts investigated that affect or restrict fundamental rights of the defendant or the victim and the precautionary measures of these.
• Are there any investigation acts that the Public Ministry can carry out that
do not require authorization of the Guarantee Judge?
Yes, there are investigation acts that can be carried by the Public Ministry agents and that do not require authorization of the Guarantee Judge, as for example:
the inspection of the place of the facts, the interviews to whoever knows the details related to the investigated alleged crime; request for investigation to public and private entities, appearances of the defendant before the Public Ministry, to reach agreements, conduct the exhumation, removal and expertise of dead bodies, recognition of alleged suspects to the facts, among others.
• Are there investigation acts that require a previous order from the Guarantee Judge?
Yes. Among them, we have raids of residences, raids of offices, raids of government offices, with certain exceptions, seizure of correspondence, interception of telephone communications, as well as corporal interventions when the person subject to the proceedings refuses to cooperate, just to mention some.
• Are there investigation acts that require subsequent review by the Guarantee Judge?
Yes, they are: the seizure of data; the covert operations and the international controlled delivery. All these acts must be submitted for review by the Guarantee Judge within a term no greater than ten (10) days.
• What should be the relationship between the Public Prosecutor and the National Police?
They should constitute a working team. The National Police is an aid for the investigation that should follow instructions from the Public Prosecutor who acts on a concrete case. Therefore, they should maintain a close relationship of communication and collaboration.
• When can the Police arrest someone, without an order from a competent authority?
When a person is caught in blazing offence (in the act of committing a crime), when he/she is chased immediately after committing a crime or when he/she has escaped from a detention facility or any other place of detention.
• When does flagrancy exist?
Flagrancy does exist when:
• The person is caught and arrested at the time of committing a crime.
• The person is arrested immediately after committing a crime, as a result of the material chase or
due to a request for help from whoever witnesses the facts.
• The person is arrested immediately after committing a punishable conduct, and someone accuses him/her as the author or accomplice, provided that in his/her possession there is some evidentiary material related to the crime.
• Is it necessary to be an authority in order to arrest someone in flagrante delicto (in the act of committing a crime)?
No. In cases of in flagrante delicto, any person may make the arrest.
• What is a Filing of Charges Hearing?
That which is presided over by the Guarantee Judge, and in which, the Public Ministry agent makes a formal accusation against one or more persons being accused of the commission of a crime, since he/she considers that he/she has enough evidence for it. From that moment, the person/s is/are formally connected to the process, and the same should exercise his/her/their right/s to defence.
• What is a Public Defender?
It is an attorney that belongs to the Institute of Public Defense, attached to Judicial Branch, and when the defendant states that he/she cannot afford an attorney, a public defender shall be appointed by the Prosecutor, the Judge or the Court and the services he/she provides to the defendant will be free of charge.
• When can the National Police proceed to search persons and vehicles?
When there are serious reasons to believe someone conceals something in his/her body and clothing, related to a crime. At this proceeding, the Police must respect the dignity of the persons. Men shall be searched by men, and women shall be searched by women. In accordance with the Law, the police officer shall make the person aware of his/her suspicion and ask him/her to show the object.
When it comes to vehicle searches, it should be conducted in the presence of the driver, making him/her aware that there are reasons to believe that there is an object hidden somewhere in his/her vehicle that is related to the crime.
• When may a Guarantee Judge order a provisional detention?
The provisional detention of a person may be ordered for a crime punishable by a minimum penalty of four years of imprisonment and if there is evidence proving the crime and the connection to the defendant, as well as the possibility of escape, inattention to the process, danger of destruction of evidence, or that he/she may try to kill himself/herself or someone else or if he/she endangers his/her own health or someone else's health.
Exceptionally, if a person does not live in the country or when the punishment is less than four years of imprisonment, and if at the discretion of the Judge, the life or personal integrity of a third person is threatened. Upon request of the Public Prosecutor, the trial court shall order the provisional detention of the accused if he/she does not appear before the oral trial proceeding.
• Can the Public Ministry order provisional detention under the new Accusatorial Penal
No. No exceptions apply. However, the Public Ministry does have the power to order that the person be apprehended and escorted to its office. In regard to the apprehension, the person should be brought before the Guarantee Judge within the 24 hours after he/she is received.
• What is the reason why the Public Ministry no longer has the possibility to order the
application of personal precautionary measures?
Reason being is that the application of personal precautionary measures constitutes a jurisdictional act that is entitled to Judges in accordance with the principle of separation of duties.
• What is the procedure when arresting a person?
If the person is arrested by a private person, he/she shall be handed over to the nearest competent authority. If the person is arrested by a police officer, he/she shall be immediately taken to the Public Ministry (Public Prosecutor's Office). If the person is arrested due to an order issued by the Public Ministry, he/she shall be brought before the Guarantee Judge within twenty four (24) hours.
• What are the rights of a charged person?
• Right to be assisted by a defense attorney. If he/she cannot afford one, one will be provided for him/her at no cost to him/her by the State through the Public Defender Office.
• Right to be informed in a clear manner of the fact or facts that he/she is accused of; of the existing evidence against him/her and of the legal provisions that are applicable to him/her.
• Right to know the identity of the person who makes the arrest, the authority that authorizes it and that is responsible for his/her custody;
• Right to communicate immediately with the person of his/her choice and with the attorney to inform him/her about the arrest and to be provided with the means to exercise his/her rights.
• Right to not self-incriminate, to remain silent, to not be subject to mistreatment nor pressure so as to waive this right, or to not be subject to methods or techniques that change his/her will.
• Right to not be presented before the media or the community in a way to damage his/her reputation.
• Right to meet with his/her defense attorney in a confidential manner.
• What is a personal precautionary measure?
It is a measure that affects the fundamental rights of a person, adopted by the Guarantee Judge when certain requirements are met.
• Which are the personal precautionary measures that deprive personal freedom?
It is the obligation that someone has to remain at his/her own house, room or someone else's house or room, at a medical facility and the provisional detention.
• Which are the personal precautionary measures that do not deprive personal freedom?
• The obligation to periodically appear before the competent authority or office designated by Judge.
• The prohibition to leave the territorial scope to be determined.
• The prohibition to participate in certain meetings or visit certain places or communicate with certain persons, provided that the right to defence is not affected.
• To immediately leave the house, when it comes to aggressions and the victim lives with the defendant.
• To post a proper financial bond.
• The suspension from the execution of public or private offices, if he/she is accused of committing a crime in the execution of his/her duties.
• The obligation to not carry out an activity, if the disqualification punishment applies, thus retaining the license or document that proves the corresponding qualification.
• The placement of electronic localizers.
• What is the timeframe for the Public Ministry to conclude its investigation?
From the filing of charges, it has six (6) months to conclude the investigation. The exception of a longer time frame is when it comes to complex matters; however, the Public Prosecutor would require a previous authorization from the Guarantee Judge. In these cases, the investigation may be extended to one (1) year with an extension of another year.
• What does the writ of accusation consist of?
It is a writ in which the Public Ministry agent asks the Guarantee Judge for the opening of the trial against a person, based on the investigation.
• What does the filing of accusation hearing consist of?
It is a hearing that is conducted before the Guarantee Judge. He/she allows the parties to make previous allegations regarding lack of jurisdiction, nullities, impediments and recusation. They may also pronounce about adding or not adding the complainant to the accusation of the Public Prosecutor. The Judge shall pronounce at the hearing session.
• What other topic is addressed at the filing of accusation hearing?
The parties advise each other about the evidence that they will show at the oral trial and the types of evidence to be taken, and the Guarantee Judge shall decide on the admissibility or the exclusion of the evidence. This is the hearing wherein the compensatory action is introduced.
Oral trial stage
• What advantage does the orality have?
That the Guarantee Judge directly perceives the statements from the witnesses and interventors, this involves a process much more agile, direct, efficient and transparent.
• What is the main function of the trial courts?
To hear the oral debate, all its developments and to make a decision of acquittal or conviction of the alleged responsible, after examining the evidence based on the principles of immediacy, orality, contradiction and concentration of trial.
The trial courts are collegiate bodies, that is, consisting of three impartial and independent judges, and they will hear the accusations concerning the crimes punishable by law with a penalties exceeding one year.
• What is the new competency of the Court of Jurors or Jury of Peers?
The Court of Jurors shall hear the following criminal offences:
• Homicide that is not related to crimes of terrorism, kidnapping, extortion, unlawful association, gang membership, drug trafficking or money laundering;
• Abortion induced by willful means, if, as a result from this or the means used to induce the same, the woman dies; involving a common danger, and the crimes against public health, if, as a result of this, someone dies, except for those caused by recklessness, negligence or lack of expertise, in the practice of a profession or occupation.
• On whom does the burden of proof rest in the Accusatorial Criminal Justice System?
The burden of proof rests on the Prosecutor, who must prove the facts to support his/her accusation during the oral and public trial. The exception applies when it comes to crimes of money laundering, corruption of public servants, unjust enrichment, terrorism and drug trafficking, the defendants must prove the lawful origin of their assets.
• Can the Judges order the taking the evidence on their own initiative in the Accusatorial Penal
System as it happened in the previous system?
The Guarantee Judge and the trial court may not order, in any case, the taking of evidence on his/her own initiative.
• What does the oral trial proceeding consist of?
It is an essential stage of the accusatorial process. There, before the trial court, at a public, oral and concentrated hearing, the parties (Office of the Public Prosecutor and defense) show their evidence, which will be examined, challenged and defended. Once the debate is closed, the Court shall deliberate and announce its judgment (acquittal or conviction).
• Which is the role of the trial court during the oral hearing?
• To direct the hearing during all its stages since the initial presentation, and then, it continues with the examination of evidence, and it ends with the closing arguments.
• To ensure that the evidence is examined in accordance with the Law.
• To hear and to observe impartially the evidence produced by the parties, based on the principle of contradiction.
• To decide on the controversy. For this, it should be determined if the evidence demonstrate or not, beyond a reasonable doubt, the criminal responsibility of the accused.
• How many classes of witnesses are there?
According to our procedure, no classification of witnesses is made, but it is established that there will not be disqualified witnesses. The parties are allowed to ask questions so as to verify their credibility as well as the links with the interventors. Every witness must state if he/she witnessed the facts that he/she is narrating, if it is a conclusion reached by him/her, or if he/she heard said facts from another person.
• Who are obliged to declare?
Every person who is judicially obliged to declare. If the summoned witness does not appear, a penalty shall be imposed to him/her, which does not exempt him/her from his/her duty to declare.
• Who has power to abstain from declaring?
The spouse or cohabitating partner, ancestors, descendants, siblings, his/her collateral relatives until the fourth degree of consanguinity or second degree of affinity, his/her guardian or pupil.
• Who have the duty to abstain from declaring?
The attorney or legal representative in regard to the confidences that he/she has received and the advises he/she has given; the confessor in regard to the revelations made by the penitent; the physician or the psychologist in regard to the confidences made to him/her by his/her relatives as a result from the professional consultation.
• Should the witnesses be prepared by the parties before they testify at the oral trial?
Yes. They should be prepared, but not in the sense to make up their testimony or to direct what it has to be testified or for them to lie, but to educate them about the procedure and rules to be followed; the legal consequences of his/her declaration; what role will be played by the examiner, the cross-examiner and the judge; his/her rights, his/her duties; to emphasize that the truth is above all other considerations; to advise him/her that he/she should not make comments or anticipate questions of the other party, among other aspects.
• Is it possible for police officers to intervene during an oral trial?
Yes, it is possible. If they are proposed as witnesses by the parties, in order for them to explain their intervention in the gathering of evidence (what was found and how it was found), during the arrests (how was the arrest made and for what reason) and during acts of investigation in general terms.
• How does the witness statement develop at the oral trial?
A witness statement under penalty of perjury is received. Immediately after, the party that presented the evidence direct examines (interrogates) the witness, and then, if he/she wishes so, the other party cross-examines him/her. Every witness is subject to direct examination and cross-examination questions.
• What is a Sentencing Hearing or Victim's Compensation Hearing?
If it is a judgment of conviction, and if the parties request so, the Court shall open a debate in order to examine both the individualization of sentence and the quantum of civil liability, if applicable.
Some alternative procedures of dispute resolution
• What does the criteria of opportunity consist of?
It is the power that the Public Ministry agents have to totally or partially suspend or prescind from the exercise of the criminal action or limit the same to some of the persons that intervened in the fact.
• What advantages does the criterion of opportunity have?
The State, through the Public Ministry, devotes its efforts to investigate the crimes with greater social impact. It takes care of what is most important in a cost-benefit evaluation, but at the same time, it tries to resolve the disputes through other mechanisms.
• In what cases is the criterion of opportunity appropriate?
When the author or participant of the crime has suffered, as a consequence of the fact, a serious physical or moral damage that makes the punishment unreasonable or unnecessary; when it comes to a fact that does not seriously affect the interest of the collectivity or when the intervention of the defendant is considered to be less relevant, and when the statute of limitations of the criminal action has elapsed or if said criminal action has been extinguished.
• What controls do exist when the Public Ministry agent apply the criterion of opportunity?
The victim or the complainant should be notified, and if he/she does not agree, he/she should announce his/her objections within the next fifteen (15) days, and the case shall be subject to the control of the judge.
• What is conciliation?
Conciliation is an alternative form of dispute resolution. At conciliation, which can only be applied to crimes where it is possible to desist from the punitive pretension, it is intended for the parties to reach an agreement that, if achieved, would involve the full compliance of the obligation so the criminal action can be extinguished.
• What is mediation?
It is also an alternative mechanism of dispute resolution. At mediation, the parties can ask the Prosecutor or the Guarantee Judge, before the trial begins, for his/her dispute to be transferred to one of the Alternative Dispute Resolution Centers of the Judicial Branch or the Public Ministry or to a private mediation center.
• Can the Prosecutor reach agreements with the defendant?
Yes, to humanize the actions, solve the disputes resulting from the violation of the criminal law, obtain investigative and testimonial aid against other persons who are allegedly linked to the crime and to provide for the effective compensation of damages and losses caused.
Some Procedures in Particular
• What is the submission to the immediate simplified procedure?
When it comes to crimes with punishments of less than three (3) years, once the indictment is issued, and on the same act, if the Prosecutor considers that he/she has enough evidentiary material so as to obtain a judgment of conviction, he/she may ask the defendant if the latter accepts the facts, and if said defendant does, the Guarantee Judge shall issue a judgment during this hearing session.
• What is the submission to the immediate oral trial?
After the indictment and when it comes to crimes with punishments of more than 3 years, if the Prosecutor has enough weight of evidence so as to obtain a judgment of conviction, he/she may verbally accuse the defendant at the same hearing. In this case, the Guarantee Judge shall schedule the date for the oral trial.
• What is the submission to the direct procedure?
After the indictment and when it comes to crimes with punishments of up to 4 years, if the Prosecutor has enough weight of evidence so as to obtain a judgment of conviction, he/she may verbally accuse the defendant at the same hearing, and if the accused accepts the facts, the Guarantee Judge shall issue a sentence without delay.
• What is the rendering jurisdictional evidence in advance?
Exceptionally, the parties can ask the Guarantee Judge if they can render jurisdictional evidence in advance, since they consider that it is an unrepeatable act; when it comes to a declaration, that it most likely will not be received at the trial (terminal illness); when the defendant is on the run and by the passage of time it is impossible to preserve the evidence; when it exists an evident risk that the delay will cause that the source of the evidence to be lost. These evidences should be examined before the Guarantee Judge.
Implementation of the Accusatorial Criminal Justice System
• How will the Accusatorial Criminal Justice System be implemented?
It will be done in a progressive manner. Firstly, with the Second Judicial District, that is to say, the provinces of Cocle and Veraguas, starting from September 2, 2009. As of this date, it will be applied to all the procedures that are within the jurisdiction of the Plenary and Criminal Chamber of the Supreme Court, as well as the Court of single instance and the National Assembly.
• When will it be implemented in the rest of the country?
It will also be implemented in a progressive manner, starting from September 2, 2012 in the Fourth Judicial District, that is to say, the provinces of Herrera and Los Santos. As of September 2, 2015, it will be implemented in the Third Judicial District, that includes the provinces of Chiriqui and Bocas del Toro and the Ngable Bugle Reservation, and lastly, as of September 2, 2016, in the First Judicial District, that is, the provinces of Panama, Colon, Darien and the Kuna Yala and Embera Reservations.
• What will happen with the investigations related to the facts and conducts that occurred
before Accusatorial Criminal Justice System came into force?
They will continue with the previous system, that is to say, they should be resolved pursuant to the Third Book of the Judicial Code.
• What are the expected results for the Accusatorial Criminal Justice System?
It is expected to reduce quantitatively time for the criminal process, making it more agile, efficient and transparent. It will be so because the evidences will be received at a public hearing and the decisions shall also be made in a public manner. This new system allows for the expansion of the coverage of the rights for both the defendant and the victim and also for the protection of the latter.
• What is believed to be the greatest impact of the Accusatorial Criminal Justice System on the
The agility and rapidity are the greatest impacts that the Accusatorial Criminal Justice System will have to administer justice. There is no doubt that the development through the public hearings allows for the media to make the cases known, as a mean to collectively control the quality of the work of the judges, whether at the individual or court level, the Public Ministry, the lawyers, whether public or private.
• What are the expected results of the Accusatorial Criminal Justice System in terms of
effectiveness and guarantee?
The results we expect from the new Accusatorial Criminal Justice System in terms of effectiveness and guarantee are aimed to reduce quantitatively both the preventive detentions for prolonged periods of time, as well as proceedings without detainees, featuring prompt resolutions of the Courts that will give certainty to the parties about impartial results.
Also, the previous control of the Guarantee Judge in key activities during the investigation stage represents an increase regarding the fundamental guarantees of the citizens.
• Is it possible for the Accusatorial Criminal Justice System to generate impunity?
No system is intended to facilitate impunity, but without any doubt, this phenomenon is a real problem in our setting. Nevertheless, the causes do not depend on the criminal procedural system chosen but on the solidity of the institutions, the commitment that each of the actors of the system, including the civil society and the media, assume with responsibility and determination, and for each of them to fulfill his/her role, for the Prosecutor to direct his/her investigation in an objective manner, for the defense attorney to act with academicism and loyalty and for that the judge to be impartial and independent and for the system to operate with fluidity, the necessary resources should be provided.
• Will the implementation of this system be too costly in Panama?
There is no doubt that changing the current system for a modern one will require a large initial investment on activities such as infrastructure, training, and technology, among others, but this investment can be recovered in a very short term
as long as the cases are resolved in shorter periods of time, with the consequential saving of supplies such as man-hours, basic services, reduction of preventive detention terms, and the most important one, the timely response to the service demand.
Citizen Contact Centers
• What are the Citizen Contact & Information Centers?
They are information stands located at the entrance of the Courthouse or Public Ministry facilities, and they are composed of officers that have been specially trained so as to provide any information related to the different services rendered by the Judicial Branch and the Public Ministry.