The prescription of crimes and money laundering in the Odebrecht case

How valid can the crime of money laundering (against the economic order) remain in the Odebrecht case, if the preceding crimes have prescribed?

It is a question that generates an intense debate, a polarization of opinions when lawyers are consulted, due to the fact that the structure of the money laundering crime requires a preceding or underlying crime to be consummated.

What is the dimension or meaning of the underlying crime in the most scandalous bribery case that occurred in Panama? That will be the debate for the lawyer Carlos Barsallo who has dedicated much of his time to the prevention of money laundering and financing of terrorism and ethics.

The case of systematic bribery, used by the construction company Odebrecht, led the Anti-Corruption Prosecutor’s Office seven years of investigation and recently concluded the preliminary hearing that awaits the decision of Judge Baloisa Marquínez, of the Third Liquidator Court, who must issue the summons to judgment.

Once the trial is over, the appeals of the dissatisfied parties will be raised to the Second Court and later to the Supreme Court of Justice (SCJ) and each one could interpret the rule differently.

In the inquisitorial system, the rules that apply to this process describe that the prescription of a crime is interrupted by the issuance of the summons to trial or when a mediation agreement is made. As the Supreme Court of Justice (SCJ) has held in recent years, not only is the indictment sufficient to interrupt the criminal prescription, but all parties have been notified and it is final.

The judge accepted a term of 30 days to issue her decision after listening to the defense lawyers and the theory of the Prosecutor’s case. That is, for those who understand the subject, the statute of limitations continues to run.

Most of the preceding crimes, which accompany the main accusation of the Anti-Corruption Prosecutor, that is, the crime of money laundering, are prescribed: corruption of public servants, embezzlement, unjustified enrichment, crimes against public administration and fraud. The common of these articles is that the penalty ranges from three to eight years in prison.

The complaint that originated the investigation of the bribery scheme frames that the events occurred between 2009-2012. “That is, events prior to 2010 would seem to be prescribed,” says Barsallo.

This is where the opinions of lawyers are found. Barsallo, former president of Transparency International, chapter of Panama, has read hundreds of rulings of the Supreme Court of Justice and does not remember one in which the crime of money laundering appears autonomously. He cites a case in Spain in which the crime of money laundering survived in the circumstances in which the issue is being discussed. But, “in Panama the court could think differently, because it would be rare, or absurd, to be convicted of money laundering (autonomous) and the preceding crime (underlying) when the last one has prescribed”, he analyzes.

However, for some of his colleagues, the predicate offense is not something that can be framed in black or white, nor what can motivate a judge to call a trial or sentence a person, but the sequence of events and the way in which the money that subsequently entered the Panamanian financial system was obtained.

The fact that a statute of limitations prescribes does not mean that it did not occur. In the case of Odebrecht, there are confessions from the directors of the company about the way in which they were approached by politicians to speed up the projects, the rigged bidding processes, and also the children of former president Ricardo Martinelli admitted their participation as intermediaries in the bribes that handed over the construction company to a high-ranking official of the 2009-2014 administration.

The lawyers of the 50 accused natural persons could argue that without a prior offense there is no money laundering, although the Prosecutor’s Office maintains that it is an autonomous crime. “There is a kind of illogic, the reality is that such autonomy is not allowed because it requires a previous crime and what happens with that crime,” added Barsallo.

“It is irrelevant whether the crime is prescribed or not,” says Cesar Ruiloba, former president of the National Bar Association (CNA). Under his criteria, what should prevail in the court’s analysis “is the accreditation of the facts that determine the existence of that predicate offense, and at the same time, that these facts have generated illicit assets inserted in the Panamanian financial system.”

“To convict for money laundering, a sentence of the previous crime is not required,” said former CSJ magistrate Harry Díaz. The CSJ has sentenced for money laundering without the need for a previous sentence in underlying crimes. As an example, he mentioned three mistakes by the referee in which a situation of this nature occurs. In addition, he underlines that the wording of crime 254, which speaks of money laundering, tacitly states that whoever “reasonably foresees” receives money that comes from activities related to any of the 38 previous crimes, can commit a money laundering crime.

The defense of the accused is not going to waste time in exploiting to the maximum the prescription of the preceding crime. Any decision that arises from the trial will surely be appealed by the affected party and will go to higher instances.

could be useless

Among the consultations with several jurists, one of them was of the opinion that for all the defendants, the conviction of Odebrecht for money laundering “as well as those carried out in competition or connection with them” applies as a predicate offense, as read in the collaboration agreement between the company and the Public Ministry. On this basis, all the money that circulated had that illicit origin. But the Prosecutor’s Office must show if all the defendants knew of the illegality. It can be proved to some that they received, to others that they transferred and to others that they hid the money.

The money laundering case revolves around whether they benefited from Caja Dos, the separate accounts that the company had to distribute bribes to officials, politicians and others. In addition to this, there are also those who helped the first circle of beneficiaries to hide the money and its origin.

After evaluating the circumstantial elements in each case, the judge has to determine that the crime of money laundering is consummated according to the theory of the Prosecutor’s Office through the facts that have generated illicit money and that this money has entered the banking circuit. of the country, even if it is through figureheads. “If the defense of any defendant can prove the contrary, then the judge could dismiss, but not due to the statute of limitations of the preceding crime,” Ruiloba settled.