Provisional Dismissal 546-23

Through Resolution No. 546-23, dated April 24, 2023, the Anticorruption Circuit Prosecutor of the Early Decision and Litigation Section ordered the dismissal and archival of Criminal Case No. 202200067006, concluding that the facts alleged by Villamorey, S.A. against Judge Solange Le Ferrec Malek de Booker did not constitute a crime. The complaint alleged abuse of authority and breach of public-servant duties in connection with the special judicial-accounting proceeding filed by Lisa, S.A. against Villamorey.

Background

Attorney Moisés Joel Bartlett Quiel, acting on behalf of Ramiro López Nimatuj (Villamorey's legal representative), filed a formal criminal complaint against Judge Le Ferrec of the Fourth Civil Circuit Court of the First Judicial District of Panama. The complaint centered on two allegations: first, that the judge issued Embargo Order No. 1234/14606-21 on August 2, 2022, in favor of Lisa, S.A. for $44,910,912.00 without ruling on an objection (reclamo) filed by Villamorey on November 11, 2021; second, that the judge exceeded what the plaintiff had requested, which the complainant characterized as an arbitrary and abusive act.

Investigative Acts

The Anticorruption Prosecutor's Office carried out the following steps:

• Consulted the Judiciary's Human Resources Technical Secretariat, which confirmed that no complaint had been filed against Judge Le Ferrec by the Bartlett Quiel law firm
• Obtained authenticated copies of the principal filings in the civil case between Lisa, S.A. and Villamorey, S.A.
• Verified with the First Superior Tribunal that no disciplinary proceeding existed against the judge
• Interviewed Kathia Camero, a court clerk at the Fourth Civil Circuit Court, who explained the procedural handling of the case
• Interviewed Judge Solange Le Ferrec herself, who stated that Villamorey's objection had been embedded within the answer brief (rather than filed as a separate document), causing the court's case officer to overlook it when processing the file

Prosecutor's Analysis

The Prosecutor applied the jurisprudential standard for abuse of authority under Article 355 of the Criminal Code, which requires an arbitrary act committed with dolus (criminal intent), meaning conscious awareness of the illegality of the act. The Prosecutor cited the Supreme Court of Justice's ruling of September 8, 2008, which holds that not every resolution contrary to law constitutes a crime; only the conscious, deliberate issuance of a patently unmotivated resolution, born of a public servant's caprice and executed with the clear intention of causing harm to a person.

The investigation established that, once the omission was identified, the Court issued Order No. 1473/14606-21 on September 23, 2022, granting the motion for reconsideration filed by the law firm Galindo, Arias y López (Villamorey's counsel) and vacating Embargo Order No. 1234/14606-21 in its entirety, along with the notification edict and all communications sent to banking institutions. The proceeding was rolled back to resolve Villamorey's objection. This course of action was consistent with Article 1129 of the Judicial Code, which empowers a judge to revoke ex officio any order or ruling.

"Lo que se sanciona penalmente, es la actividad consciente y reflexiva de emitir una resolución o acto a todas luces desmotivado, que nace a la vida jurídica producto de la voluntad o capricho del servidor público; de un acto dispositivo absurdo e irracional, elaborado o materializado con plena intención para causarle un perjuicio a alguna persona." (Page 4)

The Prosecutor concluded that the crime did not materialize: the procedural correction through reconsideration demonstrated that the court acted in accordance with applicable procedural rules, and there was no arbitrary act, no intentional misconduct, and no harm caused through an unlawful exercise of public authority.

Ruling

• Order the dismissal and archival of Criminal Case No. 202200067006, as the alleged conduct did not constitute a criminal offense
• Process the closure of Case File No. 202200067006 in the Accusatory Criminal System's technology platform

Legal Basis

• Articles 355 and 356 of the Criminal Code — definition of abuse of authority and breach of public-servant duties, requiring dolus and an arbitrary act not covered by another criminal provision
• Article 275 of the Criminal Procedure Code (Law 63 of August 28, 2008) — authority of the Prosecutor to order archival when the facts do not constitute a crime or the perpetrator cannot be identified
• Article 1129 of the Judicial Code — legal basis for the reconsideration that corrected the procedural error, confirming that the judge acted within her lawful authority

Signatories

• Jacinto Pérez Domínguez, Anticorruption Circuit Prosecutor of the Accusatory Criminal System, Early Decision and Litigation Section, Office of the Attorney General