Bill 222.

Summary.

The bill proposes adding Article 121-A to the Criminal Procedure Code to govern forfeiture of property, gains or proceeds connected with illicit drug trafficking, human trafficking or migrant smuggling. The provision would cover property despite any transformations it has undergone. It would also extend forfeiture to instruments used or intended for use in those offenses, regardless of criminal responsibility or ownership of the property.

In applying the proposed law, Art. 3 would protect the rights and guarantees recognized in the Constitution and in international treaties and conventions ratified by the Panamanian State, particularly legality and due process. Art. 4 would safeguard private property lawfully acquired by natural or legal persons when forfeiture concerns property connected with the specified activities or instruments used or intended for use in them.

Art. 5 defines an affected person as the owner of property subject to forfeiture or, where the property is unregistered, its possessor or holder. It defines a third party as a person other than the affected person who appears in the proceedings to claim a property right in the asset. Both could participate in the criminal proceedings to oppose an impairment of their rights and seek protection. Under Art. 6, good faith would be presumed and the Public Prosecution Service (Ministerio Público) would bear the burden of proving bad faith. Affected persons and third parties could submit evidence supporting their own allegations when they are better placed to prove them.

For supervised entities and natural or legal persons, Art. 7 would uphold the rights and guarantees of those complying with the due diligence rules, policies, procedures and measures contained in Law 23 of 2015, which adopts measures to prevent money laundering, terrorist financing and financing of the proliferation of weapons of mass destruction.

When submitting a forfeiture claim to the guarantees judge, Art. 8 would require the Public Prosecution Service to identify the names, identifying particulars and addresses of affected persons and third parties, if known. If that information is unknown, it would request service by public notice under the Civil Procedure Code (Código Procesal Civil). Under Art. 9, an affected person who fails to appear after being served as prescribed by law would be assigned counsel for an absent party through the Public Defense Institute (Instituto de Defensa Pública), and the proceedings would continue. A person who later appears would join the proceedings at their then current stage. Art. 10 provides for commencement upon promulgation.

The bill concerns the Public Prosecution Service, guarantees judges and the Public Defense Institute. Its provisions could interest or affect property owners and possessors, third parties claiming property rights, supervised entities and persons, and sectors subject to due diligence requirements.