Draft bill 115.

Summary.

The draft bill establishes an obligation to restore in full to the State public money, property, funds, assets, and resources appropriated, diverted, misappropriated, improperly paid, or used to the detriment of public assets, when established by a final criminal judgment. Its stated object concerns the offenses against public administration identified in Title X, Chapters 1, II, III, V, and IX of the Criminal Code (Código Penal). Restitution would operate alongside applicable penalties, security measures, forfeiture, civil liability arising from the offense, and other legal consequences.

The obligation would apply to natural or legal persons, whether Panamanian or foreign, convicted by a final criminal judgment of offenses under Title X of the Criminal Code. For a legal person, its legal representatives, directors, officers, managers, or employees would be covered only if the judgment declares their responsibility. Public resources whose illicit origin is established by that judgment could be identified, traced, and pursued for recovery despite intervening transactions, transfers, conveyances, or disposals, subject to the rights of good faith third-party purchasers. The bill states that it complements the Criminal Code and the Criminal Procedure Code (Código Procesal Penal), and makes restitution enforceable only upon a final judgment declaring criminal responsibility.

Restitution would cover the proceeds, gains, or economic benefits of the offense and property recoverable under the preceding rules. It could be effected through voluntary return, which would leave other liabilities intact, or compulsory enforcement. Enforcement mechanisms include attachment or seizure, forfeiture, sale of recovered property, joint and several liability as determined by the competent authority, and payment agreements authorized by the competent court that preserve the full obligation. A conviction would trigger the disqualifications provided by law for holding public office and for contracting with the State or participating in contractor selection procedures. It would also lead to exclusion or disqualification from State registers of prospective bidders, bidders, or contractors for the period specified in the judgment or by law.

The court would forward a restitution judgment on its own initiative to the General Directorate of Revenue (Dirección General de Ingresos) within the Ministry of Economy and Finance (Ministerio de Economía y Finanzas), the Office of the Comptroller General of the Republic (Contraloría General de la República), and the affected public entity. The General Directorate of Revenue would record the amount as an enforceable debt and pursue collection under the Tax Code (Código Fiscal). If a payment agreement is breached, it could report the outstanding obligation to credit history reporting agencies under Law 24 of May 22, 2002 (Ley 24 de 22 de mayo de 2002), as amended, within the three (3) business days following the determination of breach.

Implementation would fall, within their respective powers, to the Public Prosecutor's Office (Ministerio Público), the Judiciary (Órgano Judicial), the Office of the Comptroller General of the Republic, the General Directorate of Revenue within the Ministry of Economy and Finance, the National Authority for Transparency and Access to Information (Autoridad Nacional de Transparencia y Acceso a la Información, ANTAI), and other competent public entities. The Executive Branch would issue implementing regulations within no more than six (6) months from promulgation, and the law would take effect upon publication in the Official Gazette. The provisions could concern affected public entities, credit reporting agencies, and sectors that contract with the State.