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Sunday, September 23 2018 @ 05:40 PM UTC

Eisenmann vs. Martinelli (a.k.a. La Prensa vs. TCT) - Forcing A Judge To Resign

Law & LawyersThe judge of the Fourth Criminal Circuit Court of Panama, Alexis Ballesteros, said he was asked to resign for not "following directions" and for having overridden a decision made by a lower court to throw out the criminal case against five employees of the company Transcaribe Trading SA (TCT), for having blocked access to the office of the La Prensa newspaper on 2 and 3 August, 2012.

Ballesteros put his claims in a letter sent yesterday to the President of the Second Tribunal, judge Secundino Mendieta.

The Second Municipal Court definitively closed the case regarding the blocking of the street in front of the offices of the La Prensa newspaper, in a decision handed down on November 26, 2013.

However, lawyers representing Corprensa (the parent company of the La Prensa newspaper) appealed this decision, and the Court of Appeals was composed of the judges of the Fourth (as rapporteur), Fifth and Sixth Criminal Circuit Courts.

In the letter - to which this newspaper (La Prensa) had access - judge Ballesteros explains he was cited four times by Mendieta and by Judge Wilfredo Sáenz to receive instructions in the TCT process against Corprensa.

"The surveillance cameras of the Second Superior Court of Justice are the witnesses of the number of times that I met with you in private to hear your instructions on this case," he said .

The judge said that "I see with great concern how after the four citations ... today I you have requested my resignation."

We asked for, through the Secretary of Communication of the Judicial Branch an official version from judge Mendieta and the President of the Supreme Court of Justice, Jose Ayu Prado, but there was no answer.

Decision In Favor of Corprensa

This newspaper (La Prensa) had access to the draft decision issued by Judge Ballesteros on 7 March, in which he reversed the lower court's decision of 26 November 2013, which had closed the case. The TCT employees Ariel Garay, Justavino Frías, Félix Aguilar, Ceferino Espino, and Basilio Ríos were being prosecuted for "crimes against freedom" in this case.

What's more, in the decision judge Ballesteros ordered the judge in the lower court, Leslie Loaiza of the Second Municipal Court, to conduct a preliminary hearing.

Ballesteros argued that even if the Fourth Municipal Prosecutor had requested for the file to be closed on 28 February 2013, a preliminary hearing should have been held because there were five defendants.

He decided that the victim in this case, Corprensa, is entitled to be heard by the judge before deciding if the case should be closed.

Ballesteros based his decision on that which is established in the Judicial Code, the Criminal Procedure Code, and the Law on the Protection of Victims of Crime.

"Regardless of what the trial judge decides, the prosecution can reiterate (in the hearing) their concepts held in their prosecutor's opinion. The legal defense can agree to that which is requested by the prosecutor, and the complainant can oppose and ask for the opening of criminal proceedings," he said.

Retaliation

In the letter sent to Mendieta, Ballesteros added "it is regrettable that because I did not accede or abide to your guidelines (to confirm the closing of the case), as retaliation you are now asking me to resign."

The judge called the position of Mendieta and Saenz "preposterous" for obliging him to resign for having acted in accordance with the law, and for "not having followed their instructions."

He warned that "if I had decided in the way you asked me to, I would have been violating the due process of the victim (Corporación La Prensa)."

"As I explained to both of them, no one will stand up for me after that decision is revised later," he said.

Ballesteros said "my honor and my family comes before their particular interests (of Mendieta and Saenz)."

The judge made ​​it clear he will not resign because he believes the procedure is not appropriate.

In that sense, Ballesteros said even if his position is temporary, he was not informed of the reasons why he should resign.

What's more, the position he has been occupying was vacant since Silverio Rodriguez resigned on 3 May, 2013.

Ballesteros even hinted in the letter that in one of the meetings, he was asked if it was true that he was issuing - in exchange for money - decisions of invalidity in drug cases.

In response to this, Ballesteros said he provided documentation as proof that he had not handed down any decisions of invalidity in any drug cases, because these cases are allocated through a the random computerized Single Registry Entry system.

His lawyer, Rosendo Rivera, said "they tried to accuse him of rigging cases, with the intention of pressuring him to decide in the manner they wanted."

He said on Tuesday, March 18, judge Mendieta told judge Ballesteros he had until Friday to submit his resignation.

Rivera said the last meeting judge Ballesteros attended with the judges Mendieta and Sáenz was on February 25.

"If the resignation is because he is in a temporary position, then make him a full judge, explain the reasons and remove him from the position," he said.

According to Rivera, judge Ballesteros has a history of more than 13 years in the judiciary, and he has climbed the ladder with having been involved in any wrongdoing. Prior to being picked to fill the vacancy in the Fourth Court, Ballesteros served as the Eleventh Circuit Court judge.

He added that Ballesteros is not wedded to the position, because his disagreement lies in the manner in which they intend to remove him from office.

"If the judges are going to depend on what they are being told by the presiding judge of the Supreme Court or the judge of the Second Tribunal when it comes to making their decisions in cases, then we are not doing justice," he said.

According to Rivera, their interest was to confirm the closure of the case in the blocking of the office of La Prensa so that would be closed forever, because no appeal is allowed in these instances (there is no secondary instance of appeal).

Judge Brown Resigned

The above draft ruling that revokes the closure of the Corprensa file already has two signatures.

In addition to Ballesteros, the decision was signed by the judge of the Fifth Criminal Court, Enrique Paniza, and it has been pending signature by the judge of the Sixth Criminal Court since 11 March.

Judicial sources said on Friday, 14 March, the judge of the Sixth Criminal Court, Jorge Brown, presented his resignation.

The same sources said on Monday, March 17, Celia de Duncan (who was the First Circuit Judge of Colon) was moved to occupy the position left vacant by Brown's resignation.

What's more, the Third Criminal Court judge Hilda Bonilla has been on vacation since March 6.

Her place has been occupied on an interim basis by Irma Palacios.

CASE TIMELINE

2 Aug 2012 - Workers from the company TCT block the road in front of the offices of La Prensa.

16 August 2012 - Corprensa files a complaint.

28 February 2013 - The Fourth Municipal Prosecutor calls for the case to be closed.

13 December 2013 - Corprensa filed an appeal. (La Prensa)

Editor's Comment: I took the time to translate this article because it clearly illustrates one thing - that there is no judicial security in Panama. Having the law or the evidence on your side really does not matter one bit. President Ricardo Martinelli is locked in a battle to the death with I. Roberto Eisenmann Jr., who is the owner of both Coronado and La Prensa. Eisenmann is 100% Panameñista, and he backs the Panameñista presidential candidate Juan Carlos Varela.

When Martinelli and the CD broke off their political alliance on 30 August 2011 (because of Juan Carlos Varela's involvement in the Finmeccanica case) Eisenmann and La Prensa went on the warpath against the CD and Martinelli. They published a series of articles and reports about government contracts to build highways and roads, issued by the Martinelli administration to the company Transcaribe Trading SA (TCT). David and Daniel Ochy, who own TCT, went ballistic over these articles, and they sent their trucks and heavy equipment to block the entrances to the offices of La Prensa in the middle of the night, effectively preventing the newspapers from being delivered. And then of course, La Prensa filed their complaints.

So you can clearly see how this is anything but a "normal" legal case that's making it's way through the judiciary system in Panama. The two judges who were pressuring Ballesteros to decide to close the case - the President of the Supreme Court and the judge of the Second Tribunal (who are both above the position held by Ballesteros) were trying to pressure him into deciding to uphold the lower court's decision to close the case (forever). In these kinds of cases, there is no allowance for a second appeal, if two decisions in a row go against you. However if Ballesteros decided against the lower court, to keep the case open, then it goes back down for a hearing. In short, La Prensa and Eisenmann would win, the CD and Martinelli would lose - and they did not want that. When he refused to decide in the manner they wanted, they demanded his resignation.

Don't trust the Panamanian judicial system for a second, for anything. No matter what happens to you - and especially because you are a foreigner - the Panamanian on the other side of the table probably has more money, and better political connections than you. You will lose your case, regardless of the evidence, testimony of witnesses, or whatever the law might say. Even if they have to remove a judge to get what they want - they will control and manipulate the system to get what they want. Period.

There is no judicial security in Panama. None. Zero. It simply does not exist. Ricardo Martinelli and the CD own it - lock, stock, and barrel. And if (when) Jose Domingo Arias wins the election in May this situation will only become worse. Their control over the judiciary will deepen, as they continue to appoint more judges and to remove those who are not players on their political team. The only way you have a chance of winning is if your case is too small to matter, and if the Panamanian you are up against is broke, dumb, stupid, and ugly - and a member of either the PRD or the Panameñista political party. If that's the case, then it's a lock...

But seriously folks, if you are an English speaking businessman in Panama, now would be a good time to donate heavily to the campaign of Jose Domingo Arias and proclaim your everlasting love for the CD. I think they are poised to retain control of the country, and to keep it for a very long time. Make friends now, if you have not already. Only those gringos who are flat broke (and I mean, penniless) can afford to buck the system. Look what happens to Panamanians who are on the wrong side of the game. Do you think you would stand a chance?

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