Oct 8 2024
BDT Investments Inc.
The complaint identifies Bosch Gutiérrez as the judicial depositary appointed before the Eleventh Circuit Civil Court of the First Judicial Circuit of Panama in Case No. 7081-08. The starting point is the <doc id="pty-556-99-2008-11-25-a" /> that Bosch Gutiérrez addressed to the Eleventh Court on November 25, 2008, informing the court that Villamorey, S.A. had taken the necessary measures to comply with the sequestration order and that the dividend retentions corresponding to Lisa, S.A. were at the court's disposal. The complaint maintains that from that moment Bosch became constituted as depositary of those funds under Article 535(4) of the Judicial Code.
Noncompliance with the set-off order. <doc id="pty-556-99-2018-12-05-a" />, issued on December 5, 2018 by the Eleventh Circuit Civil Court and now final and enforceable, recognized that the dividends retained from Lisa, S.A. far exceeded the judgment amount in favor of Villamorey, S.A. and ordered set-off. Bosch Gutiérrez, as judicial depositary, was obligated to return the excess amounts. As of the date of the complaint, that judicial instruction remains unfulfilled.
Failure to file reports. The complaint emphasizes that Bosch Gutiérrez never filed any report on his management as depositary before the court where he assumed that role, and that the use, destination, or whereabouts of the retained funds remains unknown.
The complaint invokes Articles 338 and 341 of Panama's Criminal Code (embezzlement and misuse of public funds), applicable to Bosch Gutiérrez by virtue of Article 343(3), which extends crimes against public administration to depositaries of assets attached, sequestered, or deposited by public authority. The complaint asserts that the conduct meets the elements of tipicidad, unlawfulness, and culpability, as Bosch appropriated funds entrusted to him by reason of his office as judicial depositary.
BDT further invokes the reversal of the burden of proof under Article 257 of the Criminal Procedure Code for embezzlement and money laundering offenses, arguing that given the concealment of accounting books and financial statements, the burden falls on the accused to demonstrate the lawful origin of the assets.
The complaint grounds BDT's victim status in Article 79 of the Criminal Procedure Code, specifically subsection 3 (partners affected by crimes committed by those who direct or manage a company) and subsection 6 (any person who has suffered financial loss as a consequence of conduct violating criminal law). BDT requests admission as co-complainant under Article 90 of the Criminal Procedure Code, which governs concurrent complainants where more than one victim exists.
The complaint incorporates as documentary evidence all materials previously submitted and admitted by Lisa, S.A. in the criminal file, as well as an authenticated copy of <doc id="pty-31638-12-2022-04-12-a" />, issued by the Twelfth Civil Court on April 12, 2022, which certifies BDT's acquired rights. As expert evidence, it requests a judicial inspection of the accounting books and financial statements of Villamorey, S.A. and its registered agent, the firm Galindo, Arias y Lopez (GALA), to determine whether accounting records exist and, if found, to conduct a forensic audit.