Viewing cable 04PANAMA823
Title: PANAMANIAN SUPREME COURT THROWS OUT CHARGES

IdentifierCreatedReleasedClassificationOrigin
04PANAMA8232004-04-07 19:29:00 2011-08-30 01:44:00 SECRET Embassy Panama
This record is a partial extract of the original cable. The full text of the original cable is not available.
S E C R E T SECTION 01 OF 03 PANAMA 000823 
SIPDIS 
 
 
DEPARTMENT FOR WHA/CEN/BRIGHAM 
DEPARTMENT PLEASE PASS TO USAID ADOLFO FRANCO (AA/LAC), 
STEVE HENDRIX (LAC/RSD), AND ROBERT KHAN (LAC/CEN) 
 
 
E.O. 12958: DECL: 04/05/2009 
TAGS: PARM PREL KCOR PTER KJUS PM NI CO GA POLITICS FOREIGN POLICY
SUBJECT: PANAMANIAN SUPREME COURT THROWS OUT CHARGES 
AGAINST ISRAELI ARMS SMUGGLER 
 
REF: A. 02 PANAMA 2820 
     ¶B. 02 PANAMA 1518 
     ¶C. 03 PANAMA 2451 
     ¶D. 03 PANAMA 3294 
     ¶E. PANAMA 0730 
 
 
Classified By: Charge d'Affaires Christopher J. McMullen for reasons 1. 
4 (b) & (d) 
 
 
SUMMARY: Arms Trafficker Walks 
------------------------------ 
¶1. (C) Citing "lack of jurisdiction," by an 8-1 vote, 
Panama's Supreme Court has terminated Public Ministry 
investigations of all charges against Israeli national Shimon 
Yalin Yelinek, currently residing in Panama, for his alleged 
role in smuggling Nicaraguan military weapons to the 
paramilitary United Defense Forces of Colombia (AUC).  More 
than one source has alleged that all eight justices who voted 
for the decision received bribes. With the Supreme Court's 
action, announced in print and television media during the 
week of March 29, there are no other charges pending against 
Yelinek in Panama or any other country, including the United 
States.  (NOTE: Yelinek is the subject of an ongoing DEA 
money laundering investigation. END NOTE.)  Nicaraguan 
authorities have not brought charges against Yelinek or any 
Otterloo defendants, while Colombian authorities have charged 
two Otterloo defendants, but not Yelinek, GOP sources told 
EmbOffs.  Embassy is assessing appropriate responses to the 
Court's latest questionable decision, which has brought this 
institution to a new low in terms of credibility.  END 
SUMMARY. 
 
 
The lone dissenting opinion 
--------------------------- 
¶2. (C) The Supreme Court's decision that Panamanian Courts 
have no jurisdiction in the Otterloo case surprised many 
observers, given the fact that the defendants had been 
charged with falsifying Panamanian National Police documents 
and using a Panamanian flagged vessel, owned by a company 
headquartered in Panama.  Lone dissenting Supreme Court 
Justice Adan Arnulfo Arjona (please protect) told AID 
Director on April 1 that the majority ruled on issues he 
believes should have been left to lower courts. 
 
 
¶3. (C) Arjona lamented that since taking leadership of the 
Court in January 2004, Supreme Court President Cesar Pereira 
Burgos is making the Court's decisions and operations more 
and more opaque, restricting public access to Court opinions 
and doing away with internet publication of rulings, the 
latter an AID-funded initiative the Court took under Arjona. 
Arjona criticized Pereira for having ruled differently on two 
nearly identical cases.  An April 4 La Prensa article cites 
the same two cases, and chides the Court for lack of 
consistency, comparing Court decision-making to a child 
picking petals from a daisy.  Under Pereira, the Court has 
rejected any reliance on precedent, calling into doubt this 
institution's credibility with the Panamanian public. 
 
 
Who is Carlos Carrillo? 
----------------------- 
¶4. (C) Arjona alerted AID Director that Yelinek's Panamanian 
lawyer, Carlos E. Carrillo, is one to watch.  Carrillo is the 
attorney who defended sitting Legislator Pedro Miguel 
Gonzalez, wanted for the 1992 murder of U.S. Army Sargeant 
Zak Hernandez (Ref. D), and then helped prosecute former 
Judicial Technical Police Director Jaime Abad on trumped up 
charges of evidence tampering. (Abad had led the 
investigation in the Gonzalez case).  Carrillo also 
represented alleged CEMIS bag-man and PRD Legislator Mateo 
Castillero.  (NOTE: The CEMIS scandal involved another 
Supreme Court decision that has raised concerns about 
corruption within this institution. See Reftel C for details. 
END NOTE.)  Recently Carrillo has represented the sister of 
drug trafficker Jesus Arcangel Henao Montoya as well former 
President Ernesto Perez Balladares (EPB) in other 
controversial cases tried before Panama's Supreme Court. 
(EPB won his case, and it appears that Lorena Henao Montoya 
also will.) 
Case Details 
------------ 
¶5. (S) According to reftel B, in November 2001, the suspect 
cargo vessel Otterloo, delivered from Puerto El Bluff, 
Nicaragua, to Turbo, Colombia, 14 containers of Nicaraguan 
military weapons -- approximately 3,000 AK-M rifles and five 
million rounds of ammunition.  In January 2002, the 
Panamanian National Police (PNP) seized and searched the 
Otterloo in Panamanian waters after receiving a tip from 
Colombian authorities.  The guns and ammo never were 
recovered, but the size and nature of the shipment were 
pieced together by police work and intel reports.  The PNP 
discovered two conflicting sets of cargo records and took 
statements from the ship's crew regarding the Otterloo's true 
cargo.  Nicaraguan officials then produced a weapons purchase 
order allegedly authorized by mid-level PNP officials that 
was later proved to be a forgery.  The document was traced to 
Shimon Yalin Yelinek and two Israeli nationals residing in 
Guatemala.  Yelinek faced charges in Panama for forgery and 
conspiracy in the illegal shipment of weapons and was 
released on $750,000 bail.  A specially formed OAS commission 
implicated Yelinek, but exonerated Panamanian authorities. 
 
 
¶6. (C) The Supreme Court's majority decision to quash the 
Yelinek case cites a lack of evidentiary ties (nexus) to 
Panama to allow Panama's Supreme Court to assert 
jurisdiction.  The justices ruled that there is no evidence 
that meetings took place in Panama to purchase the weapons 
and ammunition, that the purchase order was not issued in 
Panama, and dismissed forgery charges.  The ruling ignores 
the Otterloo's Panamanian flag (and legal responsibilities 
under that registry) and the fact that the forged purchase 
order was a Panamanian National Police (PNP) document. 
  
Comment: Next Steps 
------------------- 
¶7. (C) In yet another example of Panama's Supreme Court 
deep-sixing a high profile corruption case on trumped-up 
technicalities, Panamanians are becoming increasingly 
disenchanted with their high court.  (NOTE: Panama's press 
closely covered the Yelinek case and reported a blow-by-blow 
of bribery accusations and deliberations in the equally 
egregious multi-million CEMIS case, which the Supreme Court 
threw out on September 17, 2003. END NOTE.)  Despite his 
insistence that complainants exhaust all other options before 
filing constitutional claims with the Supreme Court, Pereira 
accepted another particularly contentious case, ordering the 
immediate release of Former President Perez Balladares' 
assets, which the Comptroller General's office froze based on 
EPB's ties to the PECC scandal. (See Reftel D.) 
 
 
¶8. (C) DEA's investigation of Yelinek continues.  DEA Panama 
has requested the assistance of DOJ's Assets Forfeiture Money 
Laundering (AFML) Section for an eventual prosecution in the 
United States.  Despite reports that Yelinek is trying to 
"expedite" his naturalization as a Panamanian citizen, high 
GOP officials are apparently angry with the ruling and 
seeking to have Yelinek's residency revoked in order to expel 
him from Panama.  Panama's constitution prohibits extradition 
of Panamanian citizens, which would complicate future US 
prosecution of a case against him if he were to gain 
citizenship. 
 ¶9. (C) We believe that this type of egregious corruption in 
the courts poses a threat to U.S. economic and security 
interests in Panama.  Unfortunately, decisions driven by 
factors other than jurisprudence are seen at all levels of 
Panama's judicial system.  The lack of positive role models 
at the top appears to drive the lack of political will among 
leaders to tackle fundamental weaknesses in the judiciary. 
Expressions of USG concern would have the greatest 
demonstration effect if directed at the top of the judicial 
hierarchy.  Thus, Embassy is including whether a 212(f) visa 
revocation would be appropriate for any of the individuals 
involved in this case in its assessment of options for 
responding to the Supreme Court's latest dubious decision. 
Another option we will consider is suspending USAID's 
assistance to the Supreme Court, channeling it instead to 
civil society. 
 
 
MCMULLEN