PANAMANIAN SUPREME COURT THROWS OUT CHARGES

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