Ecuador: Shaman to be sentenced to Prison Term in Death of U.S. citizen, during Ayahuasca Ceremony

SHAMAN MIGUEL CHIRIAP RECEIVES SHORT PRISON TERM – GUILTY OF HOMICIDE FOR PROFESSIONAL MALPRACTICE IN THE DEATH OF AMERICAN LESLIE ALLISON DURING AYAHUASCA CEREMONY – PROSECUTOR APPEALING DECISION ON BEHALF OF VICTIM’S FATHER – COURT APPEARS TO HAVE MODIFIED CHARGES AGAINST MIGUEL CHIRIAP PROVIDING LESS TIME IN PRISON

Leslie Allison from the United States died in Ecuador on January 14, 2016 while participating in an Ayahuasca ceremony in Gualaquiza, Ecuador. She was part of a group of thirty-two that paid over a thousand dollars each to be under the direction and guidance of well known Shaman, Miguel Chiriap. Things went terribly wrong for Ms. Allison, a 35 year-old woman who had spent a great deal of time in Ecuador. According to autopsy records she died a violent death as a result of a broken neck and blunt force trauma.

On June 8, 2017, a judicial court in Morona Santiago Province, Ecuador found shaman MIGUEL HILARIO CHIRIAP INCHIT guilty of culpable homicide in the death of U.S. citizen Leslie Allison. Her death was initially reported as an accident and a result of a bad reaction to ingredients in the ayahuasca. The defense argued that the victim did not follow the rules of consuming other substances(including illegal) such as methamphetamine which contributed to her death. However, testimony of Dr. Amalia Palacios of the INSPI categorically denied this claim.

Following below (1) is the sentencing memorandum by the Judicial Court for the sentencing of Miguel Chiriap issued on July 5, 2017, in the death of Leslie Allison. It appears that the Court modified the original charge from “culpable homicide” to “guilty for homicide professional malpractice”(machine translated). This in effect provides the Court the ability to sentence the defendant to lesser period of time in prison as opposed to the three to five years to be served under “culpable homicide”.

The ruling by the Court is being appealed by the prosecutor set forth below under sentence appeal(2).

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1. JUDGES SENTENCING MEMORANDUM FOR MIGUEL CHIRIAP IN DEATH OF U.S. CITIZEN LESLIE ALLISON
On July 5, 2017, the sentencing memorandum was issued.

Machine Translated (not full document)
For this reason, the evidentiary situation, for all the evidence that is described, analyzed and valued, clearly shows the evidence that binds the accused to the “culpable criminal act” (NEXO CAUSAL article 455 COIP), for Which, having the certainty of the criminal investigation and the conviction of the criminal responsibility of the defendant in that criminal type (“guilty homicide for professional malpractice”, article 146, 1st COIP), this CRIMINAL GUARANTEE COURT OF MORONA SANTIAGO, attentive to the provisions of art. 618 No. 3 Organic Code of Criminal Integral (COIP), “ADMINISTERING JUSTICE, ON BEHALF OF THE SOVEREIGN PEOPLE OF ECUADOR, AND BY AUTHORITY OF THE CONSTITUTION AND THE LAWS OF THE REPUBLIC”, issued a CONDEMATING SENTENCE against the accused “MIGUEL HILARIO CHIRIAP INCHIT “, A 56-year-old Ecuadorian citizen, domiciled in the” Kupiamaiz “community (Mercedes Molina, Gualaquiza cant, prov. Morona Santiago), married,” uwishin “or Shuar spiritual leader and guide, bearer of the cedula Of citizenship 190014571-3, for being responsible for the crime of “HOMICIDE COULD FOR PROFESSIONAL PRACTICE” in the death of “Leslie Ann Allison”, an offense foreseen in art. 146 inc. 1 ° Integral Criminal Code, and consequently imposed a penalty of ONE YEAR and SIX MONTHS of DEPRIVATION OF FREEDOM, without place to any penal mitigation, because there is the number of sufficient mitigating circumstances provided in the art. 45 Integral Criminal Code (art. 44, n. 2, COIP), since there would be only the attenuator No. 5 of art. 45 ibid. The sentence referred to the accused will be fulfilled in the Center for the deprivation of liberty of adult persons of Macas, so once the sentence is executed, ten days later he will appear to serve his sentence under the prevention of ordering his arrest . The private accusation deduced by the father of the deceased (Robert David Allison) through his judicial solicitor is declared, being, for the same, being obligated the sentenced to the payment of costs, damages and, in short, to The “integral reparation” (Articles 77, 78, 622 No. 6 and 628 COIP), where it is possible, for the moment not to be able to calculate it by the criminal nature of the present case, but in the corresponding trial In accordance with clause 16 of the “second reformatory provision” of the Comprehensive Criminal Organic Code (COIP), which has amended art. 222 of the Organic Code of Judicial Function. The two offices returned will be joined (pages 299-314 and 315325). Let yourself know.

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2. APPEAL BY PROSECUTOR FOR THE VICTIM’S (LESLIE ALLISON) FATHER (Mr. ROBERT DAVID ALLISON) OF THE ABOVE STATED SENTENCING MEMORANDUM BY THE JUDICIAL COURT IN SANTIAGO MORENO SANTIAGO
Judgment No. 14256-2016-00176. (MACHINE TRANSLATED)

LORDS JUDGES OF THE COURT OF CRIMINAL GUARANTEES OF MORONA SANTIAGO, PROVINCE ECUADOR.
JUAN GABRIEL PERALTA VENEGAS, in my capacity as Chief Judge and Attorney General of Mr. ROBERT DAVID ALLISON, in the process of reference, accepting the provisions of Article 653 numeral 4 of the Code of Criminal Integral – hereinafter COIP – and within the Legal term authorized by Art. 654 numeral 1 in relation to Article 573 ibidem, I appeal APPEAL OF the Judgment issued by the Court of Criminal Guarantees of Morona Santiago, dated Wednesday, July 5, two thousand and seventeen, based on The points I outlined below:
I. In the judgment under appeal, the Court finds the responsibility of the accused, but resolves to change the typology of the offense accused by the official accusation and the particular accusation, deciding that he is guilty of violating Article 146 of COIP and not of the COIP. Art. 145 ibidem as originally considered, which in my opinion lacks sustenance as will be analyzed in subsequent lines. The accusation had been to consider Mr. MIGUEL HILARIO CHIRIAP INCHIT responsible for having incurred in the provisions of Art. 145 of COIP in relation to the provisions of Article 27 of the same legal body:
“Art. 145.- Guilty homicide.- The person who by fault kills another, will be sanctioned with custodial sentence of three to five years. ”
Art. 27.- Blame.- Acts with fault the person who violates the objective duty of care, which personally corresponds to him, producing a harmful result. This conduct is punishable when it is found to be an offense under this code. ”
In this context, the tratadist Eugenio Raúl Zaffaroni concluded: “The guilty type does not individualize the conduct for the purpose, but because the way in which that purpose is obtained violates a duty of care. (…) Assuming that the guilty type prohibits one Conduct that is as final as any other, it should be pointed out that, given its form of demarcating prohibited conduct, the most important element that we must take into account in this form of typicity is the violation of a duty of care. (…) Although it has been said that recklessness is an excess in acting and negligence is a failure to act, the truth is that in both cases – which in the end can not distinguish well – there is a duty Of care violated, which is the important thing, as is deduced from the same type when, in general, refers to “duties to his charge.”

II. The figure of guilty homicide for professional malpractice is promoted in the domestic legal system following the rulings handed down in the Inter-American Court of Human Rights in the case of Albán Cornejo et al. Ecuador and Zambrano Vélez et al. Ecuador, in which our country as a subscriber of the Pact of San José and the effects ergo omnes of the rulings of the international instance proceed to incorporate both in the Constitution of the Republic and in the new punitive code said conduct, and that by spirit of The norm in the explanatory memorandum is promulgated to regularize the professional activity in the fulfillment of its function, so that it conforms to a neatness such that it obliges to follow security protocols and that in case of not observing the objective duty of Care in their work can be judged and punished around their degree of responsibility. It is thus that the Plenum of the National Court of Justice in use of its faculties provided for in Article 180 numeral 6 of the Organic Code of Judicial Function and in consideration of a consultation promoted by guilds of medical professionals around the Scope and effects of Art. 146 of COIP, pronounces Resolution No. 01-2014, which is understood as a regulatory and sanctioning norm of medical practice in Ecuador, and which concerns punctually as I emphasize these professionals. He had narrowed it down, since the Court in its ruling inexplicably and confusingly attributes the quality of PROFESSIONAL to a person who has not contributed with any evidence that justifies it, because beyond the pluriculturality that certain conglomerates may have Human, we live in an indivisible state -Art. 56 of the Constitution – in which a professional quality can not be granted based on custom, otherwise an antinomy would be provoked by the existence of norms such as the one foreseen in Art. 330 of the COIP to give an example that sanctions the exercise of functions no title.

III. In this area, it is the same accused who submits a Unique Taxpayer Registry and a Statute of the Foundation that he directs and that are obtained before the corresponding entities – IRS and MAE -, in which none of them is collected has regularized the activity To offer the type of rituals like the one that happened the death of Leslie, but rather it disguises itself under the activities of “Protection of nature,” in which the subject of offering a tour for the consumption of ayahuasca is not even minted, a situation that minimizes the phlegmatic judgment of the Court that the event has happened while the sentenced was practicing his profession. What happened does not fit under any parameters with the budgets of Art. 146 of COIP, because the activity within the organic structure of the country is not registered as such in any state, and although within its ancestral cosmovision can count on some gift Obtained from custom, this corresponds exclusively and internally to his community or clan but when he Westernized his action with people outside his environment, because it must necessarily be regularized as such – which in the case before us has not happened -, lacking Of sustenance the attribution of profession to their work or service.

IV. There is no doubt that the typical, unlawful and culpable conduct in which the defendant has committed is that of guilty homicide provided for and sanctioned in Art. 145 of COIP in relation to Article 27 ibidem, reason why the sanction imposed is iniquitous In relation to the consequences of their omission for breaching the objective duty of care. This is not to mention situations that are absolutely reprehensible, which are addressed by the Court at the heart of the judgment, but which disappear in the final resolution, such as the failure to provide facilities to transfer Leslie to a health center or To give notice to the authorities immediately, but to have waited almost ten hours and to make changes in the scene before the arrival of the investigators.

V. Although the family of the victim agrees with the Court in the existence of a causal link since both the materiality of the offense and the responsibility of the accused have been proven, it is necessary to clarify that for the particular accuser, the fact that the perpetrator persists In attributing to the deceased a consumption before the death of illegal substances, which was categorically denied by Dr. Amalia Palacios of the INSPI; Methamphetamine cleared is an illegal drug and contains prohibited components, which in the case was ruled out as having been negative to drug use heroin; What it did detect the professional in mention was components of benzodiazepine that is a legal medicine for the nervous system and that is sold under prescription and is consumed by the patient in a chronic form, which generates even more doubts as it hid the belongings Of Leslie to the police personnel of criminalística and never was another similar tablet in his power to presume that she has consumed it. Also, it is not possible to continue rambling on hypotheses about her death when Dr. Katherine Pacheco, Medical Examiner, ratified in audience his report and the conclusion that the death was violent and its cause diastasis by cervical trauma in C3 and C4.

SAW. Finally, the Court of Appeal must also take into consideration the integral reparation to the victim provided for in Article 77 of the COIP and Article 78 of the Constitution, since the assessment of the moral damage provoked is subjective and strict criterion of the operator of justice , Which can be estimated based on the testimony of my Principal ROBERT DAVID ALLISON rendered in the stage of trial, and which reflects the pain and suffering that still does not end to overcome by the death of his daughter.

Therefore, I confirm my APPEAL of the Sentence and request the Court of Appeal to give the procedure provided for in Article 654 of the COIP, in consideration of the points exposed and that will be developed at the appropriate procedural stage, after which Will impose the sanction to the defendant based on the arguments put forward.
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OTHER STORIES REGARDING LESLIE ALLISON DEATH IN ECUADOR

YOUNG U.S. WOMAN DIES IN AYAHUASCA CEREMONY IN ECUADOR

Shaman declines to comment on death of American Leslie Allison in Ecuador

Ecuador: Investigation in death of U.S. citizen Leslie Allison continues according to Shaman

Family of Dead American goes to Ecuador to Attend Trial of Accused

Statement from Family in Death of Leslie Allison – Ecuador

SHAMAN FOUND GUILTY OF DEATH OF U.S. CITIZEN LESLIE ALLISON

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