Happy to find a website dedicated to judicial matters in Chile, and this comment from a scholar about the Narumi case:
Comentario crítico sobre la jurisprudencia de homicidios sin cuerpo y su impacto en el estándar de la duda razonable. - Diario Constitucional
Critical commentary on the case law on homicide without a body and its impact on the standard of reasonable doubt.
The recent jurisprudence on homicide without a body, both in Chile and abroad, has revitalised the discussion on the standard of reasonable doubt and demonstrates the paramount importance that this evidentiary standard has within the criminal procedure system for the resolution of specific cases.
Therefore, this article proposes that, although it is possible to convict a person of murder in the absence of the body of the victim of the crime, this can never be at the cost of transgressing the parameter of reasonable doubt, which is a guarantee for all citizens and which, for reasons of obvious justice, would rather see a guilty person acquitted than an innocent person convicted, and not the other way around as exemplified by the case of Narumi Kurosaki.
The Narumi Kurosaki case has caused a great stir around the world due to its sensitivity and the insufficiency of conclusive evidence to prove the authorship and participation of Nicolás Zepeda in the alleged murder of Narumi. Thus, in this case, the evidences of the criminal offence of homicide, that is, the act of killing, the result of death and a causal relationship between the first two, were not proven, but Nicolás Zepeda was sentenced to a prison term of 28 years.
Dogmatically, this has at least two implications. The first is that the jurisprudence and doctrine of convictions for homicide without a body is being consolidated in France, and the second, which is more worrying, is the weakening of the evidentiary standard of reasonable doubt. Thus, it is clear from the case that this standard of proof, which is a procedural guarantee for all citizens and which is summarised in the idea that in the face of doubt it is necessary to acquit, is inverted and formulated as follows:
in the face of doubt it is necessary to convict[1]. This is precisely what happened, given that in this case there was much more than a reasonable doubt, due to the absence of evidence that would scientifically place Zepeda at the scene of the crime or that would prove his alleged homicidal action.
With regard to the relevant Chilean jurisprudence on the matter, two rulings stand out that are worth analysing.
The first ruling RIT 35-2011 of the Oral Trial Court of Punta Arenas, which sentenced Sixto Pablo Ayancán to ten years of rigorous imprisonment in its minimum degree for the crime of simple homicide as perpetrator with respect to the person of Fernando Ojeda. In this case, there is an evidentiary problem consisting of the absence of the victim's body, so the Public Prosecutor's Office accredits the punishable act with the submission of other evidence. Namely, the testimony of Marco Barría, who is an eyewitness to the events and crew member of the merchant boat where they occurred, indicates that Sixto shot Ojeda with a shotgun and then threw him to the seabed, tying stones to the body so that it would sink and not be found. This testimony is consistent with the victim's DNA evidence that places him at the scene of the crime and the ballistic analysis that accredits the lethal shot.
The second ruling RIT 42-2021 of the Oral Trial Court of Temuco, which imposes a sentence of fourteen years of rigorous imprisonment in the medium term on Erwin Aedo Soto as the perpetrator of the crime of simple homicide against Paola Alvarado Cortez. As in the case of Sixto Ayancán, the sentencers, despite the absence of the corpus delicti, arrived at a conviction beyond reasonable doubt, based on the evidence presented at trial. In particular, testimonial and expert evidence accredited the presence of reddish-brown stains on a pair of the condemned man's shoes, which correspond with a 99.99% probability to the victim's DNA.
Indeed, our criminal procedural system does not require the presence of a corpus delicti in homicide crimes, given that it enshrines freedom of evidence according to article 295 of the Code of Criminal Procedure. However, this must be harmonised with article 297 of the same code, which states that the evaluation of evidence must be in accordance with the principles of logic, scientifically established knowledge and the principles of experience. Also, Article 340 CPP establishes that the conviction of the court must be acquired beyond reasonable doubt. Thus, the Chilean evidentiary system is based on the freedom to present any evidence conducive to the verification of the factual hypotheses debated in the trial, which recognises as a limit and guarantee the fact that they must be assessed by the judges in accordance with the parameters set by the aforementioned 297 CPP. Thus, a correct combination of these legal norms presumes that the standard of reasonable doubt will be met. However, this is not an axiom, as judges can respect those rules of evidence, but not manage to eliminate any reasonable doubt as to the guilt of the accused, which, if maintained, imposes the obligation of acquittal.
Thus, after comparing the cases of Sixto Ayancán and Narumi, it is clear that the common denominator in both cases is the non-existence of a corpse, but the fundamental difference lies in the fact that in the first case the evidence presented for the prosecution is greater in quantity and quality than in the second, for the purposes of founding a conviction that satisfies the parameter of reasonable doubt. In the words of Taruffo, that standard is only met when the evidence presented offers certainty as to the occurrence of the facts contained in the prosecution's accusation[2]. Consequently, the two judgments analysed from Chilean jurisprudence prove the elements of the crime of homicide, that is, the act of killing, mainly through testimonial and expert evidence, and the result of death also through that evidence and through logical presumptions of facts that are incompatible with life, such as being shot with a shotgun at a distance of one metre and then thrown to the bottom of the ocean.
However, the French case raises more doubts than certainties, as the typical elements of homicide were not proven. Thus, the act of killing was not accredited either by testimonies or by expert reports that refer to Zepeda's participation and authorship in the facts. For this reason, the French Public Prosecutor's Office formulated a lucubration of a low scientific and epistemic level, which was labelled as circumstantial evidence or presumptions. However, the truth is that it is far from being even a presumption in the technical sense, since such evidence is based on a known fact from which an unknown fact is logically deduced, for which it is necessary to empirically prove the premise from which its logical conclusion is derived.
That said, Nicolás Zepeda was accused of buying precursors for the commission of homicide in respect of Narumi Kurosaki, his ex-partner, namely: fuel and detergent, he was also charged with being the last person he was with before the young woman disappeared, the geolocation of Narumi's mobile phone which was kept in Zepeda's possession until his subsequent arrival in Chile, he was also alleged to have stalked the vicinity of the hotel in France where Narumi was staying the last time she was seen, finally he is attributed with a strange trip through the forest near the hotel in one of the early hours of the morning after Kurosaki's disappearance.
All in all, the only thing that the French prosecution proved with certainty was that the accused performed certain acts spatially and temporally close to the undetermined date of Narumi's disappearance. Thus, those means of proof referring to the conduct displayed by the accused, which, regardless of their normality or strangeness, are epistemically incapable of proving with a reasonable degree of probability the execution of the elements of the objective and subjective criminal type of homicide.
In fact, because it is not known in the case when, how, where and by whom Narumi was killed, the possibilities are virtually infinite, making it impossible to assert, with respect for scientifically established knowledge and the rules of logic, that Zepeda killed Kurosaki beyond reasonable doubt.
Thus, although in France the jury is made up of nine members, six laypersons and three lawyers, this does not mean that the standard of reasonable doubt loses its epistemic character, which requires that the conviction of the sentencers must be reached on a minimum level defined by scientific knowledge and the rules of logic. In conclusion, this is the only way to respect the minimum criminal procedural guarantees that every person enjoys, in particular the principle of the presumption of innocence, which is a state that the accused maintains throughout the criminal proceedings against him or her, until the opposite is proven beyond reasonable doubt.
The disturbing fact that the psychological profile of those accused of this type of crime is becoming increasingly relevant in this type of case deserves a separate comment. This logically follows from the fact that, in the absence of evidence that verifies the homicidal conduct, the focus of analysis shifts to the person, which means a serious setback in the criminal justice system, which is devolving from a criminal law of action or conduct to a criminal law of the perpetrator. (Santiago, 20 April 2022)
BBM
All in all, the only thing that the French prosecution proved with certainty was that the accused performed certain acts spatially and temporally close to the undetermined date of Narumi's disappearance.
IMO
, they did prove a lot more, evidence that the author leaves out of his comments. But if this is the line of thinking in Chile, and apparently it is, then Nicolas Zepeda must have felt very safe. No body, no crime, unless there is a witness of the crime itself or DNA pointing to such crime.
Isn't it strange btw, even in the eyes of this Chilean lawyer, that Nicolas Zepeda was able to take Narumi's phone all the way to Chile, without her reporting or protesting its loss?
I struggled a bit with the term '
epistemic'and in the end I decided to leave it like that. Everyone who has read Plato knows what it is about.
