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REPORT ON THE DIGNA
OCHOA MURDER INVESTIGATION1
Lawyers Rights Watch Canada
& Bar Human Rights Committee of England and Wales
"It should be emphasized that the
most effective measure to protect Ms. Ochoa would have been an investigation
into the threats and the apprehension of those responsible, which
has not, as of yet, been done." 2
I. MANDATE OF LAWYERS RIGHTS WATCH
CANADA & THE BAR HUMAN RIGHTS COMMITTEE OF ENGLAND AND WALES
3
Lawyers Rights Watch Canada (LRWC) and the Bar Human Rights Committee
of England and Wales (BHRC) sent representatives to Mexico City
March 11-18, 2002 to assess the investigation of the October 19,
2001 murder of Mexican human rights lawyer Digna Ochoa. LRWC and
BHRC advocate that the government of Mexico comply fully with the
orders and resolutions of the Inter-American Court of Human Rights
(The Court) regarding the murder of Digna Ochoa and the assaults
against her since 1996 and with its international law obligation
to ensure the independence and safety of lawyers and other human
rights defenders. While the questions of responsibility for the
threats and assaults to Ms Ochoa and for the death of Ms. Ochoa
remain unresolved, the safety of all lawyers representing unpopular
causes and clients remains in jeopardy.
On November 1999, in response to an attempt on Ms Ochoa's life,
the Inter-American Court of Human Rights ordered the government
of Mexico to "investigate the acts denounced that gave rise
to the present measures for the purpose of discovering those responsible
and punishing them."
On October 25th and November 30th 2001, in response to Ms Ochoa's
death, the Inter-American Court of Human Rights once again affirmed
Mexico's international legal obligations to ensure the safety and
independence of lawyers and the legal obligation to investigate,
identify, and bring to justice those responsible for the attacks
on Ms. Ochoa.4
The LRWC/BHRC trip was precipitated by concerns that 5 months
after Ms Ochoa's death full compliance had yet to occur. Reports
prior to March 2002 indicated the investigation was plagued by problems.
Criticisms of the investigation included insufficient cooperation
from the Secretariat of National Defense (SEDENA) and failure to
advance the investigation of government agency involvement.
II. SIGNIFICANCE OF OCHOA CASE
Ms Ochoa's death represents a failure of national and international
law enforcement. Prior to Ms. Ochoa's death, the international community
made extraordinary efforts to persuade the Mexican government to
protect Ms. Ochoa's life, to investigate the attacks on her and
to punish those responsible. In 1999 when these efforts failed the
National Network of Civil Human Rights Organizations, the Center
for Justice, and International Law, and the Lawyers Committee of
Human Rights, in 1999, petitioned the Inter-American Commission
on Human Rights. The Inter-American Commission on Human Rights (IAHCR)
passed a resolution and the Inter-American Court on Human Rights
(the Court) ordered the Mexican government to adopt all measures
necessary to protect the safety of Digna Ochoa, to investigate the
attacks against Ochoa, identify those responsible, and to punish
them. These orders are binding on the Mexican government pursuant
to Mexico's ratification of the American Convention on April 3,
1982 and subsequent acceptance on December 16, 1998, of the contentious
jurisdiction of the Court.
Despite monitoring by human rights organizations and orders from
the Inter-American Court of Human Rights, Ms Ochoa was murdered
on October 19, 2001. Some nine months later no charges have been
laid and no suspects have been identified.
The death of Digna Ochoa represents a failure in Mexico, of effective
implementation and enforcement of existing laws and standards ensuring
the safety and independence of lawyers and other human rights defenders.
The case highlights the necessity of compliance with national and
international obligations to protect human rights defenders and
underlines the fact that there are no human rights while impunity
is the norm. Many who knew Ms Ochoa's work decried her death as
a blow to the independence and safety of human rights defenders
and human rights enforcement alike. Mary Robinson, UN High Commissioner
for Human Rights, condemned the assassination, citing Ochoa as women,
"whose sense of dedication and perseverance in adversity inspired
human rights defenders around the world." Days after her death,
Dean Grossman, President of the Court, observed that Ochoa's work
had brought threats and attacks against her on several occasions.
His October 22, 2001 press release said:
" The murder of Digna Ochoa is
an affront to the Inter-American community. When defenders of human
rights themselves become victims, democratic society as a whole
is under attack. We must not allow this crime to go unpunished."
Many international human rights organizations have accused the
Fox administration of ignoring earlier pleas for protection for
Ms. Ochoa and failing to investigate and prosecute those responsible.
This report examines:
1) Mexico's legal obligations to properly investigate the crimes
against Digna Ochoa identify the perpetrators and subject them to
trial according to international law, arising from Mexico's membership
of the Organization of American States and the United Nations.
2) Reports on the investigation by the United Nations and Human
Rights organizations, and
3) Information regarding the investigation and theories of who
murdered Digna Ochoa available to LRWC/BHRC.
III. BACKGROUND
Before her death Digna Ochoa had won international acclaim as a
lawyer and human rights activist for her work with the Centro de
Derechos Humanos Miguel Agustin de Juarez (PRODH), an independent
human rights organization. As a lawyer, Ms. Ochoa represented the
most politically charged human rights cases in Mexico. Some of these
cases involved of murder and torture by members of Mexico's military.
Since 1996 Digna Ochoa had been the target of violent intimidation,
including death threats, abduction and assaults due to her work
as a lawyer. As the time of her death she continued to seek out
and attract cases involving allegations of grave human rights violations
perpetrated by government agents.
Ms Ochoa's clients included individuals accused of involvement
in the Zapatista insurgency and more recently, two prominent ecologists
Teodoro Cabrera and Rodolfo Montiel, in their dispute with logging
groups.
At the time of her death Digna Ochoa was not working with PRODH
and was working independently. Ms Ochoa had taken over the small
Mexico City office and some former clients of colleague Pilar Noriega
who had moved to the Human Rights Commission of the Federal District.
Ms Ochoa was apparently happy to be taking over some of Noriega's
cases like the one of Jacobo Silva Nogale, Gloria Arenas, (members
of the Revolution Army of the Insurgent People ERPI) Fernando Gatica
Chino and Felicitas Padilla Nava. Gatica and Padilla were arrested
in Chilpaneingo Guerrero. (Amnesty International has reported that
these four were illegally detained and tortured. Silva's case was
identified as 'urgent' by the UN Human Rights Commission after his
57th day of hunger strike in prison.) Another sensitive case that
Ochoa had taken over involved 4 people, three of whom were university
students, accused of placing bombs in Banamex. After a judge determined
an absence of evidence, these four were detained on charges of terrorism.
During the first week of October 2001, Ms Ochoa had traveled through
the State of Guerrero meeting with villagers and members of peasant
ecologist organizations about a variety of problems including of
lack of education and transportation services, water conservation
and persecution by the military. The allegations of wrongdoing by
military personnel that Ochoa heard during this trip were extremely
serious: murder, illegal detention, intimidation, and the fabrication
of false charges. She apparently planned to defend prisoners in
Acapulco Zihuatanejo and elsewhere in Guerrero. Ochoa traveled with
a Harold Ihmig, a representative of Food First Information and Action
Network (FIAN) a Heidelberg based NGO with United Nations consultative
status. Mr. Ihmig was going to try to obtain funding for the projects
and the legal defense.
Before her death, Ms Ochoa had reported to friends that she had
received additional written threats on August 10, September 14 and
October 16 2001, and had not reported these threats because no previously
reported threats had been investigated. These notes were found after
Ochoa's death and DNA testing of the notes is reported to indicate
that a male person had sealed the notes.
Ms Ochoa had moved into the office where her body was found a
day or days before October 19, 2001. Apparently no paper files were
found in the office. The family found no paper files at her home
when they attended there on October 30, 2001.
Accounts of who arrived when at the crime scene vary. All reports
seem to indicate that officials from the police or the Attorney
General's office did not arrive on the crime scene until several
hours after her body was found. One report indicates that her colleague
Gerard Gonzalez found her body at 5:50 p.m. on October 19 2001 and
Attorney General Bernardo Bátiz arrived that night at 10:30
p.m. Reports indicate that there were three lesions on her body:
a gunshot wound to the right leg and the fatal wound to the left
side of her head above her left ear, fired at point blank range.
Early newspaper reports indicate that two guns were found at the
scene, a 22 calibre and a semi-automatic, that she had suffered
a blow to the base of her head and that the police arrived at 5:30
pm. More recent reports indicate that her hands had been dipped
in powdered starch and were covered by latex gloves. Ms Ochoa was
right handed. A warning note with words to the effect 'if you continue,
this will also happen to another.'
Threats to Ms Ochoa's colleagues have continued. Lawyers at PRODH
were the targets of threats in a letter sent to the Interior Secretariat
soon after Ochoa's death. On March 18, 2002 human rights lawyer
Barbara Zamora received a death threat by email, directly after
she publicly discredited the leaked suicide theory. Ms Zamora, who
shared Ms Ochoa's office, was a close colleague and is the Ochoa
family's lawyer. Leading human rights lawyer Leonel Guadolupe Rivero,
a member of Tierra y Libertad and also a colleague of Ms Ochoa's,
escaped injury on April 6 2002 when his two body guards were beaten
by three men who said they were going to 'get Rivero.' The IAHCR
directed Mexico to provide special protection measures to Zamora
and Rivero following the death of Ochoa.
III. 1 PROCEEDINGS BEFORE THE INTER-AMERICAN
COMMISSION OF HUMAN RIGHTS AND THE INTER-AMERICAN COURT OF HUMAN
RIGHTS CASE #12.229:
On October 25, 2001 Dean Grossman, President of the Court issued
a resolution stating that Mexico is bound by the American Convention
on Human Rights, Article 1.1 and therefore must respect and apply
the rights and liberties recognized in the American Convention on
Human Rights. The Court ordered Mexico to:
· implement all necessary measures to protect the life and
safety of PRODH members, and
· conduct a full investigation of Digna Ochoa's murder.
Both the IACHR and the government of Mexico were directed to report
on the implementation of these measures within 10 days. On November
30, 2001 the Court issued a resolution extending the special protection
measures to Digna Ochoa's immediate family members. The IACHR later
appointed Dr. Pedro Díaz Romero as a consultant with a mandate
to review the Ochoa case and report his findings to the Commission.
Dr. Díaz visited Mexico as the IACHR's consultant in February
2002.
The IACHR met on March 7th 2002 to hear the parties and to review
the report and recommendation of Dr. Díaz. Although his March
2002 report is not public, since the case is still pending before
the IACHR, Dr. Díaz's recommendations have been summarized
in a PRODH press release, the English language version of which
was released in April 2002. According to this summary, Dr. Díaz
identified the following open lines of investigation:
A. The personal situation of Ms. Ochoa including her family,
social and professional environment.
B. Ms Ochoa's relations, as a lawyer in the region of Petatlán
in the State of Guerrero given the socioeconomic problems and
human rights violations that occur there and the cases that she
took up in the past, including that of Roldolfo Montiel and Teodora
Cabraera.
C. The cases that Digna was working on as a member of the
Centre PRODH presented before the Mexican legal authorities and
those that she received from Pilar Noriega.
Dr. Díaz observed that a large part of the preceding four
and a half months of investigation (from October to the end of February
2002) had been directed at hypothesis A. He recommended that all
the hypotheses and lines of investigation identified in his report
be exhaustively investigated.
IV. INTERNATIONAL LAW
International human rights laws and standards are composed of
a number of interdependent principles: that states provide effective
remedies for human rights violations, that individuals be entitled
to be legally represented in cases involving human rights issues
and that lawyers be ensured a degree of independence and security
that will enable them to fully represent interests free from intimidation,
harassment, assaults and reprisals. The latter safeguards address
the fact lawyers defending human rights are often standing between
the client and the state and cannot provide full representation
in the absence of independence and security guarantees. Compliance
with of these obligations requires the state to adopt measures to
effectively investigate human rights violations with the purpose
of identifying and sanctioning those responsible. To be adequate,
a state's investigation system must have the capacity to thoroughly
investigate and publicly report on the involvement of state agents
in human rights violations.
Mexico is bound to provide such guarantees both by its membership
in the Organization of American States and the United Nations.
IV.1 THE ORGANIZATION OF AMERICAN STATES
Resolutions passed by the Court in November, 1999 and October
25 and November 16, 2001 affirmed Mexico's responsibility, pursuant
to its membership in the Organization of American States, to protect
Ms. Ochoa and conduct investigations, identify those responsible
for the threats, attacks, and murder of Ms. Ochoa, and bring them
to justice.
Mexico is a member of the Organization of American States5
(OAS), and ratified the American Convention
on Human Rights (the Convention) on April 3, 1982. Mexico, accepted
the contentious jurisdiction of the Court. on December 16, 1998,
pursuant to Article 62.
The Preamble to the Convention states the purpose as to "consolidate
in this hemisphere, within the framework of democratic institutions,
a system of personal liberty and social justice based on respect
for the essential rights of man."
Part 1 of the Convention establishes States' dual obligations to,
a) Respect recognized rights and freedoms.
b) To adopt such legislative and other measures necessary to
give effect to those rights or freedoms.
Part 2 of the Convention establishes the IACHR and the Court to
have "competence with respect to matters relating to the fulfillment
of the commitments made by the States Parties to the Convention."
IV.2 UNITED NATIONS
Mexico has been a member of the United Nations (UN) since 1945.
In addition to legal obligations arising from Mexico's OAS membership,
there is a body of international law that obliges Mexico, as a member
of the UN and as a signatory to specific conventions, to: (a) ensure
the safety and independence of lawyers and other human rights defenders,
and (b) to investigate violations of these peoples rights.
Mexico's own Constitution affirms the binding nature of these
international obligations. Article 133 of the Mexican Constitution
provides that international treaties signed and ratified by Mexico
shall prevail as the supreme law (la ley Suprema de toda la unión).
In 1999, the Supreme Court of Mexico (Corte Suprema de Justicia)
delivered its judgement stating that international treaties would
have primacy over federal law - implying that domestic law that
contradicts it is not applicable. Inconsistencies in national statues
have allowed authorities not to comply with the obligations defined
by international human rights law.
President Vincente Fox, speaking to the UN General Assembly in November
2001, articulated his intention to adhere to Mexico's international
human rights obligations.
"It is Mexico that acts firmly in the defense
and protection of human rights and democracy at all times and
in all places, beginning, of course, within its own territory,
and that promotes full respect for fundamental freedoms according
to criteria of tolerance, plurality and equity…My Government
has also started a necessary updating of Mexico's international
obligations in the field of human rights and international humanitarian
law."
Following are some of the international instruments that create
an obligation to identify those responsible for the threats and
assaults upon and the murder of Digna Ochoa and to "bring them
to justice" through a proper criminal investigation.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Mexico and 144 other countries have ratified the International
Covenant on Civil and Political Rights (ICCPR) entered into force
on March 23, 1976. Mexico, as a State Party, guarantees in Articles
2 and 3 to "take the necessary steps…to adopt such legislative
or other measures as may be necessary to give effect," and,
"ensure that any person whose rights…are violated shall
have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity,"
and, ensure that, "competent authorities shall enforce such
remedies when granted." Article 6.1 additionally guarantees
the "right to life" and the "protection of life by
law".
DECLARATION ON THE RIGHT AND RESPONSIBILITY OF INDIVIDUALS,
GROUPS AND ORGANS OF SOCIETY TO PROMOTE AND PROTECT UNIVERSALLY
RECOGNIZED HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS (DECLARATION
ON HUMAN RIGHTS DEFENDERS)6
The UN General Assembly adopted the Declaration on Human Rights
Defenders in December 1998 after 13 years of negotiation between
member states. This important declaration affirms the states' primary
responsibility to protect human rights defenders.
"Stressing that the prime responsibility
and duty to promote and protect human rights and fundamental freedoms
lie with the State."
This declaration recognizes the legitimate activities of human
rights defenders and their right to carry out their work without
fear of intimidation, harassment, assaults, or reprisals.
Article 2.1 sets out the responsibility of States to protect human
rights and freedoms by "adopting such steps as may be necessary…to
ensure that all persons…individually and in association with
others…enjoy all these rights and freedoms in practice."
Article 9.5 specifically requires States, including Mexico to "conduct
a prompt and impartial investigation or ensure that an inquiry takes
place whenever there is reasonable ground to believe that a violation
of human rights and fundamental freedoms has occurred…"
Mexico is further obliged by Article 9.5 "to ensure the protection
of anyone against violence or threats arising as a consequence of
their legitimate activity and exercise of the rights given under
the Declaration."
THE BASIC PRINCIPLES ON THE ROLE OF LAWYERS7
The United Nations General Assembly adopted the Basic Principles
on the Role of Lawyers in 1990. These principles are intended to
provide specific substance to the due process guarantees recognized
in the Universal Declaration of Human Rights (UDHR) adopted by the
General Assembly in December 1948.
Article 16 of the UN Basic Principles on the Role of Lawyers provides,
"Governments shall ensure that lawyers are able to perform
all of their professional functions without intimidation, hindrance,
harassment or improper interference."
Article 17 provides,
" Where the security of lawyers is threatened as a result of
discharging their functions, they shall be adequately safeguarded
by the authorities."
V. HUMAN RIGHTS REPORTS
United Nations Special Rapporteurs and Human Rights organizations
monitoring the investigation have all been critical of Mexico's
failure to adequately investigate crimes against Ms Ochoa.
V. 1 REPORT OF THE SPECIAL RAPPORTEUR ON
THE INDEPENDENCE OF JUDGES AND LAWYERS
UN Special Rapporteur on the independence of judges and lawyers,
Dato' Param Cumaraswamy submitted his "Report on the mission
to Mexico" as an Addendum to his regular report to the UN Commission
on Human Rights.
In this report, Param Cumaraswamy expressed concern that the investigation
into threats and assaults against Ms. Ochoa ordered by the IACHR
November 17, 1999 was prematurely stopped in May 2001 by order of
the Office of the Attorney General of Mexico. (Federal Attorney
General General Rafael Macedo de la Concha) Mr. Cumaraswamy concluded
that the investigation ordered in October and November 2001 had
yet to be conducted. He stated,
"The level of impunity [95% for all types
of crimes] and corruption in Mexico is a wide societal problem
brought on by a political system controlled for nearly a century
by a single party that did not need to account for its acts."
8
He concluded that the Mexican government has failed in its duty
to protect lawyers and other human rights defenders from harassment
and intimidation and that the murder of Ms. Ochoa illustrates the
continuing danger faced by human rights defenders.
Mr. Cumaraswamy observed, "the public needs to be given answers
to the question who, why, and how". Only then the public will
begin to have confidence in public institutions." 9
V. 2 UN COMMISSION OF HUMAN RIGHTS DEFENDERS
REPORT
Hina Jilani, the UN Special Representative of the Secretary-General
on Human Rights Defenders responded to the death of Ms Ochoa by
issuing an urgent appeal on October 23 2001. The Mexican government
responded to this initial appeal by confirming the commitment of
Mexican authorities to investigate the crime fully and to bring
those responsible to justice.10
In her report, "Promotion and Protection of Human Rights:
Human Rights Defenders Report" submitted February 27, 2002
to the UN Commission on Human Rights, Ms. Jilani again urges11
the Mexican government to "comply with its obligations [to]
investigate fully the murder of Ms. Digna Ochoa and to bring those
responsible to justice."Hina Jilani concludes her report by
calling for an end to impunity and observing that,
"Impunity for the violation of human rights
has become one of the most serious human rights problems and directly
affects the security of human rights defenders."
Ms. Jilani reports a number of human rights violations in Mexico
similar to that of Ms. Ochoa, e.g. the arrest on July 14, 2001 of
Gerardo Cabrera Gónzales, a member of Organización
de Campesinos Ecologistas de la Sierra De Petetlán y Conyuca
de Catalán (OCESP), an organization that campaigns to stop
forest exploitation in the State of Guerrero.12
V.3 LAWYERS COMMITTEE ON HUMAN RIGHTS (LCHR)
On the 3-month anniversary of Digna Ochoa's death LCHR released
the book, "Legalized Injustice" which concludes that the
corruption of the Mexican criminal justice stems from a number of
factors including the expansive role of the prosecutor, a lack of
investigative techniques, and distrust of the police.
V.4 AMNESTY INTERNATIONAL
Amnesty International, in a March 13, 2002 News Release, (AMR 41/013/2002)
responding to the leak of the suicide theory, called on the Attorney
General of Mexico City to "overcome these practices of entrenched
impunity and to transparently demonstrate the thoroughness of its
investigation". AI has also asked that all evidence be available
for independent scrutiny.
V.5 ON THE FRONT LINE
On the Front Line: Bulletin on human rights defenders in Latin
America and the Caribbean, Vol. 6 No. 1 January-April 2002 is sharply
critical of the unwarranted prominence given by investigators to
personal motives and of the failure to adequately investigate more
likely theories including theories implicating the military.
"Human rights organization in Mexico and
in other countries are concerned at the emphasis on the possible
personal motives for the killing and at the failure to properly
follow lines of investigation suggesting state involvement in
the killing, including ensuring timely questioning of all state
agents, including military officials, named in conjunction with
the case."
V.6 GLOBAL EXCHANGE
Global Exchange13
and the Mexico Solidarity Network14
sent a delegation to Mexico on April 14-21, 2001 to assess the investigation,
and published on May 3, 2002 "Defenders Defending Defenders:
A report from a Global Exchange/Mexico Solidarity Network Delegation".
This report identified an 'inappropriate' focus on the theory that
Ms Ochoa took her own life. Global Exchange dismissed the bona fides
of the investigation by concluding "the investigation…is
plagued by political posturing and is not a serious criminal investigation."
Global Exchange recommended compliance with Dr. Díaz's two
recommendations: to have a foreign expert assess the findings of
Mexican authorities, and to have investigators exhaust all possible
lines of inquiry.
VI THE INVESTIGATION
VI.1 THEORIES
At the time of Ms Ochoa's death, Human Rights defenders were unanimous
in concluding that Digna Ochoa, long a thorn is the side of Mexican
authorities, had been killed as a result of the work she did as
a lawyer. As observed in the recommendation of the IACHR, several
Mexican authorities including Attorney General of the Federal District,
Bernardo Bátiz, publicly declared that the unlawful execution
of the attorney was most likely a reprisal against her professional
activities in defense of human rights.
Shortly after October 19 2001, Bernardo Bátiz indicated three
lines of investigation that would be pursued:
1. Ms Ochoa's legal representation of environmentalists Roldolfo
Montiel and Teodoro Cabrera
2. Ms Ochoa's legal defense of individuals charged with subversion
3. Ms Ochoa's personal relationships
The Union de Organizanciones de Campesinos de la Sierra del Sur
(OCSS) in a November 13, 2001 press release, called for investigations
of Ruben Figueroa Alcocer and Rogaciano Alba Alvarez for their involvement
in both Ochoa's death and the repression of ecologists in Petatlán.
These two names resurfaced in a June 5 El Sur article stating that
two hit men with connections to both of these men murdered Digna
Ochoa.
Some people familiar with Digna's cases believe that the murder
is related to Digna's work as the lawyer for Rudolfo Montiel and
Teodoro Cabrera. The work of the ecologists affected many areas
of society including military groups, international companies and
landowners. Digna had mentioned, prior to her death, that she was
looking for financial help from international organizations for
environmental organizations in Guerrero, and that she would be providing
legal representation to people who had alleged persecution by the
military and local caciques.
Another theory implicates the army, or a collaboration between
logging companies and the local 'caciques" who provide protection
for the companies. LRWC/BHRC received no information that either
of these theories has been investigated.
IACHR consultant Dr. Díaz in his March 7 2002 report identified
three lines of investigation:
1. Digna's personal situation: her social, family and professional
environment,
2. Digna Ochoa´s relation as a lawyer regarding the region
of Petatlán of the mountains of the State of Guerrero,
given the socioeconomic problems and human rights violations that
occur there and the cases that she took up in the past, including
that of Rodolfo Montiel and Teodoro Cabrera, and
3. The cases that Digna was working on as a member of the Center
Pro that were presented before the Mexican legal authorities,
and those that she took over from the lawyer Pilar Noriega.
On March 12, 2002 the Federal District's Prosecutor's (PGJDF) office
leaked to the press the theory that Digna Ochoa had committed suicide.
Renato Sales, the chief investigator at that time, while admitting
that his office had 'leaked' the story to the press, denied being
committed to the theory himself. Sales subsequently tried, without
apparent success, to convince foreign NGOs that the suicide theory
was valid. On April 19, 2002 Bátiz announced that the investigation
would be concluded in weeks. On June 3rd 2002 Sales announced to
the media that he had concluded that Digna Ochoa had killed herself
as "a way to keep fighting, to recover a place in the world
of human rights that she did not have anymore." This announcement
reactivated earlier criticisms and Renato Sales resigned from the
investigation on June 21 2002.
VI.2 IN CHARGE OF THE INVESTIGATION
The Mexican system puts the Attorney General (Procuraduría
General) in charge of the investigation. The military and several
state police forces are involved. Mexico is a single federation/union
of 31 states and one federal district ('distrito federal'-DF.),
which is Mexico City.
This Court ordered investigation is being conducted by Bernardo
Batíz, the Attorney General of the Federal District of Mexico
City. The investigation into the threats and assaults against
Digna Ochoa ordered by the Court November 1999 was under the authority
of the Federal Attorney General Rafael Macedo de la Concha. No stranger
to Ochoa and her work, de la Concha had disallowed expert testimony
she submitted in support of Montiel and Cabrera's claims to have
been tortured by state agents under de la Concha's supervision.
In May 2001 he terminated the investigation of the assaults and
threats against Ochoa. A January 2002 report concluded that the
termination was premature and that the investigation had been marred
by irregularities.
In December 2001, Bátiz appointed Renato Sales Herida, Deputy
Attorney General for legal and human affairs, to head the investigation.
Mr. Sales resigned June 21, 2002 amid vigorous criticisms that his
office had leaked information to the media about a suicide theory
March 12, 2002 and had subsequently concluded that Ochoa had probably
died by her own hand. Attorney General Batíz reported on
July 12 2002 that Margarita Guerra Tejada, from the Superior Tribunal
of Justice of Mexico City, had been appointed as head of a new Special
Prosecutor's office in charge of the investigation.
Leading human rights lawyer Barbara Zamora has criticized this
appointment and cautioned that, in Zamora's opinion, Tejada could
be expected to support the suicide theory. PRODH's response15
cautions that the record of Special Prosecutor's offices is poor
and that resorting to such measure may serve to further impede a
proper investigation. PRODH called on the government of Mexico City
to monitor the work of the work of the Special Prosecutor's office
and reiterated their demand for an impartial and exhaustive investigation
of all theories.
VII LRWC/BHRC INVESTIGATION AND INTERVIEWS
Several categories of problems with the investigation were identified
to BHRC/LRWC, any one of which could taint the bona fides of the
investigation.
- Lack of cooperation from the military. Information indicates
that the military has been slow to cooperate and cooperation has
been incomplete. e.g. requests for photos, names and addresses
and itineraries of military personnel in the area of Guerrero
where Ochoa was traveling prior to her death have not been adequately
addressed and military reports are not available. Renato Sales
acknowledged16
that the military had resisted his investigation and that military
officers' testimony was 'contradictory' and 'focused mostly on
denials'.
- Too many resources spent pursuing and promoting a suicide theory
and no other theory being energetically or systematically investigated.
The suicide theory appears to have emerged at or after the March
7th IACHR hearing, and rapidly gained prominence. Although Dr.
Díaz's report indicates that a 'large part' of the investigation
up to the end of February 2002 had been devoted to Ms. Ochoa's
family, social, and professional relationships, he does not mention
a suicide theory. There has been widespread criticism of the suicide
theory and no apparent acceptance of it outside the office of
the Federal District Attorney General.
After the March 12 leak, CEJIL and PRODH called on the Federal
District Prosecutor's office (PGJDF) to sanction the leak or
verify the evidence on which the leak was based and urged the
PGJDF to thoroughly investigate the possibility of participation
by State agents.
Amnesty International, on March 12 2002, criticized the Federal
District Prosecutor's Offices (PGJDF) for leaking the suicide
story and thereby undermining the credibility of the investigation
and pointed out that prosecution services in Mexico frequently
blame the victim and seek to divert attention from those responsible
by leaking rumors. Amnesty International also urged the PGJDF
to thoroughly investigate the possible role of state agents
in her [Ochoa's] death, before drawing conclusions.
Chief Prosecutor Sales was reported on May 29, 2002 to conclude
that Ms Ochoa committed suicide and to suggest that Ms Ochoa
killed herself as a way to keep fighting and to regain a place
in the world of human rights that she no longer had. The evidence
made available renders this hypothetical motive ludicrous. Ms
Ochoa had proven herself a very effective lawyer for her clients
and a very embarrassing lawyer for the government of Mexico.
Many of the cases that Ms Ochoa had taken over from Pilar Noriega
and those from the state of Guerrero involved allegations of
serious wrongdoing by government and quasi-government agents,
including allegations of murder, intimidation and malicious
prosecutions. The fact that she accepted from Ms Noriega and
sought out in Guerrero very difficult and politically sensitive
cases indicates her intention to keep fighting against injustice
as a living lawyer.
The Ochoa family reports that a psychologist, apparently retained
by the Federal District Attorney General's office ruled out
suicide as unreasonable and not supported by psychological indicators.
The video of the October 2001 visit to Guerrero shows Ochoa
in robustly good mental health.
LRWC and BHRC reject the suicide theory and note there have
been no efforts to present a summary of 'evidence' that would
indicate suicide as a reasonable theory. In the absence of any
meaningful investigation of the threats and assaults that preceded
Digna's death, this theory has no credibility.
- Failure to investigate the involvement and participation of
state agents in Ms Ochoa's murder and in the assaults and threats
that preceded her death.
- Concern with lack of technical ability of investigators. The
Federal District Attorney General's office has called for foreign
experts. While the involvement of an independent foreign expert
may be useful in chronicling already apparent shortcomings of
investigations, LRWC/BHRC are concerned that calls for NGOs and
foreign governments to provide 'experts' may act as a smokescreen
for Mexican authorities inactivity and could become a scapegoat
for another premature termination of the investigation.
Four months after Dr. Díaz's recommendation that the
Federal District's Attorney General's office define what expert(s)
are needed to facilitate a thorough and proper investigation
they have not done so. Queries from LRWC/BHRC have been met
with ambiguous calls for people expert in criminology, ballistics,
medicine, and pathology. There has been no indication of the
specific tasks to be performed, or how the presence of foreign
experts would assist in compliance with either the orders
of the IACHR, or with the recommendations in Dr. Díaz'
report. The failure to properly investigate other theories
raises the concern that foreign experts are wanted to provide
credibility to the widely discredited suicide theory.
At a May 16th 2002 press conference Federal District Attorney
General Bátiz is reported17
to have said that his office would allow experts appointed by
NGOs to review the case, but 'if we conclude the investigation
before receiving their proposed list, we will release the results.'
Dr. Díaz's recommended that "activities be undertaken
to become aware of some candidates." A veiled threat two
months later to conclude the investigation if experts are not
forthcoming is hardly one of the "activities" Dr.
Díaz intended.
- Intimidation of witnesses and interference with the investigation.
Mr. Sales reported that investigators sent to Guerrero were detained
for four hours by the military, and only when the Colonel was
contacted were they released. Military participation and interference
with the investigation in Guerrero is especially troubling given
the fact that Ms Ochoa, had she lived, may have implicated military
personnel in crimes.
- Past attempts on Ms Ochoa's life, assaults and threats have
not been properly and reasonably investigated and considered.
- Contamination of evidence. e.g. concerns were expressed that
documents were removed from Ochoa's home and pages inserted and
that the information on her computer had been manipulated. Although
reports of contamination of the crime scene vary, it is apparent
that investigators did not arrive at the scene of the crime until
hours after Ms Ochoa's body had been found. It is not clear how
long after Ms Ochoa' death evidence was gathered from the scene
or what had occurred in the interim.
Estimates of the time of death are from 1:00 to 3:00 p.m.,
her body was apparently found by a colleague at 5:50 p.m.
and Attorney General Batíz reportedly arrived at the
scene at 10:30 p.m. Reports indicate that there were many
people on the scene before the arrival of Attorney General
Batíz. Although Ms Ochoa may not have completed her
move to the office, her home office was apparently not secured
immediately after her death.
Interviews conducted by LRWC/BHRC and by Global Exchange have
not revealed details about the collection and storage of evidence;
efforts at crime scene reconstruction or forensic testing
that would allay these concerns.
VII.1 CONCLUSIONS
1. The government of Mexico did not comply with the November 1999
order of the Inter-American Court of Human Rights to investigate
the attacks and threats on Digna Ochoa and to identify and punish
those responsible.
2. The government of Mexico has failed to comply with the October
and November 2001 orders of the Court to investigate the murder
of Digna Ochoa and to identify and properly sanction those responsible.
3. The government of Mexico has failed to comply with the March
7 2002 recommendations of IACHR consultant Dr. Díaz.
4. In so doing, the government of Mexico violated its legal responsibilities
to adopt measures necessary to guarantee the safety of all individuals
dedicated to the defense and promotion of human rights and to effectively
investigating crimes committing against these individuals.
5. The failure by the government of Mexico to ensure Digna Ochoa's
right to work free from intimidation, harassment, assaults and reprisals
and to investigate violations of these rights constitutes an egregious
breach of Mexico's duties under binding international laws and principles
including those set out in the United Nations Declaration on the
Right and Responsibility of Individuals, Groups and Institutions
to Promote and Protect Universally Recognised Human Rights and Fundamental
Liberties, the International Covenant on Civil and Political Rights,
The Basic Principles on the Role of Lawyers and the Universal Declaration
of Human Rights. Mexico's duties to guarantee the physical safety
of Digna Ochoa and to investigate and punish violations of her rights
also arise from membership in the Organization of American States
(OAS) and the provisions of the American Convention on Human Rights.
VII.2 RECOMMENDATIONS
Lawyers Rights Watch Canada and the Bar Human Rights Committee
of England and Wales recommend that the government of Mexico:
A. Comply with the order of the Inter-American Court of
Human Rights and binding international law obligations and adopt,
as an essential element of Mexico's duty to protect individuals
engaged in the protections and defense of human rights, effective
measures to investigate the criminal acts against Digna Ochoa in
order to find and punish those responsible for such acts, in accordance
with the due process of the law.
B. Conduct an impartial and exhaustive investigation of
the attacks and threats against Digna Ochoa and of her death including
a full investigation of the involvement of government agents.
C. Comply with the March 7, 2002 recommendations of IAHCR
consultant Dr. Díaz,18
including recommendations to:
a) Exhaust all lines of investigation irrespective of the official
investigators' predilection to focus on a particular hyphothesis,
b) Study the particulars of Digna Ochoa representation of Montiel
and Cabrera to determine the relevance of this line of inquiry,
c) Investigate the existence of relationships between the previous
attacks and threats and Ochoa's death,
d) Study in depth Ochoa's last trip to Guerrero, identify all
military personnel present in the area during her visit and assess
the relevance to her death of her work for clients and causes
based in Guerrero.
e) Perform in a broad, integral, and exhaustive manner, a series
of tests and activities tending towards exhausting all of the
lines of the investigation proposed from the beginning with equal
emphasis and dedication, in spite of the fact that in the view
of the official investigators it would seem that there are advances
in one of the hypotheses which holds pre-eminence over the others,
since in an investigation of this nature, all of the hypotheses
formulated need to be revised as are those that come about during
the course of the investigation.
f) obtain the opinion of a criminal investigation expert, independent
of official and private Mexican institutions and preferably foreign,
on the manner in which expert analyses have been carried out and
the results obtained and on the adequacy of the investigation
of theories other than the suicide theory. LRWC/BHRC recommend
that this expert should have the resources to arrange for additional
reviews to be conducted by people with specific areas of expertise.
D. Act immediately to implement measures to adequately protect
the safety and independence of lawyers and others engaged in the
defense and promotion of human rights in Mexico.
E. Monitor, in cooperation with the government of the Federal
District of Mexico City and the Attorney General of the Federal
District, the work of the Special Prosecutor's office to ensure
the integrity of the investigation.
Dated: July 24, 2002.
ENDNOTES
-
1. This report was
prepared by Gail Davidson, director of LRWC and is based in
part on interviews conducted in Mexico: between March 12-17
2002 by LRWC/BHRC representatives John McAlpine Q.C. and Nicholas
Stewart Q.C. and Kirsty MacDonald, interviews conducted on behalf
of LRWC/BHRC on April 19 2002 and interviews by Global Exchange
on May 9 2002. Return to text
-
2. Report on the
mission to Mexico, Addendum to the Report of the Special Rapporteur
on the independence of judges and lawyers, Dato' Param Cumaraswamy,
submitted in accordance with Commission on Human Rights resolution
2001/39 on 24 January 2002, paragraph 107 page 27. Return
to text
-
3.
LRWC and BHRC are committees of Canadian and British lawyers
working to protect the independence and security of lawyers
and other human rights defenders around the world. Return
to text
-
4.
In the matter of "Digna Ochoa y Plácido et al."
Case No. 12.229 before the Inter-American Commission of Human
Rights and the Inter-American Court of Human Rights. Return
to text
-
5. The
OAS is a regional organization created by the American States
to achieve peace and justice, promote member states' solidarity,
and defend their sovereignty, territorial integrity, and independence.
The OAS is a regional agency as defined by Article 52 of the
United Nations Charter. Return to text
-
6.
Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms. Adopted at
the 85th Plenary meeting 9 December 1998 and adopted by the
U.N. General Assembly 8 March 1999 A/RES/53/144. Return
to text
-
7.
Adopted by the 8th United Nations Congress on the Prevention
of Crime and the Treatment of Offenders, Havana 27 August to
7 September 1990. U.N. Doc. A/CONF. 144/28/Rev. 1 at 188. (1990)
Return to text
-
8. Paragraph
119 page 29. Return to text
-
9.
Paragraph 192(h)(i) page 45. Return to text
-
10. Paragraph
268. Return to text
-
11. Paragraph
294. Return to text
-
12. When
Rudolfo Montiel, founder of OESP, and Teodoro Cabrera García
were arrested in Guerrero on May 2, 1999 for peacefully protesting
against these logging operations. Mexican Attorney General De
La Concha was the military commander of the 49th battalion in
the area of Guerrero where Rodolfo and Teodoro were arrested.
They were reportedly held incommunicado and tortured until they
confessed to drug and arms charges for which they were sentenced
to 6 years 4 months and 10 years respectively. Both were released
on orders from President Fox shortly after the murder of Digna
Ochoa who had represented them following continuing pressure
from Amnesty International, other NGOs and governments. Return
to text
-
13.
Global Exchange is a San Francisco based international human
rights organization working for political, economic and social
justice. Return to text
-
14.
Mexico Solidarity Network is a coalition of over 80 organizations
struggling for human rights, economic justice and democracy
in the United States and Mexico. Return
to text
-
15.
July 12, 2002 Press release by PRODH, "PRIORITIES THAT
THE NEW PROSECUTOR'S OFFICE SHOULD TAKE INTO ACCOUNT REGARDING
THE CASE OF DIGNA OCHOA". Return to
text
-
16.
Ginger Thompson, "Rights Lawyer's Odd Death Tests Mexican
Justice", NY Times, June 3, 2002. Return
to text
-
17.
Susan Gonzalez, "Attorney General of Mexico City will allow
NGOs to review Digna Ochoa case," La Jornada, May 16, 2002.
Return to text
- 18. Dr.
Diaz's reported to the IACHR and his report has not been released
to the public. The wording in this report was taken from the English
language version of the summary of Dr. Diaz' released by PRODH
in April 2002. Return to text
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