Report on the Digna Ochoa Murder Investigation

24/07/2002

Davidson, Gail 

for Lawyers Rights Watch Canada & The Bar Human Rights Committee of England and Wales

(July 24 2002)

I. MANDATE OF LAWYERS RIGHTS WATCH CANADA & THE BAR HUMAN RIGHTS COMMITTEE OF ENGLAND AND WALES

  • Inter-American Court of Human Rights Order
  • Criticisms of the Investigation

II. SIGNIFICANCE OF OCHOA CASE

  • Failure of national and international law enforcement and implementation

III. BACKGROUND

  • Miguel Agustin de Juarez, Centro de Derechos Humanos (PRODH)
  • Murder and torture by members of Mexico’s military
  • Ochoa’s cases:
  • Zapatista insurgency
  • Ecologists Teodoro Cabrera and Rodolfo Montiel
  • Revolution Army of the Insurgent People ERPI
  • University students and Banamex
  • Food First Information and Action Network (FIAN)
  • Accounts of the crime scene
  • Threats to Ms Ochoa’s colleagues

III. 1 PROCEEDINGS BEFORE THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS AND THE INTER-AMERICAN COURT OF HUMAN RIGHTS CASE #12.229:

  • American Convention on Human Rights, Article 1.1
  • Dr. Díaz’s recommendations

IV. INTERNATIONAL LAW

  • Introduction to guarantees of the Organization of American States and the United Nations.

IV.1 THE ORGANIZATION OF AMERICAN STATES

  • American Convention on Human Rights resolutions

IV.2 UNITED NATIONS

  • Mexico’s obligations to the UN
  • Mexico’s Constitution
  • International instruments of obligation:
  • International Covenant on Civil and Political Rights
  • Declaration on Human Rights Defenders
  • The Basic Principles on the Roles of Lawyers

V. HUMAN RIGHTS REPORTS

  • Introduction to United Nations Special Rapporteurs and other groups

V. 1 REPORT OF THE SPECIAL RAPPORTEUR ON THE INDEPENDENCE OF JUDGES AND LAWYERS

  • Dato’ Param Cumaraswamy’s “Report on the mission to Mexico”

V. 2 UN COMMISSION OF HUMAN RIGHTS DEFENDERS REPORT

  • Hina Jilani’s “Promotion and Protection of Human Rights: Human Rights Defenders Report”

V.3 LAWYERS COMMITTEE ON HUMAN RIGHTS (LCHR)

  • “Legalized Injustice”

V.4 AMNESTY INTERNATIONAL

  • March 13, 2002 News Release

V.5 ON THE FRONT LINE

  • Bulletin

V.6 GLOBAL EXCHANGE

  • And Mexico Solidarity Network Delegation report

VI THE INVESTIGATION

VI.1 THEORIES

  • The execution as reprisal
  • Ruben Figueroa Alcocer and Rogaciano Alba Alvarez
  • Rudolfo Montiel and Teodoro Cabrera
  • Local ‘caciques”
  • Cases of lawyer Pilar Noriega
  • Renato Sales and Suicide

VI.2 IN CHARGE OF THE INVESTIGATION

  • Attorney General of Mexico City Bernardo Batíz
  • Federal Attorney General Rafael Macedo de la Concha
  • Deputy Attorney General Renato Sales Herida
  • Margarita Guerra Tejada of the Superior Tribunal of Justice of Mexico City

VII LRWC/BHRC INVESTIGATION AND INTERVIEWS

  • Problems with the investigation
  • Lack of cooperation from the military
  • Promotion of suicide theory
  • Inadequate investigation of hypotheses
  • Failure to investigate state agents
  • Lack of technical ability of investigators
  • Intimidation of witnesses and interference
  • Past murder attempts remain uninvestigated
  • Contamination of evidence

VII.1 CONCLUSIONS

VII.2 RECOMMENDATIONS

ENDNOTES

“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.

Lack of effective evidence gathering and inadequate investigation of the hypothesis that Ms Ochoa’s murder was associated with her work in region of Petatlán in the state of Guerrero including the work she planned for the future on socioeconomic problems and alleged human rights violations by the military or with her past representation of Montiel and Cabrera.

Digna Ochoa was visiting in the State of Guerrero two weeks before she was killed, accompanied by Harald Ihmig, a representative of a German human rights organization. Ms. Ochoa had apparently been asked by members of the Campesino Ecolgists Organization of the Sierra de Petatlán and Coyuca de Catalan to help with cases involving a number of members: 4 who had been jailed and 7 who were being persecuted by the army. Mr. Ihmig appeared to be researching human rights violations and social and economic problems in advance of seeking money from a German foundation for some of these causes. A videotape of Ochoa’s October 2001 trip to Guerrero records the presence of armed military personnel at some of Ochoa’s meetings in Petatlán. Military personnel were reported to later be inquiring about Digna’s activities in Petatlán. These military personnel do not appear to have been identified nor have their activities been explained.

Information available to LRWC/BHRC indicated that investigation of the importance of Ms Ochoa’s work as a lawyer for Guerrero based clients and causes is incomplete. One commentator dubbed attempts by the prosecutor’s office at investigation in Guerrero in December, January, and May as a farce and reported that members of the military had themselves been asking questions in Guerrero regarding Ms. Ochoa’s activities just prior to her death.

Ochoa’s history of exposing crimes committed by the military in Guerrero coupled with the Ochoa’s intention of defending campesinos against human rights abuses alleged to have been committed by the military make the inadequacy of this aspect of the investigation of particular concern.

Lack of effective evidence gathering and investigation of the hypotheses that her murder was associated with legal cases she had done in the past for PRODH or legal cases she received from Pilar Noriega. LRWC/BHRC interviews did not reveal any significant investigation of this hypothesis.
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.

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.

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.

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.

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.

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.

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)

8. Paragraph 119 page 29.

9. Paragraph 192(h)(i) page 45.

10. Paragraph 268.

11. Paragraph 294.

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.

13. Global Exchange is a San Francisco based international human rights organization working for political, economic and social justice.

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.

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”.

16. Ginger Thompson, “Rights Lawyer’s Odd Death Tests Mexican Justice”, NY Times, June 3, 2002.

17. Susan Gonzalez, “Attorney General of Mexico City will allow NGOs to review Digna Ochoa case,” La Jornada, May 16, 2002.

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.