Re: Digna Ochoa Investigation: LRWC/BHRC Reject Suicide Theory (ENGLISH)
To: Lic. Bernardo Bátiz Vázquez, Procurador General de Justicia del D. F.
From: Nadeem Ahmad, Gail Davidson, Leo McGrady Q.C.
Date: 2003-09-02
Lawyers Rights Watch Canada (LRWC) is a committee of Canadian lawyers dedicated to upholding advocacy rights and the rule of law. The Bar Human Rights Committee, the international human rights arm of the Bar of England and Wales (BHRC) is concerned with the protection of the rights of advocates and judges around the world.
LRWC and BHRC have been following the investigation into Digna Ochoa’s death since November 2001. In July 2002, LRWC and BHRC issued a report based in part on interviews conducted by a team of representatives from LRWC and BHRC in Mexico during March, April and May 2002. (Copy enclosed)
The LRWC/BHRC 2002 report concluded that the government of Mexico had failed to comply with its legal obligation to conduct an effective investigation into the murder of and the threats and attacks against Digna Ochoa and in doing so had violated Mexico’s legal obligation to provide adequate safeguards for the security and independence of lawyers and other advocates defending human rights and representing clients and causes unpopular to government officials. LRWC and BHRC rejected the suicide theory and concluded that in the absence of any meaningful investigation of the threats and assaults that preceded Ms Ochoa’s death, and of the alleged involvement of government agents in her death, the suicide theory could have no credibility.
The recent announcement by Special Prosecutor Margarita Guerra (in charge of the investigation since July 2003) that Ms Ochoa died by her own hand is more indicative of persistent problems with the investigation than of the cause of Digna Ochoa’s death. Gratuitous derogatory statements made by the Special Prosecutor’s office about Ms Ochoa served to further discredit the integrity of the investigation.
At the time of Ochoa’s death, three factors emerged: it was widely accepted that she had been “assassinated” (in the words of the Inter-American Commission) because of her work as a lawyer and the involvement of government agents was suspected. Digna Ochoa had expressed the opinion that the military was involved in the attacks and threats against her. These critical factors have yet to be properly addressed.
In April 2003, another team of representatives from LRWC and BHRC, including lawyers familiar with police investigative techniques in homicide cases, visited Mexico City to interview parties and conduct a further review of the investigation. They were able to obtain unprecedented access to the evidence gathered. That included access to the physical exhibits as well as the records of witness interviews. They were able to conduct a lengthy question and answer session with the Special Prosecutor. LRWC and BHRC very much appreciate this cooperation.
However, on the basis of information gathered during that visit LRWC and BHRC again emphatically reject the suicide theory as having any compelling validity. The persistent focus on this theory and the failure to investigate the involvement of government agents and possible links to Ochoa’s legal work has undermined the integrity of the investigation.
LRWC and BHRC have concluded that Mexico must now, in order to fulfill its legal obligation to investigate the death of Ms Ochoa and criminal acts against, appoint an independent commission of inquiry to pursue the investigation.
Mexico is legally bound to conduct effective investigations of all the attacks upon and threats against Digna Ochoa including the events that resulted in her death. On October 25, 2001, the Inter-American Court of Human Rights, whose orders are binding on Mexico, ordered Mexico to investigate the assassination of Digna Ochoa with the purpose of identifying and sanctioning those responsible. Mexico has not complied as yet with this order. No effective investigations have been concluded and the investigations that have taken place to date fall short of fulfilling international standards.
Mexico is legally bound by national and international law to:
a) ensure the safety and independence of lawyers and other human rights defenders, and
b) provide remedies for violations of human rights which includes the duty to conduct effective investigations of human rights violations and to identify and punish the perpetrators through prosecution and trial.
Internationally these twin duties arise from a number of instruments including the: American Convention on Human Rights (the Convention), International Covenant on Civil and Political Rights (ICCPR), 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), Basic Principles on the Role of Lawyers and Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.
To fulfill the requirements of the Convention (Articles 1, 2, 4.1) and the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions an investigation must:
1. be conducted by investigators independent from state agents with alleged criminal involvement
2. be capable of determining whether death occurred as a result of the illegal use of force
3. lead to the identification and punishment of those responsible
4. ensure that investigators take reasonable steps to secure evidence including eye witness testimony, forensic evidence, objective analyses of clinical findings and conduct an autopsy that provides an accurate record of the injuries
5. be prompt and reasonably expeditious
6. afford sufficient public scrutiny of the investigation and the results to secure accountability
7. afford to the next-of-kin whatever involvement in the process is necessary to safeguard the interests of such person(s).
The investigation into the death of lawyer Digna Ochoa has failed to meet these standards.
The failure to comply with the order of the Inter-American Court of Human Rights and to meet the required investigation standards demonstrates that existing investigative mechanisms and procedures in Mexico are inadequate and cannot result in an effective investigation of either the death of Ms Ochoa or of the attacks and threats against her.
The Ochoa family is, however, still entitled to a remedy and to a proper investigation. To fulfill this obligation, Mexico must now appoint an independent commission of inquiry to pursue these investigations. To allow otherwise may further jeopardize the collection and analysis of evidence and foreclose the elucidation of the truth.
When established investigative procedures are inadequate, international standards mandate that the requisite investigation continue through an independent commission of inquiry. (Article 11 of the Principles on the Effect Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.)
LRWC and BHRC call upon Mexico, in cooperation with the Inter-American Commission of Human Rights and the Ochoa family, to set a Commission of Inquiry independent of any “institution, agency or person that may be the subject of the inquiry.” Such a commission should be mandated to pursue an exhaustive investigation into the death of and attacks and threats against Digna Ochoa that complies with the above noted international standards and with the orders of the Inter-American Court of Human Rights.
LRWC and BHRC await your response and remain willing to assist.
