Re: Investigation of the shooting death of human rights lawyer Digna Ochoa y Plácido
Report of the Procuraduria de Justicia del Destrito Federal
To: Lic. Felipe de Jesús Calderón Hinojosa & Lic. Miguel Ángel Mancera Espinosa
From: Gail Davidson and Leo McGrady
Date: 2010-11-24
Lawyers Rights Watch Canada (“LRWC”) urges the government of Mexico to ensure that the October 19, 2001 shooting death of Digna Ochoa y Plácido in her Mexico City law office is properly investigated and remedied. Ms. Ochoa was an internationally respected human rights lawyer who represented many clients and causes unpopular with the Mexican military, the government, landowners, and foreign corporations conducting resource extraction in Mexico. As a result of her precedent-setting human rights work Ms. Ochoa had been the target of threats, including death threats, assaults, and attempts on her life since 1996.
In the event that the anticipated report of the Procuraduria de Justicia del Destrito Federal echoes earlier statements from government investigators and suggests suicide as the cause of Digna Ochoa’s death, LRWC calls on the government of Mexico to:
- Create an independent commission of inquiry to conduct an exhaustive investigation into the death of Digna Ochoa and the attacks and threats against her prior to her death and do so in cooperation with the Inter-American Commission on Human Rights (the Commission) and the Ochoa family;
- Ensure that the commission of inquiry fully complies with the applicable international law requirements provisions including the provisions of the American Convention on Human Rights and the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions; and,
- Ensure that the commission of inquiry is independent of any “institution, agency or person that may be the subject of the inquiry” in accordance with the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Article 12.
Background
At the time of Digna Ochoa’s death, two factors emerged: first, it was widely accepted that she had been “assassinated” because of her work as a lawyer; and, second, the involvement of government agents was suspected. Prior to her death, Digna Ochoa had expressed the opinion that the military was involved in the attacks and threats against her, an opinion shared by human rights’ groups familiar with the controversial nature of her cases. The possible involvement of the military or other agents of the state has never been properly investigated. There is no credible evidence that Digna Ochoa committed suicide.
The Commission said on October 19, 2001 Ms Ochoa had been, “assassinated by one or more unidentified individuals in the office of her colleague Pilar Noriega Garcia in the Colonia Roma neighborhood of Mexico City.” Jose Ramon Fernandez Caceres, then Federal District Director of Forensic Medical Services, concluded that Ms Ochoa was shot ‘point blank’ in the head and received three lesions to her body. Mary Robinson, then United Nations Commissioner of Human Rights, the President of the European Union, Nobel laureate Rigoberta Menchu, President Fox and others were unanimous in concluding that Digna Ochoa had been murdered because of her work as a lawyer. Dean Grossman, President of the Inter-American Court on Human Rights, 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.”
LRWC is satisfied that the suicide theory cannot be considered valid. A restatement of this discredited theory would be more indicative of the inadequacy of the recent review of the case than it would be of the cause of Digna Ochoa’s death. LRWC is of the opinion that, particularly in the absence of any meaningful investigation of the threats and assaults that preceded Ochoa’s death, suicide can be accorded no credibility whatsoever. In March 2002 and April 2003 lawyers from LRWC and the Bar Human Rights Committee of England and Wales (“BHRC”) came to Mexico to examine evidence and interview investigators, lawyers, journalists and others with knowledge of the events and of the government investigation. On both occasions, LRWC noted significant inadequacies with the investigations ranging from an inadequate autopsy, failure to secure the crime scene, failure to interview witnesses, failure to interview people identified as suspects, failure to investigate the Guerrero connection, failure to secure cooperation of the military, failure to investigate the military’s recent contact with Ochoa and unreliable forensic analyses. Failure to ensure and protect the independence of investigators has been fatal to the integrity of investigations conducted to date.
Troubling indicators of government interference with the independence and focus of investigators that were first noted by LRWC include these events:
- On November 3 and 6, 2001 Federal District Attorney General Bernardo Batiz announced that the most solid leads in the investigation related to Digna Ochoa’s October 2001 visit to Guerrero, her links to the ecologist compesinos (Rodolfo Montiel and Teodoro Cabrera) she defended and her confrontations with caciques and members of the military in Guerrero.
- On November 11, 2001, Pedro Estrada Gonzalez, then General Coordinator of Services Provided by Experts, announced that the first results of the investigation concluded that more than one person participated in the murder of Ochoa.
- On November 29, 2001 Attorney General Batiz announced investigators would interview members of the 40th Infantry Battalion connected to the arrest of Ochoa’s clients Rodolfo Montiel and Teodoro Cabrera.
- First week of December 2001: the investigating team made a trip to Guerrero to set up interviews with members of the 40th Infantry Battalion.
- On December 10, 2001 the government of Mexico removed the investigation team making the above noted discoveries and replaced it with a team headed by Renato Sales Herida. The Sales team (and all subsequent teams) focused on attempting to legitimize the incredible theory that Ochoa had committed suicide to embarrass the government.
None of the leads identified in the first 7 ½ weeks after Ochoa’s death has ever been investigated and the conclusions have been ignored. Homicide—the cause identified by the first investigators—has never been properly investigated. The focus on trying to ‘prove’ suicide has prevented any effective investigation of causes more consonant with the evidence and with the background of threats and attacks against Ochoa and other advocates representing causes or clients unpopular to those in power.
The inadequacy and lack of reliability of government investigations was noted by the Federal District Commission of Human Rights in their July 2004 report which challenged the prosecutor’s finding that Digna Ochoa committed suicide. The commission’s chief, Emilio Alvarez Icaza, said that the group found the government prosecutors failed to properly investigate Ms. Ochoa’s death, had covered up important evidence and had not pursued leads incriminating the military, police and rural political bosses who risked exposure of wrongdoing through Ms. Ochoa’s human rights work and therefore had a motive. The report also noted a number of other errors, namely: the way investigators collected and processed evidence, inconsistencies in the conclusions drawn by prosecutors and mismatching and contradictory descriptions from medical and criminal experts investigating the death.
Duty to Investigate
Mexico is legally bound by national and international law to:
a) Guarantee the right to life;
b) Provide remedies for violations of the right to life; and,
c) “…conduct genuine and effective investigations to determine the persons responsible for the human rights violations”
These duties arise from a number of instruments including the American Convention on Human Rights (Convention) and the International Covenant on Civil and Political Rights (ICCPR). Mexico ratified the Convention on April 3, 1982 and on December 16, 1998 accepted the jurisdiction of the Inter-American Court of Human Rights (IACtHR) over whether rights guaranteed by the Convention have been violated. As a party to the ICCPR Mexico must “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.”
The legal duties imposed by these treaties take precedence over domestic law. The Mexican Constitution (Article 133) provides that international treaties signed and ratified by Mexico prevail as the supreme law (la ley Suprema de toda la unión). The Supreme Court of Mexico (Corte Suprema de Justicia), in a 1999 decision interpreted this provision as giving international treaties primacy over federal law – implying that domestic law that contradicts a treaty is not applicable.
It is well established that failure by a state party to conduct proper investigations and thereby ensure appropriate remedies for violations of the right to life and other protected rights, is itself a violation of these treaties. In the Velasquez Rodriguez case the IACtHR ruled,
The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished…the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction.
Orders of the Inter-American Court of Human Rights (IACtHR)
On November 17, 1999, in response to attacks on and threats against Ochoa and other Centro de Derechos Humanos Miguel Agustín Pro Juárez (PRODH) staff, the IACtHR ordered Mexico to adopt without delay, measures necessary to protect the life of Digna Ochoa and others and to, “…investigate the reported acts that gave rise to the present measures in order to find and punish those responsible.” (November 1999 order). Acts to be investigated included: four death threats; two illegal entries, one to Ochoa’s home on October 5, 1999 and one to PRODH’s office on October 29, 1999; the kidnapping and detention of Ochoa on August 9, 1999 and the assault, detention and interrogation of Ochoa on October 28, 1999.
On October 25, 2001, Dean Grossman, President of the Court issued a resolution stating that Mexico is bound by the Convention (Article 1.1) and therefore must respect and apply the rights and liberties recognized by the Convention. The IACtHR ordered Mexico to conduct a full investigation of Digna Ochoa’s murder (October 2001 order). Just prior to her death Ochoa had received threats on August 10, September 14 and October 16 of 2001.
The investigation commenced after the November 1999 order was tainted by irregularities and a lack of independence and was never completed. The lack of independence flowed from the fact that as of December 2000, that investigation came under the control of newly appointed Attorney General Rafael Marcial Maceda de la Concha. Maceda de la Concha had been in charge – as General of the Army, Attorney General of Military Justice and the chief military prosecutor in Guerrero – of the scandal that resulted in the wrongful arrest, torture and conviction of Digna Ochoa’s clients Rodolfo Montiel and Teodoro Cabrera.
Digna Ochoa’s involvement as defence counsel for Montiel and Cabrera had prompted Attorney General Batiz to direct an investigation of the links between the military and Ochoa’s murder and to embark on interviewing members of the 40th Infantry Battalion. In the Montiel and Cabrera case Ochoa had in 1999, presented evidence of very serious wrongdoing by the military in Guerrero. The evidence indicated that: the charges against her clients, Montiel and Cabrera were fabricated, the evidence had been concocted by the military and the ‘confessions’ had been extracted by torture of her clients by the military. Ochoa called for an investigation of the allegations of torture. When Maceda de la Concha refused to admit the evidence of torture presented by Ochoa and the two men were convicted, Ochoa drew international attention to the case which resulted in her clients being granted awards for their ecological activism and ultimately to their release.
In May 2001 Maceda de la Concha terminated the investigation ordered by the IACtHR in November 1999. A government report released in January 2002 concluded that the investigation was not thorough and the termination was premature. Following release of this report, the Attorney General’s office admitted the investigation exhibited “irregularities”. There were no charges laid or suspects identified with respect to any of the acts that the IACtHR ordered be investigated and remedied.
In August 2001 the Mexican government successfully petitioned the IACtHR for permission to cease providing special protection measures to Digna Ochoa. No application was made regarding the order to investigate leaving us to conclude that Mexico is still obliged to conduct the investigations ordered. Mexico has failed to comply with the November 1999 and the October 2001 orders of the IACtHR.
Conclusions
The international human rights community has continued to recognize Digna Ochoa’s outstanding contribution as a human rights advocate. On June 6, 2002, Global Exchange awarded her the International Human Rights Award. On May 23, 2003, the prestigious Ludovic-Trarieux Human Rights prize was awarded to Ms. Ochoa by the Institute des Droits de l’Hommes du Barreau de Bordeux (“IDHBB”) in partnership with the European Lawyers Union (“UAE-Human Rights”).
Digna Ochoa was known internationally for fearlessly representing clients in highly controversial cases that threatened to expose criminal wrongdoing by the military and other government agents. The fact that the suicide theory exculpates all possible suspects and obviates the necessity for further investigation that may expose wrongdoing by government agents, is in itself cause for disquietude with the theory. In the absence of an independent, exhaustive and transparent investigation of the involvement of government agents, the suicide theory cannot be seriously entertained. In summary, LRWC notes the following.
1. A conclusion by government investigators that the sudden death of Digna Ochoa, a prominent critic of government wrongdoing, was suicide should have alerted investigators to the possibility of a cover-up.
2. There has been no independent and proper investigation of the death of Digna Ochoa or of the threats and assaults that preceded her death.
3. The search for factors that might tend to support a suicide theory has precluded any effective investigation of other theories more consistent with the context.
4. Prosecutors spent an inordinate amount of energy attempting to persuade LRWC and others that Digna Ochoa committed suicide.
5. The evidence that Digna Ochoa was murdered to prevent her from continuing to effectively represent clients alleging criminal wrongdoing by corporations and the military is far more compelling than the suggestion that Ochoa committed suicide to ‘embarrass’ the government.
6. There has never been an independent investigation of Digna Ochoa’s death that complies with the requirements of the Convention, the ICCPR and the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.
7. There has been no adequate investigation of Digna Ochoa’s visit to Guerrero or of the connection between Digna’s past work in Guerrero and her death. (see Diaz recommendations).
While questions of responsibility for the threats and assaults to Ms. Ochoa and for the death of Digna Ochoa remain unresolved, the safety of all lawyers and advocates representing unpopular causes remains in jeopardy. “The entire administration of justice depends on the quality, integrity and independence of the legal profession.”
Recommendations
LRWC calls on Mexico to:
- Create an independent commission of inquiry to conduct an exhaustive investigation into the death of Digna Ochoa and the attacks and threats against her prior to her death and do so in cooperation with the Inter-American Commission on Human Rights and the Ochoa family;
- Ensure that the commission of inquiry fully complies with the applicable international law requirements including the provisions of the American Convention on Human Rights and the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions; and,
- Ensure that the commission of inquiry is independent of any “institution, agency or person that may be the subject of the inquiry” in accordance with the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Article 12.
