— WRITTEN BY SUSANNE SCHWEITZER
“For us, Digna did not commit suicide, they killed Digna… they tarnished her name… And in the end when they closed the case… in this case, precisely the leaks to the media hurt us a lot, questioning Digna’s private life, her sexuality, her preferences, her family environment…even doubts concerning oneself…they questioned precisely that she was a lawyer”Jesús Ochoa, Digna Ochoa’s brother
Digna Ochoa was a lawyer and human rights defender in Mexico. She was also a daughter, a sister – a column for her family. She grew up in a family of 15 people living a childhood marked by economic instability as a peasant family. Digna was one of 9 of 13 children who had the opportunity to have a career. After Digna Ochoa’s father was kidnapped and tortured for 3 days in 1982, she made the decision that she wanted to be a lawyer. She studied law at the University of Veracruz. Her dream came true in 1988 when she began her work as a lawyer.
“It was her life, she gave it her heart! She said that with the simple fact that they will support her financially for transportation, food and lodging, she would go to any part of the country where her services were required,” said Jesús Ochoa, in his testimony during the Public Hearing of the Case of Relatives of Digna Ochoa y Plácido.
In 1999, threats against Digna Ochoa began, which culminated in two kidnappings. Digna Ochoa denounced these events in a formal way and also publicly, asking for precautionary measures. Despite these threats and acts of violence, the State of Mexico did not take enough action, and Ochoa was found dead on October 19, 2001. At the crime scene there were 3 shots, one to Ochoa’s head, one to her leg and another in the couch.
The Case of the Relatives of Digna Ochoa y Plácido vs. Mexico was brought before the Inter-American Human Rights Court on December 2, 2019, after 18 years of struggle for the Ochoa family, with no signs of justice or criminal actions. The two days of the Public Hearing took place on April 26 and 27.
During the Public Hearings, a series of irregularities were exposed with regard to the investigation conducted by the Mexican authorities that determined that Ochoa’s death was a suicide. It was also argued that the active participation of Ochoa’s relatives in the investigation was prevented. Apart from these issues, the time of the events, which according to expert reports was marked by a context of threats and attacks against human rights defenders, was supposedly a factor ignored by the authorities responsible for resolving the case of Ochoa’s death. Due to this, it was argued that the State of Mexico violated Articles 8.1 and 25.1 in relation to Article 1.1, and Article 5.1 of the American Convention on Human Rights.
The jurisprudence of the Inter-American Human Rights Court recognizes the relevance of gender issues with respect to the situation of women’s human rights, particularly if they are human rights defenders in addition to being women. In a sexist society, such as that of Mexico, it is important to recognize the roles assigned to women, the stereotypes, the situation of structural discrimination, as well as gender and sexual violence, all these aspects should be considered in the investigation of the death of a female human rights defender in Latin America such as Digna Ochoa was. The category of “gender” is recognized by the Court as “other social condition” in terms of Article 1.1. Connected to these facts and the jurisprudence of the inter-American system related to violence against women in Mexico, the Court issued a ruling on November 16, 2009, in the Case of González et al. (“Cotton Field”) vs. Mexico, recognizing a “culture strongly rooted in stereotypes, whose cornerstone is the assumption of the inferiority of women.” Similar to this case, different reports noted that these cases dealing with gender violence occur in a context of systematic discrimination against women. This situation highlights the impunity of crimes, and “sends the message that violence against women is tolerated.” What’s more, since this judgment of the Court in 2009, there have been no real changes regarding the situation in Mexico.
While Ochoa worked as a lawyer at the Miguel Agustín pro Juárez human rights center, she became involved in cases in Guerrero, the massacre in Chiapas, the defense of environmentalists from Guerrero and many other cases that had to do with members of the army or terrorism.
The first testimony during the Hearing was from Ochoa’s brother, Jesús Ochoa, who testified regarding the investigation, claiming that the authorities’ response “was null.” He further stated that he was talking to his sister in 1999 and that she told him that she felt unsafe when she worked at the human rights center and even at her own home, where she was also tortured and interrogated the same year. She even felt insecure with the people who were supposed to watch over her in line with the requested protective measures.
Jesús Ochoa spoke with Digna Ochoa during the days before her death. There was no sign that she had psychological problems. A few days later, according to Jesús Ochoa, he and his family heard through news coverage that his sister was murdered.
In his testimony, he alleged that the investigation was pure simulation by the authorities and that they turned the murder into a suicide case without adequate evidence to support it. During almost 20 years of fighting for justice and truth, the Ochoa family had to pay for lawyers, forensic experts, trips to different parts of Mexico and visits to hearings in Washington D.C.
During the two days of the Public Hearings, the Mexican State declared its solidarity with the Ochoa family and urged them to use all the legal measures available in the Mexican legal system to reach justice. Jesús Ochoa alleged that they tried to use all these measures, but that the authorities did not accept new evidence and tried to prevent a fair investigation.
The second witness called by the State, was José Antonio Pérez Bravo who held the position of agent of the public prosecutor as authorized area director during the time (August 2002 – March 2004) when a special prosecutor’s office was created for the case of Digna Ochoa following a lot of controversy on social media and the international community. The prosecution hired several international experts to analyze the details of the case between August 2003 and March 2004. The group of experts included Pedro Díaz Romero (criminal and legal review), Dolores Maorcillo Méndez (forensic medicine) and Alan J Voth (ballistic evidence). According to Pérez Bravo, it was a comprehensive investigation and a suitable model to investigate such a complex case.
Following several questions by the judges of the Inter-American Court, it was revealed that the investigation did not include investigations of the previous threats or the two cases of kidnappings, torture and attempted murder of Digna Ochoa in 1999. In addition, Pérez Bravo, as the initial leader of the special prosecutor’s office did not know any of the resolutions of the previous investigations, which means that no suspects of the previous crimes were considered in the investigation of Digna Ochoa’s death. On top of all this, Pérez Bravo said that there was no need to introduce protection measures for witnesses, such as Javier Cruz, who was killed because of his testimony. A witness, Esteban García Castro, alleged that he knew the identity of the perpetrator, but the persons responsible for the investigation rejected his testimony, saying that they could not establish his identity.
In addition, the judges of the Inter-American Court asked how a suicide can be explained seeing that there were three shots and why the investigation did not explore different lines of investigation. Pérez Bravo replied that there are many atypical cases of suicide such as Digna Ochoa’s and that it was established that Digna first fired the weapon in the couch, perhaps to measure the intensity of the sound, then in her leg and finally in her head. In addition, he said that they did consider some of the previous events, but they only included the threats and violations for background information. Pérez Bravo recognized that there were some technical defects during the initial investigation that they tried to correct through the analysis of the contracted international experts.
The Inter-American Court also drew attention to the fact that it would be very strange for a person who is demanding protection measures for her life, without family or relationship problems and without serious mental problems, to commit suicide. It was also investigated, whether the decision to close the case as a suicide was made only due to evidence from the crime scene, or also due to an analysis of the mental state of the victim.
What most raised doubts about the suicide thesis from the judges’ perspective, was the lack of traces of gunpowder, the strange position of the latex gloves on the victim’s body and the almost anatomical impossibility of firing the projectile that hit her head from the lower left to the right parietal region, taking into account that she was right-handed; data that was collected by the authorities six months later.
The objective of the expert opinion of Erica Guevara Rosas from Amnesty International was to show the background of violence, threats and impunity against female human rights defenders, the state of the judicial system, public stigmatization and access to justice during the time of the events. Guevara Rosas said that from mid-1990 to 2001 the situation for women in the area of human rights defense deteriorated considerably and experienced an increase in disappearances, murders, and violations and crimes against human rights, all in a climate of collaboration between state authorities and paramilitary groups to prevent human rights work and maintain a climate of impunity. In addition, there was a new wave of threats against human rights defenders in 2001.
Starting in 1996, the international community and international organizations had already denounced this situation and the State’s inaction, but nothing significant happened. According to Guevara Rosas, all the investigations failed because the authorities did not consider gender aspects and weren’t taking into account the victims’ work as human rights defenders. There were no specific protocols regarding gender in the case of violations against women human rights defenders, torture was not investigated as a human rights violation, and state laws have not been sufficiently effective. According to the expert, a high-level public recognition would be necessary. Even today, impunity is a constant context and cases against women human rights defenders are hardly ever investigated.
Many times, the crimes were contaminated by sexist stereotypes and gender stereotypes and in most of these cases the stigmatization comes from the authorities of the communities themselves, with the goal of devaluing the professional lives of the victims through theories about their personal or sexual lives to discredit them. As highlighted by the Court in the Case of Artavia Murillo et al. vs. Costa Rica in 2012, in which the ruling states “these gender stereotypes are incompatible with international human rights law and measures must be taken to eradicate them. ” In the same sense, the Court affirmed in the Velásquez Paiz et al. vs. Guatemala Case of 2015 that the use and creation of the gender stereotype becomes one of the causes and consequences of gender violence against women, conditions that are aggravated when they are reflected, implicitly or explicitly, in policies and practices, particularly in the reasoning and language of state authorities.”
The biggest obstacle with regard to State measures are structural causes and the lack of penalties. Which is why, the 2012 law for the protection of defenders and journalists has been insufficient, demonstrated in an increase in murders and violence. In 2019, these failures and weaknesses were recognized. Several organizations, such as the UN, wrote reports with advice to improve the situation. These suggestions haven’t been included effectively.
What is more important, is the hostile context when defending human rights in Mexico, and exactly this fact was not considered in the investigations of the Digna Ochoa case. There is a systematic failure in terms of effective policy that is explained by a lack of adequate resources at all levels and very little recognition of human rights work in politics and laws, as well as by President López Obrador. According to the expert witness, the President is stigmatizing women human rights defenders, and that is a large part of the problem, because all measures have to be accompanied by State recognition, as well as by the judiciary.
Answering a question from the judges of the Court, the expert witness said that these failures in the investigation of Digna Ochoa’s death were not only caused by disorder, but were also a systematic decision / plan explained by the lack of political will. These previously exposed factors led to insufficient investigations where, in addition, the security forces and the State systematically rejected a detailed and fair investigation, making it clear that they intended to silence.
In line with the doubts that already existed regarding a suicide theory, the testimony of the expert Ángela María Buitrago Ruiz from Colombia, who is a lawyer specialized in criminalistics, affirmed that there is very little probability that it was a suicide. She analyzed 8000 pages and found that there are not only contradictions in the investigation of Digna Ochoa’s death, but also unusual evidence, as well as negligence in necessary procedures in accordance with international standards, such as proper handling of the body, a failure to investigate evidence in against the theory of suicide, such as the lack of traces of gunpowder, contradictions in the analysis of ballistic evidence, the absence of indispensable personnel in a crime scene such as a coroner and a pathologist, differences in the serial number of the weapon found at the scene compared to that found in the forensic laboratory report, and the failure to analyze crime scene contamination and its effects. Thus generating incongruities in the scene and its conclusions.
According to Buitrago Ruiz, a discourse emerged, with the prosecution claiming that Digna Ochoa had psychological problems. In line with her analysis, this discourse was unfounded and the authorities searched for useless elements from long before that had nothing to do with the case and only served to damage the dignity of the victim.
The expert stated that there is usually only one bullet impact in a suicide. Therefore, the three bullet impacts in this case are considered inconsistent with a suicide theory. The fact that the non-lethal shots were fired first means that the victim went through high-level suffering, this is more in line with a method of torture or interrogation rather than suicide. There is no certain basis that there were no other people at the crime scene and the investigations were not sufficiently linked to the victim’s line of work as a human rights defender. There should be lines of investigation such as intimate partner violence, luxury, torture, threat and more, all of which would be more feasible than the highly unlikely line of suicide.
The most important evidence, the previous threats and their perpetrators, was entirely ignored and thus a line of investigation connected with terrorism, state / security forces etc. was not formed.
All the evidence pointed to Digna Ochoa as a stable and responsible person. Gender stereotypes and misleading post-mortem studies without real context were used to generate false elements in order to close the case as suicide without considering the evidence. Testimonials from people who knew Digna Ochoa were omitted so as to not contradict the desired result. Thus, the investigation violated several human rights, such as the restriction on the right to present evidence / the right to have access to justice. Furthermore, the State cannot renounce a case without full proof, but that is what happened in this case.
Following questions from the judges, the expert clarified that there are important differences in the investigations considering the gender aspect, in the fundamental context that is violence in particular against women in a sexist / patriarchal society and the prejudices that exist in a society like that. Suicide can also be a forced decision due to threats against women. It is necessary to have a double reinforcement due to the double risk for women human rights defenders. The prejudice on the part of the authorities assumed that Digna Ochoa was seeking violence and death due to her work, implying that she was a person seeking conflict. That is why it is so important to consider the context of social, sociological and cultural conceptions, especially for a sexist society like Mexico.
In the final arguments, the representatives of the victim and her family emphasized the violations suffered by the victim during a period of 25 years, due to the fact that all the violations against her remained unpunished. That is why they blamed the State of Mexico for the psychological torture that Digna Ochoa suffered for many years without protection of her right to life, as well as for not creating the appropriate conditions for Digna to be able to carry out her work. According to the defense, the State is responsible for the violence against the victim, since it failed to defend human rights and her right to life. Thus, the defense alleged violations of the articles 2, 3, 4, 7, 5, 1.6, 8, 11, 13 and 25 in relation to article 1.1. As reparation, they asked for the recognition of Digna Ochoa as a victim, the cessation of impunity, as well as general independence of prosecutors and the provision of information during investigations. In the Fernández Ortega et al. Case. Vs. Mexico in 2010, the Court similarly established “that an act of torture can be perpetrated both through acts of physical violence and through acts that produce acute mental or moral suffering in the victim.”
The State expressed “its sincerest recognition and solidarity with the family” and acknowledged partial responsibility with respect to the international responsibility regarding articles 8 and 25 in relation to article 1.1, article 7 that deals with violence against women, article 5 in relation to Digna Ochoa’s next of kin and Article 11. Articles 1, 2, 3, 4, 13 were rejected by the State. However, the State showed its recognition of the importance of women human rights defenders and the need to protect them.
With respect to the responsibility of the States to investigate the violence against women with due diligence, established in Articles 8 and 25 of the American Convention, the Court adopted a similar judgment in the Case of Fernández Ortega et al. vs. Mexico and the Case of Rosendo Cantú and another vs. Mexico in 2010.
The IDH Commission valued the partial recognition of the State, but affirmed that contrary to the State’s declarations, the Commission is competent to determine, whether the State complied with international rights and affirmed that three times there was a failure to exercise criminal action following new evidence / despite new evidence. A request was made for the adoption of non-repetition measures, the recognition of the work of the defenders and the implementation of protection measures demanding comprehensive reparation.
The State offered to reopen the case if required, considering the reports and recommendations of the Commission.
The President of the court, Judge Elizabeth Odio Benito, recognized the gesture of goodwill by the State through acknowledging partial responsibility and emphasized that it is very important for the Court that the State put in writing the documents that show the path that is being followed to continue with the investigation and possible agreements on reparations as a result of everything that was debated during the Hearings. Furthermore, the President of the Court requested information on why Digna Ochoa was not included as a victim in this case.
Digna Ochoa’s mother, like her brother, Ignacio, died awaiting the resolution of the case of their loved one. What the Ochoa family most longs for, is that the authorities reopen the case and allow the opportunity to present new evidence, showing that it was not a suicide, and to punish the person / s who killed Digna Ochoa.
So what can be done to create adequate measures for the protection of women, and especially women human rights defenders in Mexico?
Mexico is still one of the most lethal countries for women human rights defenders, ranking number 4 in the world. At least 45 defenders were murdered during the first two years of López Obrador’s presidency. What Mexico needs is an autonomous and transparent judicial body, comprehensive recognition and change by the state at the highest levels, and the creation of special prosecutors focused on cases of violations against women and human rights defenders.
With regard to reparations and the goal of eradicating violence against women, the Court established that the State is obliged to adopt comprehensive measures, as in the judgment in the González et al. Case (“Cotton Field”) vs. Mexico and that the gender approach should be of special importance within the risk assessment procedure. In the Case of Fernández Ortega et al. vs. Mexico, the State also acknowledged partial responsibility with respect to Articles 8 and 25. As measures of reparation, the Court ordered that the State reopen the investigation, ensuring that the persons responsible will be brought before the jurisdiction, guarantee access to justice for the victims, initiate disciplinary, administrative or criminal actions against those responsible for the different procedural and investigative irregularities. The State must also carry out a public act of recognition of international responsibility, in relation to the facts of the case.
As in the Case of González et al. (“Cotton Field”) vs. Mexico of 2019, where the Court concluded that the victims were subjects of violence against women according to the American Convention and the Belém do Pará Convention, Digna Ochoa should be recognized as a victim of gender violence. The judgment of the Inter-American Court will be another significant step in the process of preventing acts of violence against women human rights defenders in the future by strengthening the institutional framework to protect them, thus setting an important precedent to establish international standards in relation to the stigmatization of women and mechanisms to prevent impunity in similar cases, ensuring a fair and adequate investigation.