The trial of indigenous human rights defender Kenia Hernandez for aggravated robbery in Ecatepec, Mexico was riddled with irregularities, including the denial of her right to be present at trial, to effective participation in the proceedings, and to confidential communication with counsel. These violations of rights guaranteed Hernandez under the International Covenant on Civil and Political Rights and the American Convention, coupled with a lack of evidence and the broader context – ten criminal cases opened against her in the last two years -- are suggestive of abuse of process. In other words, Hernandez’s trial for aggravated robbery appears to have been a means of retaliation in response to her human rights activism. In March 2022, Hernandez was convicted and sentenced to 11 years and 3 months in prison. In light of the violations in Hernandez’s case, the verdict lacked the requisite guarantees of fairness and her conviction should be overturned.
Hernandez is a leader in Zapata Vive, a land rights organization, and the co-founder of the National Movement for the Freedom of Political Prisoners. In June 2020, she was arrested for aggravated robbery, which carries a potential sentence of 18 years in prison, on the basis of a complaint filed by two individuals.
The alleged victims, a couple, claimed that while driving up to the Las Americas tollbooth in Ecatepec municipality on March 19, 2020, they witnessed an ongoing demonstration by the National Movement for the Freedom of Political Prisoners: it is a common tactic for protesters in Mexico to surround tollbooths and secure the free passage of cars. The couple alleged that they were accosted by Hernandez and an unidentified male accomplice, who held them at gunpoint and stole a wallet and cellphone. Hernandez was released on bail a few days after her arrest.
In October 2020, Hernandez was arrested and detained on charges of aggravated robbery in a different case, based on allegations that she instructed two accomplices to rob a tollbooth during a demonstration.
The day Hernandez was due to be released on bail in this second aggravated robbery case, she was arrested and detained again, this time on a charge of attacks on public roads: the allegation in the attacks on public roads case was that Hernandez and other activists had held a protest near a tollbooth in the State of Guerrero in early 2020 and obstructed the passage of cars. She was subsequently transferred to a maximum-security prison, the Federal Center for Social Readaptation in Coatlán del Río, Morelos (henceforth referred to as “CEFERESO”). In the months to come, six other criminal cases against Hernandez for attacks on public roads were opened. Throughout the course of her trial in Ecatepec, Hernandez remained detained on the basis of the detention order in the Guerrero attacks on public roads case.
Hernandez’s trial for aggravated robbery in Ecatepec began in February 2021. Based on CEFERESO’s assessment that transporting her to court posed a significant risk that others would attempt to break her free, she was not allowed to attend the trial and was forced to participate via video-conference from the detention facility. In March 2022, Hernandez was convicted and sentenced to 11 years and three months in prison. She has appealed the verdict. Meanwhile, several other criminal cases against her are ongoing.
Throughout the course of the proceedings, Hernandez was subject to a range of fair trial abuses, including violation of her right to be physically present at trial. Under international standards, criminal defendants are almost always entitled to attend their trials excepting limited circumstances, such as where they are incapacitated or where they decline to exercise this right. In Hernandez’s case, CEFERESO refused to transport her to trial against her wishes (and the judge denied defense requests to bring her to trial) because of the supposed risk of a violent rescue attempt – despite no concrete indicia of such and despite withholding this assessment from the defense. The judge further refused to move Hernandez to a detention facility closer to the court to allow her to attend the trial, which might have mitigated the risks allegedly posed by transporting her over a longer distance, stating that this would cause problems for the other proceedings against her. None of the reasons given by CEFERESO or the judge constituted an exception that would justify depriving Hernandez of her right to be present at trial.
Having prevented Hernandez from attending the trial, the authorities failed to ensure the quality of the internet connection at the prison. This meant that Hernandez struggled to understand and follow the proceedings, violating her right to effective participation. Additionally, hearings had to be adjourned on 9 occasions because of connection failures, unduly delaying the process.
Moreover, Hernandez – confined to the detention facility – was unable to confidentially communicate with her defense team during the trial. CEFERESO did not allow counsel to enter the prison to sit with her on trial days, citing COVID concerns. Instead, counsel could only consult with Hernandez during short breaks in the trial over the open video feed set up by CEFERESO, with no guarantee that the conversations were not being listened to or recorded. Hernandez would legitimately have felt ill at ease in discussing strategy and courtroom developments with her lawyers, in violation of her right to communicate with counsel.
As a result of the above, Hernandez’s case has been irreparably prejudiced.
On the whole, the proceedings reflect significant indicia of an abuse of process. In conjunction with the aforementioned irregularities and violations, there was a lack of evidence supporting the aggravated robbery conviction. The prosecution’s case relied almost entirely on the eyewitness testimony of the alleged victims, who identified Hernandez only after looking online for information about the National Movement for the Freedom of Political Prisoners and who at trial struggled to provide specifics about her appearance. No other evidence placed Hernandez at the scene and, indeed, an expert who had analyzed Hernandez’s cellphone geolocation data testified that she appeared to have been in another state roughly 8-9 hours away by car at the time of the alleged offense. More broadly, this trial is one of ten criminal cases opened against Hernandez in the past two years.
Finally, the authorities adjudicating the various cases against Hernandez failed to uphold the guarantee of non-discrimination. In imposing Hernandez’s pretrial detention, a judge in one of the attacks on public roads cases reportedly relied on archaic gender stereotypes, stating that he would not incorporate a gender perspective into his decision on detention because Hernandez was insufficiently submissive and too intelligent. Meanwhile, the trial judge in the Ecatepec trial repeatedly impeded Hernandez’s efforts to obtain the assistance of an interpreter in her native Amuzgo language, as is her right as an indigenous person under the Mexican Constitution and Mexican law.
In light of the myriad violations in Hernandez’s case, her conviction did not possess the requisite guarantees of fairness. It should be overturned. More broadly, the Mexican authorities must ensure that defendants are not forced to participate in their criminal trials via video-conference in lieu of physical presence.