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A/HRC/WGAD/2023/54

Opinion No. 54/2023 concerning María Fernanda Silva Beroes and Elizabeth Silva Beroes (Bolivarian Republic of Venezuela)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2023-09-01 · en UN

Opinion; Subjects: VENEZUELA (BOLIVARIAN REPUBLIC OF), ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.23-19542 (E) 150124 190124

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-seventh session,

28 August–1 September 2023

Opinion No. 54/2023 concerning María Fernanda Silva Beroes and

Elizabeth Silva Beroes (Bolivarian Republic of Venezuela)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

2.

In accordance with its methods of work, 1 on 5 May 2023 the Working Group

transmitted to the Government of the Bolivarian Republic of Venezuela a communication

concerning María Fernanda Silva Beroes and Elizabeth Silva Beroes. The Government

replied to the communication on 2 August 2023. The State is a party to the International

Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2023/54

General Assembly

Distr.: General

24 October 2023

English

Original: Spanish

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or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

Submissions

Communication from the source

4.

María Fernanda Silva Beroes, a national of the Bolivarian Republic of Venezuela, is

a domestic worker. She was born on 8 May 1986. Elizabeth Silva Beroes, María Fernanda’s

sister, is also a national of the Bolivarian Republic of Venezuela and a domestic worker. She

was born on 31 December 1980. The two sisters live in the same house in the rural area of

the parish of Altagracia de Orituco, in the State of Guárico. According to the source, they

live in poverty.

5.

The source states that the Silva Beroes sisters were arrested on 24 April 2022 by

officers of the Criminal Investigations Directorate of the Bolivarian National Police Force

for allegedly having links to the “Tren del Llano” criminal gang.

a.

Context

6.

According to the source, the sisters were arrested as part of Operation Thunder, which

aims to locate people involved in extortion and other criminal acts, as well as collaborators

or accomplices of the “Tren del Llano” gang. The source adds that the operation began on

20 April 2022, when approximately 800 officers from different security forces arrived in

Altagracia de Orituco, in the municipality of José Tadeo Monagas in the State of Guárico.

The source also notes that hours before the operation began, the town suffered a

communications blackout that lasted several hours. On that day, dozens of illegal raids were

carried out on the homes of local business owners and farmers. In the first week of the

operation, more than 40 arrests were made. There were also cases in which people were

subjected to torture and cruel treatment with the aim of forcing them to make statements

and/or incriminate other suspects.

7.

The source states that the officers arrived in several civilian vehicles and forcibly

entered homes without a search warrant, destroyed and stole property, separated family

members, including children, made death threats and asked people to provide the names of

local criminals. Several women were forced to undress and show their private parts in front

of dozens of male officials. There was also evidence of enforced disappearances.

8.

According to the source, two months after the launch of Operation Thunder, the State

has not provided any update on the matter; there is no clarity as to how many people have

been arrested or whether they were detained for questioning. Furthermore, despite the fact

that this was a police operation to dismantle an organized gang, there are no reports that any

of its members have been arrested.

b.

Arrests and detentions

9.

It is against this backdrop that the source relates the facts surrounding the alleged

arbitrary detentions of the Silva Beroes sisters. On Sunday, 24 April 2022, María Fernanda

Silva Beroes took public transport to the fields in Guanape to deliver food to two of her

children. During the journey, at 11 a.m., the vehicle in which she was travelling stopped at a

mobile roadblock organized by the security forces involved in Operation Thunder. María

Fernanda was detained, searched and stripped of her cell phone and purse without being

shown an arrest warrant. A person who observed what happened contacted her sister,

Elizabeth Silva Beroes, who, upon hearing what had happened, attempted to contact her sister

by text message, unaware that her mobile device was in the hands of State agents.

10.

The source adds that on the same day, at around 2 p.m., a group of at least 10 officers

wearing jackets bearing the initials of the Criminal Investigations Directorate entered the

home of María Fernanda Silva Beroes, where a number of people, including her daughter and

her sister, Elizabeth Silva Beroes, were present.

11.

According to the source, the officials’ faces were not covered, but their name tags

were not visible and their manner of speaking indicated that they were not from the local

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area. The officers asked for Elizabeth Silva Beroes and detained her. According to the source,

the State agents took Elizabeth Silva Beroes into custody without an arrest warrant simply

for having sent a text message to her sister around the time she had been arrested.

12.

The source adds that when the officers arrived at the Silva Beroes sisters’ home, María

Fernanda Silva Beroes was with them and was wearing a hood when they took her out of the

van. According to the source, María Fernanda Silva Beroes’ daughter was unable to speak to

her at any time and the guards threatened to fire two bullets at María Fernanda Silva Beroes.

13.

According to the source, during the raid on the Silva Beroes sisters’ home, the State

agents committed multiple abuses, including pointing long guns at all the family members,

including children, and threatening a pregnant woman and an elderly woman to get them to

give them more information. The pregnant woman was threatened with losing her baby.

14.

After the raid and the arrest of the Silva Beroes sisters, their relatives searched for

them and found that they were being detained in the Alcabala del Charco section of the

headquarters of the National Police Force. At the facility, they were allowed only to bring

food for the sisters and were prohibited from visiting them.

15.

According to the source, when María Fernanda Silva Beroes asked for more

information about the reasons for their arrest, she was told that they would be presented

before the Public Prosecutor’s Office because they had apparently been found in possession

of a shotgun, grenades, rifle bullets and a motorcycle. This information was provided by an

official and was also published in local and national newspapers.2

16.

On 26 April 2022, the Silva Beroes sisters were transferred to San Juan de Morros and

appeared before the local ordinary criminal courts, which declined jurisdiction. They were

then referred to the specialized terrorism courts in Caracas. On 7 May 2022, the Silva Beroes

sisters were transferred to the headquarters of the National Police Force in Caracas to await

their court appearance. On 16 May 2022, they were transferred to the courthouse, where the

arraignment hearing was held and a public defender was assigned to them.

17.

The source asserts that the Silva Beroes sisters have been prevented from appointing

a lawyer of their own choosing throughout the judicial proceedings. At the hearing, they were

charged with the offences of terrorism, criminal association and arms trafficking. They were

ordered to be detained at the headquarters of the National Police Force in Valle, in a facility

exclusively for women.

18.

According to the source, the relatives of the Silva Beroes sisters filed a complaint with

the Public Prosecutor’s Office in Altagracia de Orituco shortly after the alleged arbitrary

detentions took place. However, the Office refused to receive their complaint, claiming that

it was not the competent authority. The source affirms that, on 2 May 2022, the family

members again filed the complaint, this time in writing, with the Public Prosecution Service

in San Juan de los Morros, the capital of the State of Guárico. The source affirms that, to

date, the authorities have not made any effort to investigate the facts.

19.

The source states that the family members have been in constant contact with the Silva

Beroes sisters and the public defenders, who have informed them of the authorities’ constant

refusal to provide the certified copies of the court files requested on 19 May 2022. On the

same date, the defenders were able to interview only two of the four witnesses put forward

by the prosecutors in the case.

c.

Trial proceedings

20.

On 23 August 2022, the arraignment hearing was held for the Silva Beroes sisters, as

provided for in article 365 of the Code of Criminal Procedure. At the hearing, after

negotiation by the public defenders and the Public Prosecutor’s Office, several of the charges

were dismissed and only the offence of criminal association, as established in article 37 of

the Act on Organized Crime and the Financing of Terrorism, was retained.

2 The source has transmitted to the Working Group publications from several media outlets, namely El

nuevo Guárico, dated 28 April 2022 (local media); Regional del Zuila, dated 28 April 2022 (regional

media), and Últimas Noticias, dated 29 April 2022 (national media).

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21.

According to the source, the Silva Beroes sisters admitted criminal responsibility after

being pressured by their own counsel, who warned that if they did not plead guilty, they

risked being convicted of a number of other offences at the trial stage, since the arrests made

as part of Operation Thunder were ordered by the President himself. Consequently, at the end

of the hearing, the judge sentenced both sisters to five years in prison.

22.

According to the source, the Silva Beroes sisters’ five-year prison sentence entitles

them to a procedural concession, namely conditional suspension of the enforcement of the

sentence, which results in conditional release. This concession is automatically applied to

persons who meet the conditions set out in articles 482 et seq. of the Code of Criminal

Procedure.

23.

However, the sisters’ release has not been ordered because Enforcement Judge No. 8

for the Caracas Metropolitan Area has demanded that the Ministry of People’s Power for

Prison Administration must conduct a psychosocial test to ensure that they meet the criteria

for the lowest security risk classification. According to the source, amounts of up to

US$ 3,000 must be paid to the judicial authorities in order to obtain the psychosocial test.

The source recalls that the Silva Beroes sisters live in poverty and it is therefore impossible

for them to pay for the tests.

24.

According to the source, one year has passed since the arrest of the Silva Beroes sisters

and nine months have passed since they decided to avail themselves of the procedural

concessions accompanying a guilty plea, but their release has not been ordered. In the

source’s opinion, this situation violates article 257 of the Constitution, which establishes that:

The trial constitutes a fundamental instrument for the administration of justice.

The procedural laws shall establish simple, uniform and efficient procedures and

provide for concise, oral and public trials. Justice shall not be sacrificed as a result of

the omission of non-essential procedures.

25.

The source asserts that the State has refused to guarantee the right to food for the Silva

Beroes sisters throughout their imprisonment. This has resulted in a disproportionate burden

on their families, who are poor and live in another state several hours away from where the

sisters are being held.

d.

Legal analysis

26.

According to the source, the Silva Beroes sisters were arbitrarily detained and their

case falls under categories I and III of the Working Group.

i.

Category I

27.

The source’s arguments are based on article 9 of the Covenant, which was ratified by

the Bolivarian Republic of Venezuela on 10 May 1978, principle No. 37 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

and article 44 of the Constitution.

28.

According to the source, there were no grounds for detention under domestic law,

since the Silva Beroes sisters were not caught in flagrante delicto, nor was a warrant presented

at the time of their arrest, which constitutes arbitrary detention in accordance with the

Working Group’s jurisprudence. Nor is there any evidence to support the arrests and

subsequent refusal to release the sisters or impose an alternative measure to deprivation of

liberty.

29.

According to the source, the Silva Beroes sisters have been charged with offences

relating to terrorism, criminal association and arms trafficking and were arrested without

there being a clear, precise and substantiated account of elements to support the claim that

they committed or participated in any criminal offence. The source also argues that the arrests

were made and pretrial detention ordered without sufficient evidence to reasonably suspect

the sisters of criminal conduct or to demonstrate that the detention was strictly necessary.

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ii.

Category III

30.

The source maintains that, in accordance with article 9 (3) of the Covenant, read in

conjunction with article 44 (1) of the Constitution, all persons deprived of their liberty must

be brought promptly and without delay before a judge, who must rule on the legality of the

detention.

31.

The source notes that the Human Rights Committee has established that article 9 (3)

of the Covenant requires that in criminal cases, any person arrested or detained must be

brought promptly before a judge or other officer authorized by law to exercise judicial

power.3 That requirement applies in all cases without exception and does not depend on the

choice or ability of the detainee to assert it. In addition, the source asserts that the Working

Group has stated that defendants have the right to be brought before a judge for trial without

delay and to have the legality of their detention reviewed.4

32.

The source adds that the Working Group has established that a person who is arrested

and detained must be brought before a judge within 48 hours of arrest and that any further

delay must be absolutely exceptional and justified by the particular circumstances of the case.

According to the Human Rights Committee, a detained person has the right to be tried within

a reasonable time or to be tried while at liberty.

33.

The source states that after the Silva Beroes sisters were arrested, they were not

brought before a judge within a reasonable time. They were arrested on 24 April 2022, but

when they were brought before a judge on 26 April 2022, in San Juan de los Morros, the

judge was not competent to deal with the case due to the subject matter; as a consequence,

their hearing was not held until 16 May 2022, 22 days after they were arrested, which

undermines their right to be heard within a reasonable period of time.

34.

The source indicates that it is not possible to justify the delay of 22 days between

when the judge declined jurisdiction and the date when the sisters were brought before the

anti-terrorism courts. Given that it takes between 2 and 2.5 hours to travel from San Juan de

los Morros to Caracas, the fact that it took 10 days to transfer the specific case in question

cannot be justified. It is also unreasonable that it then took a further 12 days for the Silva

Beroes sisters to be brought before the anti-terrorism courts once they were already in the

same city.

35.

The source also argues that none of the conditions for pretrial detention had been met,

since there was no evidence to implicate the Silva Beroes sisters in any criminal act. In the

opinion of the source, there was a clear violation of the right to effective judicial protection

and a lack of judicial oversight following the detention of the Silva Beroes sisters, inasmuch

as the courts did not exercise their constitutional power to provide redress for the

infringement of the rights of the Silva Beroes sisters and to open an investigation into the

persons who subjected them to arbitrary detention.

36.

With regard to the right to be presumed innocent and the right to a defence, the source

notes that article 14 (2) of the Covenant sets out the right of everyone charged with a criminal

offence to be presumed innocent until proven guilty according to law. The presumption of

innocence, which is fundamental to the protection of human rights, imposes on the

prosecution the burden of proving the charge, guarantees that no guilt can be presumed until

the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit

of the doubt and requires that persons accused of a criminal act must be treated in accordance

with this principle.

37.

In addition, the source mentions that the Human Rights Committee has indicated that

there are practices that should be avoided so as not to violate the presumption of innocence

of the accused, one of them being that the media should avoid expressing opinions prejudicial

to the presumption of innocence.5

3 General comment No. 35 (2014).

4 Opinion No. 78/2018, paras. 75 and 76.

5 General comment No. 32 (2007), para. 30.

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38.

According to the source, the authorities, in local and national media, described the

Silva Beroes sisters as having committed alleged criminal acts, without any evidence or a

trial proving their guilt. In the text of the news report, the Silva Beroes sisters are explicitly

mentioned and linked to the “Tren del Llano” criminal gang.

39.

With respect to the right to a defence, the source states that, at the time of the

submission of the communication, the public defender and the sisters’ family members have

not been provided with copies of the file. This limits the right to a defence and to technical

assistance, as provided for in article 14 (3) (b) of the Covenant. It adds that the Human Rights

Committee has established, in its general comment No. 32 (2007), that “adequate facilities”

should include access to documents and other evidence and that such access must include all

materials that the prosecution plans to offer in court against the accused or that are

exculpatory. Likewise, the Committee, in its jurisprudence, provides that the accused has the

right to review the judgment and other documents, such as the transcript of the trial

proceedings, as well as access to copies of the case file, since without such access the

opportunity to study the case file in its entirety is limited.6

40.

In the opinion of the source, the facts fully illustrate the State’s failure to comply with

its obligation to uphold the presumption of innocence and the right to a defence in respect of

the Silva Beroes sisters, in flagrant violation of article 14 of the Covenant.

Response from the Government

41.

The Working Group transmitted the source’s allegations to the Government on 5 May

2023. The Government requested an extension of the time limit for its response, which was

granted. The Working Group received the Government’s response on 2 August 2023, within

the established deadline.

42.

In its response, the Government points out that the Silva Beroes sisters are deprived

of their liberty by judicial decision, in the context of criminal proceedings against them before

State Due Process Court of First Instance No. 4, which has national jurisdiction and

competence in cases involving terrorism-related offences, for their alleged responsibility in

the commission of the offences of concealment of criminal activity, terrorism, criminal

association and concealment of illicit trafficking of ammunition and weapons, which are

provided for in Venezuelan legislation.

43.

The criminal proceedings against the Silva Beroes sisters are related to their alleged

collaboration with an organized crime group identified as “Tren del Llano”.

44.

The Government states that on 27 April 2022, the Silva Beroes sisters were

apprehended by officers from the Criminal Investigations Directorate of the Bolivarian

National Police Force, who were wearing the correct uniform and displaying the appropriate

identification.

45.

The aforementioned police officers were deployed as part of a security operation

called Operation Thunder 2022, conducted in the State of Guárico with the aim of preventing

criminal activity by the “Tren del Llano” organized crime group. During the operation, the

officers saw the Silva Beroes sisters and ordered them to stop so that they could verify their

identities. However, the sisters attempted to flee from the officers, which led to a chase that

ended at the Silva Beroes sisters’ home.

46.

The Government indicates that, inside the house, the police officers, in the presence

of two witnesses, attempted to identify the Silva Beroes sisters and performed body searches

on them. The sisters were found to have no identity documents. While searching the house,

the police found a white bag made of synthetic material and containing, according to the

Government, 5 double shotgun barrels, 10 16-mm shotgun barrels, 8 wooden shotgun grips,

a pair of high-precision binoculars, 40 pieces of 7.62 mm by 39 mm calibre ammunition and

a grenade. A motorcycle was found at the rear of the house.

6 Chelakh v. Kazakhstan (CCPR/C/121/D/2645/2015), para. 9.2; and Khadzhiyev v. Turkmenistan

(CCPR/C/122/D/2252/2013), para. 7.11.

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47.

During the operation, the officers were approached by two people who informed them

that the Silva Beroes sisters collaborated with members of the “Tren del Llano” organized

crime group. The individuals wished to remain anonymous out of fear that they or their

relatives might be targeted by reprisals.

48.

The Government points out that the search of the Silva Beroes sisters’ home was

carried out in accordance with the provisions of the Code of Criminal Procedure. Given that

the Silva Beroes sisters ignored the officers who ordered them to stop during the operation

and fled to their home, a search was conducted in accordance with article 196 (2) of the Code

of Criminal Procedure and which resulted in the discovery of objects and material pertinent

to a criminal investigation and that might implicate them in the commission of offences

provided for in law.

49.

The Silva Beroes sisters were taken to the headquarters of the National Anti-Extortion

and Kidnapping Unit. Subsequently, they were transferred to the National Forensic Medicine

and Science Service for forensic medical examinations and to the profiling suite of the

Scientific, Criminal and Forensic Investigation Unit to establish their full identity and

filiation details.7

50.

The Government notes that the Silva Beroes sisters were arrested in flagrante delicto,

in accordance with the provisions of article 44 of the Constitution and of article 234 of the

Code of Criminal Procedure, as required by article 9 (1) of the Covenant.

51.

At the time of the arrest, officers from the National Police Force notified the Silva

Beroes sisters of the reasons for their detention and the rights to which they were entitled, in

accordance with the Constitution, the Code of Criminal Procedure and the Covenant, as

evidenced in the report of notification of rights, dated 26 April 2022, which bears the legible

signatures and fingerprints of the Silva Beroes sisters. On this point, the Human Rights

Committee has specified that oral notification of reasons for arrest satisfies the requirement

to notify the detainee.8

52.

The proceedings in the present case were carried out by the Criminal Investigations

Directorate of the National Police Force, which is a criminal investigation body, in

accordance with the provisions of article 113 of the Code of Criminal Procedure and the

Police Service and Bolivarian National Police Force Act.

53.

The Government notes that, on 27 April 2022, the Silva Beroes sisters were brought

before Due Process Criminal Court of First Instance No. 3 in San Juan de los Morros, State

of Guárico, for the arraignment hearing, as provided for in article 236 of the Code of Criminal

Procedure. They were brought before a judge within 48 hours of their arrest, as required by

the Constitution and the Code of Criminal Procedure.

54.

At the arraignment hearing, the Silva Beroes sisters were assisted by two private

lawyers of their choosing. All due process guarantees were met and the legitimate right to a

defence was respected.

55.

At the hearing, the Court decided, in accordance with articles 71 and 80 of the Code

of Criminal Procedure, to refer jurisdiction over the case to the duty due process court for the

Caracas Metropolitan Area with national competence in cases of terrorism-related offences

because the case involved the alleged commission of offences against public order, which

are defined in article 124 of the Act on Disarmament and Arms and Munitions Control and

articles 37 and 52 of the Act on Organized Crime and the Financing of Terrorism.

56.

The Silva Beroes sisters decided not to testify at the hearing, in exercise of their

constitutional right. Their counsel stated that “[...] having reviewed the proceedings, the

defence opposes the preliminary charges laid by the prosecution and requests the release of

the defendants, since there is not sufficient evidence to support the claims made in the court

documents. No further comment.”

57.

The Government indicates that, as can be seen, at no time did the Silva Beroes sisters’

counsel raise the human rights violations that allegedly occurred in the context of their

7 The arrests were recorded under court record No. CNPB-005-041GU-INV-SP-GD-000659-20222.

8 General comment No. 35 (2014), para. 26.

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detention and which are now being presented – for the first time – before the Working Group.

This element must be considered when assessing the credibility of the source’s allegations.

58.

After the transfer of jurisdiction, the arraignment hearing for the Silva Beroes sisters

was held on 16 May 2022 before Special Court of First Instance No. 4, which has national

competence in cases of terrorism-related offences and in cases involving corruption and

organized crime, pursuant to article 373 of the Code of Criminal Procedure.

59.

The Government affirms that, at that hearing, the Silva Beroes sisters did not at any

time raise before the judge any of the allegations made by the source before the Working

Group regarding acts of torture, cruel and inhuman treatment, poor conditions of detention

and a lack of communication with family members and lawyers.

60.

The Court approved the use of the ordinary procedure and the measure of pretrial

detention at the National Women’s Correctional Institution and ordered a full medical

evaluation for both defendants in order to safeguard their right to health.

61.

It is worth noting that at the time of their arrest, the Silva Beroes sisters were notified

promptly, and within the legally established time limit, of the charges against them, as

required under article 9 (2) of the Covenant.

62.

Before approving the pretrial detention order, Special Court of First Instance No. 4,

which has national competence in cases of terrorism-related offences, made a detailed

assessment of whether the requirements for its imposition were met, namely: (a) a punishable

act warranting deprivation of liberty; (b) well-founded elements of proof that the accused has

participated in the commission of a punishable act; and (c) the existence of a reasonable

presumption, based on the assessment of the circumstances of the particular case, that there

is a risk of flight or of obstruction of the truth in respect of a specific act of investigation.

63.

The decision to impose pretrial detention is compatible with the provisions of

article 9 (3) of the Covenant, according to which pretrial detention may be ordered to ensure

the appearance of the accused for trial or at any other stage of the judicial proceedings.

64.

On 30 June 2022, within the time limit established in article 236 of the Code of

Criminal Procedure, the Public Prosecution Service formally filed before Special Court of

First Instance No. 4, which has national competence in cases of terrorism-related offences,

the indictment against the Silva Beroes sisters for the alleged commission of the offences of

terrorism, criminal association and illicit trafficking of weapons and ammunition.

65.

On 4 August 2022, a preliminary hearing for the Silva Beroes sisters was held before

Special Court of First Instance No. 4, which has national competence in cases of

terrorism-related offences, pursuant to article 309 of the Code of Criminal Procedure.

66.

At the preliminary hearing, the Silva Beroes sisters were able to address the Court and

disclose any information they considered relevant to their defence. They decided not to

testify, in exercise of their constitutional right. The sisters’ counsel did not at any time raise

before the judge any of the allegations made by the source before the Working Group in

connection with the alleged violations of due process, the right to a defence and the right to

food.

67.

At the preliminary hearing, the Court partially admitted the indictment filed by the

Public Prosecution Service against the Silva Beroes sisters for the offences of concealment

of criminal activity, defined in and punishable under article 254 of the Criminal Code;

terrorism, defined in and punishable under article 52 of the Act on Organized Crime and

Financing of Terrorism; criminal association, defined in and punishable under article 37 of

the Act; and concealment of illicit trafficking of weapons, defined in and punishable under

article 38 of the Act.

68.

The Government points out that, at the preliminary hearing, the Silva Beroes sisters

stated, without pressure or coercion, that they wished to plead guilty, as provided for in article

375 of the Code of Criminal Procedure. The judge sentenced the Silva Beroes sisters to

5 years’ imprisonment on the basis of their guilty plea.

69.

On 26 May 2023, the Ministry of People’s Power for Prison Administration conducted

psychosocial testing on the Silva Beroes sisters to determine whether they were suited to an

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alternative sentence, such as conditional suspension of the enforcement of the sentence. In

the tests, the Silva Beroes sisters were assessed as representing a medium security risk and

were therefore considered unsuited to alternative sentencing.

70.

On 2 June 2023, Criminal Sentence Court of First Instance No. 8 for the Caracas

Metropolitan Area agreed, in the light of the results of the psychosocial tests, to refuse the

conditional suspension of the enforcement of the sentence because the requirements set forth

in article 482 (1) of the Code of Criminal Procedure were not met.

71.

At present, pursuant to a judicial decision, the Silva Beroes sisters are serving their

sentence in the women’s facilities of the Centre for the Control and Protection of Detainees

at the El Valle headquarters of the National Police Force, in the municipality of Libertador

in the Capital District.

72.

The Government affirms that, at all times, the Silva Beroes sisters have been detained

in conditions that comply with the provisions of the Constitution and the applicable national

and international norms, including the United Nations Standard Minimum Rules for the

Treatment of Prisoners (the Nelson Mandela Rules). The facilities where the Silva Beroes

sisters have been detained have been visited by the staff of the Office of the United Nations

High Commissioner for Human Rights, who verified that the human rights of persons

deprived of their liberty there were respected.

73.

The Government indicates that, during the criminal proceedings, the Silva Beroes

sisters admitted responsibility for the offences of which they were accused by the Public

Prosecution Service. In other words, they accepted that they had committed the criminal acts

that led to their arrest and subsequent prosecution.

74.

Furthermore, the Silva Beroes sisters have had legal representation throughout the

proceedings. In the State of Guárico, they appointed a private lawyer, and in Caracas, where

they did not have a lawyer, they were represented by a public defender, thereby safeguarding

their right to be defended by a lawyer, which is one of the principal means of guaranteeing

protection of the human rights of accused persons in the context of a fair trial.

75.

The Government notes that, during the time the Silva Beroes sisters have spent in

detention, the competent authorities have respected and guaranteed their right to personal

integrity. In addition, from the time of their arrest until the present time, the Silva Beroes

sisters have had full contact with their legal representatives. Furthermore, during the criminal

proceedings, the sisters’ right to be presumed innocent has been respected; they decided,

without pressure or coercion, to plead guilty pursuant to the special procedure set out in

article 375 of the Code of Criminal Procedure.

76.

In this regard, the Government affirms that making use of the special procedure

applicable to guilty pleas does not at any time imply that the person is immediately released

on the basis of the conditional suspension of the enforcement of the sentence. In order for a

conditional suspension to be granted, the requirements set out in the Code of Criminal

Procedure must be met, including being assessed as a minimal security risk following

evaluation by a technical team appointed by the ministry responsible for prisons.

77.

It should be noted that the State and its institutions never charge a fee for this

procedure. The Ministry of People’s Power for Prison Administration is responsible for the

proper application of psychosocial testing, as provided for in national laws.

78.

The Government indicates that the detention of the Silva Beroes sisters complies fully

with the provisions of the Constitution, the Code of Criminal Procedure, the Universal

Declaration of Human Rights, the Covenant and other applicable instruments.

79.

Lastly, the Government confirms that, in strict compliance with its international

obligations, it will continue to cooperate with the Working Group and other special

procedures of the Human Rights Council, within the framework of their respective mandates

and the Code of Conduct for Special Procedure Mandate Holders of the Human Rights

Council.

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Additional comments from the source

80.

The Working Group transmitted the Government’s response to the source on 3 August

2023 and requested any final comments and observations, which were received on 18 August

2023.

81.

In the additional comments, the source notes that the Government, in its response,

claims that the Silva Beroes sisters were apprehended in flagrante delicto by officers from

the Criminal Investigations Directorate of the National Police Force who were wearing

uniforms and identification. In reality, the officers did not identify themselves or inform the

victims or their families of the reasons for their detention.

82.

The source states that it is also untrue that the police officers ordered the Silva Beroes

sisters to stop when they saw them or that the sisters tried to flee and were therefore arrested

in flagrante delicto. Firstly, the Silva Beroes sisters were arrested in two different locations.

María Fernanda Silva Beroes was arrested at approximately 11 a.m. on 24 April 2022 at the

Tapón de la Represa roadblock in Altagracia de Orituco, when she was on her way to

Guanape to take food to her children who work in the fields there. That same day, at

approximately 2 p.m., around 10 officers wearing Criminal Investigations Directorate jackets

entered the home of Elizabeth Silva Beroes without a search warrant. They ordered those

present to lie on the ground and put their hands on their heads. The search of the Silva Beroes

sisters’ home was not conducted in accordance with the provisions of article 196 of the Code

of Criminal Procedure.

83.

In the criminal proceedings, as indicated by the Government, it is true that the Silva

Beroes sisters decided to make use of the special procedure applicable to guilty pleas, as

provided for in article 375 of the Code of Criminal Procedure, and admitted responsibility

for the offences of which they were accused by the Public Prosecution Service. They were

subsequently sentenced by the Court to 5 years’ imprisonment. According to the source, the

Government failed to mention that they entered a guilty plea after being pressured by their

own counsel, who warned them that if they did not make use of the procedure, they ran the

risk of being convicted of several more offences at the trial stage. They were also promised

that if they entered a guilty plea, they would be released promptly.

84.

The victims’ sentence of 5 years’ imprisonment entitles them to a procedural benefit

known as conditional suspension of the enforcement of the sentence, pursuant to the

provisions of articles 482 et seq. of the Code of Criminal Procedure. On 26 May 2023, 10

months after the sisters entered their guilty plea, the Ministry of People’s Power for Prison

Administration conducted psychosocial testing, which was a formal requirement for release,

to determine whether they were suitable candidates for an alternative type of sentence

enforcement, such as conditional suspension of the enforcement of the sentence. The results

of the tests performed on the Silva Beroes sisters were unfavourable.

85.

The source points out that, in the opinion of the detainees, this is an excuse related to

corruption and the absence of the rule of law in the Bolivarian Republic of Venezuela,

because in order to obtain favourable results in such testing, victims must pay a fee to the

judicial authorities. Although the Government denies in its response that its institutions

charge for the testing procedure, it is widely known that in 2022, prison officials charged

inmates between US$ 100 and US$ 200 to add their names to the list for psychosocial testing.

86.

The source adds that the aforementioned situation is related to the human rights

violations documented by the independent international fact-finding mission on the

Bolivarian Republic of Venezuela, which indicated that “a motivating factor behind the

human rights violations [in the Bolivarian Republic of Venezuela] [...] are the personal

financial benefits derived from the capture of State institutions”.9

Discussion

87.

The Working Group thanks the source and the Government for their submissions.

9 A/HRC/45/CRP.11, para. 116.

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11

88.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations.10

Category I

89.

The source claims that the detention was arbitrary under category I because the Silva

Beroes sisters were arrested on 24 April 2022 without an arrest warrant and without being

informed of the reasons for their detention. The Government denies these claims, stating that

they were informed of the reason for their arrest at the time of their apprehension, and argues

that they were arrested on 26 April 2022 in flagrante delicto, obviating the need for a warrant.

90.

Detained persons have the right to be promptly informed of the charges against them.

This is inherent in article 9 of the Universal Declaration of Human Rights and principles 2

and 10 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment. These provisions also require that the procedures for carrying

out legally authorized deprivation of liberty should be established by law and that States

parties should ensure compliance with them, including by specifying when an arrest warrant

is required.11 If these procedures are not respected, a detention is arbitrary and seriously

undermines the ability to conduct a proper legal defence.

91.

The Working Group has previously stated that, in order for a deprivation of liberty to

have a legal basis, it is not sufficient for there to be a law authorizing the arrest. The

authorities must invoke that legal basis and apply it to the circumstances of the case.12 This

is typically done13 through an arrest warrant or a court order, or an equivalent document.14

The reasons for arrest must be provided immediately upon arrest and must include not only

the general legal basis of the arrest, but also enough factual details to indicate the substance

of the complaint, such as the wrongful act and the identity of an alleged victim.15

92.

As a preliminary matter, the Working Group must address the discrepancy in the dates

and accounts of the arrests provided by the parties. In this regard, the Working Group notes

that the source has provided a detailed and consistent account, which is supported with

witness statements. The Government has also provided an account of the events along with

documentation such as a police report and medical reports. However, there are aspects of the

Government’s account that are not convincing. These include the claim that several police

officers chased the sisters on foot but were only able to catch up with them when they reached

their home. Furthermore, it would be strange for the sisters to flee to their house if they were

hiding weapons there. Additionally, while the Government claims that the sisters were

detained on 27 April 2022, the official document recounting the detentions, which it

submitted as an annex, is dated 26 April 2022, meaning that the sisters could not have been

arrested the following day, on 27 April. The news reports on the arrests, which were among

the materials provided to the Working Group, indicate that the arrests took place the previous

Saturday, which would have been 23 April given that the news reports are dated 28 April.

These inconsistencies cast doubt on the reliability of the dates and the Government’s account

of the arrests. In contrast, the source’s account and the accompanying statements are

consistent and accurate and contain specific reference points. For example, they give a

detailed and substantiated account of what María Fernanda Silva Beroes was doing, namely

taking food to her children by public transport, on Sunday, 24 April 2022, when she was

arrested. On this basis, the Working Group considers that the source’s account of the date of

the arrest is more credible than that of the Government.

93.

Turning to the source’s legal arguments, in relation to María Fernanda Silva Beroes,

the source states that she was on a bus when she was stopped by a mobile police roadblock.

It is unclear why the police became suspicious of her activities – the Government provides

10 A/HRC/19/57, para. 68.

11 Human Rights Committee, general comment No. 35 (2014), para. 23.

12 In cases of flagrante delicto, it is not usually possible to obtain a warrant.

13 Opinions No. 30/2018, para. 39; No. 3/2018, para. 43; and No. 88/2017, para. 27.

14 Opinions No. 18/2023, para. 93; and No. 30/2017, paras. 58 and 59.

15 Opinion No. 85/2021, para. 69.

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no explanation for this, as it erroneously recounts an arrest in different circumstances two

days later – but it has been established that the police did not present her with a court order.

The Government does not explain why she was not presented with a court order. The

Government also does not convincingly refute the source’s claim that she was not informed

of the reason for her arrest. On this factual basis, the Working Group considers that the above

demonstrates a violation of article 9 (1) of the Covenant, due to the lack of proper procedures,

and of article 9 (2), because at the time she was not informed of the reasons for her detention.

94.

With regard to Elizabeth Silva Beroes, she was at home when she was arrested after

police detected calls she made to the telephone belonging to her sister, María Fernanda. The

police immediately asked her about these calls when they arrived at her home, which shows

that they had clearly anticipated the possibility that they might arrest her. Under these

circumstances, they could have obtained a court order or an arrest warrant in respect of

Elizabeth Silva Beroes. Given the lack of a convincing explanation from the Government as

to why it did not present a court order, the Working Group considers that this constitutes a

violation of article 9 (1) of the Covenant.

95.

With regard to the notification of the reasons for the arrest of Elizabeth Silva Beroes

at her home, the source states that María Fernanda Silva Beroes was told that Elizabeth had

been arrested because she had lied about the call to her sister. At an unspecified time, she

asked for more information about the reasons for the arrest and was told that she was going

to be brought before the Public Prosecutor’s Office because a shotgun, grenades, rifle bullets

and a motorcycle had reportedly been found in her house. However, it is not clear when this

happened. In the absence of a convincing account from the Government of the reason for

Elizabeth Silva Beroes’ arrest, and given that the police questioned her at her home about the

text messages she sent to her sister – in which she simply asked her where she was – the

Working Group is not convinced that she was duly notified at the time of her arrest about the

reasons for her arrest. Consequently, Elizabeth Silva Beroes was not notified promptly of the

reasons for her arrest, in violation of article 9 (2) of the Covenant.

96.

The source claims that the sisters were unable to challenge their detention in a timely

manner, as the court before which they were brought on 26 April 2022 transferred them to

another court. The Government denies this and recalls that the sisters’ lawyer was able to

specifically request their release at the hearing on 26 April.

97.

The ability to bring proceedings before a court to challenge the arbitrariness and

lawfulness of detention and to obtain, without delay, appropriate and accessible remedies is

a non-derogable right under international law.16 According to article 9 (3) of the Covenant,

anyone arrested or detained on a criminal charge must be brought promptly before a judge to

exercise judicial power. As the Human Rights Committee has noted, 48 hours is normally

sufficient to satisfy the requirement of bringing a detainee “promptly” before a judge or other

officer authorized by law following his or her arrest; any longer delay must remain absolutely

exceptional and be justified under the circumstances. 17 Article 9 (4) of the Covenant

guarantees the right to challenge the lawfulness of detention before a court. 18 Judicial

oversight of detention is a fundamental safeguard of personal liberty19 and is essential in order

to ensure that detention has a legal basis.

98.

However, the parties agree that the judge stated that the court lacked jurisdiction in

the matter. It was not until 16 May 2022 that the sisters were brought before a competent

judge. The Government does not specify whether the initial judge, in April 2022, had any

power to order their release, which is an essential aspect of having a meaningful opportunity

to promptly challenge detention pursuant to article 9 (3) of the Covenant. The failure to

provide the sisters with a timely opportunity to challenge their detention also undermined

16 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court, A/HRC/30/37, annex, principle 4,

paras. 4 and 5. The right to challenge the lawfulness of detention before a judicial authority is

considered part of customary international law, which applies regardless of whether a State is party to

the Covenant. See also E/CN.4/2005/6/Add.4, paras. 28 and 52; and opinion No. 15/2019, para. 28.

17 General comment No. 35 (2014), paras. 32–33.

18 Opinions No. 25/2021, No. 45/2019, No. 44/2019, No. 9/2019 and No. 35/2018.

19 A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.

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13

their right to habeas corpus under article 9 (4) of the Covenant. The Working Group considers

that the source has demonstrated a violation of their right to be brought promptly before a

judge to review the lawfulness of their detention, in violation of article 9 of the Covenant.

99.

The source argues that the Silva Beroes sisters were denied the right to be released

pending trial, contrary to article 9 (3) of the Covenant and principles 38 and 39 of the Body

of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

The Government denies this and argues that the pretrial detention was ordered in accordance

with national legislation.

100.

According to article 9 (3) of the Covenant, pretrial detention must be the exception

and not the rule and should be ordered for as short a time as possible.20 It must be based on

an individualized determination that it is reasonable and necessary for such purposes as to

prevent flight, interference with evidence or the recurrence of crime.21 Courts must examine

whether alternatives to pretrial detention, such as bail, would render detention unnecessary.22

In determining whether the conditions governing pretrial detention have been met, the

Working Group focuses on whether the national courts have taken into account the particular

circumstances of the person concerned but does not check whether there are risks that would

make pretrial detention necessary.23

101.

The Working Group notes that the Government simply points to domestic legal

provisions, but does not explain the circumstances specifically relevant to María Fernanda

Silva Beroes and Elizabeth Silva Beroes that justified their pretrial detention between their

arrest in April 2022 and the plea hearing in August 2022. The Working Group therefore finds

a violation of article 9 (3) of the Covenant.

102.

On the basis of the foregoing, the Working Group finds that the detention of the Silva

Beroes sisters is arbitrary under category I.

Category III

103.

The source claims that the Silva Beroes sisters were unable to appoint a lawyer of

their choosing during the proceedings. However, the Government provides a detailed

explanation in which it indicates that in the State of Guárico they were able to appoint a

private lawyer and that in Caracas, since they did not have a local lawyer, they were

represented by a public defender. The Working Group finds that the source has not

demonstrated a violation in this respect.

104.

The source also claims that the public defender and the family did not receive copies

of the court files relating to the case. However, the Working Group notes that the law does

not require that copies of a file be provided per se. Rather, it requires that the parties be

provided with access to relevant documents and evidence to safeguard the rights enshrined

in article 14 (3) (b) of the Covenant. This is consistent with general comment No. 32 (2007)

of the Human Rights Committee, which states that adequate means of conducting the defence

should include access to documents and other evidence, and that such access should include

all materials that the prosecution plans to offer in court against the accused or that are

exculpatory.

105.

The source claims that the only reason the Silva Beroes sisters entered a guilty plea

was because their lawyer led them to believe that they would risk heavier sentences if they

did not plead guilty. However, given that it has been demonstrated that the Silva Beroes

sisters had legal representation and that guilty pleas often result in sentence reductions and

lower sentences worldwide, the Working Group does not consider that the source has

demonstrated any violation of the right to a fair trial in this regard.

106.

On a related note, the source claims that the subsequent detention was arbitrary, as it

was contingent on obtaining a psychosocial report demonstrating their suitability for release,

and that this carried an exorbitant cost for the sisters. However, on this point the Government

20 Opinion No. 64/2020, para. 58; and A/HRC/19/57, paras. 48–58.

21 Human Rights Committee, general comment No. 35 (2014), para. 38.

22 Ibid.

23 Opinion No. 15/2022, para. 66.

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explains that release is not automatic once such a report is obtained, and that the sisters

underwent psychosocial testing and were found to represent a medium risk, meaning that it

was not appropriate for them to be released to serve their sentences at home, an alternative

which is reserved for persons considered to represent a low risk.

107.

According to the source, the Silva Beroes sisters were described as criminals by the

authorities in local and national media, including in newspaper articles that published their

names and stated that they were active members of the “Tren del Llano” criminal gang. The

Government does not specifically address this issue in detail.

108.

The Working Group notes that the nature of the articles and the description of the

detained sisters as active members of the criminal gang, together with the photographs of

them with the weapons allegedly discovered in their home, constitute a violation of their right

to be presumed innocent, as guaranteed under article 14 (2) of the Covenant.

109.

The source claims that one year has passed since the sisters’ arrest, and nine months

since they decided to avail themselves of the procedural benefits of pleading guilty, but their

release has not been ordered. However, the Working Group notes that this issue relates to

post-conviction detention and that there was no automatic release available, but rather the

possibility of early release. In this regard, the Working Group notes the Government’s

explanation that they were sentenced to 5 years’ imprisonment on the basis of their guilty

pleas, and that while this short sentence means that early release is possible, it does not mean

that it is automatic. Since the Government has explained that early release was not a

possibility in this case because the risk posed by the sisters was assessed as being higher than

the permitted minimum, the Working Group finds no additional violation in this regard.

110.

The source claims that the State has refused, throughout the time the sisters have been

in prison, to guarantee their right to food and that this has resulted in a disproportionate

burden on their families, as they live in poverty and reside in another state within the country,

several hours away from the place of detention. The Government mentions that the sisters

receive medical check-ups, but does not specifically address the claim regarding the

provision of food. The Working Group considers that the provision of food to a detained

person is an essential obligation of the detaining authorities, in accordance with the Nelson

Mandela Rules, the right to food and the right to health. 24 The authorities have not

demonstrated that this has been respected in the current circumstances and the Working

Group considers that the lack of nutrition could quickly undermine a person’s ability to

legally defend themselves. The Working Group therefore finds a violation of the sisters’ right

to a fair trial.

111.

Taking into account the above findings, the Working Group considers that the

violations are of sufficient gravity to render the deprivation of liberty arbitrary under category

III.

Disposition

112.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of María Fernanda Silva Beroes and Elizabeth Silva

Beroes, being in contravention of articles 9 and 10 of the Universal Declaration of

Human Rights and articles 9 and 14 of the International Covenant on Civil and

Political Rights, is arbitrary and falls within categories I and III.

113.

The Working Group requests the Government of the Bolivarian Republic of

Venezuela to take the steps necessary to remedy the situation of the Silva Beroes sisters

without delay and bring it into conformity with the relevant international norms, including

those set out in the Universal Declaration of Human Rights and the International Covenant

on Civil and Political Rights.

114.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release the Silva Beroes sisters immediately and

24 Opinion No. 23/2022, para. 110.

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15

accord them an enforceable right to compensation and other reparations, in accordance with

international law.

115.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of María

Fernanda Silva Beroes and Elizabeth Silva Beroes and to take appropriate measures against

those responsible for the violation of their rights.

116.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

117.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether the Silva Beroes sisters have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to the Silva Beroes

sisters;

(c)

Whether an investigation has been conducted into the violation of the rights of

the Silva Beroes sisters and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of the Bolivarian Republic of Venezuela with its

international obligations in line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

118.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

119.

The Working Group requests the source and the Government to provide the

above-mentioned information within six months of the date of transmission of the present

opinion. However, the Working Group reserves the right to take its own action in follow-up

to the opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

120.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.25

[Adopted on 1 September 2023]

25 Human Rights Council resolution 51/08, paras. 6 and 9.