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.