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.25-08058 (E) 050825 060825
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 6/2025 concerning Rocío San Miguel Sosa (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 26 April 2024 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning Rocío San Miguel Sosa. The Government replied to the communication on
24 July 2024. 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 and 18–21 of the Universal Declaration of Human
Rights and, insofar as States Parties are concerned, by articles 12, 18–22 and 25–27 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,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2025/6
General Assembly
Distr.: General
4 June 2025
English
Original: Spanish
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1.
Submissions
(a)
Communication from the source
4.
Rocío San Miguel Sosa, a national of the Bolivarian Republic of Venezuela and Spain,
was born on 6 May 1966.
(i)
Context
5.
Ms. San Miguel Sosa is a prominent lawyer and human rights activist with 35 years
of experience. She is a specialist in national security and defence, as well as in international
law and politics, and has worked as a teacher, researcher and human rights defender.
6.
For some twenty years, she has been the victim of systematic rights violations,
beginning with political discrimination, committed by the Bolivarian Republic of Venezuela.
After exhausting domestic instances, she took her case to the Inter-American Court of Human
Rights, which in 2018 found the State responsible for violating her rights to political
participation and freedom of expression, as well as for violating the principle of
non-discrimination.2 The judgment has not yet been enforced.
7.
Ms. San Miguel Sosa is President of Control Ciudadano, a non-governmental
organization (NGO) devoted to public oversight of security and defence matters in the
Bolivarian Republic of Venezuela. In that capacity, she has prepared reports denouncing
irregularities in the Bolivarian National Armed Forces, including a lack of transparency,
mismanagement of resources and crimes against humanity. These reports have been cited by
international organizations such as the independent international fact-finding mission on the
Bolivarian Republic of Venezuela. In addition, her findings have been made public in
national and international media outlets.
8.
According to the source, Ms. San Miguel Sosa has been subjected to threats,
persecution and the detention of members of her family for her work in defence of human
rights. The Inter-American Commission on Human Rights agreed to request precautionary
measures for her in January 2012, citing harassment and threats, including death threats,
linked to her work for Control Ciudadano.3
(ii)
Arrest and detention
9.
On 9 February 2024, between 5 and 6 a.m., Ms. San Miguel Sosa was arrested at the
airport in Maiquetía, Bolivarian Republic of Venezuela, without being shown a warrant or
being caught in the act of committing a crime. At night on the same date, her former partner
was arrested, and on 10 and 11 February, several members of her family were also arrested.
10.
The authorities informed Ms. San Miguel Sosa that she had been arrested because of
what they called a problem with her passport.
11.
Since 9 February, a group of lawyers, together with representatives of human rights
NGOs, has been going to the headquarters of the various police forces and investigation and
intelligence agencies, both civilian and military, including the Public Prosecution Service
and the courts, for information about Ms. San Miguel Sosa and her family members but has
not received any. In view of the authorities’ silence, it was reported in several media outlets
that the situation of Ms. San Miguel Sosa and her family members was completely unknown.
12.
At 5.18 p.m. on 11 February 2024, more than 48 hours after Ms. San Miguel Sosa had
been arrested, the Attorney General, in a message posted on the social network X, announced
that Ms. San Miguel Sosa had been taken into custody “on the basis of an arrest warrant”,4 a
warrant that Ms. San Miguel Sosa had not been informed of at the time of her arrest. The
Attorney General did not indicate where she was or mention any of the members of her family
who were also detained. Ms. San Miguel Sosa and other members of her family disappeared,
2 Case of San Miguel Sosa et al. v. Venezuela, judgment of 8 February 2018.
3 Precautionary measure No. 349-11.
4 The source provides the following link:
https://twitter.com/TarekWiliamSaab/status/1756789729394086294.
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as State agents failed to report their location or provide access to lawyers and other family
members. The enforced disappearance took place over four days and three nights.
13.
At 9.54 a.m. on Monday, 12 February 2024, the Attorney General posted on X about
the initial hearing of Ms. San Miguel Sosa and the five other members of her family. The
Attorney General did not state where the detainees were being held or what judicial decision
had been made, so information on the whereabouts of the detainees, who remained
incommunicado, remained unavailable.5
14.
The initial hearing of the detainees was held at the headquarters of the Directorate
General of Military Counter-Intelligence; it began on the night of Monday, 12 February, and
lasted into the early hours of Tuesday, 13 February. At the end of the hearing, Ms. San Miguel
Sosa’s family members were released on a condition or combination of conditions, allowing
them to be tried while at liberty, whereas Ms. San Miguel Sosa and her former partner were
ordered held in custody.
15.
The record of the hearing does not mention that it was held at night at the headquarters
of the Directorate General of Military Counter-Intelligence; in fact, it notes that it was held
at 5 p.m. This irregularity, together with the absence of counsel of Ms. San Miguel Sosa’s
choosing, is a violation of her rights. In addition, the signatures of the defendants and the
public defender appear on a separate page, whereas the main page bears only the signature
of the judge and a blank space.
16.
The source submits that, before the hearing, Ms. San Miguel Sosa and the other
detainees had no contact with lawyers of their choosing or the opportunity to appoint them
or receive legal assistance. Nor did they have access to counsel during the hearing or in key
subsequent stages such as challenges, the review of the case file or the presentation of
evidence. Instead, they were forced to accept a public defender appointed by the State.
17.
On 12 February 2024, the Second Special Procedural Court of First Instance, which
has national jurisdiction over cases of crime associated with terrorism, ordered Ms. San
Miguel Sosa into pretrial detention. In issuing this order, the judge simply mentioned the
seriousness of the crimes with which Ms. San Miguel Sosa was charged, a presumed flight
risk and the possibility of witness tampering but did not make an individualized assessment
of the flight risk posed by Ms. San Miguel Sosa or of her ability to tamper with witnesses;
nor was mention made of any evidence for the conclusion that she was a flight risk or could
engage in witness tampering. These points were not made in such a way as to apply to
Ms. San Miguel Sosa as an individual.
18.
The source adds that, during the hearing, Ms. San Miguel Sosa stated that she was not
arrested in flagrante delicto but that she was told that there were problems with her passport.
As she has Spanish nationality, she asked that the consulate be informed. However, no
Venezuelan authority notified her of her right to consular assistance, and her request was
ignored at the time of her arrest.
19.
On 14 February 2024, two lawyers went to the Court with relatives of Ms. San Miguel
Sosa to be appointed for her, but, for want of judicial authorization, they were not dealt with.
On that same day, her home was searched; the search was partially witnessed by one of the
lawyers, who was unable to intervene because he was not sworn in. Ms. San Miguel Sosa
still does not have a lawyer of her choosing.
20.
On 18 February 2024, a relative of Ms. San Miguel Sosa visited her on the premises
of the Bolivarian National Intelligence Service. That visit, after which the relative filed a
complaint with the Public Prosecution Service regarding the violation of Ms. San Miguel
Sosa’s fundamental rights, is the only one she has been allowed.
21.
On the afternoon of 19 February 2024, the Attorney General held a press conference
at which he referred to the case of Ms. San Miguel Sosa. He called her a spy and said that,
with the help of partners or through public relations with members of the armed forces, she
had given confidential information to foreign diplomats to plan operations to undermine
5 The source provides the following link:
https://twitter.com/TarekWiliamSaab/status/1757221775572607301.
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national sovereignty; he also claimed that her possession of maps of Venezuelan territory
showing security zones established by presidential decree published in the Official Gazette
and disseminated in open government sources was a criminal offence. The maps were clearly
not confidential, as the Attorney General himself showed them to the media at the press
conference.
22.
The Attorney General’s public statements, in which Ms. San Miguel Sosa is referred
to as a spy who acts through what he called her partners, are defamatory, affecting her honour
and reputation while also containing expressions that, in a public statement that has obvious
connotations of gender violence and other serious violations of her fundamental rights, rob
her of her dignity as a woman.6 On its feed on the social network X, the Public Prosecution
Service explicitly quoted the following statement made by the Attorney General: “Ms. Rocío
San Miguel acted as a spy with the help of partners.”7
23.
According to the source, Ms. San Miguel Sosa remains in detention without a lawyer
of her choosing. The public defender she was forced to accept failed to appeal against the
judicial decision by the deadline. She has not had legal representation during the
investigation. In addition, she has been held incommunicado since 18 February, and the
Bolivarian National Intelligence Service requires prosecutorial authorization of visits, even
though no provision for such a requirement is made in Venezuelan law.
24.
The Venezuelan authorities have not allowed the Consul of Spain to visit Ms. San
Miguel Sosa, in flagrant violation of the Vienna Convention on Consular Relations.
25.
The arrest of Ms. San Miguel Sosa has prompted widespread concern nationally and
abroad. The source highlights the statements made by the Office of the United Nations High
Commissioner for Human Rights, the independent international fact-finding mission on the
Bolivarian Republic of Venezuela, the Inter-American Commission on Human Rights and
the Ministries of Foreign Affairs of Argentina, Costa Rica, Ecuador, Paraguay and Uruguay,
which have demanded her release and pointed to possible signs of enforced disappearance.
26.
The source notes that the detention has had an intimidating effect on human rights
organizations, which have been stigmatized for denouncing the case. This has generated fear
among defenders, who are afraid even to leave the country.
(iii)
Legal analysis
27.
According to the source, the detention of Ms. San Miguel Sosa falls within
categories I, II, III and V of the Working Group’s categories of arbitrary detention.
a.
Category I
28.
The source contends that the detention of Ms. San Miguel Sosa is arbitrary, as there
is no legal basis for it and due process was not followed. She was not subpoenaed or notified
of any investigation, no warrant was produced and it was not an arrest in flagrante delicto.
29.
The source claims that Ms. San Miguel Sosa remained incommunicado and without
access to lawyers of her choosing. During the first days of her detention, the authorities
refused to inform her family and lawyers of her whereabouts, health or whether she was
actually being held.
30.
The source notes that Ms. San Miguel Sosa was arrested on 9 February 2024 and
brought before a judge outside the 48-hour period established by the Constitution and without
a lawyer of her choosing. Although the Court ordered her transfer so that she could appoint
counsel of her choosing, the Bolivarian National Intelligence Service did not comply. This
situation constitutes a violation of her rights under article 10 of the Universal Declaration of
Human Rights, article 14 (1) of the Covenant and principles 12 and 14 of the 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.
6 The source submits the following link: www.youtube.com/watch?v=daEzmKUb_rA.
7 The source submits the following link:
https://twitter.com/MinpublicoVEN/status/1759625793657876804?ref_src=twsrc%5Etfw.
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31.
The arbitrary detention of Ms. San Miguel Sosa was not an isolated event but part of
a series of systematic and widespread arrests, made since 2014, of opposition figures or
people perceived as such by the Government of the Bolivarian Republic of Venezuela.8
b.
Category II
32.
According to the source, Ms. San Miguel Sosa was deprived of her liberty in reprisal
for her activity as director of the NGO Control Ciudadano, whose mandate is related to a
centre for research on public policies as they pertain to the Bolivarian National Armed Forces
and police forces.
33.
The activities of Control Ciudadano, which are protected by the right to freedom of
expression and thought, are made public on its website9 for informative and educational
purposes, to recognize good practices of the Bolivarian Republic of Venezuela and to
denounce human rights violations and crimes against humanity with a view to raising
awareness of them.
34.
Ms. San Miguel Sosa was arbitrarily deprived of her liberty to stop her from working,
silence her or prevent her from continuing to act in her usual capacity10 and, at the same time,
to create a climate of fear among other human rights activists – representatives of NGOs that
have denounced human rights violations and crimes against humanity – in clear violation of
the right to protect human rights enshrined in articles 1, 5 (b), 6 and 7 of the Declaration on
the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and
Protect Universally Recognized Human Rights and Fundamental Freedoms. The source
states that all this is taking place in a context of persecution of civil society.
35.
The source concludes that, since the detention of Ms. San Miguel Sosa resulted from
her exercise of her rights to freedom of expression and to promote and protect human rights,
it is arbitrary under category II.
c.
Category III
36.
Under national law, according to the source, all persons deprived of their liberty have
the right to be heard by a due process judge within 48 hours of being apprehended. This
period is calculated from the precise moment in which the person is taken into police custody
until the moment in which the detained person is brought before the court for an oral hearing.
This 48-hour period was not respected by the authorities, in violation of Ms. San Miguel
Sosa’s rights, since she was arrested at approximately 6 a.m. on 9 February 2024 and the
initial hearing, held at the headquarters of the Directorate General of Military
Counter-Intelligence began at night on 12 February and lasted into the early hours of
Tuesday, 13 February.
37.
Failing to bring a detained person before a judge within the procedural time limits is
an arbitrary deprivation of liberty. The Working Group has previously stated that accused
persons have the right to be brought before a judge to be tried without delay and to have the
judge review the lawfulness of the detention.11
38.
The source asserts that Ms. San Miguel Sosa has not had access to lawyers of her
choosing since she was arrested and that she was forced to accept a public defender who was
not independent. She has still not been allowed to appoint counsel of her choosing.
39.
Under Venezuelan law, all persons are, in accordance with international norms,
entitled to a defence attorney of their choosing from the outset of criminal proceedings.
According to article 127 (3) of the Code of Criminal Procedure, the judge should have
accepted the defence attorneys chosen by the members of Ms. San Miguel Sosa’s family and
8 Independent international fact-finding mission on the Bolivarian Republic of Venezuela, oral update
by Ms. Marta Valiñas, presented on 20 March 2024 at the fifty-fifth session of the Human Rights
Council. Available at www.ohchr.org/en/statements-and-speeches/2024/03/statement-marta-valinas-
chair-independent-international-fact.
9 See www.controlciudadano.org.
10 Opinion No. 40/2019, para. 117.
11 Opinion No. 78/2018, paras. 75 and 76.
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sworn them in. In the source’s opinion, this situation constitutes a violation of the rights set
forth in article 14 (3) (b) of the Covenant.
40.
The source states that, in addition to the facts described above, which had a
considerable impact on Ms. San Miguel Sosa’s rights, the defamatory public statements made
by the Attorney General at a press conference for domestic and international media outlets,
in which, in the terms noted above, the commission of crimes was imputed to her and alleged
evidence obtained during the investigation was exhibited, make her appear guilty in the eyes
of the public.
41.
The source adds that the Attorney General, using ironic and even sexist expressions,
is turning the activities of Ms. San Miguel Sosa and the NGO Control Ciudadano into
criminal offences, making her appear guilty of crimes for which there has been no
investigation or trial, let alone a conviction, while at the same time denigrating her work as
a human rights defender and even attacking on the basis of her sex.
42.
The source notes that the Working Group has determined that statements publicly
condemning the accused person before a sentence has been passed violate the presumption
of innocence and constitute undue interference that undermines the independence and
impartiality of the courts. Public statements made by high-ranking officials therefore violate
a person’s right to be presumed innocent when, in an attempt to create a public perception of
guilt or to sway or prejudge the competent judicial authorities’ consideration of the facts, a
crime is imputed to a person who has not yet been tried.12
43.
The source submits that Ms. San Miguel Sosa was a victim of enforced disappearance,
since after her arrest no information about her whereabouts was provided and she was
allowed no contact with lawyers or members of her family. This situation, made worse by
several days of official silence, constitutes a serious violation of her rights, including her
rights under the Covenant and the International Convention for the Protection of All Persons
from Enforced Disappearance. The facts clearly correspond to an enforced disappearance of
short duration.13
44.
The source maintains that anyone who has another nationality has the right to be
informed, at the time of arrest, of his or her right to contact his or her consulate, in accordance
with article 36 of the Vienna Convention on Consular Relations. The absence of notification
in Ms. San Miguel Sosa’s case is a violation of international norms of due process.
d.
Category V
45.
The source maintains that Ms. San Miguel Sosa was detained against a backdrop of
systematic persecution of government critics in retaliation for their activism and that the
detention could therefore constitute a crime against humanity before the International
Criminal Court. The source also points out that Ms. San Miguel Sosa was arrested as part of
a period of nearly twenty years of persecution for her human rights work, in violation of
articles 2 and 26 of the Covenant and articles 2 and 7 of the Universal Declaration of Human
Rights, and that her detention is thus arbitrary under category V.
(b)
Response from the Government
46.
The Working Group, in accordance with its methods of work, transmitted the source’s
allegations to the Government of the Bolivarian Republic of Venezuela on 26 April 2024 and
requested it to submit a response by 25 June 2024. The Government requested an extension
of the time limit for its response, which was granted. The Working Group received the
Government’s response on 24 July 2024, within the established time limit.
47.
In its response, the Government states that the criminal proceedings instituted against
Ms. San Miguel Sosa are related to her alleged participation in an operation known as
Operation White Armband, which had sought to (a) assassinate the Constitutional President
12 Opinions No. 6/2019 and No. 12/2019.
13 See www.ohchr.org/en/press-releases/2016/08/every-minute-counts-un-experts-raise-alarm-over-
short-term-enforced.
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of the Bolivarian Republic of Venezuela and the governor of the State of Táchira and
(b) encourage activities to destabilize the Venezuelan State.
48.
The Government notes that, on 8 February 2024, the Public Prosecution Service
requested the Second Special Procedural Court of First Instance, which has national
jurisdiction over cases of crime associated with terrorism and over cases associated with
corruption and organized crime, to issue a warrant for the arrest of Ms. San Miguel Sosa.
49.
The Government reiterates that, in the Bolivarian Republic of Venezuela, there is an
adversarial criminal justice system in which the Public Prosecution Service institutes criminal
proceedings and requests measures such as pretrial detention, but that it is the courts that, in
accordance with the law, issue rulings.
50.
The police were informed of the warrant for the arrest of Ms. San Miguel Sosa so that
it could be included in their information systems and she could be arrested. The police learned
that, on 9 February 2024, Ms. San Miguel Sosa was attempting to leave the country through
Simón Bolívar International Airport in Maiquetía. When the migration police learned of the
arrest warrant, they proceeded to prevent her from leaving the country and reported the
situation to the auxiliary criminal investigation agencies.
51.
On 9 February 2024, a commission of duly uniformed and identified officers of the
Directorate General of Military Counter-Intelligence therefore went to the international
airport in Maiquetía and, executing the arrest warrant issued by the Court, took Ms. San
Miguel Sosa into custody. At the same time, she was notified of the reasons for the arrest and
read her rights under the Constitution, the Code of Criminal Procedure and the Covenant. As
the Human Rights Committee has stated, oral notification of the reasons for an arrest satisfies
the requirement to inform the arrested person.14
52.
In this procedure, Ms. San Miguel Sosa, voluntarily and without coercion, decided not
to sign the report, prepared by the officers concerned, in which it was stated that she had been
informed of her rights. Upon arriving at the headquarters of the Directorate General of
Military Counter-Intelligence, she was informed that she could make a phone call to a
member of her family, but she replied that she did not have her phone with her or remember
any phone numbers. All these points are noted in the relevant police report.
53.
On 10 February 2024, Ms. San Miguel Sosa was taken to the forensic service for a
forensic medical assessment. On the following day, the Public Prosecution Service requested
that the initial hearing be postponed so that she and her defence attorney could consult the
case file.
54.
On 12 February 2024, Ms. San Miguel Sosa was brought before the Second Special
Procedural Court for the hearing. As she stated that she did not have private representation,
the Court appointed a public defender. The public defender objected to the preliminary
charges and requested that Ms. San Miguel Sosa be released under conditions. During the
hearing, both the accused and her lawyer were free to express their objections.
55.
Ms. San Miguel Sosa was charged with treason, criminal conspiracy, attempted
murder of the President and the governor of Táchira, terrorism and criminal association. The
Court admitted the evidence, confirmed her placement in pretrial detention and ordered that
an oral and public trial be held.
56.
Ms. San Miguel Sosa is currently being held, by court order, in the facilities of the
Centre for Remand and Convicted Prisoners and Women’s Annex of the Metropolitan Area
of Caracas I.
57.
The Government denies that the detention of Ms. San Miguel Sosa falls within
category II and claims that it is related not to her exercise of her human rights but to charges
of serious crimes against national security that have no connection to her work for an NGO.
58.
Several steps taken as part of the criminal investigation, including the collection of
testimony from other defendants in the case and the preparation of forensic reports on mobile
14 General comment No. 35 (2014), para. 26.
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phone data, shed light on Ms. San Miguel Sosa’s alleged involvement in the operation known
as Operation White Armband.
59.
The Government objects to the claim that Ms. San Miguel Sosa’s case falls within
category III and contends that she has had a fair trial, with full respect for due process and
the right to a defence. It denies that she has been forced to accept a public defender and claims
that she had access to her lawyer and the case file from the start.
60.
Furthermore, the Government denies that Ms. San Miguel Sosa has been a victim of
enforced disappearance, since the Attorney General himself has used social media to provide
information about her whereabouts and situation. In addition, as evidenced in the arrest report
prepared by the police, the arresting officers gave her the opportunity to make telephone
contact with members of her family.
61.
The Government insists that the right to consular assistance recognized in the Vienna
Convention on Consular Relations has not been violated, since Ms. San Miguel Sosa is a
Venezuelan citizen, not a foreign citizen detained in the Bolivarian Republic of Venezuela,
and that the Convention applies to a foreign national who is in a country other than that of
his or her nationality. This right is expressly limited to foreigners in principle 16 (2) of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
62.
The Government claims that the detention of Ms. San Miguel Sosa resulted neither
from discrimination nor from her work for an NGO but from suspicions of her involvement
in serious crimes. It concludes that the proceedings were in compliance with the Constitution
and international norms.
(c)
Additional comments from the source
63.
The source states that the Government, by mentioning a supposed arrest warrant,
acknowledges the existence of a criminal investigation into Ms. San Miguel Sosa, but that
the warrant was a mere notification, not an order with the characteristics of a warrant. Despite
bearing the burden of proof, the Government has not presented evidence of the warrant for
the arrest of Ms. San Miguel Sosa.
64.
The source contends that the State violated Ms. San Miguel Sosa’s right to a defence
by not informing her of the criminal proceedings or allowing her a lawyer of her choosing
from the outset of the proceedings. Furthermore, her detention was ordered even though she
had not been charged, in violation of article 236 of the Code of Criminal Procedure,
circumstances that heighten the arbitrary nature of her detention.
65.
The source points out that the Government’s submission is contradictory, as it refers
to an arrest warrant but also notes that the arrest was the result of a prohibition on leaving the
country, not of a court order. The migration authorities could only prevent her from
travelling, not take her into custody. She was arrested when she was handed over to the
Directorate General of Military Counter-Intelligence, which, in violation of the separation of
military and civilian powers, transferred her by military vehicle on a colonel’s orders, thereby
making the detention arbitrary.15
66.
The source reiterates that the Venezuelan authorities have violated Ms. San Miguel
Sosa’s right to be defended by a lawyer of her choosing. The public defender was appointed
more than three days after the arrest, in a context of pressure on the family to accept this
lawyer and to keep the situation secret.
67.
Furthermore, the public defender did not contest the order to deprive Ms. San Miguel
Sosa of her liberty or play an active role in her defence. A member of Ms. San Miguel Sosa’s
family chose attorneys for her on 14 February 2024, but the Court did not agree to this choice.
Despite the legal remedies for which the family and the lawyers filed – a constitutional
appeal, for example – the Venezuelan justice system has not allowed Ms. San Miguel Sosa
to be assisted by the lawyers of her choosing.
15 Opinion No. 26/2014. See also Inter-American Commission on Human Rights, Report on Citizen
Security and Human Rights, OEA/Ser.L/V/II, doc. 57, 31 December 2009.
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68.
Ms. San Miguel Sosa’s family member and her lawyers have lodged several
complaints with the Public Prosecution Service and the Ombudsman’s Office in which they
claim that Ms. San Miguel Sosa’s right to appoint the lawyers of her choosing was violated,
that the State failed to ensure that she could defend herself and that she did not receive the
medical care she needed for her health problems. The Consulate General of Spain also
appointed the same lawyers for Ms. San Miguel Sosa, but the judge has not agreed to this
appointment, thereby preventing her from being assisted by lawyers of her choosing, a step
that makes her deprivation of liberty arbitrary.
69.
The Government’s response makes the enforced disappearance of Ms. San Miguel
Sosa evident. In the report of the Directorate General of Military Counter-Intelligence, it is
noted that, after being transferred to the Directorate General headquarters in Caracas, she was
allowed to make a call to indicate what had happened to her but that she did not have access
to her telephone or remember any of her family members’ phone numbers. All this shows
that the State failed to report Ms. San Miguel Sosa’s whereabouts, a failure that constitutes
an enforced disappearance, even if of short duration.
70.
The State has an obligation to inform the family and lawyers of the whereabouts of
the detained person and to ensure that they can communicate with each other from the outset
of deprivation of liberty. In this case, Ms. San Miguel Sosa’s family was also arbitrarily
detained, making it impossible for her to call her relatives. In addition, Ms. San Miguel Sosa’s
mobile phone was seized by the Directorate General of Military Counter-Intelligence.
Despite her inability to contact her family, the State did not provide her with access to her
telephone or any other means of guaranteeing her right to communicate. The fact that the
Attorney General did not report her whereabouts on social media, even days after she was
arrested, is additional evidence that she was subjected to enforced disappearance.
71.
The Government’s argument regarding Ms. San Miguel Sosa’s dual nationality is
inappropriate and discriminatory, since, according to the principle that norms are to be
interpreted or applied in the manner most favourable to the individual, dual nationality should
not limit the exercise of fundamental rights.
2.
Discussion
72.
The Working Group thanks the source and the Government for their submissions.
73.
In determining whether the detention of Ms. San Miguel Sosa is arbitrary, the
Working Group has regard to the principle established in its jurisprudence to deal with
evidentiary issues. If the source has made a prima facie case for breach of international law
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations.16 Mere assertions that lawful procedures
have been followed are not sufficient to rebut the source’s allegations.
(a)
Category I
74.
The Working Group has stated that, 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. This is typically done17 through
an arrest warrant or court order (or equivalent document).18 The reasons for the arrest must
be provided immediately upon arrest and must include not only the general legal basis of the
arrest but also enough factual detail to indicate the substance of the complaint, such as the
wrongful act and the identity of an alleged victim.19
75.
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
16 A/HRC/19/57, para. 68.
17 Opinions No. 30/2018, para. 39, No. 3/2018, para. 43, and No. 88/2017, para. 27. When arrests are
made in flagrante delicto, it is not ordinarily possible to obtain a warrant.
18 Opinions No. 18/2023, para. 93, and No. 30/2017, paras. 58 and 59.
19 Opinion No. 85/2021, para. 69.
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out legally authorized deprivation of liberty be established by law and that States Parties
ensure compliance with them, including by specifying when an arrest warrant is required.20
If these procedures are not followed, detention is arbitrary and seriously undermines the
ability to conduct a proper legal defence.
76.
In the present case, the Working Group must examine the circumstances in which
Ms. San Miguel Sosa was, at some point between 5 and 6 a.m. on 9 February 2024, detained
at the international airport in Maiquetía by officers of the Bolivarian National Intelligence
Service, who neither produced a verified warrant nor caught her in the act of committing a
crime.
77.
That night, and in the same way, Ms. San Miguel Sosa’s former partner was arrested.
At 5 p.m. on 10 February, the following day, police officers deprived a number of Ms. San
Miguel Sosa’s relatives of their liberty and, finally, on 11 February, two other relatives were
arrested. All these arrests were made without a court order or equivalent document that could
justify them.
78.
Furthermore, the arrest cannot be considered to have been made in flagrante delicto,
as the Government has not provided the necessary documentation or other evidence to
support this claim. The fact is that the Government has admitted that Ms. San Miguel Sosa
was detained by “a commission of duly uniformed and identified officers of the Directorate
General of Military Counter-Intelligence” who were alerted by the migration authorities at
the airport in Maiquetía and, far from being brought before a judge, was disappeared for four
days, as will be explained below.
79.
The source asserts that when – at 5.18 p.m. on 11 February 2024 – the Attorney
General, in a message on the social network X, announced the detention of Ms. San Miguel
Sosa “on the basis of an arrest warrant”, it had been more than 48 hours since Ms. San Miguel
Sosa had been arbitrarily deprived of her liberty. The source adds that the alleged arrest
warrant was not presented to the victim when she was arrested and that the Attorney General
did not indicate where she was. In addition, the source states that Ms. San Miguel Sosa was
not brought before a judge until 12 February 2024.
80.
From those dates, it can be concluded that Ms. San Miguel Sosa was subjected to
enforced disappearance for four days and three nights, during which human rights NGOs, as
well as the relatives and friends of the detainees, were looking for them in every possible
place of detention and agents of the State failed to indicate their whereabouts. The Working
Group notes that enforced disappearance is prohibited by international law and constitutes a
particularly aggravated form of arbitrary detention.21
81.
The Working Group also notes that a deprivation of liberty accompanied by a wilful
refusal to disclose the fate or whereabouts of the persons concerned or to acknowledge their
detention has no valid legal basis under any circumstances. In addition, it is inherently
arbitrary, as it places the person outside the protection of the law, in violation of article 16 of
the Covenant and article 6 of the Universal Declaration of Human Rights. 22 The
Government’s failure to notify the detainees’ families that they have been arrested or where
they are being held is also a violation of principle 16 (1) of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment. Furthermore, the
Committee on Enforced Disappearances and the Working Group on Enforced or Involuntary
Disappearances recall that enforced disappearance constitutes a grave human rights violation
regardless of its duration.23 In its 2024 report, the Working Group on Enforced or Involuntary
Disappearances referred to Ms. San Miguel Sosa’s case as an enforced disappearance of short
duration.24
82.
Judicial oversight of detention is a central safeguard of personal liberty and is critical
to ensuring that detention has a legitimate basis. The Working Group notes that holding
people at secret locations and in circumstances undisclosed to their family is a violation of
20 Human Rights Committee, general comment No. 35 (2014), para. 23.
21 Ibid., para. 17.
22 Opinions No. 56/2023, para. 92, and No. 13/2020, para. 51.
23 CED/C/11, para. 15.
24 A/HRC/57/54/Add.4, para. 29.
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their right to contest the legality of their detention before a court or tribunal under article 9 (3)
and (4) of the Covenant.25
83.
In the present case, the Working Group is of the view that the source has made credible
claims that Ms. San Miguel Sosa was arrested without being shown an arrest warrant and that
she was also not informed of the reasons for her arrest at the time of her arrest, in breach of
article 9 of the Covenant, as she was detained at the airport for “problems with her passport”.
84.
In addition, the Working Group concludes that Ms. San Miguel Sosa was deprived of
the right to challenge the lawfulness of her detention before a court, in violation of
article 9 (3) and (4) of the Covenant, and was denied the protection of the law, in violation
of article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant.
Consequently, her right to an effective remedy, enshrined in article 8 of the Universal
Declaration of Human Rights and article 2 (3) of the Covenant, was violated.
85.
The Working Group recalls that, under article 9 (3) of the Covenant, anyone arrested
or detained on a criminal charge is to be brought promptly before a judge. As the Human
Rights Committee has stated, 48 hours is ordinarily sufficient to satisfy the requirement to
bring a detainee “promptly” before a judge after the arrest, and any delay longer must remain
absolutely exceptional and be justified under the circumstances.26
86.
In the light of its previous finding that Ms. San Miguel Sosa was subjected to a period
of enforced disappearance (for approximately four days) and that she was brought before a
judge after the established 48-hour time limit without the Government’s having provided
credible justification, the Working Group is of the view that she was not brought promptly
before a judge after being arrested, in violation of article 9 (3) of the Covenant and principle
32 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment. Consequently, the Working Group finds that the Government failed to
establish a legal basis for the arrest and detention of Ms. San Miguel Sosa. Her detention is
therefore arbitrary under category I.
(b)
Category II
87.
The source submits that the prosecution and imprisonment of Ms. San Miguel Sosa
are arbitrary under category II, as they resulted from her legitimate exercise of rights and
freedoms protected under articles 19–21 of the Universal Declaration of Human Rights and
articles 19, 21, 22 and 25 of the Covenant.
88.
In this respect, the Commission on Human Rights, at its forty-eighth session, adopted
resolution 1992/22 on the right to freedom of opinion and expression. In paragraph 7 of the
resolution, the Commission invited the Working Group on Arbitrary Detention and other
special procedures to pay particular attention to the situation of persons detained, ill-treated
or discriminated against for having exercised the right to freedom of opinion and expression.
89.
The Working Group recalls that the right to hold and express opinions, including
opinions that are not in accordance with official government policy, is protected by article 19
of the Universal Declaration of Human Rights. Consequently, the Government must respect,
protect and uphold the right to freedom of opinion and expression, even where opinions that
are not to its liking have been expressed. Restrictions on freedom of expression must not be
overly broad, they must conform to the principle of proportionality, they must be ft for their
protective purpose and they must be the least intrusive of the instruments that might be used
for that purpose.27
90.
Although the Government denies having political motivations, the source emphasizes
that Ms. San Miguel Sosa, a lawyer and activist with 35 years of experience, has been
harassed for her human rights work. After exhausting domestic remedies, she turned to
25 Opinion No. 17/2024, para. 62.
26 Human Rights Committee, general comment No. 35 (2014), paras. 32 and 33.
27 Ibid., general comment No. 34 (2011), para. 34.
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international instances, and in 2018 the Inter-American Court of Human Rights found against
the Bolivarian Republic of Venezuela in a judgment that has not yet been enforced.28
91.
The Working Group is therefore persuaded that the detention of Ms. San Miguel Sosa
is arbitrary under the criteria set out for category II, since it resulted from her exercise of her
fundamental rights, such as freedom of expression, association and political participation,
which are protected under articles 19–21 of the Universal Declaration of Human Rights and
articles 19, 21, 22 and 25 of the Covenant.
(c)
Category III
92.
As the Working Group has found that the detention of Ms. San Miguel Sosa is
arbitrary under category II, the prosecution she is facing for her exercise of her fundamental
rights should be halted. Because Ms. San Miguel Sosa is being prosecuted, however, and in
view of the claims made by the source, the Working Group will consider whether the criminal
proceedings Ms. San Miguel Sosa is facing have been fair, independent and impartial.
93.
Article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the
Covenant recognize the right of all persons charged with a criminal offence to be presumed
innocent. The Working Group has examined the source’s claims and the Government’s
rebuttals regarding the presumption of innocence in the light of the conclusions of the Human
Rights Committee. 29 The Working Group points out that 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 a reasonable doubt, ensures that the accused has the benefit of the doubt
and requires that persons accused of a criminal act be treated in accordance with this
principle.30 Furthermore, both the Committee and the Working Group have highlighted the
duty of all public authorities to refrain from prejudging the outcome of a trial by making
public statements affirming the guilt of the accused.31
94.
The source has clearly demonstrated the Attorney General’s prejudgment of Ms. San
Miguel Sosa’s case with the statements he posted to his account on the large social media
platform X. What is more, the Government itself stated that the Attorney General expressed
himself on the social media platform X, and the source’s submissions contain, attached, a
complete video posted to the video-sharing platform YouTube in which the Attorney General
can be seen offering explanations and prejudging Ms. San Miguel Sosa at a press conference,
as well as presenting evidence, making very serious legal comments, accusing her of being a
spy, declaring her guilty in public, vilifying her and calling on the Venezuelan people to view
her alleged conduct as a crime against the homeland.
95.
The Working Group is of the view that Ms. San Miguel Sosa’s right to be presumed
innocent, enshrined in the Universal Declaration of Human Rights and the Covenant, as well
as principle 32 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment, has been violated.
96.
This conclusion drawn by the Working Group is bolstered by the fact that the press
conference was broadcast on national television, even though there had been no final
adjudication of the charges. There is consequently a risk that the public and judicial officials
will be left with the impression that the accused was a criminal before there had even been
any consideration of the merits of the case in a trial guaranteeing due process.
97.
The Working Group reiterates that, according to article 14 (1) of the Covenant,
everyone is entitled to a fair and public hearing by a competent, independent and impartial
tribunal in the determination of any criminal charge brought against him or her. The Working
Group agrees that judges must not allow their decisions to be influenced by personal bias or
prejudice, harbour preconceptions about the particular case before them or act in ways that
28 Inter-American Court of Human Rights, San Miguel Sosa et al. v. Venezuela, judgment of 8 February
2018.
29 Human Rights Committee, general comment No. 32 (2007), para. 30.
30 Ibid.
31 See opinion No. 40/2019.
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improperly promote the interests of one of the parties.32 The Government clearly failed to
meet these obligations when it allowed the Attorney General not only to comment on the
proceedings but also to offer what was very nearly a full legal exposition of the case at his
press conference, during which he also delivered the verdict he had reached and publicly
vilified Ms. San Miguel Sosa, who, at the time, had not been convicted in a final judgment
(see para. 22).
98.
The Working Group insists that the right to equality before the courts and tribunals
and to a fair trial is a key element of human rights protection and serves as a procedural means
to safeguard the rule of law.33 Furthermore, the purpose of article 14 of the Covenant is to
ensure that justice is served, but it is clear that in Ms. San Miguel Sosa’s case it was not.
99.
The source claims that Ms. San Miguel Sosa was not allowed a lawyer of her
choosing. The Government replied that, because she stated that she did not have a private
attorney, a public defender was appointed for her. In additional comments, however, the
source claims that there was pressure to accept the public defender and keep the situation
secret. The Working Group notes that the right to a defence is key to ensuring a fair trial that
is conducted according to the principle of equality of the parties with a view to avoiding
biases that may affect the decision. A fair trial conducted according to the principle of legality
must ensure that the parties have the legal support of an effective and independent legal
defence lawyer who has the time to study the defence and challenge decisions, as well as the
opportunity to appeal if necessary. The Working Group recalls that all persons deprived of
their liberty have the right to the legal assistance of counsel of their choice throughout the
period of their detention, in particular immediately after their apprehension, and that such
access is to be provided without delay.34
100.
The Working Group, considering its previous finding that Ms. San Miguel Sosa was
subjected to enforced disappearance after being arrested, and that she was denied the right to
be assisted by a lawyer of her choosing as soon as she was arrested, concludes, after analysing
the information it has received, that she did not have such assistance throughout the
proceedings instituted against her. It is therefore of the view that the authorities violated her
right to a legal defence, in breach of article 14, paragraph 3 (b) of the Covenant and rule 61
of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules).
101.
The Working Group therefore finds that, in Ms. San Miguel Sosa’s case, the
non-observance of the international norms relating to the right to a fair trial, as set forth in
the Universal Declaration of Human Rights and the Covenant, is of such gravity as to confer
on the deprivation of liberty an arbitrary character under category III.
(d)
Category V
102.
Non-discrimination, equality before the law and equal protection under the law are
basic principles of democracy and the protection of human rights. Article 2 (1) of the
Covenant sets out an obligation for each State Party to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the Covenant,
without distinction of any kind.
103.
The source has argued before the Working Group that the detention of Ms. San Miguel
Sosa was discriminatory because it resulted from her defence of human rights and her
exercise of her right to freedom of opinion and expression in her active participation in the
political life of her country. After examining the facts, the Working Group is persuaded that,
as already stated by the Inter-American Court of Human Rights, Ms. San Miguel Sosa was
detained essentially because she is a lawyer and because she is, in her role as a human rights
defender, President of the NGO Control Ciudadano. This fact, in addition to the public
accusations Ms. San Miguel Sosa faced long before being tried and sentenced, makes it
32 Human Rights Committee, general comment No. 32 (2007), para. 21.
33 Ibid., para. 2.
34 A/HRC/45/16, paras. 51–53. See A/HRC/30/37, annex, paras. 67–71. See also opinion No. 38/2021,
paras. 90 and 91.
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impossible for her to be tried without any hint of discrimination. As a result, the detention of
Ms. San Miguel Sosa is arbitrary under category V.
(e)
Concluding remarks
104.
This case is one of a number of cases brought before the Working Group in recent
years concerning arbitrary detention in the Bolivarian Republic of Venezuela.35 The Working
Group is concerned that this might be a sign that arbitrary detention is widespread or
systematic in the country. The Working Group stresses that States have an obligation not to
commit acts that may constitute crimes against humanity and to prevent and punish them if
they are committed.
105.
In view of the recurrent pattern of arbitrary detention identified by the Working Group
in recent years, the Government of the Bolivarian Republic of Venezuela is urged to consider
inviting it to make an official country visit. Such visits are an opportunity for the Working
Group to engage in direct constructive dialogue with the Government and with
representatives of civil society, with the aim of better understanding the situation of
deprivation of liberty in the country.
3.
Disposition
106.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Rocío San Miguel Sosa, being in contravention
of articles 2, 3, 6, 7, 9–11 and 19–21 of the Universal Declaration of Human Rights
and articles 2, 9, 14, 19, 21, 22, 25 and 26 of the Covenant, is arbitrary and falls within
categories I, II, III and V.
107.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of Ms. San Miguel Sosa 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 Covenant.
108.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. San Miguel Sosa immediately and
accord her an enforceable right to compensation and other reparations, in accordance with
international law.
109.
The Working Group urges the Government of the Bolivarian Republic of Venezuela
to ensure a full and independent investigation of the circumstances surrounding the arbitrary
deprivation of liberty of Ms. San Miguel Sosa and to take appropriate measures against those
responsible for the violation of her rights.
110.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
111.
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 Ms. San Miguel Sosa has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. San Miguel
Sosa;
(c)
Whether an investigation has been conducted into the violation of Ms. San
Miguel Sosa’s rights and, if so, the outcome of the investigation;
35 Opinions No. 73/2020, No. 18/2020, No. 81/2019, No. 80/2019, No. 75/2019, No. 13/2019,
No. 86/2018, No. 72/2018, No. 41/2018, No. 24/2018, 87/2017 and No. 84/2017.
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(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.
112.
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.
113.
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 of any failure to take action.
114.
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.36
[Adopted on 2 April 2025]
36 Human Rights Council resolution 51/8, paras. 6 and 9.