Rocío San Miguel, lawyer and president of the Venezuelan Civil Association Control Ciudadano, became the latest victim of enforced disappearance in Venezuela along with several of her relatives after their detention on February 9. Early that day, Ms. San Miguel was arrested at the Simón Bolívar International Airport when she was waiting to board a flight with her daughter. Two days later, Attorney General Tarek William Saab reported through his X account that the activist had been detained “following an arrest warrant against her.”

Immediately, some people close to the ruling party began to assure that the reports of her enforced disappearance were nothing more than a failed “media show” while Saab denounced “a fierce campaign” against the institutions to “delegitimize their measures (…) to combat violence and terrorism.”

However, a review of the provisions of the National Constitution, the Venezuelan Criminal Code and international human rights treaties such as the Inter-American Convention on Forced Disappearance of Persons reveals that Saab’s statement is far from enough to consider that the detention of Rocío San Miguel was lawful and should not be classified as a forced disappearance.

From the beginning

Before explaining why Rocío San Miguel and some of her relatives became victims of forced disappearance, it is helpful to refresh the definition of this very serious human rights violation.

Article 2 of the Inter-American Convention, ratified by Venezuela in June 1998, defines forced disappearance as:

“[T]he act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.”

Military dictatorships and authoritarian regimes have used this practice as a strategy to instill terror in citizens given that “the feeling of insecurity generated by this practice is not limited to the close relatives of the disappeared, but also affects their communities and society as a whole,” the United Nations explains.

This helps to understand why forced disappearance is a human rights violation, which becomes much more serious in the case of a systematic and widespread attack or in the presence of a State policy that supports it, in which case it can also constitute a crime against humanity under article 7.1.i of the Rome Statute that created the International Criminal Court (ICC).

Saab’s omissions

Article 2 of the Inter-American Convention defines four elements that give place to the crime of forced disappearance: the deprivation of a person’s liberty is conducted by officials or persons acting on behalf of the State or with its consent; the authorities’ refusal to acknowledge the detention; the denial to provide information about the detainee, and the refusal to give information on the whereabouts of the person.

In this regard, it must be clarified that the presence of the first element plus any of the following is enough to verify the existence of a forced disappearance. Thus, the occurrence of a detention coupled with, for example, the lack of information about the place of detention of the person is enough to consider the case a forced disappearance.

Mr. Saab acknowledged on February 11 that Rocío San Miguel was in the hands of the authorities but omitted providing any other information, essential to cease the presumption of a forced disappearance.

First, the prosecutor failed to clarify which security agency carried out the detention of the president of Control Ciudadano and which court ordered the arrest. He also failed to specify the whereabouts of the activist or whether she had been presented before a judge within the first 48 hours after the detention under the provision of the national Constitution and the Organic Code of Criminal Procedures. On February 11, the prosecutor only informed of the arrest of the activist on his X account.

On February 12 and 13, the Venezuelan Attorney General published a new post and statement assuring that his office has acted “in strict observance of human rights and constitutional guarantees,” without answering the questions raised above.

Although the Public Ministry issued two statements about the detention of Rocío San Miguel, none of them indicated her whereabouts or reported on her condition or the conditions of her detention, suggesting that there was a deliberate intention not to report her whereabouts.

The Attorney General only mentioned that the activist was charged with the crimes of treason, conspiracy, terrorism and criminal association, among others, and that he requested her preventive detention, which was accepted by the Second Control Court on Terrorism.

In his statement, Saab reported the preventive detention of Mr. Alejandro José González De Canales Plaza, a retired military officer and Ms. San Miguel’s ex-husband, for the investigation of his possible involvement in the alleged commission of the crimes of disclosing political and military secrets related to the security of the nation, obstruction of the administration of justice and conspiracy to commit a crime.

The Attorney General also pointed out that four other people connected with the detention of Rocío San Miguel would be released with the condition of appearing periodically before the Court. He did not identify these individuals but they were later found to be the daughter of the human rights activist, Miranda Díaz San Miguel, and three more people of her family entourage (her brothers Miguel Ángel and Alberto San Miguel Quigosos and Víctor Díaz Paruta, her daughter’s father). He also omitted to clarify their whereabouts, the security agency that conducted their detention and the time and cause of their arrest.

The description of the situation suggests that the forced disappearance was not limited to Rocío San Miguel but also included her relatives, whose whereabouts were never informed, as well as the conditions of their detention and health in a timely and clear manner.

It is worth noting that, regarding the crime of forced disappearance, the Venezuelan Constitution does not justify the crime of forced disappearance in any case, neither by military or police authority nor in situations of states of exception or in the case of an order or instruction to commit it. In this sense, Article 45 of the Constitution determines that:

“The public authority, whether civil or military, even in a state of emergency, exception or restriction of guarantees, is prohibited from practicing, allowing or tolerating the forced disappearance of people. An official who receives an order or instruction to practice it has the obligation to disobey and report it to the competent authorities. The moral and material authors, their accomplices and the concealers of the crime of forced disappearance of persons, as well as the intention to commit the crime in question, will be punished under the law.”

The limits established by the article for those who detain a person so that a forced disappearance does not take place and the clear prohibitions to the authorities reveal the seriousness of this human rights violation consisting of isolating the detainee to break them and take them to a state of total helplessness that generates a feeling of desperation that makes them susceptible to accepting any imposition by those who have them under their control.

Every minute counts

The omission of the Venezuelan prosecutor in the San Miguel case should not come as a surprise given his past position regarding forced disappearances, which became clear during his participation in the fifth Periodic Review of the implementation of the International Covenant on Civil and Political Rights by Venezuela, held at the UN Human Rights Committee in October 2023.

Saab affirmed that in some cases “a person is detained and goes missing for a few hours, according to his relatives, but then he reappears, a case file is open and he is brought before a judge”, rejecting the situation as a case of forced disappearance and questioning the concept of “short-term forced disappearance” and the “mutation” of the provisions of international treaties intended to “single out Venezuela.”

He confirmed his reasoning through his February 14 declarations in which he alleged that forced disappearances occurred in the so-called Fourth Republic, before the advent of Chavista ruling. He also used the occasion to lash out at the work of non-governmental organizations.

However, 2016 declarations by UN experts on forced disappearances show that the prosecutor’s position is wrong.

“There is no time limit, no matter how short, for an enforced disappearance to occur. Every minute counts when a person is put outside the protection of the law. And when a person is disappeared, every anguished minute spent by his or her relatives without news of that person is a minute too long.”

The arrest of Rocío San Miguel has set off alarms inside and outside the country and provoked a wave of calls for her release. The Independent International Fact-Finding Mission on Venezuela, the United Nations Office of the High Commissioner for Human Rights (OHCHR), the Inter-American Commission on Human Rights (IACHR), the European Union and hundreds of organizations and individuals have expressed their concern.

A well-known pattern of human rights violations

In the case of Rocío San Miguel, the authorities have once again committed a series of violations of domestic and international legal provisions, which, according to United Nations bodies such as the OHCHR and the Fact-Finding Mission, constitute a systematic pattern to repress the opposition, dissidents or anyone perceived as such.

Mr. Saab’s first mention of the arrest took place in the final hours of Sunday, February 11. However, the arrest occurred in the early morning of Friday 9, according to reports by San Miguel’s lawyer, Juan González Taguaruco. This means that the time elapsed between one event and the next far exceeds the limit established in the legislation for the presentation of a detainee before a judge.

Although these were non-business days, courts on call for these matters should guarantee the presentation of the detainees within the legal time of 48 hours.

The case also saw the violation of due process after the legal period for presenting the detainee before a judge was not met.

In his statement, Saab did not clarify whether San Miguel was allowed to be represented by her lawyers during the presentation hearing held on Monday, February 12 (more than 72 hours after the arrest), where her detention for investigation was confirmed. However, San Miguel’s lawyer denounced that he stayed at the Court until the evening but was never informed of the hearing and decided to leave. According to the defense, the hearing took place at the headquarters of the Bolivarian Intelligence Agency (Sebin) instead of the Palace of Justice, and for this reason, a public defender was imposed on his client. This represents a violation of the right to defense established in Article 49.1 of the Venezuelan Constitution:

“Due process shall apply to all judicial and administrative actions;

In consequence:

1. Defense and legal assistance are rights that must be observed at all stages and levels of the investigation and process. Every person has the right to be notified of the charges for which they are being investigated, to access evidence, and to have the appropriate time and means to exercise their defense. Evidence obtained through violation of due process will be null and void. “Every person found guilty has the right to appeal the ruling, with the exceptions established in this Constitution and the law.”

Added to this is the fact that Ms. San Miguel was brought before a terrorism court, a jurisdiction created in violation of the Constitution and international standards, as denounced by OHCHR in a September 2020 report.

Everything described so far represents another violation of due process, especially the provisions of Article 44.2 of the Constitution, which states that:

“Every detained person has the right to immediately communicate with their family, lawyer or a person of their trust, and they, in turn, have the right to be informed of the whereabouts of the detainee, to be notified immediately of the reasons of the detention and to leave a written record in the case file about the physical and mental state of the person detained, either by themselves or with the help of specialists. The competent authority will keep a public record of any detention carried out, which includes the identity of the detained person, place, time, conditions and officials who carried it out.”

The rule indicates that “immediately” after the detention, the person has the right to be in communication with their family and lawyers. Likewise, the provision commands the authorities to immediately inform the place of detention.

Also, it is worth noting that Rocío San Miguel holds Spanish nationality, therefore, under the provisions of Article 36 of the Vienna Convention on Consular Relations, the Venezuelan State must notify the consular services of Spain in Venezuela about the arrest and allow them to communicate with the detainee, paying a visit to the detention center and even the possibility of providing an adequate defense. From the information available, Rocío San Miguel did not have contact with the outside world, not even with her lawyers, in violation of the Vienna Convention on Consular Relations.

On the afternoon of February 13, the defense team of Rocío San Miguel and other relatives learned about the release of the activist’s brothers Miguel Ángel and Alberto San Miguel Quigosos, her daughter and her daughter’s father, with the condition of reporting periodically to Court and a prohibition of leaving the country and making statements to the media. His defense reported that the headquarters of the Military Counterintelligence Intelligence Directorate (DGCIM) was the place of confinement of Rocío San Miguel and Alejandro González De Canales Plaza. Ms. San Miguel was later transferred to El Helicoide, a center of the Bolivarian National Intelligence Service (Sebin).

The arrest of a good part of Rocío San Miguel’s family is striking as the authorities did not provide any reason for the measure, at least in the case of her daughter, her daughter’s father and her two brothers, which suggests a practice known as sippenhaft, which has its origins in Nazism, already employed in Venezuela on other occasions as denounced by the Fact-Finding Mission in its second report, consisting of the detention of the relatives of an opponent, dissident or anyone perceived as such a form of psychological torture.

How does it affect Venezuelans?

The case of Rocío San Miguel represents another blow to the severely restricted civic space and organized Venezuelan civil society and a show of the authorities’ unwillingness to comply with the legal system that governs them. In this case, the police and judicial agencies have once again resorted to the practice of short-term forced disappearance, a crime against humanity that, according to UN bodies, is part of the repertoire to persecute the opposition, dissidence or anyone perceived as such.

The case against this human rights activist is emblematic because Ms. San Miguel won a trial against the Venezuelan State before the Inter-American Court of Human Rights (Inter-American Court) -whose ruling is yet to be complied with- but has also been awarded precautionary measures from the Inter-American Commission on Human Rights (IACHR), giving the Venezuelan authorities a clear mandate regarding their obligation to protect her.

The practice of forced disappearance not only endangers the detainee but also the entire society. Thus, remaining silent in the face of such serious crimes should not be an option.

Translated by José Rafael Medina