Practice Relating to Rule 98. Enforced Disappearance
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the  International Covenant on Civil and Political Rights and Article 27(2) of the  American Convention on Human Rights, the guarantee to the [following] rights must not be restricted:
6. The … prohibition of the practice of enforced disappearance of persons.
Venezuela’s Penal Code (2005) states:
Any civilian or military public authority or any other person at the service of the State that unlawfully deprives another person of his or her liberty and refuses to acknowledge the detention or to provide information on the fate or situation of the disappeared person, thereby impeding the exercise of the person’s rights and constitutional and legal guarantees, shall be punished with fifteen to twenty-five years’ imprisonment.
The same penalty shall apply to members of groups or associations with terrorist, insurgent or subversive aims who forcefully make a person disappear by means of abduction or kidnapping. Whoever acts as an accomplice or covers up the crime shall be punished with twelve to eighteen years’ imprisonment.
The crime hereby established shall be considered to be continuous as long as the fate or location of the victim is not established.
No order or instruction from a civilian, military or other public authority may be invoked as justification for enforced disappearances.
Prosecution and penalties imposed for this crime shall not fall under statutes of limitations and those responsible for its commission shall not be subject to any benefit, including pardons or amnesties.
If a person who, having participated in the commission of an enforced disappearance, assists in the person’s reappearance or voluntarily provides information that facilitates the clarification of enforced disappearance, he or she may benefit from a two-thirds reduction of the penalty established in this article.
Venezuela’s Constitution (2009) states: “The public authorities, whether military, civilian or of any other kind, even during a state of emergency, exception or restriction … are prohibited from committing, permitting or tolerating the forced disappearance of persons.”
The Constitution further states: “A state of internal or external commotion may be declared in the event of an internal or external [armed] conflict seriously endangering the security of the Nation, its citizens or its institutions.”
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
55. With regard to the protection of rights enshrined in the Constitution of the Bolivarian Republic of Venezuela in states of emergency, articles 337 to 339 provide that guarantees contained in the Constitution may be temporarily suspended, with the exception of “those relating to the right to life, the prohibition of the holding of persons incommunicado or torture, the right to due process, the right to information and other intangible human rights”.
56. On the question of legislative action to give effect to this constitutional provision, it is important to note that, under the present Government, no state of emergency has been decreed, notwithstanding the fuel shortage during the 2002 oil strike or coup d’état.
57. The Venezuelan State legislated on the matter and in 2001 the States of Emergency Act entered into force, setting out in its article 7 the relevant guiding principles. Under that article, and in accordance with article 339 of the Constitution of the Bolivarian Republic of Venezuela, article 4, paragraph 2, of the International Covenant on Civil and Political Rights and article 27, paragraph 2, of the American Convention on Human Rights, no restrictions can be placed on guarantees relating inter alia to … the prohibition of the practice of enforced disappearance of persons …
58. Continuing with the interpretation of constitutional precepts, article 338 covers the three kinds of states of emergency and establishes, in accordance with the principle of gradualism, factual circumstances that may justify them and their limitation in time … [A] state of internal or external disturbance may be declared in the event of internal or external conflict that seriously endangers the security of the nation, its citizens or institutions, for a period of up to 90 days, renewable for the same period of time.
89. … It should be noted that, since the reform of the Criminal Code in 2000, the offence of enforced disappearance has been included as an autonomous offence that does not allow exemptions of responsibility on grounds of higher orders or instructions issued by civil, military or other authorities.
[footnotes in original omitted]