Opinion; Subjects: VIET NAM, 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.17-09274(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-eighth session, 19-28 April 2017
Opinion No. 26/2017 concerning Nguyen Van Dai (Viet Nam)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 30 January 2017 the
Working Group transmitted to the Government of Viet Nam a communication concerning
Nguyen Van Dai. The Government replied to the communication on 4 April 2017. 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, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2017/26
General Assembly
Distr.: General
8 June 2017
Original: English
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2
Submissions
Communication from the source
4.
Nguyen Van Dai is a 46-year-old lawyer, human rights defender and blogger. He is
a citizen of Viet Nam, usually residing in Hanoi.
5.
According to the source, Mr. Dai has faced harassment, surveillance, imprisonment
and acts of violence for over 10 years for undertaking human rights work in Viet Nam.
Prior to 2007, he worked as a human rights lawyer representing clients in court to defend
their right to religious freedom.
6.
In March 2007, Mr. Dai was charged and convicted of “conducting propaganda
against the Socialist Republic of Viet Nam”, pursuant to article 88 of the Penal Code of
Viet Nam and his licence to practise law was revoked. He was detained for eight years,
from March 2007 until March 2015, both in prison and under house arrest. Mr. Dai
continued his human rights work while under house arrest. In April 2013, he co-founded
“Brotherhood for Democracy”, an organization that provides training to community
members on their legal rights in Viet Nam.
7.
From his release in March 2015 until his most recent arrest on 16 December 2015,
Mr. Dai was involved in a campaign advocating stronger human rights protection in Viet
Nam. He wrote extensively in blogs and on social media about the need for Viet Nam to
transition from a one-party State to a multiparty democracy.
8.
The source submits that, in the period 2015-2016, there was a growing crackdown
by the Government of Viet Nam on human rights defenders, journalists and bloggers. In the
weeks leading up to the arrest of Mr. Dai on 16 December 2015, he had experienced an
escalation in harassment and violence. On 6 December 2015, Mr. Dai was reportedly
beaten by masked men when returning home after leading a class to educate citizens about
their human rights under the Constitution.
9.
On 15 December 2015, the day before his arrest, Mr. Dai and others met with
European Union delegates participating in the fifth round of the European Union and Viet
Nam dialogue on human rights, in the spirit of the European Union-Vietnam Partnership
and Cooperation Agreement that was signed in 2012.
Arrest and detention
10.
According to the source, on 16 December 2015, at approximately 8.50 a.m., Mr. Dai
was approached by plain clothes police officers shortly after he had left his house to attend
the second day of the European Union-Vietnam dialogue on human rights. The police
officers escorted him back to his house and, in the presence of his wife, arrested him. The
source notes that the police officers read aloud an arrest warrant. The police proceeded to
search the couple’s house and confiscated several of Mr. Dai’s belongings. According to
the source, the police did not show a search warrant during the search and there was no
indication that they were in possession of one, as required under article 141 of the Criminal
Procedure Code of Viet Nam.
11.
The police then transported Mr. Dai to Detention Centre B14 in Hanoi — also
known as Thanh Liet Detention Centre — a pretrial detention centre commonly used to
hold political detainees and detainees held on account of their religion.
12.
The source notes that the Ministry of Public Security provided the family of Mr. Dai
with a memorandum stating the names of the team who had carried out the arrest and
search, the names of other witnesses and a list of confiscated items. The source states that,
to the extent of its knowledge, no copy of the arrest warrant was provided.
13.
Based on statements made by the Vietnamese officials at the time of Mr. Dai’s
arrest, the source submits that the Government appears to rely on article 81 (a) of the
Criminal Procedure Code, which provides for arrest in urgent cases “when there exist
grounds to believe that such persons are preparing to commit very serious or exceptionally
serious offences”. Under article 80 (2) of the Code, an arrest warrant must specify “the
date, full name and post of the warrant issuers, the full name, address of the arrestee and the
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reason for the arrest”. Furthermore, within 24 hours of arresting a person, the investigating
bodies must take the person’s statement and issue a decision to keep the arrestee in custody
or release him or her (see art. 83 (1) of the Code).
Incommunicado detention
14.
According to the source, the Vietnamese authorities have been holding Mr. Dai in
incommunicado detention since 16 December 2015 without providing any legal basis for
his detention. It is not known whether Mr. Dai has been formally charged with an offence
or is being detained pending investigation of an alleged offence.
15.
The source notes that statements made by Vietnamese officials at the time of the
arrest suggest that Mr. Dai may have been charged with, or is being investigated in relation
to, an offence under article 88 of the Penal Code, which is punishable by up to 20 years of
imprisonment. Article 88 criminalizes the following acts as “conducting propaganda against
the Socialist Republic of Viet Nam”:
(a)
Propagating against, distorting and/or defaming the people’s administration;
(b)
Propagating psychological warfare and spreading fabricated news in order to
foment confusion among people;
(c)
Making, storing and/or circulating documents and/or cultural products with
contents against Viet Nam.
16.
Article 88 of the Criminal Procedure Code provides that a person may be held in
“temporary detention” during the investigation of an offence. For an “especially serious
offence”, a person can be held in temporary detention for a period of up to 16 months,
under article 120 of the Criminal Procedure Code.
17.
According to the source, Mr. Dai has been denied access to a lawyer since his arrest.
Three lawyers have reportedly applied to represent him but all have been refused the
required defence counsel certificate. Under article 56 (4) of the Criminal Procedure Code, it
is necessary for a defence counsel to be granted a defence counsel certificate by the
investigating body, procuracy or court.
18.
The source notes that Mr. Dai has also been denied access to his family since his
arrest. Although his family is allowed to send food to him twice a month, they have no way
of knowing if the food is reaching him or if it is adequate in the context of his
circumstances.
19.
According to the source, although the current state of Mr. Dai’s health is unknown,
it is of great concern as he suffers from hepatitis B. It is not known whether he is receiving
appropriate medical treatment for his condition. Furthermore, as mentioned above, Mr. Dai
had been violently beaten 10 days prior to his arrest and he had not fully recovered from the
attack when he was arrested. The source highlights that prisoners of conscience in Viet
Nam are routinely denied medical care and some prisoners have reported being told by the
authorities that they would not receive any medical treatment unless they confessed to their
alleged crimes. The source notes the existence of numerous reports concerning the poor
conditions and ill-treatment of political prisoners in detention centres in Viet Nam.
Legal framework
20.
Viet Nam acceded to the International Covenant on Civil and Political Rights on 24
September 1982. The source submits that Viet Nam is also bound by the principles of the
Universal Declaration of Human Rights, which have acquired the status of customary
international law, as well as by the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.
21.
Article 69 of the Constitution of Viet Nam guarantees the right to freedom of
expression, thought, religion and association. However, the source notes that the guarantee
is rendered meaningless by domestic legislation, which expressly limits the right to freedom
of expression. Article 1 of the 1999 Mass Media Law requires all Vietnamese media to
serve as “the mouthpiece of Party organizations”. The source considers that restrictions on
online media are of even greater severity. Decree No. 72 of 2011 restricts the anonymity of
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sources and excludes bloggers from press freedom protections. Internet service providers
are legally required to block access to websites that are considered politically unacceptable.
22.
In addition to restrictive media and Internet laws, the source highlights that articles
79 (intent to overthrow the people’s administration) and 88 (conducting propaganda against
the State) of the Penal Code are frequently invoked to imprison bloggers and activists for
the peaceful exercise of their right to freedom of expression. The source quotes opinion
40/2016, in which the Working Group on Arbitrary Detention urged the Government of
Viet Nam to bring article 79 and other provisions, which it described as “vague and overly
broad and … used to restrict the exercise of human rights”, in conformity with the State’s
commitments under international human rights law. Despite that opinion, the source notes
that Viet Nam has not taken any steps to repeal or amend article 88 of the Penal Code nor
other laws criminalizing free expression.
23.
Similarly, the source considers that, although the Constitution guarantees the right to
a fair trial (art. 31) and prohibits arbitrary detention (art. 20), Viet Nam engages in
systematic interference with those fundamental rights and has imposed significant
limitations on their exercise.
24.
The source asserts that the detention of Mr. Dai constitutes an arbitrary deprivation
of his liberty under categories II and III.
Arbitrary detention under category II
25.
The source submits that the detention of Mr. Dai is a violation of his right to
freedom of opinion and expression. According to the source, the purpose of the arrest and
detention of Mr. Dai was to punish him for exercising his rights under article 19 of the
Covenant, to silence him by imposing an additional period of detention and to deter others
from speaking out against the State. Mr. Dai has been vocal in expressing his views on
democracy and the state of human rights in Viet Nam for more than 10 years. He had
previously been subject to attacks, arrest and detention. In the nine months prior to his
arrest, Mr. Dai actively pursued a campaign for the protection of human rights in Viet Nam.
He expressed views and opinions on democracy and other political issues relating to human
rights in a range of forums.
26.
The source submits that the arrest and detention of Mr. Dai fail to satisfy the
requirements of article 19 (3) of the Covenant, which requires any restriction imposed on
the right to freedom of expression to be “provided by law”, designed to achieve a legitimate
aim and meet the requirements of necessity and proportionality.
27.
The source considers that there is no legal basis for the restriction of Mr. Dai’s right
to freedom of expression. Notwithstanding that position, the source submits that an arrest
and/or detention on the basis of a charge under article 88 of the Penal Code would not
satisfy the “provided by law” requirement under article 19 (3) of the Covenant. In
paragraph 25 of its general comment No. 34 (2011) on freedoms of opinion and expression,
the Human Rights Committee states that, for a legislative provision to be characterized as a
“law”, it must be formulated with sufficient precision to enable an individual to regulate his
conduct accordingly and the provision cannot confer unfettered discretion for the restriction
of freedom of expression on those charged with its execution. According to the source,
article 88 of the Penal Code is overly broad as to prevent both foreknowledge of the
prohibited acts and an effective defence and therefore fails to meet the test of “provided by
law”. There is no objective test by which to determine whether an individual’s conduct
constitutes “distortion” of the people’s administration or “psychological warfare” under
article 88 of the Penal Code.
28.
The source also considers that the arrest and detention of Mr. Dai do not achieve a
legitimate aim under article 19 (3) of the Covenant. The source recalls that, according to
paragraph 23 of general comment No. 34, “paragraph 3 may never be invoked as a
justification for the muzzling of any advocacy of multiparty democracy, democratic tenets
and human rights. Nor, under any circumstance, can an attack on a person, because of his
exercise of his or her freedom of opinion or expression, including such forms of attack as
arbitrary arrest … be compatible with article 19.”
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29.
The source highlights that article 19 (3) requires that any restriction be necessary
and proportionate to the achievement of the stated aim(s). According to paragraph 34 of
general comment No. 34, they must be the “least intrusive instrument amongst those which
might achieve their protective function”. Notwithstanding its position that the arrest and
detention of Mr. Dai was not carried out with a view to achieving a legitimate aim, the
source submits that, even if the restriction was in pursuit of a legitimate aim, the measures
adopted were disproportionate. The Human Rights Committee has emphasized that the type
of expression is highly relevant in assessing whether a restriction is proportionate. Some
types of expressions, such as discussion of government policies and reporting on human
rights, should never be subject to restrictions (see Human Rights Council resolution 12/16,
para. 5 (p) (i)).
30.
Finally, the source considers that the detention of Mr. Dai constitutes arbitrary
detention under category II because his deprivation of liberty results from the exercise of
his right to freedom of opinion and expression (art. 19 of the Covenant and art. 19 of the
Universal Declaration of Human Rights).
31.
The source submits that the detention of Mr. Dai is a violation of his right to take
part in the conduct of public affairs. According to the source, Mr. Dai is being detained as a
result of his work providing human rights education to members of the community and
advocating for political change to protect and improve the human rights situation in the
country. The source considers that those restrictions are neither objective nor reasonable.
32.
Therefore, the source considers that the detention of Mr. Dai also constitutes
arbitrary detention under category II because his deprivation of liberty results from the
exercise of his right to take part in the conduct of public affairs (art. 25 of the Covenant and
art. 21 of the Universal Declaration of Human Rights).
Arbitrary detention under category III
33.
The source submits that the detention of Mr. Dai is arbitrary under category III, as it
violates his right to a fair trial, particularly his right to be informed promptly of the nature
and cause of the charge and be tried without undue delay.
34.
According to the source, Mr. Dai has been detained incommunicado since his arrest
on 16 December 2015. The source notes that Mr. Dai has not been informed of the alleged
criminal act(s) underpinning the charge or accusations against him, his trial date, the reason
for or the likely duration of his detention, nor has he been brought before a court to
consider his pretrial release. Pretrial detention has been reportedly imposed on Mr. Dai
without a public hearing or any evidence being provided of risks of flight, interference with
evidence and/or the recurrence of crime nor has a determination been made that detention is
the only way to prevent the established risk(s).
35.
The source considers that the detention of Mr. Dai under such conditions is a clear
violation of his right to be informed promptly of the nature and cause of the charge against
him and of his right to be tried without undue delay (art. 14 (3) (a) and (b) of the Covenant,
art. 11 of the Universal Declaration of Human Rights and principles 10 and 11 of the Body
of Principles). It is also contrary to article 48 (2) (a) of the Criminal Procedure Code of Viet
Nam, which provides that a person held in custody has the right to be informed of the
reasons for his or her custody.
36.
The source submits that the detention of Mr. Dai is also a violation of the right to
adequate time and facilities for the preparation of his defence and to communicate with
counsel of his own choosing without restriction. According to the source, Mr. Dai has been
denied any access to legal counsel, in violation of article 14 (3) (b) of the Covenant, article
11 of the Universal Declaration of Human Rights and principles 11, 15 and 18 of the Body
of Principles.
37.
The source recalls that article 14 (3) (b) of the Covenant provides that the required
guarantees for a fair hearing include adequate time and facilities for the preparation of a
defence and the right of the accused to communicate with counsel of his or her own
choosing. The source highlights that the Body of Principles provide that communication
with counsel “shall not be denied for more than a matter of days” (principle 15) and that the
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right to communicate with legal counsel is exercisable “without delay … [and] may not be
suspended or restricted save in exceptional circumstances, to be specified by law or lawful
regulations, when it is considered indispensable by a judicial or other authority in order to
maintain security and good order” (principle 18). The right to access to counsel without
delay is also recognized in the Basic Principles on the Role of Lawyers, which provide that
access to a lawyer shall not be later than 48 hours from the time of arrest or detention
(principle 7).
38.
According to the source, the current detention of Mr. Dai also contravenes the
following rights contained in the Criminal Procedure Code of Viet Nam: the right of
detainees and persons held in custody to “defend by themselves or ask other persons to
defend them” (arts. 11 and 48 (2) (d)); and the right of a defence counsel to “meet the
persons kept in custody; to meet the accused or defendants being under temporary
detention” (art. 58 (2) (f)).
39.
The source submits that the detention of Mr. Dai is also a violation of the right to
communicate with the outside world, particularly with his family. The source notes that
prison officials have denied visitation requests by the family of Mr. Dai, who has not seen
his family since his arrest on 16 December 2015. The source submits that the detention of
Mr. Dai under such conditions is a clear violation of principles 15 and 19 of the Body of
Principles, which provide that communication with the outside world, particularly with
family, “shall not be denied for more than a matter of days” (principle 15) and that a
detained or imprisoned person shall have the right to be visited by and communicate with
members of his family in particular, and be given adequate opportunity to communicate
with the outside world (principle 19). The source highlights that in opinion 33/2013, the
Working Group on Arbitrary Detention determined that incommunicado detention was a
clear violation of principles 15 and 19 of the Body of Principles.
40.
On 6 January 2016, the Special Rapporteurs on the promotion and protection of the
right to freedom of opinion and expression, on the rights to freedom of peaceful assembly
and of association and on the situation of human rights defenders addressed a joint urgent
appeal to the Government of Viet Nam (see A/HRC/32/53, p. 43, VNM 3/2015). They
expressed serious concern about the alleged physical assault of Mr. Dai and three other
individuals by police officers on 6 December 2015, and about the arrest and detention of
Mr. Dai on 16 December 2015. They highlighted that the arrest and detention of Mr. Dai
appeared to be in retaliation for his cooperation with representatives of the European Union
in the context of the annual European Union-Viet Nam human rights dialogue.
Response from the Government
41.
On 30 January 2017, the Working Group transmitted the allegations of the source to
the Government of Viet Nam through its communication procedure. The Working Group
requested the Government to provide detailed information, by 30 March 2017, about the
current situation of Mr. Dai and any comments on the allegations of the source.
42.
The response of the Government to the regular communication was received by the
Working Group on 4 April 2017, that is, after the deadline given by the Working Group.
The Government had not requested an extension of the deadline in accordance with
paragraph 16 of the Working Group’s methods of work. As such, the Working Group
considers that the response in the present case was late. Given the failure on the part of the
Government to request an extension of the deadline, the Working Group is unable to accept
the response as having been presented in a timely manner. Nonetheless, as indicated in
paragraphs 15 and 16 of its methods of work and in conformity with its usual practice, the
Working Group may render an opinion on the basis of the information submitted by the
source and all the information obtained in relation to a given case.
Further information from the source
43.
On 6 April 2017, the Working Group transmitted the Government’s response to the
source for further comments. The source submitted a reply on 18 April 2017.
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Discussion
44.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
45.
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 (see
A/HRC/19/57, para. 68).
46.
The Working Group notes that witnesses stated that an arrest warrant for Mr. Dai
was read aloud at the time of his arrest. However, since his arrest on 16 December 2015,
Mr. Dai remains in detention without any charges brought against him. Holding Mr. Dai
without any charges means that Mr. Dai has been effectively deprived of the possibility to
challenge his detention as the State has not officially invoked any reasons for his continued
detention.
47.
The Working Group, in its deliberation No. 9 concerning the definition and scope of
arbitrary deprivation of liberty under customary international law, has unequivocally stated
that the prohibition of arbitrary detention is part of customary international law and,
constitutes a jus cogens norm (see A/HRC/22/44, para. 51). For a State to be able to claim
that its detention of an individual is not arbitrary, it must invoke a legal basis for the
detention of the said individual in an official manner. In the present case, Mr. Dai has spent
over sixteen months in detention without any official charges brought against him. The
Working Group therefore concludes that the detention of Mr. Dai falls under category I as it
lacks any legal basis.
48.
The present case also raises the issue of the compatibility of article 88 of the 1999
Penal Code of Viet Nam1 with the rights to freedom of opinion and expression, freedom of
peaceful assembly and freedom of association that are enshrined in international human
rights law, including the Universal Declaration of Human Rights and the Covenant . Article
88 of the Penal Code states as follows:
Article 88. Conducting propaganda against the Socialist Republic of Viet Nam
1.
Those who commit one of the following acts against the Socialist Republic of
Viet Nam shall be sentenced to between three and twelve years of imprisonment:
(a)
Propagating against, distorting and/or defaming the people’s
administration;
(b)
Propagating psychological warfare and spreading fabricated news in
order to foment confusion among people;
(c)
Making, storing and/or circulating documents and/or cultural products
with contents against the Socialist Republic of Viet Nam.
2.
In the case of committing more serious crimes, the offenders shall be
sentenced to between ten and twenty years of imprisonment.
49.
The Working Group has repeatedly stated in its jurisprudence, including in opinions
relating to Viet Nam, that even when the arrest and detention of a person is carried out in
conformity with national legislation, the Working Group is mandated to ensure that the
detention is also consistent with international human rights law.2
1 The primary basis for the deprivation of liberty in Viet Nam is the Penal Code and Criminal
Procedure Code. In November 2015, the National Assembly of Viet Nam adopted amendments to the
1999 Penal Code and the 2003 Criminal Procedure Code. However, in June 2016, the authorities
announced that they had discovered “technical errors” in both laws and postponed their entry into
force until the errors have been corrected. Therefore, the 1999 Penal Code and the 2003 Criminal
Procedure Code were in force at the time of the adoption of the present opinion.
2 See, for example, opinions No. 42/2012, No. 46/2011 and No. 13/2007.
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50.
The Working Group has considered the application of article 88 of the Penal Code in
numerous cases of deprivation of liberty in recent years.3 In fact, a similar case concerning
article 88 of the Penal Code is being considered by the Working Group at the present
session.4
51.
In all those cases, the Working Group found that the provisions of article 88 of the
Penal Code were so vague and overly broad that their application could result in penalties
being imposed on persons who had merely exercised their legitimate rights to freedom of
opinion or expression. The Working Group also pointed out that the Government did not
allege or provide evidence of any violent action on the part of the petitioners and that, in the
absence of such information, their charges and convictions under article 88 could not be
regarded as consistent with the Universal Declaration of Human Rights or the Covenant.
Furthermore, in its report on its visit to Viet Nam in October 1994, the Working Group
noted that vague and imprecise national security laws did not distinguish between violent
acts that might constitute a threat to national security and the peaceful exercise of the right
to freedom of opinion and of expression (see E/CN.4/1995/31/Add.4, paras. 58-60). It
requested the Government to amend its laws to clearly define offences relating to national
security and to state what was prohibited without any ambiguity.
52.
In the present case, the Working Group considers that Mr. Dai’s activity as human
rights defender and blogger falls within the boundaries of his rights to freedom of opinion
and expression, peaceful assembly and association that are protected by articles 19 and 20
of the Universal Declaration of Human Rights and articles 19, 21 and 22 of the Covenant.
In the absence of any convincing information indicating that Mr. Dai had engaged in
violent activity, or that his work directly resulted in violence or was a threat to national
security, the Working Group concludes that his arrest and detention were intended to
restrict his activity as a human rights defender.
53.
Furthermore, the Working Group notes that the Government may not claim the
legitimate restrictions provided for in article 19 (3) of the Covenant. In paragraph 23 of its
general comment No. 34, the Human Rights Committee states that “paragraph 3 may never
be invoked as a justification for the muzzling of any advocacy of multi-party democracy,
democratic tenets and human rights. Nor, under any circumstance, can an attack on a
person, because of the exercise of his or her freedom of opinion or expression, including
such forms of attack as arbitrary arrest, torture, threats to life and killing, be compatible
with article 19”. In addition, in its resolution 12/16, the Human Rights Council calls on
States to refrain from imposing restrictions which are not consistent with article 19 (3) of
the Covenant, including restrictions on discussion of government policies and political
debate; reporting on human rights; peaceful demonstrations or political activities, and
expression of opinion and dissent.
54.
The Working Group notes that there is wide-ranging concern about the application
of national security legislation in Viet Nam to restrict the exercise of human rights. In the
universal periodic review of Viet Nam in February 2014, 39 recommendations were made
to improve the enjoyment of the rights to freedom of opinion and expression, peaceful
assembly and association in Viet Nam. Several of them related specifically to the review
and repeal of vague provisions on national security offences in the Penal Code, including
article 88, the release of political prisoners, protection of human rights defenders and the
need to implement the opinions of the Working Group on Arbitrary Detention (see
A/HRC/26/6, paras. 143.4, 143.34, 143.115-118 and 143.144-176).
55.
Moreover, on 6 January 2016, the Special Rapporteurs on the promotion and
protection of the right to freedom of opinion and expression, on the rights to freedom of
peaceful assembly and of association and on the situation of human rights defender sent a
joint urgent appeal to the Government in relation to Mr. Dai (see para. 40 above).
3 See, for example, opinions No. 26/2013, No. 27/2012, No. 24/2011, No. 6/2010, No. 1/2009 and No.
1/2003.
4 Opinion No. 27/2017.
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56.
In calling upon the Government to take measures to guarantee Mr. Dai’s right to
personal security and ensure that he was not arbitrarily deprived of his liberty, the Special
Rapporteurs noted that such attacks appeared to be increasingly used in the country as a
means of intimidating human rights defenders to discourage them from peacefully
exercising their rights to freedoms of expression and peaceful assembly to conduct their
legitimate activities.
57.
The Working Group considers that Mr. Dai is being detained for the legitimate
exercise of his rights under articles 19 and 20 of the Universal Declaration of Human
Rights and articles 19, 21 and 22 of the Covenant. Therefore, in its view, his deprivation of
liberty falls within category II. Moreover, the repetitive and systematic harassment, assault
and detention of Mr. Dai by the Vietnamese authorities for more than 10 years, which was
alleged by the source and not contested by the Government, indicate that Mr. Dai’s present
detention is part of a pattern of persecution for his activities as a human rights defender.
Accordingly, his case falls within category V.
58.
The Working Group also considers that the source’s allegations disclose violations
of Mr. Dai’s right to a fair trial under articles 9, 10 and 11 of the Universal Declaration of
Human Rights and articles 9 and 14 of the Covenant. More specifically, Mr. Dai has now
been held in detention for over sixteen months and was not brought promptly before a
judge, as required by article 9 (3) of the Covenant. In addition, during his detention, neither
Mr. Dai nor his family has had an opportunity to challenge the lawfulness of his detention,
contrary to article 9 (4) of the Covenant.
59.
The Working Group recalls that, according to the United Nations Basic Principles
and Guidelines on Remedies and Procedures on the Rights of Anyone Deprived of their
Liberty to Bring Proceedings before a Court, the right to challenge the lawfulness of
detention before a court is a self-standing human right, which is essential to preserve
legality in a democratic society (see A/HRC/30/37, paras. 2-3).
60.
The Working Group also recalls that, according to article 9 (3) of the Covenant,
pretrial detention should be the exception, rather than the rule; it should be as short as
possible; and it should not be mandatory for all defendants charged with certain offences.5
As stated by the Human Rights Committee in paragraph 38 of its general comment No. 35
(2015) on liberty and security of person, pretrial detention must be based on an
individualized determination that it is reasonable and necessary, taking into account all the
circumstances, for such purposes as to prevent flight, interference with evidence or the
recurrence of crime. Courts must examine whether alternatives to pretrial detention — inter
alia, bail — would render detention unnecessary in a particular case.
61.
No such assessment has been done in Mr. Dai’s case as he was not brought before a
court by the authorities. In fact, the authorities have already detained Mr. Dai beyond the
initial four-month period provided for by Vietnamese law during which a person may be
detained for investigation. The ability of the authorities to extend a detention order for up to
16 months without judicial review of the detention, if they deem it necessary in order to
continue the investigation, is not consistent with article 9 (3) of the Covenant.
62.
The Working Group notes that Mr. Dai has been held incommunicado for over 16
months. Not only has the Working Group consistently held that holding a person
incommunicado breaches his or her right to challenge the lawfulness of the detention before
a judge, 6 but articles 10 and 11 of the Universal Declaration of Human Rights also
implicitly confirm the impermissibility of incommunicado detention. In addition, the
Committee against Torture has made it clear that incommunicado detention creates
conditions that may lead to the violations of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (see A/54/44, para. 182 (a)), while
the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment has consistently stated that the use of incommunicado detention is unlawful
(see for example, A/54/426, para. 42; and A/HRC/13/39/Add.5, para. 156). Furthermore, in
5 See, for example, opinions No. 40/2016, No. 46/2015 and No. 45/2015.
6 See, for example, opinions No. 56/2016, No. 53/2016 and No. 10/2017.
A/HRC/WGAD/2017/26
10
paragraph 35 of its general comment No. 35, the Human Rights Committee states that
incommunicado detention that prevents prompt presentation before a judge inherently
violates article 9 (3) of the Covenant.
63.
The Working Group points out that incommunicado detention is also a violation of
Mr. Dai’s right to contact with the outside world as set out in applicable standards such as
the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules) (rules 58 and 61) and of the Body of Principles (principles 15, 18 and 19).
The argument put forward by the Government that Mr. Dai has had three visits from his
wife during his 16 months of incommunicado detention and has therefore had contact with
the outside world, is misplaced.
64.
Furthermore, the denial of representation by a lawyer constitutes a violation of
article 14 (3) (b) of the Covenant, principle 17.1 of the Body of Principles, as well as
principle 9 of the United Nations Basic Principles and Guidelines on Remedies and
Procedures on the Rights of Anyone Deprived of their Liberty to Bring Proceedings before
a Court.
65.
The Working Group therefore concludes that those violations of the right to a fair
trial are of such gravity as to give Mr. Dai’s deprivation of liberty an arbitrary character
according to category III.
66.
The Working Group also expresses its concern about the health of Mr. Dai, who
suffers from hepatitis B, for which he needs medical care and treatment. The Working
Group reminds the Government of Viet Nam that, in accordance with article 10 (1) of the
Covenant, all persons deprived of their liberty must be treated with humanity and with
respect for the inherent dignity of the human person. That includes the provision of proper
medical care to those in detention. The Working Group calls upon the Government to
release Mr. Dai immediately and to ensure that he receives the necessary medical attention
after his release.
67.
This case is one of several cases that have been brought before the Working Group
in recent years concerning the arbitrary deprivation of liberty of persons in Viet Nam.7 The
Working Group recalls that under certain circumstances, widespread or systematic
imprisonment or other severe deprivation of liberty in violation of the rules of international
law may constitute crimes against humanity. 8 The Working Group would welcome the
opportunity to engage constructively with the Government to address issues such as the
vague and imprecise provisions regarding national security offences and crimes, and the
denial of fair trial rights, which continue to result in the arbitrary deprivation of liberty in
Viet Nam.
68.
On 15 April 2015, the Working Group sent a request to the Government of Viet
Nam to undertake a country visit to follow up its visit to Viet Nam in October 1994. In its
response of 23 June 2015, the Government informed the Working Group that it planned to
invite other special procedure mandate holders who had made earlier requests to visit, but
that it would consider issuing an invitation to the Working Group at an appropriate time.
Given the ongoing expressions of concern relating to the arbitrary deprivation of liberty in
Viet Nam, it would seem that now is an appropriate time for the Government to work with
international human rights mechanisms to bring its laws and practices into conformity with
the Universal Declaration of Human Rights and the Covenant.
Disposition
69.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Nguyen Van Dai, being in contravention of articles 9,
10, 11, 19 and 20 of the Universal Declaration of Human Rights and of articles 9,
7 See, for example, opinions No. 27/2017, No. 26/2013, No. 27/2012, No. 24/2011, No. 6/2010, No.
1/2009 and No. 1/2003.
8 See, for example, opinion No. 47/2012, para. 22.
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11
14, 19, 21 and 22 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, II, III and V.
70.
The Working Group requests the Government of Viet Nam to take the steps
necessary to remedy the situation of Mr. Dai 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.
71.
The Working Group considers that, taking into account all the circumstances of the
case, especially the risk of irreparable harm to Mr. Dai’s health and physical integrity, the
appropriate remedy would be to release Mr. Dai immediately, and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
Follow-up procedure
72.
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 Mr. Dai has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Dai;
(c)
Whether an investigation has been conducted into the violation of Mr. Dai’s
rights 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 Viet Nam with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
73.
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.
74.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the 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.
75.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and 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.9
[Adopted on 25 April 2017]
9 See Human Rights Council resolution 33/30, paras. 3 and 7.