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.21-15992(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 40/2021 concerning Pham Doan Trang (Viet Nam)
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 42/22.
2.
In accordance with its methods of work,1 on 26 April 2021, the Working Group
transmitted to the Government of Viet Nam a communication concerning Pham Doan Trang.
The Government replied to the communication on 22 July 2021. Viet Nam 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/40
General Assembly
Distr.: General
4 November 2021
Original: English
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2
Submissions
Communication from the source
4.
Pham Doan Trang is a citizen of Viet Nam, born in 1978. She usually resides in Ho
Chi Minh City. The source informs the Working Group that Ms. Trang is an author, blogger,
journalist and pro-democracy activist. She is the editor of the online magazine Luat Khoa
and the founder of Liberal Publishing House. As a journalist, she contributes regularly to
several independent news sites. She has also written many books, including one defending
the rights of lesbian, gay, bisexual and transgender communities in Viet Nam. She was
awarded the Reporters Without Borders 2019 Press Freedom Prize for Impact.
5.
According to the source, on 6 October 2020, at about 11.30 p.m., Ms. Trang was
arrested by the investigation bureau of the Hanoi police at her home in Ho Chi Minh City.
The authorities did not show her an arrest warrant or any other decision by a public authority.
Ms. Trang was subsequently charged with making, storing, distributing or disseminating
information, documents and items against the State, under article 117 of the Criminal Code,
which was adopted in 2015 and went into effect in 2018. The source notes that if convicted,
Ms. Trang could face up to 20 years in prison.
6.
The source notes that Ms. Trang’s arrest occurred a few hours after the annual human
rights dialogue between the United States of America and Viet Nam was held in Hanoi.
Participants at the meeting addressed several human rights issues, including the rule of law,
freedom of expression and association, religious freedom and labour rights.
7.
The source further submits that Ms. Trang was later transferred to Detention Centre
No. 1 in the Tu Liem District of Hanoi. The detention was ordered by the People’s Court of
Ho Chi Minh City. Since her arrest, Ms. Trang has been detained incommunicado and has
had no access to a lawyer.
8.
The source notes that prior to her current detention, Ms. Trang had been subjected to
arrests, violent physical attacks and other acts of harassment by the authorities on numerous
occasions. She was first arrested in August 2009 for her advocacy against bauxite mining
projects. In May 2016, police arrested her in Ninh Binh Province to prevent her from
attending a meeting with the then President of the United States in Hanoi. In February and
May 2018, she was briefly detained, twice, by police. In August 2018, she was severely
beaten by police because of her activities as an online journalist.
9.
The source notes that, pursuant to article 74 of the Criminal Procedure Code, when
the confidentiality of investigations into a national security breach is vital, the head of the
procuracy is authorized to sanction defence counsels’ engagement in legal proceedings after
the completion of investigations. The source also states that article 117 (formerly article 88)
of the Criminal Code is in the chapter on national security, therefore access to lawyers is not
guaranteed. Even if a lawyer is granted permission to assist Ms. Trang, his or her access to
the accused, in practice, would not be guaranteed.
10.
The source adds that, pursuant to article 22 of the Law on Enforcement of Custody
and Temporary Detention, family visitation is dependent on the discretion of the head of the
detention facility. If the investigative agency requests the detention facility not to allow a
detainee to meet with relatives, the head of the facility head may agree to the request. Thus,
it is possible Ms. Trang will not be able to see her family before trial. The source notes that
it is unlikely the head of the facility would reject such a request by the police.
11.
The source informs the Working Group that Ms. Trang remains in incommunicado
detention. The People’s Procuracy of Hanoi has yet to issue an indictment prosecuting her.
No trial has commenced. It is expected to be conducted by the provincial-level People’s Court
of Hanoi.
12.
The source notes that, if the verdict is appealed, the case will be heard by the People’s
High Court in Hanoi. The source asserts that it would not be possible for the case to reach
the Supreme People’s Court, the highest court in the land, as such escalation requires motions
filed by either the Prosecutor-General or the Chief Justice, who lack independence.
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13.
The source asserts that Ms. Trang’s arrest and detention is arbitrary and falls under
categories I, II and III of the Working Group. In the context of category I, the source notes
that the Working Group has found detentions arbitrary under this category when one or more
of the following violations occurred: (a) the Government held an individual incommunicado
for a period of time; (b) the Government arrested an individual without a warrant and without
judicial authorization for such deprivation of liberty; and/or (c) vague laws were used to
prosecute individuals.2
14.
The source notes that Ms. Trang has been held incommunicado since her arrest and
has not been brought before a judge to adjudicate the legality of her pretrial detention. In
addition, she is facing charges under article 117 of the Criminal Code, which is too vague to
provide a legal basis for prosecution.
15.
The source recalls that under article 9 (3) of the International Covenant on Civil and
Political Rights, anyone arrested or detained on a criminal charge is to be brought promptly
before a judge or other officer authorized by law to exercise judicial power. This obligation
for a habeas corpus hearing without delay is reiterated in article 9 (4) of the Covenant.
16.
The source also recalls that the Human Rights Committee has determined that
incommunicado detention inherently violates article 9 (3) of the Covenant. The guarantee
under article 9 (3) not only serves as a check on arbitrary detention, but also provides an
important safeguard for other related rights, such as freedom from torture. The prohibition
against incommunicado detention is also articulated in principle 15 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment, which
prohibits the denial of communication between a detainee and his family or counsel for more
than a few days.
17.
The source reiterates that Ms. Trang was arrested on 6 October 2020. She was never
brought before a judge to confirm the legal basis for her arrest or for her continuing pretrial
detention. Ms. Trang has not yet been indicted for the offence of conducting propaganda
against the Government. Since her detention, she has been held entirely incommunicado and
has not been permitted to receive any family visits or visits from her defence lawyer.
18.
The source also points to the overly broad and vague wording of the Criminal Code.
It notes that the article 15 (1) of the International Covenant on Civil and Political Rights and
article 11 (2) of the Universal Declaration of Human Rights both guarantee individuals the
right to know what the law is and what conduct violates the law. These articles protect citizens
from prosecution for any criminal offence which did not constitute an offence, under national
or international law, at the time when it was committed. The Human Rights Committee has
stated that any substantive grounds for arrest or detention must be prescribed by law and
should be defined with sufficient precision to avoid overly broad or arbitrary interpretation
or application.3
19.
The source also recalls that the Special Rapporteur on the promotion and protection
of human rights and fundamental freedoms while countering terrorism has explained that the
standard for legal certainty requires framing laws in such a way that the law is adequately
accessible so that the individual has a proper indication of how the law limits his or her
conduct; and that the law is formulated with sufficient precision so that the individual can
regulate his or her conduct.4
20.
The source notes that article 117 of the Criminal Code defines the crime of conducting
propaganda so vaguely as to make it impossible for any individual to reasonably foresee what
behaviour is criminal. No instruction is given as to what constitutes defaming the
administration,
propagating
psychological
warfare,
fomenting
confusion,
or
documents/products that are against the Government. There is no intent component and no
measure of what a prosecutor must prove to convict.
21.
The source asserts that for Ms. Trang and others, article 117 of the Criminal Code has
resulted in arbitrary prosecutions for acts that are unforeseeable as criminal and are protected
2 See opinions No. 60/2013 and No. 3/2013.
3 General comment No. 35 (2014), para. 22.
4 E/CN.4/2006/98, para. 46.
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4
under the Covenant, the Universal Declaration of Human Rights and other international
norms and standards. The source reiterates that because the crime of “conducting
propaganda” is so vague, article 117 cannot supply the legal basis for detention resulting
from a conviction on such a charge.
22.
The source further asserts that the detention of Ms. Trang also falls under category II
of the Working Group because it resulted from her exercise of the fundamental freedoms of
opinion, expression and association guaranteed under the Universal Declaration of Human
Rights and the Covenant.
23.
The source recalls that freedom of opinion and expression is protected by international
instruments and includes the freedom to seek, receive, and impart information of all kinds,
either orally or in writing.5 Article 19 (2) of the Covenant provides that everyone is to have
the right to freedom of expression. Article 19 of the Universal Declaration of Human Rights
provides an analogous guarantee of freedom of opinion and expression.
24.
The source notes that the Human Rights Committee has clarified that article 19 of the
Covenant protects all forms of expression and the means of their dissemination. 6 This
includes all forms of audiovisual, electronic and Internet-based modes of expression. The
source argues that article 19 of the Covenant is of special importance for human rights
defenders, and notes that journalists who report on human rights abuses are explicitly
recognized as human rights defenders. The Working Group has confirmed the right of human
rights defenders to investigate, gather information regarding and report on human rights
violations.7 The Human Rights Committee has also specifically recognized that article 19 (2)
protects the work of journalists8 and includes the right of individuals to criticize or openly
and publicly evaluate their Governments without fear of interference or punishment.9
25.
The source notes that the imprisonment of human rights defenders for speech-related
reasons is subject to heightened scrutiny,10 especially where there is a pattern of harassment
by national authorities targeting such individuals.11
26.
The source argues that in the present case, the Government detained and prosecuted
Ms. Trang as a direct result of her activity as a citizen journalist. It also argues that the charge
of “conducting propaganda” under article 117 of the Criminal Code violates an individual’s
freedom of expression because it vaguely criminalizes a broad range of speech and
information-sharing acts. Thus, whether or not the underlying factual allegations are true, the
Government has deprived Ms. Trang of her liberty under a law that is itself incompatible with
the right to freedom of expression guaranteed under the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
27.
The source asserts that Ms. Trang was targeted for her independent reporting; her
detention thus violated her right to freedom of expression both de jure and de facto. Ms.
Trang posted articles on blogs and social media pages, reporting on instances of corruption,
and advocated for plural democracy, depolitization of the military, free elections and press
freedom.
28.
The source argues that Ms. Trang’s detention is an attempt to silence her and punish
her for sharing pro-democracy and anti-corruption information as an independent reporter,
an activity that is expressly protected as free expression. The source submits that Ms. Trang’s
detention for her critical expression also fits the pattern of the Government attempting to
silence journalists by detaining them.
29.
Furthermore, the source submits that Ms. Trang was detained because she exercised
her right to freedom of assembly and association under article 20 (1) of the Universal
Declaration of Human Rights. Similarly, article 22 (1) of the Covenant provides that
5 A/HRC/30/69, para. 8 (b).
6 General comment No. 34 (2011), para. 12.
7 Opinion No. 8/2009, para. 18.
8 See Mavlonov and Sa’di v. Uzbekistan (CCPR/C/95/D/1334/2004).
9 Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), para. 6.7.
10 Opinions No. 62/2012, para. 39, and No. 21/2011, para. 29.
11 Opinion No. 39/2012, para. 45.
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everyone is to have the right to freedom of association with others. The source notes that in
its resolution 15/21, the Human Rights Council specifically called for States to respect and
fully protect the rights of all individuals to assemble freely, including persons espousing
minority or dissenting views and human rights defenders.12
30.
The source notes that national legislation ensures the right to freedom of association,
and article 25 of the Constitution affirms that citizens have the right to assemble, form
associations and hold demonstrations.
31.
The source argues that the Government has criminalized and imprisoned individuals
for associating with other journalists and political organizations that are critical of the
Government. This is evidenced by the treatment of Ms. Trang, who, after attending a meeting
on human rights, was detained on grounds related to anti-State propaganda.
32.
The source submits that Ms. Trang has the right to associate with political groups of
her choice and express her political opinions through such organizations. Nevertheless, the
Government has targeted her as a means to punish her for her involvement and
communication with people and organizations that are critical of the Government. By
punishing Ms. Trang for communication and association with pro-democracy bloggers, the
authorities violated her right to freedom of association, in violation of article 20 (1) of the
Universal Declaration of Human Rights, article 22 (1) of the Covenant and article 25 of the
Constitution.
33.
In relation to category III of the Working Group, the source recalls that the minimum
international standards of due process applicable in the present case are established by the
Covenant, the Universal Declaration of Human Rights, the Body of Principles and the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules). The Constitution also guarantees certain due process rights, including the right not to
be arrested without prior authorization (art. 20), the right to presumption of innocence (art.
31 (1)), the right to a prompt, impartial and public trial for anyone charged with a criminal
offence (art. 31 (2)), and the right to the assistance of a defence counsel (art. 31 (4)).
34.
The source submits that Ms. Trang’s right to habeas corpus and her right to be released
pending trial have been violated, citing article 9 (3) of the Covenant, and article 9 (4) for non-
criminal defendants. The Human Rights Committee has interpreted the term “promptly” to
be within about 48 hours, except in exceptional circumstances, and has noted that this right
shall be observed even before formal charges have been asserted, so long as the person is
arrested or detained on suspicion of criminal activity.13 Moreover, incommunicado detention
inherently violates article 9 (3) of the Covenant.14 The right to habeas corpus is reiterated in
principles 4, 11, 32 (1) and 37 of the Body of Principles. Aside from acting as a check on
arbitrary detention, these provisions also safeguard other related rights, such as freedom from
torture.15
35.
The source further recalls that in addition to the right to habeas corpus, article 9 (3) of
the Covenant also enshrines the right to an individual’s release pending trial, providing that
it shall not be the general rule that persons awaiting trial shall be detained in custody. The
Human Rights Committee has found that detention pending trial 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. Pretrial detention should not be mandatory for all defendants charged
with a particular crime, without regard to individual circumstances.16 Principles 38 and 39 of
the Body of Principles further confirm that, except in special cases, a criminal detainee is
entitled to release pending trial.
36.
The source states that since her arrest, Ms. Trang has not been brought before a judge
to determine the legality of her arrest and continuing detention. As at the date of submission
12 See also Human Rights Committee, general comment No. 25 (1996).
13 General comment No. 35 (2014), paras. 32–33.
14 Ibid., para. 35.
15 Ibid., para. 34. Other rights that may be at risk are those guaranteed by articles 6, 7, 10 and 14 of the
Covenant (ibid., para. 35).
16 General comment No. 35 (2014), para. 38.
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of the complaint to the Working Group, the information and communications department had
not issued its determination regarding whether her posts constituted propaganda; neither had
Ms. Trang been formally indicted. She has nevertheless been held in detention without access
to her family or an attorney throughout the entire period. There has been no bail hearing, nor
has any publicly released individualized determination been made about why such extended
pretrial detention was justified. None of Ms. Trang’s pretrial detention period has been
authorized by a judicial officer.
37.
The source concludes that by refusing to bring Ms. Trang promptly before a judge to
challenge the legality of her detention, and by denying her release pending trial, the
authorities violated article 9 (3) and (4) of the Covenant and principles 11, 32, 37, 38 and 39
of the Body of Principles.
38.
The source asserts that the authorities violated Ms. Trang’s right to be visited by
family and to communicate with the outside world. It notes that principle 19 of the Body of
Principles provides that detained or imprisoned persons are to have the right to be visited by
and to correspond with, in particular, members of their family subject to reasonable
conditions and restrictions as specified by law or lawful regulations. Similarly, this right is
protected by the Nelson Mandela Rules, notably rule 43, stating that disciplinary sanctions
or restrictive measures are not to include the prohibition of family contact; rule 58, stating
that prisoners shall be allowed, under necessary supervision, to communicate with their
family and friends at regular intervals; and rule 106, stating that special attention is to be paid
to the maintenance and improvement of such relations between a prisoner and his or her
family as are desirable in the best interests of both.
39.
The source reiterates that Ms. Trang has been held incommunicado since her arrest
and her family has been prohibited from meeting with her during the entire period of her
pretrial detention. The source thus argues that by detaining Ms. Trang incommunicado prior
to her trial, the authorities have violated principle 19 of the Body of Principles, as well as
rules 43, 58 and 106 of the Nelson Mandela Rules.
40.
Moreover, the source submits that the authorities violated Ms. Trang’s right to be tried
without undue delay. It cites article 14 (3) (c) of the Covenant, which sets out the guarantee
of every defendant to be tried without undue delay. This guarantee relates not only to the
time between the formal charging of the accused and the time by which a trial should
commence, but also the time until the final judgement on appeal.17 The right to be tried
without undue delay is reiterated in the Body of Principles and is guaranteed in article 31 of
the Constitution.
41.
The source recalls that the trial of. Ms. Trang is pending. The authorities have not
explained the reasons for the delay. The source asserts that such circumstances do not exist.
The source also argues that the need for trial without undue delay was exacerbated by the
fact that Ms. Trang was never given a bail hearing and was forced to remain in detention after
her arrest. The source concludes that the authorities have thus violated article 14 (3) (c) of
the Covenant, principle 38 of the Body of Principles and article 31 of the Constitution.
42.
Finally, the source asserts that the authorities violated Ms. Trang’s right to
communicate with and be assisted by counsel in accordance with to article 14 (3) (b) and (d)
of the Covenant. Such guarantees require that the accused be granted prompt access to
counsel. The Human Rights Committee has stated that counsel should be able to meet their
clients in private and to communicate with the accused in conditions that fully respect the
confidentiality of their communications.18 Principle 18 (3) of the Body of Principles further
provides for the right of a detainee to be assisted by and communicate with his or her legal
counsel without delay or censorship and in full confidentiality and that such right may not be
suspended or restricted save in exceptional circumstances.
43.
The source states that in the present case, Ms. Trang has not been allowed to meet
with her lawyer since her detention. It argues that the authorities thus violated and continue
to violate article 14 (3) (b) of the Covenant and principle 18 (3) of the Body of Principles.
17 Human Rights Committee, general comment No. 32 (2007), para. 35; see also para. 27.
18 Ibid., para. 34.
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Response from the Government
44.
On 26 April 2021, the Working Group transmitted the source’s allegations to the
Government under its regular communication procedure, requesting the Government to
provide detailed information by 25 June 2021 about Ms. Trang and clarify the legal
provisions justifying her continued detention, as well as its compatibility with the obligations
of Viet Nam under international human rights law, and in particular with regard to the treaties
ratified by the State.
45.
On 22 June 2021, the Government requested an extension of the deadline for its
response. The extension was granted, with a new deadline of 26 July 2021.
46.
In its response, dated 22 July 2021, the Government emphasizes that Ms. Trang’s
arrest, investigation and prosecution were not related to the exercise of fundamental freedoms
that are recognized in national law and international human rights law. The Government
asserts that competent authorities arrested Ms. Trang to investigate acts violating national
laws, not because she had exercised fundamental freedoms or had been a “human rights
defender”. The Government submits that the arrest and investigation of Ms. Trang were
carried out on sound legal grounds and supervised by competent authorities.
47.
The Government submits that any person violating national laws will be brought to
trial in order to ensure the strictness of the laws. This entails regular legal proceedings carried
out in any State under the rule of law to clarify the nature of the case, to collect evidence in
order to determine the seriousness of the violations of the laws and persons relevant to the
case, and ensure that the charges, investigation, prosecution, adjudication and sentence
enforcement correspond precisely to the acts committed, in accordance with the laws.
48.
The Government submits that on 7 October 2020, Hanoi police officers, in
collaboration with relevant units, executed a temporary detention warrant and a search
warrant against Ms. Trang to investigate violations of article 88 of the Criminal Code of 1999
and article 117 of the Criminal Code of 2015 (formerly article 88). It notes that the filing of
criminal charges against Ms. Trang and her temporary detention were approved by competent
authorities and were carried out in compliance with procedures and formalities as defined by
the laws of Viet Nam. The Government submits that the arrest and temporary detention of
Ms. Trang were and are necessary to investigate and clarify any of her acts that breach the
laws. The arrest and temporary detention warrants were approved by the People’s Procuracy;
that judicial agency is empowered to supervise criminal procedural activities, as stipulated in
articles 107 and 109 of the 2013 Constitution and relevant laws. It notes that the filing of
criminal charges against perpetrators of criminal acts in order to investigate is a regular legal
proceeding clearly provided for in legislation and conducted based on the principle of
presumption of innocence.
49.
The Government submits that the purpose of the arrest of Ms. Trang is to investigate
violations of the law, and abuse of social networks and the Internet to post fake news and
information that distorts the truth with a view to cause public anxiety, to slander, and to harm
the reputation of individuals and organizations. It submits that these acts were aimed at
overthrowing the State. The Government clarifies that Ms. Trang was neither a “journalist”
nor a “human rights defender”, but a normal citizen whose acts violated laws.
50.
The Government submits that Ms. Trang is being temporarily detained in the
temporary detention centre of the Hanoi police. Her health is normal and is being regularly
monitored. She has received gifts from her family on numerous occasions. Her rights are
upheld in accordance with the relevant legal provisions and competent authorities supervise
the temporary detention, and ensure the rights, of Ms. Trang.
51.
The Government rejects the allegations that Ms. Trang has been detained
incommunicado. It submits that article 74 of the Code of Criminal Procedure provides that
defence counsels engage in legal proceedings upon the prosecution of suspects. It notes that,
due to the seriousness and complicated nature of national security offences, the Code of
Criminal Procedure provides that the head of the Procuracy is authorized, when the
confidentiality of investigations into national security breach is vital, to sanction defence
counsels’ engagement in legal proceedings after the investigation ends. Pursuant to article
173 (5) of the Code of Criminal Procedure, if no grounds for termination of detention exist
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in a special case of an extremely severe felony related to a breach of national security, the
head of the Supreme People’s Procuracy shall decide to maintain detention until the
investigation closes. The Government submits that pursuant to article 173 (7), if detention is
deemed unnecessary, the investigative authority must request the Procuracy to terminate the
detention and release the detainee in a timely manner; the detainee must be released when
the detention expires.
52.
The Government submits that Ms. Trang’s defence counsels will be granted access to
the case files and will be able to defend her once the investigations are completed. Moreover,
Ms. Trang is entitled to appeal.
53.
The Government rejects the allegation that it has criminalized and imprisoned
individuals and organizations exercising the right to freedom of expression and the right to
freedom of peaceful assembly. It submits that the exercise of the legitimate and lawful right
to freedom of expression carries with it special duties and responsibilities as provided by the
laws of countries and may be subject to certain restrictions, including the protection of
national security or of public order, or of public health or morals. It argues that these are
consistent with article 19 (3) of the Covenant and article 29 of the Universal Declaration of
Human Rights. The Government always respects and protects the rights to freedom of
expression and freedom of the press, as stipulated in articles 25 and 28 of the Constitution
and in other legislation, such as the press law, the publishing law, the law on access to
information and the law on referendums. Press agencies of Viet Nam are active in expressing
their opinions on the policies and plans of the Government as well as on draft laws. Through
the mass media, people are free to express their aspirations and their opinions on political,
economic and social issues.
54.
Finally, the Government submits that no one will be arrested for exercising the right
to freedom of expression or for contributions to building the policies, directives or laws of
Viet Nam. It clarifies that article 88 of the Criminal Code of 1999 and article 117 of the
Criminal Code of 2015 have clear provisions on determining offences and cover only acts
that seriously infringe national security and the legitimate rights and interests of individuals
and organizations. The allegations made by the source on the legal and judicial system of
Viet Nam are biased and contain negative preconceived ideas about Viet Nam because they
only take into account the forms of acts and ignore their nature and purpose.
Additional comments from the source
55.
The source notes that the Government bears the burden of proof to rebut the
allegations and that it has failed to do so. It resubmits that the detention of Ms. Trang is
arbitrary and that she should be released immediately.
Discussion
56.
The Working Group thanks the source and the Government for their submissions.
57.
As a preliminary matter, the Working Group refers to the Government’s submission
that Ms. Trang’s case is currently in the investigation process. The Government argues that
on the basis of ensuring that the investigation process is conducted in compliance with the
laws and the principle of presumption of innocence, and respecting the rights and interests of
Ms. Trang, competent authorities cannot provide detailed information regarding this case to
the press and irrelevant parties. The Government requests special procedure mandate holders
not to make assessments when the final conclusions of the investigation agencies are not
available, nor to make assessments based on unverified information.
58.
As the Working Group has previously stated in its jurisprudence, it is not sufficient
for the Government to argue that its national legislation prevents it from providing a detailed
explanation of the actions of the national authorities.19 The Working Group was created to
serve the needs of victims of arbitrary arrests and detention worldwide and for Member States
to hold each other accountable; Member States must therefore have intended for the
mechanism to resolve the disputes brought by victims. That was also the motivation of the
19 Opinions No. 59/2020, para. 53 and No. 70/2018, para. 32.
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9
Human Rights Council when it reminded States to cooperate fully with the Working Group
in its resolution 33/30. The Government’s contention that its national legislation prevented it
from providing detailed information is incompatible with that requirement.20
59.
In determining whether Ms. Trang’s detention is arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal with evidentiary issues. If the
source has presented a prima facie case for breach of the international requirements
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.21
60.
While the Government requests that the Working Group refrain from making
assessments before the conclusion of the investigation or based on unverified information,
the Working Group would like to clarify that there is no provision in the methods of work
that prevents it from considering communications due to the lack of exhaustion of domestic
remedies or processes in the country concerned, such as an ongoing investigation in the
present case.
Category I
61.
The source alleges that Ms. Trang was arrested on 6 October 2020, at about 11.30
p.m., in her home by the investigation bureau of the Hanoi police. The Government states
that she was arrested on 7 October 2020, one day later. The Working Group considers that
this inconsistency in dates does not materially affect its findings. According to the source,
the arresting officers did not show Ms. Trang an arrest warrant at the time of her arrest, or
any other decision by a public authority. The Government does not rebut this allegation.
Instead, it merely asserts that a temporary detention warrant and search warrant were
executed against her, providing no information on whether she was shown these documents
during her arrest.
62.
The Working Group therefore considers that the source has presented a credible prima
facie case that the authorities did not present an arrest warrant at the time of Ms. Trang’s
arrest. Moreover, the source submits that Ms. Trang has not been brought before a judge to
confirm the legal basis of her arrest or her continuing pretrial detention and that she was
subsequently charged with making, storing, distributing or disseminating information,
documents and items against the State under article 117 of the Criminal Code and offences
that carry a penalty of up to 20 years in prison upon conviction. The source noted that Ms.
Trang’s indictment for the offence of conducting propaganda against the Government has not
yet been issued.
63.
The Working Group finds that the source has presented a credible case that Ms. Trang
was not informed of the reasons for her arrest when she was arrested, nor was she promptly
informed of the charges against her. The purpose of prompt notification of charges is to
facilitate the determination of whether detention is appropriate.22 This requirement has not
been met in this case, particularly since the Government has not demonstrated that it provided
reasons for the arrest at the time of arrest23 or, as discussed below, that it complied with article
9 (3) of the Covenant.24
64.
Ms. Trang was arrested without an arrest warrant, in violation of article 9 (1) of the
Covenant. It is not sufficient that there is a law which authorizes the arrest. The authorities
must invoke that legal basis and apply it through an arrest warrant.25 She was not informed
of the reasons for her arrest at the time of arrest, and not promptly informed of the charges,
20 Opinion No. 70/2018, paras. 32–33. See also Human Rights Council resolution 42/22, paras. 7 and 9,
and the methods of work of the Working Group (A/HRC/36/38), para. 15.
21 A/HRC/19/57, para. 68.
22 Human Rights Committee, general comment No. 35 (2014), para. 30. See also CAT/C/VNM/CO/1,
paras. 16–17.
23 Human Rights Committee, general comment No. 35 (2014), para. 30, and Pavlovna Smirnova v.
Russian Federation (CCPR/C/81/D/712/1996), para. 10.3.
24 Human Rights Committee, McLawrence v. Jamaica (CCPR/C/60/D/702/1996), para. 5.9.
25 Opinions No. 45/2019, para. 51; No. 44/2019, para. 52; No. 46/2018, para. 48; and No. 36/2018, para.
40.
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10
in violation of article 9 (2) of the Covenant. An arrest is arbitrary when carried out without
informing the arrested person of the reasons for the arrest.26
65.
The source alleges that Ms. Trang was held incommunicado throughout her detention,
which has now lasted over a year. She has not been permitted any visits by her family or
lawyers. Although the Government rejects the allegation of incommunicado detention, it
appears to confirm that Ms. Trang is being held incommunicado. The Government relies on
article 74 of the Code of Criminal Procedure of 2015, which permits defence counsel’s
engagement in legal proceedings when the investigation ends. As the investigation is ongoing
and no indictment has been issued, it follows that Ms. Trang has not, by the Government’s
own admission, been allowed to meet with her lawyers.
66.
The Government does not dispute the source’s submission that Ms. Trang has not been
brought before a judge during her entire pretrial detention. The Working Group therefore
finds that Ms. Trang has not been brought promptly before a judicial authority to challenge
her detention, in violation of article 9 (3) of the Covenant. The Government submits that the
arrest warrants were approved by the People’s Procuracy, pursuant to domestic legislation.
However, as the Working Group has stated, the Procuracy is not an independent judicial
authority.27 Moreover, as the Working Group and other human rights mechanisms have
stated, holding persons incommunicado violates their right to challenge the lawfulness of
detention before a court under article 9 (3)28 and (4) of the Covenant.29 Incommunicado
detention, especially during the early stage of an investigation, is an environment conducive
to torture and cruel and inhuman treatment, as it may be used to coerce the individual to
confess to the commission of the alleged crimes and admit guilt.30 It may also be considered
as amounting in itself to a form of torture or ill-treatment, prohibited under article 7 of the
Covenant, and articles 1 and 16 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.
67.
Judicial oversight of detention is a fundamental safeguard of personal liberty31 and is
essential in ensuring that detention has a legal basis. Given that Ms. Trang has been unable
to challenge her detention before a court, her right to an effective remedy under article 8 of
the Universal Declaration of Human Rights and article 2 (3) of the Covenant has been
violated. She has also been placed outside the protection of the law, in violation of her right
to be recognized as a person before the law under article 6 of the Universal Declaration of
Human Rights and article 16 of the Covenant.
68.
While the Government refers to article 117 of the Criminal Code as the legal basis for
the detention of Ms. Trang, the Working Group considers that the charge on which she is
being detained is so vague that it is impossible to invoke a legal basis for her detention. Ms.
Trang was arrested and detained under article 117 of the Criminal Code for “conducting
propaganda”. The source submits that no instruction is given as to what constitutes defaming
the administration, propagating psychological warfare, fomenting confusion, or
documents/products that are against the Government. There is no intent component and no
measure of what a prosecutor must prove to convict. Ms. Trang therefore could not have
foreseen that campaigning for democracy and human rights as a journalist or defending the
rights of the lesbian, gay, bisexual and transgender communities in Viet Nam would amount
to criminal conduct. The Working Group observes with concern that she was arrested a few
hours after the annual human rights dialogue between the United States and Viet Nam.
26 Opinions No. 46/2019, para. 51, and No. 10/2015, para. 34. See also CAT/C/VNM/CO/1, para. 16.
27 E/CN.4/1995/31/Add.4, para. 57 (c). See also opinions No. 45/2019, para. 52; No. 44/2019, para. 53;
No. 46/2018, para. 50; No. 35/2018, para. 37; and No. 75/2017, para. 48. See also Human Rights
Committee, general comment No. 35 (2014), para. 32; CCPR/C/VNM/CO/3, para. 26; and
CAT/C/VNM/CO/1, paras. 24–25.
28 Human Rights Committee, general comment No. 35 (2014), para. 35.
29 See opinions No. 45/2019, No. 44/2019, No. 9/2019, No. 35/2018, No. 46/2017 and No. 45/2017.
30 General Assembly resolution 68/156, para. 27. See also A/56/156, para. 39 (f); and Human Rights
Committee, general comment No. 35 (2014), paras. 35 and 56.
31 A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.
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11
69.
The Working Group has raised the issue of prosecution under vague penal laws with
the Government on several occasions. 32 The principle of legality requires that laws be
formulated with sufficient precision so that individuals can access and understand the law,
and regulate their conduct accordingly.33 In the Working Group’s view, article 117 of the
Criminal Code does not meet this standard. It is thus incompatible with article 11 (2) of the
Universal Declaration of Human Rights and article 15 (1) of the Covenant; due to the article’s
vague and overly broad language, the restrictions therein cannot be considered as provided
by law or as defined with sufficient precision.34 The Human Rights Committee has called on
Viet Nam to urgently revise legislation, such as article 117 of the Criminal Code, containing
vague and broadly formulated offences.35
70.
For these reasons, the Working Group finds that the Government failed to establish a
legal basis for Ms. Trang’s arrest and detention. Her detention is arbitrary under category I.
Category II
71.
The source alleges that Ms. Trang has been detained for peacefully exercising her
rights to freedom of opinion, expression and association and to take part in the conduct of
public affairs under articles 19 and 21 of the Universal Declaration of Human Rights and
articles 19 and 25 of the Covenant. The Government argues that she was arrested for violating
national law, namely, article 117 of the Criminal Code.
72.
The source reports that Ms. Trang is a prize-winning author, blogger, journalist and
pro-democracy activist. According to the source, her detention is an attempt to silence and
punish her. The Government submits that she was arrested not because she is a journalist or
a human rights defender but because she is an ordinary citizen whose acts seem to have
indicated violations of national law.
73.
The Working Group considers that charges and conviction under article 117 of the
Criminal Code for the peaceful exercise of rights cannot be regarded as consistent with the
Universal Declaration of Human Rights or the Covenant. The Working Group has
considered, in many opinions, the application of vague and overly broad provisions of the
criminal laws of Viet Nam.36 The Working Group came to a similar conclusion during its
visit to Viet Nam in October 1994, noting that vague provisions on national security did not
distinguish between violent acts capable of threatening national security and the peaceful
exercise of rights.37
74.
In May 2017, the United Nations country team in Viet Nam recommended that the
State repeal or revise numerous articles of the Criminal Code, including article 117, on the
basis of their incompatibility with the State’s human rights obligations under the Covenant.38
Along with other provisions, article 117 was highlighted as being vague and broad without
defining which action or activities were prohibited or the constitutive elements of the
prohibited offences. The country team also noted that those provisions did not differentiate
between the use of violent means, which should be prohibited, and legitimate peaceful
activities to protest, express one’s opinion, including criticism of the Government’s policies
and actions, or advocate for any kind of change, including of the political system, which
32 Opinions No. 45/2019, para. 54; No. 44/2019, para. 55; No. 9/2019, para. 39; No. 8/2019, para. 54;
No. 46/2018, para. 62; No. 36/2018, para. 51; No. 35/2018, para. 36; No. 79/2017, para. 54; No.
75/2017, para. 40; No. 27/2017, para. 35; No. 26/2017, para. 51; No. 40/2016, para. 36; No. 45/2015,
para. 15; No. 26/2013, para. 68; No. 27/2012, para. 41; No. 24/2011, para. 24; No. 20/2003, para. 19;
No. 13/1999, para. 12; No. 27/1998, para. 9; and No. 21/1997, para. 6.
33 Opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59; and Human Rights
Committee, general comment No. 35 (2014), para. 22.
34 Human Rights Committee, general comment No. 34 (2011), paras. 22 and 25.
35 CCPR/C/VNM/CO/3, paras. 45 (a) and 46.
36 Opinions No. 45/2019, No. 44/2019, No. 8/2019, No. 75/2017, No. 27/2017, No. 26/2017, No.
26/2013, No. 27/2012, No. 24/2011, No. 6/2010, No. 1/2009 and No. 1/2003. See also A/HRC/41/7,
paras. 38.73, 38.171, 38.175, 38.177, 38.183–184, 38.187–191 and 38.196–198.
37 E/CN.4/1995/31/Add.4, paras. 58–60. See also CCPR/C/VNM/CO/3, para. 45 (d).
38 See https://vietnam.un.org/en/14681-un-recommendations-2015-penal-code-and-criminal-procedural-
code-viet-nam, p. 1.
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directly fell under the rights to freedom of expression, opinion, assembly and religion and to
participation in public life, and as such should be guaranteed and protected in accordance
with international human rights law, in particular articles 18, 19, 21 and 25 of the Covenant.39
75.
The Human Rights Committee has called on Viet Nam to end violations of the right
to freedom of expression offline and online, and ensure that restrictions do not go beyond the
strictly defined limitations set forth in article 19 of the Covenant.40 It regretted that the vague
and broadly formulated offences in various articles, including article 117 of the Criminal
Code, and their use to curtail freedom of opinion and expression, and the definition of certain
crimes related to national security to encompass legitimate activities, such as exercising the
right to freedom of expression, did not appear to comply with the principles of legal certainty,
necessity and proportionality.41
76.
Article 19 (2) of the Covenant applies to everyone, including the general public, and
includes political discourse, commentary on public affairs, discussion of human rights, and
journalism.42 It protects the holding and expression of opinions, including those which are
not in line with government policy.43 The exercise of freedom of expression on the Internet,
in the present case through social media, presents significant differences compared to
traditional means of communication. For example, the distribution and receipt of information
through the Internet is faster, more extensive and more easily accessed locally and globally.44
77.
The Working Group considers that Ms. Trang’s conduct amounts to the exercise of
the right to freedom of opinion, expression and association protected under articles 19 and
20 of the Universal Declaration of Human Rights and articles 19 and 22 of the Covenant.
Similarly, the Working Group is of the view that Ms. Trang engaged in reporting relating to
democracy and anti-corruption efforts in Viet Nam, and was detained for exercising her right
to take part in the conduct of public affairs, in violation of article 21 of the Universal
Declaration of Human Rights and article 25 (a) of the Covenant.45 The Working Group thus
refers this case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression and the Special Rapporteur on the rights to freedom of
peaceful assembly and of association.
78.
In accordance with articles 1 and 6 (c) 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 (Declaration on Human
Rights Defenders), everyone has the right, individually and in association with others, to
promote and to strive for the protection and realization of human rights, and to draw public
attention to the observance of human rights.46 The Working Group has confirmed the right of
human rights defenders to investigate, gather information regarding and report on human
rights violations.47 The Human Rights Committee has also specifically recognized that article
19 (2) of the Covenant protects the work of journalists and includes the right of individuals
to criticize or openly and publicly evaluate their Governments without fear of interference or
punishment.48 The imprisonment of human rights defenders for speech-related reasons is
subject to heightened scrutiny; the Working Group has recognized the necessity to subject
interventions against individuals who may qualify as human rights defenders to particularly
intense review.49 This heightened standard of review by international bodies is especially
39 See https://vietnam.un.org/en/14681-un-recommendations-2015-penal-code-and-criminal-procedural-
code-viet-nam, p. 1.
40 CCPR/C/VNM/CO/3, para. 46.
41 Ibid. para. 45 (a).
42 Human Rights Committee, general comment No. 34 (2011), para. 11.
43 Opinions No. 8/2019, para. 55; and 79/2017, para. 55.
44 Opinions No. 80/2019, para. 93; and No. 39/2019, paras. 93–96. See also E/CN.4/2006/7, para. 36.
45 Human Rights Committee, general comment No. 25 (1996), para. 8. See also opinions No. 45/2019,
No. 44/2019, No. 9/2019, No. 46/2018, No. 45/2018, No. 36/2018, No. 35/2018, No. 40/2016, No.
26/2013, No. 42/2012, No. 46/2011 and No. 13/2007.
46 See also General Assembly resolution 74/146, para. 12.
47 Opinion No. 8/2009, para. 18.
48 Marques de Morais v. Angola, para. 6.7.
49 See opinions No. 62/2012, para. 39; and No. 21/2011, para. 29.
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13
appropriate where there is a pattern of harassment by national authorities targeting such
individuals.50
79.
The source has demonstrated that Ms. Trang was detained for the exercise of rights
set out in the Universal Declaration of Human Rights, namely, for sharing information as an
independent reporter. The Working Group has determined that detaining individuals on the
basis of their activities as human rights defenders violates their right to equality before the
law and equal protection of the law under article 7 of the Universal Declaration of Human
Rights and article 26 of the Covenant.51
80.
The Working Group concludes that Ms. Trang’s detention resulted from the peaceful
exercise of her rights to freedom of opinion, expression and association, as well as the right
to take part in the conduct of public affairs, and was contrary to article 7 of the Universal
Declaration of Human Rights and article 26 of the Covenant. Her detention is therefore
arbitrary and falls under category II.
Category III
81.
Given its finding that Ms. Trang’s detention is arbitrary under category II, the
Working Group emphasizes that no trial should take place in the future.
82.
Ms. Trang has been held in pretrial detention since October 2020 and has not been
tried for over a year. Under article 9 (3) of the Covenant, detention pending trial should be
the exception rather than the rule. In the present case, there appears to have been no
individualized review of Ms. Trang’s situation or consideration of alternatives to her
detention. Her pretrial detention was not properly constituted or reviewed.52
83.
The source alleges that Ms. Trang has not been permitted visits by the defence lawyers
since her arrest. The Government asserts that, due to the serious and complicated nature of
her case, and the need to maintain confidentiality during the investigation, defence lawyers
may take part in the proceedings only after the investigation phase has been completed, in
accordance with article 74 of the Criminal Procedure Code.
84.
All persons deprived of their liberty have the right to legal assistance by counsel of
their choice at any time during their detention, including immediately after their
apprehension, and such access is to be provided without delay.53 The failure to provide Ms.
Trang access to a lawyer during the investigation violated her right to adequate time and
facilities to prepare her defence under article 14 (3) (b) of the Covenant. Any legislation that
purports to remove the right to counsel is inherently contrary to international human rights
standards. This case is another example of legal representation being denied or limited for
individuals facing serious charges, suggesting that there is a systemic failure to provide
access to counsel during criminal proceedings in Viet Nam.54
85.
The source argues that Ms. Trang was not afforded her right to be tried without undue
delay, given that she has now been held without trial for over a year. Her detention does not
appear to have been reviewed by a judicial authority. The reasonableness of any delay in
bringing a case to trial must be assessed in the circumstances of each case, taking into account
the complexity of the case, the conduct of the accused, and the manner in which the matter
50 Opinion No. 39/2012, para. 45. The Working Group also notes that Ms. Trang and other journalists
and human rights activists were the subjects of allegation letters sent by the Working Group and other
special procedure mandate holders dated 17 September 2020 (VNM 3/2020) and 10 November 2020
(VNM 5/2020), available at https://spcommreports.ohchr.org/Tmsearch/TMDocuments. The Working
Group acknowledges the Government’s responses dated 28 December 2020 and 4 February 2021.
51 See opinions No. 45/2019, No. 44/2019, No. 9/2019, No. 46/2018, No. 45/2018, No. 36/2018, No.
35/2018, No. 79/2017 and No. 75/2017.
52 Human Rights Committee, general comment No. 35 (2014), paras. 37–38.
53 See principle 9 and guideline 8 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. See also Human Rights Committee, general comment No. 35 (2014), para. 35.
54 See opinions No. 45/2019, No. 44/2019, No. 9/2019, No. 46/2018, No. 35/2018, No. 79/2017, No.
75/2017, No. 27/2017, No. 26/2017 and No. 40/2016. See also CCPR/C/VNM/CO/3, paras. 25–26
and 35–36; and CAT/C/VNM/CO/1, paras. 16–17.
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was dealt with by the authorities.55 The delay in bringing Ms. Trang to trial is unacceptably
long, in violation of articles 9 (3) and 14 (3) (c) of the Covenant and principle 8 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
The Human Rights Committee has stated that an important aspect of the fairness of a hearing
is its expeditiousness, and in cases where the accused are denied bail by the court, they must
be tried as expeditiously as possible.56 The delay in this case is exacerbated by the source’s
submission that Ms. Trang has not been given a bail hearing. International standards require
that non-custodial measures be prioritized for women.57
86.
While the Government submits that Ms. Trang’s fair trial rights and the presumption
of innocence are preserved through her ability to appeal any verdict, the source notes that, if
the verdict is appealed, it would not be possible for the case to reach the Supreme People’s
Court, the highest tribunal of the land, as it requires motions filed by either the Prosecutor-
General or the Chief Justice, who lack independence. As the source offers no further
information on this allegation, which is general and lacking detail, the Working Group is
unable to make any observations in relation to it.
87.
The Working Group concludes that the violations of the right to a fair trial are of such
gravity as to give Ms. Trang’s detention an arbitrary character under category III.
Category V
88.
The source submits that Ms. Trang was targeted because of her activities as a
journalist and human rights defender, and that this is not the first time that the authorities
have sought to prevent her from conducting her activities (see para. 8 above).
89.
While the Government denies these allegations, the Working Group finds them to be
credible due to the details provided in relation to Ms. Trang and an apparent pattern in Viet
Nam of harassing and detaining human rights defenders for their work.58 The Working Group
notes the concluding observations by the Human Rights Committee concerning Viet Nam,
where the Committee expressed its concern at reports that persons, particularly human rights
defenders, activists, and religious leaders, could face arbitrary arrests, detention and
incommunicado detention without charges.59
90.
In the discussion above concerning category II, the Working Group established that
Ms. Trang’s detention had resulted from the peaceful exercise of her rights under
international law. When detention has resulted from the active exercise of civil and political
rights, there is a strong presumption that the detention also constitutes a violation of
international law on the grounds of discrimination based on political or other views.60
91.
The Working Group thus finds that Ms. Trang was deprived of her liberty on
discriminatory grounds, that is, owing to her status as a human rights defender, and because
of her political or other opinion. Her detention violates articles 2 and 7 of the Universal
Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, and falls within
category V. The Working Group refers the case to the Special Rapporteur on the situation of
human rights defenders.
Concluding remarks
92.
According to the source, Ms. Trang has not been permitted to contact her family since
her arrest. While the Government states that Ms. Trang received gifts from her family, this
cannot substitute her right to receive family visits. This violates the right to contact with the
55 Human Rights Committee, general comment No. 35 (2014), para. 37, and general comment No. 32
(2007), para. 35. See also CCPR/C/VNM/CO/3, paras. 35–36.
56 Human Rights Committee, general comment No. 32 (2007), paras. 27 and 35.
57 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules), sect. III. See also the Working Group’s deliberation No. 12
(A/HRC/48/55, annex), paras. 7–9.
58 See opinions No. 45/2019, No. 44/2019, No. 9/2019, No. 46/2018, No. 45/2018, No. 36/2018, No.
35/2018, No. 79/2017, No. 75/2017 and No. 27/2017. See also CCPR/C/VNM/CO/3, para. 25.
59 CCPR/C/VNM/CO/3, para. 25.
60 Opinions No. 59/2019, para. 79; No. 13/2018, para. 34; and No. 88/2017, para. 43.
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outside world under rules 43 (3) and 58 (1) of the Nelson Mandela Rules, and principles 15
and 19 of the Body of Principles. The Government states that while in detention, Ms. Trang’s
health has been normal and is being regularly monitored in accordance with the law and her
rights. Nonetheless, the Working Group notes that Ms. Trang has been detained
incommunicado for over 11 months and urges the Government to immediately and
unconditionally release her.
93.
The present case is one of many cases brought before the Working Group in recent
years concerning arbitrary detention in Viet Nam. These cases follow a similar pattern of
arrest that does not comply with international norms; lengthy detention pending trial with no
access to judicial review; denial of access to legal counsel; incommunicado detention;
prosecution under vaguely worded criminal offences for the peaceful exercise of human
rights; and denial of access to the outside world.61 The pattern indicates a systemic problem
with arbitrary detention in Viet Nam which, if it continues, may amount to a serious violation
of international law.62
94.
The Working Group would welcome the opportunity to work constructively with the
Government to address arbitrary detention. A significant period has passed since its last visit
to Viet Nam, in October 1994, and the Working Group considers that it is now an appropriate
time to conduct another visit. On 11 June 2018, the Working Group reiterated earlier requests
to the Government to undertake a country visit and will continue to seek a positive response.
Disposition
95.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Pham Doan Trang, being in contravention of articles 2,
6, 7, 8, 9, 11, 19, 20 and 21 of the Universal Declaration of Human Rights and articles
2, 9, 14, 15, 16, 19, 21, 22, 25 and 26 of the International Covenant on Civil and
Political Rights, is arbitrary and falls within categories I, II, III and V.
96.
The Working Group requests the Government of Viet Nam to take the steps necessary
to remedy the situation of Ms. Trang 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.
97.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Trang immediately and accord her an
enforceable right to compensation and other reparations, in accordance with international
law. In the current context of the global coronavirus disease (COVID-19) pandemic and the
threat that it poses in places of detention, the Working Group calls upon the Government to
take urgent action to ensure the immediate release of Ms. Trang.
98.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary detention of Ms. Trang, and to
take appropriate measures against those responsible for the violation of her rights.
99.
The Working Group requests the Government to bring its laws, particularly article
117 of the Criminal Code of 2015, into conformity with the recommendations made in the
present opinion and with the commitments made by Viet Nam under international human
rights law.
100.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, the Special Rapporteur on the rights to freedom of
peaceful assembly and of association and the Special Rapporteur on the situation of human
rights defenders, for appropriate action.
61 See opinions No. 45/2019, No. 44/2019, No. 9/2019, No. 8/2019, No. 46/2018, No. 45/2018, No.
36/2018, No. 35/2018, No. 79/2017, No. 75/2017, No. 27/2017, No. 26/2017, No. 40/2016, No.
46/2015 and No. 45/2015.
62 See, for example, opinions No. 81/2020, para. 91; No. 15/2020, para. 86; and No. 47/2012, para. 22.
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101.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
102.
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. Trang has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Trang;
(c)
Whether an investigation has been conducted into the violation of Ms. Trang’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.
103.
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.
104.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action would
enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
105.
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.63
[Adopted on 10 September 2021]
63 Human Rights Council resolution 42/22, paras. 3 and 7.