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A/HRC/WGAD/2021/40

Opinion No. 40/2021 concerning Pham Doan Trang (Viet Nam)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2021-09-10 · en UN

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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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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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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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.