A/HRC/WGAD/2022/35

GE.22-08441(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March–8 April 2022

Opinion No. 35/2022 concerning Nguyen Bao Tien (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 10 December 2021, the Working Group

transmitted to the Government of Viet Nam a communication concerning Nguyen Bao Tien.

The Government replied to the communication on 10 March 2022. The State is 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/2022/35

General Assembly

Distr.: General

2 June 2022

Original: English

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Submissions

Communication from the source

4.

Nguyen Bao Tien is a citizen of Viet Nam, usually residing at Tuy Hoa City, Phu Yen

Province. He was 35 years old at the time of his detention and was a driver and volunteer

collaborator at Liberal Publishing House where he delivered books to readers.

5.

According to the source, in July 2019, Ho Chi Minh City security police force

tightened the postal service locations to prevent Liberal Publishing House from transferring

books to readers, leading the publisher to call for the community’s help. Mr. Tien, among

others, supported this appeal, and contacted Liberal Publishing House through a Facebook

account with the name “Venerable Thich Ngo Nghinh”, which stopped working in October

2019. Reportedly, Mr. Tien was an enthusiastic collaborator of Liberal Publishing House.

The source notes that Liberal Publishing House lost contact with him as of 2 October 2019.

At that time, his Facebook and Whatsapp accounts were frozen and Liberal Publishing House

could not find Mr. Tien as they did not know his real name, address or any circumstances

related to him.

a.

Arrest and detention

6.

According to the source, Mr. Tien was arrested at his home in October 2019 by

security agents of the Phu Yen Province police. The source notes that, in contrast, media

coverage in Viet Nam reported that he was arrested on 5 May 2021 while delivering 68

packages of books received from Liberal Publishing House.

7.

The source explains that a warrant was issued by the Department of Security and

Investigation of the Phu Yen Province police and was presented to Mr. Tien. Reportedly,

Mr. Tien was accused of stockpiling, distributing and propagating documents to oppose the

State of Viet Nam under article 117 (1) (a) of the Criminal Code of Viet Nam.

8.

According to the source, from mid-August to October 2019, Mr. Tien received 68

parcels containing many books and distributed 24 parcels to recipients. Reportedly, the

Department of Security and Investigation discovered that Mr. Tien was continuing to

distribute 21 parcels at the Kerry Express Phu Yen post office, and made a record of seizure.

When the fact that Mr. Tien continued to distribute books became known, Mr. Tien

reportedly handed over 23 parcels hidden at his home to the investigating agency.

9.

The source reports that, in approximately November and December 2019, Liberal

Publishing House received notices from readers from many provinces who had been

interrogated or detained by the police, who were investigating a line of books in Phu Yen.

Liberal Publishing House concluded that Mr. Tien had been arrested and that the Department

of Security and Investigation was attempting to hold him responsible for the activities of

Liberal Publishing House. The source explains that, given the lack of information on the

situation, Liberal Publishing House could not use the media to advocate on Mr. Tien’s behalf,

fearing that information given by the publisher could be used as evidence against him.

10.

On 20 April 2021, based on collected documents and evidence, the Department of

Security and Investigation of the Phu Yen Province police executed search and arrest

warrants for the temporary detention and search of Mr. Tien.

11.

The source notes that the Vietnamese press reported on the arrest and prosecution of

Mr. Tien until 5 May 2021.

b.

Legal analysis

12.

The source argues that Mr. Tien’s arrest and detention are arbitrary under categories

I, II and III of the methods of work of the Working Group.

i.

Category I

13.

The source alleges that Mr. Tien’s detention is arbitrary under category I because it is

impossible to invoke any legal basis justifying his deprivation of liberty.

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14.

The source recalls that a detention violates category I when it is clearly impossible to

invoke any legal basis justifying the deprivation of liberty. The source notes that the Working

Group has found detentions arbitrary under category I when: (a) the Government held an

individual incommunicado for a period of time; (2) the Government arrested an individual

without a warrant and without judicial authorization; and (3) vague laws were used to

prosecute individuals.

Incommunicado detention and access to judicial review

15.

The source notes that, under article 9 (3) of the Covenant, individuals arrested or

detained on criminal charges must be promptly brought before a judge or other officers

authorized by law to exercise judicial power. Article 9 (4) of the Covenant reiterates this

obligation of a habeas corpus hearing without delay.

16.

The source emphasizes the Human Rights Committee’s determination that

incommunicado detentions inherently violate article 9 (3) of the Covenant. Furthermore, the

source notes that the prohibition against incommunicado detention is also articulated under

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 detainees

and their family or counsel for more than a few days. The source submits that this guarantee

serves as a check on arbitrary detention and that it is an important safeguard for other rights,

such as the right to be free from torture.

17.

The source alleges that Mr. Tien was not allowed to communicate with his family,

lawyer or friends. Furthermore, Mr. Tien was reportedly not brought before a judge following

his arrest. The source argues that this constitutes incommunicado detention.

Broad and vague laws

18.

The source notes that under article 15 (1) of the Covenant and article 11 (2) of the

Universal Declaration of Human Rights, individuals have the right to know what the law is

and what conduct violates the law. The source recalls that under these articles, as well as

under national and international law, citizens cannot be prosecuted for an act that did not

constitute an offence at the time it was committed. In this regard, the source refers to the

Human Rights Committee’s general comment No. 35 (2014), in which the Committee states

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.

19.

The source also refers to a report of the Special Rapporteur on the promotion and

protection of human rights and fundamental freedoms while countering terrorism, in which

the Special Rapporteur explained that the standard for legal certainty requires framing laws

so that they are adequately accessible so that the individual has a proper indication of how

the law limits his or her conduct, and with sufficient precision for individuals to regulate their

conduct accordingly.2

20.

The source argues 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. In particular, no instruction is given as to what

constitutes propagating psychological warfare, dismay among the people, or documents or

products against the Government. The source emphasizes the absence of any intent

component or measure of what the prosecutor must prove in order to obtain a conviction. The

source alleges that article 117 of the Criminal Code lacks any plain meaning and does not

give individuals a fair notice of what conduct is prohibited.

21.

The source submits that, in Mr. Tien’s case, article 117 of the Criminal Code resulted

in the arbitrary prosecution of acts that are both unforeseeable as criminal and protected under

the Covenant, the Universal Declaration of Human Rights and other international norms and

standards.

2 E/CN.4/2006/98, para. 46.

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22.

In addition, the source recalls that concerned Member States recommended that Viet

Nam repeal or amend the Criminal Code so as to prevent the arbitrary application of those

provisions to impede freedom of opinion and expression, including on the Internet. In

particular, the source alleges that the crime of “conducting propaganda” is so vague that it

cannot provide a legal basis for detention resulting from a conviction on such a charge.

ii.

Category II

23.

The source alleges that Mr. Tien’s detention is arbitrary under category II because it

resulted from the peaceful exercise of his right to freedom of expression and association.

24.

The source notes that article 20 (1) of the Universal Declaration of Human Rights and

article 22 (1) of the Covenant protect everyone’s right to peaceful assembly and association.

The source recalls that the Human Rights Council has called upon every state to fully respect

and protect the rights of individuals to freely associate, especially for persons espousing

minority or dissenting views, and human rights defenders.3 The Human Rights Committee

noted in its general comment No. 25 that the right to freedom of association, including the

right to form and join organizations and associations concerned with political and public

affairs, is an essential adjunct to the right to participate in public affairs, and is protected by

article 25 of the Covenant. The source also notes that the right to assemble, form associations

and hold demonstrations is further protected under article 25 of the Constitution of Viet Nam.

25.

The source argues that Mr. Tien had the right to associate with a group of journalists

and express his political opinions through organizations. Despite that, the Government

allegedly persecuted Mr. Tien as a means to punish his involvement and communications

with people and organizations critical of the Government, and with Liberal Publishing House

and its members. The source concludes that the Government violated article 20 (1) of the

Universal Declaration of Human Rights, article 22 (1) of the Covenant and article 25 of the

Constitution of Viet Nam.

26.

The source recalls that article 22 (2) of the Covenant allows for restrictions to the right

to freedom of association but that any such limitation must meet a strict justification test.

According to the source, none of the restrictions to freedom of association enumerated under

article 22 (2) of the Covenant apply to Mr. Tien’s case. The source notes the three

requirements established by the Human Rights Committee for any limitation on the rights to

freedom of expression and association: that it be provided by law; that the restrictions be

implemented for the protection of national security, public order, or public health and morals;

and that any restriction imposed be necessary to achieve one of these enumerated purposes.

27.

The source alleges that the limitation on Mr. Tien’s freedom of association does not

meet the proper purpose requirement. The Government allegedly claimed that Mr. Tien was

being detained for “opposing the State” or “conducting propaganda”, as might be considered

appropriately banned under article 20 of the Covenant. The source submits that Mr. Tien’s

meeting with members of Liberal Publishing House in no way, directly or indirectly, called

for violence or could reasonably be considered to threaten national security, public order,

public health or morals, or the rights or reputations of others. In this regard, the source

explains that Mr. Tien was a Liberal Publishing House staff member who merely delivered

books to readers. Despite that, his activities were deemed to pose a great danger to national

security and public order. The source submits that the Government failed to establish how

Mr. Tien’s activity of delivering books could constitute a danger to national security or public

order.

iii.

Category III

28.

The source alleges that Mr. Tien’s detention is arbitrary under category III because he

was not afforded minimum due process rights.

3 The source refers to Human Rights Council resolution 15/21.

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Right to appeal

29.

The source notes that article 14 (5) of the Covenant protects the right of everyone

convicted of a crime to have their conviction and sentence reviewed by a higher tribunal

according to the law. Furthermore, it protects the right to appeal and requires that the State

party substantively review the conviction and sentence, based on the sufficiency of both the

evidence and the law, such that the procedure allows for due consideration of the nature of

the case. According to the source, such a review must consider formal and legal aspects of

the conviction, as well as the facts of the case, the allegations against the convicted person,

and the evidence submitted at trial, as referred to in the appeal.

30.

Moreover, the source notes that article 331 of the 2015 Criminal Procedure Code of

Viet Nam grants the defendant the right to appeal judgments of first instance courts. Further,

article 332 of the Code requires that the warden of the detention facility enable the execution

of a defendant’s right to appeal by forwarding the written appeal to the proper court.

31.

According to the source, Mr. Tien was not allowed to communicate with his lawyer,

in violation of his right to appeal.

Right to access and communicate with legal counsel

32.

The source stresses that article 14 (3) (b) and (d) of the Covenant guarantees

individuals’ right to defend themselves, in person or through counsel of their own choosing;

to have adequate time and facilities to prepare their defence; and to communicate with

counsel of their choosing. Such guarantees require prompt access to counsel and that State

parties permit and facilitate detainees’ access to counsel in criminal cases, from the outset of

their detention.

33.

In this regard, the source submits that Mr. Tien tried to hire a lawyer, but his request

was denied without any justification. The source notes that Mr. Tien was not appointed a

lawyer by the Government either. The source underlines that many cases brought to the

Working Group reflect that, even where the applicant’s family hires a lawyer to visit and

represent the individual, lawyers are often not allowed to meet with their clients. The source

argues that, in the case at hand, Mr. Tien was unable to communicate with his family and

thus was unable to hire a lawyer.

34.

The source concludes that, by not respecting Mr. Tien’s request for a lawyer, the

Government violated his right to access legal representation.

Right to be visited by family and to communicate with the outside world

35.

The source notes that, under principle 19 of the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment, detainees and imprisoned

individuals have the right to be visited by and correspond with members of their family,

subject to reasonable conditions and restrictions as specified by law or lawful regulations.

The source stresses that the United Nations Standard Minimum Rules for the Treatment of

Prisoners (the Nelson Mandela Rules) also protects this right. Specifically, rule 43 prohibits

disciplinary sanctions or restrictive measures from including the prohibition of family

contact. Furthermore, rule 58 of the Nelson Mandela Rules affords prisoners the right to

communicate with family and friends at regular intervals, under necessary supervision. In

addition, rule 106 of the Nelson Mandela Rules prescribes that special attention must be given

to maintaining relations between prisoners and their family, as desirable in both of their best

interests.

36.

According to the source, Mr. Tien was not allowed to communicate with the outside

world or to be visited by his family, contrary to principle 19 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment, as well as rules 43,

58 and 106 of the Nelson Mandela Rules.

Response from the Government

37.

On 22 December 2022, the Working Group transmitted the allegations from the source

to the Government under its regular communication procedure. The Working Group

requested the Government to provide detailed information by 8 February 2022 about the

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current situation of Mr. Tien. The Working Group also requested the Government to clarify

the legal provisions justifying his detention, as well as its compatibility with the obligations

of Viet Nam under international human rights law. Moreover, the Working Group called

upon the Government to ensure Mr. Tien’s physical and mental integrity.

38.

On 27 January 2022, the Government requested an extension of the deadline for its

response. The extension was granted, with a new deadline of 10 March 2022.

39.

The Government submits that the allegations mentioned in the communication are not

accurate and that Mr. Tien was arrested because he violated the laws of Viet Nam as shown

by the specific investigative evidence. The competent authorities of Viet Nam reportedly

carried out the legal proceedings and procedures against Mr. Tien with full respect for the

country’s laws and consistent with international conventions on human rights to which Viet

Nam is a party.

40.

The Government submits that during the investigation, prosecution, adjudication and

execution of the judgment, Mr. Tien’s rights were ensured in accordance with the laws of

Viet Nam.

41.

On the arrest and prosecution of Mr. Tien, the Government submits that Mr. Tien was

born in 1986 and resides in the city of Tuy Hoa, in Phu Yen Province. Reportedly, on 20

April 2021, the police of Phu Yen Province executed a prosecution decision, that is a

temporary detention warrant and a residence search warrant, against Mr. Tien to investigate

his alleged offence of making, possessing and spreading information, materials and items for

the purpose of opposing the State of Viet Nam under article 117 of the Criminal Code of

2015. According to the Government, Mr. Tien possessed and distributed 108 books

containing distorted information about the directions and policies of Viet Nam that incites

overthrowing the people’s government.

42.

The Government submits that the investigation process showed that Mr. Tien illegally

possessed explosive materials that were stolen by him during a local military drill. Therefore,

the police of Phu Yen Province issued an additional prosecution decision against Mr. Tien

for the offence of illegal appropriation and possession of explosive materials under article

305 of the Criminal Code.

43.

The Government further submits that the arrest and temporary detention of Mr. Tien

fully complied with the criminal procedural provisions of Viet Nam and were consistent with

international conventions to which Viet Nam is a party. The execution of the arrest warrant

against Mr. Tien was reportedly published at the time of the arrest and witnessed by the local

authority and Mr. Tien’s relatives. It submits that the execution of the arrest warrant against

Mr. Tien was recorded in the written document signed by all relevant parties. The

Government also submits that the investigative agency fully explained to Mr. Tien his rights

and obligations during the arrest process.

44.

The Government further submits that the criminal procedure decisions, such as the

warrants for arrest and temporary detention of Mr. Tien, were approved by the People’s

Procuracy of Phu Yen Province, and that the whole criminal procedural process was

monitored by the People’s Procuracy of Phu Yen Province. The Government adds that the

rights of Mr. Tien were guaranteed throughout that process. According to the Government,

in Viet Nam, the People’s Procuracy is the judicial agency empowered to examine the legality

of criminal procedural activities carried out by investigative agencies. To be legally effective

and implemented, every criminal procedural decision must be approved by the People’s

Procuracy, as provided under articles 20 and 107 of the Constitution. The Government

submits that this is consistent with the provisions of international law, in particular, article 9

of the Covenant. Therefore, the Government concludes that the allegation that the arrest of

Mr. Tien violated international conventions on human rights is unfounded.

45.

The Government submits that article 117 of the Criminal Code has clear provisions

for determining offences and only deals with acts propagandizing information and documents

that distort the truth and are against the State of Viet Nam. As a result, the Government rejects

the allegation that article 117 of the Criminal Code is not consistent with international law.

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46.

The Government submits that on 8 November 2021, the investigative agency issued

the investigative conclusion and transferred the case files to the People’s Procuracy of Phu

Yen Province for its consideration.

47.

On 25 November 2021, the People’s Procuracy of Phu Yen Province reportedly

indicted and prosecuted Mr. Tien for making, possessing and spreading information,

materials and items for the purpose of opposing the State of Viet Nam under article 117 of

the Criminal Code, and for illegal appropriation and possession of explosive materials under

article 305 of the Criminal Code.

48.

The Government denies the allegations that Mr. Tien was detained incommunicado,

did not receive visits from his relatives and did not have access to his lawyers. It submits that

the security investigative agency fully explained to Mr. Tien his rights and obligations during

the detention process as soon as he was arrested.

49.

On 22 April 2021, Mr. Tien reportedly authorized a relative to contact lawyers to

defend him. According to the Government, on 29 April 2021, his relative contacted a law

firm that the Government had named in its submission to request a named lawyer to defend

him and protect his rights and benefits. On 11 May 2021, the law firm reportedly sent the

registration of defence to the investigative security agency. On 12 May 2021, the

investigative security agency allegedly issued the defence certificate for the named lawyer of

the said firm to act as Mr. Tien’s lawyer. The Government contends that, on 18 May 2021,

the lawyer attended the interrogation of Mr. Tien by the investigative security agency.

50.

The Government submits that at the time of the temporary detention of Mr. Tien, the

coronavirus disease (COVID-19) pandemic developed in a very complicated way in Phu Yen

Province and was spreading rapidly in the community. In order to prevent the spread of the

virus and protect the health of temporary detainees, their family and their relatives, the

detention centre of the Phu Yen Province police temporarily stopped organizing visits to any

of the temporary detainees, including Mr. Tien. The Government adds that Mr. Tien’s

relatives were still entitled to send gifts to him in accordance with the law on temporary

detention and custody.

51.

The Government submits that on 21 January 2022, the People’s Court of Phu Yen

Province held the first instance trial to adjudicate the accusations against Mr. Tien of making,

possessing and spreading information, materials and items for the purpose of opposing the

State of Viet Nam under article 117 of the Criminal Code and of the illegal appropriation and

possession of explosive materials under article 305 of the Criminal Code. The Court

reportedly sentenced him to five years and six months in prison for the offence provided

under article 117 of the Criminal Code and to one year in prison for the offence provided

under article 305 of the Criminal Code. The total corresponding punishment was six years

and six months in prison.

52.

According to the Government, Mr. Tien’s health is normal and his rights have been

fully guaranteed according to the relevant legal provisions.

53.

The Government submits that Viet Nam does not restrict citizens’ freedom to publish

and does not censor works before they are published. In this regard, it refers to article 25 of

the Constitution, which stipulates that citizens have the right to freedom of speech and

freedom of the press, and have the right of access to information, the right to assembly, the

right to association and the right to demonstrate. It further stipulates that the exercise of those

rights is to be prescribed by law. The Government notes that article 13 (3) of the Press Law

of 2016 provides that the press is not censored before print, transmission and broadcasting

and article 5 (2) of the Publishing Law of 2021 stipulates that the State is not to censor works

before publication.

54.

The Government submits that Viet Nam does not censor people’s forms of expression,

but in fact is trying to perfect its legal system to ensure freedom of speech and expression for

people in the press and in cyberspace, and other forms of expression, in order to protect

people against fake news, news that is inconsistent with the fine customs and traditions of

Viet Nam, and fabricated and untrue news inciting hatred. Moreover, the Government notes

that for Viet Nam and many other countries around the world, the reporting of fake news and

misinformation that distort and incite war and hatred are existential risks threatening national

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security, order, morality and social safety. As a result, the Government notes that individuals

and organizations that do not register but borrow the publisher’s name to commit illegal acts

will be handled in accordance with the laws.

Further comments from the source

55.

On 10 March 2022, the Government’s reply was transmitted to the source for further

comments, which the source submitted on 22 March 2022. In its further comments, the source

rebuts the Government’s submission that Mr. Tien’s arrest and detention are lawful under

domestic law and international law, arguing that the Government has failed to substantiate

this argument. The source also emphasizes that the Government has failed to establish a

causal link between Mr. Tien possessing 108 books and him seeking to overthrow the

Government.

56.

The source also rebuts the Government’s allegation that Mr. Tien was represented by

the law firm named in the Government’s submission.

57.

The source further argues that the complete ban on family visits in prison cannot be

justified on the basis of the COVID-19 pandemic.

58.

Regarding article 13 of the Press Law and article 5 (2) of the Publishing Law, the

source rebuts the Government’s submission that freedom of expression protects Vietnamese

society from fake news, news that is inconsistent with the fine customs and traditions of Viet

Nam, and fabricated and untrue news inciting hatred. The source submits that customs and

traditions are not permissible grounds for restrictions of human rights under the Covenant.

Discussion

59.

The Working Group thanks the source and the Government for their submissions.

60.

As a preliminary matter, the Working Group notes the Government’s response that

the “fact that the Working Group on Arbitrary Detention only took into account forms of acts

exercising the right of freedom of expression (spreading information) and ignored the nature

and purpose of acts (posting and spreading information which distorts the truth with a view

to overthrowing the people’s government) led to incorrect assessments on the legal system

and judicial activities of Viet Nam.” The Working Group wishes to clarify that in its

communication dated 10 December 2021 to the Government, it was merely transmitting to

the Government the source’s submission and did not make any assessment of the allegations

therein at that stage.

61.

In determining whether the deprivation of liberty of Mr. Tien 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 law

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.4

Category I

62.

The source submits that Mr. Tien was arrested at home in October 2019 by security

agents of the Phu Yen Province police. The source submits that as a driver and volunteer

collaborator at Liberal Publishing House, his Facebook account stopped working in October

2019 and that Liberal Publishing House lost contact with him as of 2 October 2019. As a

result, the source alleges that Mr. Tien’s whereabout were unknown between October 2019

and April 2021, when the search and arrest warrants for his temporary detention and search

were executed. The Government does not rebut this submission, nor does it account for

Mr. Tien’s whereabouts during this period.

63.

For these reasons, the Working Group is minded to find that Mr. Tien was forcibly

disappeared between October 2019 and April 2021, noting that enforced disappearance

4 A/HRC/19/57, para. 68.

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constitutes a particularly aggravated form of arbitrary detention, in violation of article 6 of

the Universal Declaration of Human Rights.5

64.

The source submits and the Government confirms that Mr. Tien was officially arrested

on 20 April 2021 pursuant to a warrant, and accused of stockpiling, distributing and

propagating documents to oppose the State of Viet Nam under article 117 (1) (a) of the

Criminal Code. According to the Government, Mr. Tien possessed and distributed 108 books

containing distorted information about the directions and policies of Viet Nam that incites

overthrowing the people’s government.

65.

The source submits, and the Government does not deny, that following his arrest in

October 2019, Mr. Tien was not brought before a judge during his pretrial detention. The

Working Group recalls that legal safeguards against arbitrary deprivation of liberty as

encapsulated in article 9 of the Universal Declaration of Human Rights and article 9 of the

Covenant require anyone arrested or detained on a criminal charge to be brought promptly

before a judge to exercise judicial power.

66.

As the Working Group has reiterated in its jurisprudence, and the Human Rights

Committee has specified, 48 hours is ordinarily sufficient to satisfy the requirement of

bringing a detainee “promptly” before a judge or other officer authorized by law following

his or her arrest; any longer delay must remain absolutely exceptional and be justified under

the circumstances.6 The Working Group finds that Mr. Tien was not brought promptly before

a judicial authority in violation of his rights under article 9 of the Universal Declaration of

Human Rights and article 9 (3) of the Covenant.

67.

The Working Group further observes that Mr. Tien was not afforded the right to bring

proceedings before a court so that the court could decide without delay on the lawfulness of

his detention, in accordance with articles 3, 8 and 9 of the Universal Declaration of Human

Rights; articles 2 and 9 (4) of the Covenant; and principles 11, 32, 37 and 38 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

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 affirms that

the right to challenge the lawfulness of detention before a court is a self-standing human right,

the absence of which constitutes a human rights violation, and is essential to preserve legality

in a democratic society.7 This right, which is in fact a peremptory norm of international law,

applies to all forms and situations of deprivation of liberty.8

68.

Judicial oversight of deprivation of liberty is a fundamental safeguard of personal

liberty and is essential in ensuring that detention has a legal basis.9 Given that Mr. Tien was

unable to challenge his detention before a court, his 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. He was also placed outside the protection of the law, in violation of his 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.

Incommunicado detention

69.

The source alleges that Mr. Tien was held incommunicado. While the Government

denies this allegation, it does substantiate its position that Mr. Tien was represented by a law

firm.10 The source, however, submits that as Mr. Tien was unable to communicate with his

family, he was thus unable to hire a lawyer, as discussed below. The Working Group finds

the source’s allegation to be credible. As the Working Group and other human rights

5 Opinions No. 32/2020, para. 33; and No. 1/2021, para. 76.

6 See e.g. opinions No. 6/2017, No. 30/2017, No. 49/2019, No. 60/2020 and No. 66/2020. See also

Human Rights Committee, general comment No. 35 (2014), para. 33.

7 A/HRC/30/37, paras. 2–3.

8 Ibid., para. 11, and annex, guideline 1, para. 47 (a). See also opinion No. 39/2018, para. 35.

9 See opinions No. 35/2018, para. 27; No. 83/2018, para. 47; No. 32/2019, para. 30; No. 33/2019, para.

50; No. 44/2019, para. 54; No. 45/2019, para. 53; No. 59/2019, para. 51; and No. 65/2019, para. 64.

See also A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.

10 Opinions No. 45/2017, 46/2017, 35/2018, 9/2019, 44/2019 and 45/2019.

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10

mechanisms have stated, holding persons incommunicado violates their right to challenge

the lawfulness of their detention before a court under article 9 (3)11 and (4) of the Covenant.

This finding of incommunicado detention is strengthened by the Working Group’s findings

below that Mr. Tien’s right to communicate with the outside world was violated.

Right to communicate with the outside world

70.

Regarding Mr. Tien’s right to receive visits from his relatives, the Government

submits that at the time of Mr. Tien’s temporary detention, the COVID-19 pandemic

developed in a very complicated fashion in Phu Yen Province and spread rapidly in the

community. To prevent the spread of COVID-19 and protect the health of temporary

detainees and of their family and relatives, the detention centre of the Phu Yen Province

police temporarily stopped organizing family visits to detainees, including to Mr. Tien. The

source submits that such a complete ban on family visits cannot be justified and that the

Government failed to explain why this was necessary when family visits could have been

allowed under social distance rules or by wearing masks or allowing family visits for a shorter

time than usual.

71.

The Working Group refers to its deliberation No. 11 on the prevention of arbitrary

deprivation of liberty in the context of public health emergencies.12 The Working Group notes

the Government’s submission that Mr. Tien’s relatives were entitled to send him gifts but

observes that this does not satisfy the right to communicate with the outside world. The

Working Group also recalls the source’s submission that because Mr. Tien was unable to

communicate with his family, he was not able to hire a lawyer.

72.

The Working Group finds that the restrictions placed on Mr. Tien’s contact with his

family violated his right to contact with the outside world under rules 43 (3), 58 (1) and 106

of the Nelson Mandela Rules, and principles 15 and 19 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment, and adversely

impacted his ability to secure legal assistance.

Vague laws

73.

The source argues 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. As a result, in Mr. Tien’s case, article 117 of

the Criminal Code resulted in the arbitrary prosecution of acts that are both unforeseeable as

criminal and protected under the Covenant, the Universal Declaration of Human Rights, and

other international norms and standards.

74.

According to the Government, Mr. Tien possessed and distributed 108 books

containing distorted information about the directions and policies of Viet Nam that incites

overthrowing the people’s government. The Government submits that article 117 of the

Criminal Code has clear provisions for determining offences and will only deal with acts

propagandizing information and documents that distort the truth and are against the State of

Viet Nam. The source submits that no instruction is given as to what constitutes propagating

psychological warfare, dismay among the people, or documents or products against the

Government. The source emphasizes the absence of any intent component or measure of what

the prosecutor must prove in order to obtain a conviction. According to the source, article

117 of the Criminal Code lacks any plain meaning and does not give individuals fair notice

of what conduct is prohibited. Accordingly, the source submits that Mr. Tien could not have

foreseen that his actions would amount to criminal conduct.

11 Human Rights Committee, general comment No. 35, para. 35.

12 A/HRC/45/16, annex II, paras. 3 and 20–22.

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11

75.

The Working Group has raised the issue of prosecution under vague penal laws with

the Government of Viet Nam on several occasions,13 specifically article 117 of the Criminal

Code.14

76.

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.15

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 and cannot be considered to be “prescribed by law” and

“defined with sufficient precision” due to its vague and overly broad language.16 As a result,

the Working Group considers that the charge on which Mr. Tien is being detained is so vague

that it is impossible to invoke a legal basis for his detention.

77.

On the basis of the above, the Working Group finds that the Government failed to

establish a legal basis for Mr. Tien’s arrest and detention. His detention is thus arbitrary under

category I.

Category II

78.

The source alleges that Mr. Tien’s detention is arbitrary under category II because it

resulted from the peaceful exercise of his rights to freedom of expression and association.

The Government submits that it does not restrict its citizens’ freedom to publish, nor censor

their freedom of expression. It submits that it is trying to protect people from fake news that

is inconsistent with its fine customs and traditions, and from fabricated and untrue news that

incite hatred. The Government argues that Mr. Tien was arrested, detained, prosecuted and

convicted because he violated article 117 of the Criminal Code.

79.

The Working Group considers that charges and convictions 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

the application of vague and overly broad provisions of the criminal laws in Viet Nam in

numerous opinions.17

80.

In May 2017, the United Nations country team in Viet Nam recommended the repeal

or revision of numerous articles of the Criminal Code, among them article 117, on the basis

of their incompatibility with human rights obligations under the Covenant.18 Along with other

provisions, article 117 was highlighted as being vague and broad and not defining which

actions or activities are prohibited, nor the constitutive elements of the offences thereunder.19

The country team in Viet Nam also noted that these provisions do not differentiate between

the use of violent means, which should be prohibited, and legitimate peaceful activities.

13 Opinion 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, paras. 38–41; No. 20/2003, para. 19; No. 13/1999, para.

12; No. 27/1998, para. 9; and No. 21/1997, para. 6.

14 See e.g. opinions No. 40/2021, paras. 69, 73–75 and 99; No. 36/2021, paras. 73–74, 77–78 and 103;

No. 11/2021, paras. 67, 73–74 and 96.

15 Opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59; and Human Rights

Committee, general comment No. 35, para. 22.

16 Human Rights Committee, general comment No. 34 (2011), para. 25.

17 Opinions No. 40/2021, No. 11/2021, No. 81/2020, 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.

18 See https://vietnam.un.org/en/14681-un-recommendations-2015-penal-code-and-criminal-procedural-

code-viet-nam (p. 1).

19 See Human Rights Council resolution 19/36, in which the Council recalled that the interdependence

between a functioning democracy, strong and accountable institutions, transparent and inclusive

decision-making and effective rule of law is essential for a legitimate and effective Government that

is respectful of human rights. In paragraph 16 (c) of the same resolution, the Council called upon

States to strengthen the rule of law by ensuring that a sufficient degree of legal certainty and

predictability was provided in the application of the law, in order to avoid any arbitrariness.

A/HRC/WGAD/2022/35

12

Among such peaceful activities, the country team specifically listed protest; expression of

one’s opinion, including criticism of the Government’s policies and actions; and advocacy

for any kind of changes, including to the political system. It noted that such activities fall

directly under the rights to freedom of expression, opinion, assembly and religion, and

participation in public life, highlighting that they should therefore be guaranteed and

protected in accordance with international human rights law, and specifically citing articles

18, 19, 21 and 25 of the Covenant.20

81.

The Human Rights Committee has called upon 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.21 It found several laws and

practices that did not appear to comply with the principles of legal certainty, necessity and

proportionality, including the vague and broadly formulated offences in various articles of

the Criminal Code, including article 117; the use of those articles 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.22

82.

The freedom of expression guaranteed under article 19 of the Covenant includes the

right to seek, receive and impart information and ideas of all kinds regardless of frontiers and

this right includes the expression and receipt of communications of every form of idea and

opinion capable of transmission to others, including political opinions. 23 Moreover, the

permitted restrictions to this right may relate either to the respect of the rights or reputations

of others or to the protection of national security, public order (ordre public) or public health

or morals. As the Human Rights Committee has stipulated, restrictions are not allowed on

grounds not specified in article 19 (3), even if such grounds would justify restrictions to other

rights protected in the Covenant. Restrictions must be applied only for those purposes for

which they were prescribed and must be directly related to the specific need on which they

are predicated.24

83.

The Working Group agrees with the source’s assertion that the restrictions enumerated

by the Government such as fake news and “customs and traditions” are not permissible

grounds to restrict the freedom of expression guaranteed under article 19 of the Covenant.

84.

In this regard, the Working Group recalls that in a joint declaration on freedom of

expression and “fake news”, disinformation and propaganda, adopted in Vienna on 3 March

2017, several experts, including the Special Rapporteur on the promotion and protection of

the right to freedom of opinion and expression, stated that general prohibitions on the

dissemination of information based on vague and ambiguous ideas, including false news or

information, are incompatible with international standards for restrictions on freedom of

expression and should be abolished.25

85.

In relation to freedom of association, according to article 22 (2) of the Covenant, any

restriction on freedom of association must be prescribed by law, for a legitimate interest,

namely national security, public safety, public order, public health or morals, or the rights or

freedoms of others, and necessary in a democratic society to secure such legitimate interest.

86.

The Working Group finds that Mr. Tien is being punished for the peaceful exercise of

his rights to freedom of expression under article 19 of the Universal Declaration of Human

Rights and article 19 of the Covenant, and freedom of association under articles 20 of the

Universal Declaration of Human Rights and article 22 of the Covenant. The limitations on

these rights and freedoms permitted under the Universal Declaration of Human Rights and

the Covenant, and discussed above, do not apply in the present case. The Government did

not present any argument or evidence to the Working Group to invoke any of these limitations,

20 See https://vietnam.un.org/en/14681-un-recommendations-2015-penal-code-and-criminal-procedural-

code-viet-nam (p. 1).

21 CCPR/C/VNM/CO/3, para. 46.

22 Ibid., para. 45 (a).

23 Human Rights Committee, general comment No. 34, para. 11.

24 Ibid., para. 22.

25 See https://www.ohchr.org/Documents/Issues/Expression/JointDeclaration3March2017.doc (para. 2

(a)). See also opinions No. 46/2020, para. 54; and No. 77/2020, para. 73.

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13

nor did it demonstrate why bringing charges against Mr. Tien was a legitimate, necessary and

proportionate response to his peaceful delivery of books to readers. Importantly, there is

nothing to suggest, as alleged by the Government, that the purpose of his delivering books to

readers was to overthrow the Government.

87.

The source submits that Mr. Tien’s meeting with members of the Liberal Publishing

House in no way directly or indirectly called for violence or could reasonably be considered

to threaten national security, public order, public health or morals, or the rights or reputations

of others. In this regard, the source explains that Mr. Tien was a Liberal Publishing House

staff member who merely delivered books to readers. The source submits that the

Government failed to establish how Mr. Tien’s activity of delivering books could constitute

a danger to national security or public order.

88.

The Working Group considers that Mr. Tien’s conduct falls within the rights to

freedom of opinion and expression and freedom of association protected under articles 19

and 20 of the Universal Declaration of Human Rights and articles 19 and 22 of the Covenant.

His detention is therefore arbitrary and falls under category II. 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.

Category III

89.

Given its finding that Mr. Tien’s detention is arbitrary under category II, the Working

Group emphasizes that no trial should have taken place. Nonetheless, according to the

Government, on 21 January 2022, the People’s Court of Phu Yen Province held the first

instance trial to adjudicate the case of Mr. Tien for the offence of making, possessing and

spreading information, materials and items for the purpose of opposing the State of Viet Nam

under article 117 of the Criminal Code and the offence of illegal appropriation and possession

of explosive materials under article 305 of the Criminal Code. Mr. Tien was sentenced to five

years and six months in prison for the offence provided under article 117 and one year in

prison for the offence provided under article 305. He has therefore been sentenced to a total

of six years and six months in prison.

90.

With regard to the source’s arguments on Mr. Tien’s right to appeal, the Working

Group is unable to make any findings owing to insufficient information.

91.

With regard to Mr. Tien’s right to access legal counsel, the Government submits that

Mr. Tien was granted the right to access to counsel, asserting that he was represented by a

law firm and that on 18 May 2021, a lawyer attended the interrogation of Mr. Tien by the

investigative security agency. However, the source denies this, noting that the Government

has failed to submit any evidence showing that Mr. Tien was represented by the law firm in

question. The source submits that Mr. Tien tried to hire a lawyer, but his request was denied

without any justification, and that he was not provided with a lawyer appointed by the

Government either. The source argues that because Mr. Tien was unable to communicate

with his family, he was unable to hire a lawyer. The Working Group finds the source’s

allegation to be credible and observes that this case is another example of instances when

legal representation was 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.26

92.

The Working Group recalls that 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.27 The

26 Opinions No. 40/2021, No. 11/ 2021, 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

CAT/C/VNM/CO/1, paras. 16–17.

27 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, principle 9 and guideline 8; Human

Rights Committee, general comment No. 35, para. 35; A/HRC/48/55, para. 56 and annex, para. 8

(Deliberation No. 12 of the Working Group on women deprived of their liberty); A/HRC/45/16,

A/HRC/WGAD/2022/35

14

Working Group finds that the Government of Viet Nam violated Mr. Tien’s rights under

article 14 (3) (b) and (d) of the Covenant, which guarantees the right of individuals to defend

themselves, in person or through counsel of their own choosing, to have adequate time and

facilities to prepare their defence and to communicate with counsel of their choosing.

93.

The right to legal assistance is one of the key safeguards against arbitrary detention

and must be strictly adhered to by all States. By preventing Mr. Tien from accessing legal

counsel from the moment of his arrest, the authorities violated the equality of arms principle,

and thereby placed Mr. Tien at an unfair disadvantage, in violation of article 14 of the

Covenant.28 The Working Group concludes that the above violations of Mr. Tien’s due

process and fair trial rights are of such gravity as to give his detention an arbitrary character

under category III.

Disposition

94.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Nguyen Bao Tien, being in contravention of articles 3,

6, 8, 9, 19 and 20 of the Universal Declaration of Human Rights and articles 2, 9, 14,

16, 19 and 22 of the International Covenant on Civil and Political Rights, is arbitrary

and falls within categories I, II, and III.

95.

The Working Group requests the Government of Viet Nam to take the steps necessary

to remedy the situation of Mr. Tien 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.

96.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Tien immediately and accord him an

enforceable right to compensation and other reparations, in accordance with international law.

In the current context of the global 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 unconditional release of Mr. Tien.

97.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Tien

and to take appropriate measures against those responsible for the violation of his rights.

98.

The Working Group requests the Government to bring its laws, in particular article

117 of the Criminal Code of Viet Nam, into conformity with the recommendations made in

the present opinion and with the commitments made by Viet Nam under international human

rights law.

99.

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 and the Special Rapporteur on the rights to freedom of

peaceful assembly and of association, for appropriate action.

100.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

101.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Tien has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Tien;

paras. 50–55. See also A/HRC/27/47, para. 13.

28 See e.g. Opinion No. 65/2021, para. 57.

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15

(c)

Whether an investigation has been conducted into the violation of Mr. Tien’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.

102.

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.

103.

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.

104.

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.29

[Adopted on 7 April 2022]

29 Human Rights Council resolution 42/22, paras. 3 and 7.