A/HRC/WGAD/2023/22, Opinion No. 22/2023 concerning Đặng Đình Bách (Viet Nam)

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.23-09024 (E) 250523 260523

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-sixth session, 27 March–5 April 2023

Opinion No. 22/2023 concerning Đặng Đình Bách (Viet Nam)

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 51/8.

In accordance with its methods of work,1 on 30 November 2022 the Working Group

transmitted to the Government of Viet Nam a communication concerning Đặng Đình Bách.

The Government has not replied to the communication. The State is a party to the

International Covenant on Civil and Political Rights.

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/2023/22

General Assembly

Distr.: General

26 May 2023

Original: English

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GE.23-09024

Submissions

Communication from the source

Đặng Đình Bách was born in September 1978 and is a citizen of Viet Nam. He usually

resides in Hanoi.

According to the source, Mr. Bách led a non-profit organization in Hanoi, the Law

and Policy of Sustainable Development Research Centre, from 2011 to 2021. The Centre

conducted legal advocacy on environmental, land use and industrial pollution cases. Its

primary activities concerned facilitating civil society participation and supporting the rights

and responsibilities of stakeholders in the social and environmental fields. It also played a

role in monitoring the effectiveness and enforcement of the legal and policy framework of

sustainable development in Viet Nam and its clean energy transition. Mr. Bách is respected

for his ability to inspire young people to volunteer for charitable projects such as helping

victims of storms and disasters, especially those affected by climate change and other

environmental catastrophes.

The source notes that, while Mr. Bách is not known for political activism, some of the

cases and projects with which he has been involved are politically sensitive, owing in part to

the involvement of environmental organizations based in the United States of America and

their funding by the United States State Department and the European Union. Reportedly, he

might have been targeted for his work documenting complaints on behalf of people affected

by the Son La hydroelectric plant, which displaced more than 91,000 people, most of whom

were members of ethnic minority groups. Mr. Bách has consistently maintained that he – and

by extension the Law and Policy of Sustainable Development Research Centre – has worked

hand-in-hand with the Government to advance the environmental policies of Viet Nam.

However, his activities relating to documentation and compliance may have been perceived

as hostile to the State.

Arrest and trial proceedings

The source submits that on 24 June 2021, at approximately 7 a.m., six police officers

entered Mr. Bách’s home in Hanoi, where he lived with his family. He was arrested and his

laptop, bank cards and personal and work phones were confiscated. No warrant or

information regarding the basis for his arrest were presented. Around 9.30 a.m. the same day,

about 10 police officers conducted a search of the Law and Policy of Sustainable

Development Research Centre office and confiscated several laptops. On 30 June 2021, the

State Security Agency reported its decision to initiate a criminal case against Mr. Bách for

crimes relating to tax evasion.2 The reason for the charge imputed by the authorities was the

failure to properly account for foreign funding. The indictment states that Mr. Bách contacted

foreign-based organizations and received their funding to implement projects at the Law and

Policy of Sustainable Development Research Centre without obtaining approval from the

relevant authorities. Furthermore, he was accused of evading more than 1.3 billion dong

($57,300) in taxes between 2016 and 2020. He was formally charged on 2 July 2021, nine

days after his arrest.

Mr. Bách was held incommunicado for the vast majority of his pretrial detention

between 24 June 2021 and his trial on 24 January 2022. On 14 January 2022, his lawyer was

finally allowed to visit him in prison. At that meeting, Mr. Bách informed his lawyer that he

had been on hunger strike since 10 January 2022, in protest against his incommunicado

detention. He reportedly appeared to have lost a significant amount of weight. Throughout

his detention, Mr. Bách has not been permitted to receive visits, calls or written

communications from his family, despite numerous requests. The authorities even prevented

his family from giving him a photograph of his son who was only two weeks old when Mr.

Bách was arrested. Other than his meeting on 14 January 2022, and a second visit on 1 July

2022, Mr. Bách was also prevented from having contact with his lawyer. His ability to

prepare a defence was further hindered by the fact that the authorities strongly suggested that

2 Mr. Bach was charged under article 200 of the Criminal Code (2015), which covers crimes relating to

tax evasion.

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GE.23-09024

his trial date would be postponed, which appears to have been an intentional misdirection.

His lawyer received confirmation of his trial date with three days’ notice.

The source submits that, in addition to multiple fair trial violations leading up to Mr.

Bách’s trial, numerous violations occurred during the hearing itself. Despite requests to do

so, the prosecution did not share evidence with Mr. Bách’s lawyer or give the lawyer an

opportunity to question any witnesses for the prosecution. The trial was closed to observers,

including Mr. Bách’s family and representatives of the United States Embassy, despite the

fact that both parties had made applications to attend. Moreover, the court refused to hear

Mr. Bách’s defence, which suggests that the court predetermined his guilt. His presumption

of innocence was also undermined by the fact that he was surrounded by security agents as

he entered and left the courtroom, which prevented his family from approaching him and

conveyed the impression that he posed a threat. After a short deliberation, the court sentenced

Mr. Bách to imprisonment for five years – exceeding the prosecution’s recommendation of

three years – on the basis that he was being recalcitrant by refusing to plead guilty.

Nonetheless, after his sentencing, State-run media misrepresented the proceedings and

reported that Mr. Bách had confessed during the trial, when in fact he has steadfastly

maintained his innocence.

10.

On 5 August 2022, Mr. Bách’s lawyer received notice that his appeal hearing would

take place on 11 August, but was again not given an opportunity to consult with Mr. Bách

beforehand. After being notified of that development by the lawyer, Mr. Bách’s family

member requested permission to attend the appeal, as did representatives of the Embassies

of Germany and the United States. Having initially been told that it would not be possible to

attend, Mr. Bách’s family member received a telephone call from the court the night before

the hearing to say that it would indeed be possible to attend. Accordingly, the family member

went to the courthouse with Mr. Bách’s child to attend the hearing, but upon arrival, they

were denied entry by security personnel and told that there was no room inside. Similarly,

the Embassy representatives were told that there was not enough space for them to attend.

Mr. Bách’s attorney was allowed entry, albeit with a nominal presence; the attorney’s laptop

and phone were confiscated by security personnel before she was allowed to enter the

courtroom, and in images of the hearing shared by State-run media, Mr. Bách is seen standing

alone without counsel before the judge in an almost empty courtroom. The Government’s

argument that there was not enough space for his family or other interested parties to attend

therefore appears disingenuous and is unsupported by the photographic and video images

circulated on national news.

11.

Mr. Bách’s hearing concluded with his appeal being denied and his sentence of five

years’ imprisonment being upheld. Before leaving the courtroom, he informed his attorney

that he had begun a second hunger strike in protest against his ongoing incommunicado

detention. He appeared emaciated and gaunt; the footage of his court appearance shared on

national news and State-run media came as a shock to his family.

Further context

12.

The source indicates that Mr. Bách is one of several civil society members who have

been detained under the tax laws in the past year, which seems by design and practice to be

a tool for the Government to deprive of their liberty people who are perceived as working

against State interests. Mr. Bách was extremely involved in the development of the Free

Trade Agreement between the European Union and Viet Nam, which required Viet Nam to

establish a domestic advisory group composed of independent civil society representatives.

The purpose of the domestic advisory group is to monitor implementation of the Agreement

and make concrete recommendations on workers’ rights, land rights and the environment.

Mr. Bách was also an executive board member of a network of seven development and

environmental civil society organizations set up to raise awareness about the Free Trade

Agreement. It is suspected that his arrest and detention are directly related to his attempt to

establish the domestic advisory group, which the State may have perceived as a threat based

on the group’s mandate to independently monitor government compliance with the Free

Trade Agreement. Independent civil society oversight is a key condition of the Agreement.

The European Union cancelled a joint forum of European and Vietnamese civil society

members that had been scheduled to be held and the fate of the Agreement remains unclear.

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GE.23-09024

13.

At least three other environmental leaders were arrested in Viet Nam in the course of

seven months on charges relating to tax evasion. They have all received heavy prison

sentences. Their arrest and investigation did not follow the normal process for cases involving

tax evasion. Rather, the State security authorities were responsible for the investigations and

there was no notification or request for repayment preceding arrest. Three of the four

environmental defenders were charged with corporate tax evasion, even though Vietnamese

legal professionals advise that tax law is silent on whether non-profit organizations are

required to pay corporate tax.3

14.

According to the source, the incompatibility of the tax laws of Viet Nam with its

obligations under the Covenant has been highlighted by the Human Rights Committee in its

concluding observations, in the 2019 universal periodic review of Viet Nam and in

communications sent by the special procedure mandate holders of the Council.

Analysis of violations

15.

The source submits that Mr. Bách’s deprivation of liberty is arbitrary under categories

I, II, III and V, as detailed below.

Category I

16.

The source recalls that, according to article 9 (2) of the Covenant, persons who are

arrested must be informed, at the time of their arrest, of the reason for the arrest and must be

promptly informed of any charges against them.4 The basis for the arrest and deprivation of

liberty must be invoked and applied throughout the judicial process.5

17.

Mr. Bách was arrested on the night of 24 June 2021 at his home, which he shared with

his family. The arresting officers provided no warrant, nor did they inform him of the charges

against him or the basis for the removal of his belongings, which included personal papers,

computers and cell phones. Not until 2 July 2021 did the State Security Agency issue a

decision to prosecute Mr. Bách for the crime of tax evasion. No charges were presented until

that date.

18.

While international law recognizes that crimes committed in flagrante delicto are an

exception to the warrant requirement, there is no evidence and no allegation that Mr. Bách’s

warrantless arrest was based on that exception. Rather, he was charged on 2 July 2021,

following the decision of the State security authorities to prosecute him. As such, for the nine

days that Mr. Bách was held without a warrant and without being informed of the charges

against him, he was unable to challenge the basis for his detention and there was no legal

basis for his deprivation of liberty.

19.

Mr. Bách’s arrest is also arbitrary because he was: (a) arrested without competent

judicial authorization; (b) held incommunicado; (c) prosecuted under vague laws that violate

the principle of legality; and (d) prosecuted under laws used to target and silence government

critics. Domestic laws that violate norms of international law cannot form an adequate legal

basis for arrest. Any national law allowing deprivation of liberty must be made and

implemented in compliance with the relevant international provisions set forth in the

Universal Declaration of Human Rights, the Covenant and other relevant international legal

instruments.6

20.

From July 2021 to August 2022, Mr. Bách was held almost entirely incommunicado.

Article 9 (3) of the Covenant provides that pretrial detention should be the exception rather

than the general rule. By holding Mr. Bách incommunicado, the Government failed to

consider alternatives to pretrial detention, such as home arrest, and violated his right to

3 See communication VNM 2/2022, available at

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27089,

in which it is noted that there was reason to believe that Mr. Bách had been imprisoned for his

activities, given the fact that according to the State’s laws, all non-profit non-government

organizations were not subject to tax (p. 5).

4 Human Rights Committee, general comment No. 35 (2014), para. 24.

5 Opinion No. 75/2017, para. 35.

6 Opinion No. 51/2017, para. 27.

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GE.23-09024

contest the legality of his detention. Consequently, Mr. Bách was placed outside the

protection of the law (Universal Declaration of Human Rights, art. 6, and Covenant, art. 16)

and his right to an effective remedy was violated (Universal Declaration of Human Rights,

art. 8, and Covenant, art. 2 (3)).

21.

The source recalls that the Working Group has established that the Procuracy of Viet

Nam does not satisfy the criteria in article 9 of the Covenant because it is not an independent

judicial authority and is in fact controlled by the executive branch.7 Detention ordered by a

body other than a competent, independent and impartial authority lacks legal basis. The

investigation and decision to prosecute Mr. Bách were led by the State Security Agency,

which is part of the executive branch, and he was prosecuted by the Procuracy, which is also

considered to be under the control of the executive.8 Accordingly, his deprivation of liberty

is arbitrary under category I because his arrest and detention were not authorized by a

competent judicial authority.

22.

Furthermore, international law requires that laws which restrict fundamental rights

must be sufficiently precise so as not to unnecessarily limit those rights.9 The principle of

legality requires that laws must be framed with sufficient precision to allow persons to

understand the scope and requirements of the law and to regulate their conduct accordingly.10

The decrees on which Mr. Bách’s deprivation of liberty is based are insufficiently clear and

imprecise, which violates the principle of legality.11 Accordingly, they cannot form a lawful

basis for his deprivation of liberty.

Category II

23.

The source notes that the right to freedom of expression includes the right to hold an

opinion and the freedom to seek, impart and receive information and ideas of all kinds in any

form. The Human Rights Committee has indicated that, pursuant to article 19 (3) of the

Covenant, any restriction on that right must be proportional, necessary and the least intrusive

means possible to achieve a legitimate State interest.12 For a restriction to qualify as the least

intrusive option available, it must be both narrowly tailored in terms of the conduct punished

and able to distinguish between those persons who are acting illegally and those who are

acting peacefully. Accordingly, overbroad restrictions cannot be the least intrusive option

and, therefore, cannot be considered proportional. If a criminal penalty is imposed on

7 E.g., opinion No. 81/2020, para. 56.

8 Opinion No. 81/2020, para. 56, footnote 3, in which the Working Group reiterated that, although

prolonged pretrial detention may be permitted under the Criminal Procedure Code 2003 of Viet Nam

and through other legislative provisions, such as the Procuracy allowing the approval of arrest

warrants, they are not a substitute for the right to judicial review of a detention and are consequently

inconsistent with international human rights law.

9 A/HRC/31/66, para. 30.

10 Human Rights Committee, general comment No. 35 (2014), para. 22; and opinions No. 41/2017,

paras. 98–101; and No. 62/2018, paras. 57–59.

11 Government Decree No. 93 of 22 October 2009 on the management and use of foreign non-

governmental aid expired on 17 September 2020 and was replaced by Decree No. 80 of 8 July 2020.

See also Decree No. 218 of 26 December 2013 on the law on corporate income tax and Circular No.

78 of 18 June 2014 on Decree No. 218. That Decree provides that grants received and used for

educational activities, scientific research, culture, art, charity, humanity and other social activities in

Viet Nam (art. 4.7) are exempt from taxation. However, there is no further guidance on the

conditions, criteria or procedures to warrant exemption from corporate income tax for those grants.

Circular No. 78 providing guidance on that decree repeats the same text, which has left its application

open to the discretion of the Government. According to the State Security Agency, the revenue of the

Law and Policy of Sustainable Development Research Centre is foreign non-governmental aid, which

falls under the purview of Decree No. 80, and “in the process of receiving grants from abroad, the

Centre does not carry out the approval procedures and is not approved by the competent authorities in

accordance with law”. However, the tax law and the Criminal Code of Viet Nam do not regulate such

violations as a criminal matter. Furthermore, pursuant to Decree No. 218 (art. 4.7) and Circular No.

78 (art. 8), the Centre’s total tax revenue deemed “foreign non-governmental aid” is “exempted tax”

and is “not payable”. Mr. Bách maintains that all the grants received by the Centre were used for the

proper purposes, as confirmed by its foreign grant sponsors, and were therefore correctly categorized

as exempt from corporate tax income.

12 Human Rights Committee, general comment No. 34 (2011), paras. 22 and 34.

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individuals in cases where a civil penalty would suffice, the restriction is not the least

intrusive option available. The Working Group has found that laws that criminalize critical

speech encourage self-censorship and suppress important debates on matters of public

interest, thus putting in jeopardy the right to freedom of opinion and expression.13

24.

The source recalls that the Special Rapporteur on the rights to freedom of peaceful

assembly and of association and the Special Rapporteur on the promotion and protection of

the right to freedom of opinion and expression have raised serious concerns about the decrees

on which Mr. Bách’s deprivation of liberty is based. 14 The Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression has warned that

the threat of a long prison sentence and vagueness about what kinds of expression constitute

a violation encourage self-censorship and stifle important debates on matters of public

interest.15

25.

The Special Rapporteur on the rights to freedom of peaceful assembly and of

association and the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression have also noted that the amended regulations had

“imposed additional burdensome requirements for the creation and operation of human rights

organizations”, in violation of articles 21 and 22 of the Covenant, which relate to freedom of

assembly and of association. They noted that there was “particular cause for concern”

regarding article 2 of Decree No. 93, under which Mr. Bách was charged, which prohibits

foreign non-governmental aid that affects political security or social order and safety or

infringes upon the interests of the State. The imprecise nature of that article of the Decree

and the absence of clear definitions left it “open to a wide range of interpretations”, thus

impeding “the ability of associations to pursue their statutory activities” and violating article

22 of the Covenant.16

26.

The source submits that Mr. Bách was also charged under Decree No. 80, which

restricts access to foreign aid. The above-mentioned Special Rapporteurs have noted that

most of the legal justifications for restrictions on access to foreign aid put forward in article

5 of that Decree do not comply with article 22 (2) of the Covenant. That article of the

Covenant stipulates that any restrictions placed on the exercise of the fundamental right to

freedom of association must be necessary in a democratic society in the interests of national

security or public safety, public order (ordre public), the protection of public health or morals

or the protection of the rights and freedoms of others. Accordingly, they advised the

Government that restrictive measures must not “be misused to hinder the work and endanger

the safety of civil society organizations”.17

27.

While Mr. Bách’s detention is ostensibly based on tax violations, the laws forming

the basis of his arrest and detention relate directly to his exercise of freedom of expression

and association. His organization took part in monitoring the Government’s compliance with

environmental agreements, which constitutes a form of expression. While the rights to

freedom of expression and of association may be restricted in limited circumstances, the

Government has not articulated a legitimate State interest in restricting them. Its application

of criminal penalties for their exercise is not proportional and does not constitute the least

intrusive means. Decrees No. 80 and No. 93 vaguely criminalize an overly broad assortment

of speech and information-sharing acts and hinder the ability of non-governmental entities to

operate freely. Mr. Bách was deprived of his liberty specifically because of his public interest

work, meaning that his right to freedom of expression was violated both de jure and de facto.

Furthermore, he was deprived of his liberty under laws that are being used as a pretext to

silence independent voices, which is incompatible with the right to freedom of expression.

Accordingly, his detention is arbitrary under category II.

13 Opinion No. 44/2016, paras. 24 and 25.

14 See communication VNM 7/2021.

15 A/HRC/20/17, para. 20.

16 Communication VNM 7/2021, pp. 5–7.

17 Ibid., p. 8.

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Category III

28.

The source argues that Mr. Bách’s right to a fair and impartial trial has been violated

on several fronts, including: (a) his right to challenge the basis of his arrest (art. 9 of the

Covenant and art. 9 of the Universal Declaration of Human Rights); (b) his right to prepare

an adequate defence (art. 14 (1) and (3) (b) of the Covenant and art. 10 of the Universal

Declaration of Human Rights); (c) his right to meaningfully consult counsel (art. 14 (3) (b)

and (d) of the Covenant and arts. 10 and 11 of the Universal Declaration of Human Rights);18

(d) his right to the presumption of innocence (art. 14 (2) of the Covenant and art. 11 of the

Universal Declaration of Human Rights);19 and (e) his right to be free from ill-treatment,

which has undermined his ability to prepare a defence.

29.

Mr. Bách was subjected to a warrantless arrest and was not provided with the basis

for his detention for nine days. Without knowing the reason for his arrest or the charges

against him, neither Mr. Bách nor his attorney were able to challenge the basis for his

detention. That delay also violated his right to be brought promptly before a judicial

authority.20

30.

Even after he learned of the charges against him, Mr. Bách was held incommunicado

for nearly eight months before his trial date, which placed him outside the protection of the

law and violated his right to regular review of the necessity of his pretrial detention.

31.

By holding Mr. Bách incommunicado, the Government also violated his right to

prepare an adequate defence. He was not able to meet with his lawyer consistently, despite

multiple requests. His lawyer saw Mr. Bách only twice before his trial on 24 January 2022,

and those meetings were not confidential. The Government also hindered Mr. Bách’s ability

to prepare a defence by not sharing evidence with his lawyer and denying her the right to

question witnesses for the prosecution. In fact, the court refused to hear his defence entirely,

which indicates it had already pre-judged his guilt. That is further supported by the court’s

almost automatic determination that he was guilty during his initial hearing and the decision

to uphold his sentence at his appeal hearing on 11 August 2022.

32.

Mr. Bách’s closed trial and appeal hearing also violate essential principles of the right

to a fair trial. Neither his family or interested parties, including representatives of the

Embassies of Germany and the United States, were allowed to enter the courtroom. The

Government’s explanation for denying their requests was that there was no space in the

courtroom, which is unsupported by the images taken from inside the courtroom. Article 14

(1) of the Covenant provides that “everyone shall be entitled to a fair and public hearing”.

States may limit the press and the public for reasons of public order or national security, but

the Government has never provided any argument as to why Mr. Bách’s case would fit an

exception to the right to a public trial.

33.

Prosecuting Mr. Bách in a closed trial also undermined his presumption of innocence.

The Government effectively prevented public scrutiny of his trial and appeal hearing and was

able to control the narrative of what occurred through State-run media. Media articles

published following his trial reported that he had confessed to the charges against him and

suggested that further charges might be pending, which effectively tried him in the court of

public opinion. In both his initial trial and his appeal hearing, Mr. Bách was escorted by

security agents, which conveyed the appearance of guilt. His prolonged incommunicado

detention both before and after his trial likewise undermines the presumption of innocence

by suggesting that he is dangerous or poses a security threat.

34.

According to the source, Mr. Bách’s right to be tried by a competent tribunal was not

upheld. The Procuracy is not an independent judicial authority because it is not protected

from political influence, and is therefore incompatible with the right to be tried by a fair and

impartial tribunal. Furthermore, the source submits that: (a) nearly all the judges are members

of the Communist Party of Viet Nam and are screened by the Party to determine their

suitability for the bench; (b) the Party’s oversight and control over the judiciary is further

18 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,

principles 15, 17 and 18.

19 Ibid., principle 36.

20 Human Rights Committee, general comment No. 35 (2014), para. 32.

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reinforced by the reappointment process, which takes place every five years following review

of their conduct by Party officials; and (c) a lack of legislative and other safeguards protecting

judicial independence has led to both judges and prosecutors being seen as tools of repression

and injustice. The Human Rights Committee has interpreted the obligation to ensure a fair

and impartial trial before an independent and impartial court as requiring States to take

specific measures guaranteeing the independence of the judiciary and to protect judges from

any form of political influence in their decision-making through the constitution or adoption

of laws establishing clear procedures and objective criteria for the appointment,

remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary

and disciplinary sanctions taken against them.21

35.

The impact of Mr. Bách’s incommunicado detention is also relevant to his right to be

free from torture and other ill-treatment and the extent to which violations of that right

adversely affect his ability to prepare a defence. The source recalls that credible allegations

of torture and ill-treatment “significantly decrease the likelihood” that a detainee has received

a fair trial.22 Similarly, “any instance of torture during pretrial detention constitutes a visceral

risk for the trial that follows, making it impossible for such a trial to be fair”.23

36.

Viet Nam is bound by the obligations under the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment. Denying family visitation and

correspondence is considered punitive and can increase suffering.

37.

The authorities kept Mr. Bách incommunicado throughout his pretrial detention and

after his sentencing. They have repeatedly denied his family member’s requests to visit him,

blocked written communications and even prevented the family member from sharing a

photograph of his child with him. The State has made clear that it considers Mr. Bach

“recalcitrant” and “stubborn” for maintaining his innocence, and its denial of family visits

appears to be punitive and designed to compel a confession of guilt by subjecting him to an

ongoing environment of distress, which constitutes ill-treatment and may rise to the level of

torture. Mr. Bách has gone on hunger strike on two occasions to protest against his ongoing

incommunicado detention. He appeared gaunt and unwell at his appeal hearing, and his

family and friends believe that his inability to see or communicate with loved ones is severely

affecting his well-being. That, in turn, has impaired his ability to prepare a defence and his

equality of arms before the law, in violation of his right to a fair trial.

38.

The Government has thus failed to observe the international norms relating to a fair

trial and has indicated on numerous fronts that it has predetermined Mr. Bách’s guilt as a

means of depriving him of liberty. Accordingly, his detention is arbitrary under category III.

Category V

39.

The source submits that Mr. Bách’s deprivation of liberty is arbitrary under category

40.

According to the source, where the authorities have made statements to, or conducted

themselves towards, the detained person in a manner that indicates a discriminatory attitude

– for instance where a detainee is held in worse conditions or for a longer period than other

detainees in similar circumstances – there is strong evidence of discrimination on the basis

of a protected status. Likewise, if the facts of the case indicate that the individual was detained

to prevent him or her from exercising his or her fundamental rights, the detention is likely to

be discriminatory.

41.

The Government’s treatment and attitude towards Mr. Bách can only be characterized

as discriminatory, and they have negatively affected his right to equality before the law. It

appears that Mr. Bách was targeted based on his activities relating to environmental activism

and monitoring of the State’s compliance with international and domestic regulations relating

to environmental law. While he does not consider himself to be a human rights defender, his

professional activities relate directly to advocating for the rights of others, including the right

21 Human Rights Committee, general comment No. 32 (2007), para. 19.

22 Opinion No. 53/2018, para. 77.

23 Opinion No. 85/2017, para. 50.

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to a clean environment and to land. For instance, it is believed that he was targeted because

of his work documenting complaints on behalf of people affected by the Son La hydroelectric

plant. All records of his involvement with the Son La victims were taken by the State Security

Agency and have not been returned. Accordingly, his differential treatment may constitute

discrimination on the basis of his perceived status as a human rights defender.

42.

The Government has not afforded Mr. Bách the same treatment as other

environmental advocates detained under the same charges. Those who plead guilty have been

able to receive family visits, whereas his right to visitation has consistently been denied. It

also appears that the Government is punishing Mr. Bách for steadfastly maintaining his

innocence; the court passed a sentence that exceeded the recommendation of the prosecutor,

noting that it found him stubborn and recalcitrant for not pleading guilty. That differential

treatment speaks to the Government’s discriminatory attitude towards his case and its failure

to ensure his equality of arms before the law. His deprivation of liberty is arbitrary under

category V.

Response from the Government

43.

On 30 November 2022, the Working Group transmitted the allegations from the

source to the Government under its regular communications procedure, requesting a reply by

30 January 2023. The Working Group also called upon the Government to ensure Mr. Bách’s

physical and mental integrity.

44.

On 26 January 2023, the Government requested an extension in accordance with

paragraph 16 of the Working Group’s methods of work, which was granted with a new

deadline of 28 February 2023.

45.

While the Government requested an extension of the time limit for its reply, as

provided for in the Working Group’s methods of work, the Working Group regrets that it did

not receive a response from the Government to that communication.

Discussion

46.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 16 of its methods of work.

47.

In determining whether Mr. Bách’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 of 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.24 In the present case, the Government has chosen not to

challenge the prima facie credible allegations made by the source.

Category I

48.

The Working Group will first consider whether there have been violations under

category I, which concerns deprivation of liberty without legal basis.

49.

The source submits that on 24 June 2021, six police officers entered Mr. Bach’s family

home. They arrested him without a warrant and did not provide him with any information

regarding the basis for his arrest. Neither did they provide him with any basis for confiscating

his personal belongings such as documents, computers and cell phones. Mr. Bach was not

brought before a judge to determine the legality of his arrest and pretrial detention. The source

also submits that Mr. Bách was not given any explanation for his detention for nine days.

Without knowing the reason for his arrest or the charges against him, neither Mr. Bách nor

his attorney were able to challenge the basis for his detention. That delay also violated his

right to be brought promptly before a judicial authority.25

50.

Pursuant to article 9 (1) of the Covenant, no one shall be deprived of his or her liberty

except on such grounds and in accordance with such procedures as are established by law.

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

25 Human Rights Committee, general comment No. 35 (2014), para. 32.

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Article 9 (2) provides that anyone who is arrested shall be informed, at the time of arrest, of

the reasons for his or her arrest and shall be promptly informed of any charges against him

or her.26 Noting the source’s submissions, and absent a response from the Government, the

Working Group finds that Mr. Bách was not shown an arrest warrant (or equivalent),

informed immediately of the reasons for his arrest or promptly informed of the charges

against him, in violation of article 9 (1) and (2) of the Covenant. While it is unclear if any of

the material seized during the illegal search was used against Mr. Bách in the course of the

legal proceedings, such conduct further demonstrates the authorities’ failure to follow proper

procedures to ensure that Mr. Bách’s detention had a legal basis and compounds the arbitrary

nature of his detention. The Working Group recalls the right to be brought promptly before

a judicial authority to challenge detention within 48 hours of the arrest, barring absolutely

exceptional circumstances, in accordance with the international standard set out in the

Working Group’s jurisprudence.27 The right to bring proceedings before a court so that the

court may decide without delay on the lawfulness of the detention is protected under article

9 of the Universal Declaration of Human Rights, article 9 (3) of the Covenant and principles

11, 32 and 37 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment. The Working Group finds that this right was violated, as Mr.

Bách was not brought promptly before a judicial authority.

51.

Article 9 (3) of the Covenant provides that it shall not be the general rule that persons

awaiting trial shall be detained in custody. The Working Group recalls the Human Rights

Committee’s view that pretrial detention should be an exception, be as short as possible and

must be based on an individualized determination that it is reasonable and necessary taking

into account all the circumstances, for such purposes as to prevent flight, interference with

evidence or the recurrence of crime. Courts must examine whether alternatives to pretrial

detention, such as bail or other conditions, would render detention unnecessary in the

particular case.28 In the present case, absent a response from the Government, the Working

Group concludes that there was no individualized determination of Mr. Bách’s

circumstances, and as a result, his detention lacked a legal basis and was ordered in violation

of article 9 (3) of the Covenant and principles 38 and 39 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment.

52.

Moreover, the source submits that from July 2021 to August 2022, Mr. Bách was held

almost entirely incommunicado. The Working Group recalls that holding persons

incommunicado prevents prompt presentation before a judge, as provided for in article 9 (3)

of the Covenant,29 and violates the right under article 9 (4) to challenge the lawfulness of the

detention before a court.30 Judicial oversight of detention is a fundamental safeguard of

personal liberty31 and is essential in ensuring that detention has a legal basis. Given that Mr.

Bách 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

was 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.

53.

The source also submits that Mr. Bách’s right to family visits and contact with the

outside world was violated. Throughout his detention, Mr. Bách has not been permitted to

receive visits, phone calls or written communications from his family, despite numerous

requests. A detainee must be allowed to communicate with and receive visits from family

members, and any restrictions and conditions with regard to such contact must be reasonable.

As the Human Rights Committee has observed, giving prompt and regular access to family

members, as well as to independent medical personnel and lawyers, is an essential and

necessary safeguard for the prevention of torture and for protection against arbitrary detention

26 Ibid., para. 24.

27 Opinions No. 57/2016, paras. 110–111; No. 2/2018, para. 49; No. 83/2018, para. 47; No. 11/2019,

para. 63; and No. 30/2019, para. 30.

28 Human Rights Committee, general comment No. 35 (2014), paras. 37 and 38.

29 Ibid., para. 35.

30 Opinions No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019 and 25/2021.

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

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and infringement of personal security.32 The Working Group finds that Mr. Bách’s right to

communicate with the outside world was denied, contrary to rule 58 of the United Nations

Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)33 and

principles 15, 16 (1) and 19 of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment.

54.

For those reasons, the Working Group finds that the Government failed to establish a

legal basis for Mr. Bách’s arrest and detention. His detention is arbitrary under category I.

Category II

55.

The source submits that while Mr. Bách’s detention is ostensibly based on tax

violations, the laws forming the basis of his arrest and detention relate directly to his exercise

of freedom of expression and association. According to the source, his organization took part

in monitoring the Government’s compliance with environmental agreements, which

constitutes a form of expression. Mr. Bách was deprived of his liberty under laws that are

being used as a pretext to silence independent voices, which is incompatible with the right to

freedom of expression.

56.

Article 19 (2) of the Covenant protects the holding and expression of opinions,

including those that are not in line with government policy.34 The Human Rights Committee

has 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

Government without fear of interference or punishment.35 It has emphasized that this form of

expression is highly relevant in assessing whether a restriction is proportionate. As stipulated

by the Human Rights Council, certain types of expression, such as discussion of government

policies and political activities, including for peace or democracy, should never be subject to

restrictions.36 The Council has called upon States to refrain from imposing restrictions that

are not consistent with article 19 (3) of the Covenant.37

57.

While those rights may be restricted in limited circumstances, in the present case, the

Government has not articulated a legitimate State interest in restricting them, and its

application of criminal penalties for their exercise is not proportional or the least intrusive

means. The permitted restrictions to that right may relate either to respect for 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 paragraph 3, even if such grounds would justify

restrictions to other rights protected under 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.38 The Government did not present any argument to invoke

any of those limitations, nor has it demonstrated why bringing charges against Mr. Bách was

a legitimate, necessary and proportionate response to his online activities. The Working

Group is not convinced that prosecuting Mr. Bách is necessary to protect a legitimate interest

under that article of the Covenant, nor that Mr. Bách’s arrest and detention are a necessary

or proportionate response to his activities. Importantly, there is no indication that his

activities were intended or had the potential to incite violent behaviour.

58.

The source submits that Decree No. 93 of 22 October 2009, which was replaced by

Decree No. 80 of 8 July 2020, both vaguely criminalize an overly broad swath of speech and

information-sharing acts, thus hindering the ability of non-governmental entities to operate

freely. The Working Group recalls that the Special Rapporteur on the rights to freedom of

peaceful assembly and of association and the Special Rapporteur on the promotion and

protection of the right to freedom of opinion and expression have raised serious concerns

32 Human Rights Committee, general comment No. 35 (2014), para. 58; and opinion No. 84/2020, para.

69.

33 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74–75; and No. 45/2019, para. 76.

34 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.

35 Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), para. 6.7.

36 A/HRC/14/23, para. 81 (i).

37 Human Rights Council resolution 12/16, para. 5 (p).

38 Human Rights Committee, general comment No. 34 (2011), para. 22.

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about the decrees on which Mr. Bách’s deprivation of liberty is based.39 Similarly, the Special

Rapporteur on the promotion and protection of the right to freedom of opinion and expression

has warned that the threat of a long prison sentence and vagueness about what kinds of

expression constitute a violation encourage self-censorship and stifle important debates on

matters of public interest.40

59.

The Special Rapporteur on the rights to freedom of peaceful assembly and of

association and the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression also noted that the amended regulations had “imposed

additional burdensome requirements for the creation and operation of human rights

organizations”, in violation of articles 21 and 22 of the Covenant, which relate to freedom of

assembly and association. They noted that there was “particular cause for concern” regarding

article 2 of Decree No. 93, under which Mr. Bách was charged, which prohibits foreign non-

governmental aid that affects political security or social order and safety or infringes upon

the interests of the State. The imprecise nature of that article of the Decree and the absence

of clear definitions left it “open to a wide range of interpretations”, thus impeding “the ability

of associations to pursue their statutory activities” and violating article 22 of the Covenant.41

60.

The source submits that Mr. Bách was also charged under Decree No. 80, which

restricts access to foreign aid. The above-mentioned Special Rapporteurs found that most of

the legal justifications for restrictions on access to foreign aid put forward in article 5 of that

Decree did not comply with article 22 (2) of the Covenant, which article stipulates that any

restriction placed on the exercise of the fundamental right to freedom of association must be

necessary in a democratic society in the interests of national security or public safety, public

order (ordre public), the protection of public health or morals or the protection of the rights

and freedoms of others. The Special Rapporteurs advised the Government that restrictive

measures must not “be misused to hinder the work and endanger the safety of civil society

organizations”.42

61.

The Working Group recalls that 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.43 In the Working Group’s view, Decree No. 93 and

Decree No. 80 do not meet that standard. They are thus incompatible with article 11 (2) of

the Universal Declaration of Human Rights and article 15 (1) of the Covenant and the acts

they describe cannot be considered “prescribed by law” or “defined with sufficient precision”

owing to the vague and overly broad language they contain. 44 Prosecutions under those

decrees are likely to have a chilling effect upon the peaceful exercise of the right to freedom

of opinion and of expression. For those reasons, the Working Group concludes that Mr.

Bách’s detention resulted from his exercise of the right to freedom of opinion and of

expression, contrary to article 19 of the Universal Declaration of Human Rights and article

19 of the Covenant.

62.

The Working Group thus finds that his arrest and detention is arbitrary under category

II.

63.

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.

Category III

64.

Given its finding that Mr. Bách’s deprivation of liberty is arbitrary under category II,

the Working Group wishes to emphasize that no trial should have taken place. However, Mr.

Bách has been tried and convicted. In the light of the above, the Working Group will now

consider whether the alleged violations of the right to a fair trial and due process were grave

39 See communication VNM 7/2021.

40 A/HRC/20/17, para. 20.

41 Communication VNM 7/2021, pp. 5–7.

42 Ibid., p. 8.

43 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.

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

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enough to give Mr. Bách’s deprivation of liberty an arbitrary character, such that it falls

within category III.

65.

The source argues that by holding Mr. Bách incommunicado, the Government

violated his right to prepare an adequate defence. He was not able to meet with his lawyer

consistently, despite multiple requests. Mr. Bách only saw his lawyer twice before his trial

on 24 January 2022, and those meetings were not confidential. The Government also

hindered Mr. Bách’s ability to prepare a defence by not sharing evidence with his lawyer.

66.

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.45 The

Working Group finds that the extremely limited access to legal assistance granted to Mr.

Bách violates his right to equality of arms and to a fair hearing by an independent and

impartial tribunal under article 14 (1) of the Covenant. 46 Moreover, Mr. Bách was not

afforded his rights to adequate time and facilities for the preparation of his defence and to

communicate with counsel, as guaranteed under article 14 (3) (b) of the Covenant. That

includes the failure to provide Mr. Bách with prompt and confidential access to a lawyer. The

source further submits that his lawyer received confirmation of his trial date with three days’

notice, despite the authorities’ strong indication that his trial date would be postponed. The

Working Group notes that the present case is another example of the denial or limitation of

legal representation, suggesting that there is a systemic failure to provide access to counsel

during criminal proceedings in Viet Nam.47

67.

The source submits that Mr. Bách’s counsel was denied the right to question witnesses

for the prosecution and the court refused to hear his defence in its entirety. On the principle

of equality of arms, there is a strict obligation to respect the right to have witnesses admitted

that are relevant for the defence and to be given a proper opportunity to question and

challenge witnesses against them at some stage of the proceedings.48 In the present case, that

right was denied to Mr. Bách and such a refusal to allow any defence bears the hallmarks of

serious denial of equality of arms in the proceedings. The Working Group thus finds a

violation of article 14 (1) and (3) (e) of the Covenant.

68.

In addition, the source submits that Mr. Bách’s trial and appeal hearing were closed

to the public. As the Human Rights Committee has stated, criminal trials are to be conducted

in public unless one of the exceptional circumstances outlined in article 14 (1) justifies the

closure of a trial, that is, for reasons of morals, public order or national security.49 In the

present case, the Government has not provided any information to justify the exceptional step

of holding a closed trial. Accordingly, the Working Group finds that Mr. Bách did not have

a public hearing, in violation of article 10 of the Universal Declaration of Human Rights and

article 14 (1) of the Covenant, which provides that “everyone shall be entitled to a fair and

public hearing”.

69.

The source also submits that prosecuting Mr. Bách in a closed trial undermined his

presumption of innocence. The Government effectively prevented public scrutiny of his trial

and appeal hearing and was able to control the narrative of what occurred through State-run

media. Article 14 (2) of the Covenant guarantees that everyone charged with a criminal

offence shall have the right to be presumed innocent according to law. The Human Rights

Committee has stated that it is a duty for all public authorities to refrain from prejudging the

outcome of a trial. Defendants should normally not be presented to the court in a manner

indicating that they might be dangerous criminals.50 In that regard, the Working Group notes

the source’s submission that Mr. Bách was surrounded by security agents when he entered

45 A/HRC/30/37, annex, principle 9 and guideline 8; Human Rights Committee, general comment No.

35 (2014), para. 35; A/HRC/48/55, para. 56; and A/HRC/45/16, paras. 50–55. See also A/HRC/27/47,

para. 13.

46 Opinions No. 18/2018, para. 53; No. 78/2018, paras. 78–79; and No. 43/2022, para. 105.

47 See opinions No. 35/2018, No. 46/2018, No. 9/2019, No. 44/2019, No. 45/2019 and No. 43/2022; and

CAT/C/VNM/CO/1, paras. 16 and 17.

48 Human Rights Committee, general comment No. 32 (2007), para. 39.

49 Ibid., para. 29.

50 Ibid., para. 30.

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and left the courtroom, which prevented his family from approaching him and conveyed the

appearance that he was a threat and guilty.

70.

Noting the lack of submissions from the Government, the Working Group concurs

with the source that such a presence of security agents could give the impression that Mr.

Bách might be a dangerous criminal warranting heavy security, thus undermining the

presumption of innocence.51 In addition, the source submits that after his sentencing, State-

run media misrepresented the proceedings and reported that Mr. Bách had confessed during

the trial, when in fact he has steadfastly maintained his innocence. In its general comment

No. 32 (2007), the Human Rights Committee specified that the media should avoid news

coverage undermining the presumption of innocence (para. 30). In the present case, the

Working Group considers that the news coverage undermined Mr. Bách’s right to be

presumed innocent during the appeal proceedings. The Working Group therefore finds that

Mr. Bách’s right to the presumption of innocence guaranteed under article 14 (2) of the

Covenant and article 11 of the Universal Declaration of Human Rights has been undermined.

71.

Furthermore, the source submits that Mr. Bách’s right to be tried by a competent

tribunal was not upheld. The source argues that: (a) nearly all the judges are members of the

Communist Party of Viet Nam and are screened by the Party to determine their suitability for

the bench; (b) the Party’s oversight and control over the judiciary is further reinforced by

their reappointment process, which takes place every five years following review of their

conduct by party officials; and (c) a lack of legislative and other safeguards protecting judicial

independence has led to both judges and prosecutors being seen as tools of repression and

injustice. Indeed, in its concluding observations on Viet Nam, the Human Rights Committee

expressed concern that the procedures for the selection of judges as well as their lack of

security of tenure, combined with the possibility of taking far-reaching disciplinary measures

against judges, exposed them to political pressure and jeopardized their independence and

impartiality.52 Moreover, according to the source, other environmental advocates detained

under the same charges who pleaded guilty have been able to receive family visits, whereas

Mr Bach’s visitation rights have consistently been denied, with the court implementing a

sentence that exceeded the Prosecutor’s recommendation, noting that it found him stubborn

and recalcitrant for maintaining his innocence. Based on those factors, and absent a response

from the Government, the Working Group concludes that Mr Bach’s right to be tried by a

competent, independent and impartial tribunal under article 14 (1) of the Covenant was

violated. That is supported by the court’s almost automatic determination that he was guilty

during his initial hearing, without allowing him an opportunity to present his defence.

72.

Lastly, the Working Group notes the source’s submission that Mr. Bach’s lawyer

received notice on 5 August 2022 that his appeal hearing would take place on 11 August. The

lawyer was not allowed to meet with Mr. Bach before the hearing and her presence at the

hearing was nominal; her laptop and phone were confiscated before she was allowed to enter

the courtroom, and in images of the hearing shared by State-run media, Mr. Bách is seen

standing alone without counsel before the judge in an almost empty courtroom. The State-

run media also allegedly misrepresented the trial proceedings, reporting that Mr. Bách had

confessed, whereas he has maintained his innocence. Based on the foregoing, the Working

Group finds a violation of article 14 (5) of the Covenant which imposes on States a duty to

review conviction and sentence, both as to sufficiency of the evidence and of the law.53

73.

The Working Group thus concludes that the numerous violations of Mr. Bách’s right

to a fair trial and due process are of such gravity as to render his deprivation of liberty

arbitrary under category III.

Category V

74.

According to the source, Mr. Bách appears to have been targeted based on his

activities relating to environmental activism and monitoring of the State’s compliance with

international and domestic regulations on environmental law. While he does not consider

51 Opinions No. 40/2016, para. 41; No. 9/2017, para. 62; No. 36/2018, para. 55; No. 83/2019, para. 73;

and No. 36/2020, para. 68.

52 CCPR/CO/75/VNM, para. 10.

53 Bandajevsky v. Belarus (CCPR/C/86/D/1100/2002), para. 10.13.

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himself to be a human rights defender, his professional activities relate directly to advocating

for the rights of others, including the right to a clean environment and to land.

75.

The source notes that at least three other environmental leaders were arrested in Viet

Nam in the course of seven months on charges relating to tax evasion and that they all

received heavy prison sentences. Their arrest and investigation reportedly did not follow the

normal process for tax evasion.

76.

In the absence of a reply from the Government, prima facie the Working Group finds

the source’s allegations that Mr. Bách was targeted based on his activities relating to

environmental activism to be credible. The Working Group recalls that it has issued several

opinions pertaining to Vietnamese activists who have been involved in environmental

activism.54 In this context, the Working Group finds that Mr. Bách’s arrest, conviction and

sentence and the denial of family visits seek to punish him for activities that are expressly

protected by international law. As such, in the discussion above concerning category II, the

Working Group established that Mr. Bách’s detention had resulted from the peaceful exercise

of his fundamental freedoms. 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.55

77.

The Working Group thus finds that Mr. Bách’s deprivation of liberty constitutes a

violation of international law on the grounds of discrimination based on political or other

opinion, relating to his environmental work. His detention violates articles 2 and 7 of the

Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, and is

arbitrary under category V.

78.

The Working Group refers the case to the Special Rapporteur on the issue of human

rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable

environment.

Concluding remarks

79.

According to the source, throughout his detention, Mr. Bách has not been permitted

to receive visits, calls or written communications from his family, despite numerous requests.

The Working Group is alarmed by the allegations that the authorities prevented his family

from giving him a photograph of his son who was only two weeks old when Mr. Bách was

arrested. Mr. Bách has informed his attorney that he had been on a hunger strike since 10

January 2022, in protest against his incommunicado detention, and appears to have lost a

significant amount of weight. Recalling rule 58 of the Nelson Mandela Rules and principles

15 and 19 of the Body of Principles,56 the Working Group strongly urges the Government to

ensure that Mr. Bách’s right to contact with the outside world, in particular his family, is

respected. The Working Group is compelled to remind the Government that, according to

article 10 (1) of the Covenant and rule 1 of the Nelson Mandela Rules, all persons deprived

of their liberty must be treated with humanity and dignity.

80.

The present case is one of a number of cases brought before the Working Group in

recent years concerning the arbitrary deprivation of liberty of persons, particularly human

rights defenders, in Viet Nam.57 Many of these cases follow a familiar 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, a brief

closed trial at which due process is not observed, disproportionate sentencing and denial of

access to the outside world. The Working Group is concerned that this pattern indicates a

54 See opinions No. 44/2019, No. 45/2019, No. 81/2020, No. 81/2021, No. 43/2022 and No. 86/2022.