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.24-17140 (E) 011024 011024
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 100th session, 26–30 August 2024
Opinion No. 39/2024 concerning Phạm Chí Dũng (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 51/8.
2.
In accordance with its methods of work,1 on 12 March 2024 the Working Group
transmitted to the Government of Viet Nam a communication concerning Phạm Chí Dũng.
The Government has not replied to the communication. The State is a party to the
International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination, based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/39
General Assembly
Distr.: General
1 October 2024
Original: English
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1.
Submissions
(a)
Communication from the source
(i)
Context
4.
Phạm Chí Dũng is a citizen of Viet Nam born on 12 October 1966. He usually resides
in Ho Chi Minh City, Viet Nam.
5.
The source notes that Mr. Dũng is a journalist, writer and independent analyst who
works with various international news agencies. He was a co-founder of the Independent
Journalists Association of Viet Nam, which publishes The Vietnam Times, an online
publication. He is also a member of the Civil Society Forum and the Former Vietnamese
Prisoners of Conscience Association.
6.
The source recalls that several special procedure mandate holders have previously
raised concerns in relation to the detention of Mr. Dũng and the taking down of the website
and Facebook page of the Independent Journalists Association of Viet Nam.2 Mr. Dũng was
also the subject of a communication from the Special Rapporteurs on the promotion and
protection of the right to freedom of opinion and expression, on the rights to freedom of
peaceful assembly and of association and on the situation of human rights defenders, in
2014,3 after he had been prevented from travelling to Geneva to participate in a side event in
connection with the review of Viet Nam as part of the second cycle of the universal periodic
review. His case was included in the 2014 report of the Secretary-General on cooperation
with the United Nations, its representatives and mechanisms in the field of human rights.4
Since 2012, Mr. Dũng has been detained on several occasions.
7.
The source further notes that, on 13 November 2019, Mr. Dũng submitted a petition
to the President and other key Members of the European Parliament, in which he explicitly
laid out human rights concerns in relation to Viet Nam and called upon the European
Parliament to postpone the ratification of the European Union-Viet Nam Free Trade
Agreement until concrete human rights benchmarks had been met by the Government of
Viet Nam.
(ii)
Arrest and detention
8.
The source reports that, on 16 November 2019, a member of Mr. Dũng’s family
received a phone call from an individual who asked whether Mr. Dũng would be detained.
Mr. Dũng and his family members did not interpret the call as a warning of his future arrest
and therefore did not take any precautionary measures. On 19 November 2019, Mr. Dũng
attended a meeting with representatives of European civil society organizations.
9.
The source notes that, on 21 November 2019, at about 7 a.m., Mr. Dũng was detained
by police officers from the Ministry of Public Security at his child’s school. The source
clarifies that Mr. Dũng had accompanied his child to school, as he used to do every morning.
10.
The source reports that officials escorted Mr. Dũng back to his place of residence,
where, at approximately 2 p.m., they announced that he was under arrest. The officers did
not show a warrant or other decision by a public authority. Mr. Dũng was then taken to a
detention facility in Binh Thanh District, Ho Chi Minh City.
11.
The source further notes that, in the aftermath of the arrest, Mr. Dũng was held
incommunicado for a prolonged period. He was not allowed to communicate with his family.
The source reports that, after his conviction, on 26 January 2021, Mr. Dũng was transferred
to Bo La detention centre in Phu Giao District, Binh Duong Province. On 27 April 2021,
Mr. Dũng was again transferred, this time to Xuan Loc prison camp. The prison management
never informed Mr. Dũng’s family of his whereabouts. Mr. Dũng’s family members found
out about these transfers only when they tried to visit him at the facility to which he had first
2 See communication VNM 5/2019. All communications mentioned in the present document are
available from https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
3 See communication VNM 5/2014.
4 A/HRC/27/38, para. 40.
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been taken. The source recalls that this lack of information prevented Mr. Dũng’s family
from providing him with basic assistance.
12.
The source recalls that Mr. Dũng was not allowed to meet with his family until
22 January 2022, more than two years after his arrest. Initially, the police had denied him a
meeting on the ground that he was still under investigation. However, after the conclusion of
the investigation, after he had been sentenced by the court and even after the judgment had
become final, the Government still did not allow his family to see him. On 4 May 2021, more
than 17 months after his arrest, he was allowed by the prison management to have a first
phone call with his family.
13.
The source notes that, in the aftermath of the arrest, Mr. Dũng was not allowed to
communicate with legal counsel of his choice. Reportedly, Mr. Dũng was able to
communicate with his lawyer for the first time approximately 10 months after the arrest. This
meeting was supervised by the authorities and was therefore not confidential.
14.
The source states that Mr. Dũng was first brought before the judge on 5 January 2021,
approximately 14 months after his arrest. Until then, Mr. Dũng had remained in detention on
the basis that his case was under investigation, with no court hearing to assess his pretrial
detention. During this presentation before the judge, he was accompanied by a lawyer.
(iii)
Trial and sentencing
15.
The source reports that, on 5 January 2021, Mr. Dũng and two of his colleagues were
sentenced to a total of 46 years in prison and on probation for the charge of making, storing,
distributing or disseminating information, documents and items against the State under article
117 of the 2015 Penal Code of Viet Nam, as amended in 2017.
16.
Mr. Dũng was sentenced to 15 years in prison and 3 years of probation. According to
the source, the court hearing was completed within one day, was not open to the public and
involved due process violations. Following his conviction, Mr. Dũng filed an appeal, which
was unsuccessful.
(iv)
Conditions of detention and health
17.
The source reports that Mr. Dũng remains in detention and has serious health concerns.
From 6 to 17 January 2023, he was placed in the prison health unit after he had begun to
experience throat bleeding and his blood pressure had increased. The doctor who examined
Mr. Dũng concluded that he was suffering from a tear of the throat mucosa but that his
internal organs were in a normal condition. However, the source notes that the medical
examination was carried out without the use of any diagnostic equipment. Moreover, while
Mr. Dũng was given medication to control his blood pressure, the prison medical facility did
not have any medication to stop the bleeding. The source further states that Mr. Dũng had to
put cigarette filters in his throat in an attempt to stop the bleeding, which lasted for three days.
18.
The source notes that, during Mr. Dũng’s stay in the prison medical facility, there
were 19 other prisoners being treated. Mr. Dũng was the only political prisoner. In the
afternoon of 17 January 2023, Mr. Dũng was allowed to call home. He informed his family
that he had returned to his old cell.
(v)
Legal analysis
19.
The source submits that Mr. Dũng’s deprivation of liberty is arbitrary under
categories II and III.
a.
Category II
20.
In relation to category II, the source submits that Mr. Dũng has been detained because
he exercised his fundamental freedoms of opinion and expression as guaranteed under the
Universal Declaration of Human Rights and the Covenant, to which Viet Nam is a party.
21.
The source recalls that the freedoms of opinion and expression are protected by
international and regional instruments and include the freedom to seek, receive and impart
information of all kinds, either orally or in writing. Article 19 (2) of the Covenant provides
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that everyone has the right to freedom of expression. The Human Rights Committee has
clarified that article 19 of the Covenant protects all forms of expression and the means of
their dissemination.5 Moreover, article 19 of the Universal Declaration of Human Rights
provides an analogous guarantee of freedom of opinion and expression. The source also
recalls that article 25 of the Constitution of Viet Nam provides guarantees of freedom of
opinion and freedom of speech.
22.
The source submits that the crime of making, storing, distributing or disseminating
information, documents and items against the State under article 117 of the Penal Code is
inconsistent with individuals’ freedom of expression, as it penalizes an overly broad array of
non-violent forms of expression critical of the Government.
23.
Pursuant to article 19 (3) of the Covenant, freedom of expression and opinion may be
restricted only as necessary to ensure respect for the rights and reputations of others or to
protect national security or public order, health or morals. The source argues that, although
the offence of making, storing, distributing or disseminating information, documents and
items against the State is classified in the Penal Code as a crime against national security,
such permissible limitations on the right to freedom of expression do not apply in the present
case.
24.
The source recalls that the Human Rights Committee has emphasized the narrowness
of the limitations set forth in article 19 (3) of the Covenant by noting that, when a State party
imposes a limitation on the exercise of freedom of expression, it may not put in jeopardy the
right itself.6 Consequently, any limitation must meet a strict test of justification.7 To guide
States parties, the Human Rights Committee has established three requirements for any
limitation on the right to freedom of expression. A permissible limitation must be “provided
by law”, for the protection of one of the “enumerated purposes” and “necessary” to achieve
that purpose.8
25.
The source submits that, in the case of Mr. Dũng, the limitation on his freedom of
expression fails to meet the second and third requirements. In this respect, according to the
source, the State cannot argue that preventing propaganda is a legitimate national security
interest. Moreover, the imprisonment of an individual in connection with alleged propaganda
is not necessary to safeguard national security.
26.
The source notes that, although States frequently invoke such limiting principles,
especially in the context of arbitrary detention, the latitude afforded to them is quite narrow.
A Government may not merely invoke the national security rationale but must also specify
the precise nature of the threat posed by the protected activity and then demonstrate the
proportionality of the limitation by establishing a direct and immediate connection between
the expression and the threat. The source concludes that general allegations claiming that an
individual’s expression has threatened security, without evidence of a specific threat and a
proportionate response, will not meet that high burden.
27.
According to the source, Mr. Dũng, as a journalist and independent author, was
subjected to arrest and detention for his publications. The Government used a vague
justification for the arrest and detention, namely, a threat to national security and propaganda
against the Government.
28.
The source submits that the Government may not invoke the national security
rationale without specifying, through an individualized assessment of the circumstances, the
precise nature of the threat posed by Mr. Dũng’s activities. The source submits that national
security and public order were not threatened, nor did the Government specify the precise
nature of the perceived threat or demonstrate any connection between Mr. Dũng’s statements
and the perceived threat. The source concludes that the Government detained Mr. Dũng as
part of its attempt to silence critical voices. His arrest and detention were therefore neither
5 General comment No. 34 (2011), para. 12.
6 Ibid., para. 21.
7 Park v. Republic of Korea (CCPR/C/64/D/628/1995), para. 10.3.
8 Shin v. Republic of Korea (CCPR/C/80/D/926/2000), para. 7.2.
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necessary nor proportionate within the meaning of article 19 (3) of the Covenant and fall
within category II.
b.
Category III
29.
In the context of category III, the source recalls that it applies when the total or partial
non-observance of international norms relating to a fair trial, as established under the
Universal Declaration of Human Rights and other relevant international instruments, is of
such gravity as to give the deprivation of liberty an arbitrary character. Against this backdrop,
the source submits that, by denying Mr. Dũng his rights not to be subjected to arbitrary arrest,
to a prompt habeas corpus review, to a hearing by an independent and impartial tribunal, to
equality before the law, to presumption of innocence, to prepare a defence and be represented
by counsel of his own choosing, to be released pending trial and to be tried without undue
delay, the authorities failed to observe minimum international standards of due process.
30.
The source notes that article 9 (1) of the Covenant, which enshrines the right to liberty
and freedom from arbitrary detention, guarantees that no one may be deprived of his or her
liberty except on such grounds and in accordance with such procedure as are established by
law. This right is reiterated in article 9 of the Universal Declaration of Human Rights and
principles 2 and 36 (2) of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. The Human Rights Committee has interpreted article 9
of the Covenant as requiring that procedures for carrying out legally authorized deprivation
of liberty should also be established by law and that States parties should ensure compliance
with their legally prescribed procedures.9
31.
Article 9 (1) of the Covenant requires compliance with domestic rules setting out
procedures for arrest, such as the rule that the officials who are authorized to make an arrest
be identified. Under article 80 of the Criminal Procedure Code of Viet Nam, an arresting
officer should present an arrest warrant specifying the full name and address of the arrested
person and the reasons for the arrest. Such an arrest warrant must be read aloud to the arrested
person. An emergency arrest without a warrant is permitted only where there is evidence that
the suspect is going to commit an extremely severe felony or that the suspect is a flight risk
or where there is a risk that the suspect will dispose of evidence.
32.
The source submits that the arrest of Mr. Dũng did not comply with international or
national law, as he was not shown an arrest warrant at the time. This failure to follow the
legal arrest procedures violated Mr. Dũng’s right to freedom from arbitrary arrest, as
established under article 9 (1) of the Covenant, article 9 of the Universal Declaration of
Human Rights and principles 2 and 36 (2) of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
33.
Moreover, under article 14 (3) (c) of the Covenant, every defendant has the right to
be tried without undue delay. This right relates not only to the period between the formal
charging of the accused and the beginning of the trial but also to the time until the final
judgment on appeal.
34.
In this context, the source reiterates its assertion that Mr. Dũng was not given the
opportunity to request bail or pretrial release. Furthermore, contrary to the guidance of the
Human Rights Committee on the application of article 14 (3) (c) of the Covenant, Mr. Dũng
was not tried as expeditiously as possible but was held incommunicado, in pretrial detention,
for a lengthy period of time.
35.
In addition, the source recalls that, under article 14 (2) of the Covenant, every criminal
defendant also has the right to be presumed innocent until proven guilty. This right is
reiterated in article 11 (1) of the Universal Declaration of Human Rights and principle 36 (1)
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. The Human Rights Committee has explained that the right to be presumed
innocent requires that the defendant be given the benefit of the doubt and that all public
9 General comment No. 35 (2014), para. 23.
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authorities refrain from prejudging the outcome of the trial.10 This right is also enshrined in
article 31 of the Constitution of Viet Nam.
36.
The source argues that, in Mr. Dũng’s case, the court was not independent and did not
afford him equality of arms or the presumption of innocence. The source maintains that the
national courts do not operate independently. The source further questions whether Mr. Dũng
was represented by legal counsel of his choosing.
37.
The source concludes that, as the authorities denied Mr. Dũng his rights to a public
trial before an independent and impartial court, to equality of arms, to have the opportunity
to cross-examine witnesses and to the presumption of innocence, they have violated articles
14 (1) and (2) of the Covenant, articles 7, 10 and 11 (1) of the Universal Declaration of
Human Rights and principle 36 (1) of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.
38.
Lastly, the source recalls that Mr. Dũng’s right to communicate with his family and
the outside world has been violated, as he was held incommunicado and transferred to various
detention centres without his family being notified. In this regard, the source recalls that
principle 19 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment provides that detained or imprisoned persons have the right to be
visited by and to correspond with, in particular, members of their families, subject to
reasonable conditions and restrictions as specified by law or lawful regulations. Moreover,
this right is protected by rules 43, 58 and 106 of the United Nations Standard Minimum Rules
for the Treatment of Prisoners (the Nelson Mandela Rules).
(b)
Response from the Government
39.
On 12 March 2024, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure. The Working Group requested
the Government to provide detailed information, by 13 May 2024, about the current situation
of Mr. Dũng. The Working Group also requested the Government to clarify the legal
provisions justifying his detention, as well as its compatibility with the obligations of the
Government of Viet Nam under international human rights law, and in particular with regard
to the treaties ratified by the State. Moreover, the Working Group called upon the
Government to ensure Mr. Dũng’s physical and mental integrity.
40.
The Working Group regrets that it did not receive a response from the Government to
the present communication. The Government did not request an extension of the time limit
for its reply, as provided for in the Working Group’s methods of work.
2.
Discussion
41.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
42.
In determining whether Mr. Dũng’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 a breach of international law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
to refute the allegations.11 In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
(a)
Category I
43.
While the source does not allege that Mr. Dũng’s detention falls within category I, in
the light of its submissions, the Working Group will nonetheless consider whether his
detention is arbitrary under category I.
44.
Pursuant to article 9 (1) of the Covenant, no one may be deprived of his or her liberty
except on such grounds and in accordance with such procedure as are established by law.
10 General comment No. 32 (2007), para. 30.
11 A/HRC/19/57, para. 68.
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The Working Group has previously stated that, for deprivation of liberty to have a legal basis,
it is not sufficient that there is a law that may authorize the arrest. The authorities must invoke
that legal basis and apply it to the circumstances of the case.12 This is typically done through
an arrest warrant or arrest order (or equivalent document).13 Noting the source’s submissions,
and in the absence of a response from the Government, the Working Group finds that
Mr. Dũng was not shown an arrest warrant (or equivalent document), in violation of
article 9 (1) of the Covenant.
45.
The source submits that Mr. Dũng was first brought before a judge approximately
14 months after his arrest. 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.14 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. Dũng was not brought promptly before a judicial authority.
46.
Article 9 (3) of the Covenant provides that it should not be the general rule that persons
awaiting trial are detained in custody. The Working Group recalls the view of the Human
Rights Committee that pretrial detention should be an exception and 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.15 In the present case, in the absence of a response from the Government, the
Working Group concludes that there was no individualized determination in Mr. Dũng’s case
and, as a result, that 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.
47.
Moreover, the source submits that Mr. Dũng was held incommunicado for a prolonged
period. The Working Group recalls that holding persons incommunicado prevents prompt
presentation before a judge, as provided for in article 9 (3) of the Covenant,16 and violates
the right under article 9 (4) to challenge the lawfulness of the detention before a court.17
Judicial oversight of detention is a fundamental safeguard of personal liberty and is essential
in ensuring that detention has a legal basis.18 Given that Mr. Dũng 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.
48.
According to the source, Mr. Dũng was not permitted to contact his family for a
lengthy period during this detention. He was not allowed to meet with his family until more
than two years after his arrest and was not allowed to call a member of his family until more
than 17 months after his arrest. 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
12 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
13 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests
made in flagrante delicto, the opportunity to obtain a warrant will typically not be available.
14 Opinions No. 57/2016, paras. 110 and 111; No. 2/2018, para. 49; No. 83/2018, para. 47; No. 11/2019,
para. 63; and No. 30/2019, para. 30.
15 General comment No. 35 (2014), paras. 37 and 38.
16 Ibid., para. 35.
17 Opinions No. 35/2018, para. 27; No. 9/2019, para. 30; No. 44/2019, para. 54; No. 45/2019, para. 53;
and 25/2021, paras. 46 (b) and 51.
18 A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.
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regular access to family members is an essential and necessary safeguard for the prevention
of torture and for protection against arbitrary detention and infringement of personal
security.19 Accordingly, the Working Group finds that Mr. Dũng was denied the right to have
contact with the outside world, in contravention of rules 43 (3) and 58 (1) of the Nelson
Mandela Rules20 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, in which it is also
acknowledged that an individual must not be arrested or transferred without the chance to
notify (or without the authorities being required to notify) family members or other
appropriate persons about his or her whereabouts. The Working Group notes the source’s
unrefuted submission that Mr. Dũng was transferred between detention facilities without his
family members being notified and that this lack of information impeded their ability to
provide him with basic assistance.
49.
In the light of the above, the Working Group concludes that Mr. Dũng’s deprivation
of liberty lacks a legal basis and is thus arbitrary under category I.
(b)
Category II
50.
The Working Group will now examine whether Mr. Dũng’s detention is arbitrary
under category II, in relation to which the source makes unrebutted submissions that
Mr. Dũng’s arrest, detention and conviction stem from his legitimate exercise of his
fundamental rights as guaranteed by the Covenant and the Universal Declaration of Human
Rights and are in retaliation for his public criticism of government policy.
51.
The Working Group considers that charges and convictions under article 117 of the
Penal Code for the peaceful exercise of rights are inconsistent with the Universal Declaration
of Human Rights and the Covenant. The Working Group came to a similar conclusion during
its visit to Viet Nam in October 1994, noting that vaguely defined national security offences
did not allow for a distinction between violent acts capable of threatening national security
and the peaceful exercise of rights.21
52.
In May 2017, the United Nations country team in Viet Nam recommended the repeal
or revision of numerous articles of the Penal Code, including article 117, on the basis of their
incompatibility with human rights obligations under the Covenant. Article 117 was
highlighted as being vague and broad and as not defining which actions or activities were
prohibited or the constitutive elements of the prohibited offences. The country team also
noted that these provisions did not differentiate between the use of violent means, which
should be prohibited, and legitimate peaceful activities of protest, including criticism of the
Government’s policies and actions, or advocacy for any kind of changes, including of the
political system, which fall directly under the rights to freedom of opinion and expression
and of assembly and participation in public life.22
53.
The Human Rights Committee has called upon Viet Nam to end violations of the right
to freedom of expression offline and online and to ensure that restrictions do not go beyond
the strictly defined limitations set forth in article 19 of the Covenant.23 It has found that the
vague and broadly formulated offences in various articles of the Penal Code, including article
117, their use to curtail freedom of opinion and expression, and the definition of certain
crimes related to national security to encompass legitimate activities, such as exercising the
right to freedom of expression, do not appear to comply with the principles of legal certainty,
necessity and proportionality – for instance, arbitrary arrests and detention, and unfair trials
and criminal convictions, including of human right defenders, journalists, bloggers and
lawyers, for criticizing State authorities or policies, including online.24
19 General comment No. 35 (2014), para. 58. See also opinion No. 84/2020, para. 70.
20 Opinions No. 35/2018, para. 39; and No. 45/2019, para. 76.
21 E/CN.4/1995/31/Add.4, paras. 58–60.
22 See https://vietnam.un.org/sites/default/files/2019-
08/UN%20Recommendations%20on%20PC%20and%20CPC%20of%20Vietnam%20-%2017%20M
ay%202017.pdf.
23 CCPR/C/VNM/CO/3, para. 46.
24 Ibid., para. 45 (a) and (d).
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54.
Article 19 (2) of the Covenant protects the holding and expression of opinions,
including those that are not in line with government policy.25 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.26 The Human Rights Committee has
emphasized that the 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.27 The Council has called upon States to
refrain from imposing restrictions under article 19 (3) of the Covenant that are not consistent
with international human rights law.28
55.
The permitted restrictions on this 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 article 19 (3) of the Covenant, 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.29 There is nothing to suggest that the
permissible restrictions set out in article 19 (3) of the Covenant apply in the present case. The
Government did not provide any argument to invoke any of these limitations, nor has it
demonstrated why bringing charges against Mr. Dũng was a legitimate, necessary and
proportionate response to his activities. As such, the Working Group is not convinced that
prosecuting Mr. Dũng was necessary to protect a legitimate interest under this article of the
Covenant, nor that Mr. Dũng’s arrest and detention are a necessary or proportionate response
to his activities. Importantly, there is no indication that his peaceful journalistic activism was
intended to incite violent behaviour.
56.
For these reasons, the Working Group concludes that Mr. Dũng’s detention resulted
from his exercise of his right to freedom of opinion and expression, contrary to article 19 of
the Universal Declaration of Human Rights and article 19 of the Covenant. The Working
Group thus finds that his arrest and detention are arbitrary and fall within category II. 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.
(c)
Category III
57.
Given its finding that the deprivation of liberty of Mr. Dũng is arbitrary under category
II, the Working Group wishes to emphasize that no trial should have taken place. However,
Mr. Dũng 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 enough as to give Mr. Dũng’s deprivation of liberty an arbitrary character, such that it
falls within category III.
58.
The source contends that Mr. Dũng’s right to communicate with legal counsel was
violated, noting that he was held incommunicado for approximately 10 months after his arrest.
He was then permitted one meeting with counsel prior to his trial. However, this meeting was
supervised by the authorities and was therefore not confidential. 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
that such access is to be provided without delay.30 The Working Group further reaffirms that
25 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.
26 Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), para. 6.7.
27 A/HRC/14/23, para. 81 (i).
28 Human Rights Council resolution 12/16, para. 5 (p).
29 General comment No. 34 (2011), para. 22.
30 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 (2014), para. 35; A/HRC/45/16, paras. 50–55; and
A/HRC/48/55, para. 56. See also A/HRC/27/47, para. 13.
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legal counsel should be able to carry out its functions effectively and independently, free
from fear of reprisal, interference, intimidation, hindrance or harassment. The authorities
should respect the privacy and confidentiality of communications between detainees and
legal counsel.31
59.
Noting the source’s unrefuted submissions that Mr. Dũng was granted extremely
limited access to legal assistance, the Working Group finds that his rights to equality of arms
and to a fair hearing by an independent and impartial tribunal under article 14 (1) of the
Covenant were violated.32 Moreover, Mr. Dũng was not afforded his rights to adequate time
and facilities for the preparation of his defence and to communicate with counsel of his own
choosing, as guaranteed under article 14 (3) (b) of the Covenant. The Working Group notes
that the present case is another example of legal representation being denied or limited for
individuals facing serious charges, suggesting that there is a systemic failure to provide
access to counsel during criminal proceedings in Viet Nam.33
60.
The source argues that Mr. Dũng was not afforded his right to be tried without undue
delay, given that approximately 14 months elapsed between the date of his arrest
(21 November 2019) and the date of his trial (5 January 2021). Under article 14 (3) (c) of the
Covenant, anyone arrested or detained on a criminal charge is entitled to trial within a
reasonable time and without undue delay. The reasonableness of any delay in bringing a case
to trial must be assessed in the circumstances of each case, taking into account the complexity
of the case, the conduct of the accused and the manner in which the matter was dealt with by
the authorities.34 The Human Rights Committee has stated that an important aspect of the
fairness of a hearing is its expeditiousness and that, in cases where the accused is denied bail
by the court, he or she must be tried as expeditiously as possible.35 The delay in the present
case was exacerbated, as Mr. Dũng was not given a bail hearing, and his detention was not
reviewed by a judicial authority, as discussed above.
61.
On the basis of the foregoing, the Working Group considers that Mr. Dũng’s pretrial
detention of approximately 14 months was unacceptably long and was in violation of article
14 (3) (c) of the Covenant and principle 38 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
62.
The source further submits that Mr. Dũng was convicted on the same day on which
he was first brought before a judge and that he had no opportunity to cross-examine
witnesses.36 He and his colleagues were sentenced to a total of 46 years in prison under article
117 of the 2015 Penal Code of Viet Nam, as amended in 2017. As the Working Group has
noted previously, a short trial for a serious criminal offence that carries a heavy sentence
(15 years in prison and 3 years of probation, in the present case) supports the conclusion that
Mr. Dũng’s guilt was determined prior to the trial.37 In the absence of an explanation from
the Government, the Working Group finds that these factors undermined Mr. Dũng’s right to
the presumption of innocence, as guaranteed in article 14 (2) of the Covenant and article 11 (1)
of the Universal Declaration of Human Rights.
63.
In addition, the source submits that Mr. Dũng’s trial was 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) of the Covenant justifies the closure
of a trial, that is, for reasons of morals, public order or national security.38 In the present case,
31 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, para. 15.
32 Opinions No. 18/2018, para. 53; and No. 78/2018, paras. 78 and 79.
33 See opinions No. 46/2018, No. 9/2019, No. 44/2019, No. 45/2019, No. 82/2021, No. 13/2022,
No. 35/2022, No. 40/2022, No. 43/2022, No. 86/2022 and No. 16/2023. See also CAT/C/VNM/CO/1,
paras. 16 and 17.
34 Human Rights Committee, general comments No. 32 (2007), para. 35; and No. 35 (2014), para. 37.
See also CCPR/C/VNM/CO/3, paras. 35 and 36.
35 General comment No. 32 (2007), paras. 27, 31, 35 and 37.
36 Opinion No. 36/2021, para. 89.
37 Opinions No. 75/2017, para. 53; No. 36/2018, para. 55; No. 82/2021, para. 80; and No. 16/2023,
para. 86.
38 General comment No. 32 (2007), para. 29.
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11
the Government has not provided any information to justify the exceptional step of holding
a closed trial. Accordingly, the Working Group finds that Mr. Dũng 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”.
64.
While the source also alleges the lack of independence of national courts in Viet Nam
and questions whether Mr. Dũng was represented by legal counsel of his choosing, the
Working Group does not have sufficient information to make findings on these allegations.
65.
For the reasons enumerated above, the Working Group concludes that the numerous
violations of Mr. Dũng’s right to a fair trial and due process mentioned above are of such
gravity as to render his deprivation of liberty arbitrary, falling within category III.
(d)
Category V
66.
While the source does not allege that Mr. Dũng’s detention falls within category V, in
the light of its submissions, the Working Group will nonetheless consider whether his
detention is arbitrary under category V.
67.
The Working Group recalls several non-cumulative indicators that serve to establish
the discriminatory nature of detention. These include the following: the deprivation of liberty
was part of a pattern of persecution against the detained person, including, for example,
through previous detention; other persons with similarly distinguishing characteristics have
also been persecuted; or the context suggests that the authorities have detained a person on
discriminatory grounds or to prevent them from exercising their human rights.39
68.
With regard to these non-cumulative indicators, the Working Group notes a pattern of
intimidation against Mr. Dũng in relation to his activities as an advocate for human rights.
The source submits that, in the past, Mr. Dũng had already been detained on several occasions;
furthermore, in 2014, he was prevented from travelling to Geneva to participate in a side
event in connection with the review of Viet Nam as part of the second cycle of the universal
periodic review. In addition, the authorities reportedly took down the website and the
Facebook page of the Independent Journalists Association of Viet Nam, of which Mr. Dũng
was a co-founder. Over the past decade, various United Nations entities have raised multiple
concerns about Mr. Dũng’s situation.40 Moreover, United Nations human rights experts have
expressed concerns about the alleged arbitrary detention of journalists affiliated with the
Independent Journalists Association of Viet Nam, including Mr. Dũng.41 The Working Group
has also issued opinions in which it found to be arbitrary the detention of journalists
associated with the Independent Journalists Association of Viet Nam.42
69.
Furthermore, in the discussion above concerning category II, the Working Group
established that Mr. Dũng’s detention resulted from the peaceful exercise of his rights under
international law. When detention results 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 ground of discrimination based on political or other views.43
70.
For these reasons, the Working Group finds that Mr. Dũng was deprived of his liberty
on discriminatory grounds, on the basis of his political or other opinion. His deprivation of
liberty violated articles 2 and 7 of the Universal Declaration of Human Rights and
articles 2 (1) and 26 of the Covenant and was arbitrary under category V. The Working Group
refers the present case to the Special Rapporteur on the situation of human rights defenders.
(e)
Concluding remarks
71.
The Working Group is extremely concerned about the source’s submission that
Mr. Dũng has grave medical issues and its allegations regarding inadequate medical care (see
39 A/HRC/36/37, para. 48.
40 See communications VNM 5/2014 and VNM 5/2019. See also A/HRC/27/38, para. 40.
41 See communications VNM 3/2020 and VNM 6/2021.
42 See opinions No. 11/2021 and No. 16/2023.
43 For example, opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 59/2019, para. 79.
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para. 17 above). The Working Group is compelled to remind the Government that, according
to article 10 (1) of the Covenant and rules 1, 24, 27 and 118 of the Nelson Mandela Rules,
all persons deprived of their liberty must be treated with humanity and with respect for the
inherent dignity of the human person, including by receiving appropriate medical care.44
72.
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, in particular human
rights defenders, in Viet Nam.45 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 or limited 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 systemic problem with arbitrary detention in Viet Nam, which, if it continues,
may amount to a serious violation of international law.
73.
The Working Group would welcome the opportunity to work constructively with the
Government of Viet Nam to address arbitrary detention. A significant period has passed since
its last visit to Viet Nam, in October 1994, and the Working Group considers that it is now
an appropriate time to conduct another visit. On 11 June 2018, the Working Group reiterated
its earlier requests to the Government to undertake a country visit and will continue to seek
a positive response.
3.
Disposition
74.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Phạm Chí Dũng, being in contravention of articles 2, 6,
7, 8, 9, 10, 11 and 19 of the Universal Declaration of Human Rights and articles 2, 9,
14, 16, 19 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, II, III and V.
75.
The Working Group requests the Government of Viet Nam to take the steps necessary
to remedy the situation of Mr. Dũng 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.
76.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Dũng immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international law.
77.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Dũng and to take appropriate measures against those responsible for the violation of his
rights.
78.
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 to the Special Rapporteur on the situation of human
rights defenders, for appropriate action.
79.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
80.
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:
44 Opinion No. 26/2017, para. 66.
45 See, for example, opinions No. 45/2018, No. 46/2018, No. 8/2019, No. 9/2019, No. 44/2019,
No. 11/2021, No. 16/2023 and No. 22/2023.
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13
(a)
Whether Mr. Dũng has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Dũng;
(c)
Whether an investigation has been conducted into the violation of Mr. Dũng’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.
81.
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.
82.
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 of any failure to take action.
83.
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.46
[Adopted on 30 August 2024]
46 Human Rights Council resolution 51/8, paras. 6 and 9.