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.24-22473 (E) 091224 xx1224
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 51/2024 concerning Nguyễn Lân Thắng (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 17 July 2024 the Working Group
transmitted to the Government of Viet Nam a communication concerning Nguyễn Lân
Thắng. 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).
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/51
General Assembly
Distr.: General
10 December 2024
Original: English
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1.
Submissions
(a)
Communication from the source
(i)
Context
4.
Nguyễn Lân Thắng is a citizen of Viet Nam, born on 18 December 1975. At the time
of his arrest, he was residing in the city of Hanoi.
5.
According to the source, Mr. Nguyễn is an independent journalist and an advocate for
human rights and democracy.
6.
After graduating from the University of Architecture in Hanoi, Mr. Nguyễn worked
as an engineer for the Ministry of Construction. In the early 2000s, Mr. Nguyễn became
active in protests against China and eventually left his job, in 2011, to work as an independent
journalist promoting freedom and democracy.
7.
Reportedly, due to the suppression by the authorities of protests against China,
Mr. Nguyễn expanded his activism into other fields, including land rights, freedom of
religion and promoting the people’s understanding of the law. He also openly voiced his
support for several political prisoners.
8.
Mr. Nguyễn documented protests and alleged human rights violations in Viet Nam
for over a decade. He was a contributor to the Vietnamese service of Radio Free Asia from
2013, as part of which he published over 130 blog entries on human rights and sociopolitical
issues in Viet Nam. He also published interviews on YouTube and his Facebook page.
Mr. Nguyễn also participated in pro-environment protests and documented the excessive use
of force by the authorities at sites of land confiscation. He also participated in multiple
round-table discussions for the BBC Vietnamese service.
9.
Mr. Nguyễn is also a founding member of the No-U Football Club, established in
2011 to protest the territorial claims by China to disputed maritime regions in the South China
Sea. Mr. Nguyễn also participated in a No-U humanitarian group, providing assistance in
remote areas of the country after natural disasters.
10.
The source submits that, due to his critical reporting and activism, Mr. Nguyễn was
detained, interrogated, assaulted by plain-clothes police officers, placed under house arrest
and banned from travelling.
11.
In October 2013, Mr. Nguyễn was detained and questioned at Nội Bài International
Airport in Hanoi after returning from a trip overseas, where he had met with United Nations
officials and members of civil society to discuss alleged breaches of human rights in Viet
Nam. The previous day, Mr. Nguyễn had uploaded a video to Facebook, indicating that he
expected to be arrested.
12.
In April 2014, Mr. Nguyễn was prevented by the authorities from leaving the country
to attend an event related to World Press Freedom Day and a congressional briefing in the
United States of America.
13.
Mr. Nguyễn and his family also allegedly faced intimidation in their daily lives. For
instance, in October 2015, a group of individuals threatened them at their family home and
splashed red paint on their house. In March 2017, a group of individuals reportedly formed
by the Government to detect critical opinions and shape public opinion gathered in front of
the family’s home, insulting Mr. Nguyễn over a loudspeaker. His family was also filmed and
monitored by the police.
(ii)
Arrest and detention
14.
Mr. Nguyễn was arrested on 5 July 2022 by members of the investigation bureau of
the Hanoi Police, on his way to a coffee shop located approximately 500 m from his house.
15.
During the arrest, Mr. Nguyễn was struck on the neck by police officers. He was
shown a warrant issued by the Ministry of Public Security. However, no copy of this warrant
was given to him or to his family.
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16.
Mr. Nguyễn was then brought to the local police station, where he was briefly able to
speak to a family member.
17.
The allegations against Mr. Nguyễn were based on his having posted 12 videos
featuring “anti-State” content on Facebook and YouTube, stored books that allegedly
defamed the Communist Party of Viet Nam and given interviews to the BBC between 2017
and 2020. Later, Mr. Nguyễn was charged with making, storing or spreading information,
materials or items for the purpose of opposing the State under article 117 of the 2015 Criminal
Code.
18.
Following Mr. Nguyễn’s arrest, two groups consisting of approximately 30 police
officers came to his family home and to his relatives’ house. Officers searched the family
home and seized laptops, mobile devices and books, as well as cameras and some decorative
objects bearing the logo of No-U Football Club. At his relatives’ house, the officers
announced the arrest and did not seize any objects.
19.
Following Mr. Nguyễn’s arrest, his family received a letter from the police, warning
them to be careful about their comments to the media.
20.
Mr. Nguyễn was detained incommunicado for approximately seven months after his
initial arrest and was denied any visits.
21.
The indictment against Mr. Nguyễn was announced on 17 January 2023, but a copy
was not shared with him. Having met with his lawyers for the first time on 16 February 2023,
he attempted to file a complaint but was refused a pen and paper by prison officials.
Mr. Nguyễn told his lawyers about this incident the second time that they were allowed to
meet, a few weeks later, and, at their third meeting, on 30 March 2023, they were finally able
to show him a copy of the indictment. In this document, for the first time, the authorities gave
a reason for Mr. Nguyễn’s arrest, invoking article 117 of the Criminal Code.
(iii)
Trial and sentencing
22.
Before his trial, Mr. Nguyễn was able to meet with his lawyers five times. These visits
were monitored.
23.
On 30 March 2023, despite the fact that Mr. Nguyễn had requested an open trial earlier
that month, the authorities announced that a closed trial would take place on 12 April 2023,
giving his lawyers only 13 days in which to prepare.
24.
While Mr. Nguyễn’s spouse was entitled under national law to attend the hearing, she
did not receive a notification. Only upon her request was she allowed to be present in an area
near the courthouse. Many of Mr. Nguyễn’s supporters were not allowed to come near the
court, and some individuals were followed by security forces when leaving their houses
during the trial.
25.
On 12 April 2023, the Hanoi People’s Court convicted Mr. Nguyễn under article 117
of the 2015 Criminal Code and sentenced him to six years in prison and two years of
probation. The only items of evidence presented in court were reportedly comments that
Mr. Nguyễn had made about a revolutionary Vietnamese heroine during a BBC interview.
Mr. Nguyễn did not appeal his conviction, as appeals reportedly never change the result but
only lengthen the sentence.
26.
The source submits that detention conditions for detainees such as Mr. Nguyễn are
generally dire and that former detainees often report even harsher conditions in temporary
detention centres, where detainees remain until court proceedings have concluded.
27.
Until June 2023, Mr. Nguyễn was detained at a police prison in Hanoi, in harsh
conditions. A member of Mr. Nguyễn’s family went to the prison regularly but was not
allowed to see him until after his trial had concluded.
28.
In February 2023, Mr. Nguyễn’s family requested permission to send him a copy of
the Constitution and other books to prepare his legal defence but did not receive any reply
from the authorities. A member of Mr. Nguyễn’s family enquired about him and the status
of the trial with the authorities but received only vague replies or none at all.
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29.
On 15 June 2023, a member of Mr. Nguyễn’s family went to visit him at the police
prison and discovered that he had been transferred from the pretrial detention centre to Thanh
Hóa Prison No. 5. There, Mr. Nguyễn is kept in cell block K1, where he shares a cell with
two inmates who show signs of mental illness. Mr. Nguyễn’s cell has one window, which is
covered by thick fabric so that the detainees cannot see the sunlight.
30.
Mr. Nguyễn is confined to his cell at all times except when his family visits him, once
a month, or when he makes a phone call or receives a package. Several requests by
Mr. Nguyễn and his family, including for him to be moved to another cell and to be allowed
to perform prison labour, have been rejected. Letters that his family sent him in July and
August 2023 had still not been delivered to him by the end of that year.
31.
The source notes that Mr. Nguyễn is allowed to receive a single, one-hour-long visit
and 6 kg of personal items per month. In addition, he is permitted a 10-minute phone call
every two weeks.
32.
The source expresses concern over the poor quality of prison food at the facility,
noting that it will exacerbate Mr. Nguyễn’s high blood pressure and other pre-existing health
conditions, such as asthma. While he was held in the police prison in Hanoi, Mr. Nguyễn was
not allowed to receive medicine from his family.
33.
The conditions in Thanh Hóa Prison No. 5 have had a serious impact on Mr. Nguyễn’s
mental health. In addition, it is reported that he continues to suffer from asthma, which is
exacerbated by the fact that he is not allowed to leave his cell regularly for fresh air.
34.
The source recalls that, on 2 November 2022, several special procedure mandate
holders submitted a communication to the Government, raising concerns about Mr. Nguyễn’s
detention.2
35.
Mr. Nguyễn was reportedly arrested and detained amid a climate of restrictions on
freedom of expression and persecution of those who seek to exercise this freedom. Under the
2016 Press Law, the press must serve as the voice of the Communist Party of Viet Nam.
Censorship is reportedly enforced through government directives for the media. The
Cybersecurity Law, effective from 1 January 2019, provides the authorities with the power
to censor online content and to compel technology companies to provide data.
36.
The source submits that the Government sanctions journalists on the basis of
“anti-State” propaganda charges through the use of vaguely worded provisions, namely,
articles 117 and 331 of the 2015 Criminal Code. Article 117 prohibits the making, storing or
spreading information, materials or items for the purpose of opposing the State.
37.
In recent years, many bloggers, journalists and activists have reportedly been arrested
and imprisoned under the above-mentioned provisions. In 2021, the authorities convicted at
least 32 people and arrested 26 more for offences related to criticism of the Government.
Prominent critics of the Government who have been charged under article 117 of the Criminal
Code include freelance journalists. Some of those detained have engaged in hunger strikes to
highlight the lack of medical care in custody.
38.
It is recalled that the Office of the United Nations High Commissioner for Human
Rights has voiced concerns over the use of vaguely defined laws to arbitrarily detain an
increasing number of independent journalists, bloggers, online commentators and human
rights defenders, in violation of article 19 of the Covenant.3 The Working Group has recalled
that, under certain circumstances, systematic and widespread use of arbitrary detention
against political opponents may constitute a crime against humanity.4
(iv)
Legal analysis
39.
The source submits that the detention of Mr. Nguyễn is arbitrary and falls under
categories I, II, III and V of the Working Group.
2 See communication VNM 6/2022, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27619.
3 See https://www.ohchr.org/en/2021/01/press-briefing-notes-viet-nam?LangID=E&NewsID=26644.
4 Opinion No. 26/2017, para. 67.
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40.
In relation to category I, the source recalls article 9 (1) of the Covenant, which states
that a person’s deprivation of liberty is justified only where it is based on a ground
“established by law”. The source submits that Mr. Nguyễn was charged with an overly vague
offence.5
41.
According to article 15 (1) of the Covenant and article 11 (2) of the Universal
Declaration of Human Rights, individuals are entitled to know what the law is and what
conduct violates it. The Human Rights Committee has noted that any substantive grounds for
arrest or detention “must be prescribed by law and should be defined with sufficient precision
to avoid overly broad or arbitrary interpretation or application”.6
42.
Mr. Nguyễn was charged under article 117 of the 2015 Criminal Code, which
criminalizes the dissemination of “distorted” or “fabricated” information or the spreading of
information to cause “psychological warfare” or “dismay among the people”. The language
used is overly broad and fails to define key terms, which prevents individuals from regulating
their behaviour and ensuring that it is in accordance with the law.
43.
The Working Group has previously considered that article 117 of the Criminal Code
is so vague that it is impossible to invoke a legal basis for detention thereunder and expressly
noted that the provision does not meet the standards of the principle of legality due to its
vague and overly broad language.7
44.
In the absence of any definitions and parameters to regulate the use of the provision,
there is a significant risk that it will be arbitrarily applied. It is therefore submitted that
article 117 does not comply with the legal certainty principle under international law and that
there is no legal basis justifying the deprivation of liberty of Mr. Nguyễn.
45.
The source also argues that Mr. Nguyễn’s detention lacked judicial oversight.
46.
The Working Group has held that pretrial detention that is not subject to
individualized judicial review lacks a legal basis.
8 Holding a pretrial detainee
incommunicado for a prolonged period and failing to produce him or her before a competent
authority violates the right to challenge the lawfulness of the detention under article 9 (3)
and (4) of the Covenant and the right to an effective remedy under article 2 (3) of the
Covenant and article 8 of the Universal Declaration of Human Rights. In addition, access to
a lawyer is an essential safeguard to challenge the legal basis of a detention.9
47.
In this regard, the source notes that Mr. Nguyễn was kept in pretrial detention,
incommunicado, for approximately seven months and was not allowed to meet with his
lawyers until 16 February 2023. Until his trial in April 2023, he was not produced before a
judicial body to assess the legality of his detention. Due to the lack of an individualized
judicial review, his pretrial detention was not properly constituted and reviewed and therefore
had no legal basis.
48.
In relation to category II, the source submits that the detention of Mr. Nguyễn is
arbitrary because it results from the exercise of his right to freedom of opinion and
expression.
49.
Mr. Nguyễn’s arrest, detention and conviction stem from his legitimate exercise of his
right to freedom of expression and opinion, as protected by article 19 of the Covenant and
article 19 of the Universal Declaration of Human Rights. His conviction and sentence were
in retaliation for his journalistic work and public criticism of the Government’s policies. In
addition, according to the source, his conviction and sentence serve as a deterrent to others
who may express views critical of the State.
50.
Under article 19 (3) of the Covenant, any restriction of the exercise of freedom of
expression must satisfy the cumulative criteria of the so-called three-part test. The restriction
5 See opinions No. 33/2015, No. 36/2019, No. 15/2020 and No. 45/2021.
6 General comment No. 35 (2014), para. 22.
7 Opinion No. 11/2021, para. 67.
8 Opinion No. 15/2020, paras. 56 and 57; No. 16/2020, para. 62; and No. 36/2020, para. 53.
9 Opinion No. 40/2020, para. 29; and Human Rights Committee, general comment No. 35 (2014),
para. 34.
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must be “provided by law”, must be designed to achieve a legitimate aim and must meet the
requirements of necessity and proportionality.10 Mr. Nguyễn’s arrest and detention fail to
satisfy any of these three requirements.
51.
First, for a restriction to satisfy the requirement of being “prescribed by law”, it must
have a basis in national law and be specific and accessible, to enable the public to adjust their
behaviour accordingly. Furthermore, the law should not confer unfettered discretion for the
restriction of freedom of expression on those charged with its execution.11
52.
The source notes that Mr. Nguyễn was charged and detained under article 117 of the
Criminal Code, which criminalizes a range of activities associated with the dissemination of
information critical of the Government. The language of the article is overly broad, and there
is no guidance as to the elements of the offence.
53.
It has been recommended that article 117 be repealed on the basis that the restriction
that it imposes on freedom of expression is not compatible with the country’s obligations
under the Covenant, and that Viet Nam consider adopting a new provision establishing clear
restrictions on the exercise of the right to freedom of expression that are strictly in line with
articles 19 and 20 of the Covenant.12
54.
The restriction placed on Mr. Nguyễn’s right to freedom of expression therefore does
not comply with the “prescribed by law” limb of the cumulative test established in relation
to article 19 (3) of the Covenant.
55.
Second, it is submitted that the restriction placed on Mr. Nguyễn’s right to freedom
of expression did not seek to achieve a legitimate aim, as stipulated under article 19 (3) of
the Covenant. During the course of Mr. Nguyễn’s criminal prosecution, the authorities failed
to specify which of the legitimate aims they were seeking to achieve. At no point during the
trial proceedings did the authorities establish that any of his activities and expressions were
conducive to violence or that his prosecution was necessary to maintain public order and/or
national security. It is argued that Mr. Nguyễn was convicted for his peaceful activism and
reporting.
56.
The source submits that the authorities routinely arrest, detain and convict those
expressing views critical of the Government through the use of criminal law provisions. It
also points out that the Working Group has on several occasions raised with the Government
the issue of prosecution under vague criminal law provisions.13
57.
The source concludes that Mr. Nguyễn was convicted for the legitimate exercise of
his right to freedom of expression. Accordingly, and for the reasons set out above, it submits
that the restriction does not satisfy the second limb of the three-part test under article 19 (3)
of the Covenant.
58.
Third, the restriction of Mr. Nguyễn’s right to freedom of expression was not
necessary or proportionate to achieve any stated aim and was not the least intrusive
instrument among those that might achieve their protective function within the meaning of
article 19 (3) of the Covenant.
59.
The Human Rights Committee has emphasized that the form of expression is relevant
in assessing whether a restriction is proportionate and has held that restrictions imposed for
criticism of the political system or Government can never be considered necessary.14
60.
Mr. Nguyễn’s work as a journalist and human rights defender falls within the forms
of expression that should not be restricted by the authorities. His publications centred around
sociopolitical issues and subjects of public interest, such as land confiscation and
environmental policies.
10 Human Rights Committee, general comment No. 34 (2011), para. 22.
11 Ibid., para. 25.
12 See https://vietnam.un.org/en/14681-un-recommendations-2015-penal-code-and-criminal-procedural-
code-viet-nam.
13 See opinion No. 11/2021.
14 General comment No. 34 (2011), para. 34.
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61.
Mr. Nguyễn’s imprisonment is an example of a journalist being detained for criticism
of the Government, which cannot be regarded as a necessary restriction of the right enshrined
in article 19 (2) of the Covenant and is disproportionate.
62.
The source concludes that Mr. Nguyễn’s arrest and detention were neither necessary
nor proportionate within the meaning of article 19 (3) of the Covenant.
63.
In relation to category III, the source submits that Mr. Nguyễn was denied his right to
equality before the courts and the right to a fair and public hearing by a competent,
independent and impartial tribunal established by law, as provided under article 14 (1) of the
Covenant and article 10 of the Universal Declaration of Human Rights.
64.
Mr. Nguyễn was denied a fair trial and was not afforded the same procedural rights as
the prosecuting party, resulting in a clear disadvantage in presenting his defence.
65.
The source recalls that article 14 (1) of the Covenant also provides the minimum
guarantees to which an accused individual is entitled when facing a criminal prosecution,
which include the right to equality before courts and tribunals. Any distinction should be
based on law and should be justified on objective and reasonable grounds. In specifying the
requirements of article 14 (1) of the Covenant, the Human Rights Committee has held that
the publicity of a hearing ensures the transparency of proceedings and thus provides an
important safeguard for the interest of the individual and of society at large.15 In addition, the
same Committee has specified that the independence of the judiciary from control or
interference by other branches of government is an absolute right that is not subject to any
exception.16
66.
Mr. Nguyễn’s lawyers were informed about the trial on 30 March 2023, giving them
only 13 days in which to prepare. Despite his petition for a public trial, Mr. Nguyễn was
convicted in a closed trial. The authorities failed to provide a legitimate rationale for the
exclusion of the public and the press from the trial.
67.
Mr. Nguyễn’s trial lasted only five hours. It is reported that he did not admit to the
charge against him. The court failed to consider the evidence impartially. The source submits
that Mr. Nguyễn’s case is typical of criminal prosecutions of journalists and human rights
defenders in Viet Nam, which often fail to uphold international standards of fairness and
involve trial proceedings that are frequently rushed, with little or no time afforded to the
defence to present its arguments.
68.
The source further submits that the judiciary in Viet Nam is controlled by the
Communist Party of Viet Nam, and that its control is particularly apparent in politically
motivated criminal proceedings.
69.
By failing to conduct the proceedings in public and to properly assess the case against
Mr. Nguyễn, the authorities violated his right to a fair and public hearing by a competent,
independent and impartial tribunal, as set out in article 14 (1) of the Covenant and article 10
of the Universal Declaration of Human Rights.
70.
Mr. Nguyễn was denied the right to be informed promptly and in detail of the nature
and cause of the charge against him, as provided under article 14 (3) (a) of the Covenant,
article 10 of the Universal Declaration of Human Rights and principle 10 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
71.
Under article 14 (3) (a) of the Covenant, everyone facing a criminal charge has the
right to be informed promptly and in detail in a language that he or she understands of the
nature and cause of the charge against him or her. The Human Rights Committee has noted
that, for a person to be considered to be informed “promptly”, the information must be given
as soon as the person concerned is formally charged with a criminal offence under domestic
law, and the law and alleged facts on which the charge is based must be stated orally – if later
confirmed in writing – or in writing.17
15 General comment No. 32 (2007), para. 28.
16 Ibid., para. 19.
17 Ibid., para. 31.
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72.
The source recalls that Mr. Nguyễn was kept in incommunicado detention for
approximately seven months without being provided with a justification for his arrest. Even
after his indictment had been announced on 17 January 2023, it took over two months for
him to receive a copy. These delays appear to have been intentional and systematic. After
Mr. Nguyễn informed his lawyers that he had not received a copy of his indictment, he was
advised to file a complaint. However, he was unable to do so, as prison officials refused to
provide him with a pen or paper. Only on 30 March 2023, after Mr. Nguyễn had informed
his lawyers at their second meeting, held a few weeks after the first, had he been able to view
a copy of the indictment.
73.
Mr. Nguyễn was, therefore, denied access to information about the charge against him
for over two months, in violation of article 14 (3) (a) of the Covenant and article 10 of the
Universal Declaration of Human Rights.
74.
Mr. Nguyễn was denied the right to adequate time and facilities for the preparation of
his defence and to communicate with counsel of his own choosing, as stipulated under
article 14 (3) (b) of the Covenant, article 10 of the Universal Declaration of Human Rights
and principle 18 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.
75.
The Human Rights Committee has held that article 14 (3) (b) of the Covenant includes
the right of all persons to adequate time and facilities for the preparation of their defence and
to communicate with counsel of their own choosing, as well as the right of access to
documents and other evidence, including material that is exculpatory. 18 The right to
communicate with counsel requires prompt access to counsel, who should be able to meet
with their clients in private and communicate with them confidentially.19
76.
It is noted that, generally, the amount of time considered “adequate” depends on the
circumstances of each case. In Mr. Nguyễn’s case, the source submits that 13 days were
wholly insufficient for his counsel to prepare a defence against a charge carrying up to
12 years’ imprisonment. For months, Mr. Nguyễn was denied access to crucial documents
relating to the charge against him, and he was held incommunicado for approximately seven
months, with no legal representation. This undoubtedly created a barrier to the formulation
of a strong and complete defence. When he was eventually permitted to meet with his
lawyers, the visits were supervised, with officials monitoring the content of their discussions.
For these reasons, Mr. Nguyễn’s rights under article 14 (3) (b) of the Covenant have been
violated.
77.
By failing to provide Mr. Nguyễn with adequate time and facilities for the preparation
of his defence, and by denying him prompt and confidential access to counsel, there was a
breach of his right enshrined in article 14 (3) (b) of the Covenant and article 10 of the
Universal Declaration of Human Rights.
78.
Mr. Nguyễn’s right to be tried without undue delay, as stipulated in articles 9 (3) and
14 (3) (c) of the Covenant, article 10 of the Universal Declaration of Human Rights and
principles 11 and 38 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment, was reportedly violated. In addition, article 9 (3) of the
Covenant states that anyone arrested or detained on a criminal charge is to be brought
promptly before a judge and is entitled to a trial within a reasonable time or to be released.
79.
The Human Rights Committee has noted that, under article 9 of the Covenant, the
term “promptly” should be understood to mean within 48 hours. In the view of the
Committee, any delay longer than 48 hours must remain absolutely exceptional and be
justified under the circumstances.20 Unless there is evidence to the contrary, there is a general
presumption in favour of bail. Circumstances where pretrial detention has been deemed
necessary include a real likelihood of the accused absconding, compromising evidence or
intimidating a witness.21 This serves the purpose of not keeping a person in a state of
18 Ibid., para. 33.
19 Ibid., para. 34.
20 General comment No. 35 (2014), para. 33.
21 Ibid., para. 38.
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uncertainty for too long, ensures that the deprivation of liberty does not last for longer than
necessary and serves the interests of justice.22
80.
Mr. Nguyễn was held in pretrial detention for over nine months and was held
incommunicado for approximately the first seven. Throughout his pretrial detention, he was
never brought before a judge for a determination of his entitlement to pretrial release. None
of the factors to justify withholding bail were present in his case, and the State failed to
produce any evidence to the contrary.
81.
The source also points to a breach of Mr. Nguyễn’s right to communicate with the
outside world, in particular with his family, as provided for under principles 15 and 19 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. Principles 15 and 19 of the Body of Principles provide that communication
with the outside world, in particular with family, is not to be denied for more than a matter
of days and that a detained person has the right to be visited by and communicate with
members of his or her family and to be given adequate opportunity to communicate with the
outside world. The Working Group has determined that incommunicado detention is a clear
violation of principles 15 and 19 of the Body of Principles.23
82.
Mr. Nguyễn was detained for approximately nine months prior to his trial. For
approximately the first seven months of his pretrial detention, he was held incommunicado,
with no access to the outside world, including his family and his lawyers. He was not
permitted to meet with his lawyers for the first time until 16 February 2023. Thereafter, he
was permitted only four more visits with his legal counsel, which were monitored by prison
officials, before he stood trial. Mr. Nguyễn was not allowed visits from his immediate family
for the entire duration of his pretrial detention. After the conclusion of the court proceedings,
he was allowed a visit from his family in April 2023 and another in May 2023. The conditions
of Mr. Nguyễn’s detention are therefore in clear violation of principles 15 and 19 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
83.
In relation to category V, it is submitted that Mr. Nguyễn was discriminated against
on the basis of his political opinions and his status as a human rights defender. The
deprivation of his liberty therefore constitutes a violation of articles 2 (1) and 26 of the
Covenant and articles 2 and 7 of the Universal Declaration of Human Rights.
84.
Mr. Nguyễn was targeted because of his activities as a journalist, in particular because
of his critical reporting on alleged human rights violations. In response to his publications
and his contributions to foreign media outlets, he was arrested, convicted and sentenced to
six years’ imprisonment and two years of probation. It is thus argued that his sentence is
wholly disproportionate and reflects the targeting by the State authorities of those who
engage in peaceful activism.
85.
Mr. Nguyễn’s case reportedly follows a familiar pattern in that it features an 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, a cursory appeals process that
studiously fails to grapple with the issues raised by appellants, disproportionate sentencing
and denial of access to the outside world.
86.
The source recalls that the Working Group has, on a number of occasions, expressed
concern that this pattern indicates a systemic problem with arbitrary detention in Viet Nam.
It has noted, over many years of considering such cases, that, if they were to continue to
occur, this practice, which is embedded in the security and judicial culture of Viet Nam,
might amount to a serious violation of international law. The Working Group has explicitly
stated that, under certain circumstances, widespread or systematic imprisonment or other
severe deprivation of liberty in violation of the rules of international law may constitute a
crime against humanity.24
22 Human Rights Committee, general comment No. 32 (2007), para. 35.
23 Opinion No. 33/2013, para. 34.
24 Opinion No. 26/2017, para. 67.
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87.
The source submits that the constant and systematic targeting of journalists, bloggers
and human rights defenders, such as Mr. Nguyễn in the present case, amounts to a crime
against humanity. Mr. Nguyễn has been the victim of serious crimes committed as part of a
large-scale attack against bloggers, journalists and others in Viet Nam.
(b)
Response from the Government
88.
On 17 July 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 16 September 2024 about the current
situation of Mr. Nguyễn. The Working Group also requested the Government to clarify the
legal provisions justifying his detention, as well as their 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. Nguyễn’s physical and mental integrity.
89.
The Working Group regrets that it did not receive a response from the Government to
its 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
90.
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.
91.
In determining whether Mr. Nguyễn’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 established 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.25 In the present case, the Government has chosen not to
challenge the prima facie credible allegations made by the source.
(a)
Category I
92.
The Working Group will first consider whether Mr. Nguyễn’s detention is arbitrary
under category I.
93.
The source submits that Mr. Nguyễn was brought before a judicial body only nine
months after his initial arrest. The Working Group recalls the right to be brought promptly
before a judicial authority to challenge detention within 48 hours of arrest, barring absolutely
exceptional circumstances, in accordance with the international standard set out in the
Working Group’s jurisprudence.26 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. Absent a response from the Government, the Working Group
finds that this right was violated, as Mr. Nguyễn was not brought promptly before a judicial
authority.
94.
Article 9 (3) of the Covenant provides that it is not the general rule that persons
awaiting trial are to be detained in custody. The Working Group recalls the view of the
Human Rights Committee that pretrial detention should be an exception and 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. 27 In the present case, absent a response from the
Government, the Working Group concludes that there was no individualized determination
25 A/HRC/19/57, para. 68.
26 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.
27 General comment No. 35 (2014), para. 38.
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of Mr. Nguyễn’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.
95.
The source submits that Mr. Nguyễn was first held incommunicado for approximately
seven months. The Working Group recalls that holding persons incommunicado prevents
prompt presentation before a judge, as provided for in article 9 (3) of the Covenant,28 and
violates the right under article 9 (4) of the Covenant to challenge the lawfulness of the
detention before a court.29 Judicial oversight of detention is a fundamental safeguard of
personal liberty30 and is essential in ensuring that detention has a legal basis. Given that
Mr. Nguyễn 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.
96.
According to the source, Mr. Nguyễn was not permitted to contact his legal counsel
until after approximately seven months of detention and was not permitted to receive visits
from family members until the end of his trial. The Government had the opportunity to
address this allegation but did not do so. 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 is an essential and necessary safeguard for the
prevention of torture and for protection against arbitrary detention and infringement of
personal security.31 Accordingly, the Working Group finds that the right of Mr. Nguyễn to
contact with the outside world was denied, in contravention of rules 43 (3) and 58 (1) of the
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules)32 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 submission that Mr. Nguyễn
was transferred between detention facilities without the family being notified and that this
lack of information constituted a further impediment to his right to communicate with
relatives.
97.
Lastly, the Working Group has considered the application of vague and overly broad
criminal law provisions of Viet Nam in numerous opinions,33 specifically article 117 of the
Penal Code. 34 The principle of legality requires that laws be formulated with sufficient
precision that individuals can access and understand the them and regulate their conduct
accordingly.35 Noting the source’s unrebutted submissions, the Working Group reiterates its
previous finding that article 117 of the Criminal Code does not meet this standard. It is thus
incompatible with article 11 (2) of the Universal Declaration of Human Rights and
article 15 (1) of the Covenant and cannot be considered to be “prescribed by law” and to have
been “defined with sufficient precision” due to its vague and overly broad language.36 The
28 Ibid., para. 35.
29 See opinions No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019 and 25/2021.
30 A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.
31 General comment No. 35 (2014), para. 58; and opinion No. 84/2020, para. 70.
32 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
33 Opinions No. 46/2018, para. 62; No. 8/2019, para. 54; No. 9/2019, para. 39; No. 44/2019, para. 55;
and No. 45/2019, para. 54. See also opinions No. 26/2017, No. 27/2017 and No. 75/2017; and
A/HRC/41/7, paras. 38.73, 38.171, 38.175, 38.177, 38.183, 38.184, 38.187–38.191 and
38.196–38.198.
34 Opinions No. 11/2021, paras. 67, 73, 74 and 96; No. 36/2021, paras. 73, 74, 77, 78 and 103;
No. 40/2021, paras. 69, 73–75 and 99; No. 35/2022, paras. 76 and 79–81; No. 43/2022, para. 89; and
No. 86/2022, para. 35.
35 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.
36 Human Rights Committee, general comment No. 34 (2011), para. 25.
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Working Group considers that the offence for which Mr. Nguyễn is being detained is so
vague that it is impossible to invoke a legal basis for his detention.
98.
In the light of the above, the Working Group concludes that Mr. Nguyễn’s deprivation
of liberty lacks a legal basis and is thus arbitrary under category I.
(b)
Category II
99.
The Working Group will now examine whether Mr. Nguyễn’s detention is arbitrary
under category II, in relation to which the source submits that Mr. Nguyễn’s arrest, detention
and conviction stem from the legitimate exercise of his fundamental rights that are guaranteed
by the Covenant and the Universal Declaration of Human Rights, and are in retaliation for
his public criticism of government policy.
100.
The Working Group considers that charges and convictions under article 117 of the
Criminal 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 distinguish between violent acts capable of threatening national
security and the peaceful exercise of rights.37
101.
In May 2017, the United Nations country team in Viet Nam recommended the repeal
or revision of numerous articles of the Criminal 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 either 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.38
102.
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.39 The same Committee
has found that the vague and broadly formulated offences in various articles of the Criminal
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 rights defenders,
journalists, bloggers and lawyers, for criticizing State authorities or policies, including
online.40
103.
Article 19 (2) of the Covenant protects the holding and expression of opinions,
including those that are not in line with government policy.41 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. 42 The same Committee has
emphasized that the form of expression is highly relevant in assessing whether a restriction
is proportionate. As noted by the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, certain types of expression, such as discussion of
government policies and political activities, including for peace or democracy, should never
37 E/CN.4/1995/31/Add.4, paras. 58–60.
38 See https://vietnam.un.org/en/14681-un-recommendations-2015-penal-code-and-criminal-procedural-
code-viet-nam.
39 CCPR/C/VNM/CO/3, para. 46.
40 Ibid., para. 45.
41 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.
42 Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), para. 6.7.
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be subject to restrictions.43 The Human Rights 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.44
104.
The permitted restrictions to 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 paragraph 3, even if such grounds would justify
restrictions to other rights protected in the Covenant. Restrictions must be applied only for
those purposes for which they were prescribed and must be directly related to the specific
need on which they are predicated.” 45 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 a charge against Mr. Nguyễn was a legitimate, necessary and proportionate response
to his online activities. As such, the Working Group is not convinced that prosecuting
Mr. Nguyễn was necessary to protect a legitimate interest under this article of the Covenant
or that Mr. Nguyễn’s arrest and detention were necessary or proportionate responses to his
activities. Importantly, there is no indication that his peaceful journalistic activism was
intended or had the potential to incite violent behaviour.
105.
For these reasons, the Working Group concludes that Mr. Nguyễn’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
106.
Given its finding that the deprivation of liberty of Mr. Nguyễn is arbitrary under
category II, the Working Group wishes to emphasize that no trial should have taken place.
However, Mr. Nguyễn 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 to give Mr. Nguyễn’s deprivation of liberty an arbitrary character,
such that it falls within category III.
107.
The source contends that Mr. Nguyễn’s right to communicate with legal counsel was
violated, noting that he was denied any contact with his lawyers for approximately seven
months after his arrest. He was then allowed to meet with his legal counsel five times, but
these meeting were supervised by the authorities. 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.46 The Working Group reaffirms that 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.47
The Working Group finds that the extremely limited access to legal assistance granted to
Mr. Nguyễn violated his right to equality of arms and to a fair hearing by an independent and
impartial tribunal under article 14 (1) of the Covenant.48 Noting the source’s unrebutted
submissions that Mr. Nguyễn was held incommunicado for approximately seven months,
without justification for his arrest, and that, even after his indictment had been announced on
43 A/HRC/14/23, para. 81 (i).
44 Human Rights Council resolution 12/16, para. 5 (p).
45 General comment No. 34 (2011), para. 22.
46 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. 34; A/HRC/45/16, paras. 50–55; and
A/HRC/48/55, para. 56. See also A/HRC/27/47, para. 13.
47 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.
48 Opinions No. 18/2018, para. 53; No. 78/2018, paras. 78 and 79; and No. 43/2020, para. 84.
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17 January 2023, it took two further months for him to receive a copy, the Working Group
also finds a violation of article 14 (3) (a) of the Covenant.
108.
The source reports that, given the impediment that Mr. Nguyễn faced with regard to
access to his lawyers, his family requested permission to send him a copy of the Constitution
and other books so that he could prepare his legal defence, but they did not receive any reply
from the authorities. In addition, the source submits that Mr. Nguyễn was informed of the
date of his trial only 13 days before it began, giving him and his lawyers very little time in
which to prepare the defence. All these elements further highlight that Mr. Nguyễn 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.49
109.
The source further submits that Mr. Nguyễn was convicted on the same day on which
he was first brought before a judge. He was sentenced to six years in prison in addition to
two years of probation under article 117 of the 2015 Criminal 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 supports the conclusion that guilt was determined prior
to the trial.50 In the absence of an explanation from the Government, the Working Group finds
that these factors undermined Mr. Nguyễn’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.
110.
The source submits that Mr. Nguyễn’s trial was closed to the public. Even his spouse,
who was expressly entitled to attend the hearing according to domestic law, was not notified
about the trial by the authorities. Despite her request to attend, she was allowed only to remain
in an area near the court during the hearing.
111.
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 the trial, that is, for reasons of morals, public order or national
security.51 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. Nguyễn 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 provide that everyone
is entitled to a fair and public hearing.
112.
While the source also alleges that Mr. Nguyễn has been denied access to an
independent, impartial and competent tribunal, the Working Group does not have sufficient
information to make findings on these allegations.
113.
For the reasons enumerated above, the Working Group concludes that the numerous
violations of Mr. Nguyễn’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
114.
In relation to category V, the source submits that Mr. Nguyễn’s detention is arbitrary
because he was discriminated against on the basis of his political opinions, which reflected
opposition to the Government, and his status as a human rights defender.
115.
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
49 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.
50 Opinions No. 75/2017, para. 53; No. 36/2018, para. 55; No. 82/2021, para. 80; and No. 16/2023,
para. 86.
51 General comment No. 32 (2007), para. 29.
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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 him or her from exercising his or her human rights.52
116.
With regard to these non-cumulative indicators, the Working Group notes a pattern of
intimidation against Mr. Nguyễn in relation to his activities as an advocate for human rights.
The source submits that Mr. Nguyễn and his family have been subjected to various forms of
threats and intimidation, including police interrogations. Furthermore, in April 2014,
Mr. Nguyễn was prevented from travelling to the United States to attend an event related to
World Press Freedom Day and a congressional briefing.
117.
In the discussion above concerning category II, the Working Group has established
that Mr. Nguyễn’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 grounds of discrimination based on political or other views.53
118.
For these reasons, the Working Group finds that Mr. Nguyễn was deprived of his
liberty on discriminatory grounds, on the basis of his political opinions and his status as a
human rights defender. The deprivation of his 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
119.
The Working Group is extremely concerned about the source’s submission that
Mr. Nguyễn’s medical issues were exacerbated by the dire conditions of his detention. The
Working Group is compelled to remind the Government that, according to article 10 (1) of
the Covenant54 and rules 1, 24, 27 and 118 of the Nelson Mandela Rules, all persons deprived
of their liberty must be treated with humanity and dignity, including by being provided with
appropriate medical care. The Working Group is also troubled by the allegations that
Mr. Nguyễn’s family has been subjected to ongoing and repeated intimidation by the
authorities and urges the Government to ensure that the authorities desist from such conduct
immediately. Further noting the source’s allegations relating to the severe restrictions on
Mr. Nguyễn visitation rights, the Working Group is compelled to remind the Government to
respect his right to contact with the outside world under rules 43 (3) and 58 (1) of the Nelson
Mandela Rules and principles 15 and 19 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment and to uphold his visitation rights.
120.
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.55 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.
121.
The Working Group would welcome the opportunity to work constructively with the
Government of Viet Nam to address its concerns relating to arbitrary detention in the country.
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
52 A/HRC/36/37, para. 48.
53 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 59/2019, para. 79.
54 Opinion No. 26/2017, para. 66.
55 See 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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8 November 2024, 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
122.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Nguyễn Lân Thắng, being in contravention of articles 2,
7, 9, 10, 11 and 19 of the Universal Declaration of Human Rights and articles 2, 9, 14,
15, 16, 19 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, II, III and V.
123.
The Working Group requests the Government of Viet Nam to take the steps necessary
to remedy the situation of Mr. Nguyễn 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.
124.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Nguyễn immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
125.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Nguyễn and to take appropriate measures against those responsible for the violation of
his rights.
126.
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.
127.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
128.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Nguyễn has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Nguyễn;
(c)
Whether an investigation has been conducted into the violation of
Mr. Nguyễn’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.
129.
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.
130.
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.
A/HRC/WGAD/2024/51
GE.24-22473
17
131.
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.56
[Adopted on 11 November 2024]
56 Human Rights Council resolution 51/8, paras. 6 and 9.