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.25-07918 (E) 090725 100725
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 30/2025 concerning To Hoang Chuong and Thach Cuong
(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 2 January 2025 the Working Group
transmitted to the Government of Viet Nam a communication concerning To Hoang Chuong
and Thach Cuong. 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/2025/30
General Assembly
Distr.: General
10 July 2025
Original: English
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1.
Submissions
(a)
Communication from the source
4.
To Hoang Chuong and Thach Cuong are citizens of Viet Nam, born in 1986 and 1987,
respectively. They belong to the Khmer Krom Indigenous group and are activists.
5.
Both Mr. To and Mr. Thach were residents of Lac Son hamlet, Thanh Hoa Son village,
Cau Ngang district, Tra Vinh Province, at the time of their arrest and detention.
(i)
Background
6.
The Khmer Krom are an Indigenous group that primarily inhabits the Mekong Delta.
Approximately, 95 per cent of Khmer Krom practise Theravada Buddhism, a minority
religion in Viet Nam.
7.
Reportedly, State media often characterizes ethnic minority activities as “illegal
religious practices” and independent religious groups are subjected to harassment and
prosecution. The authorities disfavour minority languages, making it difficult for groups such
as the Khmer Krom to access critical services. The Khmer Krom are often denied ownership
of their lands and have poor access to clean water and basic healthcare. The Government
refuses to recognize the existence, in Viet Nam, of Indigenous groups, including the Khmer
Krom, which are therefore unable to allege violations of the United Nations Declaration on
the Rights of Indigenous Peoples.
8.
In that context, Mr. To and Mr. Thach have regularly organized or participated in
advocacy efforts on behalf of the Khmer Krom community, such as distributing copies of the
United Nations Declaration on the Rights of Indigenous Peoples and organizing International
Women’s Day commemorations.
9.
On 30 July 2022, Mr. Thach was detained and questioned in Ho Chi Minh City about
his plans to organize a Khmer Krom cultural dinner. On 18 October 2022, certain special
procedures of the Human Rights Council wrote to the Government of Viet Nam regarding
the detention of Mr. Thach.2
10.
On 23 June 2023, Mr. To was beaten by police in Soc Trang Province, while he was
attempting to distribute copies of the United Nations Declaration on the Rights of Indigenous
Peoples.
(ii)
Arrest, detention and sentencing
11.
On 31 July 2023, the police arrived at the homes of Mr. To and Mr. Thach in Tra Vinh
Province and informed them that they were under arrest for “abuse of democratic freedoms”
under article 331 of the Criminal Code. Officials did not provide physical copies of the arrest
warrants but announced the arrests on an official website in Tra Vinh Province on the day of
the arrest.
12.
According to the website,3 the two individuals had been investigated by the Security
Investigation Agency of the Tra Vinh Provincial Police regarding their Facebook posts
containing content that violated the law. Officials did not include information about the
specific posts or their content to indicate how they had violated the law.
13.
The two men allegedly caused division and discrimination among ethnic groups,
violated the interests of the State, offended the reputation of some individuals and
complicated the security situation. Mr. To and Mr. Thach were accused of establishing an
illegal group. They were accused of producing, storing, distributing and using thousands of
documents containing propaganda from outside reactionary organizations, although no
specific examples were provided of any illegal group or propaganda.
2 See communication VNM 5/2022, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27586.
3 See https://tinyurl.com/4wt3jv84 (in Vietnamese).
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14.
Based on those allegations, Mr. To and Mr. Thach were charged under article 331 of
the Criminal Code, which criminalizes abusing democratic freedoms to infringe upon the
interests of the State, the lawful rights and interests of organizations and/or citizens. The
maximum sentence under article 331 is three years in prison or, if the action has a negative
impact on social security, order or safety, seven years in prison. The source recalls that article
331 of the Criminal Code employs broad and vague language and is often applied to punish
critics of the authorities.
15.
Mr. To and Mr. Thach were taken to the Detention Camp of Tra Vinh Province. They
were held in pretrial detention and did not appear before a judge until the trial nearly eight
months later. They received no individualized assessment in relation to their pretrial
detentions.
16.
Moreover, they were never informed of their right to counsel and were prevented from
contacting a lawyer or preparing for trial. To date, neither of them has a lawyer. Mr. To and
Mr. Thach were likely held together with convicted individuals. Officials denied access to
any visitors.
17.
On 20 March 2024, Mr. To and Mr. Thach were tried in a joint closed trial that lasted
two hours at Cau Ngang District People’s Court. Only State media outlets could attend the
proceedings. Neither Mr. To nor Mr. Thach had a lawyer, nor were they permitted to present
a defence.
18.
Mr. To and Mr. Thach were convicted of abusing “freedom of speech, freedom of the
press and freedom of religious belief” under article 331 of the Criminal Code. Mr. To was
sentenced to three and a half years in prison and Mr. Thach was sentenced to four years in
prison. Both were promised shortened sentences if they admitted guilt, which they did.
However, they did not receive lighter sentences.
19.
They appealed their sentences, but their appeal was denied on 23 May 2024 in a
single-day hearing before the People’s Court of Tra Vinh Province. During the appeal
hearing, Mr. To and Mr. Thach were not allowed a lawyer and their family members were
barred from attending.
20.
In late June or early July 2024, they were transferred to different detention centres,
where they remain. Mr. To was transferred to Chau Binh Detention Centre in Ben Tre
Province, which borders Tra Vinh Province. He is permitted to call home once a month and
his family is allowed to visit him once a month. Visits are conducted under restrictive
conditions, with family members required to communicate through a glass partition. All
conversations are monitored.
21.
Mr. To is reportedly forced to speak Vietnamese during those visits, even with his
child, who does not understand the language. The authorities have continued to pressure his
family into convincing him to confess to alleged “wrongdoings” on social media, which he
has refused to do.
22.
Mr. Thach was transferred to An Phuoc Detention Centre in Binh Duong Province.
He has reportedly lost a lot of weight and is allegedly being treated harshly in prison. He is
allowed one phone call home a month. While his family is permitted to bring him food three
times a month, they are only allowed one in-person visit monthly, during which police
monitor conversations.
(iii)
Legal analysis
23.
The source argues that the detention of Mr. To and Mr. Thach is arbitrary falling under
categories I, II, III and V.
24.
In relation to category I, the source asserts a violation of the right to habeas corpus
and the general rule against pretrial detention. It recalls that the above-mentioned individuals
were placed in pretrial detention immediately after their arrests on 31 July 2023, without
being presented before a judge or provided with an opportunity to bring proceedings before
a court. They were held, without any justification, in pretrial detention for nearly eight
months until their trial on 20 March 2024. Neither individual received an individualized
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assessment explaining why pretrial detention was necessary or consideration of other
measures to ensure their appearance at trial.
25.
The officials failed to present Mr. To and Mr. Thach before a judge following their
arrest and to make individualized assessments in relation to the necessity of pretrial detention.
Furthermore, they were denied their right to bring proceedings before a court. The source
submits that the authorities have therefore violated article 8 of the Universal Declaration of
Human Rights, articles 2 (3) and 9 (3) and (4) of the Covenant and principles 11, 32, 36 (2),
37, 38 and 39 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment. As such, the detention of Mr. To and Mr. Thach is legally
baseless.
26.
Mr. To and Mr. Thach were charged and convicted under article 331 of the Criminal
Code, a vague and overly broad provision that violates the principle of legality. Therefore,
the authorities have violated article 11 (2) of the Universal Declaration of Human Rights and
article 15 (1) of the Covenant, which renders their detention legally baseless and arbitrary
under category I.
27.
In its concluding observations on the third periodic report of Viet Nam in 2019, the
Human Rights Committee expressed concern about the vague and broadly formulated
offences in article 331 of the Criminal Code and its use to curtail freedom of opinion and
expression. It regretted the severe restrictions on freedom of opinion and expression,
including laws and practices that appeared not to comply with the principles of legal
certainty, necessity and proportionality.4 The United Nations country team in Viet Nam
recommended a review of convictions under article 331 5 and the Committee on the
Elimination of Racial Discrimination noted that the provision might be used to suppress
dissent.6
28.
The source argues that, by holding Mr. and Mr. Thach in incommunicado detention
and denying their right to communicate with legal counsel and family, the authorities violated
article 6 of the Universal Declaration of Human Rights, articles 9 (4) and 16 of the Covenant
and principles 15 and 19 of the Body of Principles.
29.
It is submitted that, by denying their rights to a lawyer and to present a defence, the
authorities violated article 11 (1) of the Universal Declaration of Human Rights,
article 14 (3) (b) and (d) of the Covenant, principles 15 and 17 of the Body of Principles,
principle 7 of the Basic Principles on the Role of Lawyers and principle 9 and guideline 8 of
the United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right
of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court. As such, the
detention of Mr. To and Mr. Thach is legally baseless and arbitrary under the category I.
30.
In relation to category II, the source submits that Mr. To and Mr. Thach were deprived
of liberty because of their exercise of the rights to freedom of opinion and expression, the
right to enjoy their culture and freedom of religion. Therefore, the authorities have violated
articles 7, 18 and 19 of the Universal Declaration of Human Rights and articles 18, 19, 26
and 27 of the Covenant.
31.
In that context, the source recalls that Mr. To and Mr. Thach were detained under
article 331 of the Criminal Code for “abusing democratic freedoms” based on social media
posts that were allegedly critical of the Government and for advocating on behalf of the
Khmer Krom community. Mr. To and Mr. Thach also practise Theravada Buddhism and
advocate for the right of the Khmer Krom community to practise their religion. The source
submits that they were arrested in the context of multiple arbitrary arrests and attacks on
Khmer Krom Theravada Buddhists that reportedly occurred around the same time.
32.
The source argues that the exceptions provided for in articles 18 (3) and 19 (3) of the
Covenant do not apply because the limitations on the freedoms of opinion, expression and
religion are not prescribed by law or necessary to protect national security, public safety,
order, health, morals or the fundamental rights of others. Article 331 of the Criminal Code
4 CCPR/C/VNM/CO/3, para. 45.
5 See https://www.ohchr.org/en/hr-bodies/upr/vn-un-contributions-s46.
6 CERD/C/VNM/CO/15-17, para. 20.
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cannot justify a limitation on fundamental freedoms because the law violates the principle of
legality, so citizens cannot understand it and adapt their behaviour to its requirements.
33.
In relation to category III, the source submits that the deprivation of liberty of Mr. To
and Mr. Thach is arbitrary under category III as it violates articles 6, 8, 10 and 11 (1) of the
Universal Declaration of Human Rights, articles 2 (3), 9 (3) and (4), 10 (2), 14 (1), (2) and
(3) (b), (d) and (g) and 16 of the Covenant, principles 8, 11, 15, 17, 19, 21 (1), 27, 32, 36, 37,
38 and 39 of the Body of Principles, principle 7 of the Basic Principles on the Role of Lawyers
and principle 9 and guideline 8 of the United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring
Proceedings Before a Court.
34.
The source recalls in that regard its allegations in relation to habeas corpus and the
general rule against pretrial detention; the incommunicado detention of the two individuals;
and the denial of their right to legal assistance and to a public hearing before an independent
and impartial tribunal. The authorities reportedly presented inadmissible evidence as Mr. To
and Mr. Thach had been pressured into confessing without the presence of counsel.
35.
Furthermore, Mr. To and Mr. Thach were denied their right to the presumption of
innocence. They were placed in pretrial detention without appearing before a judge,
suggesting a presumption of guilt without any hearing. They were also held incommunicado
without access to legal assistance and, to date, have been denied the right to a lawyer. While
awaiting trial, they were housed in shared cells, most likely with others that had already been
convicted. They were convicted during a one-day hearing and were accompanied throughout
by police, which could suggest that they were guilty or somehow dangerous. State-run media
outlets allegedly published news reports about the arrests using language that suggested that
the men were guilty.7
36.
The source submits that the deprivation of liberty of the two individuals is arbitrary
under category V as it violates articles 2 and 7 of the Universal Declaration of Human Rights
and articles 2 (1) and 26 of the Covenant.
37.
According to official announcements, Mr. To and Mr. Thach were arrested and
detained for exercising their freedom of expression through social media posts and by
organizing events with the Khmer Krom community. 8 Therefore, there is a “strong
presumption” that they were targeted based on their political or other opinion, submits the
source. The source also submits that there is a pattern of harassment by officials against
Mr. To and Mr. Thach, as well as the Khmer Krom community in general. It recalls that
Mr. Thach was previously charged under article 331 of the Criminal Code, as identified in a
letter from special procedures to Viet Nam.9 Furthermore, the source submits that Mr. To
was arrested and beaten by officials a month before he was arrested and argues that this
pattern of harassment by officials warrants a higher standard of review.
38.
The source argues that the status of Mr. To and Mr. Thach, as members of a religious
minority and Indigenous group, warrants consideration. Both belong to the Khmer Krom
community, a politically active Indigenous group that has called upon the Government to
recognize it as Indigenous, which the State has refused to do.10 The source submits that the
State has conducted arrests and attacks on the Khmer Krom in recent years. The source also
submits that Mr. To and Mr. Thach have also been persecuted for practising their religion,
Theravada Buddhism.
39.
The source submits that officials have targeted both Mr. To and Mr. Thach in the
past.11
7 See https://tinyurl.com/4wt3jv84 (in Vietnamese).
8 See https://tinyurl.com/3wjmj535 (in Vietnamese).
9 See communication VNM 5/2022.
10 See the reply of the Government of Viet Nam to communication VNM 5/2022, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=37520.
11 See communication VNM 5/2022.
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(b)
Response from the Government
40.
On 2 January 2025, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure. The Working Group requested
the Government to provide detailed information by 3 March 2025 about the current situation
of Mr. To and Mr. Thach. The Working Group also requested the Government to clarify the
legal provisions justifying their 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 the physical and mental integrity of Mr. To and Mr. Thach.
41.
The Working Group regrets that it did not receive a response from the Government to
that 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
42.
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.
43.
In determining whether the detention of Mr. To and Mr. Thach is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for breach of international
law constituting arbitrary detention, the burden of proof should be understood to rest upon
the Government if it wishes to refute the allegations.12 In the present case, the Government
has chosen not to challenge the prima facie credible allegations made by the source.
(a)
Category I
44.
The Working Group will first consider the source’s submission that the detention of
Mr. To and Mr. Thach is arbitrary under category I. According to the source, on 31 July 2023,
police officers arrived at the respective homes of Mr. To and Mr. Thach. The officers stated
that the two individuals were under arrest for “abuse of democratic freedoms” under
article 331 of the Criminal Code. They did not provide them with physical copies of the arrest
warrants but announced the arrests on an official website in Tra Vinh Province on the day of
the arrest.
45.
Pursuant to article 9 (1) of the Covenant, no one shall be deprived of his or her liberty
except on such grounds and in accordance with such procedures as are established by law.
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.13 That is typically done through
an arrest warrant or arrest order (or equivalent document).14 Noting the source’s submissions,
and absent a response from the Government, the Working Group finds that Mr. To and
Mr. Thach were not shown or presented with an arrest warrant (or equivalent), in violation
of article 9 (1) of the Covenant.
46.
The source recalls that Mr. To and Mr. Thach were placed in pretrial detention
immediately after their arrests on 31 July 2023, without being presented before a judge for
nearly eight months until their trial on 20 March 2024. Neither individual received an
individualized assessment explaining the necessity of the pretrial detention.
47.
The Working Group recalls that 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, is set out in the Working
Group’s jurisprudence.15 The right to bring proceedings before a court so that it may decide
12 A/HRC/19/57, para. 68.
13 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
14 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 not be typically available.
15 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.
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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. Absent a response from the Government, the Working Group finds
that that right was violated, as Mr. To and Mr. Thach were not brought promptly before a
judicial authority.
48.
Furthermore, article 9 (3) of the Covenant provides that it shall not be the general rule
that persons awaiting trial shall be detained in custody. The Working Group recalls the view
of the Human Rights Committee that pretrial detention should be an exception, be as short as
possible and 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.16 In the present case, absent a response from the Government, the Working
Group concludes that there was no individualized determination of the circumstances of
Mr. To and Mr. Thach and, as a result, their 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.
49.
The source submits that Mr. To and Mr. Thach were held incommunicado for nearly
eight 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,17 and
violates the right under article 9 (4) of the Covenant to challenge the lawfulness of the
detention before a court.18 Judicial oversight of detention is a fundamental safeguard of
personal liberty19 and is essential in ensuring that detention has a legal basis. Given that
Mr. To and Mr. Thach were unable to challenge their detention before a court, their right to
an effective remedy under article 8 of the Universal Declaration of Human Rights and
article 2 (3) of the Covenant was violated. They were also placed outside the protection of
the law, in violation of their 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.
50.
According to the source, Mr. To and Mr. Thach were not permitted to receive visits
from family members or legal counsel following their arrest for nearly eight months until
their conviction on 20 March 2024. The Government had the opportunity to address that
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.20 According to the source’s unrebutted submissions, such restricted access to family
has continued since their convictions. During visits, family members of Mr. To and
Mr. Thach are under surveillance by prison officials and they are banned from using the
Khmer language. In the view of the Working Group, such restrictions and conditions with
regard to family contact are unreasonable. Accordingly, the Working Group finds that the
right of Mr. To and Mr. Thach to contact with the outside world is being denied, in
contravention of rule 58 (1) of the United Nations Standard Minimum Rules for the
Treatment of Prisoners (the Nelson Mandela Rules)21 and principles 15 and 19 of the Body
of Principles.
51.
In the light of the above, the Working Group concludes that the deprivation of liberty
of Mr. To and Mr. Thach lacks a legal basis and is thus arbitrary under category I.
16 Human Rights Committee, general comment No. 35 (2014), paras. 37 and 38.
17 Ibid., para. 35.
18 Opinions No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019 and 25/2021.
19 A/HRC/30/37, para. 3.
20 Human Rights Committee, general comment No. 35 (2014), para. 58; and opinion No. 84/2020,
para. 69.
21 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
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(b)
Category II
52.
The Working Group will now examine whether the detention of Mr. To and Mr. Thach
is arbitrary under category II. The source submits that Mr. To and Mr. Thach were arrested
and detained for exercising their rights to freedom of opinion and expression, the right to
enjoy their own culture and freedom of religion.
53.
The source submits that Mr. To and Mr. Thach were arrested, detained and convicted
under article 331 of the Criminal Code for “abusing democratic freedoms” based on posts on
social media that were allegedly critical of the Government and for advocating on behalf of
the Khmer Krom community. The source submits that article 331 of the Criminal Code is
often applied to punish critics of the authorities.
54.
Article 19 (2) of the Covenant protects the holding and expression of opinions,
including those that are not in line with government policy.22 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 should never be subject to restrictions, such as discussion of government policies
and political activities, including for peace or democracy.23 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.24
55.
The permitted restrictions to the right may relate either to respect for the rights or
reputations of others or to the protection of national security, public order or public health or
morals. As the Human Rights Committee has stipulated, restrictions are not allowed on
grounds not specified in article 19 (3), even if such grounds would justify restrictions to other
rights protected in the Covenant. Restrictions must be applied only for those purposes for
which they were prescribed and must be directly related to the specific need on which they
are predicated.25
56.
During its visit to Viet Nam in October 1994, the Working Group noted that vaguely
defined national security offences did not distinguish between violent acts capable of
threatening national security and the peaceful exercise of rights. It recalled that, while articles
18 to 22 of the Covenant provided that such rights may be subject to certain restrictions,
nevertheless, such restrictions must not be such that they might, as at present, affect the
enjoyment of the right itself (concept of permissible restrictions).26 Similarly, 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. It has found that the vague and
broadly formulated offences in various articles of the Criminal Code, including article 331,
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.27
57.
Several special procedures of the Human Rights Council have raised concerns about
the vague nature of article 331 of the Criminal Code with the Government.28 Furthermore,
the United Nations country team in Viet Nam recommended a review of convictions under
article 331 and the Committee on the Elimination of Racial Discrimination noted that the
provision may be used to suppress dissent. The Working Group echoes those views and
considers that charges and convictions under article 331 of the Criminal Code for the peaceful
exercise of rights are inconsistent with the Universal Declaration of Human Rights and the
Covenant.
22 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.
23 A/HRC/14/23, para. 81 (i).
24 Human Rights Council resolution 12/16, para. 5 (p).
25 Human Rights Committee, general comment No. 34 (2011), para. 22.
26 E/CN.4/1995/31/Add.4, paras. 58–60.
27 CCPR/C/VNM/CO/3, paras. 45 (a) and (d) and 46.
28 See communication VNM 6/2022, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27619.
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58.
The source submits that Mr. To and Mr. Thach practise Theravada Buddhism and
advocate for the rights of the Khmer Krom community to practise their religion. The
allegations against them relate to Facebook posts and the production and distribution of
documents, described by the authorities as propaganda. As interpreted by the Human Rights
Committee in its general comment No. 22 (1993), as a consequence of freedom of religion,
in conjunction with freedom of thought and belief (art. 18) and freedom of expression
(art. 19), everyone may express their opinion in public or private, including on matters of
religion, noting that the practice and teaching of religion or belief includes acts integral to
the conduct by religious groups of their basic affairs, such as the freedom to prepare and
distribute religious texts or publications.29
59.
Article 18 (3) of the Covenant permits limits on the freedom of religion only as
prescribed by law and are necessary to protect public safety, order, health, morals or the
fundamental rights and freedoms of others. As observed by the Human Rights Committee,
article 18 (3) of the Covenant should be strictly interpreted; restrictions may not be imposed
for discriminatory purposes or applied in a discriminatory manner.30 The Working Group
recalls the Declaration on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief (1981), which protects the right to freedom of thought,
conscience and religion (art. 1 (1)), including the freedom to write, issue and disseminate
relevant publications in these areas (art. 6 (d)). In addition, the Working Group recalls the
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities (1992), which protects the right of persons belonging to religious
minorities to profess and practise their own religion freely and without interference or any
form of discrimination (art. 2 (1)).
60.
There is nothing to suggest that the permissible restrictions set out in articles 19 (3)
and 18 (3) of the Covenant apply in the present case. The Government did not provide an
argument to invoke any of those limitations, nor has it demonstrated why bringing charges
was a legitimate, necessary and proportionate response to the activities of Mr. To and
Mr. Thach. Importantly, there is no indication that their peaceful exercise of their
fundamental rights was intended or had the potential to incite violent behaviour. As such, the
Working Group is not convinced that prosecuting Mr. To and Mr. Thach is necessary to
protect legitimate interests under the Covenant, nor that their arrest and detention are
necessary or proportionate responses to their activities.
61.
The source submits that Mr. To and Mr. Thach were arrested and prosecuted in
violation of their right to enjoy their own culture, which is protected under article 27 of the
Covenant. The Working Group recalls that article 27 of the Covenant provides that, in those
States in which ethnic, religious or linguistic minorities exist, persons belonging to such
minorities should not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practise their own religion or to use their
own language. The right contained in article 27 of the Covenant is an individual right,
although one that also exists in common with a community, which belongs to those who are
members of a common cultural, religious or linguistic group.31
62.
While article 27 of the Covenant does not contain a limitation clause, some balancing
of the interests of the minority against the interests of a Government may nonetheless be
permissible. The Human Rights Committee has distinguished between measures that deny
persons their right to enjoy their culture and those that have a certain limited impact on the
way of life of persons belonging to a minority and do not necessarily violate article 27 of the
Covenant.32 As such, article 27 of the Covenant must also be exercised in a manner that is
consistent with other fundamental human rights.33 The source submits that the authorities
insist that Mr. To and Mr. Thach speak only Vietnamese and not their native language of
Khmer. Reportedly, the authorities have intervened when Mr. To attempted to speak Khmer
29 Human Rights Committee, general comment No. 22 (1993), para. 4.
30 Ibid., para. 8.
31 Human Rights Committee, general comment No. 23 (1994), para. 1.
32 CCPR/C/83/D/1023/2001, para. 7.3.
33 Human Rights Committee, general comment No. 23 (1994), para. 8. See also opinion No. 9/2017,
para. 27.
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to his child, who only speaks Khmer. In that regard, the Working Group observes that
article 27 of the Covenant provides for a distinct right that encompasses the right of
individuals belonging to a minority to speak their own language and to practise their own
culture and religion.34
63.
The Working Group has found a violation of article 27 of the Covenant when the
authorities prohibit the distribution of documents and/or cultural products with contents
against the State35 or when they detain a group of individuals from the same minority group
for advocating for their rights.36 Those legitimate activities are comparable to the activities
carried out by Mr. To and Mr. Thach, which have led to their imprisonment, given that no
explanation has been given to justify their detention for distributing those materials in the
present case.
64.
For those reasons, the Working Group concludes that the detention of Mr. To and
Mr. Thach resulted from their legitimate exercise of their right to freedom of opinion,
expression and religion and rights enjoyed by persons belonging to ethnic or linguistic
minorities as protected by articles 19 and 20 of the Universal Declaration of Human Rights
and articles 18, 19 and 27 of the Covenant. The Working Group thus finds that their arrest
and detention is arbitrary and falls 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, the Special Rapporteur on minority issues and the Special
Rapporteur on the rights of Indigenous Peoples.
(c)
Category III
65.
Given its finding that the deprivation of liberty of Mr. To and Mr. Thach is arbitrary
under category II, the Working Group wishes to emphasize that no trial should have taken
place. However, Mr. To and Mr. Thach have 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 their deprivation of liberty an arbitrary
character, such that it falls within category III.
66.
The source contends that the right of Mr. To and Mr. Thach to communicate with
legal counsel has been violated, as they did not have access to lawyers during their trials, on
appeal or thereafter. The Working Group recalls that all persons deprived of their liberty have
the right to legal assistance by a counsel of their choice at any time during their detention,
including immediately after their apprehension, and such access is to be provided without
delay.37 Mr. To and Mr. Thach were not afforded their rights to adequate time and facilities
for the preparation of their defence and to communicate with counsel of their 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.38 The Working Group finds that the total denial of
legal assistance granted to Mr. To and Mr. Thach violated their right to equality of arms and
to a fair hearing under article 14 (1) and (3) (b) and (d) of the Covenant.
67.
The source submits that Mr. To and Mr. Thach were pressured into confessing without
the presence of counsel. Officials promised a shortened sentence in exchange for a
confession, but ultimately both men received nearly the maximum sentence. Reportedly, their
confessions were used at trial as evidence of their guilt. The burden rests with the
34 Human Rights Committee, general comment No. 23 (1994), para. 5.2.
35 Opinion No. 26/2013, paras. 56 and 71.
36 Opinion No. 28/2018, para. 75.
37 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; and
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.
38 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.
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Government to prove that their confessions were given freely and it has not done so.39 The
Working Group has found instances in which confessions made in the absence of legal
counsel were not admissible in criminal proceedings.40 Given the unrebutted submissions,
the Working Group finds that the present case is a similar instance.
68.
The source submits that the Cau Ngang District People’s Court and the People’s Court
of Tra Vinh Province denied the public access to the trials and appeals of Mr. To and
Mr. Thach. Only representatives of State media outlets were allowed to attend. Neither
individual was permitted to have a lawyer or family members present during proceedings. As
the Human Rights Committee has stated, criminal trials should be conducted in public unless
one of the exceptional circumstances outlined in article 14 (1) of the Covenant justifies not
doing so, that is, for reasons of morals, public order or national security.41 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. To and Mr. Thach 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 by a competent, independent and impartial tribunal established by law.
69.
The source submits that the authorities have undermined the presumption of
innocence of Mr. To and Mr. Thach. The Government effectively prevented public scrutiny
and controlled the narrative about what had occurred during the court hearing by only
allowing State-run media to operate in the courtroom. Furthermore, State-run media outlets
allegedly published news reports about the arrests of Mr. To and Mr. Thach using language
that suggested that the men were guilty. In the article announcing the arrests of Mr. To and
Mr. Thach, it was stated that they had “established illegal groups” and had distributed
“propaganda content for outside reactionary organizations”. In its general comment No. 32
(2007), the Human Rights Committee specified that the media should avoid news coverage
undermining the presumption of innocence (para. 30). In the circumstances of the present
case, the Working Group echoes the views of the Human Rights Committee.
70.
Furthermore, noting the lack of submissions from the Government, the Working
Group concurs with the source, namely that being accompanied in court by the police, who
stood with Mr. To and Mr. Thach throughout the trial, could suggest that they were guilty or
somehow dangerous, thus further undermining the presumption of innocence. 42 While
awaiting trial, they were also housed in shared cells with many other prisoners, some of
whom had most likely been already convicted. The Working Group recalls that, under article
10 (2) of the Covenant, accused persons should, save in exceptional circumstances, be
segregated from convicted persons and should be subject to separate treatment appropriate to
their status as unconvicted persons. Considering the cumulative effect of those multiple
factors, unrebutted in the present case, the Working Group finds that the right of Mr. To and
Mr. Thach to the presumption of innocence, as guaranteed under article 11 of the Universal
Declaration of Human Rights and article 14 (2) of the Covenant, has been undermined.
71.
The source argues that the complete denial of the right to present a defence, through
the denial of legal assistance, and the right to present evidence or call witnesses unfairly
favoured the prosecution. On the principle of equality of arms, the Working Group recalls
article 14 (3) (e) of the Covenant, which provides that all persons are entitled to examine the
witnesses against them and to obtain the attendance and examination of witnesses on their
behalf under the same conditions as witnesses against them.43 In the present case, that right
was denied to Mr. To and Mr. Thach; such a refusal to allow any defence bears the hallmarks
39 Human Rights Committee, general comment No. 32 (2007), para. 41. For example, opinions
No. 40/2012, para. 48; No. 1/2014, para. 22; and No. 14/2019, para. 68. See also E/CN.4/2003/68,
para. 26 (e).
40 A/HRC/45/16, para. 53. See also opinions No. 1/2014, para. 22; No. 14/2019, para. 71; No. 59/2019,
para. 70; and No. 73/2019, para. 91; and E/CN.4/2003/68, para. 26 (e).
41 Human Rights Committee, general comment No. 32 (2007), para. 29.
42 Opinions No. 40/2016, para. 41; No. 9/2017, para. 62; No. 36/2018, para. 55; No. 83/2019, para. 73;
No. 36/2020, para. 68; and No. 23/2022, paras. 69 and 70.
43 Human Rights Committee, general comment No. 32 (2007), para. 39.
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of a serious denial of equality of arms in the proceedings.44 The Working Group thus finds a
violation of article 14 (1) and (3) (e) of the Covenant.
72.
For the reasons enumerated above, the Working Group concludes that the numerous
violations of the right to a fair trial and due process faced by Mr. To and Mr. Thach are of
such gravity as to render their deprivation of liberty arbitrary, falling within category III.
(d)
Category V
73.
In relation to category V, the source submits that the detention of Mr. To and
Mr. Thach is the result of their religious beliefs, namely the Theravada Buddhism that they
practise, and for belonging to the Khmer Krom Indigenous community, a politically active
Indigenous group that has called upon the Government to recognize it as “Indigenous”, which
the State has refused to do.45
74.
The Working Group recalls several non-cumulative indicators that serve to establish
the discriminatory nature of detention. Those 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 persons on
discriminatory grounds or to prevent them from exercising their human rights.46 With regard
to those non-cumulative indicators, the source submits that, in recent years, the authorities
have targeted Khmer Krom activists and religious leaders, including Mr. To and Mr. Thach.47
75.
The Working Group notes a pattern of intimidation against Mr. To and Mr. Thach in
relation to their activities relating to the Khmer Krom Indigenous community. Prior to his
arrest, Mr. Thach was reportedly detained and questioned for seeking to host a cultural
dinner. Allegedly, Mr. To was beaten by police for seeking to distribute copies of the
United Nations Declaration on the Rights of Indigenous Peoples. The Working Group notes
the call of several special procedures to Viet Nam to recognize its obligations in relation to
Indigenous Peoples under customary international law, as reflected in the United Nations
Declaration on the Rights of Indigenous Peoples, which recognizes the right of Indigenous
Peoples to determine their own identity.48 Moreover, it recalls the source’s submission that
the authorities have continued to pressure Mr. To’s family into convincing him to confess to
alleged “wrongdoings” on social media, while he is serving his sentence. The Working Group
is deeply concerned by those acts of intimidation, which have included violence and which
have a chilling effect on the exercise of fundamental rights.
76.
Moreover, in the discussion above concerning category II, the Working Group has
established that the detention of Mr. To and Mr. Thach resulted from the peaceful exercise
of their 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.49 Moreover, the imprisonment of human rights defenders for speech-related reasons
is subject to heightened scrutiny. The Working Group has recognized the necessity of
subjecting interventions against individuals who may qualify as human rights defenders to
particularly intense review.50 That heightened standard of review by international bodies is
especially appropriate in situations in which there is a pattern of harassment by national
authorities targeting such individuals,51 as in the present case.
44 See, for example, opinion No. 19/2022, para. 66.
45 See the reply of the Government of Viet Nam to communication VNM 5/2022 (“In other words, in
Viet Nam, there is no concept of indigenous peoples”).
46 A/HRC/36/37, para. 48.
47 See communication VNM 5/2022.
48 See communication VNM 4/2024, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=29087.
See also the reply of the Government of Viet Nam to communication VNM 5/2022.
49 See, for example, opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 59/2019, para. 79.
50 Opinions No. 21/2011, para. 29; and No. 62/2012, para. 39.
51 Opinions No. 21/2011, para. 29; and No. 39/2012, para. 45.
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77.
For those reasons, the Working Group finds that Mr. To and Mr. Thach were deprived
of their liberty on discriminatory grounds, on the basis of their opinion, religion, language
and status as human rights defenders and Indigenous Peoples. Their 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
78.
Noting the source’s unrebutted submissions relating to the severe restrictions to the
visitation rights of Mr. To and Mr. Thach, the Working Group is compelled to remind the
Government to respect their right to contact with the outside world, under rule 58 (1) of the
Nelson Mandela Rules and principles 15 and 19 of the Body of Principles, and uphold their
visitation rights.
79.
The Working Group is also concerned by unrebutted allegations that Mr. Thach is
being treated harshly leading to significant weight loss. The Working Group recalls that,
according to article 10 (1) of the Covenant and rule 1 of the Nelson Mandela Rules, all
persons deprived of their liberty must be treated with humanity and with respect for their
inherent dignity. In addition, rule 22 of the Nelson Mandela Rules stipulates that adequate
food and drinking water be made available to detainees.
80.
The present case is one of a number of cases brought before the Working Group in
recent years concerning the arbitrary deprivation of liberty of persons, particularly human
rights defenders, in Viet Nam.52 Many of those 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 that pattern
indicates a systemic problem with arbitrary detention in Viet Nam which, if it continues, may
amount to a serious violation of international law.53
81.
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 8 November 2024, the Working Group
reiterated its earlier requests to the Government to carry out a country visit and will continue
to seek a positive response.
3.
Disposition
82.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of To Hoang Chuong and Thach Cuong, 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.
83.
The Working Group requests the Government of Viet Nam to take the steps necessary
to remedy the situation of Mr. To and Mr. Thach 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.
84.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. To and Mr. Thach immediately and
accord them an enforceable right to compensation and other reparations, in accordance with
international law.
52 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, No. 22/2023, No. 39/2024 and No. 51/2024.
53 Opinion No. 47/2012, para. 22.
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85.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. To
and Mr. Thach and to take appropriate measures against those responsible for the violation
of their rights.
86.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, the Special Rapporteur on minority issues and the Special
Rapporteur on the rights of Indigenous Peoples and the Special Rapporteur on the situation
of human rights defenders, for appropriate action.
87.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
88.
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. To and Mr. Thach have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. To and
Mr. Thach;
(c)
Whether an investigation has been conducted into the violation of the rights of
Mr. To and Mr. Thach 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.
89.
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.
90.
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.
91.
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.54
[Adopted on 8 April 2025]
54 Human Rights Council resolution 51/8, paras. 6 and 9.