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.25-15330 (E) 211025 211025
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 103rd session, 25–29 August 2025
Opinion No. 44/2025 concerning Nguyen Chi Tuyen (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 18 February 2025, the Working Group
transmitted to the Government of Viet Nam a communication concerning Nguyen Chi Tuyen.
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/2025/44
General Assembly
Distr.: General
22 October 2025
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Nguyen Chi Tuyen is a citizen of Viet Nam, born on 23 May 1974. His usual place of
residence is in Long Bien District, Hanoi, and he is a freelance writer.
5.
Mr. Nguyen is reportedly a well-known civil society activist and blogger. He regularly
uses social media to report on social issues and peacefully advocate for human rights and
freedom of expression. His primary YouTube channel, Anh Chí Râu Đen, focuses on social
and political issues in Viet Nam and has over 97,000 subscribers and 1,600 videos. His
second channel, AC Media, centres on international issues and has over 57,000 subscribers
and 1,100 videos. He is also a founding member of the No-U Football Club, created to protest
activity by China in the South China Sea.
6.
Since 2011, Mr. Nguyen has organized and participated in several protests in Hanoi
against activities by China and marches to support environmental protection in Viet Nam. He
has regularly provided charitable services, including building schools in rural areas and
offering support to victims of natural disasters. He advocated for victims of land
expropriation in Van Giang, Dương Nội and Dong Tam villages and for victims of the
Formosa steel plant environmental disaster. He has also openly criticized the Government’s
reported suppression of pro-democracy activists.
7.
In an open letter in support of an imprisoned democracy activist, Mr. Nguyen
defended the right to criticize the Government. He met with representatives of international
organizations on multiple occasions to discuss human rights in Viet Nam, including with a
European Union human rights delegation in 2017.
8.
Due to his activism, the authorities have placed Mr. Nguyen under surveillance,
harassing and intimidating him through violent attacks, detentions, international travel bans
and interrogations.
9.
In Hanoi in May 2015, five plain-clothed security agents attacked Mr. Nguyen on the
street. He was seriously injured and required stitches to his face. The incident was reported
to the police, but the perpetrators were never found. In May 2017, plain-clothed security
agents again attacked him on the street, rendering him unconscious and causing him serious
injuries. On multiple occasions, officials prevented him from leaving his home during notable
events such as the trials of bloggers or visits by leaders of foreign Governments,
representatives of human rights organizations or prominent activists.
10.
In early 2023, Mr. Nguyen was summoned to the police station and held for several
days for interrogation about live streams that had been broadcast several years earlier on his
YouTube channel Anh Chí Râu Đen. The officials also placed him under an international
travel ban.
11.
In mid-January 2024, the Hanoi police sent Mr. Nguyen a letter noting that, according
to a crime report from the Cyber Security and High-Tech Crime Prevention Division, he was
suspected of “anti-State propaganda” (article 117 of the Criminal Code) and “abusing the
rights to democratic freedom” (article 331 of the Criminal Code) for the live streams.
12.
On 28 February 2024, the police authorities in Hanoi summoned Mr. Nguyen to
appear for an interrogation at the Hanoi Police Security Investigation Agency the following
day. However, he requested that the interrogation be postponed, due to his poor health. On
the morning of 29 February 2024, three surveillance agents stationed themselves outside his
home. His wife told them that he was not healthy enough to be interrogated. The agents stated
that they only wished to speak with him, but after his wife let the three agents inside the
home, plain-clothed police agents rushed inside and read aloud, but did not show, what they
claimed to be a search warrant and an arrest warrant.
13.
The agents then arrested Mr. Nguyen, stating that he would be detained for four
months pending investigation for making, storing and spreading information, materials and
items against the State in violation of article 117 of the Criminal Code. Mr. Nguyen’s wife
requested to see the arrest warrant, but the agents said that they would send it later; it was
never received. After more than two hours of searching the house, the agents confiscated
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Mr. Nguyen’s laptop, mobile phone and various documents. He was then taken to Detention
Centre No. 2 in Thuong Tin District, Hanoi.
14.
After his arrest, Mr. Nguyen’s family immediately contacted lawyers. On 7 March
2024, his lawyers sent a document to the Hanoi Police Security Investigation Agency (No. 89
Tran Hung Dao in the Hoan Kiem District), stating that they were Mr. Nguyen’s legal
representatives. On 8 March 2024, Mr. Nguyen’s wife visited the headquarters of the Security
Investigation Agency to request additional information. The Agency gave her Search
Minutes and Notice No. 412/TB-ANDT-DD, dated 29 February 2024, of the Hanoi Police
Security Investigation Agency, which read: “Arresting the accused for temporary detention”.
On 15 March 2024, the Security Investigation Agency responded to Mr. Nguyen’s lawyers’
letter stating that it would permit his lawyers to participate in legal proceedings and enter the
detention centre once the investigation was complete, without providing a definite date.
15.
On 4 June 2024, the Hanoi Police Security Investigation Agency handed Mr. Nguyen
a document noting that the investigation had concluded but did not inform his lawyers or
allow him to contact his lawyers. The agency then transferred the case to the Hanoi People’s
Procuracy.
16.
On 12 June 2024, the Hanoi People’s Procuracy handed Mr. Nguyen an official
indictment for “propaganda against the State” under article 117 of the Criminal Code. Again,
it did not inform Mr. Nguyen’s lawyers or permit Mr. Nguyen to contact his lawyers. Upon
receiving the indictment, Mr. Nguyen asked the Hanoi People’s Procuracy why he was
denied access to his lawyers. The Hanoi People’s Procuracy answered orally that it was not
responsible for notifying lawyers. Mr. Nguyen then requested the Hanoi People’s Procuracy
to comply with the law regarding access to legal counsel throughout the investigation,
prosecution and trial.
17.
On 1 July 2024, upon the expiration of the four-month detention order, Mr. Nguyen’s
lawyers had still not received documents related to the end of the investigation. Mr. Nguyen’s
wife enquired with the Hanoi Police Security Investigation Agency the same day and learned
that the investigation had been concluded and that the case had been transferred to the Hanoi
People’s Procuracy a month previously.
18.
On 2 July 2024, Mr. Nguyen’s lawyers contacted the Hanoi People’s Procuracy. They
were informed that the Hanoi People’s Procuracy had issued an indictment and transferred
the case to the Hanoi People’s Court. Mr. Nguyen’s lawyers then contacted the Hanoi
People’s Court to register as Mr. Nguyen’s representatives.
19.
On 10 July 2024, Mr. Nguyen’s lawyers received a notice of defence attorney
participation in the Hanoi People’s Court proceedings, dated 8 July 2024. After receiving
such a notice, lawyers can communicate with their clients, access case files, send requests to
the People’s Procuracy and complete other tasks to provide legal assistance.
20.
On 12 July 2024, Mr. Nguyen’s lawyers met with Mr. Nguyen for the first time at
Detention Centre No. 2 in Thuong Tin District, Hanoi. On 24 July 2024, his lawyers received
a notice of the trial date being set for 15 August 2024 (decision dated 22 July 2024), before
the Hanoi People’s Court. Mr. Nguyen’s lawyers met with Mr. Nguyen four times before the
trial.
21.
The Hanoi People’s Procuracy prosecuted Mr. Nguyen for two videos that he had
posted in 2021 on his YouTube channel Anh Chí Râu Đen. The first video was about a
$200 million donation by VietJet Air management to Oxford University. In the second, he
suggested that the creation of multiple political parties could limit alleged corruption.
22.
On 15 August 2024, after a five-hour trial, the Hanoi People’s Court sentenced
Mr. Nguyen to five years in prison with no probation for “propaganda against the State”
under article 117 of the Criminal Code. Only his lawyers and wife were allowed in the
courtroom, and his wife was not allowed to communicate with him.
23.
Mr. Nguyen did not appeal his sentence and has been transferred to Nghe An Prison
No. 6 in Thanh Chuong District, Nghe An Province.
24.
The source argues that Mr. Nguyen’s case falls under categories I, II, III and V.
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25.
The source submits that an arrest is arbitrary under category I when it is clearly
impossible to invoke any legal basis justifying the deprivation of liberty. Domestically,
article 20 (2) of the Constitution prohibits arrest without a legal basis.
26.
Article 9 (2) of the Covenant and principle 10 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment establish that
persons must be informed of the reason for arrest at the time of arrest and must be promptly
informed of the charges against them. The Working Group has determined that an arrest is
arbitrary when 36 hours have passed after arrest before the detainee is informed of the details
of the charges.2 Article 9 (1) of the Covenant and principle 2 of the Body of Principles require
detention to be carried out only in accordance with the law. Principle 4 of the Body of
Principles requires detention to be ordered by or subject to the effective control of a judicial
or other authority.
27.
The Working Group has addressed the practice of police inviting individuals to the
station for questioning but then changing their status to suspect once in custody. These
“arrests are often not a consequence of a preceding police investigation, rather people are
detained in order to be investigated. This affects not only the rights to personal freedom, free
trial and presumption of innocence, but also the right to the security of person”.3
28.
The source submits that security officials did not present Mr. Nguyen with an arrest
warrant at the time of his arrest on 29 February 2024 or thereafter. Further, during his arrest,
officials stated that Mr. Nguyen would be detained for four months pending further
investigation, revealing that he was detained to be investigated rather than because of a
preceding police investigation. He was not informed of the specific charges against him until
4 June 2024 – after the internal investigation was complete and he had been detained for over
three months.
29.
Further, the source recalls that article 9 (3) of the Covenant provides that anyone
arrested or detained on a criminal charge must be brought promptly before a judge and is
entitled to trial or release within a reasonable time. While the exact meaning of “promptly”
may vary depending on objective circumstances, delays should not exceed a few days from
the time of arrest, and any delay longer than 48 hours must remain absolutely exceptional
and justified under the circumstances.4
30.
Article 8 of the Universal Declaration of Human Rights, articles 2 (3) and 9 (3) and
(4) of the Covenant and principles 11 (1), 32 (1), 37 and 39 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment establish a general
rule against pretrial detention. Principle 39 of the Body of Principles provides that an
individual detained on a criminal charge is entitled to release pending trial unless a judicial
or other authority decides otherwise in the interest of the administration of justice. The court
must conduct an individualized determination to justify pretrial detention, including the
consideration of less restrictive means. 5 Pretrial detention must also be reasonable and
necessary based on factors such as potential flight risk, potential evidence tampering or
recurrence of the crime, but it cannot be based on “vague and expansive standards such as
‘public security’”.6 Detainees are also entitled to periodic re-examination of their pretrial
detention by a court or other authority to determine whether detention is reasonable.7
31.
According to the source, between his arrest on 29 February 2024 and his trial on
15 August 2024, Mr. Nguyen was not brought before any judicial body. This delay of over
five months far exceeds the 48-hour standard. Before his trial, no judicial official examined
his pretrial detention, and he was not permitted to challenge it. Therefore, he also never
received a thorough individualized determination to justify his pretrial detention or to
consider less restrictive means.
2 Opinion No. 30/2017, paras. 58 and 59.
3 A/HRC/16/47/Add.3, para. 60.
4 Human Rights Committee, general comment No. 35 (2014), para. 33.
5 Ibid, para. 38; opinion No. 42/2017, paras. 30 and 40.
6 Opinion No. 56/2017, para. 67.
7 Human Rights Committee, general comment No. 35 (2014), para. 38.
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32.
The source submits that there is no valid legal basis for incommunicado detention. It
is inherently arbitrary, as it places victims outside the protection of the law and deprives them
of legal safeguards.8 Article 6 of the Universal Declaration of Human Rights and article 16
of the Covenant guarantee every individual the right to recognition everywhere before the
law. Principle 15 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment limits the denial of a detainee’s communication with the
outside world to “a matter of days,” and the Working Group has found that incommunicado
detention beyond 15 days is arbitrary.9 Principle 19 of the Body of Principles protects a
detainee’s right to be visited by and to correspond with family members and guarantees a
detainee the adequate opportunity to communicate with the outside world, subject to
reasonable conditions and restrictions.
33.
The source submits that Mr. Nguyen was subjected to incommunicado detention from
29 February to 12 July 2024. Despite repeated requests from his lawyers and family, officials
reportedly denied him all communication with his lawyers for over four months and still
prohibit communication with his family.
34.
Moreover, it is noted that the principle of legality under article 11 (2) of the Universal
Declaration of Human Rights and article 15 (1) of the Covenant requires that laws are
formulated with enough precision that an individuals can assess and understand the law and
regulate their conduct accordingly.10 The grounds for arrest and detention must be prescribed
by law and the law should be defined with sufficient precision to avoid overly broad or
arbitrary interpretation or application.11
35.
According to the source, Mr. Nguyen was arrested and convicted for violating
article 117 of the Criminal Code, “Making, storing, spreading information, materials, items
for the purpose of opposing the State of Socialist Republic of Vietnam”, which reads as
follows:
1.
Any person, for the purpose of opposing the State of Socialist Republic of
Vietnam, commits any of the following acts shall face a penalty of 05–12 years’
imprisonment:
a)
Making, storing, spreading information, materials, items that contain
distorted information about the people’s government;
b)
Making, storing, spreading information, materials, items that contain
fabricated information to cause dismay among the people;
c)
Making, storing, spreading information, materials, items to cause
psychological warfare.
2.
An extremely serious case of this offence shall carry a penalty of
10–20 years’ imprisonment.
3.
Any person who makes preparation for the commitment of this criminal
offence shall face a penalty of 01–05 years’ imprisonment.12
36.
Without a precise definition for “purpose of opposing the State”, “dismay among the
people”, or “psychological warfare”, any criticism against the Government can be
criminalized, unjustly restricting the right to freedom of expression.
37.
The source submits that, since 2018, at least 60 bloggers and activists have been
convicted under article 117 and sentenced to between 4 and 15 years in prison. The Human
Rights Committee has noted that the domestic legal framework of Viet Nam, including
8 Opinion No. 86/2020, para. 63.
9 Decision No. 50/1993, para. 5 (e).
10 Opinions No. 41/2017, paras. 98–101; and No. 37/2020, para. 60.
11 Human Rights Committee, general comment No. 35 (2014), para. 22.
12 Viet Nam, Criminal Code, Act No. 100/2015/QH13 of 27 November 2015. Available at
https://www.wipo.int/wipolex/en/legislation/details/17225.
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article 117, remains incompatible with the Covenant and imposes overly broad restrictions
on the rights spelled out in the Covenant, including on the basis of national security.13
38.
The source recalls that deprivation of liberty is arbitrary under category II when it
results from a violation of the exercise of fundamental rights and freedoms. These include
the right to freedom of opinion and expression under article 19 of the Universal Declaration
of Human Rights and article 19 (1) and (2) of the Covenant. Domestically, article 25 of the
Constitution protects the right to freedom of opinion and expression.
39.
Freedom of expression includes the right to criticize and publicly evaluate the
Government without fear of interference or punishment. 14 This right enables political
opposition groups and human rights activists to protest, criticize and expose illegal
government practices.15
40.
Restrictions under article 19 (3) of the Covenant must not be used to stifle the
expression of political opposition, challenges to authority, calls for democratic changes or
human rights advocacy.16
41.
Since 2016, at least 269 individuals have been arrested in Viet Nam for peacefully
exercising their civil and political rights. The source notes that in his two YouTube videos
central to the case, Mr. Nguyen condemned corruption and advocated democratic reforms
and the protection of fundamental freedoms. On the basis of those videos, he was arrested
and sentenced to five years in prison for “propaganda against the State”.
42.
The source submits that Mr. Nguyen’s detention resulted from the exercise of the right
to freedom of opinion and expression under article 19 of the Universal Declaration of Human
Rights and article 19 (1) of the Covenant.
43.
The source also submits that the authorities violated international human rights law
relating to the right to a fair trial, such that Mr. Nguyen’s deprivation of liberty is arbitrary
under category III.
44.
The source notes that article 14 (3) (b) of the Covenant guarantees all persons charged
with a criminal offence, in the determination of a criminal charge against them, adequate time
and facilities for the preparation of their defence and the right to communicate with a counsel
of their choosing. Principles 15, 17, and 18 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment guarantee a detained person the right
to legal assistance and communication with a lawyer. In this context, Mr. Nguyen’s lawyers
were not permitted to see or communicate with him until 12 July 2024 – over four months
into his detention.
45.
Further, it is recalled that a critical component of a fair trial is that it be public, as
enshrined in article 10 of the Universal Declaration of Human Rights, article 14 (1) of the
Covenant and principle 36 (1) of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment. The source states in this regard that Mr.
Nguyen’s trial before the Hanoi People’s Court on 15 August 2024 was open only to his
lawyers and his wife, without any reasons being provided.
46.
The source recalls that the Working Group has determined that the Procuracy of
Vietnam is not an independent judicial authority because it is under the political influence of
the executive branch and nearly all the judges are members of the Vietnamese Communist
Party and are approved by the Party before they assume their positions.17
47.
In relation to category V, the source recalls that the Working Group has found that
deprivation of liberty resulting from discrimination based on political opinion or the status
of a human rights defender can independently constitute arbitrary detention. Moreover,
13 CCPR/C/VNM/CO/3, paras. 5 and 45 (a).
14 Opinion No. 24/2019, para. 40.
15 Opinion No. 22/2013, para. 11.
16 Human Rights Committee, general comment No. 34 (2011), para. 23; and general comment No. 37
(2020), para. 49.
17 Opinion No. 22/2023, para. 21.
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article 16 of the Constitution of Viet Nam guarantees equality before the law and prohibition
of discrimination based on political, civic, economic, cultural or social life.
48.
The source submits that Mr. Nguyen was detained solely based on his political opinion
and human rights advocacy.
(b)
Response from the Government
49.
On 18 February 2025, the Working Group transmitted allegations made by the source
to the Government through its regular communication procedure. The Working Group
requested the Government to provide, by 21 April 2025, detailed information about the
current situation of Mr. Nguyen and any comments on the source’s allegations. The Working
Group also requested the Government to clarify the factual and legal grounds invoked by the
authorities to justify his arrest and continued detention, and to provide details regarding the
conformity of the relevant legal provisions and proceedings with international law, in
particular with the human rights treaties that it has ratified.
50.
The Working Group regrets that it did not receive a response from the Government,
nor did the Government request an extension of the time limit for its reply, as provided for
in paragraph 16 of the Working Group’s methods of work.
2.
Discussion
51.
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.
52.
In determining whether Mr. Nguyen’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 for breach of international requirements constituting
arbitrary detention, the burden of proof should be understood to rest upon the Government if
it wishes to refute the allegations.18 In the present case, the Government has chosen not to
challenge the prima facie credible allegations made by the source.
(a)
Category I
53.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without any legal basis being invoked.
54.
The source submits, and the Government does not contest, that Mr. Nguyen was not
properly presented with a warrant at the time of arrest on 29 February 2024. The police agents
who arrested Mr. Nguyen at his home read aloud but did not show what they purported to be
a search warrant and an arrest warrant. When Mr. Nguyen’s wife insisted seeing the arrest
warrant, the police agents said they would send it later, but it was never received by her.
55.
The Working Group has previously stated that, for a 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, which is typically
done through an arrest warrant or arrest order (or an equivalent document).19
56.
Unless the arrest was made in flagrante delicto during the commission of a crime or
immediately thereafter or in hot pursuit shortly after a crime has been committed, warrantless
arrests must remain the exception, not the rule. To justify an exception to this rule, there must
be reasonable grounds for suspecting, if not significant suspicion, that an offence has been
committed by the arrested person, as well as grounds for detention such as the risk of flight,
18 A/HRC/19/57, para. 68.
19 Opinions No. 27/2023, para. 77; No. 66/2023, para. 44; No. 77/2023, para. 53; No. 37/2024, para. 83;
No. 62/2024, para. 69; and No. 24/2025, para. 84. The Working Group has maintained from its early
years that the practice of arresting persons without a warrant renders their detention arbitrary (see
decisions No. 1/1993, paras. 6 and 7; No. 3/1993, paras. 6 and 7; No. 4/1993, para. 6; No. 5/1993,
paras. 6, 8 and 9; No. 27/1993, para. 6; No. 30/1993, paras. 14 and 17 (a); No. 36/1993, para. 8;
No. 43/1993, para. 6; and No. 44/1993, paras. 6 and 7. For more recent jurisprudence, see opinions
No. 6/2020, para. 40; No. 11/2020, para. 38; No. 13/2020, para. 47; No. 14/2020, para. 50;
No. 31/2020, para. 41; No. 32/2020, para. 33; No. 33/2020, para. 54; and No. 34/2020, para. 46).
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destruction of evidence, recurrence of crime and harm to victims and witnesses. The Working
Group has been presented with no reason to believe that probable cause has been established
and with no urgent grounds for detaining Mr. Nguyen that a reasonable person would
consider sufficient justification for arrest without warrant. The search of Mr. Nguyen’s house
on 29 February 2024, which took place at the same time as his arrest without the proper
presentation of the search warrant, was also inconsistent with article 12 of the Universal
Declaration of Human Rights and article 17 of the Covenant.
57.
Mr. Nguyen was first brought before a judge at his five-hour trial on 15 August 2024,
which was about five and a half months after his initial arrest on 29 February 2024. The
Working Group therefore finds that Mr. Nguyen was not brought promptly before a judge,
namely within 48 hours of his arrest, in accordance with the international standard,20 or
afforded the right to take proceedings before a court so that it may decide without delay on
the lawfulness of his detention, in accordance with articles 3 and 9 of the Universal
Declaration of Human Rights, article 9 (1), (3) and (4) of the Covenant and principles 11, 32
and 37 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. The denial of judicial review also violated the right to
an effective remedy under article 8 of the Universal Declaration of Human Rights and
article 2 (3) of the Covenant. In addition, the right to challenge the lawfulness of detention
before a court is a self-standing human right, the absence of which constitutes a human rights
violation. That judicial remedy is essential to preserve legality in a democratic society and is
in fact a peremptory norm of international law that applies to all forms and situations of
deprivation of liberty.21
58.
Mr. Nguyen was held in prolonged pretrial detention for about five and a half months
from his initial arrest on 29 February 2024. Article 9 (3) of the Covenant requires that pretrial
detention be the exception rather than the rule and that release may be subject to guarantees
to appear for trial, at any other stage of the judicial proceedings and for execution of the
judgment. A detainee must be entitled to meaningful periodic judicial review. Pretrial
detention without an individualized determination of the risk of flight, interference with
evidence or the recurrence of crime, as well as consideration of less intrusive alternatives,
such as bail, electronic bracelets or other conditions in accordance with the principle of
reasonableness, necessity and proportionality, is devoid of legal basis.22 In the present case,
absent a response from the Government, the Working Group concludes that there was no
periodic judicial review or individualized determination of Mr. Nguyen’s circumstances and,
as a result, his detention lacked a legal basis and was ordered in violation of articles 3 and 9
of the Universal Declaration of Human Rights, article 9 (1) and (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.
59.
Moreover, the source submits that Mr. Nguyen was held incommunicado for a
prolonged period. The Working Group recalls that holding persons incommunicado prevents
prompt presentation before a judge, as provided for in article 9 (3) of the Covenant, and
violates the right under article 9 (4) of the Covenant to challenge the lawfulness of the
detention before a court. Judicial oversight of detention is a fundamental safeguard of
personal liberty and is essential in ensuring that detention has a legal basis.23 Given that
Mr. Nguyen 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
20 Opinions No. 57/2016, paras. 110 and 111; No. 2/2018, para. 49; No. 83/2018, para. 47; No. 11/2019,
para. 63; No. 30/2019, para. 30; No. 22/2023, para. 50; No. 39/2024, para. 45; and No. 51/2024,
para. 93. See also Human Rights Committee, general comment No. 35 (2014), para. 33;
CCPR/C/79/Add.89, para. 17; CCPR/C/SLV/CO/6, para. 14; and CCPR/CO/70/GAB, para. 13.
21 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, paras. 2, 3 and 11.
22 Opinions No. 24/2015, para. 37; No. 61/2018, para. 50; and No. 72/2019, para. 47. See also Human
Rights Committee, general comment No. 35 (2014), para. 38; and A/HRC/19/57, paras. 48–58.
23 A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.
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9
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.
60.
The Working Group will elaborate upon the propriety of detention under article 117
of the Criminal Code in view of the principle of legality. One of the fundamental guarantees
of due process is the principle of legality, including: (a) the principle of non-retroactivity;
(b) the prohibition against analogy; (c) the principle of certainty; and (d) the prohibition
against uncodified, that is, unwritten, or judge-made criminal provisions. This means that an
act can be punished only if, at the time of its commission, the act was the object of a valid,
sufficiently precise, written criminal law to which a sufficiently certain sanction was
attached.24
61.
The principle of legality requires that laws be formulated with sufficient precision so
that individuals can access and understand the law, and regulate their conduct accordingly.
Vague and ill-defined terms and concepts such as “for the purpose of opposing the State”,
“distorted information about the people’s government”, “cause dismay among the people”
and “cause psychological warfare” do not meet this standard. The Working Group reiterates
its previous finding that article 117 of the Criminal Code does not meet this standard.25 It is
thus incompatible with article 11 (2) of the Universal Declaration of Human Rights and
article 15 (1) of the Covenant; such a vague provision cannot be invoked as a legal basis for
any detention.
62.
In the light of the above, the Working Group concludes that Mr. Nguyen’s deprivation
of liberty lacks a legal basis and is thus arbitrary under category I.
(b)
Category II
63.
The Working Group will now examine whether Mr. Nguyen’s detention is arbitrary
under category II, in relation to which the source submits that his 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.
64.
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 allowed for no distinction between violent acts capable of threatening
national security and the peaceful exercise of rights.26
65.
In May 2017, the United Nations country team in Viet Nam recommended the repeal
or revision of numerous articles of the 2015 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 those 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.27
66.
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. The same Committee
has found that the vague and broadly formulated offences in various articles of the Criminal
24 Opinion No. 10/2018, para. 50; and No. 36/2019, para. 40.
25 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;
No. 86/2022, para. 35; and No. 51/2024, para. 97.
26 E/CN.4/1995/31/Add.4, paras. 58–60.
27 See https://vietnam.un.org/en/14681-un-recommendations-2015-penal-code-and-criminal-procedural-
code-viet-nam.
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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.28
67.
Article 19 (1) and (2) of the Covenant protects the holding and expression of opinions,
including those that are not in line with government policy.29 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 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 be subject to restrictions.30 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.31
68.
The permitted restrictions on this right may relate either to respect for the rights or
reputations of others or to the protection of national security, public order (ordre public) or
public health or morals. As the Human Rights Committee has stipulated, restrictions are not
allowed on grounds not specified in article 19 (3) of the Covenant, even if such grounds
would justify restrictions to other rights protected in the Covenant. Restrictions must be
applied only for those purposes for which they were prescribed and must be directly related
to the specific need on which they are predicated.32 There is nothing to suggest that the
permissible restrictions set out in article 19 (3) of the Covenant apply in the present case. The
Government did not provide any argument to invoke any of these limitations, nor has it
demonstrated why bringing charges against Mr. Nguyen was a legitimate, necessary and
proportionate response to his activities. As such, the Working Group is not convinced that
prosecuting Mr. Nguyen was necessary to protect a legitimate interest under this article of
the Covenant, nor that Mr. Nguyen’s arrest and detention are a necessary or proportionate
response to his activities.33 Importantly, there is no indication that his peaceful online activity
was intended to incite violent behaviour.
69.
For these reasons, the Working Group concludes that Mr. Nguyen’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 with no legitimate
aim or objective in a democratic society that may justify interference with his rights and
freedoms. The Working Group adds that the actions for which Mr. Nguyen was deprived of
his liberty also constituted the exercise of his right to freedom of thought and his right to take
part in the conduct of public affairs under articles 18 and 21 (1) of the Universal Declaration
of Human Rights and articles 18 and 25 (a) of the Covenant, pursuant to which citizens have
the right to exert influence through public debate and dialogue with their representatives or
through their capacity to organize themselves.34
70.
The Working Group thus finds that his arrest and detention are arbitrary and fall within
category II.
(c)
Category III
71.
Given its finding that the deprivation of liberty of Mr. Nguyen is arbitrary under
category II, the Working Group wishes to emphasize that no trial should have taken place.
28 CCPR/C/VNM/CO/3, paras. 45 and 46.
29 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.
30 A/HRC/14/23, para. 81 (i).
31 Human Rights Council resolution 12/16, para. 5 (p).
32 General comment No. 34 (2011), para. 22.
33 See the Working Group’s application of the four-pronged test with regard to the application of the
principle of necessity and proportionality in opinions No. 54/2015, para. 89. See also opinion
No. 82/2018, paras. 35–40.
34 Human Rights Committee, general comment No. 25 (1996), para. 8.
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11
However, Mr. Nguyen has been tried, convicted and imprisoned. 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. Nguyen’s deprivation of liberty an arbitrary
character, such that it falls within category III.
72.
After Mr. Nguyen’s arrest on 29 February 2024, his family immediately contacted
lawyers, who on 7 March 2024 informed the Hanoi Police Security Investigation Agency that
they were Mr. Nguyen’s legal representatives. However, the Hanoi Police Security
Investigation Agency and the Hanoi People’s Procuracy gave the notice of the conclusion of
the investigation and the official indictment to Mr. Nguyen, who was being held
incommunicado, and refused to hand them to his lawyers even though they had made the
request. His lawyers had to contact the Hanoi Police Security Investigation Agency, the
People’s Procuracy and then the Hanoi People’s Court before they could be registered as
Mr. Nguyen’s legal representatives. Prior to his five-hour trial on 15 August 2024,
Mr. Nguyen was allowed to meet with his legal counsel only four times; the first time was
on 12 July 2024, which was almost four and a half months after his arrest.
73.
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 Working Group finds that the extremely limited access to legal
assistance granted to Mr. Nguyen violated his right to equality of arms and to a fair hearing
by an independent and impartial tribunal and his right to defend himself through legal counsel
of his own choosing under articles 10 and 11 (1) of the Universal Declaration of Human
Rights and article 14 (1) and (3) (d) 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.35
74.
Furthermore, following Mr. Nguyen’s arrest on 29 February 2024, his family was
prohibited from communicating with him even after the end of his five-hour trial on
15 August 2024. 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. 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. 36 Accordingly, the Working Group finds that
Mr. Nguyen’s right 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) 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.
The Working Group notes the source’s submission that Mr. Nguyen was transferred between
detention facilities without his family members being notified and that this lack of
information constituted a further impediment to his right to communicate with them.
75.
Moreover, Mr. Nguyen was not afforded minimum guarantees necessary for his
defence, including the right to be informed promptly and in detail the nature and cause of the
charge against him, to have adequate time and facilities for the preparation of his defence and
to communicate with counsel of his own choosing and to be tried without undue delay, in
violation of article 11 (1) of the Universal Declaration of Human Rights and article 14 (3)
(a)–(c) of the Covenant. The Government provided no explanation for the five and a half
months it took from his initial arrest to his trial, during which time he was held in pretrial
detention without judicial review or a bail hearing. Such unexplained delay also violated
principle 38 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment.
76.
The source submits that Mr. Nguyen was convicted on the same day on which he was
first brought before a judge after a five-hour trial. It is unlikely that the court had sufficient
35 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, No. 16/2023, No. 39/2024, para. 59; and
No. 51/2024, para. 108. See also CAT/C/VNM/CO/1, paras. 16 and 17.
36 Opinion No. 84/2020, para. 70. See also Human Rights Committee, general comment No. 35 (2014),
para. 58.
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time to assess evidence and information to decide the case in a fair and impartial manner. He
was sentenced to five years in prison with no probation under article 117 of the Criminal
Code. 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.37 In the absence of an explanation from the Government, the Working Group finds that
these factors undermined Mr. Nguyen’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.
77.
The source also submits that Mr. Nguyen’s trial on 15 August 2024 was closed to the
public. The press and the public may be excluded from a trial only for exceptional
circumstances outlined in article 14 (1) of the Covenant, namely, for reasons of morals, public
order (ordre public) or national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the interests of justice.38 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. Nguyen 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.
78.
Given the above observations, the Working Group concludes that the numerous
violations of the right to a fair trial and due process are of such gravity as to give
Mr. Nguyen’s deprivation of liberty an arbitrary character that falls within category III.
(d)
Category V
79.
The Working Group recalls several non-cumulative indicators that serve to establish
the discriminatory nature of detention. These include the following: (a) the deprivation of
liberty was part of a pattern of persecution against the detained person, including, for
example, through previous detention; (b) other persons with similarly distinguishing
characteristics have also been persecuted; and (c) the context suggests that the authorities
have detained a person on discriminatory grounds or to prevent the person from exercising
his or her human rights.39
80.
With regard to these non-cumulative indicators, the Working Group notes a pattern of
intimidation against Mr. Nguyen in relation to his activities as an advocate for human rights.
The source submits that, in the past, Mr. Nguyen was placed under surveillance, beaten by
security agents in the streets of Hanoi in May 2015 and in May 2017, causing serious injuries
that required stitches to his face, without the perpetrators being caught, placed under house
arrest in politically sensitive times, detained for interrogation by the police for several days
in early 2023 for his live-streamed broadcast and placed under an international travel ban. In
mid-January 2024, the Cyber Security and High-Tech Crime Prevention Division of the
Hanoi Police Department sent him a notice that he was suspected of “anti-State propaganda”
and “abusing the rights to democratic freedom” under articles 117 and 331 of the Criminal
Code in relation to his live streams.
81.
Moreover, in the discussion above concerning category II, the Working Group has
established that Mr. Nguyen’s detention resulted from the peaceful exercise of his human
rights under international law. When detention results from the active exercise of civil and
political rights, there is a strong presumption that the detention also constitutes a violation of
international law on the ground of discrimination based on political or other views.40
82.
For these reasons, the Working Group finds that Mr. Nguyen 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
37 Opinions No. 75/2017, para. 53; No. 36/2018, para. 55; No. 82/2021, para. 80; No. 16/2023, para. 86;
No. 39/2024, para. 62; and 51/2024, para. 109.
38 Human Rights Committee, general comment No. 32 (2007), para. 29.
39 A/HRC/36/37, para. 48.
40 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; No. 59/2019, para. 79; No. 39/2024, para. 69;
and No. 51/2024, para. 117.
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Declaration of Human Rights and articles 2 (1) and 26 of the Covenant and was arbitrary
under category V.
(e)
Concluding remarks
83.
In its 34-year history, the Working Group has found Viet Nam to be in violation of its
international human rights obligations in numerous cases.41 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 was 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.42
84.
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, which was 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 undertake a country visit and will continue to seek a positive response.
3.
Disposition
85.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Nguyen Chi Tuyen, being in contravention of articles 2,
3, 6, 7, 9, 10, 11 (1) and (2), 12, 18, 19 and 21 (1) of the Universal Declaration of
Human Rights and articles 2 (1) and (3), 9 (1), (3) and (4), 14 (1), (2) and (3) (a), (b),
(c) and (d), 15 (1), 16, 17, 18 (1), 19 (1) and (2), 25 (a) and 26 of the International
Covenant on Civil and Political Rights, is arbitrary and falls within categories I, II, III
and V.
86.
The Working Group requests the Government of Viet Nam to take the steps necessary
to remedy the situation of Mr. Nguyen 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.
87.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Nguyen immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
41 Decisions No. 14/1993, No. 15/1993, No. 46/1993 and No. 7/1994; and opinions No. 21/1997,
No. 7/1998, No. 27/1998, No. 13/1999, No. 4/2001, No. 11/2001, No. 1/2003, No. 20/2003,
No. 19/2004, No. 18/2005, No. 13/2007, No. 1/2009, No. 6/2010, No. 24/2011, No. 46/2011,
No. 27/2012, No. 42/2012, No. 26/2013, No. 33/2013, No. 45/2015, No. 46/2015, No. 40/2016,
No. 26/2017, No. 27/2017, No. 75/2017, No. 79/2017, No. 35/2018, No. 36/2018, No. 45/2018,
No. 46/2018, No. 8/2019, No. 9/2019, No. 44/2019, No. 45/2019, No. 15/2020, No. 16/2020,
No. 36/2020, No. 42/2020, No. 81/2020, No. 11/2021, No. 36/2021, No. 40/2021, No. 13/2022,
No. 35/2022, No. 40/2022, No. 43/2022, No. 86/2022, No. 16/2023, No. 22/2023, No. 39/2024,
No. 51/2024 and No. 30/2025.
42 Opinions No. 9/2019, para. 54; No. 44/2019, para. 81; No. 45/2019, para. 84; No. 15/2020, para. 86;
No. 16/2020, para. 84; No. 36/2020, para. 80; No. 42/2020, para. 99; No. 81/2020, para. 91;
No. 11/2021, para. 90; No. 36/2021, para. 97; No. 40/2021, para. 93; No. 40/2022, para. 97;
No. 43/2022, para. 116; No. 86/2022, para. 58; No. 16/2023, para. 96; No. 22/2023, para. 80;
No. 39/2024, para. 72; and No. 51/2024, para. 120. The Working Group recalls that, under certain
circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in
violation of fundamental rules of international law may constitute crimes against humanity (opinions
No. 2/2024, para. 80; No. 4/2024, para. 76; No. 6/2024, para. 67; No. 8/2024, para. 58; No. 10/2024,
para. 127; No. 16/2024, para. 139; No. 20/2024, para. 75; No. 26/2024, para. 129; No. 31/2024,
para. 114; No. 38/2024, para. 114; No. 40/2024, para. 169; No. 53/2024, para. 104, No. 59/2024,
para. 117; and No. 71/2024, para. 144).
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88.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Nguyen and to take appropriate measures against those responsible for the violation of
his rights.
89.
The Working Group requests the Government to translate, publish and disseminate
the present opinion through all available means and as widely as possible.
4.
Follow-up procedure
90.
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. Nguyen has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Nguyen;
(c)
Whether an investigation has been conducted into the violation of
Mr. Nguyen’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.
91.
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.
92.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
93.
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.43
[Adopted on 26 August 2025]
43 Human Rights Council resolution 51/8, paras. 6 and 9.