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A/HRC/WGAD/2025/44

Opinion No. 44/2025 concerning Nguyen Chi Tuyen (Viet Nam)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2025-08-29 · en UN

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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GE.25-15330

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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13

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.