VIET NAM: ARBITRARY DETENTION OF NGUYỄN LÂN THẮNG

The International League Against Arbitrary Detention urges the Government of Viet Nam to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 51/2024 concerning Nguyễn Lân Thắng, asking the Government to immediately and unconditionally release him and to accord him an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Nguyễn Lân Thắng : Opinion No. 51/2024.

ARREST OF AN INDEPENDENT JOURNALIST AND PRO-DEMOCRACY ADVOCATE

Nguyễn Lân Thắng is a citizen of Viet Nam, born in 1975, who was residing in Hanoi. He started protesting against China in the early 2000s and later worked as an independent journalist, supporting freedom and reporting human rights violations over the television, radio, online platforms and during protests.

Mr. Nguyễn was first detained and questioned after a trip to meet UN officials at the Nội Bài International Airport in Hanoi in October 2013. In April 2014, the authorities did not allow him to leave the country to attend events in the United States of America. He was brutally arrested on 5 July 2022 by members of the investigation bureau of the Hanoi Police for having posted “anti-state” videos on Facebook and YouTube, given interviews but also for having stored books that allegedly defamed the Communist Party of Viet Nam. Following his arrest, his home and relatives’ house were searched and some properties were seized in his home. Mr. Nguyễn saw his family right after his arrest but was then held incommunicado for seven months. On January 17, 2023, his indictment was announced; Mr. Nguyễn saw his lawyer a month later and a copy of it on March 30, 2023, after being refused a pen and paper to file a complaint. The closed trial, despite Mr. Nguyễn’s request to have an open one, started on April 12, 2023, 13 days after it was announced to Mr. Nguyễn and his lawyer.

Mr. Nguyễn was convicted on the same day under article 117 of the 2015 Criminal Code and sentenced to six years in prison and two years of probation. He was imprisoned in the police station until his family discovered on 15 June 2023 that he was transferred to Thanh Hóa Prison No. 5 in block K1 sharing his cell with two inmates with mental illnesses. His living condition and his ability to get in contact with his family are of concern.

The Working Group transmitted the allegations to the Government of Viet Nam, which chose not to respond.

SUBJECT TO INCOMMUNICADO PRE-TRIAL DETENTION WITHOUT AN INDIVIDUALIZED DETERMINATION

According to the source, Mr. Nguyễn was brought before a judge nine months after being arrested, in violation of the right to be brought promptly before a judicial body protected under article 9 of the Universal Declaration of Human Rights and article 9 (3) of the Covenant.

The Working Group recalled the jurisprudence of the Human Rights Committee about the exceptional status of pre-trial detention and that it must be based on an individualized determination. The government did not respond to the Working Group and therefore failed to justify Mr. Nguyễn’s pre-trial detention. As a result, his pre-trial detention lacked an individualized determination in violation of article 9 (3) of the Covenant.

Moreover, the source declared that Mr. Nguyễn was held incommunicado for seven months with no contact with his lawyer. He was also transferred between facilities without any notification to the family. The Working Group recalled the observation of the Human Rights Committee on the matter; prompt and regular access to family members is essential to protect detainee against torture, arbitrary detention and infringement of personal security. Due to the absence of justification from the government, the Working Group found that Mr. Nguyễn was placed outside the protection of the law, contrary to his right to be in contact with the outside world and in violation of article 8 of the Universal Declaration of Human Rights and article 2 (3) and 16 of the Covenant.

Finally, the Working Group recalled its jurisprudence regarding the Vietnamese Criminal Code, in particular article 117, which it considered vague and overly broad. Hence, the Working Group found a violation of article 11 (2) of the Universal Declaration of Human Rights and article 15 (1) of the Covenant as the principle of legality requires that laws be formulated with sufficient precision.

Noting all the above, the Working Group concluded that Mr. Nguyễn’s detention was arbitrary within the meaning of category I.

DETAINED FOR EXERCISING HIS RIGHT TO FREEDOM OF OPINION AND EXPRESSION

According to the source, Mr. Nguyễn was detained for his exercise of his right to freedom of expression and opinion as protected by articles 19 and 21 of the Covenant due to his public criticism of the government and his journalist status.

The Working Group, by highlighting its own jurisprudence and the Human Rights Committee’s, found that article 117 of the Criminal Code is inconsistent with the right to freedom of opinion and expression as it is vague and broad, and it made no difference between the use of violent and legitimate peaceful means.

Furthermore, the right to freedom of expression and opinion of journalists includes the right to criticize or openly and publicly evaluate their government without fear of interference or punishment as recognized by the Human Rights Committee. The Special Rapporteur pointed out that the promotion and protection of the right to freedom of opinion and expression should never be restricted. Permissible restrictions exist under the protection of rights of others or for the protection of national security. The Working Group affirmed that, in this case, there was nothing that suggested the application of any permissible restriction of this right, violating articles 19 of the Universal Declaration of Human Rights and 19 of the Covenant.

The Working Group concluded that Mr. Nguyễn’s detention was arbitrary within the meaning of Category II.

NO TRIAL BEFORE COMPETENT AND IMPARTIAL TRIBUNAL AND NO EFFECTIVE ACCESS TO LEGAL ASSISTANCE

The sources submitted that Mr. Nguyễn was not allowed to communicate with a lawyer for seven months as he was held incommunicado and afterwards, was allowed to see him only five times and under supervision before his trial. Mr. Nguyễn was refused access to legal document to prepare his defense and his trial was announced 13 days before its start.For these reasons, the Working Group considered that the extremely limited access to legal assistance amounted to a violation of his rights to equality of arms, to adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing and to a fair hearing by an independent and impartial tribunal, all protected under articles 14 (1) and 14 (3) (a) and (b) of the Covenant.

In addition, it was described that Mr. Nguyễn was convicted the day of his closed trial to a six-year sentence. His spouse was not notified of the date of the hearing. Such a short trial for a heavy sentence was considered by the Working Group as contrary to the presumption of innocence, as his guilt seemed to be determined prior to the trial. Furthermore, it recalled that a closed trial should be an exceptional measure. The lack of justification provided by the Government led the Working Group to find a violation of Mr. Nguyễn’s right to the presumption of innocence and right to a fair and public hearing, as guaranteed in articles 14 (1) and (2) of the Covenant and articles 10 and 11 (1) of the Universal Declaration of Human Rights.

Therefore, considering all the above, the Working Group found that the violation of the right to a fair trial and due process of Mr. Nguyễn had been of such gravity as to render his deprivation of liberty arbitrary under category III.

DISCRIMINATORY DETENTION BASED ON POLITICAL OPINIONS

According to the source, Mr. Nguyễn’s political opinions were at the center of his detention. The Working Group noted that Mr. Nguyễn was often victim of acts of intimidation to silence him, including police interrogations and prohibition to attend events abroad. For those reasons, the Working Group considered that Mr. Nguyễn’s deprivation of liberty was conducted on discriminatory grounds because of his political opinions and activism and constituted a violation of articles 2 and 7 of the Universal Declaration Human Rights and 2 (1) and 26 the Covenant.

Hence, the Working Group found Mr. Nguyễn’s deprivation of liberty to be arbitrary under category V.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Nguyễn Lân Thắng was arbitrary and fell under categories I, II, III and V because his deprivation of liberty was in contravention of articles  2, 7, 9, 10, 11 and 19 of the Universal Declaration of Hulan Rights and articles 2, 9, 14, 15, 16, 19 and 26 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the Government of Viet Nam take the necessary steps to remedy the situation of Nguyễn Lân Thắng without delay and bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.

The Working Group also urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Nguyễn Lân Thắng and to take appropriate measures. Lastly, it requested the Government to bring its laws into conformity with the recommendations of the opinion.