Ba Sam trial to go ahead despite “serious violations”

Blogger Nguyen Huu Vinh and his website AnhBaSam

Vietnam Right Now, Nov 19, 2015

The influential blogger, Nguyen Huu Vinh, who became famous using the pen name “Ba Sam”, is expected to stand trial before the end of the year – more than nineteen months after he was arrested on charges of challenging the Communist Party and abusing “democratic freedoms”.

One of his lawyers says the case against Vinh, who has been in detention since his arrest, amounts to a grave violation of due process that goes beyond the suppression of free expression.

In an interview with Vietnam Right Now, Tran Quoc Thuan said the prosecution was a direct violation of the right to liberty, as the police had not been able to provide credible evidence against the blogger.

Vinh is a former police officer and ex-member of the Communist Party, who became known for his trenchant exposure of abuse of power and human rights violations.

Human Rights Watch last year described the arrest of Vinh, and his colleague Nguyen Thi Minh Thuy, as a chilling and cynical move designed to punish free expression.

The national police on Oct. 30 last year issued an investigative report accusing the two citizen journalists of “undercutting people’s faith in the leadership of the Party.”

They concluded that the two had “abused democratic freedoms to infringe upon the interest of the State” under Article 258 of the Penal Code which carries a prison term of up to 7 years.

Tran Quoc Thuan sat down with Vietnam Right Now to explain what he sees as the glaring flaws in the prosecution’s case.

– Q: When were you able to access dossiers in the case?

– A: Shortly after his arrest, Nguyen Huu Vinh asked his wife, Le Thi Minh Ha, to contact me and ask me to legally represent him. However, as I reside in the south of Vietnam, I declined to be his lawyer for fear that it would cost them too much, especially during the period of investigation. I said I would join later, when it became more relevant for me to do.

After the police issued their investigative conclusion, Vinh reiterated that he wanted me to be his defence lawyer. So I filed my application, and on March 21 this year, the Procuracy said they consented to my request. However, only in late April did I receive their decision of consent in writing.

When I flew to the north to take that decision, I managed to meet Vinh for one hour. We could not talk much, but it was lucky that we had the lawyer, Ha Huy Son, who had defended Vinh from the beginning and had access to the case’s dossiers.

I told Ha Huy Son to send me the dossiers. When I read them, actually I was absolutely astonished.

– Q: Why were they so astonishing?

– A: Initially I thought Vinh was arrested because he is the editor of “Ba Sam” blog, or the “Sidewalk News Agency” website.

But when I read the case’s dossiers, I found out that he was instead arrested because of two other blogs, “Dan Quyen” [Citizens’ Rights] and “Chep Su Viet” [Writing Vietnamese History].

It turned out that the true crux of the case related to the use of information technology.

I had come prepared to base the defence on democratic and human rights mechanisms that Vietnam is committed to under international treaties. But it became clear that the case goes beyond that.

And the police quickly ran into deadlock when it came to questions of accessing IT.

– Q: What do you mean by “a deadlock” for the police?

– A: The investigators said Vinh was the owner of two sites, “Dan Quyen” and “Chep Su Viet”, alleging that he had a cell phone and an email which provided codes for him to log onto those two sites.

Vinh argued that they must make clear when and how he logged onto the websites. So the police turned to his internet service provider, FPT, and other stage agencies under the Ministry of Information and Communication.

FPT provided the police with the time and date when Vinh was accessing those two sites, or maybe when he was reading news on those two sites. But, you cannot imprison a person simply because he is reading news on a website. Otherwise, there would be millions of people imprisoned in Vietnam.

The investigators, however, insisted that Vinh had to be the administrator of those two sites, because he had the required codes and technology to access them.

Vinh countered that if a person owns the key to unlock a door, it does not mean that he will open the door and enter the room. If he unlocks the door and enters the room, he would leave some traces. If you don’t find those traces, you cannot prove that he had done any such thing.

Then the investigators attempted to make clear whether Vinh had modified or edited the contents on the two websites. But they failed to prove anything.

They should have released him at that moment when they failed to prove his guilt.

– Q: You mean the police have failed to prove Vinh’s guilt?

– A: Yes, and, you know, initially I thought this case was just one more example of a human rights violation, just like that of Cu Huy Ha Vu (the legal activist imprisoned in 2010 for filing a lawsuit against the prime minister and challenging the rule of the Communist Party).

But now it turns out to be something even more serious than a violation of the right to freedom of expression. It is a violation of the right to liberty. Under human rights treaties that Vietnam has signed, no one shall be convicted if he is not proven guilty.

And Nguyen Huu Vinh is such a person.

– Q: And what about violations of due process ?

– A: The police’s investigative report stated that the General Department of Public Security was watching and noticed two websites, “Dan Quyen” and “Chep Su Viet”. Then they assigned the case to their investigating body to check and investigate, which led to the urgent arrest of Nguyen Huu Vinh and his colleague, Nguyen Thi Minh Thuy.

When they came to arrest them, Vinh had a headache and was lying on a sofa. They came into his working room and got many documents printed from his computer. They did the same to Thuy. Then they gave the printed documents to Vinh and Thuy, asking them to sign, but Vinh refused.

They then sealed the working room. But this room had two doors, and they only sealed one. So Vinh said later that anyone could enter his room through the other door and print as many documents as they wanted.

In this case, it is also unlawful to conduct an “urgent arrest” of Nguyen Huu Vinh and Nguyen Thi Minh Thuy. Under Vietnamese law, a warrant of urgent arrest must be approved by the Procuracy within 24 hours of arrest, but in this case it took eight days for the Procuracy to approve a warrant.

There is also a rule in criminal proceedings which stipulates that stakeholders or anyone related to the case should have no participation in the proceedings.

However, General Hoang Kong Tu, the head of the police investigative agency, was criticised in one of the 24 articles that were being used as evidence against Nguyen Huu Vinh.

So the lead investigator was prosecuting a case in which he was personally involved.

The title of the article was “Little Emperor Hoang Kong Tu vs. BBC Vietnamese Service.”

Therefore, it can be said that Hoang Kong Tu may have wanted to retaliate, or that he had a motive of revenge in investigating the case.

It is unlawful for an alleged victim to take on the role of investigator.

– Q: Do you know why Nguyen Huu Vinh was arrested? He was arrested on May 5 last year, at a time when China deployed their oil rig in Vietnamese waters. Can we view his arrest as an act by the government to silence those who opposed a pro-China policy?

– A: Looking at how some bloggers write, sometimes we may find them being partial or taking sides among powerful forces. Therefore, such an arrest may be seen as a way to cut off somebody’s limbs.

Such cases sometimes occur before a big event or a political turning point.

– Q: Of the two cases where you worked as defence lawyer, Cu Huy Ha Vu and Ba Sam, which do you think is more challenging?

– A: The current political atmosphere is more open than in 2011. The current legal system has been improved, too, so that we have more space to work. In my defence for Cu Huy Ha Vu, I had more logical arguments.

In this case, I believe that the focus should be on the violation of due process, or someone arrested with little legally founded evidence. And when someone is detained without credible evidence it means a more serious violation of human rights was made than just a violation of the right to freedom of expression.

It violates the right to live, the right to liberty and the right not to be arbitrarily detained. Those rights are basic, first-and-foremost human rights.

– Q: Do you have any prediction for the forthcoming trial?

– A: The authorities will face difficulties and they know it. But, just like Cu Huy Ha Vu’s case, the authorities are under pressure to bring the case to trial. They cannot detain them without trial. Now we just don’t know how they can justify the imprisonment of Nguyen Huu Vinh or whether they will accuse him of tax evasion.