Opinions adopted by the Working Group on Arbitrary Detention at its 74th on Nov 30, 2015: Opinion No. 45/2015 concerning Nguyen Viet Dung (Vietnam)

Mr. Dung at a peaceful demonstration on April 12, 2015 before being arrested by Hanoi police

Human Rights Council- Working Group on Arbitrary Detention

1. The Working Group on Arbitrary Detention was established in resolution 1991/42 of the Commission on Human Rights, which extended and clarified the Working Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its decision 1/102 and extended it for a three-year period in its resolution 15/18 of 30 September 2010. The mandate was extended for a further three years in resolution 24/7 of 26 September 2013.

2. In accordance with its methods of work (A/HRC/30/69), on 29 September 2015 the Working Group transmitted a communication to the Government of Vietnam concerning Nguyen Viet Dung. 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 sentence or despite an amnesty law applicable to him) (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 International Covenant on Civil and Political Rights (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 for reasons of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation or disability or other status, that aims towards or can result in ignoring the equality of human rights (category V).

Submissions

Communication from the source

4. Mr. Nguyen Viet Dung, born on June 19 1986, is a citizen of the Socialist Republic of Vietnam and usually resides in Yen Thanh district, Nghe An province, Vietnam.

5. Mr. Nguyen Viet Dung, a graduate in electrical engineering, has declared, in early April 2015, his intention to set up a Public Party of Vietnam in order to promote human rights and the idea of a multi-party democracy in the country.

6. The source alleged that, on April 12, 2015, Mr. Nguyen Viet Dung was arbitrarily detained. The source reported that, in the morning of the same day, Mr. Dung attended a peaceful protest of about 100 activists held against the Hanoi city’s large – scale cutting of trees in the city center. According to the source, this demonstration ended without any clashes with the local police. However, after the protest, Mr. Dung and four other individuals were approached by the police, which claimed they were causing public disorder. Mr. Dung and other 4 individuals were then detained by the Hanoi City Hoan Kiem district police in the Hoan Kiem district.

7. The four individuals who were detained together with Mr. Dung were released two days later, on 14 April 2015. Mr. Dung, however, continued to be kept in custody. On 19 April 2015, the Hoan Kiem district police have issued an arrest warrant on the basis of Mr. Dung’s alleged violation of article 245 of the Criminal Code of the Socialist Republic of Vietnam. Mr. Dung was thus accused of causing public disorders.

8. The source informs that Mr. Dung is currently being kept in the Detention Facility No. 1 of Hanoi city’s Police Department whilst Hanoi Police Department investigation agency looks into his political activities. The first interrogation, attended by Mr. Dung’s lawyer, took place on 23 September 2015. The second interrogation is still pending. After the second hearing, the case is scheduled to be transferred to the Prosecutor’s Office for the first hearing.

9. The source submits that the deprivation of liberty of Mr. Nguyen falls under Categories II and V as classified by the Working Group. In regards to the Category II, the source alleges that the arrest and continued deprivation of liberty of Mr. Dung are a result of his peaceful legal activities carried out in accordance with the Constitution of the Socialist Republic of Viet Nam. The source argues that Mr. Dung has been deprived of his or her liberty for reasons of discrimination based on his political opinion which aims towards or can result in ignoring the equality of human rights (Category V).

Response from the Government

10. The Working Group regrets that the Government has not responded to the allegations transmitted to it on 29 September 2015.

Discussion

11. The Working Group addressed a communication to the Government of The Socialist Republic of Vietnam requesting detailed information about the mentioned allegations as well as about the current situation of Mr. Nguyen Viet Dung and a clarification of the legal provisions justifying his continued detention.

12. Despite the absence of any information from the Government, the Working Group considers that it is in a position to render an opinion on the case on the basis of the submissions that have been made in conformity with paragraph 16 of its methods of work. .

13. In the present case, the Government has chosen not to rebut the prima facie reliable allegations submitted by the source. The Working Group has in its jurisprudence established the ways in which it deals with evidentiary issues.1 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 given allegations. Hence, the Working Group should base its Opinion on the prima facie case made out by the source.

14. At the outset, with regard to violations of national legislation, the Working Group wishes to reaffirm that any national law touching upon the arrest and detention should be made and implemented consistent with the relevant international provisions set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments to which the State concerned has acceded. Consequently, even if the arrest and detention are in conformity with national legislation, the Working Group must ensure that such detention is also consistent with the relevant provisions of international human rights law.

15. In this context, the vagueness of the provisions and their overbroad application of a law might render the law itself at odds with the relevant norms of international law on the administration of criminal justice. In the view of the Working Group, article 245 of the Criminal Code of the Socialist Republic of Vietnam and its possible expansive application can be a source of the same concern.

16. Given the overall situation that prompted and resulted in the arrest and detention of Mr. Nguyen Viet Dung, the Working Group considers that the deprivation of liberty of Mr. Nguyen Viet Dung falls under the Categories I and III as classified by the Working Group. The concluding facts on this point include the following chain of events: 1) that he was arrested on 12 April 2015 without the presentation of any arrest warrant and a proper notification of the charges against him; 2) that the arrest warrant and the charges were presented on 19 April 2015, 8 days after the date of the arrest, by the hands of the police and not the prosecution; 3) that he has been subjected to a prolonged pre-trial detention over a period of eight months at the police department; 4) that, even at the police station, the delay and maladministration of justice was manifested as the interrogation was conducted one time only on 23 September 2015.

17. The Working Group confirms that the deprivation of liberty of Mr. Nguyen Viet Dung is in violation of article 9 of the Universal Declaration of Human Rights banning the practice of arbitrary arrest and detention, which is a deeply entrenched human rights norm, reflected in both State practice and opinio juris. It was also conducted in violation of the article 9, paragraph 1 of the International Covenant on Civil and Political Rights, which stipulates, “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

18. Breaches of law have also been made in regard to the paragraph 2 of the article, which clarifies that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

19. Article 9, paragraph 3, of the International Covenant on Civil and Political Rights sets forth two cumulative obligations, namely to be brought promptly before a judge within the first days of the deprivation of liberty and to have a judicial decision rendered without undue delays, in the absence of which the person is to be released.2

20. This provision is completed by the second part of paragraph 3 of article 9 which provides that “it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment”. It follows that liberty is recognized as a principle and detention as an exception in the interests of justice.3

21. The Working Group further wishes to refer to general comment No. 35 (2014) of the United Nations Human Rights Committee4 whereby “it should not be the general practice to subject defendants to pretrial detention. Detention pending trial must be based on an individualized determination that it is reasonable and necessary in all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime.”

22. With regard to the application of the category III, in particular, as classified by the Working Group, we also note with concern that the pre-trial detention that has lasted about 8 months, as specifically shown in the case of Mr. Nguyen Viet Dung, constitutes a clear violation of the part of the well-established international law on detention that pretrial detention should be an exception and should be as short as possible.5 In its 2011 annual report (A/HRC/19/57, paras. 48-58), the Working Group also underlined that pretrial detention should be an exceptional measure.

23. The right to a fair trial is well established in international law, especially under articles 10 and 11 of the Universal Declaration of Human Rights. In particular, article 10 of the Universal Declaration of Human Rights stipulates that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 9, paragraph 4, of the ICCPR also stipulates that anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. The deprivation of liberty of Mr. Nguyen Viet Dung is arbitrary under the above-mentioned standards of the international norms on detention.

Disposition

24. In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Mr. Nguyen Viet Dung, being in contravention of articles 9, 10, and 11 of the Universal Declaration of Human Rights and articles 9(1), 9(2), 9(3), 9(4), 10, and 11 of the International Covenant on Civil and Political Rights, is arbitrary and falls within category I and III of the categories applicable to the consideration of cases submitted to the Working Group.

25. Consequent upon the Opinion rendered, the Working Group requests the Government of Vietnam to take the necessary steps to remedy the situation of Mr. Nguyen Viet Dung without delay and bring it into conformity with the standards and principles set forth in the International Covenant on Civil and Political Rights.

26. The Working Group considers that, taking into account all the circumstances of the case, the adequate remedy would be to immediately release Mr. Hung Linh Nguyen and accord him an enforceable right to reparation in accordance with article 9, paragraph 5 of the International Covenant on Civil and Political Rights.

[Adopted on 3 December 2015]

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1 See, for example, Report of the Working Group, A/HRC/19/57, para. 68.

2 Report of the Working Group, A/HRC/19/57, para. 53.

3 Ibid, para. 54.

4 General Comment No. 35 of the Human Rights Committee, para. 38

5 See, for example, Human Rights Committee, Communication No. 1787/2008, CCPR/C/107/D/1787/2008, paras. 7.3-4.

(Source: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17137&LangID=E)