VIET NAM: ARBITRARY DETENTION OF A JOURNALIST AND HUMAN RIGHTS DEFENDER

The International League Against Arbitrary Detention urges the government of Viet Nam to take all necessary measures to implement Opinion No. 39/2024 of the United Nations Working Group on Arbitrary Detention concerning Phạm Chí Dũng, asking the Government of Viet Nam calling to immediately and unconditionally release Phạm Chí Dũng and to accord him an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD opinion concerning Phạm Chí Dũng (Viet Nam): Opinion No. 39/2024.

ARRESTED AND SENTENCED FOR HAVING DENOUNCED HUMAN RIGHTS VIOLATIONS

Phạm Chí Dũng, born in 1966, is a Vietnamese citizen and an independent journalist, writer and analyst. Mr. Dũng is the co-founder of the Association of Independent Journalists of Viet Nam, which publishes the online newspaper Vietnam Times. He is also a member of the Civil Society Forum and the Vietnamese Association of Former Prisoners of Conscience.

The source declared that for several years, Mr. Dũng has been subjected to various acts of persecution by the Vietnamese government. For example: the Facebook page of the Association of Independent Journalists of Viet Nam was closed down, he was prevented from traveling to Geneva to take part in a side event as part of Viet Nam's review under the second cycle of the Universal Periodic Review in 2014, and he has been detained on several occasions since 2012. On November 13, 2019, Mr. Dũng submitted a petition to the President and other members of the European Parliament expressing his concerns about the human rights situation in his country, and requesting that the ratification of the EU-Vietnam Free Trade Agreement be postponed until the Vietnamese government had taken measures meeting the relevant benchmarks.

Mr. Dũng's arrest by police officers from the Ministry of Public Security occurred on November 21, 2019, as he was accompanying his child to school. He was then escorted back to his home and placed under arrest. He was then taken to the Binh Thanh district detention center in Ho Chi Minh City. On April 27, 2021, he was transferred to Xuan Loc prison camp, without his family being informed of his whereabouts. According to the source, he was not able to see his family again until January 22, 2022, and was unable to see a lawyer of his choice for approximately ten months. Mr. Dũng was not brought before a judge until January 5, 2021, some fourteen months after his arrest.

On January 5, 2021, Mr. Dũng was sentenced to 15 years of imprisonment and 3 years of probation as he was charged with making, storing, distributing or disseminating information, documents and items directed against the State, with an unsuccessful appeal. The source explained that Mr. Dũng is still in detention, suffering from serious health problems, with no appropriate medical care in place.

The Vietnamese government was given the opportunity to rebut the allegations made by the source but chose not to do so.  

ARRESTED WITHOUT A WARRANT AND DETAINED INCOMMUNICADO  

Firstly, at the time of his arrest, the source argued that Mr. Dũng was not presented with an arrest warrant, which constituted a violation of article 9 (1) of the Covenant, according to the Working Group. Moreover, fourteen months elapsed between Mr. Dũng's arrest and his presentation to a judge, so he was not brought promptly before a judicial authority, which constituted a violation of his right to be brought before a court that can rule without delay on the lawfulness of the detention. The Working Group therefore concluded that there had been a violation of article 9 of the Universal Declaration of Human Rights and article 9 (3) of the Covenant.

Mr. Dũng's pre-trial detention also appeared unfounded, insofar as the court had a duty to consider possible alternatives to pre-trial detention, as part of an individualized assessment of each case. In the absence of a response from the Government, the Working Group considered that this individualized approach lacked in the present case, in violation of article 9 (3) of the Covenant. According to the source, Mr. Dũng was also denied the opportunity to challenge the legality of his detention before a court or to access an effective remedy, as he was held incommunicado for a long period. The Working Group therefore considered that these facts were in violation of articles 2 (3), 9 (3) and 9 (4) of the Covenant, as well as article 8 of the Universal Declaration of Human Rights. It also found that his incommunicado detention deprived him of the protection of the law, as guaranteed by articles 6 of the Universal Declaration of Human Rights and 16 of the Covenant.

Finally, it was submitted that Mr. Dũng was only able to meet his family again two years after his arrest and had only been able to get in contact with them seventeen months after his arrest. The Working Group found that this denial to have contact with the outside world was in contradiction with the rights set out in rules 43 (3) and 58 (1) of the Nelson Mandela Rules and principles 15, 16 (1) and 10 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Consequently, in view of all the above, the Working Group considered that Mr. Dũng's arrest and detention lacked a legal basis, rendering his deprivation of liberty arbitrary under category I.

DEPRIVED OF HIS RIGHT TO FREEDOM OF OPINION AND EXPRESSION

According to the source, Mr. Dũng was sentenced under Article 117 of the Vietnamese Penal Code. This provision had already been the subject of recommendations by the United Nations Country Team in Viet Nam in May 2017, which viewed it as incompatible with the human rights obligations arising from the Covenant, notably because it does not differentiate between demonstrations using violent means and peaceful and legitimate protest activities, which are necessary in a democratic society. The Human Rights Committee has also concluded that this article permits violations of the right to freedom of expression. While the Covenant permits legitimate restrictions on the right to freedom of expression, none were brought forward by the Vietnamese government as a basis for Mr. Dũng's arrest and conviction. Therefore, the Working Group concluded that Mr. Dũng's detention resulted solely from the exercise of his right to freedom of opinion and expression, which violated article 19 of the Universal Declaration of Human Rights and Article 19 of the Covenant.

Consequently, the Working Group concluded that Mr. Dũng's detention was arbitrary under category II.

DENIED HIS FAIR TRIAL RIGHTS

The source pointed out that Mr. Dũng had been held incommunicado for approximately ten months. Throughout his detention, Mr. Dũng was only able to meet with his lawyer once, and their meeting was reportedly not confidential. In that regard, the Working Group found a violation of his right to equality of arms and to a fair hearing by an independent and impartial tribunal, guaranteed by article 14(1) of the Covenant, as he had extremely limited legal assistance. It also established a violation of his right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his choice, as protected by article 14 (3) (b) of the Covenant for the same reasons. The Working Group also noted that this case was just one example of the systematic deprivation of legal assistance in similar proceedings in Viet Nam.

As fourteen months had elapsed between Mr. Dũng's arrest and his trial, the Working Group considered that article 14 (3) (c) of the Covenant, relating to the right to be tried within a reasonable time, had been violated.

Furthermore, the source submitted Mr. Dũng was convicted after a single day's hearing, without being able to subject the witnesses to cross-examination. The Working Group considered that, in view of the severity of the sentence and the speed of the trial, Mr. Dũng's guilt had been decided prior to the trial, in violation of articles 14 (2) of the Covenant and 11 (1) of the Universal Declaration of Human Rights which guarantee presumption of innocence.

Lastly, insofar as Mr. Dũng's trial was held in camera, without any exceptional circumstance being provided by the government, the Working Group highlighted the importance of the right to a public hearing in criminal matters and found a violation of article 10 of the Universal Declaration of Human Rights and 14 (1) of the Covenant.

In conclusion, The Working Group considered that Mr. Dũng's rights to a fair trial had been violated and therefore declared his detention arbitrary under category III.

DETAINED FOR DISCRIMINATORY REASONS RELATED TO HIS POLITICAL OPINIONS

In determining whether Mr. Dũng's detention was based on discriminatory grounds, the Working Group noted in particular that his arrest was part of a larger pattern of persecution against him. Indeed, Mr. Dũng had already been remanded in custody on several occasions, he had also reportedly been prevented from travelling to Geneva for a demonstration and the authorities had closed the website and deleted the Facebook page of the Association of Independent Journalists of Viet Nam, of which he is one of the founders.

The Working Group stressed that it had already issued opinions in which it had deemed the detention of members of the Association in question to be arbitrary. Finally, the source submitted that Mr. Dũng's arrest and detention resulted from his peaceful exercise of freedom of expression and opinion. Accepting those unrefuted allegations, the Working group concluded that Mr. Dũng was detained on discriminatory grounds, namely on the basis of his political and religious opinions, in violation of articles 2 and 7 of the Universal Declaration of Human Rights.

In light of the above, the Working group considered that Mr. Dũng's detention to be arbitrary under category V.

CONCLUSIONS OF THE UNITED NATIONS WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group against Arbitrary Detention considered that the detention of Phạm Chí Dũng was arbitrary and fell under categories I, II, III and V because the deprivation of liberty of Phạm Chí Dũng was contrary to articles 2, 6, 7, 8, 9, 10, 11 and 19 of the Universal Declaration of Human Rights and articles 2, 9, 14, 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 steps necessary to remedy the situation of Phạm Chí Dũng 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.