Arrest of Activist Luu Van Vinh Is Arbitrary: WGAD
Defend the Defeners, May 13, 2018
The detention of Vietnamese pro-democracy activist Luu Van Vinh by authorities of Ho Chi Minh City is arbitrary and demands for his release, states the UN Working Group on Arbitrary Detention (WGAD).
In a letter titled “Opinion adopted by the Working Group on Arbitrary Detention at its eighty-first session, 17-26 April 2018: Opinion No. 35/2018 concerning Luu Van Vinh (Vietnam),” WGAD said it “finds that there was no legal basis established for his arrest and detention under Article 9(3) and (4) of the International Covenant on Civil and Political Rights (ICCPR).”
WGAD made this opinion after receiving complaints from Defend the Defenders about the arrest and detention of Mr. Vinh as well as exchanging notes with the Vietnamese government, particularly the Ministry of Foreign Affairs.
Mr. Vinh was arrested on November 6, 2016 and charged with “Carrying out activities aimed at overthrowing the people’s administration” under Article 79 of the country’s 1999 Penal Code in relation with his involvement in the establishment of the the unsanctioned Coalition for Self-determined Vietnamese People which he formed in mid-July of 2016. He left the organization several days before being arrested. He is still held in pre-trial detention in Ho Chi Minh City.
In Mr. Vinh’s case, WGAD said the Vietnamese government “did not suggest or submit any evidence to demonstrate that Mr. Vinh’s conduct was violent.”
WGAD recalls that holding and expressing opinions, including those which are critical of, or not in line with, official government policy, is protected under international human rights law guaranteeing the freedom of expression enshrined in article 19 of the ICCPR. Similarly, by participating in peaceful protests and by establishing the coalition which aimed to promote democracy, Mr. Vinh was expressing his rights to freedom of peaceful assembly and association under Article 20 of the Universal Declaration of Human Rights (UDHR) and Articles 21 and 22 of the ICCPR.
The permitted restriction on the freedom of expression, peaceful assembly and association under Article 19 (3), 21 and 22 (2) of the ICCPR do not apply in the case of Mr. Vinh, said WGAD, adding “Vietnam’s government did not demonstrate how Mr. Vinh’s participation in demonstration and the expression of his views constituted a real threat to national security, public safety or public order, nor why bringing charges under Article 79 of the Penal Code was a necessary, reasonable and proportionate response to his activities.”
Regarding those activists charged and convicted of subversion, WGAD said as the Vietnamese government “did not provide evidence of any violent actions on the part of petitioners, and that in the absence of such information, the charges and convictions under Article 79 could not be regarded as consistent with the Universal Declaration of Human Rights or the ICCPR. It requested the Vietnamese government to amend its laws in order to clearly define offences relating to national security and to state what was prohibited without ambiguity.
WGAD found that Article 79 of Vietnam’s 1999 Penal Code is so vague and overly broad that it could result in penalties being imposed on individuals who had merely exercised their rights in a peaceful manner.
Remembering that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the international and national levels” and to meet or assemble peacefully for the purpose of promoting and protecting human rights as states in UDHR, WGAD concludes that Mr. Vinh’s deprivation of liberty resulted from the exercise of his rights to freedom of opinion and expression, peaceful assembly and association, as well as his right to take part in the conduct of public affairs, and was contrary to Article 7 of UDHR and Article 26 of ICCPR.
Considering the arrest of Mr. Vinh as arbitrary, WGAD said it “wishes to emphasize that no trial of Mr. Vinh should take place in future.
Based on the information presented by Defend the Defenders, Mr. Vinh’s due process rights have been violated during his lengthy pre-trial detention, nearly 18 months since his arrest on November 6, 2016. If Mr. Vinh could not be tried within a reasonable time, he was entitled to release under Article 9(3) of ICCPR.
WGAD said Mr. Vinh’s incommunicado detention creates the conditions that may lead to violations of the Convention against Torture, and may itself constitute torture or ill-treatment, adding the incommunicado detention of Mr. Vinh violates Article 9, 10 and 11 (1) of UDHR and Article 9 of ICCPR.
The denial of contact between Mr. Vinh and his family for nearly one year also mounts to a violation of the right to have contact with the outside world under rules 43(3) and 58 of the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), said WGAD.
WGAD said that Mr. Vinh was denied access to lawyers for nearly one year during his incommunicado detention, including during pre-trial investigation, in violation of his right to legal assistance guaranteed by Article 10 and 11 (1) of UDHR and Article 14(3) of ICCPR.
All persons deprived of their liberty have the rights to legal assistance by counsel of their choice at any time during their detention, said WGAD, adding the denial of access to legal assistance during the investigation is of considerable concern given that Mr. Vinh was facing heavy penalties following prosecution under the national security provisions in Article 79 of the Penal Code.
WGAD concludes that these violations of the right to a fair trial are of such gravity as to give the deprivation of liberty of Mr. Vinh an arbitrary character.
WGAD states that it is not acceptable to subject family’s members of a detained person to any form of harassment or intimidation and it is the responsibility of the government to protect Mr. Vinh and his family. It urged Vietnam’s government to conduct a thorough investigation into the allegations that the authorities in Ho Chi Minh City have harassed Mr. Vinh’s family, which has forced his wife to leave their business and seek alternative employment in order to support her family and to provide him with additional food while he is in detention. It urges Vietnam’s government to prosecute the offenders.
Mr. Vinh’s case is one of several cases brought before WGAD in recent years concerning the arbitrary deprivation of liberty of persons in Vietnam, said the group. It recalls that under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law, may constitute crimes against humanity.
In its conclusion, WGAD confirms that the deprivation of liberty of Luu Van Vinh, being in contravention of Article 2, 6, 7, 8, 9, 11(1), 19, 20 and 21 (1) of UDHR and Articles 2(1 and 3), 9, 14, 16, 19, 21, 22, 25(a) and 26 of ICCPR, is arbitrary.
It requests Vietnam’s government to take the steps necessary to remedy the situation of Mr. Vinh without delay and bring it into conformity with the relevant international norms, including those set out in UDHR and ICCPR.
The WGAD considers that, taking into account all the circumstances of the case, in particular the risk of harm to Mr. Vinh’s health, the appropriate remedy would be to release Mr. Vinh immediately and accord him an enforceable right to compensation and other reparation, in accordance with international law.
WGAD urges Vietnam’s government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Vinh and to take appropriate measures against those responsible for the violation of his rights.
WGAD requests Vietnam to bring its laws, including Article 79 in the revised Penal Code, into conformity with the recommendations made in the present opinion and with the commitments made by Vietnam under international human rights law.
Mr. Luu Van Vinh, as well as his friend Nguyen Van Duc Do, are listed as prisoners of conscience by the London-based NGO Amnesty International. On November 22, 2016, three weeks after their detention, the U.N. Human Rights Office for Southeast Asia called on Vietnam to release them immediately and unconditionally.
For more information on Mr. Vinh’s case, go to our archieve: http://www.vietnamhumanrightsdefenders.net/defenders-weekly/?post=luu-van-vinh
WGAD is a body of independent human rights experts that investigate cases of arbitrary arrest and detention. Arbitrary arrest and detention is the imprisonment or detainment of an individual, by a State, without respect for due process, and is a violation of international human rights law.
WGAD was established by resolution in 1991 by the former Commission on Human Rights. It is one of the thematic special procedures overseen by the UN Human Rights Council, and is therefore a subsidiary body of the UN.
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