United Nations Rules that Detention of Australian Man in Vietnam is Unlawful: His Lawyers Call for his Immediate Release
JUSTICE ABROAD
“Here When You Need Us”
United Nations Rules that Detention of Australian Man in Vietnam is Unlawful: His Lawyers Call for his Immediate Release
Justice Abroad’s Director, barrister Michael Polak is acting with Sydney lawyer Dan Nguyen on behalf of Mr Chau Van Kham, a 71-year-old Australian democracy activist who was arrested in January 2019 and sentenced to 12 years imprisonment for terrorism because of his democracy activism, after a hearing which failed to comply with international provisions on due process.
In April 2021, Mr Van Kham’s team made submissions to the United Nations Working Group on Arbitrary Detention which argue that the conditions of pre-trial detention, lack of confidential access to a lawyer, and trial procedures which lasted only 4.5 hours for 6 defendants, as well as the vague nature of the charge and the fact that no evidence of any criminal acts was put before the Court rendered the trial unfair and in breach of international law and mean that Mr Van Kham’s continued detention is arbitrary. Along with the submission, a note on the breaches of international law was provided by Human Rights Watch and the submission included evidence of Amnesty International’s designation of Mr Van Kham as a prisoner of conscience.
After considering Mr Van Kham’s case carefully the United Nations Working Group on Arbitrary Detention has come to the conclusion that his detention is arbitrary and therefore unlawful under international law and has ordered his immediate unconditional release. The Working Group, comprised of experts in international law, found that the detention of Mr Chau Van Kham was unlawful under all 4 relevant categories of Arbitrary Detention that it is mandated to consider.
Category 1
In summary, the Working Group held that under category I, which concerns deprivation of liberty without legal basis that:
a) Mr. Van Kham was arrested without an arrest warrant,
in violation of the International Covenant on Civil and Political Rights;
b) an individualized determination of Mr. Van Kham’s circumstances in relation to whether pre-trial detention was necessary was absent and, as a result, his pre-trial detention lacked a legal basis;
c) in February 2020, when a relative visited the prison, Mr. Van Kham was no longer an inmate and prison authorities refused to disclose information as to where he had been moved until late June 2020 and that for this duration, Mr. Van Kham was forcibly disappeared, a particularly aggravated form of arbitrary detention; and
d) For these reasons the Working Group considered that the deprivation of liberty of
Mr. Van Kham lacks a legal basis and is thus arbitrary under Category 1
Category 2
In regards to Category II which concerns deprivations of liberty which result from the exercise of the rights or freedoms guaranteed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights it was submitted that Mr. Van Kham a prisoner of conscience who was arrested and tried not for anything he did but rather because of his beliefs is in democracy for the people of Viet Nam. The Working Group found that this allegation was convincing and noted that the Vietnamese Government’s references to Mr. Van Kham’s membership of Viet Tan in Australia, where the organisation is legal, added credence to this argument.
The Working Group also noted that United Nations bodies had previously held that Viet Tan was a peaceful organisation advocating for democratic reform and that international provisions protect the holding and expression of opinions, including those which are not in line with government policy, with the Human Rights Council stipulating that there are types of expression that should never be subject to restrictions such as ‘discussion of government policies, and political activities, including for peace or democracy’.
After making a finding that Mr. Van Kham’s conduct falls within the right to freedom of conscience and belief, and freedom of opinion and expression the Working Group concluded that Mr. Van Kham’s detention resulted from the peaceful exercise of these rights as well as the right to take part in the conduct of public affairs, and was contrary to the Universal Declaration of Human Rights and the Covenant on Civil and Political Rights and therefore his arrest and detention were also arbitrary under category II.
Category 3
In relation to category 3, which concerned whether the lack of observance of fair trial rights in international law was of such gravity as to result in the deprivation of liberty being arbitrary, the Working Group emphasised that given that Mr Van Kham was put on trial solely for exercising his human rights, no trial should have taken place. The Working Group went on to:
a) Refer the submission that Mr Van Kham did not have a trial by a fair and objective tribunal as all Vietnamese judges are required to be members of the Communist Party of Vietnam and are bound to make a decision favourable to the Communist Party, to the Special Rapporteur on the independence of judges and lawyers;
b) Find that the failure to provide Mr. Van Kham access to a lawyer during the investigation violated his right to have adequate time and facilities to prepare his defence, and noted that this case is another example of instances when legal representation was denied or limited for individuals facing serious charges, suggesting that there is a systemic failure to provide access to counsel during criminal proceedings in Vietnam;
c) that Viet Nam’s Criminal Procedure Code (CPC) contravenes international human rights standards in relation to the right to access a lawyer, in so far as article 173(5) of the CPC stipulates that government prosecutors can hold suspects accused of national security crimes in detention, and article 74 of the CPC allows prosecutors to restrict their access to legal counsel until after an investigation is concluded;
d) Find that the source’s submissions were credible in relation to the lack of opportunity to properly prepare for trial given that Mr Van Kham was not properly informed of the allegations against him and stated that there is a strict obligation to respect the right of accused persons to have witnesses admitted that are relevant for the defence and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings;
e) Find that the fact that Mr Van Kham was found guilty after a 4.5-hour trial during which he was tried alongside 5 other individuals, meaning that approximately 45 minutes was spent on his case, indicated that the result of Mr Van Kham’s trial had been determined before the trial began and raised serious concerns about the proper application of the presumption of innocence in terms of the time needed to listen to the presentation of evidence and defense arguments in a fair and unbiased manner;
f) That Mr Van Kham’s rights were further violated by the lack of public access to the trial and
guarantees required for his defence to be advanced properly; and
g) And for these reasons the Working Group concluded that the abovementioned violations of the Mr. Van Kham’s right to a fair trial and due process are of such gravity as to render his deprivation of liberty arbitrary under category III.
Category 5
The Working Group also found that the detention of Mr Van Kham was arbitrary under Category 5, in that he was deprived of his liberty for reasons of discrimination owing to his status as a human rights defender/democracy-activist. Under this category the Working Group noted that:
a) There was an apparent pattern in Viet Nam of harassing and detaining human rights defenders for their work;
b) The Human Rights Committee has previously pressed its concerns “at reports that persons, particularly human rights defenders, activists, and religious leaders, may face arbitrary arrests, detention, and incommunicado detention without charges” in Vietnam;
c) That the submission that Mr. Van Kham’ arrest, conviction, and sentence were an attempt to silence his activity as a human rights activist, that is expressly protected by international law, and his detention resulted from the peaceful exercise of his fundamental freedoms was credible; and that therefore
d) Mr. Van Kham’s deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on political or other opinion, owing to his status as a human rights defender.
UN Working Groups Conclusion and Remedy Ordered
In conclusion the Working Group stated that they remain concerned by the fact that Mr. Van Kham, who is 71 years old, is subject to a host of medical issues. The Working Group concluded that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Van Kham immediately and accord him an enforceable right to compensation and other reparations. The Working Group added that in the current context of the global coronavirus disease (COVID-19) pandemic and the threat that it poses in places of detention, that the Government must take urgent action to ensure the immediate unconditional release of Mr. Van Kham.
Michael Polak, director of Justice Abroad and Barrister at the Bar of England and Wales stated that:
“Previously the position of the Australian Government was that Mr Van Kham had been subject to a legal process in Vietnam and that they could not intervene for this reason. Now that the United Nations’ Working Group has held Mr Van Kham is being held unlawfully and has not been subjected to any proper legal process, this changes the equation entirely. We have a frail 71-year-old Australian being held by an ally and key trading partner and now no one can argue that there is any proper basis for his conviction or continued detention following the United Nation’s decision.
Although the detention of Mr Van Kham, his trial in breach of basic fair trial standards, and the fact that he has been persecuted simply for exercising his right to freedom of expression and political participation is disappointing, it is pleasing that the Government of Vietnam engaged with Working Group’s processes, something which some other states such as China refuse to do in contravention of international law. It is now for Vietnam to show the world that it will continue to comply with the international legal process and release Mr Van Kham immediately, as required by the UN Working Group, so he can return to Sydney to his wife where he should have been for the last three years.
Australia’s new government will be judged on their ability to engage with their regional partners, not just on mutually beneficial issues but also when this requires strong words and actions to protect the rights of Australian citizens. We call on them to act immediately given Mr Van Kham’s age and the precarious position he finds himself in and to bring Mr Van Kham home immediately.’
Media requests for interviews with Michael Polak or members of the family can be accommodated in any language requested and should be made by contacting Justice Abroad by email at contact@JusticeAbroad.co.uk or phone on +44 (0)203 488 2316.
Notes to Editors
Justice Abroad, www.justiceabroad.co.uk has been set up to help those trying to find their way through foreign justice systems with all the associated hurdles that presents, to represent those facing gross breaches of their human rights no matter where this takes place, and to advise and assist the victims of crimes as to how to achieve justice.
Justice Abroad, run by international lawyer Michael Polak, has assembled a team of top investigators, lawyers, and support staff to provide unparalleled support, advice, and guidance, legal, advocacy, and investigatory service for your Justice Abroad issues anywhere in the world. The Justice Abroad team with their trusted international pool of multilingual experts, their networks, and media contacts and their well-documented determination to leave no stone unturned in the search for the truth and justice for families who have been denied it are here to provide that much-needed support for families and individuals in their time of need.