|Fully Authoritarian Regime|
|Restrictions must be provided by law|
|Law must be formulated with sufficient precision|
|a) Rights of others OR   |
|b) National security, public order, public health or morals|
|Necessary for a legitimate purpose (see legitimate grounds)|
|Only way to achieve protection|
|Restriction on expression should not be overbroad|
|Least intrusive instrument amongst those which might achieve their protective function|
|Proportionate to interest to be protected|
|Intent to incite discrimination, hostility, or violence|
|Direct & immediate connection between expression & threat|
Facts – Nguyen Van Hai, under the pen name Dieu Cay ("Peasant’s Pipe"), is considered to be one of Vietnam’s most influential bloggers. His blog posts addressed issues that were considered sensitive by Vietnam’s Communist Party-run government. He was sentenced in September 2008 to two and a half years of imprisonment for tax evasion after being arrested earlier in April 2008. The day before he completed his prison term on October 18, 2010, he was charged with “conducting anti-state propaganda” and was sentenced to 12 years in prison on September 24, 2012.
Issue – Does Nguyen’s arrest, conviction, and sentencing on propaganda charges under Vietnamese law comply with international law standards?
Rule – Under the Universal Standard of the ICCPR, incitement laws must pass the scrutiny of a six-prong test.
The first prong requires the legality of the law, meaning that the charges must be formalized by law and the law must be sufficiently precise.
The second prong requires legitimate grounds for the incitement charge. Legitimate grounds include protecting the rights of others as well as national security, public order, public health, or morals.
The third prong requires necessity in that the restrictive measures must be necessary for a legitimate purpose and must be the only way to achieve protection.
The fourth prong requires proportionality, meaning that the restriction on freedom of expression should not be overbroad,must be the least intrusive instrument amongst those that might achieve the protective function, and be proportionate to the interest being protected.
The fifth prong requires the existence of intent, specifically the intent to incite discrimination, hostility, or violence.
The sixth prong requires a direct and immediate connection between the expression and threat.
Analysis – Before analyzing this case under the six-prong test, it is important to note that the Vietnamese statute Nguyen was convicted under does not contain the word “incite.” In the article, “conducting propaganda” or “propagating against” are the actions that are criminalized. The analysis of the case will demonstrate that the statute here is used in a manner similar to that of incitement statutes in other countries.
First prong: (1) Legality – The crime of “propaganda against state” is formally codified in Vietnam’s Penal Code under Article 88. However, the statute is written in an overbroad fashion. It criminalizes propagating against the state, but does not define what exactly the word "propagate" encompasses.The statute is short and vague, allowing authorities to tailor the statute to fit a broad range of actions they decide to punish as can be argued was what happened in Nguyen's case. Therefore, the first prong is not satisfied as the law and its application in Nguyen's case is in violation of the Universal Standard's requirement that incitement laws be formulated with sufficient precision and not be overbroad in nature.
Second prong: (2) Legitimate Grounds – The grounds that the criminal statute seeks to protect are “the people’s administration” and the “Socialist Republic of Vietnam.” These terms are loosely related to national security, but do not amount to a substantial security concern. Particularly concerning, is the interest of protecting “the people’s administration” which would ultimately stifle dissent and suggests that people cannot criticize their own government. The law is also not protecting the right of others, but rather the "people's administration." In Nguyen's case, he merely wrote blogs that were about "sensitive" issues. It is questionable whether or not this "sensitive" information was at the level of a national security concern or presented a threat towards the rights of others rendering the law and its application to Nguyen's case in violation with the Universal Standard. Therefore, the second prong fails.
Third prong: (3) The third prong automatically fails because there is no legitimate purpose being protected under the statute. The information provided about Nguyen's case does not appear to indicate that there was a legitimate purpose in restricting his freedom of expression or that 12 years in prison was the only way to achieve protection as would be necessary under the Universal Standard.
Fourth prong: (4) The fourth prong fails because the 12-years imprisonment Nguyen received is disproportional to the interest being protected. The supposed interest being protected calls for prison terms of three years to 12 years. Nguyen’s only alleged illegal action was writing on his blog. Imprisonment is a very intrusive method to achieve the protective function, which is excessively broad under the Vietnamese statute. These are all in violation of the Universal Standard.
Fifth prong: (5) The fifth prong fails because in Nguyen’s case, Nguyen lacked the specific intent to incite discrimination, hostility, or violence as is required under the Universal Standard. Nguyen wrote blog posts criticizing the Vietnamese government, and discussed issues that are considered “sensitive.”
Sixth prong: (6) In Nguyen’s case, blogging cannot be reasonably said to pose direct threats to anyone as is a condition that should exist under the Universal Standard. Therefore, there is a disconnect between the expression and threat. This demonstrates that the sixth prong is not satisfied.
Conclusion – Vietnamese law and its procedural use violates the Universal Standard on incitement. Based off of the analysis provided above of Vietnamese law and its application to Nguyen's case,Vietnam does not comply with international standards on the law of incitement.
Le Cong Dinh, Tran Huynh Duy Thuc, Nguyen Tien Trung and Le Thang Long
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-fourth session, 27–31 August 2012
No. 27/2012 (Viet Nam)
Communication addressed to the Government on 15 March 2012
Concerning Le Cong Dinh, Tran Huynh Duy Thuc, Nguyen Tien Trung and Le Thang
37. Regarding the question of violation of national legislation as referred to by the
Government, the Working Group recalls that in its previous opinions relating to Viet Nam,1 it had underlined that:
In conformity with its mandate, it must ensure that national law is 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 detention is in conformity with national legislation, the Working Group must ensure that it is also consistent with the relevant provisions of international law.
38. The Working Group also reiterates its previous finding that broad criminal law provisions, which criminalize “taking advantage of democratic freedoms and rights to abuse the interests of the State”, are inherently inconsistent with any of the rights and liberties guaranteed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights,2 to which Viet Nam is a party.
39. The Working Group also refers to its report from the official visit to Viet Nam in
1994, where it is pointed out that the wording of certain criminal offences was “so vague that it could result in penalties being imposed not only on persons using violence for political ends, but also on persons who have merely exercised their legitimate right to freedom of opinion or expression” (E/CN.4/1995/31/Add.4, para. 58).
40. The cases of Mr. Dinh, Mr. Thuc, Mr. Trung and Mr. Long demonstrate the objections to vague and overly broad criminal offences. The Working Group points to the facts and legal procedures as set out by the Government in its response above.
41. Mr. Dinh, Mr. Thuc, Mr. Trung and Mr. Long were charged with “circulating propaganda against the Socialist Republic of Viet Nam” under article 88 of the Criminal Code and later charged with and convicted for “activities aimed at overthrowing the people’s administration”, under article 79 of the Criminal Code. In the absence of any information as to any violence involved in the petitioners’ activities, the Working Group holds that the criminal provisions that gave rise to the charge against the four individuals and their subsequent conviction by the court cannot be regarded as consistent with the relevant provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Working Group recalls that the holding and expressing of opinions, including those which are not in line with official Government policy, are protected under article 19 of the International Covenant on Civil and Political Rights.
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