A representative from the Ministry of Justice of Vietnam said during the country’s third Universal Periodic Review (UPR) held on January 22, 2019, in Geneva, Switzerland, that “data concerning the death penalty are related to other legal regulations involving the protection of state secrets in our country. In practice, after taking many points of view from society and other reasons into consideration, Vietnam will not publicize the data concerning the death penalty.”
However, later during the same speech, the speaker seemed to have contradicted her earlier statement when she said that executions in Vietnam are “very public and would be conducted according to the requirements under the Code of Criminal Procedures.”
She did not offer any further explanation as to why the executions are public, but the data concerning the number of executions remains a state secret?
None of the information concerning the execution of inmates is mentioned in the categories listed as “state secrets” in either the Ordinance on Protecting State Secret (link in Vietnamese) or the more recent Law on Protecting State Secret (link in Vietnamese).
However, with the vague language in both of these laws, coupled with the full range of authority given to various government ministries and departments in determining what would be “state secret,” any matter of public concerns could be classified as a “secret” in Vietnam without any further explanation.
In February 2017, the Ministry of Public Security (the national police force) – for the first time – released a report, stating that between 2011-2016, Vietnam was holding 1,134 people on death row and that from 2013-2016, 429 people were executed by lethal injection.
The name of the lethal drugs, however, was not disclosed.
To date, death-row inmates are continued to be executed by unknown drugs and undisclosed procedures.
The MPS’ report in 2017 was also the first and last of its kind.
While Vietnam agreed, since the last UPR cycle in 2014, to push for reforms towards greater transparency around the issue of the death penalty, the answer from its Ministry of Justice on Tuesday seemed to suggest that the public would continue to be kept in the dark.
The representative from Vietnam’s delegate also claimed that the death penalty is only applied to the most serious crimes under the definition of Article 6(2) of the ICCPR (International Covenant on Civil and Political Rights).
This is not quite correct.
There are at least four crimes subjected to the death penalty under the 2015 Penal Code, that do not fall under Article 6(2): Article 109 (subversion against the State), Article 110 (espionage), Article 353 (embezzlement), and Article 354 (receiving bribes).
Among them, Article 109 (formerly 79) had been used almost exclusively against political dissidents during the past decades.
Vietnam also maintains the death penalty for a handful of drugs-related crime in direct violation of Article 6, ICCPR.
Vietnam scored 35 points out of 100 on the 2017 Corruption Perceptions Index reported by Transparency International. In a country where the majority of its citizens perceived corruption had plagued all levels of government, keeping information concerning the death penalty a secret from the people could raise suspicion about possible wrongdoing.
On a Facebook’s post by attorney and dissident Le Cong Dinh earlier today regarding the Vietnamese government’s position on the transparency of the death penalty, people did not hesitate to state that they believed if a death-row inmate agreed to pay a bribe, they could escape execution.
Death-Row Inmate Dang Van Hien May Get A Second Chance At Life
On February 18, 2019, the defense attorneys for Dang Van Hien – a farmer in Dak Nong Province who was sentenced to death in January 2018 – received a letter from the People’s Supreme Court in Hanoi, asking them to supplement further information in support of Hien’s request for a trial by cassation.
The letter is a good sign. It indicates that Hien’s case may get a review of both the law and the facts by the highest court in Vietnam.
It gives him hopes that his life could be saved.
Dang Van Hien killed three men and injured 13 others during a physical altercation between him and the workers of Long Son Investment & Commercial Company in October 2016.
The call to save Hien, whose death sentence was confirmed by an appellate court in Ho Chi Minh City last July, surprisingly, received a significant amount of public sympathy in Vietnam.
Right after the appellate court’s decision was announced, in five days, 3,500 people signed an online petition, asking the President of Vietnam to spare his life.
On July 17, 2018, the Presidential Office demanded the Chief Justice of the Supreme People’s Court, the Chief Procurator of the Supreme People’s Procuracy Office, and the Ministry of Public Security to review and report back the details of the case.
The public seemed to side with Hien and agreed that while he committed murder, there were extenuating circumstances that should save his life from execution.
Long Son had been involved in a bitter land dispute for almost a decade with the farmers living in Hien’s village, Village 1535 in Quang Truc Ward, Tuy Duc District, a remote area deep into the forest of Dak Nong Province.
Dang Van Hien’s case was an agonizing tale of a farmer who started from scratch, trying to build a life on a piece of land which representing the hard-earned money that he and his wife had worked so hard for.
He was a member of the Nung ethnic minority in Vietnam who had very limited education.
But Hien believed in working hard and to this day, believed in the legal system.
He tried to petition to the central government to resolve the dispute between him and Long Son company for almost ten years.
He was not the instigator of the deadly event happened on October 23, 2016.
He earnestly believed that he was protecting his land and his family when they were attacked by the company’s workers, with bulldozers and self-made weaponry.
He turned himself into the police, believing that the law would be fair to him. He and his family tried to compensate the families of the victims for their losses.
Those were the extenuating circumstances that 3,500 Vietnamese people believed should spare Dang Van Hien’s life.
But their sympathy could have also come from the fact that land disputes have become one of the most pressing social and political problems in Vietnam during the past three decades, ever since the Vietnamese Communist Party (VCP) started to implement their economic reforms under the Doi Moi policy in the late 1980s.
The growth of both the private sector and quasi-government enterprises crashed head-on with landowners across the country in many development projects throughout the years.
On top of that, the legal framework involving land rights in Vietnam is extremely complicated, yet still could not resolve the most important issue confronting the authorities.
How to balance the communist concept that all lands supposedly belong to the people and still be able to justify the granting of the right to occupy and use the land to preferably private companies over a regular person?
In recent years, story after story continuously exposed incidents of local government in Vietnam giving the conglomerates a more favored treatment when granting them land use rights in real estate development projects.
The victims of the wrongful, forced removals under the Thu Thiem Project in Ho Chi Minh City had spent over 20 years in petitioning their cases to no avail.
Just last month, Sun Group – one of the largest real estate development companies in Vietnam – faced an accusation from environmental activists that they are building a resort in the heart of the country’s famous national park, Tam Dao.
Land-grabbing has become the reality that the majority of Vietnamese people acknowledges. When conflicts happen, it would be somewhat natural for them to act more sympathetic towards the land-lost victims.
There is always the possibility that anyone in Vietnam could be the next victims of land-grabbing activities, as seen in the case of Loc Hung Vegetable Garden this year, which may also explain this sympathetic reaction from the public as seen in Hien’s case.
In Hien’s case, their sympathy may get him a second chance at life.
Five Facts About Vietnam’s Death Sentences and Executions in 2018
The death penalty in Vietnam is classified as “state secret.” But from time to time, bits and pieces of information from the government do surface, giving the public some glimpses on the statistics and the details of the practice in the country.
Amnesty International previously reported that Vietnam was among the top Five recorded executors in the world in 2016. The worrying trend continues well into 2018.
1. Vietnam sentenced more people to death in 2018 compares to 2017 and executed people, on average, every week
On November 13, 2018, the government reported to the National Assembly the status of sentence implementation in the year 2018 and stated that there was a “dramatic increase from 2017, with 122 more (cases).” The government’s report also confirmed that 85 executions took place in the country this year which means that on average, Vietnam executed at least one person per week.
Although Vietnam had reduced the number of offenses subjected to the death penalty in the past decade, eliminating a total of 15 offenses which carry capital punishment, the number of people sentenced to death actually doubled during the same time period. There were 1,134 inmates sentenced to death between July 1, 2011, and June 30, 2016, according to the Ministry of Public Security’s Report on executions carried out in the previous five years dated January 4, 2017.
2. The name of the lethal drugs used for executions in Vietnam is still UNKNOWN
The method of execution in the country was changed from the firing squad to lethal injection in September 2011 when the government issued Decree 82/2011/NĐ-CP (link in Vietnamese). However, in 2013, Decree 47/2013/NĐ-CP (link in Vietnamese) was issued and effectively taking out the names of the lethal drugs previously stated in Decree 82 because Vietnam could not import them from the European Union due to an export ban.
The government, since then, has stopped providing the names of the drugs and how they are being used in executions although Vietnam has accepted the recommendations from New Zealand and Switzerland during its last Universal Periodic Review (UPR) cycle in 2014 to be more transparent on the death penalty issue.
3. The right to a fair trial is severely infringed with no effective legal representation
On August 28, 2018, the People’s Court in Ho Chi Minh City sentenced a 34-year-old South African man to death for drug trafficking. According to the indictment, in early June 2016, Tyron Coetzee was arrested at Tan Son Nhat International Airport in Ho Chi Minh city after the authorities found 1.46 kilogram of cocaine in his bag. The state assigned Coetzee an attorney, but the person did not speak English and could only meet with him once, on the day of his trial.
Testimonies from other families of death row inmates repeatedly stated that their attorneys often faced with obstacles when trying to meet with the prisoners.
In the case of farmer Dang Van Hien, both the trial and appellate courts failed to apply possible mitigating factors for extenuating circumstances, effectively affirming his death sentence in July 2018.
4. The UN Committee Against Torture (UN-CAT) raised concerns over the mistreatment of prisoners on death row in its initial report on Vietnam in 2018
In particular, the CAT Committee is concerned about the “reports of the physical and psychological suffering of persons sentenced to the death penalty as a result of their particularly harsh conditions of detention that may amount to torture or ill-treatment, including solitary confinement in unventilated cells; inadequate food and drink; being shackled round-the-clock; being subjected to physical abuse; and who often commit suicide and develop psychological disorders as a result.”
The Committee recommended that Vietnam allows visits of death-row inmates by international organizations, especially the International Committee of the Red Cross so that conditions of detention centers could be independently observed and monitored.
5. Vietnam continues to violate Article 6 of the International Covenant on Civil and Political Rights (ICCPR)
Vietnam currently imposed the death penalty on 18 offenses with more than half of them being non-violent crimes and drug-related offenses.
Article 6(2) of the ICCPR – which Vietnam has been a party since 1982 – states: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.”
There are, however, at least four offenses in the 2015 amended Penal Code carrying the death penalty in direct violation of Article 6 of the ICCPR:
- Attempting to overthrow the people’s administration (Article 109)
- Espionage (Article 110)
- Embezzling property (Article 353)
- Receiving bribes (Article 354)
Article 109 is the new version of Article 79 in the 1999 Penal Code, which has often been used against political dissident in the country, including entrepreneur Tran Huynh Duy Thuc and attorney Nguyen Van Dai.
Wrongfully Convicted Ho Duy Hai Languishes on Death Row
During these last days of 2017, be it rain or shine, people in Ha Noi, Vietnam, could often spot a frail, weary middle-aged woman holding up a sign “Do Not Kill My Innocent Son, Ho Duy Hai” near the government’s headquarters.
She is death-row inmate Ho Duy Hai’s mother, Nguyen Thi Loan.
Since Hai’s conviction in 2008, Ms. Loan has begun her own crusade to petition for his release. In the past few years, she especially traveled more often to Ha Noi where the central government is located to raise awareness of Hai’s case because time might be running out for him.
Ho Duy Hai’s execution was halted once in December 2014 due to public outcry, but recently, local authorities had expressed their impatience for having to continue keeping him on death row.
On December 7, 2017, at a meeting of the People’s Committee of Long An Province, Dinh Van Sang – Prosecutorial General of the People’s Procuracy of Long An Province had suggested that the execution of Ho Duy Hai should be carried out as soon as possible because “the imprisonment of this kind (of prisoners) would be too burdensome (for the government).”
It often goes without exception in the majority of jurisdiction, that one shall not be convicted based solely on his or her confessions.
The criminal law principle of corpus delicti requires a higher burden of evidence from the prosecution and provides that a defendant’s confession – on its own – is not enough for a conviction.
Having credible physical evidence from the prosecution then becomes the determining factor in convincing a jury or a judge, that the government has satisfied the burden of proof and that they have proved the defendant was, in fact, guilty of the crime charged.
Vietnam follows this general rule in prosecuting criminal cases.
Yet, such a rule only exists in law books and legal codes.
In practice, people not only got convicted solely on their confessions but very often, they confessed because they were beaten and tortured by the investigating officers.
Ho Duy Hai was one of them.
In March 2008, Hai – a then 23-year-old recent graduate from Long An Province located in the Mekong Delta south of Sai Gon – was arrested, charged and convicted of double homicide and sentenced to death.
The only evidence used to convict him was practically his confession, which he later recanted and revealed that he was forced to confess by the police during his detention.
The prosecution not only did not offer any credible physical evidence, they even committed basic prosecutorial mistakes.
The time of death was never established for the two victims, making it impossible for the defendant to come up with an alibi.
The murder weapons were “lost” by the forensic team and other items were later “purchased” a local market by witnesses who vouched for their similarities if compared to the real ones.
None of the fingerprints found at the crime scene matched Ho Duy Hai’s.
A special team of legal experts set up by the Vietnamese National Assembly and led by the current Commissioner of the National Assembly’s Judiciary Committee – Le Thi Nga – visited Hai in the end of December 2014 after his family successfully used social media campaign to halt his execution (which was set to be carried out earlier that month).
The report signed by Ms. Le Thi Nga in February 2015, found that Hai’s case was riddled with irregularities and prosecutorial mistakes and that the prosecution did not present sufficient evidence to support a conviction. It also called for a trial of cassation for Hai.
2018 will be three years since the government’s legal experts concluded that Hai’s case deserved a review and ten years since Hai’s life as a free man ceased to exist, yet it seems as if the legal obstacles have stacked even higher against him.
Hai remains in prison, his youthful years waste away with each day spent on death row.
With the assistance of a local artist, Thinh Nguyen, Ms. Loan and other parents of wrongfully convicted death-row inmates appeared in several video clips to raise public awareness on the reality of forced confessions and prosecutorial irregularities in Vietnam’s criminal cases.
And even though the videos are well-received, it seems as if these efforts are to no avail, at least for the time being.
His mother has also written thousands of petitions pleading the government to not kill her innocent son, and she would talk to anyone – be it the personnel from foreign embassies or just about any passerby on the streets – whoever would spare a few minutes listening to her telling the story of Hai’s wrongful conviction.
Her hope is that one day, not only the people will stop and listen to her, but so will government officials and that they will take up Hai’s case and declare him a free man.
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