Legal Briefing On Democracy Activist Pham Thi Doan Trang’s Arrest

Pham Thi Doan Trang, a leading democracy activist and a prominent Vietnamese journalist, was arrested on October 6, 2020 in Ho Chi Minh City by Vietnamese police.

Here is a legal briefing updated on the morning of October 9, Vietnam time.

What allegations has the Vietnamese government made against Pham Thi Doan Trang?

Doan Trang is charged with “conducting propaganda against the Socialist Republic of Vietnam” under Article 88 of the 1999 Penal Code, and “making, storing, spreading information, materials, items for the purpose of opposing the State of the Socialist Republic of Vietnam” under Article 117 of the 2015 Penal Code (revised in 2017).

This is a bit complicated. Why are they charging her with two crimes under two separate penal codes? Here is the context:

The 1999 Penal Code (revised in 2009) was replaced by the 2015 Penal Code. The 2015 Penal Code went into effect on January 1, 2018 after being revised in 2017.

The two crimes that Doan Trang is charged with are almost the same. Here is the text:

Article 88. Conducting propaganda against the Socialist Republic of Vietnam

1. Those who commit one of the following acts against the Socialist Republic of Vietnam shall be sentenced to between three and 12 years of imprisonment:

a) Propagating against, distorting and/or defaming the people’s administration;
b) Propagating psychological warfare and spreading fabricated news in order to foment confusion among the people;
c) Making, storing and/or circulating documents and/or cultural products with content against the Socialist Republic of Vietnam.

2. In the case of committing less serious crimes, the offenders shall be sentenced to between 10 and 20 years of imprisonment.

Article 117. Making, storing, spreading information, materials, items for the purpose of opposing the State of the Socialist Republic of Vietnam

1. Any person who for the purpose of opposing the State of the Socialist Republic of Vietnam commits any of the following acts shall face a penalty of five to 12 years’ imprisonment:

a) Making, storing, spreading information, materials, items that contains distorted information about the people’s government;
b) Making, storing, spreading information, materials, items that contain fabricated information that causes dismay among the people;
c) Making, storing, spreading information, materials, items to cause psychological warfare.

2. An extremely serious case of this offence shall carry a penalty of 10 to 20 years’ imprisonment.

3. Any person who makes preparation for the commitment of this criminal offence shall face a penalty of 1 to 5 years’ imprisonment.

What does this mean?

Here is the date you need to remember: January 1, 2018. That’s the day the new and current penal code took effect.

The only reason Doan Trang is charged with the same crime under both the old and current penal codes is that the government has been “investigating” her activities both before and from January 1, 2018.

Some people suspect that Doan Trang is linked to the Dong Tam case as she authored and distributed two Vietnamese-English reports on Dong Tam (in February and September 2020). Some others think her case is mainly about her role at the Liberal Publishing House, a samizdat publisher founded in February 2019. But the two charges suggest that the police take the case further than that.

What did Doan Trang do before 2018?

Her famous book titled “Politics for the Common People” was published in 2017, and there was a report on the environmental disaster in central Vietnam in 2016. She has been involved in international advocacy work since 2013 and she also played a role in the environmental protest movement in Ha Noi in 2015, as well as other activities

Who is in charge of the investigation?

The Investigation Bureau of the Ha Noi Police.

Although the arrest was jointly conducted by Ha Noi Police, the Ho Chi Minh City Police, and the Ministry of Public Security (MPS), the lead agency is the local government of Ha Noi.

According to the MPS website, the Investigation Bureau of the Ha Noi Police was the organization that opened the case and filed charges against Doan Trang. The People’s Procuracy of Ha Noi later approved these motions. It is unclear when the motions were filed and approved.

Where is Doan Trang now?

The latest information from the mainstream media is that Doan Trang has been transferred to Ha Noi. Ha Noi Police confirmed the information with the Tuoi Tre newspaper.

Where exactly is Doan Trang being detained? Her family told us that they were informed by Ha Noi Police in the evening of October 8 that she is being detained at Detention Center No. 1 (also known as the new Hoa Lo Prison) in Tu Liem district of Ha Noi.

How long is the pre-trial detention expected to be?

According to Article 173 of the Criminal Procedure Code, as the crime Doan Trang is charged with falls under either the very serious or extremely serious categories of both penal codes, the time limit for detention is four months, and can be extended once for three months.

However, if Doan Trang’s case is categorized as an extremely serious type, the procuracy can extend the detention twice, for four months each time.

The process may be prolonged due to requests for further investigation from the Procuracy or the provincial-level court of Ha Noi. In this case, it could become very complicated as with the case of blogger Nguyen Huu Vinh, who was detained for 22 months before going to trial.

When will Doan Trang be allowed to meet with attorneys and receive family visits?

It’s unclear whether or not Doan Trang will be allowed access to legal representation and to receive family visitation.

According to Article 74 of the Criminal Procedure Code, “the head of the Procuracy is authorized, when confidentiality of investigations into national security breach is vital, to sanction defense counsels’ engagement in legal proceedings after investigations end.”

Articles 88 and 117 fall under the national security chapter of the Penal Code, and therefore access to lawyers is not guaranteed. Even if a lawyer is granted permission to assist Doan Trang, his or her access to the accused, in practice, is not always guaranteed.

Family visitation, according to Article 22 of the Law on Temporary Detention and Custody, depends on the decision of the head of the detention facility. If the investigative agency requests the detention facility not allow the detainee to meet with relatives, the facility head may accept the request, and Doan Trang will not be able to see her family before trial. It’s highly unlikely the facility head would reject such a request by the police.

Here is what the law says:

Article 22. Meetings with relatives, defense counsels and consular access of persons held in custody or temporary detention

[…]
4. The head of a detention facility may not allow a visitor to meet a person held in custody or temporary detention in the following cases, for which he/she shall clearly state the reason:

a. The visitor, who is a relative of the person held in custody or temporary detention, fails to produce his/her personal identity papers or papers proving his/her relationship with such person, or the case-settling agency has requested in writing the detention facility not to let such person meet with his/her relatives for the reason that such a meeting may seriously affect the settlement of the case; the visitor, who is a defense counsel, fails to produce his/her personal identity paper or paper on the defense for the person held in custody or temporary detention;
[…]

If visitation is granted, Doan Trang’s family can visit her once a month, with each visit lasting no longer than one hour.

What’s next?

We don’t know when the investigation will be completed or when Doan Trang will be presented before the court. However, here is what we can expect:

• The People’s Procuracy of Ha Noi will issue an indictment prosecuting Doan Trang.
• The trial will be conducted by the People’s Court of Ha Noi, a provincial-level court.
• After the trial, if Doan Trang appeals, the case will go up to the People’s High Court in Ha Noi, a tribunal higher than provincial level and lower than the supreme level. Usually, political cases stop after the appellate.
• There is no chance that the case will be brought to the People’s Supreme Court, the highest tribunal of the land, as it requires motions filed by either the prosecutor general or the chief justice, both controlled by the very ruling Communist Party that wants to silence critics to protect their monopoly.

Contact Trinh Huu Long: long.trinh@liv.ngo.