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DONG TAM INCIDENT

REPORT

Analyzing the Dong Tam case in Human rights context and under

International conventions on Human rights

2020

Human Rights Information Center

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Table of Contents

Preface

........................................................................................................................... 3

I - Background of the Dong Tam issue

........................................................................... 5

1. Causes.............................................................................................................................

2. The 09/01/2020 attack

....................................................................................................... 13

3. The aftermaths and victims

............................................................................................... 14

4. The follow-up after the incident

........................................................................................ 16

II - Case analysis in accordance with domestic and international human rights law

.....19

1. Relevant legal issues

.......................................................................................................... 19

2. Human rights violations

.................................................................................................... 21

2.1. Right to life

........................................................................................................................... 21

2.2. Inviolability of residence

...................................................................................................... 24

2.3. Freedom from torture or cruel, inhuman or degrading treatment or punishment

........... 26

2.4. Right to fair trial...................................................................................................................

2.5. The right to a remedy and reparation..................................................................................

Conclusion

.....................................................................................................................40

Appendix

.......................................................................................................................42

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Preface

Land is a valuable resource for any nation. For developing countries like

Vietnam, it is also a great resource for development. However, in the transition to the

market economy, land issues have

gradually become “out of control”

due to outdated

laws and policies, which are heavily political-oriented. As a result, land becomes a

“fertile realm”

for officials and leaders corrupting in power, and profiting in many

forms, from blatant to sophisticated.

The 1987 Land Law, which was issued in 1988 and enforced in the

Doi Moi

period, regulated that "Land is the property of the peoples and uniformly managed by

the State". In 2003, the National Assembly of Vietnam issued the new Land Law which

revised to: "Land belongs to the entire people and the State

is the owner’s

representative." This regulation was extended by the National Assembly a little longer

in the revised Land Law,

enacted at the end of 2013: “Land

belongs to the entire people

with the State acting as the

owner’s representative

and uniformly managed land. The

State shall hand over land use rights to land users in accordance with this Law”.

"All people’s ownership" is not a concept from the classics of Marxism-

Leninism, it was introduced from the centralized economic model of the Soviet Union

in the 1930s. The Constitution 1946 of Vietnam did not mention this concept. The new

Constitution 1959 stated that "all mineral resources and waters and all forests,

undeveloped land, and other resources defined by law as belonging to the state are the

property of the whole people", which meant that all

people’s ownership was the state’s

ownership. It was not until the 1980 Constitution that land was declared to belong to

the people.

In the process of transforming to the market economy, private property rights

appeared more frequently, hiding behind the increasingly vague concept of 'ownership

of all people'. The State is the sole representative of the owner, but could not directly

use and exploit hundreds of millions of land-plots in the whole nation. Therefore, since

1993, the Vietnam government has been forced to give more rights to individuals and

organizations that were currently using these “all people's” plots. These legal entities

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do not hold absolute private ownership on paper, but through each amendment to the

Land Law, they are grabbing more and more property rights attached to land.

This conflict is deepened when the state shows discriminations on land-use

rights, when allocating or leasing land to different entities. State intervenes forcefully

on the land-use rights of farmers and individuals, while decentralizing its rights over

land-plots

granted to legal entities... These are legal “defects” that create an

“environment” for policy corruption and de facto appropriation, which build up the

institutional uncertainty as outlined above.

Over the years, there have been many land disputes between people and

enterprises, and the state is always on the side of enterprises, like what happened in the

disputes in Van Giang, Duong Noi, Thu Thiem, Hung Loc garden. Recently, a land

dispute burst out at the beginning of 2020 in Dong Tam commune and resulted in 4

deaths (one Dong Tam resident and three police officers). The dispute shocked the

public; the investigation, prosecution and adjudication of the case are closely monitored

by domestic and foreign observers.

Dong Tam is a very complicated case, but during the trial process, the tribunal

repeatedly rejected many recommendations and requests of the defense lawyer to clarify

the nature of the case and avoid causing injustice and wrong conviction. Even during

the investigation, there were also signs of harassment, torture, violation of due process

and the rights of detainees. The Dong Tam case is one of the tragedies about land rights

disputes between farmers and enterprises, it is also a typical case in which the state turns

a civil case into criminal.

In the light of human rights law and international conventions to which Vietnam

is a party, Dong Tam is a case worth deeply analyzed. Therefore, the Human Rights

Information Center would like to represent a report on the Dong Tam case that we

conducted.

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I - Background of the Dong Tam issue

Causes

In the general context of Vietnam, the underlying reason for the event rooted in

the land policy, which generated conflicts of interests between the government and its

people. In the case of Dong Tam issue, villagers have been frustrated and repeatedly

complained and reported to competent authorities about the corruption of local officials.

Land-use dispute was also the direct cause of a range of issues in Dong Tam from 2014.

Indeed, the dispute came from the differences of opinion of villagers and the authority

about the land area for national defense purposes and for agricultural purposes.

14/04/1980,

Vietnam’s Prime Minister issued Decision

no. 113/TTg on

granting 208 hectares of land for the construction of Mieu Mon military airport,

acquiring all agricultural land in Senh Field area for this project. On

10/11/1981,

the

People’s Committee of Ha

Son Binh province (now is Hanoi city) issued Decision no.

386 QD/UB on the first phase of land acquiring. According to this decision, 47.36ha of

land in the east area of Send Field was taken for national defense purposes, and Dong

Tam Co-operative was compensated 150,312 VND. This area was then marked with

numbered milestones and was put under the management of Brigade 28 of the Military

Air Force.

However, the Mieu Mon airport project was not implemented as planned. The

People's Committee of Dong Tam commune, therefore, tactically approved to change

the land-use purpose of the remaining area by letting the villagers cultivate and habitat

on it. Brigade 28 also leased the 47.36ha area which was handed over for national

defense purposes to farmers to cultivate.

In 2014,

the People's Committee of Hanoi re-measured the land area in the Mieu

Mon airport project and made a decision to hand over 236.7 hectares of land to the Air

Force for stationing, the land area increased 28.7 ha compared to the area stated in

Decision No. 113 / TTg 1980. Disputes arose because villagers thought that the

increased area was agricultural land. When information about the land acquisition

leaked in 2014, residents of Dong Tam commune filed a complaint with the unit in

charge of the construction of Mieu Mon airport, the Air Force. This unit proposed the

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villagers to settle the dispute with the civil agencies of Hanoi city. This response showed

that the military has recognized Senh Field as "civilian land".

27/03/2015,

the Ministry of Defense issued a decision, which withdrew 50.03

hectares under the management of the Air Force and assigned it to the Military Telecom

Corporation (Viettel) for constructing national defense infrastructure A1. The villagers

believed that 46ha of the acquired land was agricultural land of Dong Tam commune

and that people should be compensated satisfactorily at the market price. The authority

disagreed with this opinion and insisted that this was state-own land.

Land dispute between the villagers and the government has escalated from

November 2016

when the People's Committee of My Duc District marked the land

outside the area 47, 36ha acquired since 1981 by reflective cord and a signboard

"Prohibited Area - Military Area". When Viettel started constructing on this land at the

beginning of 2017, villagers prevented it by pulling up the "military area" signboard

and bringing in agricultural machinery and materials for farming.

The conflict reached its peak on

15/04/2017,

when the authority arrested 4

villagers to investigate the case of Disrupting public order related to land clearance in

Dong Tam commune. Mr. Le Dinh Kinh, an elderly man with a voice in the community,

was also arrested and had his leg broken in this arrest.

The people of Dong Tam were

outraged at the arrest and, in return, arrested 38 officials and policemen who were

dispatched in the case, detaining them at the village cultural house for 7 days. This

action was to put pressure on the authority in order to release the 4 arrested people,

engage in dialogue, and resolve urgent land issues.

22/04/2017,

Mayor of Hanoi Nguyen Duc Chung went to Dong Tam for a

dialogue with the people. Mr. Chung hand wrote a pledge, making 3 promises:

- Investigating and clarifying the origin and zone of the Mieu Mon airport land

area

- No criminal prosecution against any people in Dong Tam commune in this

incident

Mr. Le Dinh Kinh was born in 1936, was a member of the Communist Party, used to hold

the position of Chairman of the People's Committee in Dong Tam Commune. At the time of

arbitrary arrest and injury, Mr. Kinh was 81 years old.

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- Investigating, verifying, and holding to account those who were responsible for

the arbitrary arrest and injury of Mr. Le Dinh Kinh.

The view of villagers

In many years, villagers in Dong Tam commune were frustrated with the

wrongdoing in land-use management committed by local officials and sent many

denunciations to the competent authorities. By 2013, some people in Dong Tam

commune formed a group to fight for land rights of all people in the commune, the

group was called the Consensus team with Mr. Le Dinh Kinh (Former Chairman of

Dong Tam Commune People's Committee) as the representative. The establishment of

such a group was consistent with the right of association recognized in the 2013

Constitution.

The work of the Consensus team has also achieved some results when

bringing local corrupting officials to the court.

Arguments of Dong Tam villagers about the land dispute:

- Only the first phase of the land acquisition for the Mieu Mon airport project

was just implemented, the people already handed over 47.36ha and received

compensation in 1981. Villagers called this acquired area as the Eastern part of Senh

Field and recognized as a land of national defense. From 1981 up till now, the

government has not issued any decisions to take the remaining area with a compensation

plan for people, so the disputed 46 ha area (the west of Senh Field) is still agricultural

land, despite being part of the national defense project. Hence this area must be

compensated at market prices.

- 28.7ha increased area between the measuring in 1981 and 2014 is agricultural

land.

- In 2014, when preparing to clear the area, the local government had a plan to

compensate and resettle 14 households living in the 47.36 ha area (the area has been

Art. 25 Vietnam Constitution 2013

The Government Inspectorate admitted that land-use disputes were long-term and

frustrated issues in Dong Tam (see more at:

https://thanhtra.com.vn/thanh-tra/hoat-dong-

nganh/Thanh-tra-Chinh-phu-va-TP-Ha-Noi-doi-thoai-voi-cong-dan-xa-Dong-Tam-

157101.html

)

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handed over to the army units since 1981). This indirectly acknowledges the status of

the land is not land of defense.

- The military units did not have any action to resolve land disputes with the

people. When villagers complained to the Air Force (in charge of Mieu Mon airport

project), this unit suggested they contact the city authority. If the disputed area is state-

own land for national defense, military units must be the party settling the dispute with

the people.

Regarding the event on 15/04/2017, the authority is accused of arbitrary arrest

when inviting representatives of the complainings to the disputed land area for jointly

measuring and defining the boundary between defense land and agricultural land, and

then arresting these four agents without any arrest warrants. The arbitrary arrest led to

violence and injuries for Mr. Le Dinh Kinh. People in Dong Tam commune then

detained 38 people, including officials and police officers, to put pressure on the

authorities to release those arrested.

Picture 1. Senh Field area from Google map. The Mieu Mon airport is on the

top

–

right of the field. (Source: BBC News Vietnamese)

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Picture 2.. Senh Field map and the dispute area. (Source: BBC News

Vietnamese)

The view of the authority

Under pressure from the people of Dong Tam, the council of Hanoi organized

an inspection on the land-use at Mieu Mon airport. Hanoi Inspectorate conclusions

made in

July 2017

confirmed:

- The entire land area of Mieu Mon airport in the administrative border of Dong

Tam commune is state-own land for national defense purposes. There is no area of Senh

Field that is agricultural land as Mr. Le Dinh Kinh or some of the people claimed in the

complaint and denunciation letter.

- The difference of 28.7 ha between 1980 and 2014 measuring data is part of the

planning phase II and was handed over at that time to a military unit that was in charge

of constructing infrastructure.

Conclusion no. 2346/KL-TTTP-P5 issued on 19/07/2017 of Hanoi Inspectorate on the

management, using Mieu Mon

airport’s la d, see ore at:

https://nhandan.com.vn/thoi-su-phap-luat/ha-noi-cong-bo-ket-luan-thanh-tra-toan-dien-

khu-dat-san-bay-mieu-mon-299107/

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- After receiving the handover of 28.7ha of land, the military units failed to report

to the Ministry of Defense and the Government, these military units are also accounted

for loose management of the land, allowing people to live and claim land tenure on

state-own areas.

- The compensation plan for 14 households living in the site clearance area

approved by the government is legally according to the authority’s

competent

and due

process but lacks examining and is not suitable. This compensation plan has been

withdrawn at the time of inspection.

The Government Inspectorate agreed and reaffirmed the above opinion on

25/04/2017 in Notice no. 611/TB-TTCP

on the review and verification of the accuracy

and legality of Conclusion 2346 of Hanoi Inspectorate. This announcement concludes

"the petition of Mr. Le Dinh Kinh is not grounded, there is no basis" and the

government's issuance of decisions to allocate land in this area to the military unit for

continuing stationing is "competent, in accordance with the provisions of the law".

On 27/08/2019, the authorities released a map during a conference with press

agencies on the inspectorate’s conclusions about the Mieu Mon airport land.

This map

shows the scope of Mieu Mon airport land management, which was created in 1992,

with the signature of the leaders of the People's Committees of the communes allocating

land to the military unit. When being asked why only now the authority publicly

announced the map, the Mayor of Hanoi said it was necessary to display it so that people

could understand the map in this area. However, the authenticity of this map is still

questioned.

Notice no. 611/TB-TTCP of the Government Inspectorate, see at:

http://www.thanhtra.gov.vn/ct/news/Lists/KetLuanThanhTra/View_Detail.aspx?ItemID=11

Vietnam Finance, Hanoi suddenly releases map of Mieu Mon airport in Dong Tam, see at:

https://vietnamfinance.vn/ha-noi-bat-ngo-cong-bo-ban-do-san-bay-mieu-mon-o-dong-tam-

20180504224228127.htm

RFA, The map of Dong Tam commune: Questioned the authenticity , see at:

https://www.rfa.org/vietnamese/in_depth/hanoi-suddenly-published-a-map-of-mieu-mon-

airport-in-dong-tam-08282019140830.html

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Picture 3. The map indicates the land management in Mieu Mon airport project

with signatures of representatives of allocating communes from 1992.

(Source: Vietnam Finance)

Efforts to resolve disagreements:

13/06/2017,

the Hanoi police decided to prosecute the investigation of the

arrest of 38 hostages in Hoanh village, Dong Tam commune, My Duc district, Hanoi

on 15/04/2017, to clarify acts of illegally arresting people under Article 123 and acts of

destroying or intentionally damaging property under Article 143 of the Vietnamese

Penal Code. This prosecution is against the promise made by the Mayor of Hanoi on

22/04/2017. It should be noted that the arrest of 38 hostages in Hoanh village, Dong

Tam commune took place while people were frustrated by the arbitrary beatings and

arrest of Mr. Le Dinh Kinh by some officials, and feared that the police force would

suppress them in the same way. During 7 days of detention at the village cultural house,

38 hostages were not subjected to any torture, inhumane treatment, and were provided

adequate food, water, and other essential needs.

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07/07/2017,

the Hanoi authority held a meeting to announce a draft

conclusion of the Hanoi Inspectorate on the Mieu Mon airport land issue. During this

announcement, Dong Tam people opposed the inspection's conclusion that there was

no agricultural land in Senh Field area. The people believe that their land at Senh Field

is a legacy inherited from their ancestors. Mr. Nguyen Van Tuan Dung, Chief Inspector

of Hanoi, argued that land was owned by all people, and all Vietnamese people shared

the same ancestral origins, so there was no concept of private land or

ancestor’s

land.

Hanoi Mayor Nguyen Duc Chung also stated that a part of Dong Tam people did not

fully understand the land issue, so some others took advantage of it, provoking greed to

make a profit, villagers needed to be awake. According to Mr. Chung, defense land is a

national top-secret issue. It is up to each level of government to access a certain amount

of information, so there is no obligation to provide information to anyone else.

17/08/2017,

the Investigation Department of the Ministry of Defense sent a

summons to Mr. Le Dinh Kinh to summon him to its headquarter on 23/08/2017. Mr.

Kinh was unable to go because his injured leg was not recovered.

15/04/2019,

Dong Tam people sent a letter to the 7th Conference of the

Central Communist Party of Vietnam (Session XII) . This letter did not receive any

response. In an interview with the BBC Vietnamese in May 2019, Mr. Le Dinh Cong,

Dong Tam residents, shared that they had sent a total of 15 complaint letters to the

President of Vietnam, the Prime Minister, and the President of the National Assembly,

but had not received any replies.

31/05/2019

at a National Assembly meeting, National Assembly member

Duong Trung Quoc urged the authorities to discuss and settle the dispute satisfactorily.

25/11/2019,

the government held a dialogue conference with people in the

areas adjacent to Mieu Mon airport area to announce the conclusion of the Government

Inspectorate. Mr. Le Dinh Kinh did not attend this meeting.

During this time, Dong Tam land issue also received a lot of attention from the

public. Some lawyers also set up a support group, giving legal advice to people in

drafting complaint letters. The case also received the attention of some members of the

National Assembly such as Mr. Duong Trung Quoc, who urged the government for

peaceful dialogue and resolution with questions and frustrations of Dong Tam people.

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In spite of all the efforts listed above, the dialogue between the people and the authority

has never ever really happened.

2. The 09/01/2020 attack

Around 1:00 am - 5:00 am on 09/01/2020, the police force carried out a coercive

campaign with the participation of thousands of armed police into Hoanh village, Dong

Tam commune, My Duc district, Hanoi. The attack took place on the Full Moon day of

December in the lunar calendar, approaching the Lunar New Year.

Immediately after the attack, the electronic page of the Ministry of Public

Security (MPS) announced the incident as below:

“From

December 31th 2016, a number of units of the Ministry of Defense

coordinated with the other forces to build a barrier protecting Mieu Mon airport, Hanoi

as planned. During the construction, on the morning of January 9th 2020, there were

acts of protest, the attackers used grenades, petrol bombs, knives, etc. against the

functional forces, resisted against those on public duties, disturbed public order,

resulting in the deaths of 3 police officers, 1 death of the protestor, and 1 injured. The

functional units have controlled and arrested serious law-violators, prosecuted the

case, prosecuted the accused, and handled in accordance with the law. Currently,

relating units are building the fence of Mieu Mon airport as planned.”

According to the above announcement, the enforcement of the arrest on

09/01/2020 was an unforeseen event, in which the competent forces were forced to

suppress the attack and harassment of some citizens.

However, before the attack happened, several human rights activists had shared

warnings allegedly leaked from an official at the Government Office that there would

be an attack on Dong Tam before the Lunar New Year. The Conclusion of the

investigation and prosecution by Hanoi police also mentioned the agreement between

the Hanoi police and other forces to ensure security and order in Dong Tam commune

was deployed in the morning of January 9th.

Tuoi Tre online paper cited the announcement of the Ministry of Public Security on

09/01/2020, see at: :

https://tuoitre.vn/bo-cong-an-thong-tin-ve-tinh-hinh-o-xa-dong-tam-

20200109083527395.htm

The Investigation conclusion no.

/KLĐT-PC (Đ

), page 7.

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The attack as told by "an anonymous resident" in Dong Tam commune to the

BBC News Vietnamese was as follows

- At 3:00 am January 9th, officials in police uniform brought sticks, clubs, guns,

and shields to the village. They threw flares, fired tear gas bullets, blocked all the alleys

into Mr. Kinh's house, then broke in and beat women and the elderly in bruises.

- Some villagers resisted against the police force with bricks and petrol bombs,

but "pointless" because "they are too crowded and armed".

- The house of Mr. Le Dinh Kinh and Mr. Le Dinh Cong was blasted, causing

the wall to collapse, damaging the house. Mr. Le Dinh Cong's son was shot and broke

his arm, and Mr. Cong's son and his wife were later arrested with their two kids. The

witness also said that the electricity was not cut, but the internet was completely cut off.

Lawyer Ngo Anh Tuan, who defended the rights of Dong Tam people, said he

could not enter the Dong Tam residential area because he was stopped by the police,

who demanded permission from the Director of Hanoi police force for entering.

3. The aftermaths and victims

The authority:

The Ministry of Public Security reported that 3 policemen killed in the clash

were:

- Nguyen Huy Thinh (1972): Deputy Commander of the Regiment, Mobilizing

Police Regiment of Hanoi.

- Pham Cong Huy (1993): Officer of the Fire and Rescue Team No. 3 of Hanoi

police

- Duong Duc Hoang Quan (1992): Platoon Commander, Mobilizing Police

Regiment of Hanoi.

The bodies of 3 officials were found with many parts burned unrecognizably.

Investigators and prosecutors concluded that these three soldiers were burned alive by

petrol by the opposing group.

See the interview at

https://www.bbc.com/vietnamese/vietnam-51043856

See more at:

https://www.rfa.org/vietnamese/in_depth/forceful-eviction-at-night-is-law-

violation-01092020100909.html

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The villagers:

Fatality and injury:

Mr. Le Dinh Kinh (1936) was shot and killed at his home. The police argued that

Mr. Dinh was about to throw grenades to attack the functional forces, this was a

dangerous act and should be destroyed. When collapsing, Mr. Kinh's hand was still

holding a grenade. However, according to the testimony of Ms. Du Thi Thanh

–

Mr.

Kinh’s wife,

and Mr. Bui Viet Hieu, when Mr. Kinh was shot, he did not take any acts

of protest and he was shot directly at a close range. Mr. Kinh's body was taken for

autopsy right after.

Mr. Bui Viet Hieu (1943) injured his leg and suffered from 3 holes in the

duodenum, 2 holes in the colon. The police did not give conclusions about where Mr.

Hieu's wound came from, but Mr. Hieu told the lawyer that the injuries were caused by

bullets and that he was shot after Mr. Kinh.

Mr. Le Dinh Chuc (1980, son of Mr. Le Dinh Kinh) was shot and injured in the

head.

Those arrested and charged:

The Hanoi Procuracy proposed to prosecute 6 defendants with murdering, of

which Le Dinh Cong and Le Dinh Chuc were proposed to death, the other 4 were

proposed from 14 to 18 years in prison or life sentences. The remaining 23 defendants

were accused of resisting those on public duty and proposed, ranging from suspended

sentences to 4-5 years in prison.

On 14/09 2020, the People Court of Hanoi issued the verdict on 29 defendants.

The court stated that Le Dinh Cong and Le Dinh Chuc were the masterminds and held

main responsibility for the murder case, four other defendants were also sentenced for

murder. To be specific:

1. Le Dinh Cong (male, 56 years old, son of Mr. Kinh): Death penalty for

murdering

2. Le Dinh Chuc (male, 40 years old, son of Mr. Kinh): Death penalty for

murdering

3. Le Dinh Doanh (male, 32 years old, grandson of Mr. Kinh): Life sentence for

murdering

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4. Bui Viet Hieu (male, 77 years old,): 16 years in prison for murdering

5. Nguyen Van Tuyen (male, 46 years old,): 12 years imprisonment for

murdering

6. Nguyen Quoc Tien (male, 40 years old): 13 years imprisonment for murdering

The remaining 23 defendants received sentences, ranging from 15 months of

probation to 6 years imprisonment on charges resisting officers on duty.

4. The follow-up after the incident

09/01

Investigation agency of Hanoi Police issued a decision on prosecuting a

criminal case of Murder; Illegally storing, using and selling military

weapons; Resisting those on public duty happened in Hoanh village.

State-run media simultaneously reported about the Dong Tam incident

based on the information of the Ministry of Public Security

10/01

The President of Vietnam signed the decision to entitle First Class Victory

medal and Martyrs title to the three officers killed in the attack

11/01

Luat Khoa, an independent journal, sent a letter to interrogate Minister of

Public Security To Lam about the attack in Dong Tam.

13/01

Hanoi Police issued a decision to prosecute "a particularly serious crime

that happened in Dong Tam commune", and at the same time decided to

prosecute and detain people involved in the case.

VTV's News Program at 7 p.m. broadcasted clips of some arrested with

bruises and scratches on their faces confessing their crimes.

14/01

Press conference of the Ministry of Public Security about Dong Tam event

on January 9.

See more at:

https://plo.vn/thoi-su/bo-cong-an-thong-tin-chi-tiet-ve-vu-dong-tam-

883694.html

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16/01

Mr. Chris Hayes, Representative of Australia, condemned the Vietnamese

government in the Dong Tam case while calling the Australian

government - as a member of the United Nations Human Rights Council

- to request an urgent and transparent investigation about this incident.

21/01

Mr. Nguyen Quang A and a number of others filed a criminal denunciation

related to the attack in Hoanh village, Dong Tam commune to the Hanoi

Procuracy. The denunciation petition requires prosecution of the murder

case of Mr. Le Dinh Kinh.

January 2020

Human Rights Watch called on the European Union to speak up about the

Dong Tam incident in a submission to the EU in preparation for the EU-

Vietnam Human Rights Dialogue

03/03

Ms. Du Thi Thanh filed a criminal denunciation to the MPS investigation

agency and Minister of MPS To Lam, about the murder case of her

husband, Mr. Le Dinh Kinh on January 9

2020.

05/06

The police investigation agency announced the Investigating conclusion

no.

210/KLĐT-PC01 (Đ3) of the criminal case and proposes prosecution

the case with murder and Resisting those on public duty, which happened

on January 9

, 2020

24/06

The Hanoi People's Procuracy issued Indictment of Prosecution No.

241/CT-VKS-P2 which prosecuted 29 suspects for Murder and Resisting

those on public duty

07/09

The first instance court on the murder and resisting those on public duty

began.

BBC Vietnamese article:

https://www.bbc.com/vietnamese/vietnam-51145237

See the Report at:

https://www.hrw.org/vi/news/2020/02/10/338757

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09/09

During the session, the defense lawyers requested to investigate, clarify

the death of Mr. Le Dinh Kinh and prosecute those who accounted for the

death of Mr. Le Dinh Kinh.

14/09

The People’s Court of Hanoi sentenced 6 defendants for murder, with 2

death penalties, 1 life sentence, 3 imprisonment sentences ranging from

12 to 16 years. The rest 23 defendants received sentences for Resisting

those on public duty, which ranged from

15 months’ probation to

6 years

in prison.

The defense of Lawyer Nguyen Van Mieng at the hearing session on 09/09 according to

the note of Lawyer Ngo Tuan Anh:

https://www.facebook.com/permalink.php?story_fbid=10217450437044071&id=15697595

The defense of Lawyer Le Van Hoa

https://www.facebook.com/levanhoa256/posts/2718819101696474

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II - Case analysis in accordance with domestic and international human

rights law

1. Relevant legal issues

To evaluate the incident in a relatively comprehensive and objective way, this

report is conducted according to the progress of the case and relevant legal aspects, and

in accordance with domestic regulations and international human rights framework.

1.1. Domestic regulations

The domestic legal framework is the first basis to be considered and analyzed in

any case. In the Dong Tam case, these domestic legal regulations played a similarly

important role.

•

Constitution 2013: Specifically: Articles 14, 19, 20, 22, 31

•

Land Law 2013

Article 4. Land ownership

Article 5. Land users

Article 69. Order and procedures for land recovery for defense and

security purposes; socio-economic development for the national and public

interests

•

Law on The use of Weapons, Explosive and Supporting Tools 2017

Article 22. Principles of using military weapons

•

Criminal Code

Article 22. Justified defense

Article 23. Urgent situation

•

Criminal Procedure Code

Article 10. Sustainment of bodily integrity

Article 12. Alimentation of inviolability of residence, privacy,

personal secrecy, family secrets, safety and confidentiality of personal mail,

telephone and telegraph

Article 25. Timely, just and public trial

Article 26. Assurance of oral arguments in adjudication process

Article 59. Temporary detainees

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1.2

Article 60. Suspects

Article 61. Defendants

International human rights regulations

Universal Declaration of Human Rights: Article 5, Article 6, Article 7, Article

8, Article 9, Article 10

International Covenant on Political and Civil Rights: Article 7, Article 10

Convention Against Torture, and Other Cruel, Inhuman or Degrading

Punishments or Treatment: Article 1, Article 12, Article 15

Human rights in the Administration of justice

UN Standard minimum rules for the treatment of prisoners: Article 31, Article

32, Article 37, Article 39, Article 44

Principles of effective investigation and documentation of torture and other

cruel, inhuman, or degrading treatment or punishment: Article 3, Article 4

Basic principles of the use of force and firearms by law enforcement officers:

Article 4, Article 5, Article 10

Basic principles on the independence of the Judiciary (1985): Article 2, Article

4, Article 5

Basic principles on the role of lawyers (1990): Article 1, Article 6, Article 7,

Article 8, Article 16

Basic principles and guidelines on the right to a remedy and reparation for

victims of gross violations of international human rights and serious violations

of international humanitarian law (2006): Article 15

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2. Human rights violations

2.1. Right to life

•

The Universal Declaration of Human Rights 1948 (UDHR)

Art. 3: “Everyone

has the right to life, liberty and security of person”.

International Convenant on Political and Civil rights (ICCPR)

Art. 6 para 1: “Every human being has the inherent right to life. This right

shall be protected by law. No one shall be arbitrarily deprived of his life”

•

Vietnam Contistution 2013:

Art.

19: “Everyone has the right to live. Human life is protected by the law. No

one shall be illegally deprived of his or her life ...”

The right to life is one of the most important rights of every single person. The

scope of this right also contains many other specific rights, such as the right not to be

subjected to brutal torture, punishment, or inhumane treatment, the right to be protected

from arbitrary arrest. Vietnamese law also recognizes this right and has specific

provisions on ensuring the right to live in the Constitution and related laws. However,

the authority seemed to have forgotten while resolving the Dong Tam case.

Up till when the first instance court issued the verdict on this case, there is still

a question mark on the death of Mr. Le Dinh Kinh. Although the causes and situation

of when Mr. Kinh was killed were described quite clearly in the Indictment of

Prosecution, there are too many contradictions that raise doubts about the hidden truth.

According to the indictment, the police force on duty was attacked by Dong Tam

villagers, and they have no other choice but to take control over the violent group and

arrest Mr. Kinh family members. The investigation conclusion of Hanoi police and the

indictment both stated that the police shot intentionally since Mr. Kinh had dangerous

resisting action. Those conclusions do not clearly clarify

why Mr. Kinh’s behavior was

considered to be severely dangerous and why shooting Mr. Kinh was an appropriate

action in that situation. A citizen, being in his own house, not committing any act of

crime, was seized and attacked by armed police from 1 a.m to 6 a.m. This is clearly a

grave violation of human rights. Even if Mr. Kinh had committed any crimes, he could

only have been arrested in the morning in compliance with the legal process. The

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incident in Dong Tam, however, happened in another way; thousands of armed police

officers burst into the small village, broke into Mr. Kinh’s house, and shot the

him to

death.

The indictment showed that Mr. Kinh was shot two times from the behind and

from the distance of about 2 to 2.5 meters. Mr. Bui Viet Hieu (also a convicted in this

case) gave testimony that Mr. Kinh had been shot from the front. Mr. Hieu is considered

to be the only resident on the scene who witnessed Mr. Kinh death at a close distance

–

around 1 meter. The autopsy descriptions showed that there were 2 small, clear and

round-shaped

wounds on the frontal of Mr. Kinh’s body, the

wounds at the back were

also round-shaped but larger, and the edge of the wounds was ragged. It can be drawn

from the autopsy that bullets were shot at the frontal, from front to the back and the

bullets were an explosive type since the bullet holes at the back were larger than at the

front. The assumption that the bullets were explosive ones also coincided with the

testimony of Mr. Hieu about his wounds that he was shot and the bullet exploded after

hitting his side, causing him 5 holes in the duodenum and colon. Mr. Hieu’s testimony

has a basis to confirm its trustworthiness. And this raised even more doubts about the

death of Mr. Kinh.

According to the police, before being shot, Mr. Kinh was holding a grenade and

threatening to throw it at the police. Setting aside the questions about the origin of the

grenade, it is unconvincing that an 84-year old man with difficulty in moving (since one

of his legs was broken in a clash with the authority from April 2017) could use any type

of arms, especially a grenade, to threaten full-armed police force. This is a remarkable

point. Let’s assume that every detail announced by the police is true, there will be an

over-reacting and discrimination between Mr. Kinh and other villagers involved in the

incident. Mr. Kinh was not the only one who had and used grenades. The prosecutors

convicted that at least 2 other people threw grenades toward the policemen. These 2

men were said to have aggressive actions such as using grenades, petrol, knives, etc.;

and they were caught alive and arrested, while a much older man, with definitely lower

risk, was treated in a more brutal manner.

According to Ms. Du Thi Thanh (Mr. Kinh’s wife), her children and

grandchildren were taken away in front of her, she was then also taken away. Before

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being taken away, Ms. Thanh confirmed that her husband was still alive. Thus, Mr.

Hieu was the only resident being at the time and place where Mr. Kinh was shot and

killed, apart from professionally trained and fully-equipped police officers. In such a

situation, killing Mr. Kinh was unjust and unnecessary. His right to life was violated

brutally and grossly on 09/01/2020.

Another person who was shot after Mr. Kinh was Mr. Hui Viet Hieu, which not

mentioned in the indictment. In a meeting with lawyers at the detention center, Mr. Hieu

said that he was shot 2 times after Mr. Kinh, 1 in the leg and the other hit his chest. The

bullets were aimed at the heart but actually deviated from the side, causing him 3 holes

in the duodenum, 2 in the colon. After being shot, Mr. Hieu was left alone until noon

of 09/01/2020. That he was still alive was unexpected by the shooter. Mr. Hieu also

stated that he was hiding when being shot. There was no sign that Mr. Hieu was

dangerous and needed to be eliminated as what the police claimed about Mr. Kinh. If

Mr. Hieu was considered to be severely dangerous and needed to be eliminated, the

police should have taken his body away as what

they did to Mr. Kinh’s body. In case

Mr. Hieu was hit by a stray bullet, the police should have provided first aid immediately.

Mr. Hieu did not receive any medical treatment until 11 a.m. that day, when he fell into

a coma and his heart stopped, though the conflict ended 5 hours early (according to the

information from the Ministry

of Public Security). Mr. Hieu’s life was not taken, but

the fact that he did not receive appropriate medical treatment also violates the right to

life. Moreover, abandon a man with serious injuries only for 5 hours constitutes an act

of cruel torture, inhumane treatment

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2.2. Inviolability of residence

Vietnam Constitution 2013

Art. 22 paras. 2 and 3:

“

Everyone is entitled to the inviolability of his or her domicile.

No one is allowed to enter the domicile of another person without his or her consent.

Domiciliary searches shall be provided by the statute

”.

•

Criminal code 2015

Article 158. Home infringement

“1.

Any person who commits any of the following acts shall face a penalty of up to 02

years' community sentence or 03 - 24 months' imprisonment: a

d) Breaking in another person's home without the consent of its owner or manager.

2. This offence committed in any of the following cases shall carry a penalty of 01 - 05

years' imprisonment:

a) The offence is committed by an organized group;

b) The offence involves abuse of the offender's her position

or power”

•

Criminal procedure code 2015

Article 12. Alimentation of inviolability of residence, privacy, personal secrecy, family

secrets, safety and confidentiality of personal mail, telephone and telegraph

“No

person can illegally violate

others’ residence, privacy, personal secrecy, family

secrets, safety and confidentiality of mail, telephone, telegraph and other forms of

personal communication.”

Citizens have the right to be protected from any type of intrusion into their

accommodation without having their consent. The inviolable right of residence of Mr.

Kinh’s family and other people at Dong Tam should also be respected

as prescribed by

law. On the contrary, thousands of policemen from Hanoi police force and other forces

from the Ministry of Public Security burst into Hoanh village and broke in civilian

houses before the dawn of 09/01/2020.

According to the indictment, the police forces came to Hoanh village to carry

out duty and plan to ensure security and public order in Dong Tam commune. Any plans

from the authority must be conducted in a way that minimizes effects on the daily

activities of citizens, which at a minimum level should avoid disturbing sleeping and

resting time. In fact, the place where the construction group was building walls for Mieu

Mon project was outside Hoanh village, and the location of the attack was inside Hoanh

village, at Mr. Kinh’s and his relative’s house in specific.

The locations of these two

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places are completely different and distant. As described in the indictment, the villagers

did not go outside the village but sounded the alarm when they saw the police force

approaching. Hence, it can be affirmed that the police force, with thousands of armed

officers, approached Hoanh village intentionally. Ms. Thanh recalled that the police

surrounded her house at about 3 a.m., used tear gas and guns, then broke into the house,

beat her family member, and took them all away. She claimed that her husband, Mr.

Kinh, was still alive before she was taken away, although Mr. Kinh had difficulty

breathing due to tear gas.

The two sides of the clash were clearly unbalanced: a group of normal villagers,

on one hand, and professionally trained and fully-equipped policemen on the other

hand. Terrifying and fear from the citizens is easy to understand. The police gravely

violated the inviolable right of residence without any grounds, making villagers

extremely fearful, resulted in violent resisting actions.

When looking at the 09/01 attack in relation to the events that took place before,

the defendants' actions implied they had lived in fear of being violated for a long time.

In April 2017, Mr. Kinh had his leg broken, and was arrested without an arrest warrant.

For a long time, shrimp paste and rotten eggs were continuously thrown into Mr. Hieu's

house. Mr. le Dinh Cong (Mr.

Kinh’ son) and other villagers

were constantly harassed

and threatened directly and through SMS. Mr. Kinh also received a paper with a threat

to arrest him a few days before the 09/01 incident. Living in constant fear about their

lives and accommodations, without receiving any protection or help, made Dong Tam

villagers skeptical and more alerted. During the attack, the whole village was isolated,

no one could go in or out, the Internet was cut off; the villagers considered these are

unusual signs and their lives were at great risk. Numerous policemen illegally broke

into

Mr. Kinh’s and some other households with guns, so it was necessary

for the people

to protect Mr. Kinh from the dreadful danger. In fact, the defendants stated in their

testimony and in front of court many times that they just wanted to “protect their father”

(Mr. Kinh) from the sudden attack.

Despite all the efforts of the defense lawyers, the Plan 419A (the attacking plan

on Dong Tam) is still undisclosed. Explaining the plan as confidential was not

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convincing enough to be the ground for violating the fundamental human rights of Dong

Tam people on 09/01.

2.3. Freedom from torture or cruel, inhuman or degrading treatment or

punishment

2.3.1. The right not to be tortured

•

ICCPR

Art. 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment

or punishment. In particular, no one shall be subjected without his free consent to

medical or scientific experimentation.

•

Vietnam Constitution 2013

Art. 20 para. 1: “Everyone shall enjoy the inviolability of the individual and the legal

protection of his or her life, health, honor and dignity and is protected against torture,

violence, coercion, corporal punishment or any form of treatment harming his or her

body and health and offence against honor and dignity.”.

•

Criminal procedure code 2015

Article 10. Sustainment of bodily integrity

Every person is entitled to inviolability of the physical body. No person is arrested

without a Court’s warrant or Procuracy's decision or approval, except for acts in

flagrante. Emergency custody, arrest, temporary detainment or detention must abide by

this Law. Torture, extortion of deposition, corporal punishment or any treatments

violating a person’s body, life and health are inhibited.

•

Law on Enforcement of Custody and Temporary Detention 2015

Art. 4. Principles of custody and temporary detention management and enforcement

3. To guarantee humanity; not to torture and use coercion or corporal punishment

against or any other forms of treatment that infringe upon lawful rights and

interests of, persons held in custody or temporary detention.

Art. 8. Prohibited acts

1. Torturing and using coercion and corporal punishment; applying cruel, inhuman or

degrading forms of treatment or punishment or any other forms that infringe upon lawful

rights and interests of persons held in custody or temporary detention.

The right not to be tortured is one of the rare absolute rights that is specified in

the ICCPR and is internalized in many legal documents in Vietnam. Accordingly, the

basic factors that constitute torture include:

•

The severity of pain and suffering, physically or mentally

Acts caused or endorsed by public authorities

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•

Subjective intent (intentional fault) of the subject causing the act with

specific purposes (to obtain victims' confession, information ...)

Pain or suffering which does not come from legal sanctions or sanctions.

In this case, there are clear signs of brutal torture from the authorities. In an

interview clip about the testimony process, Mr. Du Thi Thanh (1953) said she was

beaten, slapped, and forced to testify that her husband was holding a grenade when

dying.

Suffering from the testimony for many days, facing threats from investigators

right after the death of her husband was unbearable for the 68-year old woman. This is

clearly torture, causing physical pain and severe psychological trauma to Ms. Thanh.

Not only Ms. Thanh but the appearance of the arrested from Dong Tam on

television also raises suspicions that they were tortured and forced to confess what was

contrary to the facts. These people appeared on the 7 p.m. news program with scratches

and bruises on the face, confessing and blaming Mr. Kinh for “inciting” them to fight

and kill police officers. All the accused who had “fiercely opposed” according

to the

indictment of the procuracy appeared with bruised faces and wounds and "bowed to

confess" in the news clip.

Ms. Bui Thi Noi also testified on the trial on 8th Sep 2020 that though she was

having an injury, she was still brutally beaten in the leg at the Mieu Mon Police station

after being arrested. Apparently, the investigators had carried out torture to bend the

truth and have testimony suitable for conviction.

At the trial on 9

Sep 2020, defense lawyer Dang Dinh Manh asked all 29

defendants to raised their hands if they were not tortured during the investigation. 10

people raised their hands while 19 others sat still. There are still many things worth

mentioning and should have been analyzed further with the remaining 19 people who

did not raise their hands. It is enough to prove doubts about the violence and torture that

defendants of Dong Tam case have suffered.

Ms. Thanh shared about being tortured on 09/01/2020 (with English subtitle):

https://www.facebook.com/thao.gao/videos/vb.100000244510380/3735604353124345/?t

ype=3

The confession clip of the accused broadcasted on VTV:

https://www.youtube.com/watch?v=L57sir1VD

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The torture not only appears in form of beating physically or mentally abusing

but also in isolating detention. In some cases against Uruguay, HRC concluded

incommunicado detention in “a few months” constituted violations to Article 10(1)

ICCPR. Detention which lasted 8 months and was unknown to other people was

concluded by HRC to violate Article 7 ICCPR and constituted act of torture, inhumane

and degrading punishment or treatment. The shortest period among those cases was in

the case

Arzuaga Gilboa v. Uruguay

, HRC concluded that there was a violation in

terms of incommunicado detention for 15 days. In Dong Tam case, the defendants were

arrested on 09/01/2020, and not until 08/08/2020 were the lawyers allowed to contact

their clients. Relatives were not allowed to meet from the arrest day until when the first

instance court ended. That means during the past 8 months, the detainees were isolated.

No one knew about the health conditions and information of the detainees. Everyone

knew that the accused were arrested and taken away, but none of them knew where the

defendants were detained, how to contact and visit.

2.3.2. The right to humane treatment of those deprived of their liberty

“Person

deprived of liberty” is a term commonly used to refer to ones who have

been subjected to preventative measures or administrative or criminal sanctions (e.g.

arrest, detention, imprisonment, rehabilitation concentration, etc.) with restricted

freedom of movement, residence and some other freedoms. The 29 villagers arrested

and prosecuted in the Dong Tam case were those who were deprived of freedom; and

they needed to be treated with humanity and respect for the inherent human dignity.

Nevertheless, this right was violated in the Dong Tam case. Mr. Le Dinh Cong

testified at the court that officers Pham Viet Anh beat him with a rubber baton ten days

continuously. This both shows brutal torture in physical and the humiliation of dignity

of the person being detained.

Lucía Arzuaga Gilboa v. Uruguay, Communication No. 147/1983, U.N. Doc. CCPR/C/OP/2

at 176 (1990).

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2.4. Right to fair trial

•

ICCPR:

Article 14. 1. All persons shall be equal before the courts and tribunals. In the

determination of any criminal charge against him, or of his rights and obligations in a

suit at law, everyone shall be entitled to a fair and public hearing by a competent,

independent and impartial tribunal established by law. The Press and the public may be

excluded from all or part of a trial for reasons of morals, public order (ordre public) or

national security in a democratic society, or when the interest of the private lives of the

parties so requires, or to the extent strictly necessary in the opinion of the court in

special circumstances where publicity would prejudice the interests of justice; but any

judgement rendered in a criminal case or in a suit at law shall be made public except

where the interest of juvenile persons otherwise requires or the proceedings concern

matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed

innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled

to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the

nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defense and to

communicate with counsel of his own choosing;

(d) To be tried in his presence, and to defend himself in person or through legal

assistance of his own choosing; to be informed, if he does not have legal assistance, of

this right; and to have legal assistance assigned to him, in any case where the interests

of justice so require, and without payment by him in any such case if he does not have

sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same conditions as

witnesses against him;

(f) T have the free assistance of a interpreter if e cannot understa or spea the

language use in court;

(g)

The

to be com

fair trial is a set of proceeding

to confess guilt

ensuring fair trials,

Not

right to a

elled to testify against himself or

rules aimed at

including aspects such as being equal before the courts and tribunals, presumption of

innocence, guarantees the right to defense, etc.

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2.4.1. Right to be equal before the courts and tribunals

•

Criminal Procedure Code 2015

Article 26. Assurance of oral arguments in adjudication process

During the charges, investigation, prosecution, adjudication, investigators,

prosecutors, persons authorized to institute proceedings, defendants, defense counsels and

other persons participating in proceedings are equally entitled to present and evaluate

evidences and make requests for clarification of objective truths of the lawsuit.

This right is acknowledged in Art. 10 and 11 UDHR, Art. 12 ICCPR and several

other articles. The right to be equal before the courts and tribunals can be construed as

a concrete manifestation of the principle of non-discrimination, aimed at ensuring that

parties to proceedings are treated without any discriminations.

The defendants and the defense lawyers in the Dong Tam case are constantly

facing obstacles. The group of defense lawyers filed a complaint to the Chief Justice of

the Hanoi People's Court on 07/09/2020, which clearly stated the difficulties that they

had encountered in every justice process from the investigation stage, prosecution and

pretrial stage. These difficulties, unfortunately, were created by the judicial bodies and

competent officials. Documents confirmed the role of defense lawyers was undue delay

in sending to some lawyers, which negatively

affected the detainees’ right to have

adequate time for the preparation of defense. The detainees also had difficulties in

private consulting with their lawyers without proper reasons. Lawyers were also limited

in accessing investigation documents despite many times requesting.

Even in the pretrial stage, the People’s Court of Hanoi

undue delayed in allowing

the defense lawyers to copy case files. This request was only accepted after many

attempts and still very limited. Lawyers were not able to copy 2 USB containing photos

and clips taken during the 09/01 incident, even when the trial was processing.

In the first instance court, the defense lawyers faced prevention from the security

forces when approaching their clients at break time. The Judge also dismissed their

requests on the grounds that «lawyers had time to discuss with the defendants before»,

so contacting at the court was “unnecessary”. In the whole judicial process, the lawyers

and their clients did not have any chance to meet and discuss properly; their meetings

in privacy were interrupted and prohibited. Even the chance to have direct contact at

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the court was interfered. Apparently, 29 defendants in Dong Tam case were separated

from their defense lawyers in an unreasonable manner.

None of the defendants’

relatives could be at the court, their requests to attend

as relatives, as witnesses or a party involved in the case were all refused. Except from

the tribunals, lawyers, prosecutors, defendants, the security force and some other people

with permissions, there were no normal citizens.

From the above, it is clear that the principle of equality before the court was

seriously violated. The court should be an impartial arbitrator to listen to both sides of

the dispute and give a just decision. What happened at the first instance court of Dong

Tam case have shown that the trial did not guarantee the equality of the parties before

the courts.

2.4.2. The right to have legal assistance

The right to have legal assistance is considered to be an important aspect that

guarantees the right to be equal before the courts. In practice, a person may or may not

have access to or participate in legal proceedings in an effective manner.

This right was violated in Dong Tam case, which is clearly shown through the

prevention in contact between the accused and their defense lawyers. Even when being

at the trial, the discussion between lawyers and clients was also restricted since the

judge considered it unnecessary.

Nearly all of 29 defendants did not receive any legal assistance during their

detention. The detaining center justified by stating that the detainees had signed

documents, refusing help from the lawyers. However, Mr. Ha Huy Son, one of the

defense lawyers, argued that those refusal documents were invalid since the detainees

had signed them before the lawyers were officially invited to take part in this case. This

detail implies that the detainees were not fully aware of their own rights. There are

possibilities that they signed papers under undue influence, coercion, and duress or due

to lack of information.

2.4.3. The right to be heard by a competent, independent and impartial court

Article 10 of UDHR states: Everyone is entitled in full equality to a fair and

public hearing by an independent and impartial tribunal, in the determination of his

rights and obligations and of any criminal charge against him. Article 14(1) of ICCPR

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outlines essential factors of a judicial body, which are competence, independence,

impartiality and by-law establishment.

There is still a lot of controversy regarding the court's jurisdiction in the Dong

Tam case. Because, the conflict arises from whether the land in the Senh field is for

defense purposes or not. If the land is state-own for national defense purposes, the case

may need to be heard at a military court, or it is necessary to have a representative of

the Ministry of Defense taking part in the trial.

Regarding the characteristics of independence and by-law establishment, the

tribunal and other parties related to the hearing basically meet the requirement on by-

law establishment. Nevertheless, the independence of the court is indeed in the need of

reconsideration. Article 301 of the Vietnamese Criminal Procedure Code 2015

stipulates clearly on how a trial should be started, but the trial on Dong Tam saw an

unprecedented proceeding when presenting a long clip describing the incident, which

was “clearly and truthfully” in the opinion of the tribunal, right at the beginning of the

trial. Before the questioning session, the court repeatedly asked whether the defendants

saw and heard the clip clearly. That such a prejudiced clip about how aggressive the

defendants resisted against the authority was presented before all participants of the trial

indicated that the independence and impartiality of the court were not guaranteed.

Although some of the defendants (Mr. Bui Viet Hieu, Mr. Le Dinh Doanh, etc.) stated

that the clip had been cut and edited, and they had been forced to confess untrue things,

the tribunal still insisted that the clip was important evidence and repeatedly asked each

defendant about what the clip had shown.

2.4.4. A fair and public hearing

Fairness and justice is hardly guaranteed when there is a relatively clear

prejudge. The court justified the case based solely on the edited clip, the indictment

from the Procuracy, the conclusion, evidence and testimony gathered by the police and

completely ignored confessions and testimony given at the hearing.

In paragraph 28 General comment 32, HRC explained clearly about a public

hearing, which requests “courts must make information regarding the time and venue

of the oral hearings available to the public and provide for adequate facilities for the

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attendance of interested members of the public, within reasonable limits, taking into

account, inter alia, the potential interest in the case and the duration of the oral hearing”.

The disclosure of the information about the court may be limited if it relates to

national security, public order or public pressure may negatively affect justice. The

Dong Tam case started as a land dispute at first, then turned into a criminal case after

the 09/01 incident; it is not related to national security or political aspects. The

indictment from the Hanoi Procuracy only mentioned two common criminal crimes that

were Murdering and Resisting those on duty. Moreover, the 09/01 incident still has

controversial details, it was necessary and normal to disclose information about the case

and grant public access to the hearings.

However, according to defense lawyers, about half of the participants were

judicial and security police, none of the defendants’ family members nor ordinary

people could enter the courtroom. The press and media informed droplets about the trial

proceeding, the public could only have an overview of the case and the trial through

posts on social networking sites from defense lawyers and other unofficial sources of

information. In a video interview with Luat khoa

–

an independent journal, Ms. Nguyen

Thi Duyen, the wife of a defendant, said that she was prevented by the security

policemen at the court to attend the court due to irrelevant reasons based on some “legal

provisions”.

There was only one state-own newspaper (Vietnam News Agency)

allowed to take pictures at the hearings. Therefore, the objectivity and concreteness of

the press in informing about the hearings was not guaranteed in this case.

Video interview by Luat Khoa journal with Ms. Nguyen Thi Duyen:

https://www.youtube.com/watch?v=jzKojjaMmOc

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2.4.5. Presumption of innocence

•

UDHR

Art. 11 para 1: Everyone charged with a penal offence has the right to be presumed

innocent until proved guilty according to law in a public trial at which he has had all

the guarantees necessary for his defense.

•

ICCPR

Art 14 para 2: Everyone charged with a criminal offence shall have the right to be

presumed innocent until proved guilty according to law.

•

Vietnam Constitution 2013

Art. 31 para. 1: A defendant shall be regarded as innocent until the crime is proved in

accordance with legal procedure and the sentence of the Court has acquired full legal

effect

•

Criminal Procedure Code 2013

Art. 13. Presumption of Innocence: “A accused person is deemed innocent until his

guilt is evidenced according to the procedures and formalities as defined in this Law

and a Court passes a valid conviction. If grounds for conviction, as per the procedures

and formalities in this Law, do not suffice, competent procedural authorities and

persons shall adjudge the accused person to be not guilty.

In the light of the above legal regulations, the 29 accused must have been

presumed as innocent until being convicted by the court. Before and during the trial, it

was necessary to ensure that the defendants were not received any unfair treatment due

to their accusations. However, a 5-minute clip, describing the preparation of Dong Tam

villagers to fight back the police, their confession on the wrong and regret of their

actions, was entitled “The incident in Dong Tam: The testimony of Le Dinh Cong and

others”

and broadcasted on state media and the national news program.

The clip was

edited and used red cross sign on scenes of Dong Tam villagers with the commentary

about the

“violent,

opposing-the-law

nature of this group”.

The confession clip was

also posted publicly on social networking sites and other official channels of state

bodies, which can be considered as an attempt to direct the public opinion towards

convicting these people carelessly and extra-judicially.

This also infringed on the reputation, honor and dignity of those who were being

detained and accused. Before the official conviction of the court, the government should

VTV24 news clip about Dong Tam case:

https://www.youtube.com/watch?v=L57sir1VD_o

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have limited any prior judgments about the outcome of the trial, but in contrast, the

authority had imprinted a prior judgment in the public opinion before the court gave the

final sentence. The principle of presumption of innocence continued to be violated at

the hearing when that confession clip was presented. The tribunal continuously gave

questions based on the testimony in the clip. The proceeding of this criminal trial was

inconsistent with the legal regulations, showing the prejudice of the tribunal against the

defendants.

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2.4.6. The right of those who charged with criminal offences

•

Art. 14 of ICCPR:

3. In the determination of any criminal charge against him, everyone shall be entitled to

the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the

nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defense and to

communicate with counsel of his own choosing;

(d) To be tried in his presence, and to defend himself in person or through legal assistance

of his own choosing; to be informed, if he does not have legal assistance, of this right;

and to have legal assistance assigned to him, in any case where the interests of justice so

require, and without payment by him in any such case if he does not have sufficient

means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance

and examination of witnesses on his behalf under the same conditions as witnesses

against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the

language used in court;

(g) Not to be compelled to testify against himself or to confess guilt

•

Criminal Procedure Code

Article 61. Defendants

1. Defendants are physical persons or juridical persons tried as per a Court’s decision.

The rights and duties of defendants as suspects are executed by their legal representatives

according to this Law.

2. Defendants are entitled to:

c) Be informed and explained about their rights and duties as per this Article;

d) Petition for expert examinations, valuation, change of authorized procedural persons,

expert witnesses, valuators, interpreters, translators, summoning of witness testifiers,

crime victims, individuals having duties and interests from the lawsuit, expert witnesses,

valuators, other participants in legal proceedings and authorized procedural persons to

the Court;

d) Present evidences, documents, items and requests;

e) Confer on relevant evidences, documents, items and request authorized procedural

persons to inspect and assess such;

g) Defend themselves or be defended;

h) Give statements and opinions, bear no obligation to testify against themselves or admit

to guilt;

It is important that the person under arrest and detention should have enough

time and facilities to prepare for his defense and contact an advocate of his choice. The

Dong Tam villagers were restricted in contacting lawyers. They did not have enough

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time and facilities to consult their lawyers confidentially. Moreover, these detainees had

signed pledges to refuse to have defense lawyers even before any lawyers were assigned

in this case. This raised questions on whether they were informed about their rights in

advance or were forced to sign papers without full explanation since they were all

farmers and lacked legal knowledge. During the trial, some defendants expressed their

disagreements with the investigation conclusion of the police and the indictment from

the procuracy, which also further implied the unusual refusals on legal assistance at the

investigation stage. Even if there were any grounds on restricting the meeting of lawyers

and their clients in this case, the control and surveillance should only be “in

the sight,

out of

hearing”,

and respect totally the right of the lawyers to advise and represent their

clients

“without

restrictions, influence, pressure or undue interference from any

quarter”, as emphasized in paragraph 34 General Comment 32 of HRC.

The right to examine or have examined witnesses against the accused and

to obtain the attendance and examination of witnesses on his behalf

The principle of being equal before the courts also expresses in the appearance

and testimony of witnesses against the accused and those on his behalf at the trial. In

such a controversial case like Dong Tam case, the testimony of witnesses from both

parties was of great importance to shed light on the nature of the case. Nevertheless,

apart from the defense lawyers who showed great efforts in protecting the rights of the

defendants, other participants (the prosecutors and the representatives of the victim) and

attendees at the trial were all on the accusation side. In fact, neither of the parties had

their witnesses testified before the court,

the lawyers’ requests to summon

witnesses

were not granted; that showed inequality in the hearing and also implied the

prejudgment against the accused from the most neutral actor in any hearing

–

the

tribunal.

The right not to be compelled to testify against oneself or to confess guilt

Paragraph 3(g) of article 14 of ICCPR guarantees the right of the accused not to

be forced to testify against himself or to confess guilt. Accordingly, the accused does

not have to answer or proactively confess information that is against him. The provision

also implies the passive obligation of the state to minimize its direct or indirect pressure

physically or mentally on the accused to obtain their guilt confession. Showing an edited

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clip recording the confession of defendants in the court, where should be the most

independent, transparent and objective place, and that the judge repeatedly mentioned

about the clip appeared to be a warning from the authority that the defendants had

confessed guilt and been convicted. The miserably and outraged from other parties in

the courtroom after watching the clip created great pressure on the

defendants’

emotions. The defendants were more likely to feel tormented, guilty and isolated.

Without proper legal assistance and consultation, they would easily fall into the

psychological trap and testify against themselves.

Article 14 of ICCPR prohibited testimony obtained by torturing or other cruel

punishment or treatment, except when this testimony is considered as evidence against

torture and other illegal punishment. Turning back to when a lawyer asked how many

of the defendants were not suffered from torture, 19 people did not raise hands. The

testimony of these 19 people was obtained by torture and there were possibilities that

the confess clip was recorded in the same method. In a proper proceeding as prescribed

by law, the court should examine the legality of evidence and testimony when signs of

torture are found. According to paragraph 41 of General Comment no. 32 of HRC, the

burden is on the authority to prove that statements made by the accused have been given

of their own free will. However, the tribunal in Dong Tam ignored all claims about

torture, justifying that the defendants had no evidence to prove they had been tortured.

2.5. The right to a remedy and reparation

Acts of violence and torture often happened during the land dispute. In the

arbitrary arrest on 15/04/2017, Mr. Kinh had one leg broken. After being released, Mr.

Kinh immediately filed a denunciation against an officer for breaking his leg. The police

objected and stated that the injury was a pity and was due to the struggle between the

duty enforcement officers and Mr. Kinh’s family. Apparently, the police themselves

admitted that the above incident was due to the “struggle” between the two parties. In

the comparison of power and strength, the group of 4 normal citizens, one of which was

an over-80-year old man, was weaker and more vulnerable than the group of trained

and prepared officers; hence there should have been a reparation from the authority for

avoidable injury and damages to the citizens. In fact, there was no attempt from the

authority to repair and compensate, except for a wheelchair given by the Mayor of

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Hanoi Nguyen Duc Chung. During a meeting of the National Assembly, the

representative of the MPS was questioned about this incident and their effort in

reparation, but did not respond.

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Conclusion

The land dispute in Dong Tam area has lasted for many years, accompanied by

serious human rights violations, especially what happened in the 09/01/2020 attack. The

authority violates not only the rights of one person but also the rights of many people

at the same time. The fundamental rights such as the right to life, the inviolable right to

home, body, the right not to be tortured were disrespected, leading to the violation of a

range of other human rights. There cannot be any reason to justify the intentional

ignorance of competent bodies and officials.

In resolving disputes with citizens, the authority should maintain a positive

approach and settle the issue in the most peaceful manner. The participation of armed

forces should only be the last resort. The 09/01/2020 incident, however, occurred before

any actual attempt to resolve disagreement had been carried out and resulted in the death

of 4 people. Violations of human rights have persisted for years since the land dispute

broke out. Even when 29 people were arrested, detained and brought before the court,

there were still gross human rights violations against those who should have been

protected by an effective judicial body. The first instance trial, expected to last for 10

days, was reduced to only a week, despite many questions and suspicions left unsolved.

There is no judicial proceeding that claims to respect and follow human rights standards,

while hastily sentencing anyone to death. There is no moral and just trial when the court

ignores reasonable doubts about the case, dismisses requests on further investigation

and convicts the defendants based on improper evidence. The developments of the trial

have made public opinion more skeptical about the independence, impartiality and

nature of the court. All efforts in building a transparent, independent and impartial

judicial system seemed to be devastated after the trial on Dong Tam incident.

The research team focused on the Vietnamese legal regulation in comparison

with international human rights standards when briefly describing the Senh field land

dispute and focusing on the 09/01/2020 attack. To ensure the most impartial and fairest

judgments, events are consistently evaluated in accordance with domestic and

international human rights regulations. Facts that are difficult to confirm by specific

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sources were not included in the study. The evaluations are focused on human rights

violations, without deeply analyzing the nature of the dispute.

Vietnamese domestic laws have been more and more compatible with the

international legal framework on human rights. Nevertheless, these standards have not

been fully respected and implemented in practice, especially in the recently Dong Tam

case. And once again, the obligations of the state in protecting and implementing human

rights standards are demanded urgently.

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Appendix

Sources of documents and video clips:

Documents issued by the authority:

Mayor of Hanoi Nguyen Duc Chung, The compromise with Dong Tam people

on 22/04/2017: https://vov.vn/xa-hoi/ong-nguyen-duc-chung-cam-ket-khong-truy-cuu-

hinh-su-toan-dan-dong-tam-616409.vov

Governmental Inspectorate, Document no. 611/TB-TTCP, Notice about the

examination of the accuracy and legality of Inspectorate conclusion no. 2346/KL-

TTTP-P5 issued on 19/07/2017 by Hanoi Inspectorate:

http://www.thanhtra.gov.vn/ct/news/Lists/KetLuanThanhTra/View_Detail.aspx?ItemI

D=112)

Investigation agency of Hanoi Police, Investigation conclusion no. 210/KLĐT-

PC01(Đ3) on Murdering, Resisting officials on duty on 09/02/2020 at Hoanh village,

Dong Tam Commune, My Duc district, Hanoi:

https://danluat.thuvienphapluat.vn/toan-bo-dien-bien-phien-xet-xu-vu-an-gay-roi-tai-

dong-tam-188823.aspx

The People’s Procuracy of Hanoi, Indictment no. 241/CT-VKS-P2

prosecuting

29 people for Murdering and Resisting officials on duty:

https://danluat.thuvienphapluat.vn/toan-bo-dien-bien-phien-xet-xu-vu-an-gay-roi-tai-

dong-tam-188823.aspx

Documents and posts from the villagers and defense lawyers:

Letter of Dong Tam villagers to the 7th Conference of the Central Communist

Party of Vietnam (XII Session): https://baotiengdan.com/2018/04/19/nguoi-dan-dong-

tam-gui-tam-thu-toi-hoi-nghi-trung-uong-7/

Ms. Du Thi Thanh's criminal denunciation sent to Minitry of Public Security on

03/03/2020:

https://www.facebook.com/permalink.php?story_fbid=133684984833585&id=107429

177459166

Petition before the trial of the group of defense lawyers in Dong Tam case:

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https://www.facebook.com/levanhoa256/posts/2713962145515503

The defense for 4 defendants in the hearing session on 09/09/2020:

https://www.facebook.com/levanhoa256/posts/2718819101696474

Videos:

Mr. Le Dinh Kinh explained the origin of the land area in dispute, posted on

16/04/2017:

https://www.youtube.com/watch?v=INB5LiLpYPE&fbclid=IwAR2tGeoFWvI1GHlQ

N0p59PekrjxWKWRkljxGx7dkCz4SVERMswErBjf-Mb0

VTC1, News clip about the disagreement of the villagers in the Conference

announcing the Draft conclusion of Inspectorate about Dong Tam land dispute, posted

on 07/07/2017:

https://www.youtube.com/watch?v=DgoSUz7S__o&fbclid=IwAR2tGeoFWvI1GHlQ

N0p59PekrjxWKWRkljxGx7dkCz4SVERMswErBjf-Mb0

VTV24, News clip about Dong Tam incident:

https://www.youtube.com/watch?v=L57sir1VD_o

Ms. Du Thi Thanh shared about her being tortured to obtain testimony:

https://www.facebook.com/thao.gao/videos/vb.100000244510380/373560435312434

5/?type=3

Luat Khoa journal, Video interview with Ms. Nguyen Thi Duyen:

https://www.youtube.com/watch?v=jzKojjaMmOc