May 29, 2012
The following is Viet Tan’s translation of attorney Thai Ha’s written account of the criminal proceedings against activists Dau Van Duong, Tran Huu Duc, Chu Manh Son, and Hoang Phong. The four were tried on May 24, 2012 under Article 88 (propaganda against the state).
During the trial brought against four Catholic activists in the People’s Court in Nghe An province on May 24, three defense lawyers requested the judge to return the case files for additional investigation. During their arguments, the lawyers presented evidence of serious violations of criminal investigative procedures throughout the arrests and detention of these defendants, leading to insufficient evidentiary support that could not ensure an objective ruling.
The revelation created a shocking reverberation throughout the court that day. Perhaps the People’s Court and procuracy of Nghe An province were convinced the case files were “closed” and celebrated too soon. Let’s examine these events further and the details behind them.
“We already met and received the opinion of the Party Secretary”
It all began when officials thought the legal proceedings will be closely controlled and coordinated, especially since they thought the defendants had confessed to all charges, so they agreed to a public trial and allowed observers to attend. But when the defense lawyers disclosed serious violations during the arrest and detention period of the defendants, the judge asked the People’s Procuracy to address the allegation. Instead of providing a counter-argument, a representative of the People’s Procuracy exclaimed: “we already met and received the opinion of the Party Secretary.”
Upon hearing this statement, the judge quickly grabbed the microphone away from the procurator, and suddenly everyone were on their feet in the courtroom. What started out as another mock trial quickly turned into courtroom drama with the shocking allegations that caught the prosecution off-guard and therefore could not react in time. The violations are detailed below:
1. Violations in the arrest, detention and interrogations of the defendants
When questioned in front of the judge, all of the defendants confirmed they were arrested unexpectedly and were not informed of their rights during the arrest in accordance with the Criminal Procedure Code (CPC). Paragraph 2, Article 80 of the CPC stipulates: “When arresting persons at their residences, representatives of the commune, ward or township administrations and the neighbors of the arrestees must be present as witnesses. When arresting persons at their working places, representatives of the agencies or organizations where such persons work must be present as witnesses.” If these arrests were made when offenders were caught red-handed in action or these were urgent arrests, then they should have been arrested when they were allegedly distributing fliers on the 19th and 20th of May [2011]. However, they were arrested in August [2011], three months after the event.
In addition to citing the Criminal Procedure Code, the defense attorneys also cited an important circular from the Ministry of Public Security. Circular 70/2011/TT-BCA issued on 10/10/2011, Paragraph 2, Article 4 clearly stated: “When delivering the warrants for arresting the accused or defendants for temporary detention, the executor of the warrants must read the warrants, explain the warrants, rights and obligations of the arrestees in accordance with Article 48 and 49 of the Criminal Procedure Code and make minutes of the arrests. The minutes of the arrests shall include the opinions of the accused and defendants stating their wish to have a lawyer representing them.”
The most egregious violations of these laws were imposed upon Chu Manh Son. A graduate of Vinh Medical University, Son was working at the hospital when plain-clothes police deceived him into leaving the hospital and then kidnapped him. What they should have done was to make the arrest at his workplace. Son’s case files pointed to an eyewitness of the arrest who was supposed to be his “neighbor,” but Son adamantly denied knowing this person. In reality, the “neighbor” lives in another village, not Phuc Thanh village where Son resides. This clearly showed the investigative bodies violated the warrant procedures and used a person from another village to masquerade as Son’s neighbor to falsify arrest documents.
During the trial, defense attorney Tran Thu Nam asked Tran Huu Duc details about his arrest and whether he was also informed of his rights and obligations, in addition to his right to an attorney. Tran Huu Duc replied, “I was not informed of my rights and obligations and no one asked if I would like a defense attorney.”
Tran Huu Duc and the other three activists were not arrested according to the law. They were kidnapped and then subsequently forced or deceived to confess their participation in an event three months ago. These actions by the Procuracy were clear violations of the criminal procedures.
2. Violation in the arrangement for confrontation at trial
According the court files and during examination, there were contradictions in statements provided by the defendants that were not clarified and confrontation was not conducted thoroughly in accordance with the legal proceedings. Dau Van Duong confessed that the four defendants visited Father Nguyen Van Ly and received directions from Father Ly to hand-out propaganda leaflets. Another defendant, Tran Huu Duc denied such event took place. These are contradicting statements from two people in their account of an event. According to Paragraph 1, Article 138 of the CPC, a confrontation between Duc and Duong must be allowed in order to clarify the event did occur or did not occur. However, the prosecution did not allow for the confrontation to proceed and thus violated the provisions of the law. Article 138 of the CPC clearly stipulates that “where exist contradictions in the statements of two or more persons, investigators shall conduct confrontation…confrontation minutes must be made.”
Paragraph 4, Article 138 of the Criminal Procedure Code states:“Confrontation minutes must be made according to the provisions of Articles 95, 125 and 132 of this Code.” Not only confrontation was not allowed, the minutes of the confrontation were not recorded in accordance with the law.
3. Violation in the seizure of objects and documents during a search
Article 145 of the CPC stipulates the following: “While conducting search, investigators may seize objects which are exhibits as well as documents directly related to the cases…The seizure of objects and documents during a search must be recorded in a minutes. Seizure minutes must be made in four copies, one of which to be handed to the owner of the objects and/or documents, one to be put in the case files; one to be sent to the procuracy of the same level, and one to the agency managing the seized objects and/or documents.”
In the case of Chu Manh Son, Son’s uncle, who lives near him reported that two young men came into his shop and pretended to buy old computers. They walked straight into Son’s house and took his computers without leaving any documentation. The case files included a record of this incident in a report written by Son’s mother. The investigative files also showed that his seized computer, camera and motorbike did not contain evidence linking him to the act of distributing propaganda leaflets. The report from the investigative bodies and the court files demonstrated that Son’s computer, camera and motorbike were returned to him. Such a report would leave one to wonder who were the people in disguise that showed up at Chu Manh Son’s house and seized his belongings without any documentation a year ago.
In light of this violation committed by the investigative bodies, a new criminal case was revealed during the course of examination, “property theft”. If Chu Manh Son’s family decides to pursue this new criminal case, the Procurarcy must open an investigation and find out who took his possession in such illegal manners.
4. Violation during the collection of evidence and summoning the witnesses
During the trial and in the sentencing, both sides acknowledged that in addition to the four defendants, other people were also involved in the distribution of the leaflets including Nguyen Xuan Kim, Dang Xuan Tuong, Trinh Van Thuong and Hoang Duc Ai. These people were not summoned as witnesses. Therefore, evidentiary support for the case was incomplete without these people’s presence as witnesses and certain statements still need to be verified. In addition, the contradicting statements between the defendants with hazy details still need to ironed out and were not confirmed by Father Nguyen Van Ly.
Due to insufficient evidence coupled with contradicting statements, one cannot demonstrate that the motivation behind the act of distributing leaflets was meant to subvert the government. Defense attorney Vuong Thi Thanh stressed in her statement that “the motivation behind their action is still not clear.” An important element of conviction is the subjectivity of the action. When the jury is still out on the motivation behind the “subversion against the state” charges, one cannot be convicted of the crime.
A legitimate proposal in accordance with the law from the defendants’ lawyers
Article 168 of the Criminal Procedure Code stipulates for the return of files for additional investigation under any one out of three circumstances: 1. Important evidences of the cases are insufficient, which the procuracies cannot supplement by themselves; 2. There are grounds to initiate criminal proceedings against the accused for other offenses or there are other accomplices; 3. There are serious violations of the criminal procedure.
In this case, there were two out of three violations mentioned above including insufficient evidence and serious violations of the criminal procedures. In addition to the cited Article 168 of the CPC, Joint Circular No 01/2010/TTLT-VKSNDTC-BCA-TANDTC issued on August 28, 2010 by the Supreme People’s Procuracy, the Ministry of Public Security, and the Supreme People’s Court contained instructions to follow the CPC’s stipulations for the return of case files in order to carry out additional investigation when such action is deemed necessary.
In accordance with the Criminal Procedure Code and other Circulars issued by the Ministry of Public Security, the defense lawyers’ request for the “return of files for additional investigation” are legitimate and within the legal provisions of the law. There was insufficient evidence documented in the defendants’ case files to indict them of any crime. Their cases must be further investigated or dismissed if no evidence is found for an indictment. It is our hope that when the defendants appeal their cases, they will receive an appellate judgment that will reverse the original sentencing and they will be freed immediately.
Attorney T
Vietnamese Catholic Youths Blog
