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Socialist Republic of Vietnam
Independence - Freedom – Happiness
PETITION LETTER
To
- Chief Justice, Supreme People’s Court
- Procurator-General, Supreme People’s Procuracy
Re. Petitioning to the Court of Cassation for a Cassation of Nguyen Van Dai’s Case
(Appellate sentence, No. 1037/2007/HSPT)
My name is Vu Minh Khanh, born 1974; my permanent home residence is P302, Z8, Bach Khoa, Hai Ba Trung, Hanoi. My husband is lawyer Nguyen Van Dai, born 1969, arrested March 6, 2007, and has been tried by the Court of First Instance and the Court of Appeal for the charges of
"spreading propaganda against the Socialist Republic of Vietnam" (Article 88, Criminal Code). He was sentenced to 4 years of imprisonment to be followed by four years of house arrest. He is currently held at the Nam Ha prison.
He has been unjustly sentenced because both the preliminary trial of May 11, 2007 and the appel-late trial of November 27, 2007 failed to present conclusive evidences that support the charges of
"spreading propaganda against the Socialist Republic of Vietnam". The fact that both courts gravely violated the Code of Criminal Procedure has resulted in such unjust decisions.
1) Grave mistakes in the application of the Criminal Code
As argued in my plea titled "My husband is a patriot. My husband is innocent" that had been submitted to various levels of authority prior to the appellate trial in mid November 2007, the reasons the Court of First Instance cited for my husband’s sentence were groundless. As far as the sentencing of my husband is concerned, the appellate trial of November 27, 2007 did not consider such factors as the subject and object, as well as the subjectivity and objectivity of criminal acts, according to Paragraphs 1.a and 1.c of Article 88, Criminal Code. The wholesale sentencing of defendants was unjustly detrimental whereas they did not commit the same acts. The Court of Appeal has failed to make a satisfactory resolution of the following matters:
a) Has my husband acted with the intent of being opposed to the Socialist Republic of Viet-nam?
What defines "opposition" ? Which constitutional institutions did he act in opposition to? The Court of Appeal has reached the same erroneous judgments as the Court of First Instance did, that my husband
"boycotted the National Assembly Election of 2007 and is directly opposed to the State that is charged with holding elections as stipulated by the Constitution. " In actu-ality, it is widely known that my husband publicly advocated not to boycott the elections and encouraged the running of independent candidates. By the same token, the accusations that my husband has "spread propaganda, distortions and slanders aimed at removing the Communist Party of Vietnam from the role of leading the State and society,"
(Appellate Sentence, p. 6) and has, therefore, acted in violation of the Constitution, are merely subjective and groundless speculations. It’s worth emphasizing that the Court of Appeal could not link these accusations with any of my husband’s assertions in his two articles titled "The Right to Form Political Parties" and "Vietnamese People Are Able to Build a Multi-Party System."
b) Has my husband "spread propaganda and distortions of the truth" and "produced, illegally stored, and circulated anti-State materials"?
During the appellate trial no defense was allowed to discuss the concepts of "propaganda" . The Court of Appeal did not consider the characteristics of a criminal act that constitute a "propaganda, " e.g. the content and form, as well as the scope and impact. The Court failed to present concrete evidences that support its charges that
"the information that the defendants provided in the [democracy and human rights] course, and the statements they made during their interviews on democracy and human rights are slanders, smears, misinformations and distortions of the realities in Vietnam." (Appellate Sentence, p. 6). But what is democracy and human rights? What standards are to apply in the evaluation of the realities? Does it con-stitute a criminal act by simply discussing democracy and human rights? Unless a debate was allowed in respect of admissible evidences no assertion could be made whether or not the re-alities in Vietnam were slandered, misinformed, and distorted. If they were, to what extent were they? The application of criminal procedures has been totally skewed.
2) The appellate sentence is not consistent with the objectivity of circumstances
The appellate sentence, No. 1037/2007/HSPT nevertheless accepts the Investigative Police’s se-rious mistakes which I took issue with, as a matter-of-fact, in my above-referenced plea.
The discoveries of their investigation, inserted in the "Observations" section of the appellate sen-tence have created a wrong impression of the defendants’ acts. In addition, the sentence has in-correctly recorded the proceedings of the trial.
a
) Illogical account of the truth
As I have presented before, on the morning of February 3, 2007 as soon as attorney Le Thi Cong Nhan greeted three of her students, roughly for five minutes, the police raided my hus-band’s law office. All the witnesses confirmed this very fact. Anyone with common sense must realize that it’s impossible for her, within five minutes, to
"spread propaganda that dis-torts State positions and policies," recorded as such in the Indictment and the resultant Sen-tences. Even the document titled "Human Dignity: A Foundation for Human Rights," confis-cated during the raid, is not at all "slanderous propaganda".
b) Wrong account of the facts
The appellate sentence states:
"the staffers of the Thien An Law Office, including Pham Van Troi, Pham Sy Nguyen, Nguyen Xuan De, Tran Thanh, Nguyen Thi Huong Lan, all testified that both Nguyen Van Dai and Le Thi Cong Nhan not only spread propaganda, distortions, and slanders against the government, but also incited them to spread slanderous anti-State propaganda." (Appellate Sentence, p. 3). This paragraph contains a much more serious mis-take, compared with the preliminary sentence, in that Mr. Pham Van Troi is not my husband’s staff and that the above-mentioned four witnesses worked in two different offices –not all in my husband’s law office.
More seriously,
the appellate sentence has doctored admissible evidences. Whereas the preliminary sentence has gone as far as recording the subjective opinions of investigative agencies ("Troi and four other staffers of the Thien An Law Office were determined by inves-tigative agencies to be instigated by Nguyen Van Dai to engage in slanderous anti-State propaganda activities ... " (Preliminary Sentence, p. 3) the appellate sentence obviously con-verted these admissions into testimonies. The appellate sentence even includes fabrications that the above-referenced five witnesses had accused my husband of committing "acts of propaganda, misinformation and slander" with a pitch that my husband "had incited them to engage in anti-State propaganda activities." (Appellate Sentence, p. 3). My husband’s de-fense lawyers have secured the statements from Mr. Troi and my husband’s staffers, who have unanimously declared that they were not engaged in slanderous anti-State propaganda nor they were instigated by anyone.
c) Contradictions with defendants’ statements at the trial
Many statements recorded in the appellate sentence are entirely contrary to the truth as it in-correctly records the declarations of the witnesses during the appellate trial. Before the Court of Appeal my husband admitted to penning only two articles titled "The Right to Form Politi-cal Parties" and "Vietnamese People Are Able to Build a Multi-Party System" –these two documents being proven not in violation of Vietnamese laws before the court. The recorded paragraph that my husband has
"admitted to authoring a number of articles among confis-cated materials" (Appellate Sentence, p. 5) is absolutely inaccurate. Only these two articles should have been recorded.
Before the court my husband admitted to having read only ONE document titled "Slandering Is Communists’ Occupation". Also, he did not admit to reading other documents or commit-ting the act of "
disseminating propaganda and above-cited materials," as indicated in the ap-pellate sentence (Appellate Sentence, p.5).
In the same manner, he confirmed his interviews with the three radio broadcasting stations BBC, VOA and RFA, but he had never
"admitted to responding online to reactionary or-ganizations" (Appellate Sentence, p. 5) .
Before the court of law Ms. Le Thi Cong Nhan did not state that she
"acted under the guid-ance and with the active support of Nguyen Van Dai," as recorded on page 5 of the appellate sentence.
Also, before the court Ms. Tran Thanh testified that she worked regular office hours at the Viet Luat Company as an on-duty office assistant and consultant and that she did not know of nor participate in any courses. Defense lawyer Bui Quang Nghiem emphasized this point in his defense whereas in the appellate sentence Ms. Thanh is recorded to be the Thien An Law Office staff and to have confirmed my husband’s acts of spreading slanderous anti-State propaganda, as well as inciting her to engage in these propaganda activities.
Such errors exist in many sections of the appellate sentence, creating an absolutely false por-trayal of my husband’s behaviors.
3) Serious violations of criminal procedures
I am not repeating the serious violations that took place during the police investigation and the prosecution, as well as the preliminary court trial that I have already referred to in the attached plea. I will only present serious violations of the Code of Criminal Procedure during the Court of Appeal trial.
a)
Lack of witnesses and obstruction of witnesses
My husband’s lawyers suggested that the Court of Appeal summon a total of 17 witnesses, among whom there were the people who had been accused many times in the preliminary sentence such as Tran Van Hoa, Vu Quoc Dung, Nguyen Dinh Thang, Tran Ngoc Thanh, and Nguyen Van Ly. Only one third of the suggested witness list was summoned to testify. The court gave no reasons as to why the remaining list was not called forth. Some witnesses on the suggested list informed us that they dared not, having been intimidated, go to the court.
One important witness, Mr. Pham Van Troi, was arrested by the police immediately after he arrived at the gate of the Hanoi Supreme People’s Court for the appellate trial in the morning of November 27, 2007. This was a violation of the law on the part of the police. Mr. Troi was taken to the police station of Tran Hung Dao ward, Hanoi, and both on the way to and at the police station, he was brutally beaten up. After a 3-hour detention he was brought back to his residence and placed under local administrative supervision. Mr. Troi reported that prior to the appellate trial the Ha Tay province police had repeatedly visited his residence, threatening him out of his plan to go to Hanoi to serve as a witness. Obviously, the police obstructed a court-summoned witness. More seriously, judge Nguyen Minh Man did not act appropriately while presiding over the trial. He did not allow defense lawyer Le Cong Dinh to read witness Troi’s charge. [Troi filed a charge against the police’s harassment intended to prevent him from testifying before the Court of Appeal.] Judge Man claimed that the court had already re-ceived Troi’s request for absence with the assurances that his declarations with the investiga-tive police were still holding true. This clearly contradicted with the fact that just five minutes earlier court clerk Nguyen Hai Bang had reported that Mr. Troi was a "No Show". As an ex-tremely important witness, Mr. Troi is the one who has witnessed, from start to finish, the re-lationships between my husband and college students from Ha Nam, and will be able to con-front, if need be, the students in search of the truth before the court of law.
b) Lack of consideration of evidences and new documents
One of the new documents my husband’s defense lawyers submitted to his dossier is my plea titled "My husband is a patriot. My husband is innocent," in which I have presented many evidences to support my husband’s innocence. As mentioned above, the fact that the appellate sentence retains wrong decisions of the preliminary sentence shows the Court of Appeal dis-regarded the responsibility to examine new evidences, as provided for in Paragraph 2, Article 246, Code of Criminal Procedure.
My husband is a judicious lawyer who acts only on the basis of current laws. I share the views of my husband’s lawyers that the Court of Appeal should have applied all current laws, not just the Criminal Code, with respect to the trial of my husband’s case. It is my belief that in addition to Article 88 of the Criminal Code, the court should have applied the following Vietnamese and international laws:
• The International Covenant on Civil and Political Rights that Vietnam accessed in 1982, specifically Article 19 regarding the right to freedom of speech, which is further
interpreted in the General Comments of the United Nations Human Rights Committee, No. CCPR/C/21/Rev 1, issued May 19, 1989.
• The 2005 Law on the Signing, Accession, and Implementation of International Trea-ties, specifically Article 6 stipulating the precedence of international treaties over Vietnamese laws in the event of the latter contradicting with Vietnam-accessed inter-national treaties.
• The 2006 Law on Lawyers, specifically Article 3 regulating that the lawyer’s social responsibilities are to
"contribute to the protection of justice and development of eco-nomic issues, as well as to build a just, advanced, and democratic society."
The above are totally new evidences as they were not provided at the preliminary court trial but later submitted as supplementary evidences by my husband’s defense lawyers to the Court of Appeal. During the appellate trial, both Judges Nguyen Minh Man and Cu Dinh Thang re-peatedly prohibited my husband’s defense lawyers from arguing the merits of international treaties. Judge Thang even declared that defendants’ acts would be judged guilty according to Vietnam’s Criminal Code only. No reference was made in the appellate to these new evi-dences and documents.
4) Shallow inquiries and interrogations
As discussed in Parts 1 and 2 above, the police and the People’s Procuracy have reached ambigu-ous judgments based on their sloppy investigations. My plea has pointed to these investigative mistakes. Judging from the developments of the appellate trial, I had an impression that my hus-band’s appellate sentence had been predetermined and that allowed debates were simply a for-mality. Many times, the prosecutor overrode the presiding judge when directing the course of the trial or preventing defense lawyers from questioning the witnesses.
The judges obstructed all my husband’s lawyers from defending his case. Lawyer Dang Trong Dung was interrupted for a total of 15 times while reading his defense. Many times, his argu-ments sounded fragmentary as he was not allowed to finish his points of defense. Most noticea-bly, a rowdy audience was allowed to intimidate the defending lawyers, even shouting for kick-ing them out, in which the presiding judge showed no interest to intervene.
The Court of Appeal allowed only over 30 minutes to argue for such a complicated case, thus making unavoidably erroneous judgments. The presiding judge and the prosecutor did not let the lawyers argue for the contents of the case while the presiding judge did not caution the procurator to respond directly to the lawyers’ questions. During the trial my husband appealed, to no avail, for an argument over his article titled "The Right to Form Political Parties" to determine which part of the article is of anti-State content. In brief, considering the civil rights provided for under the [Vietnamese] Constitution of 1992 and Vietnamese laws, as well as international treaties. My husband and his lawyers were not able to argue with the prosecutor for whether or not my hus-band (the subject) has committed a specific act (the objectivity of criminal acts), for a specific motive (the subjectivity) , against the State (the object),
On December 7, 2007, defense lawyers Le Cong Dinh, Dang Trong Dung and Bui Quang Nghiem submitted an appeal to the Chief Justice of the Supreme People’s Court with regard to violations of the law during the Court of Appeal trial, but they have yet received any responses.
For the above reasons, as well as according to Article 273, Code of Criminal Procedure, these grave violations are solid grounds for me to lodge a protest according to cassation procedures.
ARTICLE 273
: Grounds for lodging a protest according to cassation procedures:
Legally valid judgments or decisions shall be protested according to cassation procedures if one of the following grounds exists:
a Inquiries and interrogations at the court trial are shallow or insufficient.
b Court judgments or decisions are not consistent with the objectivity of circum- stances.
c Grave violations of criminal procedures are committed during the investiga-tion, persecution, and trial.
d Grave mistakes are made in the application of the Criminal Code.
It’s worth noting that only ONE of the four grounds is required for cassation whereas all FOUR grounds of this article are violated in my husband’s case. They are: shallow inquiries and interro-gations; inconsistency of court decisions with the objectivity of circumstances; grave violations of criminal procedures; grave mistakes in the application of the Criminal Code.
It is, THEREFORE, by virtue of Article 274, Code of Criminal Procedure, that I am petitioning to the Chief Justice of the Supreme People’s Court and the Procurator-General of the Supreme People’s Procuracy for a protest according to cassation procedures. Considering the above grave violations,
my husband has been unjustly sentenced. In view of the fact that my husband has been imprisoned for more than 14 months, I hereby petition to the Court of Cassation for a speedy review of my husband’s case. I also suggest that the Court of Cassation record in my hus-band’s sentences specific evidences and arguments to avoid ambiguous decisions that had been reached at previous trials.
Respectfully yours,
Hanoi, May 12, 2008
Wife of Lawyer Nguyen Van Dai
Vũ Minh Khánh
Attachment: "My husband is a patriot. My husband is innocent" (My plea submitted to the Court of Appeal)