Detainees are at the greatest risk of being tortured or subjected to aggressive, arbitrary treatment when they are held in incommunicado detention, with no access to lawyers. Incommunicado detention not only facilitates and perpetuates torture, but in itself can constitute cruel and degrading treatment and even torture.
Prisoners of conscience are routinely held completely incommunicado during the pre-trial investigation period. They are denied access to their families and legal representation during the investigation phase on the grounds that they have been charged with national security crimes. While they are detained incommunicado, prisoners of conscience can be subjected to intense physical and psychological torture and abuse in order to extract information and coerced confessions from them.
The UN Working Group on Arbitrary Detention (WGAD) has expressed concerns about the arbitrary and incommunicado detention of numerous Vietnamese dissidents over the years. In an opinion adopted on April 26, 2018, WGAD stated that the one-year incommunicado detention of activist Luu Van Vinh “creates the conditions that may lead to violations of the Convention against Torture, and may itself constitute torture or ill-treatment.” On November 12, 2017, Luu Van Vinh was allowed to meet with his family for the first time since his arrest on November 6, 2016.
On September 21, 2017, six Special Rapporteurs (SRs), including the SR on Torture, issued a communication raising concerns about the incommunicado detention of six human rights and religious rights activists: Nguyen Bac Truyen, Truong Minh Duc, Nguyen Trung Ton, Pham Van Troi, Nguyen Van Tuc, and Le Dinh Luong.
Vietnam’s state report to the UN Committee Against Torture (paragraph 150) states that the 2015 Law on Organization of Criminal Investigation Agencies prohibits preventing arrested persons and detainees from “asking lawyers or other persons to defend them or render legal aid” and also prohibits preventing “defense counsels or legal aid providers from making the defense or providing legal aid in accordance with the law.”
Numerous testimonies gathered from current or former prisoners of conscience have shown that in many cases, authorities do provide attorneys access to their clients or the evidence against them until immediately before the case goes to trial and without adequate time to prepare their cases.
Human rights activist Dang Xuan Dieu was denied the right to meet with his lawyers for the entirety of his stay in pre-trial detention center – 16 months — and in prison, where he spent five years before being exiled to France in January 2017. The lawyer appointed by Dieu’s family was only given access to the 4,000 pages file shortly before the court hearing in January 2013, leaving no time to prepare his defense. Human rights lawyer Nguyen Van Dai was only allowed to see his attorney two months before his trial, after more than two years in pre-trial detention.
Following indictment, Vietnamese authorities often continue to obstruct communication between human rights activists and their legal counsel. Trial dates are frequently rescheduled earlier or later with no warning to family or to defense counsel, leaving defenders with no representation in the courtroom. Trials are frequently very short, and allow defenders little to no chance to defend themselves, whether or not their legal counsel is present.
Vietnamese human rights lawyers are also regularly obstructed from the ordinary and lawful conduct of their official business, refused access to their clients, given limited opportunity to present their case in court, and denied access to materials on their laptops and cell phones during trials.
 CAT-VN found that all but one of the 60 former prisoners of conscience they interviewed for their 2014 report were held completely incommunicado during the pre-trial investigation period. More than half of those interviewed were also held in isolation cells during the initial investigatory part of their detention. All 18 of the former prisoners of conscience interviewed by Amnesty International for its 2016 report were subjected to prolonged periods of incommunicado detention, the longest lasting over two years. Campaign to Abolish Torture in Vietnam, “Vietnam: Torture and Abuse of Political and Religious Prisoners," 2014, ; Amnesty International, “Prisons within Prisons: Torture and Ill-Treatment of Prisoners of Conscience in Viet Nam," July 2016.
 Between 2001 and 2014, the UN Working Group on Arbitrary Detention (WGAD) concluded in 63 cases submitted to it regarding Vietnam that individuals were arbitrarily detained and charged with national security crimes under Criminal Code (1999 version) articles 79, 80, 87, 88, 89, and 258. Campaign to Abolish Torture in Vietnam, “Vietnam: Torture and Abuse of Political and Religious Prisoners," 2014.