The Case of the Pacifican Freedom Fighters
The case of the Pacifican Freedom Fighters
(the cases of Gazda v. Atlantica and Pacifica and Frosty v. West Atlantica) before the European Court of Human Rights
THE CIRCUMSTANCES OF THE CASE:
A. The parties involved:
1. Applicant no. 1, Mr. Revor Gazda, is a 32 year old Pacifican citizen. He is a lawyer by profession and is currently a Member of the Parliament of Pacifica and a member of the opposition Pacifica Freedom Party (PF Party). He was elected to Parliament in the general election of 2011. He is the most outspoken MP from the PF party and has publicly advocated using armed force as a means of attaining political goals if other measures have failed. He is currently being detained by authorities in the state of Atlantica and has also been convicted, in absentia, in his home state of Pacifica for the crime of “approving of terrorist attacks”.
2. Applicant no. 2, Mr. Eric Frosty, is a 23 year old Pacifican citizen. He worked, from September 2008 to March 2012, as an IT expert providing IT services to the Government of Pacifica, including both the Ministry of the Interior and the Ministry of Foreign Affairs. As described below, he is wanted in Pacifica on suspicion of having committed crimes in connection with disclosing confidential Pacifican government information. He has managed to escape to West Atlantica, where he is currently staying in the transit zone of the Teremetovo Airport.
B. The states involved:
3. The state of Pacifica is officially a constitutional monarchy with a parliamentary system of government. Independent observers and NGOs from Pacifica and abroad have stated that Pacifica is, in practice, not a truly democratic state based on rule of law. The monarch is respected and popular, but it is considered that he does not hold any true political power. On the other hand, the ruling Pacifica Democratic Movement Party (PDM party) has held an absolute majority in Parliament ever since elections brought it to power in 1950; independent observers have consistently cited a lack of transparency in elections.
4. Foreign states allied with Pacifica consist of a wide range of countries, including Atlantica, Southland and Northland. Atlantica is a permanent member of the UN Security Council. These States support Pacifica and the ruling regime, since the regime has managed to maintain stability in the country (this stability has been interrupted by armed attacks conducted by PF fighters since 2011), including economic stability. Economic stability is important to allied states, given that Pacifica is the sole producer in the world of nanobit. Nanobit is a rare‐earth mineral that is currently necessary for manufacturing mobile phones. Despite evidence of undemocratic practices in Pacifica, no sanctions have ever been imposed or approved by the international community or international organizations (such as the UN) against Pacifica, since Pacifican allies are members of the Security Council.
5. The state of Atlantica is a federal state and is highly developed. It is Pacifica’s main economic partner and imports nanobit from Pacifica. Atlantica currently has a ratio of 3 mobile phones per inhabitant and has a highly sophisticated mobile phone 4G network. Atlantica is an ally of the Pacifican government and of the ruling PDM party.
6. The state of West Atlantica is a small rich unitary state that is independent in terms of resources and has been independent in terms of its political and international decision‐making and relations. A state research institution in West Atlantica has developed a viable new technology that eliminates the need for nanobit in mobile phones and mobile phones manufactured in West Atlantica already use this technology. However, this technology has not been licensed abroad and is not used in mobile phones manufactured anywhere else in the world; it is also unclear when and if the technology will be licensed abroad.
7. The state of Nekvador is a small poor unitary state that has, on previous occasions, offered invitations to PF party politicians and PF fighters for official visits. Nekvador has advocated the release of Mr. Revor Gazda following his detention in Atlantica. Nekvador has also stated that it would consider offering asylum to Mr. Eric Frosty, should he present himself at a Nekvadorian embassy or on Nekvadorian soil to request asylum in person. Nekvador has stated that its national airline, Nek Air, which has direct flights from Nekvador to Teremetovo Airport, would allow Mr. Frosty to board the flight to Nekvador in order to seek asylum there.
8. Several Nek Air flights on route from Teremetovo Airport to Nekvador have, while in Pacifican airspace, been forced to land in Pacifica. Pacifican authorities have searched the airplane for Mr. Eric Frosty (who was never on board) and then allowed to continue to Nekvador. Similarly, several Nek Air flights on route from Teremetovo Airport to Nekvador have, while overflying Southland, been forced to land in Southland, so that Southland authorities could search the airplane for Mr. Frosty (who was never on board).
C. The other circumstances of the case:
9. The Pacifican Freedom Fighters (PF fighters) are an armed group established in 2010. They have undertaken armed attacks in the state of Pacifica against nanobit mines, nanobit processing plants and mobile phone network infrastructure. Some independent observers have described them as a terrorist group, while others have considered them to be an armed group fighting for a just cause. The PF fighters are opposed to the mining and processing of nanobit in Pacifica and have cited environmental and health reasons for their opposition. They have also conducted attacks abroad in Atlantica, Midland, Northland and Southland, both against nanobit processing plants and mobile phone infrastructure; the attacks have caused material damage, but also extensive civilian casualties.
10. On 1 January 2012, the PF fighters performed a horrific attack against Shop’n’fone, a large electronics and mobile phone megastore located in an upscale shopping plaza in Atlantica. The attack resulted in the destruction of the megastore, damage to the shopping plaza and also caused the death of at least 20 civilians and injury to 200 civilians.
11. The PF fighters claim that their attacks are performed with the intention of stopping nanobit mining and processing, as well as with the intention of bringing about political change in Pacifica, namely, free and fair elections. The PF fighters are considered to be the armed wing of the PF Party.
12. The PF Party was established in 2000 and has, ever since then, been in opposition to the ruling PDM Party. The PF party opposes nanobit mining and processing. However, the political work by the PF party has not resulted in any policy change by the Pacifican government, which supports nanobit mining and processing. No policy change has been brought about in other states which also currently use and process nanobit. However, West Atlantica has developed an environmentally friendly and safe alternative, as described above.
13. The PF party has not been able to win elections or gain a significant representation in the Pacifican Parliament – they claim this is due to elections in Pacifica not being free and fair, giving the ruling PDM Party consistent absolute majorities. Other than allegedly being unable to benefit from free and fair elections, the PF party has not been otherwise persecuted; its members have not been persecuted or discriminated against by the Pacifican government. Voters have also never been intimidated. Independent observers have noted that the system of counting ballots by election committees is not transparent, which means that votes cast for opposition parties may not be fully counted. In 2011, when the last general elections were held, the PF party officially obtained 7% of the popular vote. The PDM party officially obtained 52% of the popular vote. Other smaller opposition parties and parties representing ethnic minorities obtained the rest of the popular vote. It is unclear which party would have won the election, had it been free and fair.
14. Mr. Revor Gazda, MP (PF party), is the chairperson of the PF party political fraction in the Parliament of Pacifica and is also a member of the Parliamentary Mining Committee. He has tabled several legislative proposals in Parliament aimed at scaling down and ending nanobit mining and nanobit processing in Pacifica. These proposals, however, have not been adopted by the Parliament. In fact, the Parliament has not yet even debated these legislative proposals, even though they have been tabled for many months. The Rules of Procedure of the Parliament of Pacifica dictate that a legislative proposal tabled by an MP must be deliberated on in a first reading within 60 days, which has not happened, due to the PDM Party parliamentary majority refusing to allow a first reading on these proposals.
15. Mr. Gazda has used his position as MP to speak in plenary sessions of Parliament in support of the armed attacks conducted by the PF fighters and has been quoted as saying, in the plenary, that they represent a “legitimate means of opposition to an undemocratic government, where all political efforts to make nanobit mining an issue for political discourse have failed over the past
10 years since the ruling party maintains its power through undemocratic vote‐rigging”. It is not clear whether Mr. Gazda is also a member of the PF Fighters but he clearly has supported and sympathized with them in the parliamentary speeches he has made.
16. Mr. Gazda has been seen meeting with PF Fighters representatives in his constituency office and has also, from time to time, taken them to lunch in the Pacifica parliament’s restaurant that is reserved for MP’s and their guests. He has brought them to committee meetings in Parliament as guest observers.
17. On February 1, 2012, Mr. Gazda was on an official visit to the Atlantica, in his capacity as member of the Parliament of Pacifica. He was travelling on a diplomatic passport issued by Pacifica1. In Atlantica, he was apprehended by Atlantican government security service personnel. He was then quickly transported to a building operated by Atlantica, but located on the Antarctic continent. He has been detained in Antarctica ever since. The Atlantican branch of the Red Cross has visited him on several occasions as well as lawyers that he has contacted. They have all
1 MP’s are routinely issued diplomatic passports in Pacifica, even though they are not ambassadors or embassy employees confirmed that he has not been physically abused, he has been provided warm shelter, adequate food, clothing, and access to religious literature of his choice. However, he has not been charged with any crime nor has he been presented to a court or to a judge. Atlantican authorities claim his detention is in accordance with the Anti‐terrorism Act (Atlantica, 2002), which allows authorities to detain persons suspected of terrorist activities for the time necessary to investigate their involvement in such activities, before charging them with a crime or releasing them. Upon adopting the Anti‐terrorism Act, Atlantica had sought to derogate from Article 5 of the European Convention on Human Rights on the grounds of national security, citing terrorist attacks by the PF Fighters as justification, and had taken the required steps to notify the derogation, as required by the European Convention on Human Rights.
18. Mr. Gazda has been questioned several times at night. During these questioning sessions, he has been subjected to forced sleep deprivation and has been questioned for up to 24 hours nonstop. During these questioning sessions, Mr. Gazda has, at times, reluctantly provided Atlantican authorities with information regarding the PF Fighters and their activities. It has been speculated by the media that his arrest and detention in Atlantica is in connection with the massive armed attack performed in Atlantica by the PF fighters on 1 January 2012 which Mr. Gazda had mentioned and spoken favorably of in one of his parliamentary speeches on 25 January 2012. Media have since speculated that Mr. Gazda’s speech in Parliament mentioned some details of the armed attack that were not publicly known at that time, raising possible questions about how he obtained such detailed information. At present, there is no recourse under Atlantican law available to Mr. Gazda to challenge his detention as Antarctica is not considered by Atlantican courts to fall within national territory. Atlantican courts have rejected a habeas corpus petition filed before Atlantican courts by lawyers acting on Mr. Gazda’s behalf, citing a lack of jurisdiction.
19. Pacifican authorities have not commented on Mr. Gazda’s detention by Atlantican authorities. Independently of these events, Pacifica issued its own arrest warrant for Mr. Gazda on July 1, 2012, having convicted him, in absentia, of the crime of approving of terrorist attacks (in the context of his speech on 25 January 2012 in the Pacifican Parliament). He was sentenced to 25 years in maximum security prison with hard labour (prisoners are forced to work in a prison‐run nanobit mine processing plant). No appeal is available against an in absentia conviction under Pacifican law and no possibility of renewing the conviction exists. Atlantica has stated that it is not detaining Mr. Gazda on the basis of the Pacifican arrest warrant, but rather, on the basis of the Anti‐terrorism Act, 2002.
20. In late 2011, Mr. Frosty had discovered data stored on Pacifican Government computer servers that he was servicing. This data contained information which Mr. Frosty had found very troubling. Primarily, Mr. Frosty saw information which he believed to be scanned Pacifican Government memorandums that were labeled „Top secret“ and published from 1990 until 2011, in which the Pacifican Government outlined a secret research program which had confirmed that nanobit was an extreme health risk if not handled correctly (such handling is prohibitively expensive). The documents confirmed that nanobit mines, in their current state of technology, pose health risks to workers and nanobit processing plant workers are also currently at risk of cancer. The PF party had talked about the health risks of nanobit in Parliament before and these documents confirmed their suspicions.
21. When Mr. Frosty realized that the Pacifican government was deliberately not disclosing this information to the public he decided to disclose it himself by providing Pacifican media outlets and the PF party with a CD containing a copy of the information he was able to access. He did this on 10 March 2012, after hearing of the plight of Mr. Revor in Atlantican detention and realizing that the PF party’s opposition to nanobit processing and mining was supported by the Pacifican Government documents he had found. After these events, on 15 March 2012, Pacifica issued an arrest warrant against Mr. Frosty, having charged him with the crime of divulging classified information. The Pacifican Government suspects Mr. Frosty of committing the crime of disclosing classified information with the intent of causing serious economic harm to the state. He faces a prison term of life in prison and possibly the death penalty, but he has not yet been convicted.
22. Luckily for him, Mr. Frosty was able to depart on a flight to Teremetovo Airport (West Atlantica) on March 11, 2012. Upon arrival, Mr. Frosty attempted to go through West Atlantican passport control, but he was denied entry, as the immigration officer discovered that his passport was no longer valid and had been just revoked a few hours ago by Pacifica. West Atlantica has not permitted Mr. Frosty to enter the country because his passport is invalid (otherwise, no visa‐ restrictions apply and he would have been admitted as a tourist). West Atlantica has allowed him to remain in transit until he finds a final destination that will admit him. Mr. Frosty has now been staying in the Teremetovo Airport transit lounge. One option that West Atlantican authorities have indicated to Mr. Frosty would be for him to be processed as an asylum‐seeker.
23. West Atlantica sends all asylum seekers to Gabua Old Guinea for processing. All asylum seekers are, upon arrival in Gabua Old Guinea, detained in camps where they are processed. They are released only after a final asylum determination has been made (to grant or refuse their asylum application); according to West Atlantican national law, the minimum length of the processing period is 12 months, whereas a maximum processing time is not set. Mr. Frosty has formally lodged a formal asylum request in West Atlantica, but has requested that its processing be temporarily interrupted, while he considers other options, since he does not want to be sent to Gabua Old Guinea for processing. The flight to Gabua Old Guinea passes through Pacifican airspace and Pacifica could force the aircraft to land to apprehend Mr. Frosty. In addition, the human rights record in Gabua Old Guinea has been severely tarnished by recent reports of malnutrition and severe illness in several camps where persons seeking asylum with West Atlantica are kept for processing, caused by severe overcrowding. Recently, there has been a 500% increase in asylum seekers being processed in Gabua Old Guinea due to a natural disaster causing mass exodus of refugees from a number of other countries. Many of these refugees have applied for asylum in West Atlantica, causing the overcrowding in Gabuan facilities.
24. Mr. Frosty is also considering lodging a formal asylum request with Nekvador, which has expressed that if such a request would be lodged, it would be considered. However, the flight to Nekvador also passes through Pacifican airspace or the airspace of nations that are allies and friends of Pacifica. Mr. Frosty is afraid of travelling through Pacifican airspace or the airspace of allied nations, as there is a real risk that they would force such a flight to land to apprehend him, so that he could be prosecuted in Pacifica.
D. The proceedings before the European Court of Human Rights:
25. Case 1: on July 31, 2013, a lawyer acting for Applicant no. 1 made an application to the European Court of Human Rights, asking the Court to recognize a violation of Applicant no. 1’s rights and freedoms protected by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights). It is alleged that the violation is being perpetrated by both Atlantica and Pacifica.
26. Case 2: on July 31, 2013, a lawyer acting for Applicant no. 2 made an application to the European Court of Human Rights, asking the Court to recognize a violation of Applicant no. 2’s rights and freedoms protected by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights). It is alleged that the violation is being perpetrated by West Atlantica and Pacifica.
INFORMATION FOR TEAMS:
• Each team must prepare written submissions to the ECHR on behalf of Applicant no. 1 (case 1)
and Applicant no. 2 (case 2).
• Each team must prepare written submissions to the ECHR on behalf of Atlantica and Pacifica (case 1) and West Atlantica and Pacifica (case 2).
• It is to be assumed that the ECHR has jurisdiction to hear the case and that all available local remedies have been exhausted by the applicants or no remedies are available. It is to be assumed that the teams acting on behalf of Applicant no. 1 and 2 have been mandated by the applicants to make such applications before the ECHR.
• Assume that all states mentioned in the compromis have validly signed and ratified and are therefore state parties to the European Convention Human Rights, including all protocols to the convention that were in force on 15.9.2013. Atlantica has sought to derogate from article 5 of the Convention, in accordance with article 15 of the Convention, citing the terrorist attacks on its territory as justification. None of the states mentioned in the compromis are parties to the Antarctic Treaty. All states mentioned in the compromis have signed and ratified the International Covenant on Civil and Political Rights, the Convention against Torture and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
• The factual aspects of the circumstances of the case, as described above, are not in dispute by any of the parties, with the exception of the fact that the parties may not share the same views as the views of independent experts, observers or NGOs. However, the independent experts and observers are, for the purposes of the proceedings in the case, to be assumed to be highly credible and reliable sources of information.