Reykjavík Grapevine - des. 2020, Blaðsíða 10

10 The Reykjavík Grapevine
Issue 10— 2020
Rights.”
R a g n h e i!u r r a n i n t o s i m i l a r
obstructions in trying to defend their
case.
"All of our defenses—the freedom
of expression, the right to protest and
your obligation to help a person who is
in danger—whether the judge agrees
with them or not is one thing,” she
told us. “But a judge should definitely,
if they disagree, give their reasons for
it. This is very important in any prec-
edent that they're setting; to explain
how they came to their verdict. This
was totally lacking in the District
Court. Our defenses were answered in
one sentence, which was 'the freedom
of expression is under certain restric-
tions, so this defense cannot be applied
here'. So essentially going to the Appel-
late Court is wanting to challenge that,
to challenge a verdict that didn't give
any reason to why our defenses were
being dismissed or not agreed with."
[UPDATE: The Appellate Court has
ruled in their case, giving them a two
year suspended sentence and 1 million
ISK in legal fees. They are at the time
of this writing undecided on their next
steps.]
Can we see
the evidence
against us?
One of the primary elements of any
trial , civil or criminal , is that of
discovery: that the defense team and
the prosecution have equal access to
all evidence in a trial, whether that
evidence goes towards or against an
accused’s guilt or innocence. In the
course of our investigations, we found
that the defense team is often severely
restricted in terms of what evidence
they have access to.
In the case of the Ministry sit-in
arrests, for example, Elínborg and
He l g a c on f i r m e d t h a t t h e y h a d
requested the entirety of the video
security footage of the protest in
question. Instead, they were offered a
single video screenshot.
"The prosecution said that they
have investigated this case fully, but
they don't see the point in getting all
the tapes [to me],” Helga confirmed.
“So now the justice is deliberating on
how he's going to rule on all the access
to these tapes."
"[Access to discovery] is a prob-
lem, I agree,” Sigrún says. “We've had
cases about the obligation of the police
to reveal their evidence. Especially in
the criminal cases that we had after
the crisis in 2008, where there were a
lot of documents and the prosecutors
choose which documents they wanted
to present to the court and the defen-
dant's lawyers were saying 'well we
want to see all of the documents, what
if there's something in there that is
actually beneficial for my client?' That
right has not been confirmed by the
Supreme Court.
“Instead, the police can, to some
extent, limit access to documents.
More generally speaking, there is no
absolute right to equal access to all
evidence gathered by the police. With
things like videos, you don't actually
get access to them; you go to the police
to look at them, which we've been
arguing breaches the Equality of Arms
principle; that there should be equality
in the court room, so you should have
access to all the same files and have the
same kind of access to them.
“The thing is,” Sigrún continues,
"under the Icelandic Criminal Proce-
dural Act, the prosecution is under
a legal obligation to remain neutral
and this means to present both sides;
whether it indicates the defendant is
innocent or guilty. It's something that's
complicated and has been discussed by
lawyers in this field, for a long time.”
Surely you can
appeal, right?
The right to appeal is another impor-
tant function of a democracy’s judi-
cial system—that if you were found
guilty in a lower court, you should be
able to appeal the matter to a higher
court. That function also exists in the
Icelandic court system, but it can get a
little bit complicated when it comes to
protest cases.
"We have this both in criminal cases
and private cases, that in order to
bring a case before the Appellate Court
in Iceland, they need to meet a mini-
mum threshold of a sentence,” Sigrún
explains. “Generally, in criminal cases,
this means you've been sentenced to
prison, or that you were ordered to
pay a fine in excess of around 1 million
ISK; it's indexed, so it changes slightly
every year. But this is not absolute;
there is an exception, and that excep-
tion is if you have a case—both crimi-
nal and private—that you believe was
wrongly adjudicated, or if you believe
it's important for society or yourself to
get the Appellate Court's judgement,
then you can request a grant of appeal.
We've seen this in cases such as those
that concern freedom of speech, where
people have been found guilty of defa-
mation and ordered to pay compen-
sation well below 1 million ISK, but
nonetheless been granted an appeal. ...
But it isn’t without risk because if you
lose the appeal, you will likely end up
increasing the costs."
Helga agrees, adding that the
daunting prospect can have a chilling
effect on even going forward with an
appeal in the first place.
"They could make an exception
because it's a principled case of human
rights, but if they're denied, they have
to go to the Supreme Court,” she says.
“It will be very interesting if [these
cases] go to the ECHR. They talk a lot
about the chilling effect. So even if the
fine is only 10,000 ISK, if the legal fees
are like 600,000 ISK, this has a chill-
ing effect. It prevents people from
being able to exercise their freedom
of expression. I think the ECHR would
look at this as a punishment in itself."
What needs
to change
Elínborg emphasises that the broad
use of Article 19, its narrow interpre-
tation by the courts, and other issues
have been an ongoing problem in
Iceland for a long time.
“This is how it's been for years
now,” she says. “There have been
people persecuted many times before
for precisely this, breaking the 19th
article and nothing else. It seems like
the Icelandic courts just want to keep
it that way. They don't look at it in
terms of ‘why was the order given? was
it reasonable?’ They don't care. They
just ask ‘was the order given and did
you obey it?’ If you didn't, you're guilty.
This is what we're dealing with. It's up
to people in society, I feel, to decide if
it's something they find acceptable.
Because obviously the court system
itself isn't going to change it.”
"I would like to make Article 19
stricter, and provide directly that citi-
zens only have to obey the orders if
the behaviour is unlawful,” Ragnar
says. “You have a right to express your
opinion, individually or in a group, and
that needs to be balanced against the
inconvenience that the protest might
have resulted. I would like to see the
Icelandic courts go the same route as
the European Court of Human Rights
in accepting there's going to be some
inconveniences involved in most
protests.”
For her part, Sigrún envisions more
comprehensive changes on multiple
levels.
"The most important role is played
by the judge,” she says. “That the
judge follows what we have said in our
society are the principles that we're
supposed to walk through to come to
a conclusion. It's really important that
the District Court judges go through
the correct procedure in finding some-
one guilty. It's not like people are never
guilty and should never be found guilty,
but the correct path must always be
taken to finding someone guilty. There
was once an English judgement that
said something to the effect that 'the
appearance of justice is equally impor-
tant as justice itself'."
Helga, in fact, would like to see
the matter brought all the way to the
ECHR, in the hopes of bringing some
much-needed reforms to Iceland.
“I want to take this all the way [to
the ECHR] because comparing the
Icelandic court cases to the ECHR;
well, we're out of control with our
police orders here,” she says. “It's not
in line with what's normal in a demo-
cratic society.”
Elínborg Harpa Önunardóttir, activist