Helga Law Journal - 01.01.2021, Síða 106

Helga Law Journal Vol. 1, 2021
110 111
Article 73 para 2 concerning the freedom of expression and Article 74 para
3 regarding the right to peaceful assembly both existed before the constitutional
review took place in 1995.7 The review resulted in considerable changes being
made to these Articles, especially to Article 73.8 One of the main reasons was to
broaden its scope so that the wording of the provision would no longer be
restricted to the right to express thought on print but would include all forms of
expression and provide them the status of constitutional protection.9 The
changes were furthermore supposed to make the provision compatible with
Iceland’s international commitments, in particular Article 10 of the
Convention.10 Article 73 para 2 now simply states that everyone has the right to
express their thoughts and does not specify what kind of expression is protected.
As is evident from scholarly writings and judgments by the Supreme Court of
Iceland the scope of the provision is interpreted in a broad sense so that it applies
to all forms of expression.11
The Supreme Court of Iceland has since the constitutional amendments
were made in 1995, on a few occasions dealt with the issue of the constitutional
right to protest. In 1999 the Court addressed the question whether and in what
way the right to gather for a peaceful protest was guaranteed in the Constitution.
The case in question regarded damages claims made by eight individuals against
the Icelandic government. They had been arrested in Austurvöllur, a traditional
assembly forum in Reykjavík, when they were protesting while an episode of the
television show “Good Morning America” was broadcasted directly in the
United States. The protestors were yelling, chanting and carrying both signs and
the national flags of the United States and Cuba, with the protest aimed at the
American government. The Court found that these actions were expressions of
thought and were therefore protected under Article 73 para 2. The Court then
went on to state that the right to express one’s thought through peaceful protest
was inherent in Article 73 para 2 and Article 74 para 3 of the Constitution.
Furthermore, the Court emphasized that the right to a peaceful protest was
guaranteed with these provisions and would not be limited unless the conditions
put forth in Article 73 para 3 were fulfilled.12 As the arrests were considered to

7 Thorarensen, 34; In the first Constitution of the Republic of Iceland, from 1874, (Stjórnarskrá um
hin sérstöku málefni Íslands), a limited freedom of expression was protected in Article 54: Every man
has the right to express his thoughts on print, even so shall he be responsible for them before a court
of law. Censorship and other limitations on the freedom to print can never be legalized. Article 56
stipulated the freedom for peaceful assembly: Men have the right to assemble without arms. The
police has the authority to attend public gatherings. Public gatherings in the open may be banned, if
feared that they will lead to disorderly conduct.
8 Schram, 461.
9 Thorarensen, 349.
10 Thorarensen, 350; Eiríkur Jónsson and Halldóra Þorsteinsdóttir, Fjölmiðlaréttur (Fons Juris 2017)
[Jónsson & Þorsteindóttir] 54.
11 Schram, 572; Jónsson & Þorsteinsdóttir, 75; Hrd. 819/2014; Hrd. 65/1999.
12 Article 72 paragraph 3 reads as follows: Freedom of expression may only be restricted by law in
the interests of pulic order or the security of the State, for the protection of health or morals, or for
the protection of the rights or reputation of others, if such restrictions are deemed necessary and in
agreement with deocratic traditions.
Elsa Ieland’s Law Review
1 How is the right to protest guaranteed in the
constitutional framework of your country and how
has it adapted in reaction to national social
movements?
The Constitution of the Republic of Iceland No. 33/1944 does not state
explicitly that people have the right to protest. That right is nevertheless
guaranteed on the grounds of two separate provisions of the Constitution, Article
73 para 2, that guarantees the freedom of expression and Article 74, which
ensures both the right to freedom of association and the right to peaceful
assembly. Both of these rules are regarded as being fundamental for a democratic
society to prosper.1 The freedom of assembly and the freedom of expression are
in many aspects intertwined. If a public protest is stopped or banned in an
unlawful way it is not always clear whether the right to freedom of expression or
the right to peaceful assembly has been violated, or both.2
The human rights provisions of the Constitution remained unchanged for
over 120 years, as non-substantial changed were made to these provisions from
the time the first Icelandic Constitution was issued by the King of Denmark in
18743 until 1995 when extensive revision took place on the human rights chapter
by Constitutional Act No. 97/1995.4 In 1994, the Icelandic parliament passed a
resolution to review the human rights provisions of the Constitution and
modernize them. Many of these provisions were seen as outdated both in
wording and content and not consistent with a modernized society. In addition,
there were no provisions on many fundamental rights that were guaranteed in
international human rights treaties that Iceland had ratified. One of the main
reasons for the amendments in 1995 was to modernize these provisions and
make them coherent with the international commitments on human rights that
Iceland had become a party to at that time, in particular the European
Convention on Human Rights (here after “the Convention”).5 The Convention
had been ratified by Iceland in 1953 but first incorporated in its entirety into
domestic law in 1994 by Act 62/1994. The status of these laws and the hierarchy
in comparison with the Constitution was however uncertain. The amendments
were supposed to ensure that these rights were guaranteed on a constitutional
level. Following these changes, the Constitution covered rights that had not been
protected by it before and other provisions were modernized.6

1 Gunnar G. Schram, Stjórnskipunarréttur (Háskólaútgáfan 1997) [Schram] 449.
2 Schram, 601.
3 Stjórnarskrá um hin sérstöku málefni Íslands
4 Björg Thorarensen, Stjórnskipunarréttur.Mannréttindi (2 th edn, CODEX 2008) [Thorarensen] 27, 30-
31; Schram, 589.
5 Thorarensen, 32-33, Schram, 459-460.
6 Thorarensen, 33-34.
International Legal Research Group