Helga Law Journal - 01.01.2021, Síða 108

Helga Law Journal Vol. 1, 2021
112 113
is in accordance with the fact that domestic laws in Iceland are interpreted in
light of international commitments.
The constitutional guarantee regarding the right to protest has not been
adapted explicitly as to apply to national social movements but rather due to
international commitments. The Convention had considerable influence on the
amendments and the official aim of the changes made in 1995 was in fact to
make the provisions consistent with international commitments, in particular the
Convention.15 It is evident from the fact that these are the only amendments to
these provisions of the Constitution that they were not made in relation to
pressure from national social movements but rather for the purpose of fulfilling
international commitments.
It is relevant to note here that from 2010 until 2013 there was a process in
place regarding the rewriting of the Constitution. This came in the aftermath of
the collapse of the Icelandic banks in 2008 and was an attempt to address the
repercussions of the economic breakdown and the extensive distrust towards the
political parties.16 A large protest referred to as the “Pots and Pans Revolution”
had taken place in 2008, which resulted in the government resigning.17 The
Icelandic parliament passed a law in 200018 establishing a consultative
Constitutional Assembly, whose purpose was to empower citizens to come
together in drafting a new constitution. The process was not without
complications and there were considerable setbacks along the way. In March
2011 the parliament appointed a new body, called the Constitutional Council to
finish the task of making a new constitution. The Council submitted its draft in
July 2011. This process concluded in 2013 when a bill based on the Council’s
proposals was blocked in the parliament.19 In the draft made by the Council the
right to association and the right to assembly were split up into two separate
provisions, in the Article on the right of assembly the right to protest was taken
as an example of the rights guaranteed by the Article.20 This would have been the
first time that the right to protest was explicitly identified in the Constitution.

15Alþingistíðindi. A 1994-1995. Document, 389. 2104, 2108.
16 Björg Thorarensen, ‘Why the making of a crowd-sourced Constitution in Iceland failed’
(Constitution Making & Constitutional Change, 26 February 2014) accessed 18 June 2018.
17 Thorvaldur Gylfason, ‘Constitution on Ice’ (SSRN, 24 November 2014) accessed 18 June 2018.
18 Act No. 90/2010 (ICE).
19 Björg Thorarensen, ‘Why the making of a crowd-sourced Constitution in Iceland failed’
(Constitution Making & Constitutional Change, 26 February 2014) accessed 18 June 2018.
20 Article 21 of the Proposal for a new Constitution for the Republic of Iceland: “All shall be assured
of the right to assemble without special permission, such as in meetings or to protest. This right shall
not be abridged except by law and necessity in a democratic society.”
lack clear legal basis, they were deemed to be in violation of the protestors right
to freedom of expression.
The constitutional protection of the right to protest was further confirmed
when the Supreme Court addressed a similar issue in 2014. The case regarded a
protest by a group of people who were protesting what they saw as the
irreversible damage to the environment caused by constructions taking place in
Gálgahraun, an area in the neighborhood of Reykjavik. While the protest was
peaceful, the presence of the protesters prevented the work from taking place,
since they were situated on the construction site and did not obey orders to leave
the premises. This concluded with the police forcefully removing them from the
construction site, while this took place some protesters were arrested. Just as in
the case from 1999 mentioned above, the Supreme Court found that the actions
of the protesters were expressions of thought guaranteed in Article 73 para 2 of
the Constitution. In addition to this the Court found that the general right to
protest was guaranteed in Article 73 para 2 and Article 74 para 3. The Court
nonetheless came to the conclusion that these limitations on the right to protest
were justified in the case and that the conditions set forth in Article 73 para 3
were fulfilled.
It is clear from these cases that the Icelandic Constitution guarantees
everyone’s right to use their freedom of expression to gather in protest. It is
furthermore equally clear that this right is not without limitations. Certain
conditions need to be met in order for an obstruction on the right to protest to
be lawful. An interference with the freedom of expression, protected under
Article 73 will be justified only if the conditions specified in Article 73 para 3 are
met, where it is stated that the freedom of expression may only be restricted by
law in the interests of public 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 conformity with democratic
traditions. In summary the restrictions need to be prescribed by law and in the
interest of one of the aims specified in the Article. Furthermore, and most
importantly the restrictions must be necessary in a democratic society, and in this
respect special emphasis is laid on the requirement of the principle of
proportionality All limitations need to meet all of these three conditions.13 The
same applies to the right to peaceful assembly guaranteed in Article 74 para 3.14
Peaceful assembly may be restricted and public gatherings in the open may be
banned if there is a threat of riots. In addition to this, similar conditions as the
one’s that pertain to the limitation on freedom of expression apply, according to
Article 11 para 2 of the Convention. There it is stated that no restrictions shall
be placed on the exercise of the right of peaceful assembly other than such as are
prescribed by law and are necessary in a democratic society in the interests of
national security or public safety. The Supreme Court of Iceland looks to these
conditions in its decision making as they did in the cases mentioned above, this

13 Schram, 581.
14 Schram, 601.
International Legal Research Group