Helga Law Journal - 01.01.2021, Page 110

Helga Law Journal Vol. 1, 2021
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to an unlawful arrest but applies to other measures as well that are described in
chapters IX-XIV of the Criminal Procedures Act, for example the use of wiretaps
and other similar electronic surveillance measures. It is quite clear from assessing
the case law from the district courts and the Supreme Court that claims regarding
violations on the right to protest are generally based on both Article 246 para 3
and Article 26. There was a case in 2009 regarding a violation of the right to
protest where claims for compensations were only made on the grounds of
Article 246 para 325 but this is the exception, claims are generally made in these
cases on the grounds of both provisions.26
An example of this is the Supreme Court judgements in Hrd. 65-70/1999,
were eight individuals claimed that their constitutional right to expression
guaranteed in Article 73 of the Constitution had been violated when they were
arrested while they were protesting and furthermore detained in the police station
for three hours. They based their claim for compensations on Article 246 of Act
No. 88/2008 and Article 26 of Act No. 50/1993. The Court found that these
arrests had been unlawful, and they received compensation for non-pecuniary
damage. It was the Supreme Courts assessment that the first condition in Article
73 paragraph 3 which states that the restrictions need to be prescribed by law
was not fulfilled.
3 What is the impact of the European Convention
on Human Rights and the case law of the
European Court of Human Rights on the right to
protest in your country?
The human rights chapter of the Constitution of Iceland was revised in the year
1995 with the aim to modernize the human rights provisions and update it in
accordance with international obligations that the Icelandic state had undertaken
with participation in various international agreements.27 One of those agreements
was the European Convention on Human Rights (ECHR) which was enacted as
law in Iceland on the 19th of May 1994, as Act No. 62/1994. In the explanatory
report on the parliamentary bill on the Act it was stated that the human rights
provisions, as they were before the revision in 1995, had become obsolete. Even
though the enactment of the Convention would not change their meaning, it
would result in a broader interpretation of the rights in accordance with the
Convention. In the report it also said that the Constitution would have to be
revised, especially in regard to the ECHR.28 Thus when the Constitution of
Iceland was revised in 1995, regard was taken to the ECHR. It is also apparent

25 E-6474/2009.
26 Hrd. 802/2014; Hrd. 65-70/1999; E-2924/2013; E-1441/2013; E-4007/2008.
27 Björg Thorarensen, Stjórnskipunarréttur. Mannréttindi (Codex 2008) 106.
28 Alþt. 1992-1993, A-deild, p. 5892.
2 Does the national legal system provide an
effective remedy to individuals who claim that
their right to protest has been violated?
The Icelandic legal system does provide effective remedies to individuals who
claim that their right to protest has been violated. If an individual feels that his
right to protest was restricted in an unlawful manner or his right has in other
regards been violated, he can bring a case before the appropriate district court
and make a claim for punitive damages on the grounds of Article 26 of the Tort
Act No. 50/1993 (ICE). If the restriction in question also regards an unlawful
arrest, as many of them do, then compensations can further be based on Article
246 para 3 of the Criminal Procedure Act No. 88/2008 (ICE). The Article states
that a person has the right to compensations if that person has suffered a loss as
a result of measures described in chapters IX-XIV of the Act.21
As illustrated in the answer to the first question, the right to protest is
guaranteed in the Constitution, on the grounds of two separate provisions,
Article 73 para 2, that guarantees the freedom of expression and Article 74 para
3, which protects the right to peaceful assembly. Furthermore, that the right to
protest is not without limitations and that certain conditions need to be fulfilled
in order for a restriction on this right to be justified. If the freedom of expression
is to be limited, then the conditions specified in Article 73 para 3 need to be met.
According to that provision restrictions need to be prescribed by law, in the
interest of one of the aims specified in the provision and the restrictions need to
be necessary in a democratic society. All of these three conditions need to be
fulfilled.22 The right to peaceful assembly can likewise be restricted and public
gatherings in the open may be banned if there is a threat of riots. In addition to
these similar conditions as the ones that pertain to the limitations on freedom of
expression have been applied on the grounds of Article 11 para 2 of the
Convention23. This means that if the limitation in question meets all of these
conditions, then there has not been a violation on the right to protest and the
individual will have to tolerate the restriction and does not have the right to get
compensations.
The vast majority of cases concerning the right to protest involve an
unlawful arrest and that is the reasons for claims being made on the grounds of
Article 246 para 3 of the Criminal Procedure Act in addition to Article 26 of the
Tort Act.24 It is important to bear in mind that Article 246 para 3 is not restricted

21 Chapter XIII regardes Arrests.
22 Schram, 581, 601.
23 According to that provision no restrictions shall be made on the exercise of the right of peaceful
assembly other than such as are prescribed by law and are necessary in a democratic society. They
furthermore need to bee in the interests of national security or public safety. When assessing weather
or not an interference with the right to protest is justified the Supreme Court of Iceland has applied
these conditions as is evident from its jurisprudence; Hrd. 65-70/1999; Hrd. 812-820/2014.
24 Hrd. 802/2014; Hrd. 65-70/1999; E-2924/2013; E-1441/2013; E-4007/2008.
International Legal Research Group