Helga Law Journal - 01.01.2021, Page 111

Helga Law Journal - 01.01.2021, Page 111
Helga Law Journal Vol. 1, 2021 116 117 expression was that a provision where the conditions for interfering with the freedom of expression were added to the Icelandic provision in accordance with Article 10 paragraph 3 of the ECHR.37 After the modification of the Constitution in 1995 a number of judgements have been concluded regarding the freedom of expression, and some of them involving specifically the right to protest. In the case Hrd. 1999, p. 3386 (65/1999) the right to gather and protest was put to the test. In the case eight men had claimed compensation from the Icelandic state on the grounds that they had been unlawfully arrested when they were protesting at the same time an American television show, Good Morning America, was being filmed and broadcasted, in front of the Parliament of Iceland. The protest were directed against the American Government. The men had with them flags and signs with various slogans. They had yelled some slogans and were arrested within a half a minute. They were taken in for questioning and then released three hours later when filming of the show was over. The court stated that the right to protest was both protected by the provisions on freedom of expression and the freedom to assembly in the Icelandic constitution. In their conclusion the Court stated that: “This right would not be restricted unless on lawful grounds and for the sake of upholding general rules and to protect the state, health and morals of individuals, and be necessary and in accordance to democratic traditions, cf. article 73, paragraph 3, cf. also Articles 10 and 11 of the European Convention on Human Rights, enacted in Iceland with law no. 62/1994.” The conclusion of the case that the law which allowed the police to arrest individuals who were protesting was not clear enough, as the laws that restricted the freedom of expression should be very clear. In a more recent judgement, Hrd. 28th of May 2015 (802/2014), also regarded an individual who claimed compensation from the Icelandic state on the grounds of an unlawful arrest while protesting. The complainant had been arrested twice. The first time was regarded as necessary but the second one was regarded as unlawful as the law provision that the police based its arrest on did not apply. The Court did not specifically cite the ECHR, but both the plaintiff and appellee pointed out that political views are protected by article 73 of the Constitution, cf. Article 10 of the ECHR. Also, that an arrest is a great interference with the right to hold a meeting which is protected by Article 74 of the Constitution, cf. Article 11 of the ECHR. It could be concluded that in light of this judgement that the interpretation of the right to protest with regards to the ECHR has become a norm for the Icelandic Courts. This is also evident in the case Hrd. 28th of May 2015 (820/2014) (Gálgahraun) where protesters were arrested. The court found that the arrests had been lawful. The defence of the accused relied upon that actions of the police 37 ibid 400. that the intention of the legislator was that Icelandic courts of law would interpret the constitution in light of international commitments.29 In the practice of Icelandic courts, it is acknowledged as a rule that the courts should seek to interpret national law in accordance to international commitments, in general.30 For example in the judgement by the Supreme Court of Iceland in the case Hrd. 1998, p. 401 (274/1991), it states that certain Icelandic law provisions should be interpreted with regard to international agreements, for example the ECHR.31 The Icelandic courts did rarely apply or refer to the provisions of the ECHR following its ratificiation in 1953. But in the case Hrd. 1990, p. 2 (120/1989) there was a shift in the influence of the ECHR. This case was epoch-making regarding the use of the Convention in interpreting Icelandic law.32 The first case where the Court referred to the Convention regarding the freedom to expression33 was the case Hrd. 1992, p. 401 (274/1991). In this case a journalist was indicted for offensive comments and defamatory imputations towards a civil servant. The comments were annuled by the court. In its conclusion the court states that a certain provision in The General Penal Code34 should be explained with regards to Article 72 [now article 73] of the Constitution: Those provisions should be explained with regards to the commitments on protection of honor, freedom of the individual and freedom of expression in international agreements that Iceland is a part of. The court then specifically mentions that the ECHR should be used in those interpretations. A few years after the judgement Hrd. 1992, p. 401 (274/1991), in the case of Thorgeir Thorgeirsson vs. Iceland35, the European Court of Human Rights (ECtHR) came to the conclusion that the Icelandic state had been in violation of Article 10 of the ECHR. Subsequently the Minister of Justice appointed a committee to examine if it was timely to enact the ECHR as law in Iceland. It was decided to do so and in their reasoning the committee emphasized that the provision on freedom of expression in the Constitution did not secure the rights of individuals properly, as it did only cover the freedom of the press. The enactment of the ECHR would therefore serve the purpose to bridge the gap in the Icelandic law.36 One of the changes that was made on the provision regarding freedom of 29 Thorarensen, Stjórnskipunarréttur. Mannréttindi (n 1) 107. 30 Davíð Þór Björgvinsson, ‘Beiting Hæstaréttar á lögum um Mannréttindasáttmála Evrópu’ (2003) 4 Tímarit lögfræðinga 348. 31 See also case Hrd. 1994:2497. 32 Björg Thorarensen, ‘Áhrif Mannréttindasáttmála Evrópu á vernd tjáningarfrelsis að íslenskum rétti’ (2003) 4 Tímarit lögfræðinga 392-393. 33 ibid 393. 34 Act No. 19/1940. (ICE). 35 Þorgeir Þorgeirsson v. Iceland (1992) Series A no. 239. 36 Thorarensen ‘Áhrif Mannréttindasáttmála Evrópu á vernd tjáningarfrelsis að íslenskum rétti’ (7) 394-395. International Legal Research Group
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