Helga Law Journal - 01.01.2021, Síða 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