Helga Law Journal - 01.01.2021, Blaðsíða 114

Helga Law Journal Vol. 1, 2021
118 119
that the unwritten principle allowing for derogation in times of crisis applies as
per the circumstances of each case and are inherently unpredictable. Such an
emergency is difficult to implement in detail in the Constitution, and it is also
unfortunate to legislate as such a clause can easily increase the tendency to
consume emergency rights. An unregulated rule of constitutional right of
emergency is therefore considered sufficient to cover the most extreme
exceptions. An example of this in practice, is when the Althingi decided to entrust
the Icelandic Government with the hand of the king's power in 1940 and the
new office of the Governor of 1941.40
The principle encompass authority for the government to recede from the
constitution, as circumstances require it. An example of this is Article 28 of the
Icelandic constitution which allows executive branch to impose provisional law.
The principle by its nature, contradictory, constitutions are precisely the tools for
ensuring the community and its citizens a certain basic framework and rights, so
that they won’t yield in time of crisis.41
Scholars have thought that three conditions must be met in order for the
principle to apply. First, the principle can refer in times of war. From the
provisions of Article 15, MSE might also target "another general emergency that
threatens the existence of the nation. Secondly, the application of the rule must
be based on the structure of the state authority, the division of labor and the
distribution of powers. Finally, the proportionality of the decision must be
considered. It is therefore a prerequisite that the legislator's intention is to
respond effectively to the distress and the conspicuous effects of the distress on
Icelandic society. Clear consequences or false statements about the possible
effects of certain cases can not therefore be used as the basis for the application
of constitutional rights.42
The Icelandic Constitution contains provisions which guarantee the right to
protest on the grounds of two separate Articles, that is Article 73 paragraph 2 on
the one hand, protecting the freedom of expression and Article 74 paragraph 3
on the other hand which guarantees the right to a peaceful assembly. Those rights
may only be restricted by law if certain requirements set out in the articles are
met. Even though it is safe to say that the corresponding Articles in the
Convention and the Courts case law has had quite an impact on the way the
provisions in the Icelandic constitution have been interpreted the rights
protected in the constitution nonetheless provide an independent right for the
citizens. Those rights will not be impaired unless it can be justified according to

40 ‘Frumvarp til stjórnarskipunarlaga’ (Stjórnskipunarlög, updated 13. November 2012) accessed 7.
June 2018.
41 Ragnhildur Helgadóttir, ‘örlítið um stjórnskiulegan neyðarrétt’ (Fundur í Hr, Háskólinn í Reykjavík
12. November 2008) accessed 7. June 2018 https://www.ru.is/media/skjol-
lagadeildar/Stjornskipulegur-neydarrettur-RH-_2_.pdf.
42 Bjarni Benediktsson, ‘Stjórnskipulegur neyðarréttur’ [1959] PL 19-22; Ragnhildur Helgadóttir,
‘örlítið um stjórnskiulegan neyðarrétt’ (Fundur í Hr, Háskólinn í Reykjavík 12. November 2008)
accessed 7. June 2018 https://www.ru.is/media/skjol-lagadeildar/Stjornskipulegur-neydarrettur-
RH-_2_.pdf; Róbert Spanó, ‘Ritstjórnargrein: Stjórnskipulegur neyðarréttur’ [2010] PL 107, 111.
had gone against Articles 73 and 74 of the Constitution, cf. Articles 10 and 11 of
the Convention. The Court did not cite those provisions in its conclusion.
Though it mentioned Articles 10 and 11 in connection to article 73 paragraph 3,
regarding their arguments that the right to protest can be limited.
An example of where paragraphs 1 and 2 of Article 11 of the ECHR had a
determinant effect on the interpretation of Article 74 of the Constitution is the
judgement in case Hrd. from November 14th, 2002, no. 167/2002, where it was
concluded that Article 74 should be interpreted in a broad light with regard to
Article 11 of the ECHR. Even though there is not a provision in Article 74 of
the Constitution that is analogous to Article 11 paragraph 2 of the ECHR, the
Supreme Court explains those provisions of the Constitution with regard to
article 11, paragraph 2.
It can be concluded that the impact of the Convention and the case law of
the ECtHR has broadened the interpretation of the provisions of the Icelandic
constitution. First of all, Article 73 was modernized when the Constitution was
changed in 1995. Second of all the Courts in Iceland have used the relevant
provisions of the Constitution to interpret and broaden the meaning of Articles
73 and 74 in the Icelandic Constitution. It can be said that the Convention and
the case law of the ECtHR has had a positive impact on the right to protest in
Iceland, especially with regards to the rights of the individual and that those rights
will not be limited unless a specific criteria is upheld.
4 How has your country applied derogations from
state obligations regarding the freedom of
assembly in times of public emergency
threatening the life of the nation according to
Article 15 of the ECHR?
Article 15 of the European Convention on Human Rights affords to the
contracting states, in exceptional circumstances, the possibility of derogation, in
a temporary, limited and supervised manner, from their obligation to secure
certain rights and freedoms under the Convention. The use of that provision is
governed by the certain procedural and substantive conditions set out in the
article. In emergency situations the Republic of Iceland is bound by the
limitations imposed by Article 15 of the ECHR.38
The Icelandic Constitution doesn’t contain any provisions authorising any
derogations in time of emergency.39 In extreme circumstances, it may be argued

38 Hjördís Björk Hákonardóttir, Skerðing réttinda á hættutímum (in Björg Thorarensen (ed),
Mannréttindasáttmáli Evrópu: Meginreglur, framkvæmd og áhrif á íslenskan rétt 2nd end, Codex 2017) 527-
528; ‘Guide on Article 15 of the convention’ (Human right law, updated 30. April 2018) accessed 7.
June 2018. https://www.echr.coe.int/Documents/Guide_Art_15_ENG.pdf.
39 Hjördís Björk Hákonardóttir, Skerðing réttinda á hættutímum (in Björg Thorarensen (ed),
Mannréttindasáttmáli Evrópu: Meginreglur, framkvæmd og áhrif á íslenskan rétt 2nd end, Codex 2017) 527.
International Legal Research Group