Helga Law Journal - 01.01.2021, Síða 115

Helga Law Journal Vol. 1, 2021
120 121
5 How can restrictions on the right to protest be
justified with reference to the prevention of order
or crime in your country?
There is no doubt that demonstrations, marches, sit-ins and other gatherings are
powerful tools in every person's arsenal to execute their right to express their
opinions and to provide them with followers.45 That right, however, needs to be
restricted under certain circumstances.
As previously stated, the right to protest is protected by Article 73 para 2
and Article 74 para 3 of the Constitution of the Republic of Iceland no.
33/1944.46 The aim of this chapter is to discuss the restrictions that Icelandic
legislation has imposed on civil rights amended by the Constitution. The main
focus will be set on the restrictions on the freedom of assembly unarmed, since
that is generally the most common approach to protesting in Iceland, alongside
a brief coverage on Article 73 of the constitution and the restrictions that it
contains.
According to Article 73 para 2 everyone shall be liable to answer for their
expressions of thought in court, which means an individual or a group cannot
protest without accepting simultaneously liability. The paragraph reads as
follows:
“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 agreement with
democratic traditions.”
The restriction itself will be enforced after the thought has been expressed
or the protest commenced. Before the amendments to the Constitution in 1995
it wasn’t clear under which circumstances such liability could be established and
therefore the legislature had unconstrained power regarding the liability itself and
its preconditions.47
Article 73 para 3 contains three preconditions that every restriction should
fulfill. In order to restrict an expression of thought, every single one of the
preconditions shall be fulfilled. The freedom of expression can only be restricted
by law and in accordance with the justifiable aims set forth in the third paragraph,
but the restriction also needs to be deemed necessary in a democratic society.
Since 1990 Icelandic courts of law have adopted the ECHR’s48 method of
application regarding the preconditions in the second paragraph of Article 10 of
the European Convention on Human Rights. This includes the application of

45 Páll Sigurðsson, 'Lagasjónarmið varðandi hópgöngur og útifundi' (1970) 3 Úlfljótur 207.
46 Hereafter: the Constitution.
47 Björg Thorarensen, Stjórnskipunarréttur Mannréttindi (Codex 2008) [Thorarensen] 370-371.
48 European Court of Human Rights. Hereafter: ECHR.
the substantive conditions set out in the articles or if such an internetion can be
based on an unwritten principle of derogation.
In the event of a crisis it would therefore not be sufficient for the Icelandic
state to declare a derogation from its obligations according to the Convention in
order to restrict the right to protest. Even though the Icelandic Constitution
doesn’t contain any provisions authorising any derogations in times of emergency
such derogations might however under very exceptional circumstances be
justified on the basis of an unwritten principle allowing for derogation in times
of crisis. The Icelandic government has never declared derogation from its
obligations to protect its citizens rights to protest with reference to Article 15 of
the Convention nor has it done so in connection with the Articles in the
constitution. This is mainly due to the fact that Iceland does not have an army
and has therefore never been directly involved in war or armed conflicts.
situations that demand such a measure and hopefully that won't ever happen in
the future. Iceland frequently faces natural disasters as volcanic eruptions,
earthquakes and glacial floods occur frequently. Fortunately such events most
often occur far away from people's homes without it impacting much the daily
lives of Icelanders and has therefore not caused major uproars or riots. In the
event of a major natural disaster it is not unthinkable that a situation would rise
that would raise questions on whether it is necessary to derogate from the
convention or the constitution.43
However, in the context of Icelandic law, it must be ensured that the
obligations inherent in MSE are the minimum rights. Icelandic governance laws
and human rights that go further maintain their value. On the basis of Article 15,
MSE alone could not, for example, ignore Article 72. of the Constitution and do
not provide compensation for the acquisition of property. However, It has fallen
under conditions of the Article 15, that are not related to war or riots, e.g.
announced Georgia in connection with avian flu. It may considered impossible
to exclude circumstances that arise from natural disasters can call on such things
if the circumstances cause riots due to lack of necessity. in addition, it is probably
not entirely excluded that economic collapse due to the consequences which it
can justify the reduction of rights. In the unlikely event that the incident which
the provision assumes will occur, is normal to conclude that the provision and
its powers will be applied in a similar manner to those which the Human Rights
Tribunal has proposed in the framework of the provision.44

43 Davíð Þór Björgvinsson, ‘Beiting Hæstaréttar Íslands á lögunum um annréttindasáttmála Evrópu’
[2003 PL 345-347; ‘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; Hjördís
Björk Hákonardóttir, Skerðing réttinda á hættutímum (in Björg Thorarensen (ed),
Mannréttindasáttmáli Evrópu: Meginreglur, framkvæmd og áhrif á íslenskan rétt 2nd end, Codex
2017) 528.
44 Davíð Þór Björgvinsson, ‘Beiting Hæstaréttar Íslands á lögunum um annréttindasáttmála Evrópu’
[2003 PL 345-347; Hjördís Björk Hákonardóttir, Skerðing réttinda á hættutímum (in Björg
Thorarensen (ed), Mannréttindasáttmáli Evrópu: Meginreglur, framkvæmd og áhrif á íslenskan rétt 2nd end,
Codex 2017) 527-533.
International Legal Research Group