Helga Law Journal - 01.01.2021, Side 117

Helga Law Journal - 01.01.2021, Side 117
Helga Law Journal Vol. 1, 2021 122 123 a chance that it could have abnormal and repressive effects on a gathering if way too many police officers would show up in no proportion with the attendance or the occasion.54 The third sentence of Article 74 para 3 is probably the most important one, in the terms of restricting the right to protest, since it’s purpose is to ensure that „public gatherings in the open may be banned if it is feared that riots may ensue.“ This warrant is open to interpretation on behalf of the authorities but, just like the abovementioned permit according to the second sentence of para 3, proportionality must be present in the decision making and assessment whether the gathering should be shut down or not.55 If a public gathering is banned on these grounds, the decision can be brought before a court that will ultimately decide if the action was legitimate or not.56 Instead of shutting down the gathering itself where there is perhaps fighting, or other type of disturbance, the police can arrest a person for the purpose of maintaining law and order.57 The police shall though explain to the person the reason for the arrest and transportation to a police facility.58 A gathering is deemed public when the admittance is free to everyone who wishes to be there. The same goes for a gathering that is limited by age. However, a gathering is not public when admittance is limited to a certain group of people, like a club or organization.59 There are examples of events where the police had to intervene a public demonstration by making arrests without banning and/or shutting down the assembly. In 1949 the police had to arrest numerous civilians that were protesting Iceland’s participation to the North Atlantic Treaty Organization. The people who had organized the event were prosecuted for rioting and attacking public employees alongside the parliament building itself.60 In 1999 the so-called Good Morning America case was brought before the Supreme Court of Iceland. The Court found that the arrest on the demonstrators didn’t have a sufficient reason in legislation to back it up. The protest wasn’t deemed to generate disorder and the protestants behaviour didn’t disturb the broadcasting of the television show beyond what the producers could’ve anticipated. Therefore, the arrest wasn’t justified, and the police should’ve chosen another, more suitable action regarding the demonstration.61 54 Thorarensen, 433-434. 55 Thorarensen, 435. 56 That right is guaranteed in Article 60 of the Constitution. The paragraph reads as follows: „Judges settle all disputes regarding the competence of the authorities. No one seeking a ruling thereon can, however, temporarily evade obeying an order from the authorities by submitting the matter for a judicial decision.“ 57 Article 16 para 1 of the Police Act. According to Article 67 para 1 of the Constitution, “no one may be deprived of his liberty except as permitted by law.” 58 Article 16 para 2 of the Police Act. 59 Sigurðsson, 229-320. 60 Case Hrd. 1952, page 190. The prosecution was based on (the predecessor of) Article 100 and Article 107 of the General Penal Code of Iceland no. 19/1940 (ICE). Hereafter: the General Penal Code. 61 Case Hrd. 1999, page 3386. The facts of the case are stated/revised in Question 1. the principle of proportionality, when assessing the necessity of restricting freedom of assembly in every individual case. 49 After the above-mentioned amendments to the Constitution in 1995 the court’s reasoning’s have altered drastically in terms of giving a much more detailed judgement when it comes to restricting the freedom of expression.50 Article 74 para 3 of the Constitution protects everyone’s right to assemble unarmed, which is intertwined with the freedom of expression. Public gatherings, especially in order to protest, is a crucial instrument to express feelings, thoughts and opinions and in order to restrict those important rights there needs to be a justification to do so.51 The paragraph reads as follows: “People are free to assemble unarmed. Public gatherings may be attended by police. Public gatherings in the open may be banned if it is feared that riots may ensue.” It’s interesting to compare the Constitution to the second paragraph of Article 11 of the Convention because the latter one has some general restrictions on the freedom of assembly and association, just like Article 10 of the Convention and the Icelandic provision regarding the freedom of speech in Article 73. However, the paragraph cannot be interpreted in a way that all public gatherings in the open are always free, just as long as they are “weapon free.” Accordingly, the restrictions on that that right are applied in a similar manner and on the basis of similar criteria as deriving from paragraphs 2 of Article 10 and 11 of the ECHR.52 As the second sentence of the paragraph states the police may attend public gatherings, whether they take place outside or inside. The police, in the context of the paragraph, are those who have the right to exercise police authority according to Article 9 of the Police Act of 1996.53 This is of course a permit or a warrant for the police, but not an obligation regarding their work duties. The main reason behind this sentence is the police’s role of maintaining national security, preventing disorder or crime and to protect the wellbeing of the citizens. This is implemented by Article 15 of the Police Act. The first paragraph reads as follows: “The police may intervene in the conduct of citizens in order to maintain public peace and quiet and public order or to prevent an imminent disturbance in order to protect the safety of individuals or the public or to avert or stop criminal offences.” The police must maintain some proportionality, while carrying out their duties, by picking the right events and the right situations to step in, for there is 49 Hereafter: the Convention. 50 Thorarensen, 372-373. 51 Thorarensen, 426. 52 Thorarensen, 433. 53 Hereafter: the Police Act. International Legal Research Group
Side 1
Side 2
Side 3
Side 4
Side 5
Side 6
Side 7
Side 8
Side 9
Side 10
Side 11
Side 12
Side 13
Side 14
Side 15
Side 16
Side 17
Side 18
Side 19
Side 20
Side 21
Side 22
Side 23
Side 24
Side 25
Side 26
Side 27
Side 28
Side 29
Side 30
Side 31
Side 32
Side 33
Side 34
Side 35
Side 36
Side 37
Side 38
Side 39
Side 40
Side 41
Side 42
Side 43
Side 44
Side 45
Side 46
Side 47
Side 48
Side 49
Side 50
Side 51
Side 52
Side 53
Side 54
Side 55
Side 56
Side 57
Side 58
Side 59
Side 60
Side 61
Side 62
Side 63
Side 64
Side 65
Side 66
Side 67
Side 68
Side 69
Side 70
Side 71
Side 72
Side 73
Side 74
Side 75
Side 76
Side 77
Side 78
Side 79
Side 80
Side 81
Side 82
Side 83
Side 84
Side 85
Side 86
Side 87
Side 88
Side 89
Side 90
Side 91
Side 92
Side 93
Side 94
Side 95
Side 96
Side 97
Side 98
Side 99
Side 100
Side 101
Side 102
Side 103
Side 104
Side 105
Side 106
Side 107
Side 108
Side 109
Side 110
Side 111
Side 112
Side 113
Side 114
Side 115
Side 116
Side 117
Side 118
Side 119
Side 120
Side 121
Side 122
Side 123
Side 124
Side 125
Side 126
Side 127
Side 128
Side 129
Side 130
Side 131
Side 132
Side 133
Side 134
Side 135
Side 136
Side 137
Side 138
Side 139
Side 140
Side 141
Side 142
Side 143
Side 144
Side 145
Side 146
Side 147
Side 148
Side 149
Side 150
Side 151
Side 152
Side 153
Side 154
Side 155
Side 156
Side 157
Side 158
Side 159
Side 160
Side 161
Side 162
Side 163
Side 164
Side 165
Side 166
Side 167
Side 168
Side 169
Side 170
Side 171
Side 172
Side 173
Side 174
Side 175
Side 176
Side 177
Side 178
Side 179
Side 180
Side 181
Side 182
Side 183
Side 184
Side 185
Side 186
Side 187
Side 188
Side 189
Side 190
Side 191
Side 192
Side 193
Side 194
Side 195
Side 196
Side 197
Side 198
Side 199
Side 200
Side 201
Side 202
Side 203
Side 204
Side 205
Side 206
Side 207
Side 208
Side 209
Side 210
Side 211
Side 212
Side 213
Side 214
Side 215
Side 216
Side 217
Side 218
Side 219
Side 220
Side 221
Side 222
Side 223
Side 224

x

Helga Law Journal

Direkte link

Hvis du vil linke til denne avis/magasin, skal du bruge disse links:

Link til denne avis/magasin: Helga Law Journal
https://timarit.is/publication/1677

Link til dette eksemplar:

Link til denne side:

Link til denne artikel:

Venligst ikke link direkte til billeder eller PDfs på Timarit.is, da sådanne webadresser kan ændres uden advarsel. Brug venligst de angivne webadresser for at linke til sitet.