Helga Law Journal - 01.01.2021, Síða 118

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