Helga Law Journal - 01.01.2021, Síða 120

Helga Law Journal Vol. 1, 2021
124 125
to guarantee national security by banning a rebellion to change the constitutional
structure of the state71 and punishing whoever starts a civil commotion in order
to employ violence against persons or objects.72 These kind of gatherings, that
have the sole purpose of enticing violent behaviour or crimes against the state
and its employees, do not enjoy the protection of Article 74 para 3 of the
Constitution.
6 What positive obligations does your state assume
to guarantee the enjoyment of the right to protest
and protection from the interference of private
parties?
The right to protest is guaranteed on the grounds of Article 74 Constitution of
Republic of Iceland no. 33/1944 (ICE) where it´s stated in paragraph 3 that
people are free to assemble unarmed. In addition, the provision states that under
certain circumstances police may be present and that an assembly which is held
outdoors can be banned if it is feared that riots may ensue.73
Also, the Article 73. of the constitution lays certain obligations on the
government to consider the public’s right of freedom of expression when it’s
considered to assess the positive obligations of the government to ensure the
right to protest and protection from the interference.
Provisions of the Constitution and Article 11 of the ECHR are generally
considered to be similar in both definition and interpretation, even though the
terms used are somewhat different. According to Article 11 any assembly must
be peaceful in order for the provision to apply. Restrictions require justification
under the second paragraph of the provision. The Icelandic Constitution
however states protects people’s freedom to gather unarmed. However, the
provision doesn’t state that assemblies can go unnoticed despite that people
attending the assemblies are unarmed. Despite this difference in terms the
Constitution has been interpreted in accordance with Article 11 of the ECHR.
Thus, the provision includes Article 73 of the Constitution of freedom of
expression and expression provides a certain level of protection for the public to
express its views and thoughts in a peaceful manner. In this context, it is worth
mentioning the Supreme Court judgment of 30 September 1999 in case no.
65/1995. Where It can be concluded from the judgment that no distinction is
made between the claims submitted under paragraph 1. Article 11 ECHR.74

71 Article 98 of the General Penal Code.
72 Article 118 of the General Penal Code.
73 Björg Thorarensen, Stjórnskipunarréttur Mannréttindi (Codex 2008) 425-426; Elín blöndal og Ragna
Bjarnadóttir, 'Tjáningarfrelsi' in Björg Thorarensen (ed), Mannréttindasáttmáli Evrópu: Meginreglur,
framkvæmd og áhrif á íslenskan rétt (2nd end, Codex 2017) 412-413.
74 Björg Thorarensen, Stjórnskipunarréttur Mannréttindi (Codex 2008) 437-440; Elín blöndal og Ragna
Bjarnadóttir, 'Tjáningarfrelsi' in Björg Thorarensen (ed), Mannréttindasáttmáli Evrópu: Meginreglur,
framkvæmd og áhrif á íslenskan rétt (2nd end, Codex 2017) 412-413.
In 2003 the Althing Ombudsman investigated the decision of the Icelandic
government to deny members of Falun Gong, a Chinese spiritual movement,
entry into Iceland during an official visit of the President of China.
Approximately 70 practitioners were arrested and detained in a nearby school to
Keflavik Airport. The government decision was based on the reason that the sole
purpose of their visit to Iceland was to protest against the President.62
Truck drivers protested in March and April of 2008, because of oil prices
and their working hours, which climaxed on April 23rd where the police had to
arrest around twenty people because they had interrupted traffic and put other
vehicles, and people, in danger.63The police had enough on its plate after the
financial crisis in 2008 with the so-called Búsáhaldarbylting or the “Pots and Pans
Revolution” that mostly took place at Austurvöllur, a square in front of
parliament. The Police Commissioner of the Capital Area even published in 2014
a report on every single protest from the year 2008 to 2011.64
In previously mentioned case, Gálgahraun in question one, the restriction on
the protest on behalf of the police was justified with a reference to the Police
Act, more specifically Article 15 to guarantee public order and Article 1 para 2.65
The individuals did not obey the instructions given by police officers and
therefore violated their obligation to obey orders given by the police according
to Article 19 of the Police Act.66
More restrictions on the right to protest can be found in Icelandic legislation.
Here are few examples: The Minister of Health and Welfare can, in accordance
with The Directorate of Health, decide that all public gathering must obey rules
regarding quarantine measures in case of an epidemic in Iceland.67 Landowners
can restrict or ban any kind of traffic or stay of other people on their property.68
Children aged 12 and under may not be out of doors after 8 P.M. unless
accompanied by an adult and therefore is their right to demonstrate restricted by
the presence of an adult.69 A police commissioner is permitted to ban every kind
of traffic or stay of people on certain areas when he has deemed it to be
dangerous.70 In the General Penal Code the right to gather unarmed is restricted

62 Althing’s Ombudsman case no. 3820/2003. It was The Ombudsmans opinion that Icelandic
officials had legal grounds to ban individuals from entering the country. The decision was based on
the former Foreigners Act from 1965, Article 10 regarding a threat to public order and national
security.
63 Article 168 of the General Penal Code and Article 15 of the Police Act.
64 Geir Jón Þórisson, ‘Samantekt á skipulagi lögreglu við mótmælin 2008 til 2011 (Lögreglustjórinn á
höfuðborgarsvæðinu 2012) <http://kjarninn.s3.amazonaws.com/old/2014/10/report.pdf>
accessed 22 June 2018.
65 According to that paragraph, the police’s role is to “give the authorities protection or assistance
with the execution of their functions” but the demonstrators were disturbing constructions on a new
road through a beautiful lava field just outside of Reykjavik, the capital.
66 Cases Hrd. May 28th 2015 no. 812-820/2014. There were 9 individuals prosecuted for their protest.
The facts of the case are stated/revised in Question 1.
67 Chapter IV of the Quarantine Act no. 19/1997 (ICE).
68 Article 18 para 1 of the Conservation Act no. 60/2013 (ICE).
69 Article 92 of the Child Protection Act no. 80/2002 (ICE).
70 Article 23 of the Civil Protection Act no. 82/2008 (ICE).
International Legal Research Group