Helga Law Journal - 01.01.2021, Blaðsíða 121

Helga Law Journal Vol. 1, 2021
126 127
has never been a charge for violation of the provision. In addition with the above
it is stated in Article 3 of Act no. 32/1997 (ICE) that it’s prohibited to interfere
with religious services, church sermons or other ceremonies with noise or
anything else that is contrary to the holy service of any religion. The provision
isn’t bound by particular beliefs and consequently covers all assemblies intended
to practice legally defined religion. The provision gives people opportunity to
practice their faith together in a company without interference.
In this context it is worth mentioning the case Plattform Ärste für Das leben
v Austria App no 10126/82 (ECHR, 21. June 1988) The case asserts that the
provisions of the European Convention on Human Rights are deemed to impose
positive obligations on the government in the case of organizing meetings. In
supreme court of Iceland from 30. September 1999 in case no. 65/1999. Where
among other things, it was believed that the conduct of men had not been more
disturbing than usually, and that there had not been interruption of organized
assemblies or celebrations. Consequently, it was not considered that they had
violated the provisions of the Penal Code no. 19/1940 (ICE).77 The judgment
seems to give the freedom of expression of the Constitution more weight in its
position as to whether the protest was permitted.
Under Icelandic law, it can be asserted that the Icelandic government has
certain positive duties to prevent interference unless it’s likely that unpredictable
actions will be taken at protes assemblies or similar assemblies. F.e. according to
paragraph 3 of Article 15 of the Act no. 90/1996 (ICE) the Icelandic law
enforcement are only allowed to interfere with protests under certain
circumstances, if there’s probability that the assemblie will disturb public liberty
and public order.
7 How equipped is your country's legal system to
face the challenges presented by digital social
movements such as #metoo and how might the
right to protest be exercised in this context?
Social movements are important tools for people who lack power and influence
to get the attention of authorities for the sake of various causes. A good example
of the force of digital social movements is the Arab Spring.78 First of all the
Internet and social media have given people a place to state their dissatisfaction
in greater quantities. Access to those media and the Internet has made it possible

77 Björg Thorarensen, Stjórnskipunarréttur Mannréttindi (Codex 2008) 427-428; Elín blöndal og Ragna
Bjarnadóttir, Félaga- og fundafrelsi (laga annarsstaðar líka) in Björg Thorarensen (ed),
Mannréttindasáttmáli Evrópu: Meginreglur, framkvæmd og áhrif á íslenskan rétt (2nd end, Codex 2017) 398-
339.
78 Suzanne Staggenborg Social Movements (Oxford University Press 2015) 2.
When the provisions of the Constitution and Article 11 of the European
Convention on Human Rights are compared one can see a difference in words
and structure. The provision of the first paragraph of Article 11 ECHR protects
and makes it possible for assemblies to be held peacefully. The second paragraph
sets out exemptions on the basis of the conditions listed therein. It is clear that
meetings don’t necessarily have to be more peaceful, even though there is no
weapon at hand. It may also be assumed that similar positive obligations of states
as derive from Article 11 are inherent in the provisions of the Constitution on
freedom of expression and assembly. For example, it has repeatedly been
confirmed in the case-law of the European Court of Human Rights that Article
11 imposes certain positive obligations on the state to provide certain police
protection to peaceful assemblies and shouldn’t matter whether controversial
sentiment and opinions are the subject of such assemblies. In addition, the duty
may be imposed on the authorities to provide public access to open areas and
control traffic so that meetings can be conducted without obstacles and to ensure
access to them. Thus, the provisions of Article 11 of the ECHR impose positive
obligations on the government to take action to ensure effective freedom of
assembly. This has been confirmed by the ECHR in the case of the Platform
Ärste für Das leben v Austria App no 10126/82 (ECHR, 21. June 1988)[1]75
There the Court stated that while it’s the duty of the member states under Article
11 of the convention to take reasonable and appropriate measures to enable
lawful demonstrations to proceed peacefully they cannot guarantee this
absolutely and they have a wide discretion in the choice of the means to be used.
Furthermore, the member states have a wide margin in deciding which measures
are necessary to be taken.76
The human rights provisions in the Icelandic constitution were originally set
for the purpose of limiting the powers of public authority towards the individual,
particularly actions from the police. The main course to the provisions of the
ECHR and the constitution state that the authority mustn´t evade their
obligation. In order to fulfill these positive obligations, this right is granted
certain protection stipulated in Article 122 of the Penal Code (ICE). The
provision prohibits persons from hindering or disturbing a lawful assemblies.
Anyone who is in charge of such conduct may be liable for imprisonment. It is
also prohibited, pursuant to the provision, to arrange for a meeting of public
prosecutions on public matters with overbearing behavior or public clamor, in
addition, the provision prohibits a party from interfering with public religious
service or other church sermons. It should be noted that in the last decades there

75 Plattform ‘Ärzte Für Das Leben’ v Austria, Merits, App no 10126/82, A/139, [1988] ECHR 15,
(1991) 13 EHRR 204, IHRL 79 (ECHR 1988), 21st June 1988, European Court of Human Rights
[ECHR].
76 Plattform ‘Ärzte Für Das Leben’ v Austria, Merits, App no 10126/82, A/139, [1988] ECHR 15,
(1991) 13 EHRR 204, IHRL 79 (ECHR 1988), 21st June 1988, European Court of Human Rights
[ECHR] [34]-[39]; Elín Blöndal og Ragna Bjarnadóttir, 'Tjáningarfrelsi' in Björg Thorarensen (ed),
Mannréttindasáttmáli Evrópu: Meginreglur, framkvæmd og áhrif á íslenskan rétt (2nd end, Codex 2017) 398-
339.
International Legal Research Group