A Stacked Deck: Police, Courts, And The Right To Protest In Iceland

A Stacked Deck: Police, Courts, And The Right To Protest In Iceland

A Stacked Deck: Police, Courts, And The Right To Protest In Iceland

Published November 25, 2020

Photo by
Art Bicnick et al.

Icelanders have developed a positive reputation for their protests. Praised for having driven a government out of power, for pressuring authorities to prosecute bankers, and for organising the draft for a new constitution, to any outside observers it would appear as though protesting has become an acceptable, even respectable, way to exact change in Icelandic society.

However, in the course of several interviews the Grapevine took with lawyers and activists alike, we found that police have sweeping powers to arrest, that courts take a very narrow interpretation of police power at the expense of these protestors, that prosecutors often severely limit or outright restrict defense lawyers’ access to the evidence against their clients, and that appealing these cases has such a high threshold that they can have a chilling effect—all of this sometimes in breach of the Icelandic constitution and European human rights laws.

How did things get this way, and what must be done to bring Icelandic law in line with the principles of a democratic society?

Article 19

Much of this issue rests upon Article 19 of the Law on Police, a single sentence with far-reaching implications:

“The public is obliged to obey orders which police give, such as in traffic control or in order to ensure law and order in a public space.”

This article has not only been used by the police to justify arresting people participating in peaceful protests—something which is supposed to be protected by Articles 73 and 74 of Iceland’s constitution and other international laws—the courts have often times taken a very narrow interpretation of this law; asking only if a police order was disobeyed, not if the order was lawful or even justified in the first place.

Elínborg Harpa Önundardóttir and Borys Ejryszew are two activists currently facing charges that include violating Article 19 [Note: at the time of this writing, Borys was just convicted of violating Article 19 and ordered to pay over 300,000 ISK in legal costs. He plans to appeal]. Elínborg and Borys have worked extensively with Icelandic refugees who have organised for better living conditions and fairer treatment by Icelandic authorities. Efforts to bring these grievances directly to the Directorate of Immigration (ÚTL) in March 2019 were blocked by around a dozen police officers.

Elínborg Harpa Önundardóttir. Photo by Art Bicnick

“We were saying, ‘Well, we’re going in, we have every right to go in there.’,” Elínborg recalls. “Then the police took out the pepper spray and were ready to use it. It says that in the police report from that protest, that they were ready to use the gas when people were ‘threatening to break in’ to ÚTL during opening hours.”

The demonstrators then decided to change tactics: as police had prevented them from bringing their demands to immigration authorities directly, they opted instead to demonstrate at Austurvöllur, the square in front of Parliament.

Austurvöllur, ground zero for protests

Austurvöllur has been the scene for numerous protests in Icelandic history. It was there that the famed “pots and pans revolution” grabbed international headlines as Icelanders gathered there in the thousands. It was also the scene of the largest protest in Icelandic history, when some 23,000 people showed up in April 2016 to call upon the government to resign in the wake of the Panama Papers revelations.

At that protest, police simply observed proceedings and held the line. But when about two dozen protestors arrived at Austurvöllur on March 11th of 2019, police response was vastly different.

“We got to the point where the refugees decided that they would like to try occupying the Parliament square,” Borys recalls. “When the refugees were trying to set up their tents, the police came over and pushed people around, taking the camping equipment. And then, for whatever reason, the unit commanders came up with the idea that the demonstrators wanted to start a fire. They confiscated a pallet that people had brought, believing that the refugees were going to use that for a bonfire, but that isn’t true—we mainly used it to sit on as an isolation from the ground. It was March and it was freezing. After they took the pallet, the police further decided they wanted to take away the cardboard banners, too. This is when the police line approaches and starts pushing people around in a very aggressive and escalatory manner.”

Photo by Ómar Sverrisson

While met with no resistance, the police resorted to using force against the protesters, which included the use of pepper spray, sometimes against people attempting to leave the scene. All of this was captured on video. Two arrests were made.

How peaceful is a protest supposed to be?

Despite public outcry against the police violence at this small demonstration, organisers decided to switch tactics.

“After the police riot, people were quite stressed and tired, so we decided it was time to do something peaceful and symbolic,” Borys says. “We organised a silent performance where a bunch of refugees and their friends stood in front of Parliament with their hands marked with ‘no deportations’ and tape over their mouths. There were parliamentarians passing through, so no one was stopping anybody. But the police decided this was also an unlawful protest and, citing the 19th, they came over, shouting in Icelandic to a crowd of people—many of whom don’t speak the language—and arrested three entirely random demonstrators, one of them Elínborg.”

Tactics were changed again, with organisers deciding this time to take their concerns to the Ministry of Justice, the ministry which holds authority over ÚTL. This would take place in the form of peaceful sit-ins, held during opening hours, in the lobby of the Ministry.

Over the course of three sit-ins, no arrests were made; police dragged people outside of the building and left them there, sometimes using force. The fourth sit-in was quite a different story.

Photo by Refugees in Iceland

“The fourth time around they arrived at the Ministry when we had been protesting for about 10-15 minutes only,” Elínborg says. “They came in shouting at us to get out or we would get arrested. They did not explain on what premises nor did they tell us that the ministry was closed. Then they gave us all of 3-4 minutes before they began arresting people. We were asking them to give the orders in English as well, because in the arrests before, the order [to disperse] was only given in Icelandic.”

Out of bounds

Helga Baldvins Bjargardóttir, a lawyer who is assisting Elínborg and Borys with their cases, is amongst the lawyers the Grapevine spoke to who believe Article 19 is interpreted too broadly by the police, and cases concerning it too narrowly by the courts. She provided a list of cases heard by the European Court of Human Rights (ECHR) that handed down rulings which not only affirm the right to protest—they also would completely overturn, or radically change, Article 19, and with it, the verdicts handed down by Icelandic courts on numerous occasions.

“I don’t think the ECHR would justify the way the police acted in that [refugees] protest [in front of Parliament], and also when they were protesting within the Ministry of Justice,” she told us. “What the court looks at is: was the protest peaceful? If it was peaceful, then it’s protected. Even if there is some sort of violence, if that was not the intention of the people who started the protest, that can still be protected.”

Helga explains that Article 19 is supposed to carry exceptions, as outlined by the ECHR, Articles 5 and 11 of the European Convention on Human Rights, the Icelandic constitution, and even the Law on Police itself, Article 2 of which states that the police are supposed to take notice of international obligations, such as human rights obligations, in the course of their work.

Helga Baldvins Bjargardóttir. Photo by Art Bicnick

“In that regard, they can manage control of traffic, they can forbid people from staying in certain areas, or ask them to leave,” she says. “They have this authority, and if this had been people entering the Ministry drunk and disrupting the peace of the staff in that way, the police would have the full authority to ask them to leave, and if they didn’t, to arrest them. But in the protestor case, the police don’t regard that the protestors have constitutional and human rights to protest and freedom of expression. Their actions need to be balanced in regard to these rights.”

Helga also points out that when the police step out of bounds, they can be held liable.

”[The ECHR] also talks about how when the police have this power to give orders to protestors, and who arrest them if they don’t obey, that this goes against the initial goal of the legislation, so the ECHR is keen on looking at that as a justified authority to arrest protestors. If you’re going to arrest protestors, you have to have something real that they’ve done other than disobeying police orders. The police have to be preventing a crime, there has to be chaos or people in danger for them to be able to intervene in a case like that.”

“Essentially, you can have an article that states there’s a public obligation to follow police orders, but that does not mean the obligation should be absolute.”

She adds: “If there’s a riot, the court also looks at who started the riot. If the police started it, then they are to blame for it. The protestors are still protected in that case.”

A narrow view

Sigrún Ingibjörg Gísladóttir, a lawyer at the law offices of Réttur, agrees that the police sometimes overstep the power that Article 19 grants them.

“Essentially, you can have an article that states there’s a public obligation to follow police orders, but that does not mean the obligation should be absolute,” she says. “It’s an obligation that needs to be considered and interpreted in light of other rights and obligations. Even if it’s absolute in language, that doesn’t mean it can be absolute in practice, because it needs to be interpreted in light of superseding laws, such as the constitution and rulings of the European Court of Human Rights, as the European Convention of Human Rights is an international agreement that has been legislated into Icelandic law. These are laws that supersede a general law such as Article 19. Essentially, Article 19 needs to be used while respecting the rights encoded in these higher laws, such as free speech and the right to protest.”

Sigrún Ingibjörg Gísladóttir. Photo by Art Bicnick

Sigrún adds that the court often takes a narrow view of the cases involving this article. When asked if the courts just look at ‘was a police order given and was it obeyed?’, Sigrún replied, “I think that’s a fair assessment of some recent cases I have looked at from the District Courts. At the same time, we also have some older judgements from the Supreme Court, and some judgements from the ECHR, which are looking into the procedure of interpretation that must take place.”

Amongst the things that need to be considered, she says from her interpretation of higher laws, are “What kind of order was given? Why? Was it justified? And was the act proportional with respect to the order that was given? Essentially: was it aiming at a legitimate objective, this order? Was it necessary to arrest for not following these orders in a democratic society? Was there some less invasive measure that could have been applied? Also—and this is something the ECHR has looked into—at what stage did it become necessary? For example, if you have a protestor in public, has that person been given the opportunity to voice their protest? So it matters if the protestor was arrested at the beginning of a protest, or if it happens after some hours. We’ve seen from the ECHR that it matters whether you’ve interfered with the right to protest completely, or if there was some proportionality line drawn.”

“Was it necessary to arrest for not following these orders in a democratic society? Was there some less invasive measure that could have been applied?”

However, these questions have at times been overlooked by the courts.

“In my opinion, there have been some recent cases where the evaluation, or assessment, hasn’t taken into account these details,” she says. “In a democratic society, you need to look critically at what the order was, and why it was given, and whether it was legitimate, proportional and necessary. That’s the assessment that needs to take place, and if it doesn’t take place in the court system, there’s of course the risk that the finding doesn’t reflect these human rights.”

A checkered past

The use of Article 19 goes back a long ways, but saw renewed use during the protests of 2008 and 2009. One famous example of this is Lárus Páll Birgisson, who in 2009 and again in 2010 was ordered to step away from the planters area in front of the US Embassy in Reykjavík, where he held a cardboard sign calling for peace. Lárus refused, believing that the Icelandic constitution protected his right to protest and pointing out that no one was able to claim if the area where he was standing belonged to the embassy or the city. Arrested under Article 19, he attempted to seek damages from the state, but was denied.

Photo by Verndum Gálgahraun

In another high profile case in 2013, several protesters comprising a group called “Lava Friends” deliberately stood in the way of heavy road construction machinery that was intended to build a road system through Gálgahraun lava field, which had been officially protected from development. They were also charged with violating Article 19, and found guilty.

In all of these cases, there is not just a lot of onus placed upon the narrow interpretation of Article 19, but also on the effect the protests had on people: that these demonstrations inconvenienced, disturbed, or made other people uncomfortable played a factor in determining whether and why protestors should be sentenced. Which raises the question of what kind of protesting is permissible, if one can be ordered to stop protesting for making people feel uncomfortable.

Protests are supposed to be inconvenient

One of the people who has championed reform in this area is lawyer Ragnar Aðalsteinsson. He has long fought for the rights of protestors, having defended the so-called Reykjavík Nine—a group of protesters accused of “violently” entering Parliament during protests in December 2008.

“The Icelandic courts tend to say that any inconvenience made by protestors needs to be stopped,” he told us. “But the ECHR [has ruled that] inconvenience is a natural consequence of protests, and that the state must understand this and not interfere unless everything goes too far.”

Ragnar Aðalsteinsson. Photo by Art Bicnick

Another good example of this is the case of Ragnheiður Freyja Kristínardóttir and Jórunn Edda Helgadóttir. In May 2016, they stood up on board a plane set to deport an asylum seeker. The plane was, at the time, standing still on the runway, with boarding not yet complete. As they stood, they began speaking out loud about the fact that a person was being wrongfully deported on that flight. Jórunn was quickly restrained by passengers and flight attendants, and both were arrested.

“The District Court concluded we had caused ‘severe disruption of public transportation’ without substantial reasoning for this,” Ragnheiður recalls. “The judge in fact concluded that we did not cause any delay of the plane, or not a severe delay at least, but that we did indeed cause ‘discomfort’ and ‘unease’ amongst the flight crew and passengers. This is one of our defenses in Appellate Court: no passengers have ever given their testimonies in this case. Which is very unfortunate, since there were 170 passengers on that plane, and none of them were asked to come and give testimony. The other peculiar thing is that people have very seldom been prosecuted for this, and the times that people have, people have been acquitted.”

The two have since filed their case with the Appellate Court, which at the time of this writing will come to a conclusion in two or three weeks. UPDATE: The Appellate Court has reached a decision on their case.

What counts as evidence

While the prosecution can seemingly offer any number of arguments in protest cases as to why a given protestor or group of protestors should be convicted, arguments from the defense can often fall on deaf ears.

Borys Ejryszew. Photo by Borys Ejryszew

Borys experienced this firsthand, saying that in regards to his case, “The only thing that made it into the final verdict was the testimonies of the police. The judge seemed only interested in whether police gave an order and whether it was obeyed. That’s it.”

Borys and others had raised concerns about the possible existence of racism within the Icelandic police force having some role in how the police have responded to the refugee protests, bringing up the excessive use of force throughout many of refugee organised demonstrations. In speaking with Grapevine, Borys also pointed out the new “border patrol van” rolled out earlier this year, wherein one of the officers talked openly about targeting “Albanians and Romanians”. This concern, amongst many others, was not taken into account by the court.

“It’s a way to make people aware that this fundamental law is used by the state to oppress people who go against the mainstream and protest what they find unjust.”

“[The judge] refused to call in the unit commander [Arnar Rúnar Marteinsson] for further questioning, about the justification for the police using excessive force and especially the ensuing arrests – a thing that happened only during the last sit-in and therefore in need of further justification,” Borys says. “The judge was only interested in whether the police gave an order, and whether it was obeyed or not and entirely disinterested in whether their actions violate any higher laws—which in our opinion they did. The arrests that ensued go far against both the Icelandic constitution and the Universal Declaration of Human Rights.”

Ragnheiður ran into similar obstructions in trying to defend their case.

“All of our defenses—the freedom of expression, the right to protest, and your obligation to help a person who is in danger—whether the judge agrees with them or not is one thing,” she told us. “But a judge should definitely, if they disagree, give their reasons for it. This is very important in any precedent that they’re setting; to explain how they came to their verdict. This was totally lacking in the District Court. Our defenses were answered in one sentence, which was ‘the freedom of expression is under certain restrictions, so this defense cannot be applied here’. So essentially going to the Appellate Court is wanting to challenge that, to challenge a verdict that didn’t give any reason to why our defenses were being dismissed or not agreed with.”

The situation as a whole has been a sour one for Borys, who nonetheless emphasises that there are people who have it a lot worse.

“For me, as an immigrant who came to Iceland and has been living here for quite a while, the whole thing is really depressingly absurd,” he says. “I know that the same arguments used against refugees were also used against Polish people not a long time ago: criminals, people of a different cultural background, a threat to the economy, unable to integrate. The case of the refugees is much harder of course, because they don’t have a work permit nor the right to move freely between countries, but the narrative is similar—and equally unjust. I also see a great deal of hypocrisy risking people’s lives to open the borders to tourists in the middle of a pandemic, while deporting the marginalised based on a hurtful, fantasy idea of them. This only proves that the violence against the refugees is systemic and hard to deny.”

Ragnheiður Freyja Kristínardóttir (left) and Jórunn Edda Helgadóttir. Photo by Andie Sophia Fontaine

Seeing all the evidence against you

One of the primary elements of any trial, civil or criminal, is that of discovery: that the defense team and the prosecution have equal access to all evidence in a trial, whether that evidence goes towards or against an accused’s guilt or innocence. In the course of our investigations, we found that the defense team is often severely restricted in terms of what evidence they have access to.

In the case of the Ministry sit-in arrests, for example, Elínborg and Helga confirmed that they had requested the entirety of the video security footage of the protest in question. Instead, they were offered a single video screenshot.

“Helga finds it important to get the whole video recording from when our protest starts to when the arrests are over,” Elínborg says. “The police, in their file, use a screenshot from quite early on in the protest. When Helga asked for the whole video, the police said, ‘No, it’s not important for you.’ She also wants to see the videos from the days before, to show the difference in how people were treated. It’s also interesting to see that the police have the power to decide whether or not our lawyers get the evidence they feel they need or not, and since the police are saying ‘no’, our lawyer has to go to the judge, which in Borys’ case the judge just ignored the request. And this adds to the legal costs, for the lawyer to have to personally meet with the judge and make this request.”

“Inconvenience is a natural consequence of protests, and that the state must understand this and not interfere unless everything goes too far.”

“The prosecution said that they have investigated this case fully, but they don’t see the point in getting all the tapes [to me],” Helga confirmed. “So now the justice is deliberating on how he’s going to rule on all the access to these tapes.”

Ragnheiður had similar issues in her case, in this case involving witness testimonials.

“When we finally found that we were being charged, which was two and a half years later, after the event, that was the first time we got any access to any information about the case,” she tells us. “One thing to keep in mind is during this time, the investigation is being carried out, and in this case, the investigation only entailed interrogations of the police and the flight crew. We got the file, which had summaries of their testimonies. When our lawyers were looking at the summaries, they found this suspicious, and it’s of course important for them to hear the full interrogations. So the lawyers contacted the prosecutor’s office, where they were told that they could come down to the courthouse and listen to the recordings. We had no access to the transcripts of these interrogations, but our lawyers could listen to the recordings at an allocated time, within the courthouse. They could not keep a copy, of any sort, to use while they were working on the case. What came to light is that in these summaries that were carried out, they missed the part where most of the testimonies started with ‘oh it’s been very long since this happened, I don’t remember this very clearly’. In some cases, things were taken out of context.”

Reykjavík District Court. Photo by Art Bicnick

“[Access to discovery] is a problem, I agree,” Sigrún says. “We’ve had cases about the obligation of the police to reveal their evidence. Especially in the criminal cases that we had after the crisis in 2008, where there was a lot of documents, and the prosecutors chose which documents they wanted to present to the court, and the defendant’s lawyers were saying ‘well we want to see all of the documents, what if there’s something in there that is actually beneficial for my client?’ That right has not been confirmed by the Supreme Court.”

Instead, Sigrún says, “The police can to some extent limit access to documents. More generally speaking, there is no absolute right to equal access to all evidence gathered by the police. With things like videos, you don’t actually get access to them; you go to the police to look at them, which we’ve been arguing breaches the Equality of Arms principle; that there should be equality in the court room, so you should have access to all the same files, and have the same kind of access to them. The thing is, under the Icelandic Criminal Procedural Act, the prosecution is under a legal obligation to remain neutral and this means to present both sides; whether it indicates the defendant is innocent or guilty. It’s something that’s complicated and has been discussed by lawyers in this field, for a long time.”

Appeals and the chilling effect

The right to appeal is another important function of a democracy’s judicial system—that if you were found guilty in a lower court, you should be able to appeal the matter to a higher court. That function also exists in the Icelandic court system, but it can get a little bit complicated when it comes to protest cases.

Landsréttur, Court of Appeals. Photo by landsrettur.is

“We have this both in criminal cases and private cases, that in order to bring a case before the Appellate Court in Iceland, they need to meet a minimum threshold of a sentence,” Sigrún explains. “Generally, in criminal cases, this means you’ve been sentenced to prison, or that you were ordered to pay a fine in excess of around 1 million ISK; it’s indexed, so it changes slightly every year. But this is not absolute; there is an exception, and that exception is if you have a case—both criminal and private—that you believe was wrongly adjudicated, or if you believe it’s important for society or yourself to get the Appellate Court’s judgement, then you can request a grant of appeal. We’ve seen this in cases such as those that concern freedom of speech, where people have been found guilty of defamation and ordered to pay compensation well below 1 million ISK, but nonetheless been granted an appeal. … But it isn’t without risk because if you lose the appeal you will likely end up increasing the costs.”

Helga agrees, and adds that the daunting prospect can have a chilling effect on even going forward with an appeal in the first place.

“They could make an exception because it’s a principled case of human rights, but if they’re denied, they have to go to the Supreme Court,” she says. “It will be very interesting if [these cases] go to the ECHR. They talk a lot about the chilling effect. So even if the fine is only 10,000 ISK, if the legal fees are like 600,000 ISK, this has a chilling effect. It prevents people from being able to exercise their freedom of expression. I think the ECHR would look at this as a punishment in itself.”

What needs to change

Elínborg emphasises that the broad use of Article 19, its narrow interpretation by the courts, and other issues have been an ongoing problem in Iceland for a long time. Despite the challenges she and many other demonstrators like her face, her thoughts are with the people who are further marginalised.

Elínborg Harpa Önundardóttir. Photo by Art Bicnick

“It’s been getting worse, too, for people applying for asylum,” Elínborg says. “I think it’s important to note that. Basically since Iceland started accepting people for asylum. It used to be people applying for asylum could work, but now they cannot. People are more isolated, getting deported in larger groups, while COVID is peaking everywhere in Europe. You can clearly see the police picking on a group that they perceive to be ‘bad protesters’, usually from the radical left, this also fits into the pattern in Europe and the US, where people trying to show solidarity with migrants get continually pressed with charges.”

Even so, she expressed hopes that awareness of this issue can be raised.

“I think what I’ve learned from the experience is that it’s totally hopeless to win a case that is based on the 19th article, to be honest,” she says. “I think the only thing that’s maybe good about going through these court cases, based on the 19th article, is that it’s a way to make people aware that this fundamental law is used by the state to oppress people who go against the mainstream and protest what they find unjust.”

“It’s not in line with what’s normal in a democratic society.”

“I would like to make Article 19 stricter, and provide directly that citizens only have to obey the orders if the behaviour is unlawful,” Ragnar says. “You have a right to express your opinion, individually or in a group, and that needs to be balanced against the inconvenience that the protest might have resulted. I would like to see the Icelandic courts go the same route as the European Court of Human Rights in accepting there’s going to be some inconveniences involved in most protests.”

For her part, Sigrún envisions more comprehensive changes on multiple levels.

“The most important role is played by the judge,” she says. “That the judge follows what we have said in our society are the principles that we’re supposed to walk through to come to a conclusion. It’s really important that the District Court judges go through the correct procedure in finding someone guilty. It’s not like people are never guilty and should never be found guilty, but the correct path must always be taken to finding someone guilty. There was once an English judgement that said something to the effect of ‘the appearance of justice is equally important as justice itself’.”

Sigrún Ingibjörg Gísladóttir. Photo by Art Bicnick

While she recognises that “it can be problematic when laws are too general”, with respect to laws like Article 19, Sigrún says, “You should have a two-fold examination based on this procedure. First, the police officer at the ground, when he or she’s confronted with a situation where an order is given, they should go through the process I laid out, that is, to consider; is the order necessary and legitimate? To consider whether it’s necessary in a democratic society, because that‘s the measurement. If the police officer decides that it is legitimate and necessary and gives the order, then a second evaluation needs to take place: in the court, if the case reaches the court. At that stage there is both hindsight and more information, and the court is not under the same time pressure as the police officer at the time, and so a judge can thus determine in a bigger context whether an order was necessary. It’s important to have this review by the court. It’s a fundamental right.”

Sigrún also underlined concerns about access to discovery, saying, “The other thing I would mention because we were discussing discovery, is that it’s really important that the prosecutor is fair and follows their obligation under the law— I imagine there’s a reason why they chose this profession and I presume they respect the law—but there’s also the importance of the appearance of justice. To have equal access to all the evidence, that’s something very important for the defense.”

Helga, in fact, would like to see the matter brought all the way to the ECHR, in the hopes of bringing some much-needed reforms to Iceland.

“I want to take this all the way [to the ECHR] because comparing the Icelandic court cases to the ECHR; well, we’re out of control with our police orders here,” she says. “It’s not in line with what’s normal in a democratic society.”

The Panama Papers protest. Photo by Art Bicnick

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