Elínborg Harpa Önundardóttir, an activist who has long fought for the rights of asylum seekers in Iceland, was yesterday sentenced in Reykjavík District Court for three incidents, two of them on the grounds of a controversial law—Article 19 of the Law on Police—which numerous lawyers the Grapevine has spoken to say is both unconstitutional and a violation of international human rights law. We spoke with Elínborg about the sentencing, and possible plans for appeal.
In the first incident, Elínborg was found guilty of having kicked a police officer in March 2019, a charge that Elínborg denies. While the prosecutor’s evidence was a statement from the officer in question and the testimony of another officer who, in video footage of the moment, has his back turned to the two when the alleged assault took place, she was nonetheless found guilty.
In the other two incidents, Elínborg was charged with disobeying police orders; first, when she was told to vacate a protest in front of the Parliamentary building which photographic evidence shows did not hinder anyone from entering or exiting the building, and second, when she was told to leave a sit-in protest in the lobby of the Ministry of Justice.
For these incidences, Elínborg was sentenced to a two months’ probationary sentence, standing for two years, and to pay 1,150,000 ISK in legal fees.
Lawyers against Article 19
As reported, Article 19 of the Law on Police states that “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.” However, numerous lawyers which the Grapevine spoke to said that this law is applied too broadly—there is no provision which states that the police order must be lawful—that courts do not examine whether or not the police order was lawful, and that prosecutors often restrict or even deny defendants’ access to all the evidence against them. Furthermore, appealing these cases is both difficult and expensive.
We asked Elínborg if she was surprised by the verdict or the sentence.
“No, I wasn’t, because the prosecutor asked for this sentence, and a 30,000 ISK fine for each instance of disobedience,” she said. “So I wasn’t really surprised because they’re being consistent. This is how they’ve been treating people in recent years. There was maybe a small part inside of me that was like ‘Are they really going to make a very weak statement from the police officer, and from another police officer who obviously had his back to us, suffice to find me guilty for this supposed kick?’ But that was just a tiny, tiny part of me that thought this was maybe a one in a thousand chance. So it wasn’t a big surprise, but it was still annoying.”
No examination of whether the order was lawful
Elínborg emphasised that Article 19 is dangerous, and in direct contravention of democratic rights that are supposed to be protected by the constitution.
“I think it’s dangerous that the police can basically tell you to do whatever, and it doesn’t have to have any basis in the law,” she said. Elínborg points out that at a trial against another protestor, who was also charged with breaking Article 19, the police chief of operations was asked by the defendant’s lawyer whether the police considered ahead of time if their orders were lawful, the officer replied that they in fact never consider if their actions have a legal basis. “For me, that really says a lot about why Article 19 is dangerous. It basically means the police can do whatever they want to, whenever they want to, and charge and sentence people for disobeying an order that was maybe not even legal or necessary. There has been absolutely no evaluation done by the courts or prosecutor’s office about whether these orders are necessary. They don’t even seem slightly interested in that.”
Elínborg has still not as yet decided if she will appeal, as there are numerous factors to consider.
“I haven’t decided yet.” The Appellate Court has already stated that they do not think Article 19 needs to be challenged. “For me, because I got a prison sentence, they would have to review my case. But with that in mind, I’ve seen how they’ve treated the appeals of others and how they talk about how they don’t find any general value in checking whether the police are abusing their power to limit the right to protest and freedom of speech. I’m not very optimistic about what they would do with my case.”
“The discourse in Iceland is that everyone has a right to a defendant,” she continues. “We’re always patting ourselves on the back for that, but it’s obviously not for everyone. I got almost 1.2 million that I have to pay to the state for my lawyer, so it’s not like I got my lawyer for free.”
There is a legal fund underway to help Elínborg and others cover these legal fees, which people in Iceland and abroad alike can donate to.
A higher authority
Given that the lawyers which Grapevine spoke to expressed confidence that the European Court of Human Rights (ECHR) would likely find Article 19 to be in serious need of reform, people who have already been denied by the Appellate Court are seriously considering an appeal to the ECHR. But going to ECHR means having first to go to the Appellate Court and then the Supreme Court first.
“The waiting time to go to Appellate Court is now about 16 months, which is something I’m taking into consideration when it comes to whether I want to appeal or not,” Elínborg says. “The probationary period will almost be over when my case might finally be picked up by the court, and if they decided to affirm the sentence, the probation renews. But I will definitely follow up on the other cases.”
The urgency of activists like Elínborg is underlined by the fact that Icelandic authorities are launching mass deportations of asylum seekers in Iceland to Greece. Another lawyer Grapevine spoke to, Albert Björn Lúðvígsson, pointed out that the decision to deport people to Greece is odd, considering that Icelandic authorities froze deportations to that country last spring due to how widespread the coronavirus was in that country. Deportations to Greece resumed last autumn, however, even as the coronavirus situation in Greece is now demonstrably worse.
As activists seek to protest these impending deportations, they will continue to have the threat of Article 19 hanging over them.
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