European Court of Human Rights Backs Icelandic Court in Hate Speech Case

European Court of Human Rights

The European Court of Human Rights (ECHR) rejected a complaint from Carl Jóhann Lilliendahl, who was convicted for homophobic hate speech by the Supreme Court of Iceland. Carl Jóhann made homophobic comments in response to an online article in April 2015 and was eventually fined ISK 100,000 (around €800 at the time). The ECHR unanimously declared Carl Jóhann’s application inadmissible.

Comments Ruled “Serious, Severely Hurtful, and Prejudicial”

In April 2015, the local authorities of Hafnarfjörður, Southwest Iceland, approved a proposal to strengthen education in elementary and secondary schools on lesbian, gay, bisexual or transgender matters in co-operation with the National Queer Association (Samtökin ‘78). The decision led to substantial public discussion which Carl Jóhann became involved in. The case concerns comments he wrote in response to an online article on the issue, expressing his disgust and using derogatory words for homosexuality, namely kynvilla (sexual deviation) and kynvillingar (sexual deviants).

Samtökin ‘78 reported Carl’s comments to the police. Following an investigation, he was indicted in November 2016 under Article 233 (a) of the General Penal Code which penalises publicly mocking, defaming, denigrating or threatening a person or group of persons for certain characteristics, including their sexual orientation or gender identity. Though he was acquitted at first instance, in December 2017, the Supreme Court overturned the court’s judgment and convicted him, fining him ISK 100,000.

The Supreme Court found that the applicant’s comments were “serious, severely hurtful and prejudicial,” and weighing up the competing rights at play in the case, ruled that it was justified and necessary to curb the applicant’s freedom of expression in order to counteract prejudice, hatred and contempt and protect the rights of social groups which have historically been subjected to discrimination.

Argued Freedom of Expression Was Breached

Carl Jóhann lodged a complaint with the ECHR alleging that the Supreme Court’s conviction had breached his freedom of expression. The ECHR has now rejected the complaint, finding, like the Supreme Court of Iceland, “that the comments had promoted intolerance and hatred of homosexuals,” according to a press release from the Court. The release goes on to say that, although the comments did not amount to the “gravest” form of hate speech as it was not immediately clear that they had aimed at inciting violence, they fell under the court’s definition of “less grave” hate speech, which the court has previously held that states were allowed to restrict.

The ECHR found that the Supreme Court of Iceland “had extensively weighed the competing interests at stake, namely the applicant’s right to freedom of expression against the rights of homosexual persons to private life. The Court therefore found that the applicant’s complaint […] was manifestly ill-founded and rejected it as inadmissible.”

Icelander Róbert Spano Elected President of European Court of Human Rights

The European Court of Human Rights elected Icelander Róbert Ragnar Spano as its new President yesterday. He will take office on May 18, 2020, succeeding Linos-Alexandre Sicilianos, from Greece. At 47, Róbert is the youngest president in the 61-year history of the European Court of Human Rights.

Róbert was born in Reykjavík, Iceland in 1972, and studied law at the University of Iceland before completing a Magister Juris degree in European and Comparative Law at the University of Oxford. Róbert served as a legal advisor and deputy to the Parliamentary Ombudsman in Iceland and taught at the University of Iceland’s Faculty of Law, where he served as Dean from 2010-2013.

Róbert has been a judge of the European Court of Human Rights since November 2013 and Vice President of the Court since May 5, 2019. He speaks five languages: Icelandic, English, Italian, French, and Danish.

Icelandic Court of Appeal Case before ECHR’s Grand Chamber

Sigríður Andersen.

The European Court of Human Rights (ECHR) held a Grand Chamber hearing in the case of Guðmundur Andri Ástráðsson v. Iceland today. The case concerns the former’s allegation that the new Icelandic Court of Appeal (Landsréttur), which upheld his conviction in April 2018, was not established by law, having regard to irregularities in the appointment of one of the judges sitting on the bench; in 2017, then Minister of Justice Sigríður Andersen oversaw the appointment of four judges to the Court who were not on a list of 15 candidates initially selected by an evaluation committee.

In Brief

As noted in a press release from the Grand Chamber this morning, in 2017, Guðmundur Andri Ástráðsson was convicted of driving without a valid licence and of being under the influence of narcotics. He appealed the decision to the new Court of Appeal (established in January 2018). Judge Arnfríður Einarsdóttir was one of the judges assigned to Guðmundur’s case. Arguing that there had been irregularities in the procedure for her appointment, Guðmundur requested that she withdraw. His motion was rejected.

Guðmundur appealed the case to the Supreme Court in April 2018, but the court dismissed his appeal a month later, finding that despite flaws in the procedure, there was not a sufficient reason to doubt that Guðmundur had had a fair trial before independent and impartial judges. On May 31, Guðmundur appealed the decision to the European Court of Human Rights.

In its Chamber judgment on March 12, 2019, the ECHR held (by five votes to two) that there had been a violation of Article 6 section 1 (right to a tribunal established by law) of the European Convention on Human Rights. The Chamber found that the process by which Arnfríður Einarsdóttir had been appointed to the Icelandic Court of Appeal had amounted to a flagrant breach of the applicable domestic rules: “It had been to the detriment of the confidence that the judiciary in a democratic society must inspire in the public and had contravened the very essence of the principle that a tribunal must be established by law.”

On September 9, 2019 the Grand Chamber Panel accepted the government’s request that the case be referred to the Grand Chamber. That hearing began this morning at 9.15 am and concluded at 11.45 am. Many Icelanders were in attendance, among them Sigríður Andersen, former Minister of Justice (who resigned following the ECHR ruling last year), Jón Finnbjörnssn (one of the judges on the Icelandic Court of Appeal on hiatus following the ECHR verdict), and parliamentarian Helga Vala Helgadóttir.

State of Paralysis

In an opening statement this morning, State’s Attorney Fanney Rós Þorsteinsdóttir said that the Icelandic Court of Appeal could no longer endure a “state of paralysis.” Arguing on behalf of the Government, Fanney stated that the ECHR should, based on the facts, conclude that the state of paralysis should be resolved: the Icelandic government had not violated the rights of Guðmundur Á. Ástráðsson when Icelandic Court of Appeal judge Arnfríður Einarsdóttir upheld his conviction.