Álit

In a letter to A, dated 29 December 2003, I concluded my investigation into seven out of eight aspects of his complaint. An English translation of the letter follows below.

I.

I refer to your complaint on behalf of the Falun Gong Iceland Dialogue Committee (FIDC), dated 10 June 2003, concerning certain actions by Icelandic authorities towards Falun Gong practitioners at the time before and during the state visit of former head of China, Jiang Zemin, to Iceland in June 2002. In your complaint you summarize the alleged offences against Falun Gong in eight separate points. You maintain that the mentioned acts and decisions constituted a violation of basic human rights, such as the right to freedom of thought, conscience and religion, freedom of opinion and expression, freedom of peaceful assembly and association, freedom of travelling, as well as the right to privacy. You furthermore claim that the actions and decisions that are the substance of your complaint were unethical, discriminatory and unjust and constituted violations of Icelandic law and international agreements as well as the Schengen Agreement and visa wavier agreements.

In your complaint you point out that FIDC has had dialogues with representatives of the Icelandic government but these have failed to produce satisfactory results. You request that I consider all sides of your case and „in particular that the relevance of [your] requests to The Government to bring this case to justice be considered“.

On the basis of your complaint I wrote a letter to the Office of the Prime Minister, in which I requested information, with reference to Article 7 of Act no. 85/1997, on the Parliamentary Ombudsman, regarding points 2-8 in your complaint. I also explained that the reason for my decision to direct my request to the Office of the Prime Minister, was that the complaint seemed to concern decisions and actions by two or more ministries. In my letter I emphasized that I had at that stage not decided if your complaint gave occasion for closer investigation on my part. The sole purpose of my letter to the Office of the Prime Minister was therefore to obtain information in order for me to make that decision. On 15 September I had a meeting in my office with representatives from the Office of the Prime Minister, the Ministry of Foreign Affairs and the Ministry of Justice and Ecclesiastical Affairs where the requested documents were presented. The representatives also answered questions I put to them regarding issues relating to your complaint.

II.

1.

The role of the Parliamentary Ombudsman is to monitor, on behalf of the Parliament, the administration of the State and local authorities in such a manner as is stated in Act no. 85/1997, on the Parliamentary Ombudsman, and ensure that it is conducted in conformity with the law and good administrative practice. The Ombudsman may take up a case following a complaint and any person who feels unjustly treated by the administration or private parties that have been by law vested with public authority to decide as to the rights of individuals and obligations in the sense of Art. 1, para. 2, of the Administrative Act, can lodge a complaint, cf. Art. 4 of Act no. 85/1997.

If the Ombudsman feels that a complaint does not provide grounds in law that warrants a closer investigation or that it does not meet the substantive criteria for admission of Act no. 85/1997, he shall notify the complainant accordingly. That is the end of the matter as far as the Ombudsman is concerned, cf. Art. 10 para 1 of the same Act. If the Ombudsman decides to investigate a complaint in substance he may conclude it e.g. by dismissing it on receipt of a clarification or explanation from an administrative authority or by issuing an opinion as to whether an act of an administrative authority conflicts with the law or is otherwise contrary to good administrative practice. Where an act of an administrative authority becomes the subject of reproach or criticism by the Ombudsman he may at the same time address to such authority a recommendation to make amends, cf. Art. 10 para 2 of Act no. 85/1997.

As described above, Act no. 85/1997 on the Parliamentary Ombudsman provides that the Ombudsman perform a specific role which is defined in detail in the Act itself. Thus the Ombudsman can not perform functions or investigate matters that fall outside the scope of the same Act. Under Act no. 85/1997, the role of the Ombudsman is limited to assessing the legality of administrative decisions and conduct that form the basis of complaints. The investigation of the Ombudsman is directed towards assessing whether the relevant administrative organ has in its functions conducted itself in accordance with written or unwritten rules of law and good administrative practices. Consequently, it falls in general outside the competences of the Ombudsman to express an opinion on whether decisions or conduct of the administration, which are considered to be lawful, conform to general standards of justice and morality. I furthermore note that despite the fact that the Ombudsman is permitted to notify the Parliament and the relevant government minister if he notices flaws in current legislation, cf. Article 11 of Act no. 85/1997, it is in general not possible to demand an investigation from the Ombudsman into the substance of legislation on the basis of a complaint. My investigation of your complaint has been based, as always, on these principles as derived from Act no. 85/1997.

2.

In your complaint you explain the reasons for the Falun Gong practitioners’ decision to travel to Iceland in June 2002:

“To stop the persecution in China, Falun Gong practitioners make peaceful appeals at different occasions. Chinese leaders visiting western countries present a special opportunity to appeal to them to end the persecution.

[...]

When Falun Gong practitioners learned that Chinese president Jiang Zemin was planning to visit Iceland last June, many individually and separately decided to travel to Iceland, on their own time and using personal funds, in order to appeal for truth and justice and help rescue others from torture and death, practitioners. We felt a sense of responsibility to come to Iceland, to bear witness to the vicious persecution against Falun Gong and to serve as a reminder to all that Jiang is personally and directly accountable for this tragedy.”

You claim that 231 Falun Gong practitioners were affected by the decisions made by the government of Iceland, not including those who had their visa application refused. You describe that many were shocked to find their names on a blacklist and that many passengers to Iceland, in particular those of Asian origin, were questioned at the airports as to whether they were practitioners of Falun Gong. Furthermore that upon arrival in Iceland over seventy practitioners were singled out from other passengers and detained for up to 18 hours. You claim that these individuals were first told by police that they would be deported and that they were later required to sign a pledge as a condition for release and permission to enter Iceland. You describe how four representatives of Falun Gong in Iceland were required to sign a declaration at the police station as a condition for those detained to be released. You also point out that some practitioners did find their Icelandair tickets cancelled unilaterally and their carriage to Iceland denied at several international airports in Europe and the US, under the instruction of Icelandic authorities.

In your complaint you have defined the acts carried out by Icelandic authorities that led to your complaint as follows:

“(1) Collecting, keeping, distributing and the disgraceful use of the name list of Falun Gong practitioners: “The blacklist”

(2) Wide spread of the defamatory letter from The Ministry, causing damage to Falun Gong practitioners’ reputation

(3) Illegal arrest and detention or custody of Falun Practitioners on arrival at Keflavik Airport

(4) Unlawful arrest after legal entry into Iceland

(5) Coercive request to practitioners to sign the Declaration in police station.

(6) Coercive request to practitioners to sign letters and forms at the airports

(7) Denied boarding of practitioners to access to Icelandair flights to Iceland.

(8) Deportation of practitioners who arrived at Keflavik Airport.”

In the following I will give a general description of those rules of domestic law that are relevant in assessing the merits of your complaint. Subsequently, I shall discuss the above-stated points of concern mentioned in your complaint.

III.

1.

In conformity with the principle of State sovereignty it is at the discretion of each State to decide on the rights of foreigners to admission to or residence in its territory. The State’s scope to exercise its discretion is nevertheless restricted by obligations it may have undertaken towards other States. It is, however, a general principle of Icelandic law that a foreigner needs a special permit to enter and stay in the country unless he is exempted from this condition by special provisions. Icelandic authorities can furthermore deny foreign citizens admission if they do not comply with the relevant conditions laid down by Icelandic law.

When the incidents of this case took place administrative decisions as to admission and residence in Iceland were regulated by Act no. 45/1965, on the Supervision of Foreign Nationals. The provisions of Act 45/1965 therefore apply to this case. Act no. 45/1965 has now been repealed as a new Act, no. 96/2002, on foreigners, entered into force on January 1 2003. Article 4 para 1 of Act no. 45/1965, as amended by Article 11 of Act no. 133/1993, stated that the Directorate of Immigration was to decide on the issue of permits needed for entry and stay in the country according to the Act. According to para 2 of Article 4 the Minister of Justice could grant the police and Icelandic consuls abroad permission to issue such permits to foreigners.

Article 10, para 1, of Act nr. 45/1965, stated that the authorities were under an obligation to deny a foreigner entry if some of the circumstances listed in the Article applied to him. Item 10 of this paragraph, cf. Art. 6 of Act no. 25/2000, declared that a foreigner should be denied entry if this was considered necessary with a view to ensuring public order, national security or the international relations of Iceland or any other state taking part in the Schengen co-operation. This provision granted Icelandic authorities considerable discretion in assessing whether to allow a certain foreigner to enter Icelandic territory.

According to the documents before me Icelandic authorities received information that a considerable number of Falun Gong practitioners were expected to travel to Iceland during the state visit of the President of the People’s Republic of China in order to protest against the policies of the Chinese Authorities against the movement in China. Icelandic authorities maintain that they initiated talks with Falun Gong members arriving in Iceland the week before the visit, who claimed to represent the movement. These talks revealed that some members insisted that they would not comply with police instructions to stay within defined protest areas, but try to get as near to the Chinese president as possible. Prior to the visit the Icelandic authorities contacted police forces in several European countries that informed them that although the demonstrations of the Falun Gong movement had been overall peaceful in nature, members of the group had been known to push or rush through police lines, when the opportunity offered. Icelandic authorities stress in letters I have received written in June 2002 that the Icelandic police force is small and that the planned protests, in which hundreds of foreign protesters intended to participate, would purportedly create a danger for public safety and order. It has furthermore been pointed out by the Icelandic government in these documents that it is under an obligation in accordance with international law to ensure the security of foreign heads of state and other guests who visit the country as representatives of their own states. It was thus deemed necessary by the Icelandic government to secure public order by limiting the number of foreign nationals permitted to enter the country to participate in the planned protest. I would like to mention that in a letter from the Ministry of Foreign Affairs, dated 7 June 2002, to all Icelandic embassies and consulates, it is stated that the measures taken were not aimed at limiting freedom of expression or preventing peaceful protests but had as their basis the need to ensure public order and thus enable Icelandic law enforcement officials to secure the protection of a foreign head of state visiting Iceland. As to the legal basis for the described measures Icelandic authorities have referred to the above-mentioned Act no. 45/1965 and the Schengen Agreement.

Having considered the documentation before me and the rationale presented by the government of Iceland for the decision to deny practitioners of Falun Gong entry into Iceland in June 2002, I would at this point make the general remark that in my view the government had a sufficient legal basis in Article 10, para 1, item 10 of Act no. 45/1965, for deciding to issue a ban on entry of individuals which the government had a legitimate reason to believe were travelling to Iceland with the sole intention to protest on the occasion of the visit of the President of China. In this respect, the intention of Falun Gong practitioners to travel to Iceland for this purpose had been manifestly expressed. Under the mentioned provision of Act no. 45/1965 the government is assigned the task of evaluating the circumstances of each case and to decide if the conditions described in the mentioned provision are fulfilled taking into account relevant factors regarding public resources and an assessment of the possibilities for law enforcement officials to control in an adequate fashion the sequence of events. The Icelandic government reached the conclusion that the fact that a vast number of individuals were planning to travel to Iceland in order to participate in the protest against China’s policies could possibly result in a situation beyond what the Icelandic police could control and therefore pose a real danger to public order and security. On the basis of this evaluation it was decided to limit the number of individuals permitted to enter the country to participate in the planned protest.

I can not reasonably draw other inferences from the documentary evidence than that the government arrived at this decision on the basis of reasons dealing with the protection of public order taking into account the relative smallness of the Icelandic law enforcement community. I stress that I can not deduce from the documentary evidence before me that the government’s action were based on unreasonable and illegitimate grounds that do not have a basis in statutory law. On the basis of the information in this case I furthermore feel that I can not conclude that there are reasons for criticism on my part as regards the assessment of the government that the facts and circumstances, especially taking into account information on the possible numbers of Falun Gong practitioners intending to travel to Iceland and the small size of the Icelandic police force, were such as to make it foreseeable that the intended protests could constitute a “threat to public order” within the meaning of Article 10, para 1, item 10 of Act no. 45/1965. I would furthermore like to emphasis that the Icelandic Constitution or rules of an international nature, e.g. deriving from the European Convention on Human Rights or the International Covenant on Civil and Political Rights, do not create other and more far-reaching obligations on the government of Iceland to grant entry of practitioners of Falun Gong into Iceland than the ones that were expressly provided for in Act no. 45/1965.

2.

The complaint stresses the opinion of the FIDC that the police compilation and use of the list of names of Falun Gong practitioners in order to deny them entry into the country prior and at the time of the state visit of the president of China to Iceland was unlawful. As regards this point the committee disagrees with the conclusion of the Icelandic Data Protection Authority (IDPA) in its ruling from 5 June, 2003, on the occasion of a complaint on behalf of Mr. E. I point out that Mr. E is a party to the complaint to me. It is my understanding that this part of your complaint concerns IDPA’s conclusion in its ruling from 5 June 2003, as regards the above mentioned issue.

In it’s ruling the IDPA portrays the role of the police according to Article 1, para 2, of the Police Act no. 90/1996. Reference is made to Article 10, para 1, item 10, of Act no. 45/1965, on Supervision of Foreign Nationals, cf. Article 6 of Act no. 25/2000, regarding the obligation to deny a foreigner entry if it was considered necessary with regard to public order, national security or the international relations of Iceland or any other state taking part in the Schengen co-operation. As regards the police authority concerning the distribution of information, reference is made to Article 6 of regulation no. 322/2001, on the processing of personal data by the police, which declares that the police are authorised to distribute information to other authorities and private parties if regarded necessary to prevent serious and imminent risk for disturbance to public order and security. The IDPA points out that it is essential for the police to be able to employ extensive processing of personal data in order to fulfil its duties. As part of the preparation for the state visit of China’s president in June 2002, the Icelandic police investigated the probable extent of protests in connection with the visit and if any illegal activities were in the making that had to be prevented. The IDPA’s conclusion is that it was legitimate for the Icelandic police to process the information, subject to the complaint, to the extent necessary to enable them to fulfil their duties, cf. Article 8, para 1, item 6, of Act no. 77/2000, on the Protection and Processing of Personal Data, and Article 9, para 1, item 7, of the same Act. In my view there are no grounds for me to criticise IDPA’s conclusion as regards this point. I find it necessary to emphasise that since your complaint does not concern IDPA’s conclusions other than that relating to the legitimacy of the composition and distribution of the aforementioned lists by the Icelandic police, I will not discuss other aspects of the ruling and have therefore not expressed an opinion as to their content.

3.

In your complaint you criticise the content of a letter from the Ministry of Justice and Ecclesiastical Affairs, dated 10 June 2002, which according to your account was distributed to flight passengers to Iceland. The complaint states that this letter was “defamatory” and caused “damage to Falun Gong practitioners’ reputation”.

The letter in question reads as follows:

“According to information received by the Icelandic Authorities, a large number of supporters of the Falun Gong movement are expected in Iceland with the intention of protesting against the policies of the Chinese Authorities towards the movement during the visit of the President of the People’s Republic of China, on occasion of his visit at the invitation of the President of Iceland on June 13th-16th.

The Icelandic Police Force are few in number and there is a very real danger that the planned protest, in which hundreds of foreign protesters intend to participate, would get out of control and pose a danger to the public. Iceland is bound by international law to ensure the security of foreign heads of state and other guests who visit the country as representatives of their own states.

For this reason it has been decided to limit access to Iceland of those who may intend to travel to Iceland in order to participate in protest actions against the President of the People’s Republic of China. They will not be issued visitation visas to Iceland while the official visit is in progress and will not be allowed entry into the country until the official visit of the President is concluded. Furthermore, it has been decided to take up temporary passport controls for passengers from other Schengen countries.

The above measures are not intended to limit freedom of expression or to prevent peaceful protests. Their aim is to ensure public order and to make it possible for the Icelandic Police Force to ensure the safety of a foreign head of state.

Falun Gong members intending to travel to Iceland during the period 11th-16th of June are asked to take notice of this.

They will be refused entry and might face deportation if they have entered the country.

They are therefore advised to cancel their trip to Iceland or delay it until after June 16th.”

In your complaint it is stated that “the content of this letter denounces Falun Gong practitioners, claiming they represent a danger and a security risk and were “a group of protesters that would get out of control and pose a danger to the public””. You point out that the message was disseminated around the world, to airport staff and flight passengers at major world airports. It is your opinion that the “information given is groundless, defamatory, and based upon false information” and that it is “unjustified and damages the dignity, reputation, and good standing in society of [your] practice and of all Falun Gong practitioners”.

Having examined the wording of the letter from the Ministry of Justice to flight passengers to Iceland, dated 10 June 2002, I do not find that its content contains language that portrays Falun Gong or its members in a degrading or negative way. It is undisputed that a large number of practitioners of Falun Gong had decided to visit Iceland to demonstrate and express their objections towards the policies of the government of China as its head of state was visiting the country. In its letter the Ministry describes this fact in the first paragraph in an objective way. Subsequently the letter describes the possible danger posed by demonstrations, where hundreds of people are involved, due to the small number of law enforcement officials in Iceland. The letter thus only depicts a general conclusion drawn from a description of a possible factual situation that from experience can lead to those circumstances. I stress that the language of the letter does, in my view, not in any way describe an assessment by the government on the nature and the general aims of Falun Gong.

4.

In your complaint you claim that practitioners of Falun Gong were “illegally arrested and detained or put in custody on arrival in Keflavik Airport”. On this issue your complaint states:

“On June 11, 2002, approximately 70 practitioners whose names were on the blacklist or who were accompanying persons whose names were on the list were denied entry into Iceland upon arrival at Keflavik Airport. Some of them were arrested and held in detention in a nearby school for about 18 hours, while another group was held in custody at the airport. The only reason given by the police was that they were Falun Gong practitioners.

The arrests were made by the police according to instruction from The Ministry and The Government. They were either identified by the blacklist, or asked if they were Falun gong practitioners at the airport.”

As to further description of these incidents reference is made to Mr. B’s report (Appendix p. 32). Mr. B is a party to the complaint to me. In his report Mr. B describes that he arrived at Keflavik Airport around 6:45 am on 12 June 2002. When he was waiting in line a policeman came, asked for his passport and sent him to a certain room without giving any reason. After 3-4 hours Mr. B was asked a few questions by the airport police, among other things about the purpose of his trip and his connection to Falun Gong, and subsequently sent to the cafeteria area on the 1st floor of the terminal building. Mr. B reports how, at 1:30 pm, he was requested to get on a school bus together with 25 other individuals and driven to Njarðvík-School in the vicinity of the airport. Mr. B claims that all those individuals were detained in the school from that time. He furthermore claims that around 3:00 pm the chief police officer came and announced that the people would be deported and sent by the next available flight to Boston or Philadelphia. The officer subsequently asked the people if they would go to the airport peacefully or unwillingly. Mr. B claims that he requested a written statement from the authorities of the reasons for the decision to deport the people and that he was denied this request. He also reports that all the individuals in the school refused to be deported with no reason and that they informed the police of their determined decision: “even if we stay in this school until Jun 16, we did not want to go back”. The people were allowed to stay in the school until the next morning, but at 1:00 am that night they were granted admission on condition that they signed an agreement which stated that they would obey the instructions given by Icelandic police regarding the planned protest.

Article 67, para 1, of the Icelandic Constitution, as amended by Article 5 of Act 97/1995, declares that no one may be deprived of his liberty except as permitted by law. Article 5, para 1, item f, of the European Convention on Human Rights, which was incorporated into Icelandic law by Act no. 62/1994, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

[...]

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The European Convention on Human Rights does not grant foreigners an independent right of admission to or residence in the member states. Article 5, on the other hand, grants a foreigner certain guarantees in the circumstances where the authorities of a contracting state proceed to arrest or detain him pending a decision on his admission, deportation or extradition. According to the provision such arrest or detention must be in conformity with law. Furthermore the provision has been interpreted as to imply that the period of detention may not exceed a reasonable time.

Article 10, para 3, of Act no. 45/1965 declared that the Police Commissioner would rule on the question of admission as soon after the foreigner’s arrival to the country as possible. Article 15 of the same act declared that the police was under obligation to guarantee the foreigner’s presence until a ruling was pronounced on his admission or deportation and such decision implemented. To that end the police was authorized to instruct the foreigner to report at a certain place or to stay in certain premises. Furthermore, if such orders were deemed inadequate the provision authorized the arrest of the foreigner in accordance with the provisions of the Code of Criminal Procedure with the applicable concessions in accordance with the nature of the case.

According to the documents laid before me the decision to transfer the individuals in question from Keflavík-Airport to Njarðvík-School was based on the fact that the facilities in the terminal building were inadequate for accommodating a large number of individuals waiting for a ruling on their admission. The decision to transfer individuals that faced a possible denial of entry to Njarðvík-School was thus made as a part of the preparatory measure on behalf of Icelandic authorities as they learned that a considerable number of Falun Gong practitioners were expected to travel to Iceland and therefore the cases of many individuals would be pending at the same time.

In accordance with the explicit instructions of Article 15, para 1, of Act no. 45/1965 the police was under an obligation to guarantee the presence of the individuals in question until a ruling was being pronounced on their permission or denial of entry. To that end the police had certain means according to the same provision, among other things to instruct them to stay in certain premises. Consequently, it is my view that the decision to accommodate the individuals in question in Njarðvík-School pending a decision on their admission or denial of entry was, in and of itself, in keeping with the authority vested in the police according to Act no. 45/1965.

It is maintained in Mr. B’s report that he, as well as other individuals situated in Njarðvík-School, were informed of the Police Commissioner’s decision to deny them entry around 3:00 pm on June 12, just over eight hours after their arrival to the country. As stated above, Article 10, para 3, of Act no. 45/1965 declared that the Commissioner should rule on the question of admission as soon after the foreigner’s arrival to the country as possible. Considering the special circumstances of this case and the number of foreigners whose cases were under investigation of the border police, I do not find that the time that passed between the arrivals of the individuals in question and the notification of the decision to deny them entry exceeded what may be considered in compliance with the above mentioned provision.

As described earlier Mr. B requested a written statement from the authorities of the reasons for the decision to deport the people. It is maintained that he was denied this request orally.

According to Article 21, para 1, of the Administrative Act no. 37/1993 a party to a case can demand a written statement from a public authority of the reasons for a decision if they were not given on notification. A request for the reasons for a decision does, however, not suspend its effects. The Administrative Act no. 37/1993 applies only when a measure or action taken by public authorities concern specific and defined rights and obligations bestowed upon individuals. The Icelandic authorities’ instructions to limit the number of foreign nationals admitted to the country to participate in the planned protest in connection with the state visit of China’s president was initially aimed at an unspecified group of people and based on a need to preserve public order. Such decisions, even though they have an effect on individuals that form a part of the group, do not in general constitute administrative decisions that fall under the scope of the Administrative Act no. 37/1993, cf. inter alia judgment of the Supreme Court of Iceland from 15 June 2000 in case no. 70/2000. Taking this into account and bearing in mind that the decision to deport Mr. B and other individuals staying at Njarðvík-School was not implemented and that they were subsequently granted permission to enter the country, I do not find it necessary to discuss whether he had a right to a written statement of grounds on the basis of the Administrative Act. I reiterate that I have not made a final assessment on this issue on my part.

From a decision on denial of entry follows that the individual in question is under a legal obligation to leave the country without delay. As mentioned above all the people in Njarðvík-School refused to leave the country despite the fact that they had been informed of the Police Commissioner’s decision to deny them entry. According to the documents laid before me Icelandic authorities did not find it feasible to deport the people against their will. Instead it was decided to allow them to stay in the school at least until the next morning. With reference to Article 15 of Act no. 45/1965, discussed earlier, I do not find that Icelandic authorities exceeded their authority by that decision. As described earlier the Falun Gong practitioners in Njarðvík-school were permitted to enter the country later that same night and the former decision in their case thereby revoked. I would also like to stress that having examined the documentary evidence before me I find no evidence to support a conclusion that the treatment of the individuals staying in Njarðvík-School was in violation of the principle of proportionality.

4.

In the complaint reference is made to the claimed “unlawful arrest after legal entrance to Iceland” of German citizen, Mr. C, in whose report it is stated that he was on 10 June 2002 held for interrogation by Icelandic police in Keflavik airport.

Mr. C claims that he was asked various personal questions about his beliefs, interests, job, friends etc. and that this interrogation lasted for about one hour. He was then released but as he waited for a bus outside the terminal building he was called in for questioning again. He was then informed that he was denied entry. In his account Mr. C states that he requested to talk to the German Embassy and the media but that he was then informed that he was arrested and that the police wanted to search his luggage. Mr. C claims that his mobile phone, money and passport was confiscated and that he was told that he would be deported the next morning. At 9 pm he was however released and allowed to enter the country.

The complaint reports that Mr. C complained about this incident to the Director for Public Prosecutions but that there was to date no answer to his request. On 6 November 2003 I received documents from Mr. G, Supreme Court Advocate, among them a letter, dated 28 July 2003, from the Public Prosecutor, regarding Mr. C’s case, among other issues. In his letter the Prosecutor concludes that the incident in question cannot be considered an illegal arrest. It is pointed out that according to Article 15 of Act no. 45/1965 the police was under obligation to guarantee the presence of Mr. C until a ruling was being pronounced on his permission or denial of entry and that he was free to leave the country had he chosen to. It is the Prosecutor’s view that the decisions made by the police in Mr. C’s case were well founded and based on the provisions of Article 67, para 1, of the Constitution of the Republic of Iceland as amended by Article 5 of Act no. 97/1995, and Article 5, para 2, item f, of the European Convention on Human Rights, cf. Act no. 62/1994.

With reference to the above matter, I requested information from the Director of Public Prosecutions and documents relating to the conclusion reached in Mr. C’s case. I received the requested documents on 16 December 2003, amongst them the report of the Keflavík Airport Police, dated 10 June 2002, on the police interaction with Mr. C, the diary entries of the police, dated the same day, and a letter from the Police Commissioner at Keflavík Airport, dated 14 July 2003, which was written on the request of the Director of Public Prosecutions, dated 4 July 2003, for further information on Mr. C’s case. These documents do not provide information to support the description in Mr. C’s statement on his interrogation and treatment by the police. With reference to these documents and the rationale provided in the letter of the Director of Public Prosecutions from 28 July 2002, for the dismissal of Mr. C’s complaint, it is my conclusion that this part of this case does not warrant further examination on my part.

Your complaint refers to the written statement of Mrs. D, a US citizen. Mrs. D describes that she arrived at Keflavik airport on June 11 2002, together with her husband and a friend. They were all denied entry and sent on the first available flight to the US, which was destined for Baltimore. From Mrs. D statement it is not clear from which country she came to Iceland, or where she intended to travel after her visit to Iceland. She mentions, however, that her friend had planned to end her trip in New York and that she had to find her own way there from Baltimore. On basis of the information laid before me regarding this aspect of your complaint and with reference to the aforesaid, there are, in my view, no grounds for me to criticise the Icelandic authority’s actions in Mrs. D’s case.

5.

In the complaint, issue is taken with the alleged “coercive request to practitioners to sign [a certain] Declaration”, dated 11 June 2002. Regarding this issue the complaint reads as follows:

“Representatives of Falun Gong practitioners in Iceland were required by the Police of Reykjavik to sign a declaration prepared by The Ministry. Signing the declaration was a prerequisite from the authorities to release and allow into the country all practitioners in custody or in detention. The declaration the practitioners were forced to sign was a discriminatory violation of human rights intended to limit the practitioners’ basic human rights to collectively and peacefully express our opposition to the persecution. [...] The declaration imposed upon practitioners is immoral and illegal. The declaration that Falun Gong practitioners were forced to sign has been said to be part of courtesy to their guest. We have afterwards been aware that the intention of the declaration was to limit the lawful intent to collectively and peacefully express opposition to the well known campaign of repression of Falun Gong practitioners by the Chinese regime. Our intent is secured by national laws and international conventions of basic human rights such as freedom to expression and assembly. [...]”

The declaration in question, dated 11 June 2002, reads as follows:

“We, the undersigned, representatives of Falun Gong practitioners situated in Iceland June 2002, hereby declare on behalf of the group, that all members will obey and observe all conditions and instructions set by the Icelandic Police Authorities relating to the State Visit in Iceland of the President of the People’s Republic of China.

We as well declare that the group will abide by Icelandic laws and regulations and not in any way disturb the programme of the visit. That includes that the group will respect all special security areas decided by the police, perform exercises at places approved by the police and designate to the Police specific contact persons for each location.

We will present this declaration to all Falun Gong practitioners situated in Iceland.”

This part of your complaint concerns, on the one hand, the question whether Icelandic authorities were empowered by law to request, as a condition for the admittance of Falun Gong practitioners, that their representatives sign the above mentioned declaration and, on the other hand, the question whether the contents of this declaration violated the right to freedom of expression and freedom of assembly guaranteed by Articles 73 and 74, para 3, of the Icelandic Constitution and Articles 10 and 11 of the European Convention on Human Rights.

As stated earlier it is at the discretion of each State to decide on the rights of foreigners to enter and reside in its territory. Icelandic authorities are thus empowered to deny foreign citizens entry if they do not comply with the relevant conditions laid down by Icelandic law, cf. in this case Act no. 45/1965 as described in more detail in chapter III.1 above.

The decision by the government of Iceland to limit the number of individuals permitted to enter the country to participate in the protest in connection with the state visit was, as elaborated above, based on the assessment that a vast number of individuals planning to travel to Iceland in order to participate in the protest against China’s policies could possibly result in a situation beyond what the Icelandic police could control and therefore pose a real danger to public order and security. On the basis of this evaluation it was decided to limit the number of individuals permitted to enter the country to participate in the planned protest. As described above this assessment was based on information gathered by the police during talks with Falun Gong representatives who arrived in Iceland the week before the visit, as well as by inquiries directed at European police authorities. The government claims that it could not be adequately secured that Falun Gong practitioners would comply with police instructions to stay within defined protest areas. On the basis of this risk-assessment the government deemed it necessary to take action and limit the number of protesters admitted to the country. I reiterate that I can not conclude from the evidence before me that these measures were in themselves intended to limit freedom of expression or preventing peaceful protests, but to ensure full police control of the situation and thereby to guarantee the safety of the foreign visitors as well as public order. I again emphasise that in my view the government’s decision in this respect had an adequate basis in statutory law, cf. Act no. 45/1965.

From the facts of this case it is clear that a considerable number of Falun Gong practitioners came to Iceland on 11 June 2002, despite being informed of this assessment by the Icelandic government and thus being warned of a possible denial of entry. These individuals were transported to Njarðvík-School and notified of the Police Commissioner’s decision on denied admission. They all refused to leave the country voluntarily. The Icelandic authorities did not find it feasible to deport the people against their will. Instead they opted to try to reach an agreement with the Falun Gong practitioners declaring they would be admitted if their representatives signed the declaration at issue. The practitioners to whom this proposition was made were free to decide whether to accept the terms of the agreement or to reject it. In my view it cannot be inferred from the documents of this case that the practitioners were forced to accept the proposition and to sign the declaration. Furthermore it is my opinion that it was not unlawful for the Icelandic authorities to decide that a declaration, on part of the practitioners, that they would obey police instructions concerning the execution of their demonstration should be a precondition for their admittance in light of the discretion afforded the authorities in these matters under Icelandic law.

Article 73 of the Icelandic Constitution guarantees the right to freedom of expression. This freedom may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in conformity with democratic traditions. Article 10 of the European Convention on Human Rights also protects the right to freedom of expression, cf. Act no. 62/1994. According to the mentioned provisions this right is secured to everyone, including foreigners. The right to freedom of peaceful assembly is guaranteed by Article 74 para 3 of the Icelandic Constitution. The provision guarantees everyone, both Icelanders and foreigners, right to assemble unarmed, whether indoors or in the open. This right may, however, be restricted, and as laid down in the aforementioned provision public gatherings in the open may be banned if it is feared that riots may ensue. According to Article 11 of the European Convention on Human Rights everyone has the right to freedom of peaceful assembly with the restrictions laid down in para 2 of the same Article. The provision of para 2 pronounces that no restrictions shall be placed on the exercise of this right other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety. The European Court of Human Rights has, however, recognised that the contracting States are allowed a broad margin of appreciation in this area.

Article 73 and 74 of the Constitution or Article 10 and 11 of the ECHR do not in themselves create an independent right for a foreigner to enter or reside in Iceland. Therefore a lawful decision to deny a foreign citizen entry cannot be regarded as violating his freedom of expression even if it results in limiting his opportunity to express his views within Icelandic territory. However, when a foreigner has been lawfully granted permission to stay or reside in Iceland he enjoys in general the same freedom to express himself and assemble for the purposes of lawful demonstrations that Icelandic citizens enjoy.

Article 15 para 1 of the Police Act no. 90/1996 lays down measures the police are empowered to take in the interests of public order. The provision states that the police may intervene in the conduct of citizens in order to maintain public peace and public order or to prevent an imminent disturbance in order to protect the safety of individuals or the public or to avert or stop criminal offences. Para 2 of the same Article lays down that for this purpose, the police may, amongst other things, assume the control of traffic, prohibit persons from remaining in particular areas (e.g. by cordoning the areas off or restricting movement through them), take dangerous items into their keeping, order people to move away, or remove them, order an end or a change to actions or an activity, enter privately owned areas and order the removal of persons from such areas. Article 3 of Act no. 36/1988, on Police Ordinances, pronounces that the ordinances shall lay down rules regarding public order, such as order and decency in public, measures necessary to avert danger and inconvenience, facilitate traffic and ensure the security of citizens. Article 12 of the Reykjavik police ordinance no. 625/1987, as amended by ordinances no. 666/1994, 306/1996, 180/1999, 593/1999 and 548/2002, provides for an obligation to inform the Police Commissioner of planned demonstrations and outdoor meetings in order that he can take proper measures regarding traffic control.

From the quoted provisions it is clear that the police is vested with extensive authority to intervene in the conduct of citizens if, in their evaluation, the circumstances meet the conditions laid down in the aforementioned provisions. These interventions can be considered infringements on the constitutionally provided rights to freedom of expression and assembly. However, the Constitution declares that these rights can not be considered absolute. It is thus incumbent on the authorities to implement the above-mentioned measures under the Police Act no. 90/1996 and relevant police ordinances, as well as other statutory provisions, in conformity with the permitted exceptions to the rights mentioned. Thus, these measures must pursue a legitimate aim, inter alia the preservation of public order, and be proportional to the aim pursued so that they can be considered necessary in a democratic society and in conformity with democratic traditions.

In the declaration which the representatives of Falun Gong signed they committed themselves to comply with instructions and conditions set by the Icelandic Police Authorities relating to the State visit in Iceland of the President of the People’s Republic of China. They furthermore declared that the group would abide by Icelandic laws and regulations and not in any way disturb the programme of the visit. In the declaration this is said to include that the group will respect all special security areas decided by the police, perform exercises at places approved by the police and designate to the police specific contact persons for each location.

I reiterate that the government was, in my view, not precluded under law from making it a condition for admission of Falun Gong practitioners that their representatives sign a declaration which provided the government with an express commitment by the Falun Gong to respect Icelandic law whilst in Iceland and follow the legitimate orders and measures instituted by the police. The declaration alone can not support a conclusion to the effect that practitioners of Falun Gong, lawfully staying in Iceland, were prevented in enjoying their rights to freedom of expression and assembly as provided for by the Constitution. Furthermore, I have not received any documentary evidence to support the allegation that practitioners of Falun Gong were prevented from enjoying their constitutional rights whilst demonstrating during the visit nor that the measures laid down by the police, as stated in the declaration, went further than permitted by the Constitution. Taking this into account I find that there are no reasonable grounds for me to criticise the governments use of the declaration of 11 June 2002. I would like to mention that I feel that certain parts of the wording in the declaration can be considered in substance as overly broad, i.e. the part which states that the declaration entails that Falun Gong practitioners will not “in any way disturb the programme of the visit”. However, viewing this wording in context with the next sentence and again bearing in mind that no evidence has been presented to me which demonstrates that Falun Gong practitioners were unduly restricted in their actions whilst demonstrating, I do not feel that this issue warrants further consideration on my part.

6.

In the complaint it is alleged that Icelandair requested passengers to sign a declaration before boarding their planes in New York and Boston airports. The text of the declaration is printed in the appendix of your complaint.

The Ombudsman’s jurisdiction extends to the State and local governments, cf. Article 3 para 1 of Act no. 85/1997, on the Parliamentary Ombudsman. It does therefore not include activities of private parties, such as Icelandair, except insofar as they have been vested with public authority to make administrative decisions within the meaning of the Administrative Act no. 37/1993. The purpose of the abovementioned declaration seems to be have been to secure the interests of Icelandair and to release the company from any and all claims from passengers who might be denied entry due to the Icelandic government’s decision on measures in connection with the state visit of the president of the People’s Republic of China. This part of your complaint is thus not within the scope of Act no. 85/1997, on the Parliamentary Ombudsman.

7.

The complaint criticises the decisions made in “at least 10 airports in Europe and North America” to deny Falun Gong practitioners access to their flights. In the complaint the following is stated:

“Between 11 and 13 of June, more than 150 Falun Gong practitioners and people accompanying them were barred from boarding their flights to Iceland, despite holding a valid and confirmed ticket. This occurred at at least 10 airports in Europe and North America. [...]

Some practitioners were explained by Icelandair representatives or airport employees that they could not board because their name was on a list of barred persons. Others got the message from Icelandic embassy officials in the country or by Icelandic police on foreign soil. We ask the Ombudsman especially to review if these actions by embassy officials and Icelandic police abroad were lawful acts.

[...]

Icelandair officials said they got instructions from The Government to bar passengers whose name was on the blacklist, and the people accompanying them. They claimed it was their obligation to follow these instructions from the earlier mentioned letter. We ask the Ombudsman especially to review if such instructions were lawful in this situation and in particular if the airline was obliged to follow them.“

I feel that this part of your complaint warrants a closer examination on my part. I have therefore decided to ask for clarification and information on this issue from the Icelandic government especially on the legal basis of the decisions to deny passengers in airports abroad access to aircrafts to Iceland, as far as they were made by Icelandic authorities. My letter to the Prime Minister’s Office, as translated, is therefore enclosed.

IV.

With reference to my remarks and comments presented in this letter, I have decided that only that part of your complaint which deals with the issue discussed in chapter III.7 above warrants further examination on my behalf as elaborated there. Therefore I have decided to conclude my investigation as regards other parts of your complaint, cf. Article 10, para 1, of Act no. 85/1997, on the Parliamentary Ombudsman.