General legal framework

• Author: Guomundsdottir, Guorun D.
• Pages: 16-17

16

1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The Icelandic Constitution includes the following articles dealing with non-discrimination:

Article 65

Article 65, which is modelled on Article 26 of the International Covenant on Civil and

Political Rights and Article 14 ECHR,8 stipulates that:

‘Everyone shall be equal before the law and enjoy human rights irrespective of sex,

religion, opinion, national origin, race, colour, financial status, parentage or other

status. Men and women shall have equal rights in every respect.’9

In the explanatory notes on the draft bill to amend the Constitution, it is stated that the

scope of Article 65 is wider than that of Article 14 ECHR and that it shall apply to all

legislation and ensure equal protection for everyone.10 The Supreme Court has confirmed

this, interpreting the article as a broad equality provision, guaranteeing not only formal

equality but substantive equality, placing the obligation on the state to respect, protect

and promote equality. An example is the Supreme Court decision of 4 February 1999,11

where the court interpreted the provisions of the legislation on the affairs of persons with

disabilities in light of Article 65 of the Constitution and Article 14 of the ECHR with respect

to the right to education (see Article 2 Annex 1 ECHR), entailing the obligation of the state

to ensure the same rights for people with disabilities as for other citizens. Thus interpreted,

Article 65 enshrines not only the obligation to apply the law in the same manner in similar

circumstances, but also the positive duty of the state to promote the rights of persons with

disabilities.

A similar conclusion was reached in Case No. 125/2000,12 where the court ruled that

changes made to the Social Security Act No. 100/2007,13 which adversely affected social

security payments to persons with disabilities married to non-disabled people with an

income, conflicted with Article 76(1) (the law shall guarantee everyone the assistance that

they require in the case of sickness, disability, infirmity due to old age, unemployment or

similar circumstances) and Article 65 of the Constitution.

The constitutional equality provision guarantees equality before the law and non-

discrimination with regard to human rights regardless of sex, religion, opinion, national

origin, race, colour, financial status, parentage or other status. The explanatory notes to

the draft bill set out that the grounds enumerated in the article are not exhaustive; ‘other

status’ is meant to encompass other grounds not listed in the provision, such as ‘health or

physical state’,14 and sexual orientation could clearly be included, although no cases

regarding discrimination based on sexual orientation have been heard. Similarly, age would

clearly fall under the provision, as argued by the claimant in Supreme Court Case

No. 484/2007.15 The explanatory note further elaborates that, although the aim of Article

65 is above all to ensure equality irrespective of the grounds enumerated and other status,

it is not its aim to preclude legal conditions for rights or obligations from taking these

8 Alþt. 1994-1995, A-deild, doc. 389, p. 2086.

9 Constitution of the Republic of Iceland, Act No. 33/1944, 17 June 1944, as amended.

10 Alþt. 1994-1995, A-deild, doc. 389, p. 2086.

11 Supreme Court of Iceland, Ragna Kristín Guðmundsdóttir v. University of Iceland, Case No. 177/1998, 4

February 1999.

12 Supreme Court of Iceland, Icelandic Federation of Disabled People v. Republic of Iceland, Case

No. 125/2000, 19 December 2000.

13 Social Security Act (Lög um almannatryggingar) No. 100/2007, 11 May 2007.

14 Alþt. 1994-1995, A-deild, doc. 389, p. 2086.

15 Supreme Court of Iceland, X v. Y, Case No. 484/2007, 25 September 2008.