Passive Smoking and the European Convention

In recent times, smoking has become an issue for the European Court of Human Rights when prisoners complained that being subjected to passive tobacco smoke infringed on their basic human rights. Although there is no automatic right to health under the European Convention of Human Rights, applicants can avail of the protections under Article 3 which prohibits torture and other inhuman and degrading treatment. In the two cases below, the applicants sought to challenge the legality of prison policy which permitted prisoners to be subjected to tobacco smoke.

In Florea v. Romania 1, the applicant was detained in prison from March 2002 and February 2005. He spent three days in a hospital whilst under custody during this time. At the time of the applicant’s imprisonment he suffered from chronic hepatitis and arterial hypertension. In prison he had to share a cell for approximately eight or nine months with between 110 and 120 other prisoners. According to the applicant, 90% of his cellmates were smokers. He was also in the company of smokers whilst in hospital. In April 2004, the applicant lodged a claim for compensation on account of the deterioration of his health. Relying on Article 3, the applicant complained in particular of overcrowding and poor hygiene conditions, including having been detained with smokers. His claim was dismissed by a County Court in 2006 on the grounds that no causal link had been established between the passive smoking and the applicant’s ill-health.

The applicant then took his case to the European Court of Human Rights. The Court distinguished the case from the earlier European case of Aparicio Benito v. Spain2 where the Court had not found a violation of Article 3 as the applicant in Aparicio Benito could use an individual cell to get respite from passive smoking. However, the Court was unwilling to say with certainty whether passive smoking on its own would constitute a violation – the Court considered that the applicant had been held in cramped conditions, with personal space falling below the European standard, and additionally based their decision on this.

In the 2011 case of Elefteriadis v Romaniasup>3, the applicant, a Romanian national, was serving life imprisonment for murder. When the applicant entered prison in 1992, he was declared clinically fit. During his time in prison, the applicant made various requests to be transferred to cells where he would not be subjected to smoke. These failed to produce results until 1999 where he was placed in a smoke free cell. In the same year the applicant was diagnosed with pulmonary fibrosis4. In February 2005, the applicant was placed in a cell with two prisoners who smoked for nine months but was transferred after requests. The applicant was also transported on several occasions between the prisons and court where he was held in cramped conditions, with little ventilation, where he alleged he was also subjected to passive smoking. In 2008, the applicant was diagnosed with grade two chronic obstructive bronchopneumopathy5. The applicant took proceedings against the prison on the basis that the respiratory diseases that he suffered from were caused by subjection to passive smoking. The prison disputed the applicant’s claims and argued that it was impossible to separate smokers from non-smokers in prison. The domestic court accepted the prison’s argument and rejected the applicant’s complaint, further finding that the applicant had not provided proof of the alleged damage.

The European Court in this case held that, because the applicant suffered from chronic pulmonary fibrosis, the authorities were under an obligation to take measures to safeguard his health by separating him from prisoners who smoked. The European Court highlighted that the conditions of transportation to and from the domestic court had been contrary to the doctors’ advice to avoid exposure to tobacco smoke. The Court further held that the onus was not on the applicant to prove that passive smoking had led to the deterioration of his health, and stated that the prison had not proven beyond a reasonable doubt that the applicant’s ill-health was not caused by passive smoking. As such, the Court held that there had been a violation of Article 3.

What is clear is that the European Court now views serious forced exposure to passive smoking which results in medical problems to constitute a violation of Article 3, at least when the passive smoking takes place in prisons. The cases do raise some interesting questions concerning the potential that subjection to passive smoking could lead to findings of violations of Article 3 outside of prisons6. Could the decisions in Florea and Elefteriadis be the starting point of for the European Court to develop jurisprudence which might lead to the banning of passive smoking in other public places?

For the mean time, it appears that the jurisprudence is confined to prisons and to have a successful claim applicants will have to demonstrate that adequate precautions were not taken to protect them from passive smoking, and subsequent ill-health. It should also be pointed out that, in prison, detainees are held by the state and therefore entitled to more interventionist state action to protect their health. As well as this, as claims are taken and dealt with by the European Court under Article 3 the level of suffering endured by the applicant must be proven to be severe to be considered to be ‘inhuman or degrading’ and fall within the ambit of the substantive provision. However, it might be suggested, in light of the above, that individuals who have not been adequately safeguarded from the effects of passive smoking by other public authorities could potentially challenge the state on the issue if they demonstrate that their health has deteriorated due to subjection to passive smoking. If they were to do so, the onus will be on the member state to prove that there was no causal link between the passive smoking and the applicant’s ill-health. Potentially, therefore, there is a possibility that it may not be long before an applicant takes a case to the European Court, and is successful in challenging a state for not enforcing a smoking ban in public places. This could have wide ranging implications across Europe for those who are subjected to passive smoking on a regular basis. In Russia, for example, a full smoking ban is not in force and smoking is permitted in bars and restaurants7. This is similar in other European states including Slovakia8 and the Czech Republic9. In Albania, a smoking ban is in place, but is largely ignored10.

Neil Graffin
PhD Candidate
Queen’s University of Belfast

References:

1 Florea v. Romania, (Application no. 37186/03), Judgment of 14 September 2010 (2010); This case is only available in French, however, a summary can be found on the page below, or through the press release on HUDOC. http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/83ff6f5c75014d78c1257797002d1151?OpenDocument
2 Aparicio Benito v. Spain, (Application no. 36150/03), Judgment of 13 November 2006, (2006)
3 Elefteriadis v Romania, (Application no. 38427/05), Judgment of 25th January 2011, (2011); this Judgment is in French only, but a summary of the case can be found in the press release through HUDOC or at the link below:
http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/98bd79380a81192fc125782200522e97?OpenDocument
4 Pulmonary fibrosis means scarring (thickening) of the tissue of the lung.
Scarring is part of the body’s repair process and can help to heal injured areas. However, scar tissue that forms in the lungs can stop them working properly, making them less efficient at transporting oxygen into the blood and removing carbon dioxide. This often leads to breathing difficulties, which can be brought on by simple activities such as walking and talking. (See: http://www.nhs.uk/conditions/pulmonary-fibrosis/Pages/Introduction.aspx)
5 Disease of the bronchi and lung tissue. (See, http://medical-dictionary.thefreedictionary.com/bronchopneumopathy, accessed 14/09/2011)
6 For discussion concerning this, see: Eva Brems, ‘Forced exposure to passive smoking violates human rights’ Available at:
http://strasbourgobservers.com/2010/09/24/forced-exposure-to-passive-smoking-violates-human-rights/
7 http://www.usatoday.com/news/world/2007-05-25-smoking_N.htm (Accessed 14/09/2011)
8 http://spectator.sme.sk/articles/view/20568 (Accessed 14/09/2011)
9 http://www.praguepost.com/opinion/7561-petition-pushes-for-czech-smoking-ban.html (Accessed 14/09/2011)
10 http://www.balkaninsight.com/en/article/albania-urged-to-enforce-smoking-ban (Accessed 14/09/2011)

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One thought on “Passive Smoking and the European Convention

  1. Jason Mansfield says:

    Whilst we are a country who clearly belives in individual rights, how far should this protection go?

    We should at least remember that these individuals have chosen to step outside of the ring which forms our society and forfeited their right to liberty. Within this blog we hear of a Romanian national who raised a breach of Article 3 in relation to pasive smoking, and yet this individual breached probably the most sacred right of all, the right for life.

    Society must draw the line somewhere!

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