Legal summary
November 2025
Vainik and Others v. Estonia - 3184/21, 17982/21, 43852/21 et al.
Judgment 4.11.2025 [Section III]
Article 8
Article 8-1
Respect for private life
Introduction of total ban on smoking in Estonian prisons: violation
Facts – In October 2016 the Minister of Justice amended the provisions of Regulation no. 72 on the Internal Prison Rules resulting in prison detainees being prohibited from having smokable tobacco products and items that can be used to assemble or smoke smokable tobacco products. In April 2017 the governor of Viru Prison amended Viru Prison’s house rules to completely ban smoking on its premises. Both bans entered into force on 1 October 2017.
The applicants were all detained in Viru Prison at the time the smoking ban entered into force and were long-term smokers. They all unsuccessfully brought complaints before the administrative courts challenging the introduced measures. The complaints brought by two of the applicants resulted in constitutional review proceedings before the Supreme Court in which that court declared the ban constitutional.
Law – Articles 3 and 8:
(1) Admissibility – Compatibility ratione materiae –
(a) Article 3 – The applicants had all been long-term smokers before the ban on smoking entered into force. The Court was prepared to accept that the forced and abrupt break from a long-term smoking habit, together with the ensuing withdrawal symptoms, might cause mental and physical distress. Whilst acknowledging that it might not always be easy or even possible to supply medical evidence of the occurrence and extent of (mental) distress, the Court considered that, even if quitting smoking had caused the applicants some level of stress and anguish, it could not be concluded that the possible suffering had attained the minimum level of severity. There was, therefore, no sufficient basis for concluding that the applicants had been treated in such a way as to reach the threshold of Article 3.
Conclusion: inadmissible (incompatible ratione materiae) (unanimously).
(b) Article 8 – Given the broad notion of “private life” and the manner in which it had been applied in its case-law, the Court was prepared to accept that the choice to smoke – an activity not generally banned in the respondent State – and the question of providing treatment to counter the withdrawal effects of quitting smoking could be seen as falling within the material scope of the right to respect for private life. Accordingly, Article 8 was applicable.
Conclusion: admissible (by a majority).
(2) Merits – The present case was the first time that the Court had been called upon to assess the impact of a total ban on smoking in prison on prisoners with a long-term smoking habit. It considered the ban had been an interference with the applicants’ right to respect for their private life but held it had been “in accordance with the law” and had served the legitimate aim of protecting the health of others as it had intended to protect the health of non-smoking prisoners and prison staff from the harmful effects of passive smoking. In addition, the Court accepted that prison security and more efficient use of prison resources could be linked to the legitimate aim of preventing disorder or crime.
(a) Margin of appreciation – The loss of the ability to smoke could not be regarded as an inevitable consequence of a custodial sentence in terms of the right to respect for private life. Moreover, given that all the applicants had been convicted and were serving their prison sentences, the ban on smoking could not be seen as an inherent part of the punitive element of the custodial sentence. Indeed, in all but one of the member States that had been surveyed, prisoners continued to be able to smoke, subject to limitations of varying scope and intensity. Although member States had an obligation to take positive measures to protect prisoners against the harmful effects of passive smoking in certain circumstances, the Court had previously acknowledged that there was no uniform approach or solution among the Contracting States with regard to such protection. Despite the lack of a uniform approach, the Court noted the general international trend towards stricter tobacco control with the aim of protecting people from exposure to tobacco smoke. That trend, in broad terms, was also evident in the prison context. According to the comparative-law information available to the Court, almost all of the member States surveyed had taken steps to restrict smoking in prisons, and normally allowed it only in specifically designated areas. At the same time, in the overwhelming majority of member States the protection of individuals from exposure to tobacco smoke in prison had not been considered to require a total smoking ban.
Although smoking was a habit likely to lead to addiction, making it difficult to quit, the activity itself could not be considered an indispensable or inextricable facet of an individual’s identity or existence. At the same time, the decision to smoke – or not – could be seen as part of the freedom to make choices about one’s own body and health, and, as such, an exercise of personal autonomy. The aims of tobacco control in prison must be balanced against the standards enshrined in the “Nelson Mandela Rules” and the European Prison Rules, which emphasise that prison regimes should seek to minimise differences between prison life and life at liberty. In that connection, the Court reiterated that restrictions on Convention rights specific to prisoners had to be justified by reference to considerations of security or other necessary and inevitable consequences of imprisonment, or flow from an adequate link between the restriction and the circumstances of the prisoner in question.
In view of the above, and noting that the ban had been implemented not only with the aim of protecting health but also in the overall interests of preventing disorder and crime, the Estonian authorities had enjoyed a considerable margin of appreciation when addressing the issue of smoking in prison.
(b) Necessary in a democratic society – Prisoners in general continued to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty. It was thus inconceivable that a prisoner forfeited those rights merely because of his status as a person detained following conviction. The applicants’ right to respect for their private life was a right underpinned by the notion of personal autonomy which entailed, as a matter of principle, the possibility to make choices about one’s own life and health. While prisoners did not forfeit their right to private life and autonomy simply owing to detention, the manner in which they could choose to exercise their private life in prison was nonetheless constrained to a considerable degree. It could be argued that, in that context of already limited personal autonomy, the freedom of choice over matters that prisoners could still decide for themselves – such as whether to smoke – becomes all the more precious to those individuals. In that connection, from the prisoners’ perspective, smoking might be viewed not only as a mere unhealthy habit but also as a means of relieving anxiety and tension.
The ban on smoking had been introduced through amendments to the Internal Prison Rules, followed by changes to Viru Prison’s house rules. The prohibition had been adopted through general measures and not specifically addressed to the applicants. The ban had not been adopted by Parliament, but rather had resulted from the combined effect of a ministerial regulation and Viru Prison’s house rules. While the Court did not doubt the Supreme Court’s conclusion that the ban contained in the Internal Prison Rules had been in keeping with the relevant provisions of the Imprisonment Act on which it had been based, it nonetheless noted that the ban did not benefit from direct parliamentary review and debate. The social and economic impacts of the smoking ban, as well as its constitutionality, had been analysed in the explanatory memorandum accompanying the draft amendments to the Internal Prison Rules and Viru Prison’s house rules and subsequently by the Supreme Court in the context of constitutional review proceedings. In that connection, the domestic authorities’ proportionality assessment appeared to have been focused on how the complete ban on smoking – while interfering with the right to property and right to free self-realisation – contributed to the aims of health protection and prison security. In addition, it had been found that no less restrictive means had been feasible or that they would not be as effective in achieving the stated aim as the complete ban. However, from the smokers’ perspective, the domestic analysis seemed to have focused on the ban’s limited (physical) impact in terms of withdrawal effects and the possibility of counselling and treatment. In that regard, the understanding of personal autonomy, together with the importance of prisoners’ freedom of choice to decide on matters concerning their own body and health, seemed to have been completely absent from the domestic discussion. Indeed, as appeared from the explanatory memorandum to the draft regulation amending the Internal Prison Rules, smoking among prisoners had been seen as an expression of prison subculture rather than an exercise of choice.
While acknowledging that the member States’ margin of appreciation in regulating smoking in prisons was considerable, the Court took the view that it was not all-embracing or unlimited. While there was an overall international trend towards limiting smoking in society at large, as well as a trend towards restricting smoking in member States’ prisons, smoking tobacco remained legal for persons at liberty, and, on the basis of the limited examples in the prison context, it could not be concluded that there was a consensus among the member States on the need to ban smoking in prison settings. The Court welcomed the efforts to protect health and security in prisons by limiting the exposure of non-smokers to second-hand smoke and other risks associated with smoking. It acknowledged that, in terms of regulating smoking in prisons through the adoption of general measures, the authorities could not be expected to assess the proportionality of smoking restrictions in each individual case. However, it found that the national authorities, by imposing a complete ban on smoking in prisons without assessing its importance and impact from the perspective of personal autonomy of prisoners who smoke, had failed to provide relevant and sufficient reasons for that far-reaching and absolute prohibition and thus had exceeded the margin of appreciation afforded by the Convention.
Conclusion: violation (four votes to three).
Article 41: finding of a violation sufficient in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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