September 24, 2010
Does exposure to smoking by other people violate human rights? This is a question that merits serious consideration. One context in which it has been raised is smoking in the presence of children (see the campaign of the Flemish Anti-Cancer League on this subject, with a link to my presentation on the subject). This raises obvious issues with respect to children’s right to health. I have argued that we might even consider smoking in front of children as a ‘harmful cultural practice’ from the perspective of children’s health, obliging states to take steps (for example through awareness raising) towards its abolition.
The right to health of course does not figure in the European Convention on Human Rights. Yet health-related issues may be addressed in the context of other provisions, in particular articles 3 and 8. In the recent case of Florea v Romania the European Court suggests that forced exposure to passive smoking violates article 3.
To be fair, the Court does not explicitly state this: it concludes that the prison conditions in which the applicant has lived during 3 years violated article 3. These prison conditions included serious overcrowding (including a period of ca. 9 months in a cell with between 110 and 120 detainees for 35 beds). Yet apart from the overcrowding, the main complaint is about smoking by 90% of his fellow detainees. The applicant was confined to his cell 23 hours per day. Moreover, the common areas were not free from smoking either, as smoking was common even in the prison infirmary and in the wards for chronically ill patients. The Court therefore distinguished this case from an earlier case (Aparicio Benito v Spain, nr 36150/03) in which it had not found a violation, as the applicant had an individual cell at his disposal.
It is to be regretted that the Court is not clear as to whether serious forced exposure to passive smoking by itself would qualify as a violation of article 3. Obviously, a qualification as ‘inhuman or degrading treatment’ requires a higher threshold than a qualification as a violation of the right to health. Yet there can be no doubt that the right to health has been violated in this case. Passive smoking constitutes a serious health risk, and the applicant had absolutely no possibility to avoid exposure to tobacco smoke. As he was under total control of the state, the state can be held responsible for this exposure. I submit that the Court might have pronounced more clearly on this issue if it had resorted to article 8 instead of article 3, in a similar manner of cases concerning environmental pollution. A right to ‘healthy surroundings’ can arguably be derived from the existing environmental case-law of the ECHR, and could be applied to this situation. That would avoid the awkwardness of bringing a prison cell under the right to protection of the ‘home’. In the light of the fact that smoking in prison violated Romanian law, there can be little doubt as to the finding of a violation of article 8 in this case had this scenario been followed.