Overrelying on the Principle of Criminalisation? Vainik and Others v Estonia and the Human Right to Smoke

By Dr. Thomas Joyce

Introduction

In November 2025, the European Court of Human Rights (ECtHR) held that inmates should not be prohibited from smoking in prison, pursuant to Article 8 of the ECHR. A small number of inmates brought the case against Estonia, after the Estonian Supreme Court (Riigiohus) declared that the complete ban on smoking in prisons was constitutional. The ban had been brought into force through Regulation no. 72 of the Minister of Justice on Internal Prison Rules (Vangla Sisekorraeeskiri) as an amendment of part of the Imprisonment Act (Vangistusseadus). According to the ECtHR, while the infringement had been made in accordance with the law, and the aim of protecting other inmates and prison staff from the dangers of second hand smoke was legitimate, the Estonian Government had ultimately exceeded their margin of appreciation by implementing a total ban, which failed to appropriately account for inmates’ right to make choices pertaining to their own personal health. This commentary considers the implications of this decision in light of recent ECtHR case law. It argues that the decision reveals the tendency of the Court to overrely on criminalisation in its reasoning, and represents an expansion of the scope of Article 8 in relation to previous rulings concerning vice.

Facts

The case of Vainik and Others v. Estonia concerns a complaint that the ban on smoking implemented in Viru Prison amounted to a violation of the applicants’ right to private life. To varying degrees, the applicants claimed that the ban resulted in withdrawal symptoms from nicotine addiction, leading to several adverse effects on their well-being (para 8-23) and amounting to an infringement of their rights. After failing to succeed at the Tartu Administrative Courts (Tartu Halduskohus), a case was brought to the Riigiohus, where the Court found that while there had clearly been an infringement on the applicants’ right to free self-realisation (Article 19 of the Estonian Constitution), the aims of the ban – to protect people’s health and improve security practises in prison – were legitimate, and the balancing of the public interests and private rights in question had been proportionate (para 25-41). Subsequent to this ruling, after further attempts to bring complaints at a national level, the applicants brought their complaint to the ECtHR.

The applicants argued that the change in prison rules to prohibit smoking amounted to a disproportionate interference with their private lives. They submitted that the promotion of a healthy lifestyle was not consistent with prison priorities (para 139), and that while restrictions on smoking were indeed commonplace for those at liberty, a total ban was unparalleled (para 140), and not necessary to prevent criminal behaviour (para 141).

The Estonian Government argued that incarceration implied inherent restrictions to private life, and that this could be extended to items in an inmate’s possession (para 142). They contested that they were required to take measures to protect the health of non-smokers within the prison context, and that the ban on smoking had a positive effect on the harmful presence of second hand smoke, the use of cigarettes as a form of illegal currency, and the fire-related risks caused by smoking (para 142-144). The Government further attested that the ban allowed resources previously spent on the organisation and monitoring of smoking, to be allocated elsewhere, and emphasised that the ban had been implemented across a long period of time, during which the number of cigarettes permitted to inmates had been gradually limited (para 142-145). Finally, they made reference to a growing international trend towards stricter restrictions on smoking in prisons (para 146).

Judgment

To determine whether there had been a violation of Article 8, the ECtHR followed the classic four part test concerning the applicant’s right to private life: first, on the existence of an interference of the right to private life, second, on the legality of the interference, third, on the legitimacy of the aims pursued in light of said interference, and fourth on the necessity of said interference to pursue these aims.

The Court found summarily, for the first three points of determination respectively, that there had been an infringement upon the applicants’ private life, that the infringement had been implemented in accordance with the law, and that the ban served the legitimate aim of protecting the health of others (para 154 – 155).

The Court’s focus was thus centred on the Estonian Government’s margin of appreciation and on whether the ban had been proportionate, and necessary to achieve its aim. Despite recognising that States have an obligation under the Convention to take positive measures to protect the health of citizens (para 157), the Court, relying on Stoine Hristov v. Bulgaria and Aparicio Benito v. Spain, emphasised that there is no uniform approach to addressing this issue (para 156-158); even if some states choose to implement more restrictive measures (para 156-158), in all but one state within the EU, inmates may smoke in prison. According to the ECtHR, the loss of an ability to smoke cannot be regarded as an inevitable consequence of a custodial sentence (para 156). Drawing on the Nelson Mandela Rules and the European Prison Rules  the Court clarified that prison regimes should seek to minimise the gap between prison life and life at liberty (para 160), with restrictions related to the narrowing of this gap being carefully justified, as of Hirst v. the United Kingdom and Dickson v. the United Kingdom. The Court thus reasoned that while the Government could be granted a significant margin of appreciation on grounds of health and safety, this margin was not unlimited (para 161).

To consider whether such limits had been exceeded, the ECtHR examined the necessity of the ban to achieve its aim. They clarified that inmates continue to enjoy all rights and freedoms under the ECHR, save for liberty (para 162), and that private life includes the capacity to make choices regarding one’s own life and health (para 163). Moreover, the Court emphasised that, in cases where an individual’s autonomy is already constrained, the expressions of private life over which they do have control become all the more important (para 163). The Court also argued that while the reasoning of the Riigiohus was undoubtably aligned with Estonian law, it focused on the health effects of tobacco withdrawal, rather than the infringement of autonomy (para 169); furthermore, they stated that the implementation of the Vangla Sisekorraeeskiri did not take place through parliamentary review and debate (para 167).  

Having regard to these considerations, the Court determined that, even with the legitimate aim of protecting other inmates’ health, the total nature of the ban upon smoking in prisons was disproportionate, and amounted to a violation of Article 8 (para 170 – 173).

Comment

Though the text of Article 8 is far-reaching in scope, and the right to privacy has evolved to encompass protections for a range of personality-related rights (e.g. T.H v The Czech Republic; Formela and Others v Poland) the ECtHR has typically been reluctant to include vice – non-violent, consensual/willing, self-harming behaviours – within its remit. Part of this is a definitional issue. Vice is not a formal legal term; borrowing from criminology, we may refer to it as deviance, drawing from law we may consider it as encompassing a number of mala prohibita offences, justified largely on the basis of censure, as a component of wrongfulness. Regardless, normatively speaking, the term has analytic value – as an encompassing term for activities such as smoking, gambling, drinking alcohol, consuming drugs, watching pornography, and availing of prostitution services – through the application of which we can observe trends in the Court’s decision making (e.g. Perrin v. UK and Aparicio Benito v. Spain; M.A and Others v. France). The exclusion of such activities from Article 8 is unsurprising: vice acts are typically associated with personal health-risks and tend to be restricted by law.

Much of the emphasis in the judgment focused on the legal status of smoking (para 136). As an activity that is permitted – albeit regulated – in most countries, it was argued that smoking could be inclusive of the right to private life. This reasoning seems to draw a clear line between legal and illegal vice, indicating that degree of criminalisation may still remain a deciding factor in determinations surrounding the contours of Article 8. Yet this opens up the possibility for some curious reasoning; as the judgment could be interpreted to imply that, were other vices legalised, then they too could be contested for inclusion as human rights.

Compare the judgment in Vainik with the 2022 case of Thörn v Sweden where the applicant, having being confined to a wheelchair after a traffic accident, finding no relief in standard pain management solutions, started to grow and consume marijuana, allowing him to return to work and lead a relatively normal life. Following the Swedish Drug Offences Act (Narkotikastrafflagen, 1 para 1(2) and 1 para 1(6), 1968:64) the applicant was charged with the manufacture, possession, and use of narcotics, and sentenced by the Svea Court of Appeal (hovrätten) to a suspended prison sentence and 90 day-fines of 130 Swedish kronor (approximately EUR 13) each. When the applicant complained to the ECtHR that the conviction amounted to an infringement on his private life, the Court found that the Swedish Government had struck a fair balance between the autonomy-rights of the applicant, and the maintenance of drug prohibition. As typical of such cases, the Court took pains to emphasise that the question was not whether Sweden should have a different drug policy, but whether the policy they have proportioned rights appropriately, and remained within the margin of appreciation.

In both the present case and Thörn the applicants had reduced access to standard rights, sought to engage in the consumption of a vice, and presented motivated personal reasons to this end. Yet while in Thörn the ECtHR upheld the total ban of the vice in question, in Vainik they found that the total ban of a comparable vice amounted to a violation of Article 8 – the result of each case differing substantially due to the respective illegality of marijuana and legality of tobacco.

Given that the Court has consistently been reluctant to interfere with national law, and that the margin of appreciation often accounts for the legal status of the issue being contested, whether something is criminalised or not thus becomes central to whether it can be deemed a right. Yet outside of criminalisation as a dynamic, it is difficult to understand the legal difference between the rationale for the inclusion of smoking tobacco, and the exclusion of smoking marijuana, as a human right – especially given human rights’ supposed elevation as a legal framework.  

Herein lies the contradiction: the Court seems to present us with a framework that accepts vice as a private right on the one hand, while emphasising that it is only through legalisation of the vice that such a right may be actualised on the other. This leads to the apparent conclusion that human rights, in the case of vice, are intrinsically tied to existing legal frameworks – something that seems rather odd given the Court’s willingness, in determinations of other articles of the Convention, to offer protection for individuals’ who commit domestically criminal acts (e.g. Mariya Alekhina and Others v. Russia and Stern Taulats and Roura Capellera v. Spain both of which concerned political demonstrations deemed criminal at a national level – the ECtHR found the criminalisation of such activities to be in violation of article 10.)

Surely it is worthwhile interrogating why, in questions related to vice, the legal reasoning of the Court should depend so thoroughly on legal status. The justification that the State seeks to balance the private right to autonomy against the public interest of protection from the criminality associated with a given vice stands up to little scrutiny. When a vice is banned, said ban creates a black market, where the given vice is produced or provided through extra-legal means. If smoking, for instance, were banned worldwide tomorrow, organised crime involvement in the production, transport, and sale of cigarettes would exponentially increase. The Court has itself made practical concessions to this, clarifying in this judgment that total bans are rarely necessary to achieve their health-related aims.

Conclusion

It appears that the strongest viable argument in favour of smoking in prisons comes down to tradition: smoking is commonly legal, and prisoners are commonly permitted to smoke in prisons. Yet it would be helpful if the ECtHR were to take a more critical view of their reliance on existent legal frameworks as the predominant justification for whether or not a particular vice activity should be enshrined as a human right. Regardless of whether one holds the view that a legal vice such as tobacco should not be included as a personality right under Article 8, or whether an illegal vice such as marijuana should be, the legal principles employed to make such an estimation should stand alone; national-level policy in relation to a particular vice should not be the single most important factor in deciding whether engagement with said vice constitutes a human right.