Vainik and Others v. Estonia [GC]: Who is afraid of the scope of Article 8 ECHR?

By Casper Vanspauwen

On 30 June 2026, the Grand Chamber of the ECtHR decided to strike out the applications constituting the case of Vainik and Others v. Estonia. In doing so, the Court effectively annulled its earlier Chamber judgment of 4 November 2025, in which it had ruled in favour of the applicants by a narrow 4-3 majority (for a commentary, see here). The underlying core issue was whether a right to smoke in prison existed under the private life limb of Article 8 § 1 ECHR and – more abstractly – how the scope of the notion of ‘private life’ should be delineated under the Convention. Since the Grand Chamber unanimously struck the case out of its list of cases, this key issue remains unresolved.

In this blogpost, I will divide my legal analysis into a descriptive and a normative part. In the descriptive part, I will argue that the Grand Chamber may have preferred to avoid addressing this thorny issue, despite obvious grounds to proceed. In the normative part, I will argue that any attempt to delineate the scope of the notion of ‘private life’ could lead to further inconsistencies and would therefore be normatively undesirable. Instead, the Court should interpret it as a general right to liberty, which would be triggered when a State interference with individual liberty does not fall within the scope of any other provision of the ECHR or its Protocols.

Legal and factual background

On 1 October 2017, an amendment to the Internal Prison Rules enacted by the Estonian Minister of Justice entered into force, introducing a total ban on smoking for prisoners. The applicants were former prisoners at the Viru Prison who had been affected by this measure since its entry into force. After unsuccessfully challenging the constitutionality of the measure before the administrative courts and the Supreme Court, the matter eventually reached the ECtHR.

Before the ECtHR, the applicants mainly alleged that the smoking ban violated their right to respect for their private life (Article 8 ECHR). In its Chamber judgment of 4 November 2025, the Court found the complaints under Article 8 admissible ratione materiae by a 6-1 majority. On the merits, the Court found a violation of this provision by a 4-3 majority. However, on 23 March 2026, the Grand Chamber panel decided to refer the case to the Grand Chamber at the request of the Estonian Government.

Reasoning of the Grand Chamber

Throughout the proceedings before the Grand Chamber, the Government had requested the ECtHR to strike the case out in accordance with Article 37 § 1 ECHR, in view of new developments since the Chamber issued its judgment. Concerning Mr Vainik, the Court struck out his application pursuant to Article 37 § 1 (c) ECHR because it observed that he had died after the delivery of the Chamber judgment and that no heir or close relative had come forward expressing a wish to pursue the application on his behalf (paras 30-31).

Concerning Mr Šmeljov and Mr Tsajun, the Court struck out their applications pursuant to Article 37 § 1 (a) ECHR, given their apparent lack of intention to pursue their applications (para 33). It came to this conclusion because they had been without legal representation at this stage of the proceedings and had omitted to inform the Court of their changes of address and their release from prison – contrary to Rule 36 §§ 2 and 3 and Rule 47 § 7 of the Rules of Court respectively (para 32).

Finally, the ECtHR examined whether there were ‘special circumstances relating to respect for human rights’ in the sense of Article 37 § 1 in fine ECHR, which would require the continued examination of the application (para 34). In this regard, the Court reiterated that this would be the case when the case ‘raises important issues providing it with an opportunity to elucidate, safeguard and develop the standards of protection under the Convention, or whether the impact of the case goes beyond the particular situation of the applicant’ (para 34).

Turning to the application of these principles, the Court found that since no analogous application had been brought against Estonia or any other High Contracting Party, there was ‘no basis to consider that this case concerns an issue of general relevance and significance across the whole Council of Europe area’ (paras 35-36). It further found that since the prohibition of smoking in prison had been subjected to constitutional review by the Estonian Supreme Court, its legal validity had already been adjudicated upon at length (para 37).

Based on these considerations, the ECtHR refrained from continuing the examination of the case (para 38). It also clarified that, since the Chamber judgment had not become final on the merits, it has become legally void (para 39).

Commentary

Descriptive part

The judgment is remarkable not only for its brevity, but also for how quickly it was delivered after the referral to the Grand Chamber (within three months). Prima facie, this may be explained by the fact that the case was ultimately struck out. While there is little doubt that the conditions for striking out the case (as set out in Article 37 § 1 ECHR) were met vis-à-vis all applications, it is less convincing that ‘respect for human rights’ did not require the continued examination of the case.

As the Court itself reiterated in the present judgment (para 34), it must have regard to ‘whether the case raises important issues providing it with an opportunity to elucidate, safeguard and develop the standards of protection under the Convention […] or whether the impact of the case goes beyond the particular situation of the applicant’. It is difficult to imagine how a case that has been referred to the Grand Chamber does not meet any of those criteria. Article 43 § 2 ECHR stipulates that a panel of five judges shall accept a request to refer the case to the Grand Chamber ‘if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance’. Similarly, Article 30 ECHR prescribes that a Chamber may relinquish jurisdiction to the Grand Chamber ‘[w]here a case pending before [it] raises a serious question of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court’.

The wording of both provisions appears to indicate that Grand Chamber cases by definition touch upon ‘respect for human rights’ in the sense of Article 37 § 1 in fine ECHR, as defined by the ECtHR in its own case-law. It is noteworthy in this regard that even before the practice of striking out applications was codified by Protocol 8 (1985), the Court already recognised the ‘respect for human rights’ exception in substance in De Becker v. Belgium (1962), which was referred to at the time by the European Commission of Human Rights as ‘the general interests of European public order’ (para 25). This historical precedent supports a broad interpretation of this exception.

Moreover, the ECtHR has repeatedly stated in its Grand Chamber formation that it cannot second-guess the panel of five judges’ decision to refer a case to the Grand Chamber in accordance with Article 43 § 2 ECHR (Pisano v. Italy (2002), para 24; Yasak v. Türkiye (2026), para 134). By actively questioning whether ‘respect for human rights’ required a continued examination of the case, the Grand Chamber nonetheless re-examined in substance the same legal question that the panel had already examined merely three months earlier, thereby overruling its decision through the backdoor.

Admittedly, however, there are precedents for striking out applications at the Grand Chamber level without continuing the examination of the case. Most explicitly, the ECtHR stated in Pisano v. Italy (2002) that the Grand Chamber may also strike out applications (para 28). In F.G. v. Sweden (2016), the Court appeared to accept the interpretation that a referral to the Grand Chamber under Article 43 § 2 ECHR makes the ‘respect for human rights’ exception automatically applicable (paras 81-83), but in Khan v. Germany (2016), it revisited the former case and ruled out this interpretation (para 40).

Nevertheless, the ECtHR’s reasoning in concreto is hardly convincing. The mere fact that no other applications on the same issue are currently pending against Estonia does not indicate that such applications may never arise in the future. It is also somewhat ironic that the Grand Chamber uses the extensive constitutional review by the Estonian Supreme Court as a justification, since the Chamber had found a violation of Article 8 ECHR due to the inadequacy of this review, among other reasons. Most importantly, there was a real issue of general significance that the Grand Chamber ignored: the scope of the private life limb of Article 8 § 1 ECHR.

Besides more general concerns about its high caseload, the ECtHR’s decision to nonetheless strike out the case may be explained in the light of the contemporary political context in which the Court operates. Since the Brighton Declaration (2012), the Court has been called upon to place greater emphasis on the principle of subsidiarity. As a result, the ECtHR has become significantly more reluctant to recognise new rights. As a clear delineation of the scope of Article 8 ECHR, by contrast, may have led to an exponential increase in rights, the Court may have preferred to refrain from resolving the issue.

Normative part

Since its judgment in Niemietz v. Germany (1992), the ECtHR has held that ‘it does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life” [within the meaning of Article 8 § 1 ECHR]’ (para 29). However, that does not mean the Court has never provided any indications as to how to delineate its scope. For example, in his partly dissenting opinion in the Chamber judgment, Judge Pavli argues that, before recognising a ‘new right’ under the private life limb of Article 8 § 1 ECHR, the Court should first and foremost verify its ‘normative standing among European legal systems and the rest of the democratic world’ (para 5), although he himself admits that this would ‘not always be a straightforward exercise’ (para 6). The main problem with such an approach is nonetheless that at the time of the adoption of the Convention in 1950, no national constitution explicitly provided for a right to respect for one’s private life as such. As a result, it is plausible that European apex courts have subsequently interpreted the scope of their analogous constitutional rights in the light of the ECtHR’s case-law on Article 8 ECHR – which would consequently make an opposite evolution in the future untenable.

It appears that ultimately, every attempt at delineating the scope of Article 8 could lead to inconsistencies and further complications. However, it would not be accurate to state that no inspiration can be found in national constitutional law. Already in 1957, the German Federal Constitutional Court (GFCC) ruled in its Elfes decision that Article 2(1) of the German Basic Law (which stipulates that ‘[e]very person shall have the right to free development of [one’s] personality’) covers a ‘general freedom of action’ (para 15), which means that every State interference with individual liberty would fall within the scope of this provision.

In the aftermath of Germany’s Nazi era, this decision contributed to a culture of justification, in which the exercise of public authority is not self-legitimised but instead ought to be substantively justified, as part of a constitutional order based on the rule of law. By borrowing the principle of proportionality from German constitutional law, the ECtHR has historically already taken an important step in this direction. By additionally borrowing the GFCC’s interpretation in Elfes for the purpose of the private life limb of Article 8 § 1 ECHR, the Court could further foster a culture of justification to counter the contemporary trend of the erosion of the rule of law and democracy.

Interestingly, the (now abolished) European Commission of Human Rights historically came very close to borrowing this interpretation. In X. v. Iceland (1976) –  concerning a prohibition on keeping dogs at home – the Commission echoed the German Basic Law by recognising that the notion of private life covered inter alia the right ‘to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality’ (p. 87). However, unlike the GFCC’s interpretation in Elfes, the Commission adopted a narrow rather than an unlimited interpretation of this notion (for an analysis, see here).

The point is not, as Judge Pavli cautioned in the aforementioned partly dissenting opinion (para 2), that ‘everything’ becomes a fundamental right; rather, it is to foster a culture of justification. In the contemporary political context characterised by the erosion of the rule of law and democracy, the ECtHR has already prominently emphasised the importance of the principle of the rule of law, which it considers to be ‘[o]ne of the fundamental components of European public order’ (M.L. v. Poland (2023), para 166).

Two objections could be made against such an innovation in the light of the principle of subsidiarity. First, it could be argued that the ECtHR would continually establish new rights. Nevertheless, under the Court’s procedural turn, it can limit its proportionality assessment in certain cases to verifying whether the domestic authorities (i.e. the judiciary and/or the legislature or administration) have adequately balanced all the rights and interests at stake. This is precisely what the Chamber did in casu: instead of recognising a substantive right to smoke in prison, the Court verified whether the relevant considerations were taken into account in the domestic decision-making processes (paras 162-173). However, by reiterating that ‘the concept of “private life” is a broad term not susceptible to exhaustive definition’ (para 129), it simultaneously kept the term open-ended but not all-encompassing.

Second, it could be argued that this innovation would risk further overburdening the ECtHR’s caseload. But this is precisely what Article 35 § 3 (b) ECHR was meant for: this provision requires the Court to declare an application inadmissible if the applicant has not suffered a ‘significant disadvantage’, unless – again – an examination on the merits would be required by ‘respect for human rights’. This provision gives the Court the possibility of not examining alleged violations that do not attain a certain level of severity (‘de minimis non curat praetor’) (e.g. Shefer v. Russia (2012), para 18), while simultaneously retaining flexibility.

Conclusion

In Vainik and Others v. Estonia (2026), the Grand Chamber of the ECtHR unanimously decided to strike the applications out of its list of cases, despite the obvious uncertainty concerning the scope of the private life limb of Article 8 § 1 ECHR, which was at the heart of the case. One possible reason for this may have been that the Court wished to avoid this thorny issue, which could have created problems in the light of the principle of subsidiarity. Nevertheless, a feasible alternative to a full delineation would have been to recognise a general right to liberty within Article 8 ECHR, akin to that recognised in the German Federal Constitutional Court’s Elfes decision (1957). Rather than causing an inflation of human rights, this would contribute to a culture of justification, which is essential to counter the erosion of the rule of law and democracy.