EIK menetlus

Islandi väljak 1 / 15049 Tallinn / Estonia / +372 637 7000 / [email protected] / www.vm.ee / Registry code 70002526

Request

by the Government of Estonia

that the case of

Vainik and Others v. Estonia, no. 17982/21 and 3 others

be referred to the Grand Chamber

4 February 2026

Vainik and Others v. Estonia, no. 17982/21 and 3 others

2 (9)

Introduction to the case and the reasoning in the Chamber judgment

1. This case concerns the prohibition of smoking in Estonian prisons. It is the first time that the

European Court of Human Rights (the Court) has been called upon to assess the impact on

prisoners of a complete prohibition to smoke. In their judgment of 4 November 2025, the

Chamber of the third section of the Court found a violation of Article 8 of the Convention on

account of that prohibition.

2. A lengthy and gradual tightening of restrictions on smoking in prisons preceded the

introduction of the prohibition, culminating in a complete ban that has been in force since

1 October 2017. The prohibition was introduced with an executive regulation. Its compatibility

with the fundamental rights was analysed in the process of drafting and subsequently in

constitutional review proceedings before the Supreme Court.

3. The Chamber’s majority held that the choice to smoke, and the provision of treatment to

counter the withdrawal effects of quitting smoking due to the prohibition, fell within the material

scope of the right to respect for private life, and that Article 8 was therefore applicable. In

particular, they relied on the notion of personal autonomy, including the opportunity to pursue

activities perceived to be harmful to oneself, and noted that smoking was not generally prohibited

in the respondent State (§§ 129-132).

4. In examining whether the interference was “necessary in a democratic society”, the majority

attached particular weight to the applicants’ personal autonomy (§§ 163-164), absence of

parliamentary scrutiny prior to the introduction of the smoking ban (§§ 166-168), and inadequacy

of the domestic authorities’ proportionality assessment, in that “the understanding of personal

autonomy, together with the importance of prisoners’ freedom of choice to decide on matters

concerning their own body and health” seems to have been “completely absent from the domestic

discussion” (see § 169), as well as lack of consensus among member States on the need to

prohibit in prisons smoking which is a legal activity at liberty (§ 170).

5. The Government respectfully submit that the present exceptional case raises serious questions

affecting the interpretation and application of Article 8 of the Convention which warrant

consideration by the Grand Chamber.

Exceptional nature of the case

6. The case is exceptional because it raises, for the first time, the question whether the possibility

to smoke in a closed environment such as a prison may form part of the protected sphere of

private life and constitute a position protected under Article 8 of the Convention. The Court’s

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previous case-law on smoking in detention settings has concerned positive obligations to protect

non-smokers from exposure to second-hand smoke (see § 148 of the judgment). Any case in

which the Court is asked to extend the scope of Article 8 to a new sphere of conduct is, by its

nature, exceptional.

7. The case raises important questions for tobacco control and public health measures.

Recognition of smoking as a position protected under Article 8 of the Convention may generate

challenges to restrictions which, in contemporary European societies, are thus far widely

regarded as legitimate and non-controversial.

8. The question about smoking in prisons under the Convention is not confined to the situation

of the respondent State. It concerns the proper limits and methodology of Article 8 reasoning in

relation to harmful and addictive practices. The judgment in the instant case is likely to be

invoked and has repercussions in prison systems across various jurisdictions. It may influence

the development of smoke-free prison policies in multiple member States. Smoking (and

exposure to second-hand smoke) is widely recognised as a serious public health problem,

particularly in prisons where smoking prevalence is high and where both prisoners and staff are

exposed to it. There is a broad understanding in public health policy that partial restrictions are

insufficient to secure a genuinely smoke-free environment for non-smokers, and that effective

protection generally requires comprehensive smoke-free rules, since ventilation and segregation

measures do not eliminate exposure to second-hand smoke.1

9. If the Chamber judgment becomes final, it is liable to have serious operational and financial

repercussions for Estonia. Estonia has now for eight years since 2017 maintained the prison

environment fully smoke-free, thereby protecting both non-smoking prisoners and staff. Estonia

is one of the few States to have succeeded in doing so. Any reversal of that policy would require

substantial changes to infrastructure and daily prison management. It would also place prison

officers in circumstances where they are exposed to tobacco smoke on a routine basis, even in

outdoor exercise yards as enclosed spaces.

10. As an ancillary aspect, the closeness of the vote and the strong judicial disagreement indicate

that the case raises difficult and unsettled questions that call for clarification by the Grand

Chamber. The Chamber found a violation of Article 8 of the Convention by 4 votes to 3 and the

1 See Guidelines for implementation of Article 8 [of the World Health Organisation Framework Convention on Tobacco Control] (Protection from exposure to tobacco smoke), FCTC/COP2(7), p 25: “No safe levels of exposure to second-hand smoke exist, and, as previously acknowledged by the Conference of the Parties in decision FCTC/COP1(15), engineering approaches, such as ventilation, air exchange and the use of designated smoking areas, do not protect against exposure to tobacco smoke.”

Vainik and Others v. Estonia, no. 17982/21 and 3 others

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admissibility of the complaint under that article was also contentious. The judgment is

accompanied by separate opinions of six of the seven judges on the bench, including a partly

dissenting opinion explicitly characterising the ruling as establishing “a new fundamental right

… the right to smoke in prison”.

Serious questions affecting the interpretation and application of the Convention

11. The Government sets out below the serious issues arising in the case. Each point is capable

of recurring beyond the confines of the respondent State and the present case, thus warranting

clarification or guidance from the Court at Grand Chamber level.

i) Extension of the scope of Article 8

12. The first issue concerns the scope of Article 8 and, in particular, whether the “choice to

smoke”, including in a closed environment such as a prison, is capable of falling within the

notion of “private life” protected by Article 8 § 1, and, if so, on what basis and within what

limits.

13. In the present case, the Chamber held that “whether to smoke” is an aspect of personal

autonomy and therefore falls within the scope of private life under Article 8 (§§ 129-132, 163–

164). In the separate opinions that approach was disputed. In particular, the partly dissenting

opinion of Judge Pavli characterised the judgment as effectively establishing “a new fundamental

right … the right to smoke in prison”, and questioned whether such a right exists under Article

8 under any of the theories or grounds relied upon by the majority (separate opinion of Judge

Pavli, §§ 1–3). Recognising a right to smoke in prison implies that there is a general right to

smoke. However, it is absolutely implausible to speak of a general right to smoke if we look at

current practices in contemporary European societies.

14. The seriousness of the issue lies in the implications for the methodology by which certain

specific interests are identified and delimited as meriting the protection of Article 8. If personal

autonomy, as a general concept, is sufficient to bring within Article 8 any lifestyle choice

perceived to be harmful, this may materially affect the reach of Article 8 in areas of public health

regulation and in closed settings where accommodation of the choice may entail harm to others

and operational constraints.

15. The Government accordingly submit that Grand Chamber guidance is required on the

doctrinal filter to be applied when an interest regarding which Article 8 protection is sought

concerns a harmful or addictive practice, and on whether additional limiting criteria are required,

such as the closeness of the activity to identity, physical integrity, or personal development, and

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the compatibility of the claimed interest with the rights of others and the underlying values of

the Convention.

ii) Application of the “threshold of severity” under Article 8

16. Even if smoking (in prison) may in principle fall within the ambit of Article 8, the case raises

a further serious question whether the measure complained of in a particular case must also attain

a minimum level of seriousness (exceed a threshold of severity) in its effects on the applicant’s

private life in order to constitute an interference with the scope of Article 8 (making it applicable

in a specific situation and triggering the obligation to justify that interference under Article 8 §

2; see Denisov v. Ukraine [GC], no. 76639/11, §§ 111-113, 25 September 2018, Vučina v.

Croatia (dec.), no. 58955/13, §§ 32-34, 24 September 2019).

17. That important methodological question has remained unanswered in the present case. The

Chamber accepted Article 8 applicability on the basis of the broad notion of “private life” and

the manner in which it has been applied in the Court’s case-law (§§ 129-132). The methodology

in the present case is contested in the separate opinions, which emphasise doubts as to whether

the impact on the applicants’ Article 8 interests was severe enough. The Government would

argue that a minimum level of severity threshold would need to be applied and that under the

circumstances, even if the applicants can be said to have discharged their burden of proof, the

effect of the prohibition of smoking was not serious enough to bring their specific situations

within the scope of Article 8 of the Convention.

18. The Government submit that the Grand Chamber could clarify in the context of the possible

right to smoke (i) how the threshold-of-severity analysis applies under Article 8, (ii) what factors

determine whether it is met, and (iii) the burden on applicants to identify and substantiate

concrete repercussions.

19. The point is of general importance because it concerns how the threshold of severity is to be

applied under Article 8 consistently to a novel aspect, that furthermore does not appear to be

concerning the core of that Convention right.

iii) Relevance of parliamentary scrutiny in applying subsidiarity and the margin of

appreciation

20. Another serious question is how, and to what extent, the Court may treat the form of domestic

decision-making (for example parliamentary legislation versus executive regulation) as a

decisive factor in the application of the principles of subsidiarity and margin of appreciation in

the context of proportionality assessment under Article 8 of the Convention, where the domestic

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processes, considered as a whole, included detailed analysis of the impact of the impugned

measure and constitutional review.

21. The majority of the Chamber treated as decisive that the ban “was not adopted by

Parliament”, and stated that it did not benefit from “direct parliamentary review and debate”,

notwithstanding its acceptance that the measure was “in accordance with the law” and that its

constitutionality and impacts were examined in the drafting process and subsequently by the

Supreme Court (§§ 154, 167-168).

22. That approach departs significantly from the Court’s previous case-law and could seriously

affect fundamental aspects of the shared responsibility between the Court and the domestic

authorities in the application of the Convention. In Animal Defenders International v. the United

Kingdom [GC] (no. 48876/08, § 108) the Court referred to the importance of the quality of the

parliamentary and judicial review of the necessity of a general measure. In Humpert and Others

([GC], nos. 59433/18 and 3 others, § 146), the Court, in its application of Animal Defenders

International, referred to the “convincing ... justifications of a general measure” and proceeded

to find those justifications in the extensive assessment of the domestic courts and not in the

parliamentary debate. In the case of Mikyas and Others v. Belgium ((dec.), no. 50681/20, § 55,

9 April 2024) a restriction of Article 9 rights was imposed with a decision of educational

establishments (§§ 8 and 55). In that case the Court does not appear to have been taken any issue

with that in the context of applying the subsidiarity and margin of appreciation doctrines in

favour of the respondent State (§§ 70 and 76).

23. The Grand Chamber’s clarification is necessary to avoid uncertainty as to when the Court

will treat non-parliamentary adoption as a major deficiency, even where a measure is lawful and

subject to thorough scrutiny of different authorities at domestic level.

iv) Issues related to the methodology of applying the freshly-recognised “right to smoke”

24. If smoking in prison is to be regarded as falling within the scope of Article 8 of the

Convention both in principle and in the particular situation of the applicants, the case raises

serious methodological questions about how the justification analysis, and in particular the

balancing exercise, is to be conducted under Article 8 § 2.

25. The Government submit that the issues below have a cumulative impact on the “necessity in

a democratic society” assessment of any possible restriction of the right to smoke and thus

require clarifications by the Grand Chamber.

Vainik and Others v. Estonia, no. 17982/21 and 3 others

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- Personal autonomy in prison where the conduct endangers others and raises

concerns over security and order

26. What elements must domestic authorities address, and what level of detail is required, when

balancing prisoners’ personal autonomy against (i) protection of the health of others and (ii)

prison security and operational constraints?

27. The Chamber criticised the domestic analysis for not addressing the ban’s importance and

impact from the perspective of prisoners’ personal autonomy and freedom of choice over their

own body and health (§ 169).

28. The problem is acute in view of the Court’s established case-law on States’ obligations to

protect non-smoking prisoners from second-hand smoke under Article 3 (§ 148), and the fact

that Article 3 is an absolute right (it cannot be interfered with) whereas Article 8 is qualified (it

may be interfered with under the circumstances of § 2, but those interferences must be justified).

29. The Government submits that the Grand Chamber could provide guidance on how to take

account of (i) risks to the health of others in a closed environment, (ii) the particular vulnerability

of non-smoking prisoners, and (iii) the security and resource implications of partial

accommodation of the smokers’ interests.

- Margin of appreciation issues

30. The case also raises serious questions regarding the practical operation of subsidiarity and

the margin of appreciation in review of general measures (in addition to the issue related to the

relevance of parliamentary scrutiny above).

31. The first serious issue under this heading is how the Court should calibrate the margin of

appreciation in social and public health policy – policy areas which are in principle within the

margin of appreciation of the domestic authorities, who are best placed to assess priorities, use

of resources and social needs (see Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12,

§ 119; Vavřička and Others, no. 47621/13, §§ 274 and 280; and Communauté genevoise d’action

syndicale (CGAS) v. Switzerland [GC], no. 21881/20, § 160, 27 November 2023) – where there

is a discernible regulatory trend in the member States of the Council of Europe towards smoke-

free environments, but no uniform practice yet amounting to “consensus”.

32. A further issue concerns the consequences, for the proportionality assessment, of the Court’s

finding that a State enjoys a considerable margin in regulating a particular sphere of life (as for

example in §§ 161, 170). The Government would argue that if a State enjoys a “considerable

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margin” in regulating smoking in prisons, that conclusion should have concrete methodological

consequences for the intensity of review of the contentious measure.

33. The case presents an opportunity for the Grand Chamber to clarify the appropriate width and

breadth of the margin of appreciation in matters of public health and prison administration when

there is a trend, but no uniform practice regarding a specific activity, as well as the appropriate

consequences of a wide or considerable margin for the assessment of “necessity in a democratic

society” of an interference with that activity.

- Giving appropriate weight to the legitimate aims

34. The legitimate aims justifying the prohibition of smoking in the present case were protecting

the health of others (non-smoking prisoners and prison staff from the harmful effects of second-

hand smoke) and preventing disorder or crime (prison security and more efficient use of prison

resources).

35. The majority of the Chamber have stated that they welcome the efforts to protect health and

security in prisons (§ 171, but see also §§ 157-159 which deals with health protection in the

section of the judgment “Margin of appreciation in the present case”).

36. The serious issue that presents itself in this context is how explicitly could the Court be

expected to state what weight it gives or how important it considers that the legitimate aims are

in a given situation. The Government submit that it is especially important for understanding the

reasoning of the Court when the review of necessity in a democratic society takes a more

intensive form. Again, the Grand Chamber can refine the methodology as regards that aspect.

- Assessment of the nature and intensity of the interference

37. The majority of the Chamber attached considerable weight in the assessment of necessity

(the balancing exercise) to the personal autonomy of the applicants and the choice to smoke in

the context of already limited personal autonomy (§ 163-164, 169).

38. The Government submit that the Grand Chamber could clarify how the nature of the interest

invoked and the intensity of the interference affect the balancing exercise, particularly where (i)

the prohibition under scrutiny is introduced gradually over years by reducing possibilities of

smoking (§§ 52, 69), (ii) it is not unexpected (§§ 5–7, 68–71), (iii) supportive measures

(treatment and counselling) are provided (§§ 48, 55–56, 169), and the interest in question that

the measure interferes with cannot be considered falling within the core of the scope of protection

of Article 8, but can at best be seen as falling on the periphery of the interests protected by Article

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8 (see also § 160 “the activity itself cannot be considered an indispensable or inextricable facet

of an individual’s identity or existence”).

39. The Grand Chamber could explain further how the Court could review and explicitly reflect

in writing the entirety of different factors determining the nature and intensity of an interference

for the purposes of the balancing exercise. That is especially important to ensure transparency

and intelligibility of the Court’s reasoning and thereby to safeguard the authority of the Court’s

judgments.

Conclusion

40. For the reasons set out above, the Government are of the opinion that the case is exceptional

and raises serious questions affecting the interpretation and application of Article 8, and serious

issues of general importance, concerning: (i) extension of the scope of Article 8 of the

Convention; (ii) the role of any threshold of severity in engaging Article 8; (iii) the proper weight

to be given to parliamentary scrutiny in the application of the principles of subsidiarity and

margin of appreciation of the Preamble to the Convention; and (iv) the methodology for applying

the newly-recognised “right to smoke”.

41. Should the Chamber judgment become final, it is liable to create considerable operational

and financial repercussions for Estonia. Any reversal of the eight-year smoking ban would

require substantial changes to prison infrastructure and daily management. It would expose

prison staff to tobacco smoke on a routine basis, it would reintroduce related security risks

(tobacco products as a means of payment and creation of obligations among prisoners, fire

hazards etc.) and increase staff workload through the need for additional supervision.

42. The Government therefore respectfully request, pursuant to Article 43 of the Convention and

Rule 73 of the Rules of Court, that the case be referred to the Grand Chamber.

43. If the panel decides to refer the case to the Grand Chamber, then the Government would like

to have an opportunity to submit further observations on the admissibility and merits of the

complaint under Article 8 of the Convention (Rule 71 § 1 and 59 § 1 of the Rules of Court).

Tim Kolk

Agent of the Government of Estonia

before the European Court of Human Rights