Published on 20 December 2021

THIRD SECTION

Application no. 3184/21 Denis Olegovich LVOV against Estonia and 3 other applications (see list appended) communicated on 1 December 2021

STATEMENT OF FACTS

The applicants’ details are set out in the appendix.

The circumstances of the case

1. The facts of the case, as submitted by the applicants, may be summarised as follows.

2 . On 6 October 2016 the Minister of Justice amended the provisions of Regulation no. 72 on the Internal Prison Rules ( vangla sisekorraeeskiri ) in so far as they concerned the possession of tobacco products. As a result, section 64 1 (3 1 ) of the Internal Prison Rules provides that detainees are prohibited from having tobacco products and tobacco smoking accessories in prison. The ban entered into force on 1 October 2017.

3 . On 24 April 2017 the Director of Viru Prison amended the prison’s house rules ( Viru Vangla kodukord ) to completely ban smoking on its premises. That ban also entered into force on 1 October 2017.

4. It appears that the total ban on smoking in prisons was preceded by successive changes in Viru Prison’s house rules whereby detainees were, over time, allowed fewer and fewer cigarettes during their outside walks.

5. The first applicant, a smoker, was detained in Viru Prison when the relevant changes in its house rules and the Internal Prison Rules (see paragraphs 2 and 3 above), effectively resulting in a smoking ban in prisons, entered into force.

6. After unsuccessfully raising the issue with Viru Prison, he lodged a complaint with the Tartu Administrative Court on 31 January 2018, challenging the smoking ban. He also claimed compensation for non-pecuniary damage caused by the smoking ban provided for in the Internal Prison Rules and Viru Prison’s house rules.

7. The Tartu Administrative Court and Tartu Court of Appeal refused to examine his complaints. He appealed to the Supreme Court.

8. On 28 June 2019 the Supreme Court allowed his appeal, quashed the decisions of the lower courts and remitted the case to the Tartu Administrative Court for re-examination in so far as it concerned the smoking ban ( tühistamisnõue ja kohustamisnõue ) and compensation for non-pecuniary damage caused by the Internal Prison Rules. The Supreme Court terminated the proceedings concerning his claim for compensation for non-pecuniary damage caused by Viru Prison’s house rules.

9. On 5 November 2019 the Tartu Administrative Court suspended the proceedings pending the outcome of constitutional review proceedings brought in relation to the smoking ban (case no. 5-19-40 – see paragraph 22 below). The applicant’s subsequent appeals against that decision were unsuccessful.

10. On 5 February 2020 the Tartu Administrative Court resumed the proceedings.

11. On 26 March 2020 the first applicant applied for exemption from payment of the State fee ( riigilõiv ).

12. On 15 April 2020 the Tartu Administrative Court, referring, inter alia , to the Supreme Court’s judgment in case no. 5-19-40 (see paragraph 13 below), dismissed the application for exemption from payment of the State fee and ordered the first applicant to pay it. The court considered that his claim lacked prospects of success. As he did not appeal against that decision, it entered into force on 9 May 2020 and the deadline for payment expired on 14 May 2020.

14. The first applicant argues that he was unable to pay the State fee owing to a lack of funds and the Covid-19 restrictions then in force at Viru Prison.

15. On 18 May 2020 the Tartu Administrative Court refused to examine the first applicant’s claim dated 31 January 2018 because he had not paid the State fee. In addition, the court refused to examine his repeated application for exemption from payment. That decision was upheld by the Tartu Court of Appeal and the Supreme Court.

16. The second applicant has been serving a life sentence in Viru Prison since 1996. He claims to have been a smoker for most of his life.

17. After the Ministry of Justice dismissed a complaint lodged by him seeking the annulment of the smoking ban introduced into Viru Prison’s house rules, he lodged an action for annulment with the Tartu Administrative Court on 4 January 2018. Those proceedings were suspended pending the outcome of the constitutional review proceedings in case no. 5-19-40 (see paragraph 22 below) and were resumed on 2 January 2020. On 4 February 2020 the Tartu Administrative Court dismissed his complaint, referring to the Supreme Court’s reasoning in judgment no. 5-19-40 (see paragraph 22 below).

18. He appealed to the Tartu Court of Appeal. It dismissed his appeal on 18 August 2020. On 29 September 2020 the Supreme Court refused to examine his subsequent appeal on points of law.

19. The third and fourth applicants are detained in Viru Prison. They are both known to have been smokers.

20. After various complaints lodged by them relating to the smoking ban had either been refused or dismissed by Viru Prison or the Ministry of Justice, the third and fourth applicants (on 13 November and 10 October 2017 respectively) brought proceedings before the Tartu Administrative Court, arguing that section 64 1 (3 1 ) of the Internal Prison Rules was unconstitutional and challenging the smoking ban provided for in Viru Prison’s house rules.

21. On 12 June 2019 the Tartu Administrative Court declared section 64 1 (3 1 ) of the Internal Prison Rules unconstitutional and set it aside ( jättis kohaldamata ). It referred the judgment to the Supreme Court, thereby triggering constitutional review proceedings. The court also annulled the smoking ban provided for in Viru Prison’s house rules and ordered the prison to reconsider whether or not the third and fourth applicants were allowed to smoke in the prison.

22 . By judgment no. 5-19-40 of 17 December 2019 the Supreme Court found the ban provided for in section 64 1 (3 1 ) of the Internal Prison Rules to be constitutional. The court admitted that the ban on having tobacco products on prison premises interfered with property rights and the right to free self-determination ( vaba eneseteostus ). However, the ban did serve legitimate aims – protecting the health of others, preventing cigarettes from being used as tender in prison and preventing the overall fire hazard – and was proportionate. According to the Supreme Court, the smoking ban did not constitute degrading treatment.

23. After the Supreme Court had delivered its judgment in case no. 5-19-40, Viru Prison appealed against the Tartu Administrative Court’s judgment of 12 June 2019. On 18 March 2021 the Tartu Court of Appeal allowed the appeal. It found that as the Supreme Court had considered the ban on having tobacco products in prison to be constitutional, the ban on smoking provided for in Viru Prison’s house rules also had to be upheld.

24. On 4 May 2021 the Supreme Court refused to examine appeals on points of law lodged by the third and fourth applicants.

COMPLAINTS

The first, third and fourth applicants complain that the total ban on smoking in prisons violates their rights under Article 3 of the Convention.

The second applicant complains that that the total ban on smoking in prisons violates his rights under Articles 3 and 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Have the conditions of the applicants’ detention in relation to the total smoking ban on prison premises amounted to inhuman or degrading treatment in breach of Article 3 of the Convention?

2. Is Article 8 applicable in the circumstances invoked by the applicants and has there been an interference with the applicants’ right to respect for their private life, within the meaning of Article 8 § 1 of the Convention? Has there been a violation of the applicants’ right to respect for their private life, contrary to Article 8 of the Convention, on account of the total smoking ban on prison premises?

The Government is asked to provide further information about the measures that Viru Prison or the Estonian authorities in general took prior to and after the entry into force of the smoking ban in order to enable smoking prisoners to adapt to the new situation.

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

1.

3184/21

Lvov v. Estonia

06/01/2021

Denis Olegovich LVOV 1976 Tallinn Estonian

2.

17982/21

Vainik v. Estonia

28/03/2021

Rene VAINIK 1975 Jõhvi Estonian

3.

43852/21

Smeljov v. Estonia

21/08/2021

Nikolai SMELJOV 1973 Jõhvi Unknown

4.

44600/21

Tsajun v. Estonia

31/08/2021

Dmitri TSAJUN 1977 Jõhvi Unknown