Do smokers have rights?

The right to smoke

The anti-tobacco law enters into force in Russia on June 1st. According to the law, smoking will be prohibited at the premises of schools, higher education institutions, hospitals, theaters, museums, juvenile authorities, sports institutions, at the children playgrounds and beaches, in planes and public transport, at the railway stations and airports, in elevators, front entrances and other public locations.

And smoking in public places will be completely banned as of January 1st of 2015.

Indeed, according to advocate Vadim Kliuvgant, “there is no doubt that such regulation is necessary”. Yury Pilipenko, Managing Partner of the Law Firm "YUST", First Vice-President of the Federal Chamber of Advocates of the Russian Federation, Doctor at Law, elaborates: “There are no known acts granting any special rights to smokers. I believe that a smoker, just like any other person, has the right to destroy his own health. But he has no right to damage the health of other people. This is the basis for all smoking-related restrictions and bans”.

The fact that “one really should pay attention to the reasonableness of the imposed bans and restrictions. And the most important thing is their compliance with the Constitution” – says Kliuvgant.

Y.Pilipenko explains: “The rights of the smokers and of all other people, who live in our country, are stipulated by the Constitution. According to it, each one has the right to health protection and medical assistance (part 1 of Article 41); exercise of rights and liberties of a human being and a citizen should not violate rights and liberties of other persons (part 3 of Article 17); rights and liberties of a human being and a citizen may be restricted by a federal law only to the extent as is required for the purpose of protection of the constitutional regime, morality, health, rights and legal interests of other persons, safeguarding the defense of the country and national security (part 3 of Article 55)”.

Advocate Sergey Kupreychenko supplements: “Theoretically, the right to smoking may be viewed as a certain derivative of the rights fixed by Articles 19, 21, 23 of the Constitution of Russia. Speaking of the “right to smoke” one must take into consideration that “exercise of rights and liberties of a human being and a citizen should not violate rights and liberties of other persons (part 3 of Article 17)”. This means that the right to smoking may not be absolute, may not have an unreasonable priority over other rights”.

Kliuvgant says: “The smokers’ rights to liberty, including the liberty of all actions not prohibited by law, to respect of their dignity and unacceptability of its humiliation in any form, and the right of each person (smoker or not) to health protection and favorable environment, as well as legal interests of children, to whom tobacco is especially hazardous – all of those are valuables of the constitutional level, of the highest order. All laws and actions by the powers and the authorities should be aimed at those, as the Constitution requires too. Hence, the “anti-tobacco” law should also comply with the constitutional balance of rights and liberties”.

Therefore, Kupreychenko concludes, “complete elimination of the possibilities to smoke tobacco, even in specially equipped locations, or the absence of the specially equipped locations for smokers may also be considered a violation of human rights, since such ban will inevitably affect the person’s right to self-determination, which is an integral component of liberty as a philosophical category. Unlike addiction to drugs, smoking tobacco in specially equipped locations cannot be viewed as socially dangerous. Hence, a civilized society must provide smokers with such opportunities”.

Still, the smokers should not despair yet. Even though, according to Maxim Poliakov, docent of the Chair of Administrative Law of the Oleg Kutafin Moscow State Academy of Law, “there are no smokers’ rights as a separate category of the Russian legislation, there are, however, NGOs in Russia that defend the interests of the smokers. For example, the All-Russian movement for the smokers’ rights. The Charter of the Tobacco Covenant is one of the main documents that said organization follows. The document is unofficial and actually lists all the basic rights of the smokers. We believe that the new anti-tobacco law infringes the rights of the smoking citizens because it introduces a large list of restrictions on smoking. In all history of the Russian legislation, not a single normative act fixing the smokers’ rights was adopted”.

How to contest

Still, this is all theoretical discussion thoughts. Y.Pilipenko reminds: “and the measure, to which the restrictions and bans on the smokers, imposed by the anti-tobacco law, are necessary to protect the non-smokers’ health, and whether or not those are too harsh on the smokers, will be decided by the Constitutional Court – if respectively requested”.

<…>

The full version of the publication is available here.