CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 novembre 2025

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ESTONIA (Applications nos. 17982/21 and 3 others – see appended list)   JUDGMENT   Art 8 • Private life • Introduction of total ban on smoking in prisons affecting the applicants, serving prisoners who were long-term smokers • Choice to smoke and the provision of treatment to counter withdrawal effects of quitting fell within the material scope of the right to respect for private life • Art   8 applicable • Legitimate aims of protecting health and preventing disorder or crime • Domestic authorities enjoyed considerable but not unlimited margin of appreciation to regulate smoking in prison • Impugned ban not adopted by Parliament and did not benefit from direct parliamentary review and debate • Lack of consensus among member States on the need to ban smoking in prison settings • No assessment of importance and impact of ban from the perspective of the personal autonomy of prisoners who smoke • Failure to provide relevant and sufficient reasons for far-reaching and absolute prohibition • Margin of appreciation exceeded   Prepared by the Registry. Does not bind the Court.   STRASBOURG 4 November 2025   Referral to the Grand Chamber   23/03/2026     This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vainik and Others v. Estonia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Ioannis Ktistakis , President ,   Peeter Roosma,   Georgios A. Serghides,   Darian Pavli,   Andreas Zünd,   Oddný Mjöll Arnardóttir,   Úna Ní Raifeartaigh , judges , and Milan Blaško, Section Registrar, Having regard to: the applications (nos.   3184/21, 17982/21, 43852/21 and 44600/21) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Estonian nationals, Mr Denis Lvov (“the first applicant”), Mr Rene Vainik (“the second applicant”) and Mr   Dmitri Tsajun (“the fourth applicant”), and Mr Nikolai Šmeljov (“the third applicant”), who is of unknown citizenship, on the various dates indicated in the appendix; the decision to give notice to the Estonian Government (“the Government”) of the complaint concerning the total ban on smoking in prison and to declare inadmissible the remainder of the applications; the parties’ observations; Having deliberated in private on 3 June 2025 and 30   September 2025, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The case concerns the total ban on smoking in Estonian prisons, which, according to the applicants – who were all prisoners at the time the ban entered into force – violated their rights under Articles 3 and 8 of the Convention. THE FACTS 2.     The applicants, whose particulars are set out in the appendix, were detained in Viru Prison at the relevant time. The second, third and fourth applicants were represented by Mr D. Piskunov, a lawyer practising in Tallinn. The first applicant was represented by the same lawyer until 11   March 2025. 3.     The Government were initially represented by their Agent, Ms   M.   Kuurberg, Representative of Estonia to the European Court of Human Rights, and subsequently by Mr T. Kolk, her successor in that office. 4.     The facts of the case may be summarised as follows.         General background 5 .     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 related to 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 smokable tobacco products ( suitsetatavad tubakatooted ) and items that can be used to assemble or smoke smokable tobacco products (hereinafter referred to as “tobacco products”). The ban entered into force on 1   October 2017. 6 .     On 24 April 2017 the governor of Viru Prison amended Viru Prison’s house rules ( Viru Vangla kodukord ) to completely ban smoking on its premises. The ban also entered into force on 1 October 2017. 7.     The total ban on smoking in prison was preceded by successive changes to Viru Prison’s house rules, which over time reduced the number of cigarettes that detainees were allowed during their outside walks (see   paragraphs 68-69 below).       As regards the first applicant 8.     The first applicant, who was known to have been a smoker, was detained in Viru Prison when the relevant changes to its house rules and the Internal Prison Rules (see paragraphs 5 and 6 above) entered into force. 9.     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 in the Internal Prison Rules and Viru Prison’s house rules. He explained that he had been smoking for over thirty years and that, following the ban on smoking, he had been suffering from depression, sleeping problems and loss of appetite. 10.     The Tartu Administrative Court and the Tartu Court of Appeal refused to examine his complaints. He appealed to the Supreme Court. 11.     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 as regards 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 ( lõpetab menetluse ) for compensation for non-pecuniary damage caused by Viru Prison’s house rules. 12.     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 paragraphs   26 ‑ 39 below). The applicant’s subsequent appeals against that decision were unsuccessful. 13.     On 5 February 2020 the Tartu Administrative Court resumed the proceedings. 14.     On 26 March 2020 the first applicant applied for exemption from payment of the State fee ( riigilõiv ). 15 .     On 15 April 2020 the Tartu Administrative Court, referring, inter alia , to the Supreme Court’s judgment in case no. 5-19-40 (see paragraphs 26-39 below), dismissed the application for exemption from payment of the State fee and ordered the first applicant to pay it. The court found that the first applicant did not have sufficient funds to pay the State fee, but considered that, in any event, 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. The Tartu Administrative Court refused to examine a repeated application by the first applicant, dated 25 April 2020, for exemption from payment of the State fee. 16 .     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. That decision was upheld on 27 May 2020 by the Tartu Court of Appeal, which stated that the question before it was no longer whether he should have been exempted from paying the State fee, but whether the first-instance court’s refusal to examine his claim had been justified. The Supreme Court refused to examine a further appeal by the applicant against the decision of the Tartu Court of Appeal.     As regards the second applicant 17 .     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. It appears from the medical records submitted by him that he was diagnosed with nicotine addiction in 2015. 18 .     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. He considered it common knowledge that smokers developed nicotine addiction and that they could have withdrawal symptoms of varying nature, intensity and duration when quitting smoking. He added that he could develop such withdrawal symptoms if he was not allowed to smoke and that it was irrelevant for the purposes of his case whether he had already developed any symptoms. 19 .     Those court proceedings before the Tartu Administrative Court were suspended pending the outcome of the constitutional review proceedings in case no. 5-19-40 (see paragraphs 26-39 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. 20.     The second applicant 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 a subsequent appeal by him on points of law.    As regards the third and fourth applicants 21.     The third and fourth applicants were detained in Viru Prison. At the time the ban on smoking entered into force, they were both known to have been smokers. 22.     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 in Viru Prison’s house rules. 23.     In his application to the Tartu Administrative Court, the third applicant stated that he had been smoking for thirty years and that, as a result of the ban on smoking in prison, he had been suffering from fatigue, headaches, overall weakness, sleeplessness and loss of appetite. The fourth applicant submitted that he was heavily addicted to nicotine and was suffering from severe withdrawal symptoms. 24 .     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, triggering constitutional review proceedings. The court also annulled the smoking ban in Viru Prison’s house rules and ordered the prison to reconsider whether the third and fourth applicants could smoke in the prison. 25.     During the proceedings before the Supreme Court, the Chancellor of Justice, the Minister of Justice and the Minister of Social Affairs gave their opinions on the constitutionality of the ban, alongside the positions expressed by Viru Prison and the applicants in that case. 26 .     By judgment no. 5-19-40 of 17 December 2019 the Supreme Court declared the ban provided for in section 64 1 (3 1 ) of the Internal Prison Rules constitutional. 27.     Firstly, the Supreme Court reiterated that, in accordance with the principle of general statutory reservation ( üldise seadusereservatsiooni põhimõte ) enshrined in Article 3 § 1 of the Constitution, it was for the legislature to adopt all important decisions concerning fundamental rights. The delegation of matters within the legislature’s competence to the executive, and interference by the executive with fundamental rights, was permitted only   on the basis of a delegating provision ( volitusnorm ) established by law and in accordance with the Constitution. Article 94   §   2 of the Constitution exemplified the principle of general statutory reservation by allowing a minister to issue regulations and administrative decrees on the basis of and for the implementation of laws.   A regulation was contrary to the Constitution if it was issued on the basis of an unconstitutional delegating provision, in the absence of a delegating provision, or if it was incompatible with the delegating provision. 28 .     Accordingly, the Supreme Court assessed whether the rule in section   64 1 (3 1 ) of the Internal Prison Rules was within the limits of sections   15(2) and (3) of the Imprisonment Act, on which it was based (see paragraph   46 below). In doing so, the court interpreted the terms “people’s safety” and “security and order in prison” listed in section 15(2) of the Imprisonment Act and referred to the aims of the smoking ban listed by the Minister of Justice in the explanatory memorandum to the draft regulation (see paragraph   59 below). In that connection, the Supreme Court highlighted that such an interpretation had to take into account the specific security setting of a prison. Therefore, some items and substances not considered dangerous in everyday life outside prisons could nonetheless pose a threat to security and order in prison. 29.     The court noted that both the prison and the Minister of Justice, having specific experience and knowledge in the relevant field, had a wide margin of appreciation in assessing the dangerousness of various items in a prison environment. Nonetheless, the terms “people’s safety” and “security and order in prison” could not be construed overly widely so as to allow the minister to ban items arbitrarily. Prohibiting items in prison had to serve the aims of carrying out a prison sentence, comply with the notion of human dignity and avoid causing unnecessary suffering or distress to prisoners. 30 .     The Supreme Court considered that the aim of preventing smoking-related health damage to others (through the exclusion of passive smoking) was covered by the notions of “people’s safety” and “security in prison”. It was undoubtedly a prison’s obligation to prevent damage to the health of non-smoking prisoners. In that connection, the court referred to the Court’s case-law according to which smoking had to be excluded in prison rooms where persons had to stay against their will, and smokers and non-smokers had to be placed in separate cells when necessary. 31.     Conversely, the court considered that protecting the health of smoking prisoners themselves and freeing them from nicotine addiction could not be considered to be covered by the aims of serving a prison sentence. Such a ban was neither inherent in imprisonment nor inextricably linked to its execution. The possibility that banning prisoners from smoking could, in the future, save public resources that would otherwise be spent on their healthcare did not alter the above finding. Owning and smoking tobacco products were not, in and of themselves, factors that enhanced criminal behaviour. The aim of carrying out a prison sentence could not be to prevent prisoners from engaging in any self-damaging activity, especially if this activity was undertaken knowingly and of their own will. 32 .     In addition, taking note of the aims listed by the Minister of Justice, the Supreme Court found that the aim of preventing the risk of fire in prison (which related to the use of open flames in prison and attempts to light cigarettes with self-made lighters) and the aim of preventing cigarettes from being used as an illegal form of currency in prison (which related to the spread of debt-based relationships among prisoners and contributed to a criminal environment) were covered by the aims set out in section 15(2) of the Imprisonment Act. The court also noted that while facilitating the maintenance of prison security (by having to devote fewer resources to regular checks to ensure that cigarettes were not taken into cells) could not be seen as a standalone legitimate aim of the smoking ban, it nonetheless contributed to the achievement of the other above-mentioned aims. 33.     In conclusion, the Supreme Court held that the impugned rule was within the limits of the provision on which it was based. 34.     The Supreme Court further accepted that the ban on having tobacco products in prison interfered with property rights and the right to free self-realisation (within the meaning of Article 19 of the Constitution – see paragraph 43 below). In order to be constitutional, the restriction had to be necessary in a democratic society and could not distort the core of the rights in question. In other words, it had to serve a legitimate aim and be proportionate to that aim. 35 .     The ban on smoking served the above-mentioned legitimate aims. The Supreme Court also found that the ban did indeed contribute to achieving those aims. Even assuming that the prison service would not be able to completely prevent tobacco products from illegally reaching prisoners, it indisputably complicated prisoners’ access to tobacco products. The statistics presented by the Minister of Justice confirmed that since the ban had been imposed, the number of incidents related to tobacco handling and smoking in prisons had drastically decreased. 36 .     The Supreme Court took into account the opinion expressed by the Chancellor of Justice that the ban was not necessary as smoking-related health risks had been sufficiently mitigated by the prohibition of indoor smoking in prison. The court admitted that less restrictive measures could indeed be envisaged in the interests of protecting non-smokers. However, it was difficult to assess the effectiveness of such measures. For example, it would be possible to separate smokers and non-smokers in different cells, or to build special smoking rooms in prisons, or to allow smoking only outdoors, as had been the case until the imposition of the ban in 2017. However, none of those more lenient measures – which permitted limited access to smoking – could ensure that the legitimate aims pursued would be met at a level comparable to a complete ban. The court asserted that, even in smoking rooms or in limited smoking areas, the prison had to ensure that prisoners were supervised, and the complete separation of non-smokers was not practically possible. There was no reason to doubt the Minister of Justice’s assessment that, in comparison to a complete ban, permitting smoking in certain limited areas in prison increased the chances that tobacco products would still reach prohibited areas, thus requiring more prison resources to address the problem. 37 .     In any event, the court could not envisage measures that would be less restrictive of prisoners’ rights but at the same time as effective as a total ban in preventing the risk of fire and the use of cigarettes as an illegal form of currency. 38 .     Addressing the proportionality of the ban on smoking, the Supreme Court considered that it did not deprive prisoners of anything indispensable. It conceded that nicotine addiction which developed as a result of a long-term smoking habit and the associated withdrawal symptoms when a person quit smoking (the duration and intensity of which were individual) were likely to contribute to the intensity of the interference complained of. However, withdrawal symptoms were unlikely to last long and needed medical treatment only in the most severe cases. The prison had to provide counselling to those wishing to give up smoking and, if necessary, to ensure treatment for severe withdrawal symptoms. The Minister of Justice had confirmed that those services were indeed provided if a prisoner gave up smoking. The applicants in the case in question had not claimed that the prison had not offered them counselling or treatment. In any event, the reduction of smoking in prison had taken place gradually, by reducing the number of cigarettes prisoners were allowed to take with them outdoors (immediately before the total ban entered into force, only one cigarette per day had been allowed). It was therefore unlikely that severe withdrawal symptoms had occurred at the moment that the total ban on smoking came into force. 39 .     According to the Supreme Court, the smoking ban did not constitute degrading treatment. 40.     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 (see paragraph 24 above). On 18 March 2021 the Tartu Court of Appeal allowed the appeal. It held that, as the Supreme Court had declared the ban on having tobacco products in prison constitutional, the ban on smoking in Viru Prison’s house rules should also be upheld. 41.     On 4 May 2021 the Supreme Court refused to examine appeals on points of law lodged by the third and fourth applicants. RELEVANT LEGAL FRAMEWORK AND PRACTICE         Relevant legal framework    Constitution of the Republic of Estonia 42.     The first phrase of Article 3 § 1 of the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides that State power is exercised solely on the basis of the Constitution and laws in conformity therewith. 43 .     Article 19 § 1 provides that everyone has the right to free self-realisation ( vaba eneseteostus ). 44.     Article 94 § 2 provides, inter alia , that a minister issues regulations and orders on the basis of and for the implementation of laws. 45 .     Under Article 139, the Chancellor of Justice is an independent official who reviews acts of general application issued by the legislature, the executive and municipalities to ensure their compliance with the Constitution and laws of Estonia.    Imprisonment Act (adopted in 2000) 46 .     Section 15 of the Imprisonment Act ( vangistusseadus ) regulates prisoners’ personal effects and prohibited items. Section 15(2) and   (3) provides as follows: “(2) Prisoners are prohibited from having substances and items which:   1) endanger people’s safety;   2) are particularly likely to cause damage to property; 3) are likely to endanger security and order in prison; 4) are incompatible with the objectives of the sentence of imprisonment; 5) seriously affect the hygiene requirements of the prison; or 6) require the authorisation of a prison officer under section 31(2) of this Act. (3) The Minister responsible for policy shall by regulation draw up a list of the items prohibited to prisoners in closed or open prisons, the total weight of the items [that may be] kept on them and in storage, and the procedure for storing the items deposited.”    Regulation no. 72 of the Minister of Justice on the Internal Prison Rules 47 .     Section 8 2 of the Internal Prison Rules ( vangla sisekorraeeskiri ), as in force between 15 February 2011 and 1 October 2017, provided as follows: Section 8² - Smoking arrangements “(1) Upon admission of a prisoner, it shall be ascertained whether he smokes and whether he wishes to quit smoking. If a prisoner wishes to quit smoking, he shall be provided with counselling in the prison. (2) A prisoner may smoke in prison only in places designated for this purpose and marked accordingly, and at a time when the prisoner is entitled to be in those places. (2¹) A prisoner may only smoke cigarettes produced by a manufacturer (hereinafter ‘tobacco products’). (3) A prisoner may not keep tobacco products on him. Tobacco products are kept under lock and key by a prison officer. The prison service shall hand out tobacco products to a prisoner only for the period during which he is entitled to be in the places where smoking is allowed.” 48 .     Section 8 2 (1) of the Internal Prison Rules, as in force as of 1   October 2017, provides as follows: Section 8 2 - Organisation of smoking cessation “(1) Upon admission of a prisoner, with the exception of a person who has been detained for the purpose of sobering up, it shall be ascertained whether the prisoner smokes. If a prisoner, with the exception of a person referred to in sections 3(2) and 4(2) of the Imprisonment Act, expresses a wish to quit smoking, he shall be provided with counselling in the prison.” 49 .     Section 64 1 (3 1 ), which was adopted on 6 October 2016 and entered into force on 1 October 2017, provides that detainees are prohibited from having smokable tobacco products and items that can be used to assemble or smoke smokable tobacco products.    Explanatory memorandum to the draft regulation amending Regulation no. 72 of the Minister of Justice on the Internal Prison Rules 50 .     A twenty-page explanatory memorandum to the draft regulation including the above amendments (see paragraphs 48-49 above) focused mainly on assessing the foreseeable impact of the ban in terms of its social and economic aspects and on analysing the constitutionality of the proposed ban on having smokable tobacco products in prison. 51.     The memorandum noted that approximately 21% of prison staff and approximately 77% of prisoners in Estonia were smokers. 52 .     Since 2008 Estonian prisons had paid increasing attention to healthy lifestyles. Indoor spaces had already become smoke-free in 2010, and since then, tobacco products had been kept in special lockers outside prison cells. 53.     The imposition of a smoking ban in prisons was not a novel concept globally. The memorandum noted that a smoking ban was in place in all federal prisons across the United States of America and in state-level prisons in twenty states. Complete bans on smoking were also in force in Australia and New Zealand, and at that time, there were plans to make all UK prisons tobacco-free over the course of the following year.      Impact assessment 54 .     As regards the social impact of the ban, the memorandum noted that the inability to smoke had a positive impact on the health of prisoners and prison staff, including non-smokers, as they would no longer be exposed to passive smoking. It was considered that the policy in place at the relevant time, which allowed three cigarettes to be smoked per day (see paragraph   69 below), was not sufficient to guarantee the protection of non-smokers’ health. As exercise yards were often relatively small, it could be that chain-smoking prisoners did not have an effective opportunity to spend time in the “fresh air”. As long as smoking was permitted, prisoners had no real incentive to quit. 55.     As regards the negative social impact, the memorandum mentioned possible adjustment problems for prison staff and the risk that some might resign. As for prisoners, the risk of withdrawal effects was noted. However, this was likely to be moderate, given that, at the relevant time, prisoners were already limited to smoking three cigarettes per day. Supportive measures were planned to help prisoners cope, including additional sports and leisure activities, additional food packages and, where necessary, treatment for nicotine addiction provided by prison medical services. 56.     As regards the economic impact, the memorandum, on the one hand, highlighted the increased need for counselling and nicotine replacement treatment prescribed by medical personnel. At the relevant time, thirty-five people working in prisons had already undergone special training in smoking cessation counselling, with more to be trained if necessary. The demand for nicotine patches was expected to increase up to fourfold. It was also likely that more resources would be required to process appeals that might be lodged against the ban. A mass uprising was not considered likely. 57.     One the other hand, the ban was seen as a way of saving public resources. In the long term, healthcare costs linked to smoking-related problems were likely to decrease. Moreover, the ban would allow for a better use of prison officers’ time. It was estimated that, at the relevant time, prison staff collectively spent approximately eighty-five hours per day handing out and collecting cigarettes and conducting searches. In addition, there were approximately 1,800 disciplinary disputes related to smoking and tobacco in prisons per year, each taking an average of three hours of a prison officer’s working time.      Compliance with the Constitution 58.     It was acknowledged that the ban on smokable tobacco products interfered with the right to free self-realisation, as protected under Article   19 of the Constitution. 59 .     The ban was aimed at protecting health (including by creating a healthier living and working environment), fighting addiction, ensuring prison security and guaranteeing the efficient use of public resources. 60.     The memorandum based its analysis of the proportionality of the ban on the following considerations. 61 .     The proportion of smokers in prison was approximately three times higher than among persons at liberty. Smoking was considered part of the prison subculture, making it virtually impossible for prisoners to give up even if they so wished. In such circumstances, voluntary counselling was of limited use. 62 .     Under the system in operation at the time, smoking was possible in exercise yards and exercise pens, with smoking areas demarcated by a line on the ground. Prison officers on duty had no practical way of keeping their distance from the smoking area. In some exercise yards surrounded by living quarters, it was impossible to prevent smoke from entering. It was impossible to ensure a smoke-free environment for non-smoking prisoners and prison officers without making considerable investments. The ban on smoking was deemed to contribute to a cleaner and healthier working and living environment. 63 .     The ban was also expected to improve prison security and optimise the use of resources. Under the system allowing smoking only outdoors, resources had to be allocated to handing out and collecting cigarettes from prisoners and conducting body searches after exercise periods to prevent cigarettes from entering prison. Despite this, cigarettes still found their way into prisons, posing a fire hazard, especially as prisoners tried to light them with self-made lighters. Cigarettes continued to be used as currency in prison, constituting an example of the prison subculture. 64.     The memorandum noted that alternatives – either maintaining the limited smoking allowance in force at the time or increasing counselling efforts to convince more people to quit – would not be effective in meeting the above-mentioned objectives. 65.     The decision to smoke was influenced by a number of factors, such as accessibility, habits and a lack of alternative activities. Against that background, a number of measures had to be combined to achieve the above-mentioned health and security aims. It was considered that the State had to take a leading role in changing attitudes. Since May 2016 prisons had been implementing an incentive programme for prisoners willing to quit smoking, including offering additional leisure activities and food options. The enactment of the ban would involve a period of adaptation. Counselling and, if necessary, nicotine replacement treatment would help to ensure the proportionality of the ban. 66 .     While smoking was not prohibited for those at liberty, it was found that, given the specific features of the prison environment, it was not possible to effectively guarantee prison security and the protection of health without imposing a complete ban on smoking.     Viru Prison’s house rules 67.     Viru Prison’s house rules are adopted by decision of its governor. 68 .     Before 16 May 2016 section 12 of Viru Prison’s house rules ( Viru Vangla kodukord ) provided as follows: “12.1. A prisoner may smoke at a time and place specified in the daily schedule. Smoking is prohibited for prisoners serving a disciplinary sanction. 12.2. A prisoner’s cigarettes shall be placed in a locker provided by the prison. Every prisoner who smokes shall be assigned an individual locker for storing cigarettes. The key to the locker shall be kept in the guard’s room. The locker shall be opened and locked by a prison officer in the presence of the prisoner. 12.3. A prisoner cannot smoke at a workstation and therefore cigarettes cannot be taken to a workstation. 12.4. A prisoner may take up to five unpackaged cigarettes to the smoking area at a time designated for smoking.” 69 .     Between April 2016 and August 2017 section 12.4 of Viru Prison’s house rules on smoking in prison was repeatedly changed as regards the number of cigarettes prisoners were allowed to take with them during the time they were allowed to smoke once a day. Between 16 May 2016 and 1   July 2017 they were allowed to take three cigarettes, between 1 July 2017 and 1   September they were allowed to take two cigarettes, and between 1   September and 1 October 2017 they were allowed to take one cigarette with them. 70.     On 24 April 2017 the governor of Viru Prison amended the rules by inserting in subsection 2.3 that smoking was banned on the premises. That ban entered into force on 1 October 2017. At the same time, section 12 of the rules was repealed. 71.     The explanatory memorandum to the house rules stated that the ban was aimed at protecting the health of prisoners and prison staff (including by helping prisoners to overcome addiction), ensuring prison security and guaranteeing the efficient use of public resources. In essence, the same reasons were given as those outlined in the explanatory memorandum to the draft regulation amending Regulation no.   72 of the Minister of Justice on the Internal Prison Rules.       Relevant domestic administrative practice 72 .     According to the Government, the scheme “Creating a tobacco-free environment in prison” was launched in 2009. The objective of a completely tobacco-free prison environment was set in 2016, and relevant information leaflets were distributed in prisons. 73 .     According to a leaflet from Viru Prison, the scheme offered the following incentives to prisoners wishing to quit smoking before the complete ban on smoking entered into force, as part of an incentive programme that ran from 16 May 2016 to 1 October 2017: (i) individual or group counselling, if necessary; (ii) the opportunity to borrow relevant literature, during the period concerned; (iii) additional fruit with dinner for non-smoking prisoners; (iv)   the possibility of buying an extra 1kg of fruit and vegetables when at the shop; and (v) the opportunity to attend a cinema evening once a month.     Opinions of the Chancellor of Justice 74 .     In 2015 the Chancellor of Justice (see paragraph 45 above) gave her opinion on a draft law being prepared by the Ministry of Social Affairs which, at the time, proposed amending the Tobacco Act ( tubakaseadus ) by introducing a complete smoking ban in prisons. This proposal was later excluded from the draft law submitted to the government and to Parliament. 75 .     In that opinion the Chancellor of Justice considered that such a ban would interfere with the right to self-realisation under Article 19 of the Constitution. She stated that from the prisoners’ perspective, smoking was not only an unhealthy habit but also an activity that relieved stress and helped fight boredom. She stated that a total ban on smoking could be disproportionate and therefore unconstitutional. She added that the security risks posed by smoking in prison (noting that smoking was banned indoors anyway) could not be compared to those posed by alcohol or narcotic drugs. She added that those at liberty – as long as the risk of passive smoking to third parties was contained – were generally free to decide whether or not to damage their health by smoking. 76 .     The Chancellor of Justice noted that, even with the ban in force, there was a risk that illegal tobacco products would still enter prisons and be consumed in unauthorised places. She also pointed to the risk that banning tobacco products could – in the specific closed environment of prisons – lead to illicit trade and trigger tensions and the settling of scores among prisoners. Furthermore, it was not clear whether and how a ban on smoking in prisons would contribute to the overall aims of imprisonment (rehabilitation and reintegration into society), given that smoking was not considered a risk factor for criminal behaviour and was not generally prohibited. In the Chancellor of Justice’s opinion, the State did not have an unlimited prerogative to impose its understanding of a healthy lifestyle on prisoners. 77 .     In 2016 the Chancellor of Justice, giving her opinion on the draft regulation amending Regulation no. 72 of the Minister of Justice on the Internal Prison Rules, essentially repeated her above-mentioned position expressed a year earlier.    Relevant domestic case-law 78 .     In judgment no. 3-3-1-6-14 of 28 February 2014 the Supreme Court noted that a prison’s inability to ensure compliance with the ban on smoking in prison cells could result in a violation of prisoners’ rights. The prison could not limit its role to merely imposing the smoking ban, but had to also ensure that it was respected. Smoking had to be prevented on the prison’s own initiative, regardless of any complaints from prisoners. If necessary, the prison had to place smoking and non-smoking prisoners in separate cells. The Supreme Court reasoned that keeping a person against his or her will in a room where smoking took place amounted to unlawful infliction of health damage and gave rise to a right to compensation. The Supreme Court also referred to the Court’s case-law, according to which placement of a non-smoking prisoner in the same cell as a smoking prisoner had been found to constitute a violation of Article 3 of the Convention. 79 .     In judgment no. 3-3-1-30-14 of 22 May 2014 the Supreme Court emphasised that it was common knowledge that passive smoking was harmful to health. However, it was generally complicated, if not impossible, to prove health damage caused by passive smoking, since its effects were individual and built up over time. Against that background, the existence of health damage had to be presumed. The Supreme Court found that it was degrading to place a person in a situation where they were forced to inhale smoke. It was not lawful to force a prisoner to choose between not exercising his right to spend time outdoors or tolerating smoking in the exercise cubicle. Referring to the provisions of domestic law concerning the measures offered to help prisoners quit smoking, the Supreme Court concluded that it was contrary to their aim if a prisoner who had already quit smoking had to share an exercise cubicle with those who smoked there.      Relevant international material    United Nations Standard Minimum Rules for the Treatment of Prisoners 80 .     The relevant parts of the United Nations Standard Minimum Rules for the Treatment of Prisoners (“the Nelson Mandela Rules”), A/RES/70/175, as the global key standards for the treatment of prisoners adopted by the United Nations General Assembly on 17   December 2015, provide as follows: Rule 3 “Imprisonment and other measures that result in cutting off persons from the outside world are afflictive by the very fact of taking from these persons the right of self-determination by depriving them of their liberty. Therefore the prison system shall not, except as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation.” Rule 5   “The prison regime should seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.”    European Prison Rules 81 .     The relevant parts of the European Prison Rules (Recommendation Rec(2006)2 of the Committee of Ministers to member States, adopted by the Committee of Ministers on 11 January 2006 at