Overrelying on the principle of criminalisation? Vainik and others v Estonia and the human right to smoke

In November 2025, the European Court of Human Rights (ECtHR) held that inmates should not be prohibited from smoking in prison, pursuant to Article 8 of the ECHR. A small number of inmates brought the case against Estonia, after the Estonian Supreme Court (Riigiohus) declared that the complete ban on smoking in prisons was constitutional. The ban had been brought into force through Regulation no. 72 of the Minister of Justice on Internal Prison Rules (Vangla Sisekorraeeskiri) as an amendment of part of the Imprisonment Act (Vangistusseadus). According to the ECtHR, while the infringement had been made in accordance with the law, and the aim of protecting other inmates and prison staff from the dangers of second hand smoke was legitimate, the Estonian Government had ultimately exceeded their margin of appreciation by implementing a total ban, which failed to appropriately account for inmates’ right to make choices pertaining to their own personal health. This commentary considers the implications of this decision in light of recent ECtHR case law. It argues that the decision reveals the tendency of the Court to overrely on criminalisation in its reasoning, and represents an expansion of the scope of Article 8 in relation to previous rulings concerning vice.