In 2017, a smoking ban was introduced in Danish prisons and detentions. In several detentions and closed prisons inmates are locked in for up to 23 hours per day. The only time inmates can smoke are when the staff follows them outside to smoke. The smoking ban was instituted to avoid exposing staff and fellow inmates to passive smoking. If a prisoner violates the smoking ban, he or she will be punished disciplinary. The punishment is up to five days in solitary confinement. This article discusses whether the smoking ban interferes with the basic human rights of prisoners, as expressed by the European Convention on Human Rights (ECHR). The smoking ban in Danish prisons is then compared to the rules governing residential homes, to examine whether it violates the principle of equal treatment. Finally, the article discusses whether the penalty for violating the smoking ban is proportional to the purpose of the ban on smoking. The article concludes that prisoners right to smoke in their cell is probably not covered by Article 3 of the ECHR but by Article 8, because the smoking ban is not proportionate nor necessary, since the previous set of rules met the same purpose but with far less intrusive means. In addition, the smoking ban likely constitutes discrimination against inmates, cf. ECHR Article 14, in conjunction with Article 8, as residents of residential homes can smoke in their accommodation.
|Journal||Nordisk Tidsskrift for Kriminalvidenskab|
|Number of pages||20|
|Publication status||Published - 15. Apr 2020|