According to Deputy-Ombudsman Pasi Pölönen, more precise regulation is required concerning smoking bans in prisons. Any lack of clarity in regulations should be urgently rectified because the health of personnel working in prisons and of prisoners who do not smoke must be safeguarded.
Well over 100 prisoners submitted a complaint to the Parliamentary Ombudsman stating that prisoners were forbidden to smoke in their cells and that prisoners could only smoke when they are taken out to smoke three times per day.
The law permits smoking to be forbidden in prisoners’ residential quarters. However, the law requires prisoners to be provided with the opportunity to smoke in a designated space or by other arrangements if smoking is not allowed in the residential quarters.
According to the Deputy-Ombudsman, the law is not sufficiently precise with regard to the practical meaning of the ‘opportunity to smoke’. Three smoking breaks per day is very little compared with the opportunity that prisoners had to smoke before smoking was forbidden. When the law was enacted, it was not made apparent that the opportunity to smoke would be substantially reduced – instead, the intention was to arrange for smoking to take place elsewhere than in the cells. Three smoking breaks is also starkly different from the opportunity that usually exists to smoke outside prisons. The case concerning the restriction on prisoners’ smoking was not addressed by the Constitutional Law Committee, although smoking bans are a matter of basic rights, which the Constitutional Law Committee has assessed in many other statements it has issued. The Deputy-Ombudsman stated that when the law was enacted, it was not intended to give rise to restrictions as stringent as in Helsinki Prison – instead, the intention was for smoking to remain more broadly possible.
The restriction on the number of times prisoners are able to smoke – three times per day – is based on an order issued by the Central Administration Unit of the Criminal Sanctions Agency. According to the law, the Central Administration Unit may issue more detailed orders concerning the arrangement of smoking. However, a significant restriction on smoking cannot be decided solely by an order from the authority. If an entity aims to enforce such a restriction, the matter must be regulated more precisely by law.
The prisoners were only allowed to smoke two cigarettes per smoking break, a restriction which Helsinki Prison decided upon itself. Helsinki Prison acted incorrectly in imposing such a restriction. The Prison has already revoked the restriction as the Central Administration Unit found it unlawful.
Restricting smoking may have led to withdrawal symptoms and required the use of nicotine substitutes. In the Deputy-Ombudsman’s opinion, when the public authorities prevent smoking in a way that may lead to prisoners suffering from withdrawal symptoms, it is justified for nicotine substitutes to be made available to prisoners at the prison’s expense for as long as the symptoms persist.
The Deputy-Ombudsman proposes to the Ministry of Justice that the regulations be made more precise. The Deputy-Ombudsman will inform the Central Administration Unit that significant restrictions to the number of smoking breaks cannot be imposed by an order issued by the authorities and that the law in its present form does not otherwise enable a substantial change in the possibility to smoke. However, as the law is highly ambiguous, the Deputy-Ombudsman did not deem it justified to reprimand Helsinki Prison for complying with the Central Administration Unit’s order concerning the three smoking breaks.
Deputy-Ombudsman Pasi Pölönen’s decision 5349/2019 is available in Finnish on the Ombudsman’s website www.oikeusasiamies.fi
For more information, please contact Principal Legal Adviser Anu Rita, tel. +358 9 432 3362.