Tag: Judicial activism

If you want to see what a “living constitution” looks like, go to Europe. On Tuesday, in Vainik v. Estonia, the European Court of Human Rights ruled that four longtime prisoners in Estonia were due restitution from the state for “weight gain, sleeping problems, depression, and anxiety” caused by not being allowed to smoke in prison.

The decision was grounded on Article 8 of the European Convention on Human Rights. The text of Article 8 doesn’t mention any right to enjoy a cigarette whenever one pleases. Rather, it protects a broad “right to private life,” which the court accused Estonia of violating in the Vainik case. “The Court,” the judges wrote, “was sensitive to the context of the already limited personal autonomy of prisoners, and that the freedom for them to decide for themselves—such as whether to smoke—was all the more precious.” An odd ruling, but perhaps Europe loves its cigarettes that much?