(Feb. 4, 2020) On October 30, 2019, Finland’s Deputy Ombudsman issued Decision 5349/2019, in which it criticized the smoking prohibition provision of the Finnish Prison Act as ambiguous and called for its review.
In 2015, the Finnish Parliament passed legislation allowing for (but not requiring) prohibitions on smoking (including e-cigarettes) in residential quarters at Finnish prisons. (7 kap. 6a § Finnish Prison Act (23.9.2005/767).) The law requires that if smoking is prohibited in the residential quarters, inmates must be given another opportunity to smoke. The purpose of the ban was to limit the prison staff’s exposure to passive smoking. When the measure passed in 2015, Finland hoped to make Finnish prisons smoke-free by 2020.
In 2018, Helsinki Prison implemented rules whereby prisoners could smoke only in special designated areas three times a day, and not more than six cigarettes in total. More than 100 inmates complained to the Parliamentary Ombudsman that this limitation violated their rights and caused them to experience withdrawal symptoms because they had to go for more than 14 hours without smoking. (5349/2019 at 1.) The Parliamentary Ombudsman, which oversees the legality of actions taken by the prime minister, the government, and the president, is charged with inspecting prisons to determine how inmates are treated. (5 § Act on Parliamentary Ombudsman (14.3.2002/197).)
The Deputy Ombudsman found that, “[w]hen 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.” Under the Helsinki Prison rules, inmates were allowed to smoke only in designated places three times a day, and smoking areas were made available only between 8 am and 6 pm on weekends. (5349/2019 at 1.) The Deputy Ombudsman found this was far less what a person could smoke outside of prison and that a “significant restriction on smoking,” which in this case was imposed through an order of the Central Administration Unit for Criminal Sanctions Agency, must be specified in the law. Therefore, the Deputy Ombudsman proposed that the Ministry of Justice clarify and specify the intent of the law and propose an amendment. Moreover, the Deputy Ombudsman informed the Central Administration Unit that “significant restrictions [on] the number of smoking breaks cannot be imposed by an order issued by [a government authority] and that the law in its present form does not otherwise enable a substantial change in the possibility to smoke.” The Deputy Ombudsman did not reprimand Helsinki Prison for limiting the times an inmate could smoke, as it was only complying with the Central Administration Unit’s order specifying three smoking breaks. The Deputy Ombudsman noted that it was not clear that the order was a direct violation of the prisoners’ right to smoke, because the law was ambiguous on how often inmates must be allowed to smoke.
The Deputy Ombudsman found that because the public authorities prevented the inmates from smoking and thereby caused them to suffer withdrawal symptoms, it would be “justified for nicotine substitutes to be made available to [inmates] at the prison’s expense for as long as the symptoms persist.”