Slovakia: The Right to Life and the Protection of Non-Smokers in Slovakia

Slovakia is a wonderful and unique country and is deserving of urgent action by its leaders to protect its people of outstanding beauty and charm from the greatest threat to their health and well being in the 2000s – tobacco. The incentive for urgent action by the government is that there is now a body of overwhelming evidence that suggest that its failure to take proportionate and effective action to stop the preventable death and disease caused by direct smoking and in particular, environmental tobacco smoke contamination, may make it criminally liable and also responsible for the compensation of those negatively and/ or fatally affected by its default.

In the foregoing context, it is hoped that this article will be of some assistance to the government in its health protection campaign for non-smokers and to be of comfort to those who were not aware that their right to life and health was enforceable in the context of damage to themselves through lethal environmental tobacco smoke contamination.

According to Article 2 of the European Convention on Human Rights (ECHR), everyone in Slovakia has a right to life which right must be protected by law. Article 13 of the Convention also provides that everyone here has the right to an effective remedy in law. In the context of the foregoing Article 11 of the Slovak Constitution provides that ‘….international treaties on human rights and basic liberties that were ratified by the Slovak Republic and promulgated in a manner determined by law take precedence over its own laws, provided that they secure a greater extent of constitutional rights and liberties’. Slovakia is a full signatory to the European Convention on Human Rights (ECHR) and its protection is not only available to citizens, but to anyone living in Slovakia whose rights have been violated.

Therefore, by nil, or ineffective protection of non-smokers from the deadly effects of environmental tobacco smoke contamination, the Slovak government risks successful challenge in the European Court of Human Rights in Strasbourg from those here who feel that their human rights have been violated in that they are denied adequate protection of their lives from the effects of environmental tobacco smoke and also from an effective legal remedy in that respect.

In that respect, this article will show that:-

1. Passive smoking causes death, or serious damage to the health of non-smokers
2. No proportionate and effective action is being taken by the Slovak government to prevent this serious threat to health of those living in Slovakia.
3. Passive smokers have a remedy in the European Court of Human Rights which enables them to achieve compensation for health impairment, or death caused by the government’s default.

The legal issues facing the Slovak government from non-smokers and environmental tobacco contamination concerns the right of non-smokers to:-

1. the enjoyment of public places without having to endure inhaling other’s smoke and thus risking death, or alternatively a seriously impairment of their health
2. not have their clothes and bodies contaminated with tobacco smoke from a visit to a restaurant, or bar
3. have the law adequately enforced so that there is effective segregation of smokers from non-smokers in bars and restaurants so that non-smokers are not contaminated by environmental tobacco
4. babies yet to be born to enjoy protection from deadly environmental tobacco smoke
5. be able to win significant damages against those who cause them harm, or death through environmental tobacco contamination
6. to to be protected from such harm, or death in accordance with the constitution and human rights law per the ECHR.

With respect to the criminal liability of those who cause, or permit damage to non-smokers by environmental tobacco smoke contamination, non-smokers will take comfort from a landmark case. In 2002, in Milan, two bank managers of a leading bank were convicted of criminal manslaughter for causing the death of a 35-year-old female bank worker who suffered a fatal asthmatic attack from exposure to secondhand tobacco smoke on the job. They were sentenced to spend three months in jail, and to pay a fine of 50,000 Euros.  The decision also opened the door for a civil wrongful death lawsuit by her heirs to recover damages for causing her death by smoke.

Passive, involuntary or second-hand smoking occurs when a non-smoker breathes "sidestream" smoke from the burning tip of the cigarette and "mainstream" smoke that has been inhaled and then exhaled by the smoker.  This kind of smoke (environmental tobacco smoke - ETS) is now recognised as a major source of indoor air pollution. The Environmental Protection Agency (EPA) in the USA has classified environmental tobacco smoke (the smoke which passive smokers breath in) as a class A (known human) carcinogen in the family of asbestos, arsenic, benzene and radon gas.

In the progress of daily life in Slovakia, there is a widespread feeling that smoking protection laws are not being enforced. Active smokers are allowed a free rein in proliferating environmental tobacco contamination in public places and objecting non-smokers are treated as cranks and busybodies by active smokers and facility owners as well. Many non-smokers avoid bars, restaurants and other such places, which permit an abundance of tobacco environmental pollution. Slovak smokers of all ages appear ignorant of the serious risk to their health posed by smoking and overt and discreet advertising promotes the image of smokers as trendy, or ‘macho’. Teenagers can be seen in bars, smoking one cigarette after another, hopelessly addicted to the one of the most toxic, addictive and damaging drugs we as human beings have ever inflicted on each other.

From my own researches and observations a feeling of helplessness and despair may be discerned in non-smokers in Slovakia. Many complain that whilst they do not wish to interfere with the rights of smokers to smoke as much tobacco as they wish, if it only fair that non-smokers should not have to endure the same consequences to their health (or worse) as smokers by way of non-smokers’ involuntary inhalation of the potentially deadly tobacco smoke pollution in their environment caused by smokers in bars, restaurants and other public places.

Visitors from developed countries, especially the West are appalled by the high incidence of smoking in Slovakia and the apparent inertia from the government to take effective action to protect its smoking and non-smoking inhabitants. Although there is enough evidence worldwide (of which the government is aware) that breathing other people's smoke (passive smoking) causes death, the measures to protect non-smokers in comparison here are sluggish and ineffective.

The US Health Department concedes that secondhand tobacco smoke (passive smoking) kills more than 60,000 Americans each year — more than those killed in by motor vehicle accidents yearly.  Tobacco smoke pollution at work is responsible for a large number of these deaths. In the UK a recent government study concludes that 3 people each day die from the effects of passive smoking at work and per year, about 600 lung cancer deaths and up to 12,000 cases of heart disease in non-smokers can be attributed to passive smoking.

In addition, the recent report of the UK government's Scientific Committee on Tobacco and Health (SCOTH) is conclusive that passive smoking is a cause of lung cancer. Long-term exposure carries an increased risk of 20-30%. The report confirms that passive smoking is a cause of deadly heart disease, serious lung damage, asthmatic attacks, middle-ear disease in children and sudden infant death syndrome. The study found that tobacco specific carcinogens are found in the blood and urine of non-smokers contaminated by environmental tobacco smoke.

Further, the effect of passive smoking with respect to cardiac disease was studied by Ichiro Kawachi of the Harvard School of Public Health, who followed 32046 healthy, non-smoking women enrolled in the nurses health study for a period of 10 years (Circulation 1997;95:2374-9). Healthy, non-smoking women who were regularly exposured to passive smoke at home or in the workplace had a 91% greater relative risk of heart attack than those who had low passive smoke exposure. Those with occasional exposure had a 58% greater relative risk.

The potentially lethal effect of environmental tobacco smoke pollution can be worked out from its constituents: generally, tobacco smoke has over 4000 chemicals comprising particles and gases. Research findings show that toxic gases are greater in side stream smoke than in mainstream smoke. Around 85% of the smoke in a room is from side stream smoke. Particulates in the smoke include tar, nicotine, benzene and benzo(a)pyrene. Gaseous substances comprise: carbon monoxide, ammonia, dimethylnitrosamine, formaldehyde, hydrogen cyanide and acrolein.  Most of these are known irritants and the majority are known, or suspected cancer-causing substances (carcinogens).

These include: eye irritation, headache, cough, sore throat, dizziness and nausea. Those suffering from asthma experience a worsening of their condition when exposed, while new cases of asthma may be caused in children whose parents smoke.   Even short-term contamination by tobacco smoke has the effect of reducing heart blood flow – this is measurable after about only 30 minutes. Over a longer term, passive smokers suffer a wide range of smoking-related diseases.  In addition, passive smokers in the home have a 25% increased chance of heart disease and lung cancer. This is supported by the recent review by the UK Government-appointed Scientific Committee on Tobacco and Health (SCOTH) (quoted above), which concluded that passive smoking is a cause of lung cancer and serious heart disease in adult non-smokers and a cause of respiratory disease, cot death, middle ear disease and asthmatic attacks in children.   The International Agency for Research on Cancer (IARC) noted that  "the evidence is sufficient to conclude that involuntary smoking is a cause of lung cancer in never smokers". As such there is enough reputable scientific evidence worldwide to support a view that passive smoking kills.

Again, the UK is a good reference point. Almost half of all children in the UK are exposed to tobacco smoke at home. The position is increased in Slovakia. In children this kind of contamination increases the risk of lower respiratory tract infections such as bronchitis, pneumonia and bronchiolitis. In that regard researches have shown that in homes where both parents smoke, children have a 72 per cent increased risk of lung diseases. In addition, passive smoking causes a deterioration of lung function and the increased severity of asthma symptoms in children. In that regard, it is a principal risk factor for all new cases of asthma in children. Passive smoking has also been associated with middle ear infection in children, heart impairment and behavioural problems.

Young children of smoking parents tend to be admitted to hospital for bronchitis and pneumonia in the first year of life.  In the UK, more than 17,000 children under the age of five are admitted to hospital every year because of the effects of passive smoking. There are no statistics available for Slovakia. Passive smoking during childhood has been found to be a major contributing factor in children developing chronic obstructive airway disease, mental defects, eye and ear impairment and cancer.   

Here are some interesting statistics on smoking in Slovakia. In the mid-90s here, tobacco-attributable mortality was estimated to have been about 9,500 deaths (8,700 men; 800 women). This has increased by around 10% since then. Surveys in 1995 showed that tobacco was estimated to have caused about 27% of all male deaths, and about 4% of female deaths. Now the estimates suggest an increase to 35/ 40%.

By comparison, in 1975, about 5,800 people were estimated to have died from smoking (13% of all deaths), 5,500 of whom were men (22% of male deaths), and 300 were women (1% of female deaths). Tobacco is estimated to have been the cause of half of all male cancer deaths in 1995. In 2003 this figure is estimated to be two-thirds.

The Slovak government serves to protect non-smokers by forbidding smoking during all indoor meetings and conferences and in all hospitals, schools, cultural and sports premises. It is also forbidden in all public transport and in all restaurants during main meals, with the exception of those restaurants, which have separate rooms for smokers. However, these laws are not enforced and even if they were (see below) enforcement would be unlikely to provide a real deterrent for the violators. In particular the situation in restaurants and bars remains generally unregulated.

Having regard to the serious effects of environmental tobacco contamination, the punishment offered to violators fall far short of being effective. Please see the table following. A smoker violating a smoke-free zone risks a fine of SKK 500, which is approximately 50% less than that for evasion of fare in public transport. Again, inspection authorities, have no protection, or support by law for the enforcement of the ‘protection’ laws. As far as the writer is aware, there have been no prosecutions against violators in recent times.¹

Tobacco products manufacturer Philip Morris in a recent report to the Czech government to justify the relaxation of smoking restrictions claimed that smoking is economically beneficial to a country's finances. That is because the Czech government saved about USD147 million in 1997 through the deaths of smokers who did not live to use healthcare or housing for the elderly. That and revenues from tobacco tax, it is clear that smoking is good for government finances and some say this contributes to the apparent inertia from the government to seriously regulate smoking.

European Union, World Health Organisation researches confirm that tobacco consumption is a leading cause of death in the world. Every year, 4 million people die directly from the results of smoking and this figure is rising from year to year. The world has around 1.25 billion smokers. Women and young persons smoking is on the increase and the average age of smokers is falling year by year. 70% of tobacco-linked deaths projected over the next few years will occur in the developing countries – seen by cigarette manufactures as ripe targets for this kind of exploitation by reason of ignorant masses and irresponsible governments.

In Central Europe the situation has reached crises proportions. Twice as many Central European as Western European men at ages 35 - 69 die of tobacco-related diseases and those killed by tobacco in middle age lose an average of 20 - 25 years of life! In that regard, life expectancy for men in Central Europe has been decreasing since 1975, and the cancer rate has been increasing. Rates of lung cancer in the region are now the highest in the world with tobacco being the main cause.

In Central Europe, of every 10 men aged 35, 5 will die before age 70 and 40% of these deaths will be from tobacco. In contrast, in Western Europe of 10 men aged 35, 3 will die before age 70, and only a third of these deaths will be from tobacco. Here is the problem, cigarette smoke contains nicotine, which is addictive, but also contains about 4000 other known chemicals, which collectively cause an extraordinarily wide-range of diseases - cancer of the mouth, throat, lung, oesophagus, stomach, pancreas and bladder; heart attacks, strokes, stomach ulcers, and arterial destruction, plus emphysema and other respiratory diseases. A few conditions such as Parkinsonism, and possibly endomental cancer, may be made less likely by smoking, but tobacco causes 100 times as many deaths as it may possibly prevent. Also, tobacco exacerbates the dangers from other factors such as diabetes, radon exposure, environmental pollutants, high blood pressure or cholesterol. Furthermore, tobacco has now been proved to harm, or kill the non-smoker.

According to Professor Peto, an Oxford University Medical Statistics specialist, smoking is not often seen as a direct and fatal threat to health due to the long delay between cause and fatal effect. For example, the risk of lung cancer - the main cause of death from tobacco - is higher among those who started before 20 than among those who started later on. Therefore a large and persistent increase in cigarette use of young people tends to have its full fatal effects in their middle age. For example, Professor Peto points out, in the United States, the large increase in cigarette use in men between 1915 and 1945 led to a fivefold increase in lung cancer deaths in men between 1945 and 1985. This pattern of tobacco consumption followed after a delay of several decades, by a significant increase in lung cancer deaths has already been seen in the developing countries of Central Europe. However, there are lessons to be learned from the US experience – there the Surgeon General has estimated that in 1985 tobacco caused around 20% of all US deaths. Smoking is now the number 2 killer of people in the USA.

Website of the European Court of Human Rights: www.dhcour.coe.fr

Council of Europe: www.europa.coe.fr

Lestrade, et. al English & Slovak Business Law. 1^st Edition. Yorkhill, 2003 (manuscript).

Death From Tobacco in Central Europe (1995) - by Richard Peto, Professor of Medical Statistics, University of Oxford, UK (published on the internet)