IPN correspondence: The closer we come to the date of May 31, 2016, when the bans on smoking in public places and at the workplace take effect, the higher is the number of people who ask themselves why the law only bans smoking, but does nor stipulate where smoking is possible. The answer given by a group of experts is: “Because a law cannot lay down norms for regulating a vice”.
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Experts say that the laws in Moldova are adopted based on the constitutional norms. The Constitution provides that the right to health protection is one of the basic human rights. There are no constitutional provisions that would lay down norms for regulating such vices as smoking and alcohol abuse. The state must adopt and implement only legislative, executive and administrative measures that will protect the population from exposure to cigarette smoke and cannot set out rules that would regulate harmful habits. Consequently, the criticism leveled at the Law on Tobacco Control for the fact that this does not specify the places where smoking is possible is unfounded and is aimed only at undermining the efficiency of the law, said Ghenadie Turcanu, programs coordinator at the Center for Health Policy and Research (PAS Center).
International regulations in case of collision of rights
According to jurist Olga Batca, projects coordinator at the Resource Center for Human Rights (CReDO), the provisions of the Law on Tobacco Control place restrictions on the smokers’ right to smoke in closed public areas given the preeminence of the rights to life and health and to a safe environment. The superiority of the right to health and the preoccupation with preventing tabacism, especially among minors, derive from the European Convention on Human Rights’ Article 9, par. 2, Article 11, par. 2 and Article 2 of Protocol No. 4 to the Convention and the ECHR’s case law, according to which the limitation of particular rights and freedoms is possible by law, on condition there is a legal justification such as the coordination of divergent interests, in case of the collision of rights, the balance inclining in favor of the public interest for protecting the public health, as provided in Article 36 of the Constitution.
Consequently, the regulation restricts particular subjective rights by setting a restrictive regime for exercising them. That’s why the Law on Tobacco Control and the Contravention Code ban smoking only in particular places, which are specified, and the norms are interpreted ad litteram.
Norms are not aimed against smokers; they specify places
The new package of anti-smoking laws adopted by Parliament on May 29, 2015 connects the correlations between limitations, precise regulations and penalties so that they together protect the children and the largest part of Moldova’s population (75%) that does not smoke from exposure to cigarette smoke. The legal norms are not aimed against smokers. They only specify the areas where smoking is banned, stated Ghenadie Turcanu, of PAS Center.
The law provides that the places where smoking is banned should be marked with the common ”No smoking” sign– a smoldering cigarette in a red circle crossed by a transversal red line – which can be accompanied by the warning “Smoking is banned. Smoking in rooms /areas /public transport is against the law”. The law also clearly stipulates that the common ”No smoking” sign is placed at the entrance, in the most visible place, in rooms /areas /public transport, not in places were the sign cannot be seen by visitors/clients, etc. Consequently, the employers, central and local public authorities must ban smoking all over the administered area, by placing the warning: “In this building / institution / unity, smoking is fully banned starting with May 31, 2016”. Also, the owners of restaurants, bars and cafes must place the common ”No smoking” sign on the entrance door or at the entrance, in the most visible place. These rules are needed to inform the clients about the fact that smoking there is banned the moment they enter the place. It is not allowed putting ashtrays and/or other smoking accessories in the mentioned places as these promote smoking, which is banned by law.
What the law does not ban is allowed
At the same time, the law does not ban smoking in open or semi-open places (terraces, etc.) of public eating places. The only condition is for the area where smoking is allowed to be at least 10 meters from the entrance door or open windows and air vents. If this rule is not respected, the smoke will enter the rooms and will pollute the air that the clients and employees will have to inhale, said Ghenadie Turcanu.
More than alarming situation
A study carried out by the National Public Health Center in concert with the Cancer Roswell Park Institute of the U.S. revealed that in the public eating places in Chisinau where smoking is allowed everywhere, the employees and clients have to inhale polluted air with particulate matter PM2.5, which is 19 times higher than the norm set by the World Health Organization. This happens also in places where there are smoking and nonsmoking areas and where air pollution exceeds the WHO norm 13 times and 6 times respectively. Thus, the only method of protecting the health is to ensure smoke-free public places and workplaces, said Galina Obreja, Doctor of Medical Sciences of the School of Public Health Management.
Passing confusion
“If the concerns about the legislative shortcomings that do not allow implementing the Law on Tobacco Control are not fueled by the tobacco industry or those who lobby for it, I can conclude that the public administration authorities responsible for preparing the implementation of the law have yet a lot to do,” said Ghenadie Turcanu. According to him, the given fears can be deriving from the coming into force of the penalties stipulated in the new law that can be applied to the provisions from the old law. However, the penalties cannot be applied to norms that haven’t yet taken effect. This discrepancy will yet disappear on May 31, 2016, when the bans on smoking come into force. For this reason, the State Public Health Surveillance Service, which is responsible for the imposition of almost all the penalties on smoking in closed public places and at the workplace, hasn’t yet started to impose penalties.
Oga Batca, of the CReDO, shared this opinion. She said that the gradual coming into force of particular provisions was agreed with representatives of the tobacco industry and business community so as to allow using up the cigarette packs with old package and offer the restaurants and other public places time to adjust themselves. For example, a terrace can be laid out during a particular period of time as the law allows smoking in semi-open and open places.
State institutions in preparation
According to the information published on the website of the National Public Health Center, the Ministry of Health started to implement the law last December by strengthening the capacities of the State Public Health Surveillance Service, which will monitor the implementation of the law, by training representatives of the business community who must implement the law and by working out informative materials to help owners and managers of closed places and workplaces to implement the law.
Elena Nistor, IPN
