Spanish lawyers believe smoking ban in cars can be unconstitutional
The Spanish Ministry of Health said this week that it proposes to increase tobacco taxes, and increase smoke-free places, “before 2023”. These spaces include the terraces of establishments, and private cars.
Some experts in Spanish Law have subsequently questioned the constitutionality of such a move. One such expert is Juan Jose Bestard, who is the president of the Sanitary Section of the Madrid Bar Association. Another is Alberto Dorrego, the same Association’s president of Administrative Law.
Both professionals doubt the “constitutional feasibility” of banning smoking in the car, as well as the other measures proposed in the “Comprehensive Plan for the Prevention and Control of Smoking 2021-2025”.
According to Bestard – a former high-ranking health official – the ban on smoking in one’s own vehicle would have a “complex application”. This, he says, is because “there is legal coverage as long as it seeks to protect the health of passengers”.
“If the passengers are children, then yes, but, there would be no justification for prohibiting a person smoking alone in the vehicle, unless it is appealed that it constitutes a distraction to the driver”, Bestard pointed out.
That would be a different matter, in the same way as eating, or looking at the mobile phone behind the wheel. “But, limiting a smoker’s right to smoke while alone is debatable”, he added.
Prohibiting smoking on terraces is something very different of course. In Bestard’s opinion, “It has the disadvantage that it has to be effective, and at the same time, possible to control”.
In the same vein, his partner Dorrego pointed out, “The sanctioning regulations have to be aimed at protecting the rights of third parties. Then, any sanctioning measure that only aims to protect the subject who is carrying out the action would not make much sense”.
While smokers complain that they might not be allowed to smoke in open spaces such as terraces, those who have celebrated the Health proposal most are family doctors. The Group of Approach to Smoking of the Spanish Society of Family and Community Medicine (semFYC), has asked that the normative and legal process for its real application be, “Within the quickest time period possible”, as reported by larazon.es.