In January, the German Federal Court of Justice caused a minor stir with its ruling on smoking on balconies.
In 2011, a couple moved into a flat with a balcony in the small Brandenburg town of Premnitz, where they preferred to smoke cigarettes. As is so often the case, a couple of staunch anti-smokers lived directly above them, and had done so for over half a century. They regularly used their balcony for relaxation and sunbathing. A neighbourhood dispute was therefore not long in coming.
When attempts to settle the dispute between the feuding neighbours amicably failed, the non-smoking couple sued the smokers, asking the court to ban smoking on the balcony at certain times of the day. The German courts were initially unsure how to handle this case. The non-smoking couple’s claim was dismissed at first and second instance, even though it was backed up by detailed records and photographs.
However, the non-smokers did not give up and the dispute reached the Federal Court of Justice in Karlsruhe. The court ruled that residents who are significantly inconvenienced by cigarette smoke may demand that their neighbours refrain from smoking on the balcony at specific, fixed times. The threshold for this ‘significant inconvenience’ is determined by the perception of an average reasonable person.
The judge at the local court was also instructed to set the ‘reasonable’ times, particularly in summer, during which smokers are not permitted to indulge their habit on the balcony.
How would a Czech court rule?
Firstly, a distinction must be made as to whether the non-smoker lives in a flat, they own or as a tenant. If they own the property, the non-smokers could sue the smoking couple. If, however – as in the German case – they are tenants, the non-smokers would have the option of either enforcing their rights in court themselves or claiming a rent reduction from their landlord, who could in turn bring a claim.
Here too, two conflicting rights would come into play: the right to undisturbed use of the balcony and the right to health protection on the one hand, and the right to smoke on the other.
However, it is easy to imagine that the Czech smoking couple might also feel harassed by the constant documentation of their smoking by zealous neighbours and file a lawsuit against them to protect their personal rights, arguing that they are smoking on their own balcony and no one has the right to photograph or film them.
If the court were to combine both cases into a single proceeding, it might result in a confused and protracted dispute, in which the focus would be less on whether it is permissible to smoke ten or twenty cigarettes a day on one’s own balcony and at what specific times, and more on who has more patience and is less afraid that the court will impose legal costs on them.