Smoke without rules: how to stop neighbors from smoking and not go to lynching
Tobacco smoke entering apartments from neighboring windows and balconies remains one of the common but intractable household problems of residents of apartment buildings, experts told Izvestia. Formally, the legislation protects the right of citizens to a favorable living environment, but there is currently no direct ban on smoking on balconies or at open windows of their own apartments. As a result, conflicts between smokers and non-smokers are increasingly spilling over into the courts, where the outcome of cases depends on evidence, expertise, and complex legal conflicts. Izvestia found out how to call a smoker to account.
Is it legally possible to force a neighbor to stop smoking
The definition of the Supreme Court of the Russian Federation No. 67-KG17-16 says that the current legislation allows compensation for moral damage for violation of a citizen's rights in the field of health protection from exposure to ambient tobacco smoke and the consequences of tobacco consumption.
"Citizens living in a residential building have the right to a favorable environment, free from the effects of tobacco smoke and any consequences of tobacco consumption caused by the smoking of neighbors," the Supreme Court of the Russian Federation ruled.
In other words, you can smoke indoors, but only in such a way that cigarette smoke does not go beyond its limits and does not cause inconvenience to neighbors. But in practice, it is extremely difficult to prove a violation and reach a verdict in your favor.
"The situation with neighbors smoking on balconies or from windows is a classic example of a legal conflict where the interests of one homeowner clash with the rights of another," said Evgeny Zharov, head of the Russian Bar Association's Commission on Ecology and Managing partner of the Zharov Group Law Firm.
The main difficulty, according to him, is that federal law No. 15-FZ does not directly prohibit smoking in a private apartment or on a balcony, referring them to a private space. However, this does not mean that a smoking neighbor has the right to poison the lives of others with impunity, the lawyer noted.
The protection of the rights of non-smoking residents in the courts is based not on violating the anti-smoking law, but on the realization of the constitutional right to a favorable living environment and sanitary and epidemiological well-being, he explained.
Experts noted that the fight against smokers in apartment buildings has long been widespread. Formally, the rights of non-smoking residents are violated, but there seems to be no real mechanism for solving the problem, said Anatoly Musienko, an expert at the Federal Assembly.
"As a member of the Association of Veterans of the Interior Ministry and the Police Union, I often come across complaints from citizens where the "smoke aggression" of neighbors causes not only domestic conflicts, but also serious violations of public order," he said.
How to fix violations and prepare for trial
The key problem in most of these cases is collecting evidence. Complaining about the smell of cigarettes alone is not enough. An attempt to prove the very fact of a smell or a single smoke is the main mistake of the applicant, Anatoly Musienko explained.
"The courts side with the plaintiff only when he manages to present not just complaints, but systemic evidence," the expert emphasized.
According to him, the most important role is played not by contacting the police, but by contacting the sanitary authorities. For example, to the sanitary and epidemiological service.
— First of all, you need to complain to Rospotrebnadzor. It is this agency that is authorized to carry out instrumental measurements. If the maximum permissible concentrations of gorenje products are exceeded in an apartment with the windows closed, this becomes reinforced concrete evidence of a violation of sanitary requirements. Without the act of Rospotrebnadzor, the chances of winning the case in court are minimal," the source told Izvestia.
However, the problem is that it is actually very expensive to order and conduct such an examination: it can cost several tens of thousands.
In this regard, it is better to fix the problem comprehensively. The most reliable way, according to Evgeny Zharov, is to start preparing for a civil lawsuit.
— To do this, you need to collect a package of evidence: make video recordings with the date and time on which the smoke source is visible, keep a smoke diary, involve neighbors as witnesses and, ideally, of course, still conduct an independent examination of air quality, - the lawyer recommended.
Marina Artyakova, a lawyer at the Moscow Region Bar Association, has a similar position, recalling that the courts do not accept unsubstantiated allegations.
— The court will not accept statements like "the apartment smells of smoke." We need evidence and medical certificates, and most importantly, an air examination that will confirm the excess concentration of harmful substances," she confirmed.
At the same time, before going to court, it is better to first talk to the smoking neighbors and contact the district police officer, the expert advised.
— Even if he only conducts a preventive conversation, the coupon notification of acceptance of the application will be proof that the problem exists and is not being solved, - explained the interlocutor of the editorial office.
What kind of compensation is realistic to receive
However, even if there is evidence, court decisions in such cases remain ambiguous. Lawyer Vyacheslav Rychkov, in an interview with Izvestia, gave an illustrative example from his practice, telling about a woman from the Krasnoyarsk Territory who filed a lawsuit against two neighbors who smoked daily on the balconies of the floors below, which caused smoke to enter her apartment. The plaintiff asked to ban them from smoking on the balconies and to collect 5,000 rubles each in compensation for moral damage. The court, according to the expert, recognized the right of citizens to a favorable living environment, but could not stop smoking on the balcony.
— The court pointed out that the current legislation does not contain a ban on smoking in residential premises, including balconies. As a result, the smoking ban was refused, but for smoke entering the plaintiff's apartment, the court demanded compensation for moral damage of 5,000 rubles from each neighbor," the source said.
In general, the amounts of compensation for such cases in Russia remain small, the practicing lawyers admitted. Most often they range from 5,000 to 30,000 rubles, Anatoly Musienko said.
"However, the key is not the amount of compensation, but the ability through the court to oblige the defendant to remove obstacles to the use of residential premises in the future," he added.
In particular, if the neighbor continues to smoke after the court decision, an additional pressure mechanism is possible.
— In such cases, a court penalty is applied — an astrent, that is, a sum of money for non-compliance with a court decision. In practice, this often turns out to be a more effective lever of influence than administrative fines," the expert explained.
Despite numerous legal disputes, the legislation still does not contain a direct ban on smoking on balconies of apartment buildings.
Anatoly Musienko explained that the legislator traditionally follows the path of protecting the right to a favorable environment through sanitary standards, rather than direct criminal prosecution of a smoker in his apartment. It is also almost impossible to prove harm to health in such cases. In order to hold a neighbor accountable for harm to health, it is necessary to prove a causal relationship between the disease and the smoke of a particular neighbor, which is practically impossible in the forensic sense, the expert noted.
Nevertheless, in some cases, the court may also consider material claims. For example, for the forced purchase of an air purifier, a breezer or an air conditioner.
— If you have receipts for the purchase of air purifiers or a breezer caused by the need to deal with the consequences of neighborhood smoking, they can be included in the claim as material damage, — Evgeny Zharov advised. — Although in practice, courts more often award compensation for moral damage.
It is also important to take into account that each material claim is paid for. The more a person demands from the defendants through the court, the higher the fees will be.
The inadmissibility of lynching
But attempts to solve the problem by force can have serious consequences, the lawyers warned. It is impossible to block ventilation or communications to neighbors — this qualifies as arbitrariness, Evgeny Zharov emphasized.
"Such actions threaten with a fine and can completely destroy the plaintiff's position in court," he warned.
Such actions sometimes lead to the opposite result, Anatoly Musienko confirmed. For example, for unauthorized disconnection of electricity or gas, a neighbor faces not only administrative liability under Article 7.19 of the Administrative Code of the Russian Federation, but also criminal liability under Article 215.2 or Article 330 of the Criminal Code ("Arbitrariness").
— The fight against smoking neighbors should be conducted exclusively in the legal field: Rospotrebnadzor protocols, bailiffs with a writ of execution banning smoking and collecting a court penalty for each violation. Only such a systematic approach makes it possible to achieve real execution of the court's decision," the expert concluded.
Izvestia sent inquiries to the press services of Rospotrebnadzor, the Ministry of Emergency Situations, the Association of Management Companies, the Supreme Court and the Prosecutor General's Office of Russia. At the time of publication, the editors had not received any responses.
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