ПРАВНИ ПРОБЛЕМИ ПАСИВНОГ ПУШЕЊА
THE LEGAL PROBLEMS OF PASSIVE SMOKING

Summary/Abstract: The central issue (Part I) is whether, and when, the passive smoker has the right to demand the prohibition of smoking, and to impose the legal obligation not to smoke upon the active smoker. There is no basis (Part II) for the thesis that this problem falls into the category of the so-called „legal vacuum”; this relationship can and should be legally regulated. No, this is not really a matter of legal vacuum: the prohibition of smoking in the interest of passive smokers rests on several legal bases. Firstly, on the right to (enjoy) health (III), smoking can be prohibited at the stage when the concentration of smoke in the air begins to provoke the biting of the eyes, headaches, cough etc.. Due to the assumption that passive smoking may also be the cause of cancer, any exposure to passive smoking can be prohibited on the basis of the right to (enjoy) health: in the case of cancerogenic matter there is no maximum of permitted concentration, the risk is always there. Secondly, on the right to individual freedom (including the freedom from harassment) (Part IV), rests the prohibition of smoking which does not result in the mentioned consequences — detriment to health (biting of the eyes, etc.), but harasses the pasive smoker (lack of fresh air, nausea etc.). Certain personal rights and the legally protected interests (leasing, self management rights etc.) (Part V) are the basis for the prohibition of smoking which directly prevents the title-holder from exercising these rights. It is (Part VI) possible to impose obligations (duties) on various factors to take preventive measures (separation of the place of work, air ventilation systems, breaks for smoking, etc.). If measures have not been taken, resulting in detrimental or harassing passive smoking, smoking is prohibited. Proceedings in a civil suit may also be taken (suit for omission-failure, suit for removal).

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