According to the court's decision, from now on a Viennese man is not allowed to smoke on his balcony or with the windows open from 8am to 10am, 12pm to 3pm, and 6pm to 8pm between May 1 and October 31, Austrian media report. From November 1 to April 30, he is not allowed to smoke 8am to 9am, 1pm to 2pm, and 7pm to 8pm. Every night, regardless of season, he is forbidden to smoke between 10pm and 6am.
The ruling is unprecedented in Austria.
"For the first time a smoking case has been heard at the OGH [Austrian Supreme Court],"Senate President of the Supreme Court Karl-Heinz Danzl told the Austria Press Agency.
The case was brought to court by a university professor in Vienna who complained about his neighbor one floor down in the apartment building where he lives. The neighbor has a penchant for cigars and smokes one or two each day, either on his balcony in the summer, or inside with the windows open in the winter. The smoking took place mainly at night, the professor said, between the hours of midnight and 2am, and alleged that the smoke from the cigars disturbed him.
The initial ruling by the district court was completely unsympathetic to the smoker, who reportedly had also caused another neighbor to move out after their children developed respiratory problems. It therefore completely banned the cigar aficionado from smoking on his balcony or with open windows. The smoker appealed this, and the appeal ruling granted him the right to smoke between 10pm and 6am. This was, in turn, appealed by the professor, who took his case to the OGH.
Comment: Second hand cigar smoke caused the children to have respiratory problems? Really?!
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The Supreme Court had to consider both sides of the argument and observe a policy of mutual consideration. While the court could not completely ban the man from smoking, the complainant had to be able to use his balcony "without having to adapt to the incalculable smoking behavior of the defendant."
In January 2015, a similar decision was made by the Federal Court of Justice (BGH) in Germany. There the court decided that tenants may be prohibited from smoking anything, not just cigars, in a given window of time. The prohibited time varies on a case-by-case basis.