The limits of the Health Minister's freedom of expression

Analysis

Sara Gahramanova, the mother of Sabira Valiyeva, who died as a result of cosmetic surgery, has appealed to the Yasamal District Court to hold Health Minister Teymur Musayev criminally liable under special indictment. The reason for the lodging was the minister's comments during his speech in parliament about Gahramanova's daughter, who died during surgery.

T. Musayev noted in parliament that “all her relatives knew that this person was not a medical professional (meaning a person who underwent cosmetic surgery - ed.). The Ministry of Health can be responsible only for medical workers. She has already been investigated by law enforcement agencies. If any person engages in fraudulent activities, be it medicine, engineering, and the likes, the central executive authority cannot be hold responsible”.

S. Gahramanova claims that, despite the minister's sufficient knowledge of the issue, the statements made in parliament do not reflect the real situation. Even though she demanded that the minister be punished under Articles 147 (defamtion) and 148 (insult) of the Criminal Code (hereinafter referred to as the CC), the court refused to take the complaint into consideration. Via court's conclusion, the minister's statements were made not to the detriment of the private prosecutor, but to her advantage. Since there was no element of defamation or insult, the court concluded that the complaint was unfounded.

“Tribunat” has investigated the liability of the minister resulting from his statements and interrelations with freedom of expression.

Freedom of expression is protected by domestic and international human rights instruments. Article 47 of the Constitution, Article 10 of the European Convention on Human Rights (hereinafter, ECHR), Article 19 of the Universal Declaration of Human Rights, and Article 19 of the International Covenant on Civil and Political Rights recognize and protect freedom of expression.

Nonetheless, freedom of expression is not an absolute right, and domestic and international law sets out the framework for restrictions. For instance, Article 10(2) of the ECHR states that “the exercise of these freedoms may be subject to such formal requirements, conditions, restrictions or sanctions as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public order, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the integrity and impartiality of the judiciary.”

Two questions need to be clarified in this context: 

1. Are Minister’s statements within the scope of freedom of expression?

2. Is the sanction imposed on the Minister (as requested by the special prosecutor) considered a restriction that violates freedom of expression?: 

The limitation on the freedom of expression of a public official is linked to matters arising from that individual’s status and authorities. It is a widely accepted principle that public officials inevitably and deliberately subject themselves to close scrutiny of their every word and action by journalists and the general public (Axel Springer AG v. Germany (no. 2), §67).

It is implied that the limits of freedom of expression of the Health Minister Teymur Musayev should be interpreted more narrowly than for other individuals. His comments about the unsuccessful surgical operation reflect information that is inconsistent with the events that occurred, affecting the reputation of the person deceased during the operation and his relatives. The leitmotif of the minister's speech in parliament is that the family of the deceased was aware that the person who performed the operation lacked a medical qualification.

However, Sara Gahramanova, Sabira Valiyeva’s mother, who passed away during operation, is of the opinion that the statements do not express actual circumstances.

It can be assumed that the minister's statement in parliament was intended to deflect criticism from one of the deputies in the healthcare sector. This is further confirmed by T. Musayev's statement that the Ministry of Health is not responsible for these issues at all.

The materials of the criminal case against Ulviyya Ilyasova, who performed the surgical operation that lead to the death of Sabira Valiyeva, show that she did not have the appropriate education and qualifications to perform such medical manipulations. The regulation of private medical activity is a matter within the competence of the Ministry of Health, “Tribunat”, previously discussed the problems in the field of plastic surgery in more detail in one of its analyses. One of the paramount reasons for the chaos in this area is the incompetent activities of the Ministry. Accordingly, the statements made by the Minister of Health were not aimed at analysis and assessment of the causes of the situation, but rather aimed at highlighting the family of the deceased as the root of the unsuccessful operation. Considering the narrow scope of freedom of expression of public officials, Musayev should have been more careful in such statements. Considering the information he had as a minister and the court verdict in the criminal case against Ulviyya Ilyasova, such opportunities existed.

As a side note, according to the court's verdict, U. Ilyasova, who performed the cosmetic surgery that resulted in death, was found guilty under Articles 143 (endangerment) and 314.2 (negligence that caused the death of the victim through negligence) of the Criminal Code and sentenced to three years and two months in prison, with a three-year ban on engaging in activities requiring special qualifications in healthcare institutions.

Articles 147 and 148 of the Criminal Code restrict freedom of expression, sanctioning, in the case of defamation, the sharing of information that a person knows to be false, and in the case of insult, the intentional humiliation in an indecent manner. The common feature uniting both articles is the collective nature of the opinions expressed.

As mentioned above, domestic and international legislation provides several grounds for restricting freedom of expression. The most relevant ground for the case under analysis is the protection of the reputation and rights of others.

Article 6 of the Law “On Access to Information” lists a number of principles for obtaining information. One of these principles is “the non-prosecution of officials for disclosing information about violations of the law of public interest.” Nevertheless, the attempt to bring Minister Teymur Musayev to justice through special prosecution can be interpreted not as a result of disclosing information of public interest, but as a result of the possibility of defamatory content in the statement.

“Tribunat” concludes that the opinions of officials, which are subject to freedom of expression, should be interpreted narrowly and the effects of their opinions on public life should be taken into account. In this sense, in order to cover up the negligent and naive approach of his ministry, Teymur Musayev, despite being aware of the actual reality, points to the deceased person and her family as the main cause of the incident, stating that she was aware of the lack of medical qualifications of the person performing the operation. Domestic and international legislation recognizes the possibility of restricting freedom of expression to protect the reputation and rights of others. The provision of accurate information by public officials is a value that needs to be protected in a democratic society. It makes governance transparent and accountable. The emergence of a conflict with this value can be interpreted as a circumstance justifying interference with freedom of expression.