51
125. It has been proved that in July 1997, Mr. Ivcher’s nationality title was
annulled. Based on this act and, pursuant to the legislation that required that
owners of telecommunications media companies should be of Peruvian nationality, in
August 1997, Judge Percy Escobar: a) ordered a precautionary measure that
suspended the exercise of Mr. Ivcher’s rights as majority shareholder and chairman
of the Company and revoked his appointment as a director the Company; b) ordered
that an extraordinary general meeting of the shareholders of the Company should be
judicially convened in order to elect a new board and prevent the transfer of Mr.
Ivcher’s shares, and c) granted the minority shareholders provisional administration
of the Company until a new board was appointed (supra para. 76.s.3).
126. The consequences of the precautionary measure ordered were immediate and
evident: they prevented Mr. Ivcher Bronstein from acting as director and chairman of
the Company, so that he could not continue directing the editorial line of Channel 2;
he was also deprived of the possibility of taking part in board meetings, where the
minority shareholders took important decisions, such as removing the members of
the board, including Mr. Ivcher, appointing new members and even increasing the
Company’s capital; finally, he could not transfer his shares, receive dividends from
them and exercise the other rights that corresponded to him as a shareholder of the
Company.
127. The International Court of Justice has made a distinction between the rights
of a company’s shareholders from those of the company itself, indicating that
domestic legislation grants shareholders specific direct rights, such as receiving the
agreed dividends, attending and voting at general meetings and receiving part of the
assets of the company when selling their shares91. This Court observes that the said
precautionary measure obstructed Mr. Ivcher’s use and enjoyment of such rights;
also, when his wife, as co-owner of her husband’s shares, tried to enforce those
rights, the measures she took were ineffective. Consequently, the Court concludes
that Mr. Ivcher was deprived of his property, in violation of the provisions of Article
21(2) of the Convention.
128. The Court must now determine whether the above-mentioned deprivation was
in accordance with the American Convention. In order for the deprivation of the
property of a person to be compatible with the right to property embodied in the
Convention, it should be based on reasons of public utility or social interest, subject
to the payment of just compensation, and be restricted to the cases and according to
the forms established by law.
129. In the instant case, there is no evidence or argument to confirm that the
precautionary measure ordered by Judge Percy Escobar was based on reasons of
public utility or social interest; to the contrary, the proven facts in this case coincide
to show the State’s determination to deprive Mr. Ivcher of the control of Channel 2,
by suspending his rights as a shareholder of the Company that owned it.
130. Moreover, there is no indication that Mr. Ivcher has been compensated for the
deprivation of the enjoyment and use of his property, or that the measure that
affected him was adopted according to the law. It must also be recalled that, in this
judgment, the Court has concluded that the procedures relating to the restriction of
Mr. Ivcher’s rights with regard to the Company, including the procedure by which
91
Cf. Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 36,
para. 47.
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