13
of information that brought different perspectives; in other words, a new approach to the
production of news.
67.
Based on the above, it appears extremely important that each State make an
appropriate analysis of its internal communication regulations so that freedom of expression
can be guaranteed and realized in a democratic manner. Accordingly, I will now analyze this
objective in view of the decision to re-establish the RCTV radioelectric spectrum concession.
4.3
The absence of legal grounds to re-establish the RCTV radioelectric
spectrum concession
68.
As identified in paragraph 72 of the judgment, the Venezuelan State has a domestic law
that guarantees a proper administrative procedure. In this way, the function of the Court in
this situation was to ensure that the State implemented its laws effectively, without interfering
arbitrarily in the merits of the concession procedure for its radioelectric spectrum.
69.
Similarly, the re-establishment of the concession, and the return of RCTV’s property and
assets relates, above all, to a right to property that the judgment did not recognize.32 Thus,
the restoration of the concession to RCTV entailed the use of contradictory mechanisms to reestablish democratic normality in the media in Venezuela. In addition, the fact that the Court
understood, in paragraph 174 of the judgment, that the automatic renewal of the RCTV
concession for the use of the radioelectric spectrum in 2007 could not be considered an acquired
right under the laws of Venezuela, is contrary to that this decision Thus:
The dispute between the parties as to which of the two norms, Decree No. 1,577 or the LOTEL, would
be applicable arises owing to the entry into force of the LOTEL in 2000 and, especially, due to the
request to transform the licenses made by RCTV on June, 5, 2002, which was not answered until 2007.
On this point, the Court agrees with the Inter-American Commission that it is not competent to establish
which norm is applicable, particularly when there is disagreement on the interpretation of this matter,
because the Court is not a tribunal of fourth instance. However, the Court considers it necessary to
point out that neither of the two possible interpretations of application of the norms results in a right
to renewal or automatic extension. 33
70.
Having excluded the possibility of talking about an acquired right to automatic renewal
of the concession, it is evident that the proper step to restore the right of the RCTV employees
to the exercise of freedom of the press and of expression could be, for example, by opening a
new concession procedure that guaranteed participation by RCTV and the other candidates in
equal conditions and without discrimination, respecting the provisions of the domestic law in
force.
71.
It would only be reasonable to understand the inverse if it had been possible to prove
that the Venezuelan State had not presented a clear and public intention to cancel the renewal
of RCTV; then RCTV would certainly have obtained a renewal for another term. Since this was
not so, I understand that the measure adopted in the judgment was not supported by the legal
framework of the American Convention and resulted in a situation of inequality in relation to
the other communication companies that wanted a concession on the radioelectric spectrum in
Venezuela. Consequently, there was an unjustified interference that could, in apparent
contradiction, violate the principle of plurality of the press necessary for the democratic system
and firmly defended by this Court’s case law.
72.
Furthermore, the decision to re-establish the concession and the assets to RCTV, as
shown above, does not affect the rights of any of the physical persons who are plaintiffs in this
32
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 359.
33
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 174.
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