56
178.
In the instant case, the Commission must determine whether renewal of RCTV’s
concession constituted an acquired right and whether that right was part of RCTV shareholders’ assets.
The Commission finds that, given the uncertainty with regard to the applicable Venezuelan law and its
proper interpretation within the framework of Venezuelan domestic law, one cannot conclude in this
proceeding that RCTV had a vested or acquired right to automatic renewal of its concession. In the
previous section, the Commission established the fact that at the very least RCTV was entitled to
participate, under conditions of equality, in an open and transparent renewal process operated by clear,
objective and non-discriminatory criteria. The Commission observes, too, that while the Court has
developed a broad concept of property, its case law on the subject of acquired or vested rights has been
about those things that directly affect a person’s assets, such as a pension or salary. In the instant case,
while the non-renewal of RCTV’s concession would have an effect on the assets of the station’s
shareholders, it has not been shown that the concession itself was part of their assets. The Commission
therefore concludes that non-renewal of RCTV’s concession did not constitute a violation of RCTV
shareholders’ right of property.
3.
The decline in the value of RCTV shares
179.
The petitioners’ third allegation regarding the right to property concerns the loss in the
value of RCTV shares. They contend that “a share is protected by the right to property” and that in the
instant cases, “the shares, understood as property titles representing the shareholders’ investment, were
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essentially destroyed when, by an unlawful action of the State, RCTV’s capital was destroyed.” For the
petitioners, “the State’s action was intended to unlawfully strip RCTV of its essential asset, without which
it had no raison d’être; for any television broadcaster, its place on the radio electric spectrum is essential
to transmit its signal. To unlawfully destroy the right to the concession will inexorably lead to the
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destruction of the investment represented by the shares owned by the investors-shareholders.”
The
State for its part indicated that "with regard to RCTV corporate shareholders and their economic
damages, these shareholders know that concessions expire, and that in the 50 years during which RCTV
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was operating commercially, its shareholders saw many millions in earnings.”
180.
The Inter-American Court has written that the shares a person owns in a company may
be an asset class protected by Article 21 of the Convention. Thus, in the Ivcher Bronstein case, the Court
wrote that “participation in the share capital could be evaluated and formed part of its owner’s patrimony
from the moment of its acquisition; as such, that participation constituted a property over which Mr. Ivcher
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had the right to use and enjoyment.” Here the Court drew a clear distinction between Mr. Ivcher’s rights
as a shareholder and the rights of the company itself; its analysis was of Mr. Ivcher’s rights as a
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shareholder.
181.
The Commission observes that in the Ivcher Bronstein case, the Court found a violation
of Article 21 based on facts that directly affected the “use and enjoyment” of Mr. Ivcher’s shares.
Specifically, the suspension of Mr. Ivcher’s rights as majority shareholder in his company meant that he
could no longer direct the news line of the media outlet he owned, could not participate in the meetings of
its board of directors, and could not transfer his shares, receive dividends or exercise other rights to
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which he was entitled as a shareholder.
In short, Mr. Ivcher completely lost the right to the use and
enjoyment of his shares in the company.
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Annex 1, Communication from the petitioners received on February 18, 2010, pp. 157, 161.
252
Annex 1, Communication from the petitioners received on February 18, 2010, p. 162.
253
Annex 72, State Communication received on December 4, 2011.
254
Cf. I/A Court H.R. Case of Ivcher Bronstein v. Peru. Reparations and Costs. Judgment of February 6, 2001. Series C
No. 74, paragraph 123.
255
Cf. I/A Court H.R. Case of Ivcher Bronstein v. Peru. Reparations and Costs. Judgment of February 6, 2001. Series C
No. 74, paragraph 127.
256
Cf. I/A Court H.R. Case of Ivcher Bronstein v. Peru. Reparations and Costs. Judgment of February 6, 2001. Series C
No. 74, paragraph 126.