101
proved, it concluded that the shareholders’ right to property had not been violated in that case.
Bearing this in mind, the Court will now analyze whether, in the instant case, the harm to the
shares owned by the presumed victims has been proved.
357.
That said, the Court underscores that the representatives provided evidence aimed at
proving, quantitatively, the harm to the property of the presumed victims. This evidence
included a financial report on the results of the closure of RCTV, 377 an executive report on the
financial model to evaluate the effect of the elimination of the concession, 378 technical reports
on the valuation of RCTV C.A379 and the company’s financial statements.380 Similarly, the
Court’s case file contains the expert opinion of Ángel Alayón concerning the calculation of the
damage to the personal assets of the RCTV shareholders.381 These documents refer specifically
to the pecuniary damage resulting from the alleged “unlawful and arbitrary elimination” of the
concession on the company’s value and on the value of its shares; therefore, they will not be
taken into account in order to determine the effective violation of the property of the RCTV
shareholders. This is because, the Court recalls, the renewal of the concession was not an
acquired right already incorporated into the company’s assets (supra para. 180); therefore, the
financial effects that this may have had on the share value cannot be claimed as the property
of the shareholders in this case.
358.
Nevertheless, the proven facts in this case have established that the interim measures
involved the transfer of the company’s assets, such as “high frequency waves, teleports,
transmitters, auxiliary television equipment, auxiliary power and climate control equipment,
towers, antennas, broadcasting booths, station booths, perimeter fencing, and electrical
connections” to the State for assignment of their use and enjoyment to other operators of the
television signal. The representatives presented photographs, physical inventories and reports
with certifications of the replacement value of the assets that were the subject of this
measure.382 However, the harm caused to the right to property of the presumed victims has
not been proved because, in order to establish the harm, first it was necessary to prove harm
to the companies of which they are direct shareholders and the way in which this could have
had repercussions on each of the legal entities that, in turn, formed part of the widespread
company structure, until reaching the shares or trust of which the presumed victims are direct
owners. Therefore, the Court has no evidence that would prove the alleged harm to the assets
of Marcel Granier, Peter Bottome, Jaime Nestares, Jean Nestares, Fernando Nestares, Alicia
Phelps de Tovar and Francisco J. Nestares.
4. Conclusion on the right to property
359.
Based on paragraphs 343, 344, 352 and 358 and taking into account that the potential
financial benefits resulting from the possible renewal of the concession were not acquired rights
and that the harm that the interim measures could have had on the value of the shares of the
377
Financial report on the results of the closure of RCTV dated March 22, 2010 (merits file, folio 3540 to 3544).
Executive report on the financial model to evaluate the effect of the elimination of the concession dated August
2013 (evidence file, folio 4769).
378
379
Technical report: Valuation of Radio Caracas Televisión RCTV C.A. to 2007 (evidence file, folios 819 to 821).
380
Consolidated financial statements from January 1, 1999, to December 31, 2007 (evidence file, folio 4775).
381
Opinion of expert witness Ángel Alayón of May 7, 2014 (merits file, folio 1636 to 1666).
Inventory of the assets confiscated from RCTV, without valuation, and Reports on Jeremba I and II, Agualinda,
Begote, Bejuma, Picacho Nirgua, Pico Alvarado, Pico Galicia, Paramo Zumador, Punta Mulatos, Paramo San Telmo, Pto.
Ordaz, Puerto Cabello, Vidoño, Tucupita, Tucusito, Valle de la Pascua, Sabana Larga, San Fernando, Tereperina, Topo
Gallinero, Palma Real, Guanare, Higuerote, La Aguada, La Arenosa, Laguneta, Maracaibo, Maturin I and II, Mecedores,
El Tigre, Ciudad Bolívar, Cerro Copey, Cerro la Cruz, Cerro Plantillón, Cerro Vichú, Charallave I and II, Curimagua I
and II, Caricuao, Acarigua, Altamira, Auyatiro, Barinas Carabella and Puerto Concha (evidence file, folios 31091 to
32230).
382