72
political opinions in this and, based on those opinions, define the content of its programming.
In this regard, the Court emphasizes the statement made by Soraya Castellano, Information
Manager of the RCTV Vice-Presidency for Information, that “[the] tone or ranking [of the news]
was submitted to discussion and approval by the Department for the Production of Newscasts,
the Information Directorate, and the Vice-Presidency for Information […]. [This] working group
approved the guidelines for the leading program ‘El Observador.’”295
226. On this point, the Court emphasizes the need to protect the expression of political
opinions in a democratic society and recalls that it has previously established that “[d]emocratic
control exercised by society through political opinion encourages the transparency of State
activities and promotes the accountability of public officials in public administration.”296 Thus,
this Court reaffirms the importance of the prohibition of discrimination based on the political
opinions of an individual or a group of individuals, and the consequent obligation of the States
to respect and ensure the rights contained in the American Convention without any type of
discrimination.
227. Based on the above, the Court concludes that it may be affirmed that the editorial line
of a television channel is the reflection of the ideas of those involved in the design of this line;
therefore, they may be subject to discriminatory treatment based on their political opinions.
Having established this, the Court will now examine the inversion of the burden of proof derived
from the presumption of the existence of discriminatory treatment based on a prohibited type
of discrimination established in Article 1(1) of the Convention, in this case, the political opinions
of the RCTV executives and employees.
2.2. Inversion of the burden of proof and evidence presented by the State concerning the
differential treatment
228. The Court stresses that, regarding the prohibition of discrimination based on one of the
protected categories established in Article 1(1) of the Convention, the possible restriction of a
right requires a rigorous and substantial justification and also the burden of proof is inverted,
which means that it is for the authority to prove that its decision did not have a discriminatory
purpose or effect.297 In this case, having verified that the differential treatment towards RCTV
was based on one of the prohibited categories, the State had the obligation to prove that the
decision to reserve the spectrum to itself did not have a discriminatory purpose or effect.
229. The Court has verified that, in Communication No. 0424, Minister Chacón Escamillo
merely indicated that the decision not to renew the concession was not a sanction but rather
the legal effect established in article 1 of Decree 1,577; namely, the expiry of a time frame
(supra, para. 90) and that the State “had decided to reserve to itself the use and exploitation
of that portion of the electromagnetic spectrum.” The Court notes that the State did not give
the reasons for its decision or indicate, in either Communication No. 0424 or Resolution No.
002, why it reserved to itself the use of the electromagnetic spectrum assigned to RCTV and
not the portion of the spectrum used by other channels.
230. Meanwhile, the State has argued in this case that the decision to reserve to itself the
portion of the spectrum assigned to RCTV and not that used by another channel was because
RCTV had specific technical characteristics that would reduce costs and expand the transmission
range. However, the Court notes that this explanation was not indicated in either
295
Affidavit of Soraya Castellano (merits file, folio 1554).
Case of Herrera Ulloa v. Costa Rica, para. 127, and Case of Vélez Restrepo and family members v. Colombia,
para. 145.
296
297
Cf. Mutatis mutandis, Case of Atala Riffo and daughters v. Chile, para. 124.