85
.
337. The State denied having incurred in a violation of the freedom of expression and
held, inter alia, that “the considerations made by the President of the Republic […] are
permitted by the Venezuelan constitutional and legal system - both the annulment of a
concession […] as well as the non-renewal of a concession -.”
338. The representatives argued, as a supervening fact, “the closing of the open signal,”
of RCTV, which occurred on May 27, 2007, even though they also mentioned that they do
not want to fight the State’s decision to not renew the concession of the RCTV station and
the execution of that decision: The Commission pointed out that “it does not want to, within
the framework of the present case, discuss the scope of the State’s discretion to act within
the framework of concession contracts with private entities.” The Court observes that the
cancellation or non-renewal of RCTV’s concession is the object of another petition presented
before the Inter-American Commission and states that it will not analyze this fact because it
is not part of the factual framework of the present case.
339. The Commission identified seven statements 331 and the representatives four332 in the
sense argued. They refer to the concession based on which the communication media firms
operation, and some mention the possibility to cancel it. Without detriment to that stated in
previous chapters regarding the content of these statements (supra paras. 131 through
149), the Court will observe if they could have been perceived by the alleged victims as
threats and it will determine if they shall be analyzed as an indirect method or means to
restrict the freedom of expression, which is not compatible with Article 13(3) of the
Convention.333
340. Article 13(3) of the American Convention states that “the right of expression may not
be restricted by indirect methods or means, such as the abuse of government or private
controls over newsprint, radio broadcasting frequencies, or equipment used in the
dissemination of information, or by any other means tending to impede the communication
and circulation of ideas and opinions.” A word-for-word interpretation of this stipulation lets
us consider that it specifically protects the communication, diffusion, and circulation of ideas
331
Those statements were made on June 9, 2002 on the Program “Aló Presidente” No. 107 from the State of
Zulia; on December 8, 2002 on the Program “Aló Presidente” No. 130; on December 15, 2002 on the Program “Aló
Presidente” N°131 from the Palace of Miraflores; on January 12, 2003 on the Program “Aló Presidente” No. 135
from the Marine Customs Office in La Guaira; on November 9, 2003 on the Program “Aló Presidente” from
Tinaquillo, State of Cojedes; on January 12, 2004 in an interview published in the newspaper El Universal, and on
May 9, 2004 on the Program “Aló Presidente” N°191 from the Maternity and Children’s Hospital of Barines.
Likewise, the Commission referred to other statements in the footnotes of the application, including some that
occurred after the issuing of the Commission’s Report on Merits.
332
Additionally, the representatives referred to 14 pronouncements made by the President and by other
public authorities between the years 2006 and 2007 not included in the application, which in their understanding
allow to explain the facts described in it and that prove that the threats to annul and/or not renew RCTV’s
concession continued and were intensified. Even though in principle the facts that explain and clarify the content of
the application are admissible (supra paras. 42 and 56), the Court considers that these last statements do not
explain the facts since they do not refer to them but instead are new statements, different to and subsequent to
those mentioned therein. Due to the aforementioned, the Court will not take into consideration those statements,
even though it does make the observation that the content of some of them is similar to those that will be analyzed
below.
333
Thus, on November 9, 2003 the President held in reference to four private television stations that “as soon
as they step over the line of the law they will be closed in order to ensure the peace in Venezuela, to ensure
tranquility
in
Venezuela.”
Cf.
transcript
available
on
http://www.gobiernoenlinea.ve/miscview/sharedfiles/Alo_Presidente_171.pdf. Likewise, on January 12, 2004, in an interview with the newspaper El
Universal, the President of the Republic stated that “if any of the television stations incite people to another
rebellion, [l will] also take away [the frequency, the electromagnetic spectrum]; I have the decree ready, it would
be better for me if they did it because they would be militarily occupied with the risk of suffering any consequence.
I would give an immediate order that they be taken by surprise and whoever is inside will have to see what they
can do, if they have weapons they can defend themselves, but we will go in with force because that is how a
country must defend itself.” Cf. interview for the newspaper El Universal of January 12, 2004 available at
http://www.eluniversal.com/2004/01/12/pol_art_12154A2.shtml.