53
the law may subordinate the use and enjoyment of that right to the interest of society. In its case law, the
225
Inter-American Court has developed a broad concept of property that encompasses, inter alia, the use
and enjoyment of property, defined as those material objects that can be possessed, and any rights which
may be part of a person’s assets. That concept includes all movables and immovables, and all tangible
226
and intangible assets, as well as any other intangible property that can have a value.
The Court has
also held that Article 21 protects acquired rights, understood as rights that have become part of a
227
person’s assets.
169.
The right to property is not absolute, as Article 21(2) of the Convention provides that the
only way a person shall be deprived of his property is upon payment of just compensation, for reasons of
public utility or social interest; furthermore, it must be done in the cases and according to the forms
228
established by law.
170.
The Court, for its part, has written that “the restriction must be proportionate to the
legitimate interest that justifies it and must be limited to what is strictly necessary to achieve that
229
objective. It should interfere as little as possible with effective exercise of [a] right […].” The Court has
also held that in order for the State to legitimately satisfy a social interest and strike a fair balance with an
individual’s interest, it must use proportional means so as to inflict the least harm on the right to property
230
of the person affected.
It went to write that within the framework of an abridgement of the right to
private property, in particular in the case of an expropriation, the restriction must be in full and faithful
compliance with the requirements contained in Article 21(2) of the Convention and be done
231
accordingly.
171.
In the present case, the petitioners have alleged three different violations of the RCTV
232
shareholders’ right to private property. First, they are alleging a violation of the right to property based
on the decline in the value of RCTV shares as a result of the decision not to renew RCTV’s concession
and license. Second, they are alleging that the “illegitimate deprivation” of RCTV’s concession was itself
a violation of the right to property. Third, they are alleging that the seizure of RCTV’s tangible assets is
also a violation of the right to property. The Commission will now proceed to examine each of these three
allegations, starting with the last.
1.
The seizure of RCTV’s tangible assets
225
Cf. I/A Court H.R., Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador. Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 21, 2007. Series C No. 170, paragraph 174.
226
Cf. /A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.
Judgment of August 31, 2001. Series C No. 79, paragraph 144; Case of Palamara Iribarne v. Chile. Merits, Reparations and Costs.
Judgment of November 22, 2005. Series C No. 135, paragraph 102; Case of the Yakye Axa Indigenous Community v. Paraguay.
Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, paragraph 137; and Case of the Moiwana
Community v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 15, 2005. Series C No. 124,
paragraph 129.
227
Cf. /A Court H.R., Case of the "Five Pensioners” v. Peru.. Merits, Reparations and Costs. Judgment of February 28,
2003. Series C No. 98, paragraph 102.
228
Cf. /A Court H.R., Case of Chaparro Álvarez and Lapo Iñiguez, supra note 47, paragraph 174.
229
Cf. /A Court H.R., Case of Herrera Ulloa v Costa Rica. Preliminary Objections, Merits, Reparations and Costs,
Judgment of July 2, 2004, paragraph 123.
230
Cf. I/A Court H.R. Case of Salvador Chiriboga v. Ecuador. Preliminary Objection and Merits. Judgment of May 6,
2008. Series C No. 179, paragraphs 63-64.
231
Cf. I/A Court H.R.. Case of Salvador Chiriboga v. Ecuador. Preliminary Objection and Merits. Judgment of May 6,
2008. Series C No. 179, paragraphs 63-64.
232
Annex 1, Communication from the petitioners received on February 18, 2010, p. 114.