4
of the harm caused by the violation of an international obligations requires, whenever
possible, full restitution (restitutio in integrum), which consists in the re-establishment of the
previous situation.”18 In this case, not only is it possible to re-establish the situation prior to
the violation of the Convention rights, but it also constitutes a suitable means of making
adequate reparation for the rights that the Court declared had been violated of the
shareholders, executives and employees even if, at the present time, they are no longer part
of, or work for, the company. Furthermore, it is also an appropriate means of redressing the
social dimension of the right to freedom of expression that was violated because the InterAmerican Court “verified that the main purpose of the decision not to renew the channel’s
concession was to silence its criticisms. Consequently, a reparation is required that restores
the plurality of the media that was affected by the indirect restriction declared in this case.”19
11.
Accordingly, I fully concur with the decision taken in the judgment to declare the
violation of the rights to freedom of expression (Art. 13(1) and 13(3) of the Convention) and
to its exercise without discrimination (Art. 24 in relation to Art. 13 of the Convention) and
also the violation of certain judicial guarantees (the right to a hearing and to a reasonable
time, Art. 8 of the Convention) by the Venezuelan State.
12.
My dissent focuses exclusively on three aspects that are closely related to the violation
of freedom of expression that has been declared and is based on the “misuse of power”
unanimously considered proved in the judgment, the content of which was deliberated at
length during four regular sessions of the Inter-American Court.20
13.
First, I differ from the majority opinion that excluded the shareholders Jean Nestares,
Fernando Nestares, Alicia Phelps Tovar and Francisco J. Nestares as victims of the right to
freedom of expression because, since they were not on the RCTV Board of Directors, there
was no evidence of their connection to the channel’s communication mission and, therefore,
that they exercised their freedom of expression through this communications outlet. As I will
explain below, I consider that this distinction between shareholders who are directors and
those who are not – made for the first time in its case law by the Inter-American Court –
creates a de facto two-tier category without considering that, in this case, each and every
shareholder formed part of a family that shared a common personal and political project,
which was materialized in the content transmitted by RCTV, and that all of them – without
any exception – had recourse to the inter-American system owing to the violation of various
Convention rights. Moreover, it was the individual dimension of the full exercise of the right
to freedom of expression of each and every one of them that was violated by the mere fact
of being shareholders (irrespective of whether they on the Board of Directors), because it is
evident that, using the communications outlet they had established, they exercised this right
and also because there are several factors that reveal their connection and their contribution
to the channel’s communications mission.
14.
Second, I differ from the majority opinion that the right to property established in
Article 21, in relation to Article 1(1) of the Convention, was not violated (thirteenth operative
paragraph of the judgment). The judgment examines the alleged violation of the right to
property in isolation rather than in relation to the right to freedom of expression — as it does
in the case of the right to equality before the law that was declared violated. I consider that
the right to property should have been analyzed in light of the right to freedom of expression
constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.”
18
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 361.
19
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 379.
The Court deliberated on the draft judgment during its 106th, 107th, 108th and 109th regular sessions. See Case
of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 13.
20
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