62
185. Meanwhile, Resolution No. 002 declared that the decision to reserve the concession
assigned to RCTV and to terminate the administrative procedure was taken “to permit universal
access to information […], to promote a new free-to-air television management model that
would co-exist with the others that existed in the country, under the model of television as a
public service, seeking to promote the democratization of the use of the broadcasting media
and the plurality of messages and contents.” The Court notes that Communication No. 0424
repeated this same justification.
186. Additionally, during the public hearing, in answer to the question of its reason for
deciding to reserve to itself the use of the spectrum granted to RCTV in concession, the State
indicated that:
This was merely [for] technical reasons. Remember that the frequencies have transmission channels;
frequency 2 and 3 which is the one that RCTV has is the one closest to the earth, and it therefore has
greater scope, it reaches further and needs much cheaper equipment. […] There’s no other reason.
There’s no political reason; that is untrue, totally untrue.
187. Consequently, the Court notes that the arguments explicitly used as justification for the
decisions taken in Communication No. 0424 and Resolution No. 002, were “the democratization
of the use of the broadcasting media and the plurality of messages and contents.” Therefore,
the Court will now determine whether this purpose can be considered legitimate.
188. Regarding the legitimacy of this purpose, the Court recalls what it has established
previously with regard to the importance of pluralism in a democratic society (supra paras. 144
and 145); thus, it considers that the protection of pluralism is not only a legitimate objective,
but also a necessary one. Accordingly, the Court concludes that the purpose declared by the
State in Communication No. 0424 and Resolution No. 002 was legitimate.
189. Nevertheless, both the Inter-American Commission and the representatives have
affirmed that this was not the real objective, because there was evidence that proved that the
intention was to punish RCTV for its editorial line that was critical of the government. In this
regard, in the instant case, the Court finds it necessary to take into account that the motive or
purpose of a specific act of the State authorities is relevant for the legal analysis of a case, 272
because a motivation or purpose that differs from that of the norm that grants the state
authority the power to act may show whether the action may be considered an arbitrary act, 273
Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador. Preliminary objection, merits,
reparations and costs. Judgment of August 23, 2013. Series C No. 266, para. 173, and Case of the Constitutional
Tribunal (Camba Campos et al.) v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of August
28, 2013. Series C No. 268, para. 210.
272
Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador. In this regard, the European Court
has taken into account the purpose or motivation that the State authorities revealed when exercising their functions
to determine whether the European Convention on Human Rights had been violated. For example in the Case of
Gusinskiy v. Russia, the European Court considered that the restriction of the victim’s right to liberty, authorized by
Article 5(1)(c) of the European Convention, was not only “for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence,” but also with the purpose of obliging him to sell
his company to the State. In the Case of Cebotari v. Moldavia, it declared that Article 18 of the European Convention
had been violated because “the government had failed to satisfy the Court that there was a reasonable suspicion that
the applicant had committed an offence” and concluded “that the real aim of the criminal proceedings and of the
applicant’s arrest and detention was to put pressure on him with a view to hindering Oferta Plus from pursuing its
application before the Court.” Lastly, in the Case of Lutsenko v. Ukraine, the European Court determined “that the
restriction of the applicant’s liberty, [authorized by Article 5(1)(c),] was applied not only for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other
reasons” related to the “prosecuting authorities’ […] attempt to punish the applicant for publicly disagreeing with
accusations against him.” Cf. ECHR, Case of Gusinskiy v. Russia, (No. 70276/01), Judgment of May 19, 2004, paras.
71 to 78; Case of Cebotari v. Moldavia, (No. 35615/06), Judgment of November 13, 2007, paras. 46 to 53, and Case
of Lutsenko v. Ukraine, (No. 6492/11), Judgment of July 3, 2012, paras. 100 to 110.
273