73
Communication No. 0424 or Resolution No. 002, and has not been substantiated by technical
reports proving what the State has indicated. Therefore, the Court has no evidence to allow it
to conclude that RCTV did indeed have specific technical characteristics that other television
channels did not have and that justified the difference in treatment. The Court stresses that, in
the instant case, based on the inversion of the burden of proof as a result of the application of
a prohibited type of discrimination contained in Article 1(1) of the Convention, it would have
been particularly important for the State to substantiate the differential treatment to the
detriment of RCTV with technical evidence, expert reports and opinions, in order to disprove
that presumption.
231. However, the Court has already considered proved that the editorial line and the political
position transmitted by RCTV were among the main reasons behind the decisions taken in
Communication No. 0424 and Resolution No. 002 (supra para. 197). This has been revealed by
the numerous statements by different State officials cited previously, in which they spoke out
about the content of the RCTV transmissions (supra para. 75 to 86).
232. Having established the government’s position towards the critical editorial line of RCTV,
the Court underscores the allegations that RCTV had not changed its conduct:
If we make a comparative analysis of the behavior of some television channels on April 11, 12 and
13 [2002], which were openly in support of the coup d’état, and we compare this to their conduct
today, there have been qualitative changes in their programming, in the news line, in the editorial
line. […] However, there are other cases where no such change, correction, is in evidence; instead
they have stubbornly clung to their conduct as in was on April 11, 12 and 13 in the country”298
(underlining added).
233. Furthermore, the Court recalls the words of President Chávez during an event at the
Ministry of Defense on June 14, 2006:
I have ordered a review of the television network concessions. Some channels have shown signs of
being prepared to change, and it appears that they intend to obey the Constitution and the law.
Regarding those who backed the coup, which was everyone; at that time, we could have eliminated
those concessions; however, we called for dialogue, reflection. Was it a mistake? I don’t think so. I
don’t think so. Everything in its time.299
234. In this regard, the Court emphasizes that if a government applies differential treatment
based on its satisfaction or dissatisfaction with a channel’s editorial line, this has a dissuasive,
intimidating and inhibiting effect on those who exercise their right to freedom of expression
(supra para. 164), because it sends a threatening message to the other media of what could
happen to them if they followed an editorial line similar to that of RCTV. As mentioned
previously, the failure to allow the exercise of the right to freedom of expression in equal
conditions prevents the public debate on issues of interest to society that is essential for the
protection of democracy and the pluralism of the media.
235. Based on the above, the Court concludes that, in this case, there is evidence to
determine that the State’s decision to reserve to itself the portion of the spectrum assigned to
Press release on the website “Vive” entitled “Lara: Hay televisoras y emisoras de radio que violentan los derechos
de los usuarios” of June 14, 2006, (evidence file, folios 3121 and 3122); Article in the newspaper “El Nacional” entitled
“Chávez amenazó con revocar concesiones a televisoras en 2007” of June 15, 2006 (evidence file, folios 3117 to 3119),
and Press release on the website “Radio Nacional de Venezuela” entitled “Hay televisoras y emisoras de radio que
violentan derechos de usuarios” of June 14, 2006 (evidence file, folio 3124).
298
Speech by President Chávez on June 14, 2006 (evidence file, CD, Video minute 1:39; Article in the newspaper
“El Universal” entitled “Chávez anunció nuevas compras y cambios en concepción de equipos militares” of June 14,
2006 (evidence file, folios 3109 to 3111); Press release “Chávez: ‘He ordenado la revisión de las concesiones de los
canales de televisión” of June 14, 2006, (evidence file, folios 3112 and 3113), and Article in the newspaper “El Mundo”
entitled “Chávez ordena revisar las concesiones de televisión privada en Venezuela” of June 15, 2006 (evidence file,
folio 3114).
299