96
facts that the Commission describes,”349 so that it is in order to examine the alleged violation
of Article 21 of the Convention.
335.
In this regard, the Court has understood in its case law that property is a broad concept
that encompasses, among other matters, the use and enjoyment of property, defined as
appropriable material possessions, as well as any right that may form part of a person’s assets.
This concept includes all movable and immovable property, tangible and intangible elements,
and any other immaterial object that may have a value.350 In addition, the Court has considered
that acquired rights, understood as rights that have been incorporated into a person’s assets,
are protected.351
336.
In addition, it should be reiterated that the right to property is not absolute and, in this
sense, it may be subject to restrictions and limitations, provided these are implemented using
the appropriate legal means and in keeping with the standards established in Article 21.352 The
first paragraph of this article recognizes the right to property and indicates that everyone has
the right to the use and enjoyment of this property; it also includes a limitation of this right
based on the interest of society.353 The second paragraph refers to the expropriation of property
and the requirements to ensure that this action by the State may be considered justified. In
this regard, the Court has established that it should not restrict itself to examining whether a
formal expropriation or dispossession has occurred, but should also look beyond the appearance
and verify the real circumstances behind the situation that has been denounced. 354
337.
As mentioned previously, when analyzing violations of the right to freedom of
expression in previous cases, the Court has considered that although the device of “legal
person” has not been expressly recognized by the American Convention, this does not limit the
possibility that, in certain circumstances, an individual may have recourse to the inter-American
system to assert his rights, even when they are covered by a legal fiction created by the legal
system itself and it has therefore examined the possible violation of the property rights of
certain individuals in their capacity of shareholders.355
338.
In such cases, the Court has made a distinction between the rights of the shareholders
of a company and those of the company itself, indicating that domestic law grants shareholders
certain direct rights such as to receive the agreed dividends, to attend and vote in the general
assemblies, and to receive part of the company’s assets if it is liquidated.356 Thus, in order to
determine whether a right to property of the shareholders has been violated, the harm caused
to their rights must be clearly proved.357
339.
To determine whether these direct rights of the RCTV shareholders have been harmed,
as distinct from the alleged harm to the assets of the company, the Court will analyze in greater
detail whether there was a violation of property rights, based on the arguments of the parties
Cf. Case of the “Five Pensioners” v. Peru, para. 155, and Case of Rodríguez Vera et al. (Disappeared from the
Palace of Justice) v. Colombia, para. 47.
349
350
Cf. Case of Ivcher Bronstein v. Peru, para. 122, and Case of Mémoli v. Argentina, para.170.
351
Cf. Case of the “Five Pensioners” v. Peru, para. 102, and Case of Abrill Alosilla et al. v. Peru, para. 82.
Cf. Case of Acevedo Buendía et al. (“Dismissed and Retired Employees of the Comptroller’s Office”) v. Peru.
Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009 Series C No. 198, para. 84, and Case
of Mémoli v. Argentina, para.170.
352
353
Cf. Case of Salvador Chiriboga v. Ecuador, para. 55.
354
Cf. Case of Ivcher Bronstein v. Peru, para. 124, and Case of Mémoli v. Argentina, para. 170.
Cf. Case of Cantos v. Argentina. Preliminary objections, para. 29, and Case of Perozo et al. v. Venezuela, paras.
399 and 400.
355
356
Cf. Case of Ivcher Bronstein v. Peru, para. 127, and Case of Perozo et al. v. Venezuela, para. 400.
357
Mutatis mutandis, Case of Perozo et al. v. Venezuela, para. 402.