98
343.
Having determined this, the Court will now examine the representatives’ argument
that the non-renewal of the concession was comparable to an illegitimate elimination of the
presumed victims’ right to property with regard to the concession, in the understanding that
this was an asset protected under the American Convention. On this point, the Court has
already concluded that no right existed to the renewal or automatic extension of the concession
(supra para. 180), so that, in this case, there are no arguments or regulations that would allow
the Court to interpret that Venezuela’s laws created a right to the extension of concessions that
benefited the company. Accordingly, the possibility that the State would renew RCTV’s
concession for the use of the electromagnetic spectrum in 2007 cannot be considered an
acquired right to an asset already incorporated into the company’s property. This possibility
was a mere expectation of renewal that was conditional on the State’s authority to establish
controls over a resource that it owned. Consequently, the financial benefits that the
shareholders might have received as a result of the renewal of the concession cannot be
considered acquired rights or assets that were part of the direct property of the shareholders
and that could be protected by Article 21 of the American Convention.
344.
The Court also notes that RCTV did own a property right as a result of the 20-year
concession granted based on Decree No. 1577, for which the State had granted a license.
However, it finds that the State did not prevent RCTV’s use of the electromagnetic spectrum or
arbitrarily interfere in the exercise of the rights derived from the concession contract while it
was in effect, acts that could truly have violated the right to property of the presumed victims.
2. The interim measures imposed by the Constitutional Chamber
345.
The Court has established that the adoption of an interim measure in the domestic
jurisdiction does not constitute per se a violation of the right to property. Even though it does
constitute a limitation of this right, insofar as it affects the ability of the individual to freely
dispose of his possessions, it does not signify a transfer of the ownership of the property
rights.363 Nevertheless, the Court considers that the adoption of actual interim measures must
be justified previously by the inexistence of any other type of measure that is less restrictive
of the right to property. Also, the disposal of the property cannot be definitive and must be
restricted exclusively to its administration and conservation.364
346.
Additionally, judicial authorities should adopt and supervise such measures, taking into
account that if the reasons that justified the interim measure disappear, the judge must assess
the pertinence of continuing the restriction. 365 The said judicial authorities must also consider
the possibility of moderating the impact of the duration of the civil proceedings on the ability
of the presumed victims to dispose of their possessions, so that it does not affect their right to
property disproportionately.366
347.
In this case, on May 25, 2007, the Constitutional Chamber of the SCJ issued ruling
No. 956, in which it admitted the application for amparo against the MINCI, the MPPTI and the
Venezuelan Public Television Foundation and ordered, by means of unspecified interim
measures, the provisional transfer to CONATEL of the use of the assets owned by RCTV, 367 so
that CONATEL could arrange the use of these assets by TVes, because the latter did not have
the necessary infrastructure to transmit nationwide (supra para. 95). Also, to protect the
363
178.
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, para. 187, and Case of Mémoli v. Argentina, para.
364
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, paras. 187 and 188.
365
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, para. 188.
366
Cf. Case of Mémoli v. Argentina, paras.180 and 183.
Supreme Court of Justice, Constitutional Chamber, Case No. 07-0720, Decision No. 956 of May 25, 2007
(evidence file, volume VII, annex 64, folio 3461).
367