18
of expression was violated by the State’s actions against RCTV, as was proved and declared
with regard to the other shareholders who sit on the Board of Directors.
III. VIOLATION OF THE RIGHT TO PROPERTY (ART. 21) IN RELATION TO THE
RIGHT TO FREEDOM OF EXPRESSION (ART. 13)
63.
In the judgment, the majority opinion was that the violation of the right to property
had not been proved pursuant to Article 21 of the American Convention, essentially because
“the potential financial benefits resulting from the possible renewal of the concession were
not acquired rights and that the harm that the interim measure [issued, ex officio, by the
Constitutional Chamber of the Supreme Court of Justice in favor of TVes] could have had on
the value of the shares of the RCTV partners has not been clearly proved.”80
64.
I dissent from this opinion on the basis of the considerations that I will present in this
section. In principle, it should not be overlooked that, in the instant case, a situation exists
in which the Inter-American Court found and considered proved that the facts involved a
“misuse of power” because the State took advantage of a power that it was authorized to use
in order to conceal the internal actions. This is evident owing to the statements made by the
President of the Republic at the time and various authorities, in which they indicated that the
decision not to renew the RCTV concession had been taken previously and that it was based
on the displeasure caused by RCTV’s editorial line.81
65.
This “misuse of power” had an impact on RCTV, not only on the individual dimension
of the right to freedom of expression but also on the social dimension of this right because
“the population […] was deprived of access to the editorial line that RCTV represented.”82 The
objective ought by the government was to silence voices that were critical of the State, “which
constitute, together with pluralism, tolerance and the spirit of openness, the requirements for
a democratic debate, which is exactly what the right to freedom of expression seeks to
protect.”83 Hence, there was an indirect restriction of the exercise of the right to freedom of
expression as a result of measures aimed at preventing the communication and circulation of
ideas, “when the State decided that it would reserve to itself the portion of the spectrum and,
therefore, prevent participation in the administrative procedures for the adjudication of the
titles or the renewal of the concession.”84
66.
In this understanding, I do not agree with the separate analysis made of the content
of Article 21 of the Convention (right to property), taking into account the circumstances in
which the violations were committed because each and every one of them was related to a
context of violation of freedom of expression. The majority opinion decided to address
separately two rights that were closely related arriving at contradictory conclusions in relation
to Article 13 and Article 21 of the Convention because it is clear that, with the violation of
freedom of expression, two facts merged coherently with the content of Article 13(1) and
13(3): (A) the loss of value of the shares, and (b) the seizure of RCTV’s assets.
The electromagnetic spectrum is a public commodity
67.
Before addressing those two points, it is very important to make the following
clarification: there is no dispute between the parties that, in Venezuela, the electromagnetic
80
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 359, operative para. 13.
81
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 197.
82
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 198.
83
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 198.
84
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 198.
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