I/A Court H.R., Case of Granier et al. (Radio Caracas Television) v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 22, 2015. Series C No. 293.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

Facts – The facts of this case occurred in the aftermath of a military coup in April 2002. The Inter-American Court considered that the events in question combined with the reaction of the media had contributed to a climate of political tension leading to the radicalisation of certain sectors of the population. It further found statements by high-level State officials directed against the independent media and aimed at discrediting journalists had created an intimidating atmosphere for the media.

 

Radio Caracas Televisión (RCTV) had operated as a free-to-air television station with national coverage since 1953, when it was granted a broad- casting concession. It broadcast entertainment and news shows, and shows on political opinion. Its editorial policy was based on a critical attitude to the government of President Chávez. Before going off air, RCTV had enjoyed the highest ratings in all sectors of the Venezuelan population. In 1987 Venezuela renewed RCTV’s concession allowing it to operate as a free-to-air television station and to use the broadcast spectrum for the next twenty years, that is, until 27 May 2007.

 

On a number of occasions after 2002, Venezuelan government officials, including President Chávez, made statements to the effect that certain concessions issued to the private media would not be renewed. In December 2006 an official decision not to renew RCTV’s concession was announced.

 

On 5 June 2002 in accordance with the schedule established by the National Telecommunications Commission (CONATEL), RCTV had requested the transformation of its title of concession to a new legal regime that had been introduced by the Ley Orgánica de Telecomunicaciones (LOTEL) in 2000. However, CONATEL did not examine the request within the two-year statutory time-limit and only issued a response in March 2007. On 24 January 2007 RCTV representatives requested CONATEL to issue documents corroborating renewal of the concession.

 

On 28 March 2007 the Ministry of People’s Power for Telecommunications and Informatics (MPPTI), which was also in charge of CONATEL, decided not to renew RCTV´s concession.

 

On 25 May 2007 the Constitutional Chamber of the Supreme Court of Justice ordered provisional measures which resulted in the transfer of RCTV´s property to CONATEL with a view to providing the Venezuelan Social Television Foundation (TVes) with the necessary infrastructure for broadcasting its programmes nationwide.

 

RCTV´s broadcasting station´s signal was interrupted at 00:00 a.m. on 28 May 2007. In its place, TVes started broadcasting its programmes on Channel 2 of the free-to-air television network.

 

Subsequently RCTV had recourse to various domestic remedies, including administrative and criminal proceedings challenging the application of provisional measures. It also made an application for amparo writs. Some of those proceedings were still pending at the date of the Inter-American Court’s judgment.

 

Law

 

(a)     Preliminary objections – The Venezuelan Government argued that the Inter-American Court had no jurisdiction with respect to legal persons and that the applicants had failed to exhaust domestic remedies. The Court rejected the first preliminary objection, considering that no legal person was presented as an alleged victim in the present case and that the alleged interference with the rights under the American Convention on Human Rights (ACHR) in this case concerned natural persons, such as shareholders and employees. The Court also rejected the second preliminary objection since the plea of non-exhaustion of domestic remedies was raised after the admissibility report was issued and was therefore time-barred.

 

(b)     Article 13 (freedom of thought and expression) in relation to Article 1(1) (respect and ensure rights) of the ACHR – The Court acknowledged the need to regulate the broadcasting activity and the State’s authority in this respect. The latter extends not only to defining the modalities of granting, renewal or revocation of concessions, but also to the planning and implementation of public policies applicable to such activity insofar as they comply with the standards of freedom of expression. The Court emphasised that the pluralism of ideas in the media is measured having regard to the diversity of ideas and information transmitted, which should be taken into account for the purposes of granting or renewing concessions or broadcasting licences. It also stressed that it was necessary for the States to regulate in a clear and precise manner the processes related to the granting or renewal of concessions or broadcasting licences on the basis of objective criteria that prevent arbitrariness.

 

The Court noted that the domestic law did not provide a right to automatic renewal of a broad- casting concession. The applicants had, however, applied on two occasions for the transformation of their broadcasting rights to a new legal regime, which would have entailed renewal of the concession, but those proceedings had not been con- ducted. The question was, therefore, whether this could be considered an indirect restriction of freedom of expression in breach of Article 13(3) of the ACHR.

 

The Court took into account public statements made by State officials after 2002 to the effect that television channels which had failed to modify their editorial policies would not have their concessions renewed. After 2006, and before the decision of 28 March 2007, it was stated on numerous occasions that the decision not to renew RCTV´s concession had already been adopted. Such statements appeared not only in the media but also in official publications. Having regard to the foregoing, the Court concluded that the decision not to renew RCTV´s concession had been taken before the term of the concession had expired in accordance with instructions given to CONATEL and MPPTI by the executive branch.

 

As regards the reasons for the above decision, the statements of the various members of the Venezuelan Government related to two aspects: (i) RCTV´s failure to modify its editorial policy after the military coup of 2002 and (ii) alleged irregularities as a result of which RCTV found itself subject to sanctions. As regards the first aspect, the Court emphasised that the restriction of freedom of expression on the ground of political differences between an editorial policy and the Government´s stance was inacceptable. As to the second aspect, the Court dismissed it as untenable having regard to the fact that the decision of 28 March 2007 had expressly indicated that no such irregularities constituted the grounds for the refusal to renew RCTV´s concession.

 

On the basis of the foregoing, the Court concluded that the facts of this case disclosed an abuse of power by the State, insofar as it had sought by legal means to force RCTV to bring its editorial policy in line with the government’s position. In this respect the Court referred, in particular, to the fact that the decision not to renew RCTV´s concession was taken ahead of time and was motivated by the government´s discontent with its editorial policy. Furthermore, this had taken place in a climate that was unpropitious for freedom of expression which the Court found to exist at the relevant time. The Court also stated that the abuse of power not only had an impact on the exercise of the right to freedom of expression by the employees and managers of RCTV, but also affected the social dimension of that right having deprived Venezuelan society of access to the editorial policy represented by RCTV. The real purpose was thus to silence criticism of the government. Along with pluralism, tolerance and open-mindedness, such criticism was indispensable for a democratic debate protected by the right to freedom of expression.

 

Accordingly, the Court found there had been an indirect restriction of the exercise of the right of freedom of expression through the use of means aimed at impeding communication and the circulation of ideas and opinions. In other words, the State had withheld a part of the broadcast spectrum thereby preventing the media who had expressed critical opinions of the government from participating in the administrative proceedings for the allocation of broadcasting rights and the renewal of concessions. There had thus been a violation of Article 13(1) and (3) in relation to Article 1(1) of the ACHR.

 

The Court further noted that there had existed other television stations comparable with RCTV whose concessions were about to expire on 27 May 2007. However, with the exception of RCTV, they had all had their broadcasting concessions renewed. For this reason the Court decided to examine whether the decision to allocate that part of the broadcast spectrum initially allocated to RCTV to a different television station might have constituted discriminatory treatment based on political opinion.

 

The Court considered that a television station’s editorial policy may be considered as a reflection of the political opinions of its managers and employees insofar as they determine the content of the information transmitted. Thus, the critical attitude of a channel constituted a reflection of the critical attitude of its managers and employees involved in deciding what type of information would be transmitted.

 

The Court noted that, in order to justify the differential treatment in this case, the government had not relied on any specific technical features peculiar to RCTV that would distinguish it from other television channels. The ground for the differential treatment was RCTV´s editorial policy. This sent an intimidating message to other media as to the possible consequences should their editorial policies be similar to that of RCTV, and therefore had a chilling effect on freedom of expression.

 

Accordingly, the Court concluded that the State’s decision to withhold the part of the broadcast spectrum assigned to RCTV had constituted discriminatory treatment with respect to the exercise of the right to freedom of expression, in violation of Article 13 in conjunction with Article 1(1) of the ACHR.

 

Conclusion: violation (six votes to one).

 

(c)      Articles 8(1) and 25(1) (fair trial and judicial protection) in relation to Articles 1(1) and 2 (domestic legal effects) of the ACHR – The Court found that the State had violated Article 8(1) in conjunction with Article 1(1) of the ACHR in respect of the proceedings for the renewal of RCTV´s concession and transformation of its broadcasting rights to a new legal regime, as well as on account of the length of proceedings in respect of the administrative proceedings and the proceedings for challenging the application of provisional measures. It found no violation of Article 8 of the ACHR with respect to the criminal proceedings and no violation of Article 25(1) in conjunction with Article 1(1) of the ACHR in respect of the proceedings concerning the amparo writs.

 

Conclusion:  violation and no violation (unanimously).

 

(d)     Article 21 (property) in relation to Article 1(1) of the ACHR – The Inter-American Court concluded that it was not proven that the State had violated the right to property for the following reasons. Firstly, it noted that the broadcast spectrum constituted public goods in full possession of the State and thus its ownership could not be claimed by individuals. Consequently, the economic benefits that shareholders might have received as a result of the renewal of the concession could not be considered as goods or acquired rights and hence were not protected by Article 21 of the ACHR. Secondly, the Court reiterated that it was not competent to examine alleged violations of the ACHR with respect to legal persons and therefore could not examine the consequences that the order to seize RCTV´s property might have produced for the company. Thirdly, it did not have sufficient proof of the alleged damage caused to the value of the shares owned by the applicants.

 

Conclusion: insufficient evidence to determine a violation (five votes to two).

 

(e)     Reparations – The Inter-American Court established that the judgment constituted per se a form of reparation. In addition, it ordered the State: (i) to restore the concession of the frequency of the broadcast spectrum corresponding to television Channel 2 and to return the assets subject to the provisional measures; (ii) once the concession was restored, to institute, within a reasonable time, open, independent and transparent proceedings for the allocation of the frequency of the broadcast spectrum corresponding to television Channel 2 in accordance with the procedure established in the applicable domestic rules; (iii) to publish the judgment and its official summary; (iv) to adopt the necessary measures to ensure that all future proceedings for the allocation and renewal of broadcasting concessions are conducted in an open, independent and transparent manner, and (v) to pay the amounts awarded by the Court for pecuniary and non-pecuniary damage and the reimbursement of costs and expenses.