American Convention on Human Rights - jurisdiction - freedom of expression - indirect restrictions - property rights - deviation of power - media pluralism.

Author:Martinez, Manuel Casas
 
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GRANIER v. VENEZUELA. Series C, No. 293. Preliminary Objections, Merits, Reparations and Costs.

At http://www.corteidh.or.cr.

Inter-American Court of Human Rights, June 22, 2015.

On June 22, 2015, the Inter-American Court of Human Rights (Court) decided that Venezuela's refusal to renew the broadcasting license of Radio Caracas Television (RCTV) in May 2007 constituted an indirect violation of the right to freedom of expression protected by the American Convention on Human Rights (Convention). (1) In a 6-1 decision, the Court found that, although the government's refusal to renew RCTV's license had allegedly been motivated on technical grounds, its real, but undeclared, purpose was to shut down a network that had taken a critical editorial stance toward the Venezuelan government (para. 198). (2) The Court also ruled, however, that Venezuela had not violated RCTV's property rights and that judicial independence and impartiality had not been violated in the related domestic litigation. By this landmark decision, the Court has resumed its vigorous protection of freedom of expression.

The proceedings began in 2010, when RCTV filed a petition with the Inter-American Commission on Human Rights (Commission), contending that, by not renewing its license, confiscating its equipment, and failing to provide due process, Venezuela had violated Articles 8, 13, 21, 24, and 25 of the Convention. The Commission concluded that Venezuela had breached the rights to freedom of expression and equality before the law and recommended that it allocate broadcasting licenses through an open and fair process. But Venezuela argued that its Constitution prevented it from complying with the Commission's recommendations. (3) The Commission thus submitted the case to the Court in February 2013, almost six months after Venezuela denounced the Convention (on allegations that both the Commission and the Court were interfering with Venezuelan internal affairs) but before the expiration of the Convention's one-year "survival provision" (Art. 78(1)). (4)

Venezuela submitted two preliminary objections to the Court's jurisdiction. First, Venezuela argued that the Court lacked temporal jurisdiction. The Court rejected that argument because the actions at issue had occurred prior to Venezuela's denunciation of the Convention (para. 14). Second, Venezuela challenged the Court's personal jurisdiction, as the dispute involved the rights of a legal person. Again, the Court dismissed the objection by considering that it was called upon to adjudicate the potential violation of the rights of the petitioners, RCTV shareholders and employees--not the alleged violations of the rights of RCTV itself (para. 22).

Before the Court, the petitioners, the Commission, and Venezuela all argued that the Venezuelan political context was relevant to the case. This consideration led the Court to emphasize the tensions between Venezuela and some media outlets, particularly after the coverage by some private networks of the coup d'etat of April 2002. In addition, the Court noted that after the events of 2002, several state officials announced that private media outlets that refused to change their editorial position would not have their broadcasting licenses renewed. These statements were reinforced by state-supported campaigns in newspapers and the publication of the White Book on RCTV, seeking to explain why "for the Venezuelan government it was 'inconvenient' to renew RCTV's broadcasting license" (para. 86).

Despite those statements, RCTV did request the renewal of its license in early 2007. The request was denied on the grounds that the government had "decided to reserve use of that portion of the broadcast spectrum ... to allow democratization of the broadcast media" (para. 92). Moreover, two days before RCTV's license expired, the Constitutional Chamber of the Venezuelan Supreme Court issued a preliminary injunction temporarily conveying the use of all of RCTV's assets related to broadcasting (such as antennae and transmitters) to the state (para. 95). (5)

On the merits, the Court addressed three issues: freedom of expression, judicial independence, and property. First, the Court reaffirmed that the right to freedom of expression has both individual and social (collective) functions, that this freedom formed the "cornerstone for the existence of a democratic society" and, most important, that it required protecting speech that was "disagreeable to the government or any segment of the population" (para. 140). Although the Court expressly recognized that states have the right to regulate broadcasting (para. 165), it determined as well that under Article 13 of the Convention states also have the duty to promote ideological pluralism in the media. (6) It emphasized that media pluralism could not be assured by the mere existence of several media outlets but, instead, required "that the ideas and information broadcast are effectively diverse and addressed from diverging postures, without the existence of a sole viewpoint or stance" (para. 170).

The Court did not, however, find a direct violation of the right to freedom of expression. After noting that domestic law did...

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