The IACHR found a violation of the requirements of the American Convention on Human Rights regarding the indirect restriction of freedom of expression through the closure of a television station.

Заголовок: The IACHR found a violation of the requirements of the American Convention on Human Rights regarding the ind Сведения: 2020-06-21 04:31:32

Judgment of the Inter-American Court of Human Rights of June 22, 2015 in the case of Granier et al (Radio Caracas Television Television Company) (Granier et al. (Radio Caracas Television)) v. Venezuela (Series C, No. 293).

The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights submitted the applicants' complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. The complaint was then communicated to Venezuela.

In the case, the complaint in the case of indirectly restricting freedom of expression through the closure of a television station was successfully considered.

In the case, an indirect restriction on the freedom of expression through the closure of a television station is appealed.


Circumstances of the case


The facts of this case took place after the military coup in April 2002. The Inter-American Court of Human Rights (“the Inter-American Court of Justice”) decided that the events, combined with the reaction of the media to them, helped create an atmosphere of political tension leading to the radicalization of certain sections of the population. The Inter-American Court further found that statements by high-level government officials against independent media aimed at discrediting journalists created an intimidating atmosphere for the media.

The television company Radio Caracas Television (hereinafter - TKRKT) operated a free television channel broadcasting throughout the country since 1953, when it was granted a broadcast concession. TKRKT broadcasted entertainment and news programs, shows on political issues. Her editorial policy was based on a critical attitude towards the power of President Chavez. Before leaving the air, TKRKT had the highest ratings in all segments of the Venezuelan population. In 1987, Venezuela renewed the TKRKT concession, allowing it to function as a television station with free broadcasting and use the broadcast range for the next 20 years, that is, until May 27, 2007.

In a number of cases since 2002, Venezuelan government officials, including President Chavez, have stated that certain concessions granted to private media will not be extended. In December 2006, a formal decision was announced not to extend the TKRKT concession.

On June 5, 2002, in accordance with the schedule established by the National Telecommunications Commission (hereinafter - NCT), TKRKT requested to change its broadcast concession right to a new legal regime, which was introduced by the Organic Telecommunications Act (Ley de Telecomunicaciones) in 2000 . However, the tubing did not consider the application within the statutory two-year period and responded only in March 2007. On January 24, 2007, the TKRKT representatives requested the tubing to issue documents confirming the extension of the concession.

On March 28, 2007, the Ministry of People’s Power for Telecommunications and Informatics, which was also subordinate to the tubing, decided not to renew the TKRKT concession.

On May 25, 2007, the Constitutional Chamber of the Supreme Court of Venezuela ordered the adoption of temporary interim measures that led to the transfer of TKRKT property to the tubing in order to provide the Venezuelan Public Television Fund with the necessary infrastructure for broadcasting its programs throughout the country.

The signal of the broadcasting station TKRKT was interrupted on May 28, 2007, at 00.00. Instead of TKRKT, the Venezuelan Public Television Foundation began broadcasting its programs on channel 2 of the free television network.

Subsequently, the TKRKT resorted to various domestic remedies, including administrative and criminal proceedings, disputing the application of temporary interim measures, appealed to the court to issue a court order in order to protect constitutional rights and interests protected by law (amparo). At the date of the Inter-American Court ruling, some of these cases were still pending.


QUESTIONS OF LAW

 

(a) Preliminary objections. The Venezuelan authorities submitted that the Inter-American Court did not have jurisdiction over legal entities and that the applicants had not exhausted domestic remedies. The Inter-American Court dismissed the first preliminary objection, given that in the present case no legal entity was represented as the alleged victim of a violation of rights and that the alleged interference with the exercise of the rights provided for in the American Convention on Human Rights (hereinafter - ACHR) in this case concerned individuals, such as shareholders and company employees. The Inter-American Court also dismissed the second preliminary objection, since the argument for non-exhaustion of domestic remedies had been raised after a report had been published on the admissibility of the complaint for examination on the merits, therefore this argument was not brought forward in time.

(b) Article 13 (freedom of thought and expression) in conjunction with article 1, paragraph 1 (respect and enforcement) of the ACHR. The Inter-American Court recognized the need to regulate broadcasting and the power of the state in this regard. The latter applies not only to determining the conditions for granting, extending or revoking concessions, but also to planning and implementing public policies applicable to such activities to the extent that they comply with the standards of freedom of expression. The Inter-American Court emphasized that pluralism of opinions in the media is measured taking into account the diversity of transmitted ideas and information that must be taken into account for the purpose of granting or renewing broadcast concessions or licenses. He also emphasized that it is imperative for states to regulate in a clear and precise manner the processes associated with the granting or extension of a concession or broadcasting license, based on objective criteria that impede arbitrariness.

The Inter-American Court noted that domestic law does not provide for the right to automatically renew a broadcast concession. On two occasions, the applicants filed a request for the replacement of their broadcasting rights with a new legal regime that would entail an extension of the concession, but no proceedings were conducted on the application. The question, therefore, was whether this could be seen as an indirect restriction on freedom of expression, in violation of article 13, paragraph 3, of the ACHR.

The Inter-American Court took into account the public statements made by government officials after 2002 that television channels that had not changed their editorial policies would not resume broadcasting concessions. After 2006 and before the decision of March 28, 2007, it was repeatedly stated that the decision not to extend the TKRKT concession had already been made. These statements appeared not only in the media, but also in official publications. Based on the foregoing, the Inter-American Court concluded that the decision not to renew the TKRKT concession was made earlier than the expiry of the concession in accordance with the instructions given by the NKT executive branch and the Ministry of People’s Telecommunications and Informatics.

Regarding the reasons for the above decision, the statements of various members of the Venezuelan Government related to two aspects: (i) the reluctance of the TKRKT to change its editorial policy after the military coup of 2002 and (ii) the alleged deviation, as a result of which the TKRKT was subject to sanctions. In relation to the first aspect, the Inter-American Court emphasized that restricting freedom of expression on the basis of political disagreement between editorial policy and the position of the government was unacceptable. As regards the second aspect, the Inter-American Court dismissed it as insolvent, given that the decision of March 28, 2007 explicitly stated that these deviations were not grounds for refusing to extend the TKRKT concession.

Based on the foregoing, the Inter-American Court concluded that the facts of the present case exposed the abuse of power by the state to the extent that it wanted by legal means to force the TKRKT to bring its editorial policy in line with the state position. In this regard, the Inter-American Court referred, in particular, to the fact that the decision not to extend the TKRKT concession was made in advance and was motivated by dissatisfaction of the government with the TKKRT editorial policy. In addition, this happened in an atmosphere that was unfavorable for freedom of expression, which, in the opinion of the Inter-American Court, existed at the relevant time. The Inter-American Court also noted that the abuse of power not only affected the exercise of the right to freedom of expression by employees and leaders of the TKRKT, but also affected the social aspect of this right, depriving the Venezuelan society of access to the editorial policy presented by the TKRKT. The real goal was to put an end to criticism of the government. Together with pluralism, tolerance and a broad outlook, such criticism is necessary for democratic debate, protected by the right to freedom of expression.

Accordingly, the Inter-American Court found that there was an indirect restriction on the exercise of the right to freedom of expression by using means aimed at obstructing communication and disseminating ideas and opinions. In other words, the state seized part of the broadcasting range, thereby preventing the media that expressed critical opinions about the government from participating in administrative procedures for distributing broadcasting rights and renewing concessions. Consequently, there has been a violation of Article 13, paragraphs 1 and 3, in conjunction with Article 1, paragraph 1, of the ACHR.

The Inter-American Court further noted that there were other television stations comparable to the TKRKT, the concessions of which expired on May 27, 2007. However, with the exception of the TKKTR, all of them received broadcast concessions. For this reason, the Inter-American Court found it necessary to consider whether the decision to transmit this part of the broadcasting range originally allocated by the TKRKT to another television station could constitute discriminatory treatment for political reasons.

The Inter-American Court found that the editorial policy of the television station could be seen as a reflection of the political views of its leaders and employees, since they determine the content of the transmitted information. Thus, the critical attitude of the channel is a reflection of the critical attitude of its managers and employees involved in deciding what kind of information will be transmitted.

The Inter-American Court noted that in order to justify the differential treatment in the present case, the Government did not rely on any specific technical characteristics inherent in the TKRKT that would distinguish it from other television channels. The basis for differentiated treatment was the editorial policy of the TKRKT. This situation sent a frightening message to other media about the possible consequences of their editorial policy if it was similar to the TKRKT policy, and therefore had a “freezing effect” on freedom of expression.

Accordingly, the Inter-American Court concluded that the decision of the state to retain part of the broadcasting range allocated by the TKRKT constituted discriminatory treatment regarding the exercise of the right to freedom of expression in violation of article 13 in conjunction with article 1, paragraph 1, of the ACCHR.


RESOLUTION


The case has violated the requirements of Article 13 in conjunction with paragraph 1 of Article 1 of the AHRC (delivered by six votes in favor and one against).

(c) Section 8, paragraph 1, and Section 25, paragraph 1 (fair trial and judicial defense) in conjunction with Section 1, paragraph 1 and Section 2 (meaning of domestic law) of the ACHR. The Inter-American court found that the state violated article 8, paragraph 1, in conjunction with ACHR article 1, in relation to proceedings for extending the TKRKT concession and replacing its broadcasting rights with the new legal regime, as well as for the length of administrative proceedings and appeals against temporary security measures. The Inter-American Court did not find a violation of article 8 of the ACHR in relation to a criminal case and a violation of article 25, paragraph 1, in conjunction with article 1, paragraph 1, of the ACHR regarding court orders in amparo proceedings.


RESOLUTION

 

In the case, there was a violation of the requirements of the AHRC and no violation of the requirements of the AHRC (unanimously).

(d) Article 21 (ownership) in conjunction with paragraph 1 of Article 1 of the ACHR. The Inter-American Court concluded that it was not proven that the state violated the right of ownership for the following reasons. First, the Inter-American Court noted that the broadcasting range is in the public domain in the full possession of the state and, accordingly, its ownership cannot be the subject of a claim by private individuals. Thus, the economic benefits that shareholders could receive as a result of the extension of the broadcast concession cannot be regarded as goods or acquired rights, therefore, they were not protected by Article 21 of the AHRC. Secondly, the Inter-American court confirmed that it was not in its competence to examine the alleged violations of ACHR in relation to legal entities and therefore could not investigate the consequences that the TKRKT confiscation order could have for the company. Thirdly, the Inter-American Court has insufficient evidence of the alleged damage caused by the value of the shares held by the applicants.


RESOLUTION


There is insufficient evidence in the case to establish a violation of the applicants' rights (handed down by five votes in favor and two against).

(e) Compensation. The Inter-American Court found that the ruling in the case is in itself a form of compensation. In addition, the Inter-American Court ordered the state to: (i) restore the concession to the frequency of the broadcasting range corresponding to television channel 2, and return the assets that were the subject of temporary interim measures, (ii) as soon as the concession is restored, introduce within a reasonable time an open, independent and transparent proceedings for the allocation of the frequency of the broadcasting range corresponding to television channel 2, in accordance with the procedure established in the domestic standards, (iii) publish the decision and its official summary, (iv) take the necessary measures to ensure that all future proceedings for the allocation of the frequency of the broadcasting range and the renewal of broadcasting concessions will be conducted in an open, independent and transparent manner, (v) to pay the sums awarded by the Inter-American Court in respect of pecuniary and non-pecuniary damage, and compensation for legal costs and expenses.

See also the following cases from the case-law of the European Court: Court ruling in the case of Glas Nadezhda EOOD and Anatoly Elenkov v. Bulgaria of 11 October 2007, complaint No. 14134/02 , “Case Law of the European Court of Human Rights” N 101, Court Order in the Case of Meltex Ltd and Movsesyan v. Armenia (Meltex Ltd and Movsesyan v. Armenia) dated June 17, 2008, complaint N 32283/04, “Information Note on case-law of the European Court of Human Rights] N 109, Grand Chamber judgment Of the European Court in the case of Centro Europa 7 Srl and Di Stefano v. Italy (June 7, 2012, Centro Europa 7 Srl and Di Stefano v. Italy), complaint No. 38433/09, "Newsletter on Pre case-law of the European Court of Human Rights "[Information Note on case-law of the European Court of Human Rights] N 153.

 

 

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