PARTIALLY DISSENTING OPINION OF JUDGE ALBERTO PÉREZ PÉREZ

CASE OF GRANIER ET AL. (RADIO TELEVISIÓN) V.

JUDGMENT OF JUNE 22, 2015 (Preliminary objections, merits, reparations and costs)

1. I have voted against declarative paragraphs 3 and 4, and operative paragraphs 15 and 16, for the following reasons.

I. Freedom of enterprise and not freedom of expression

2. The central point of my dissent stems from the third operative paragraph which declares a violation of “Article 13(1) and 13(3) in relation to Article 1(1) of the American Convention owing to an indirect restriction of the exercise of the right to freedom of expression to the detriment of Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga and Larissa Patiño.” In my opinion, the rights defended by the presumed victims are not related to freedom of expression, but rather to the financial interests of those who, through a complicated network of legal entities,1 are the real owners of RCTV C.A, as indirect shareholders. (In the interests of brevity, although with less precision, we will refer to them as “shareholders.”)

Subjective aspect

3. Initially, in the original petition lodged before the Inter-American Commission on Human Rights (“the Commission”), the representatives identified as presumed victims physical persons who, according to their description, “were RCTV shareholders, journalists or employees.”2 They identified the 78 persons who appear in footnote 11 of the judgment as “journalists,” the 89 persons who appear in footnote 12 as “employees,” the 14 personas who appear in footnote 9 as “executives,” and the seven persons who appear in footnote 10 as “shareholders.” This gives a total of 187 persons, because Marcel Granier appears on the last two lists, as a Board member and shareholder.3 In the brief with motions, pleadings and evidence the “executives” became “employees” and four members of the Board who had not appeared in any of the original lists were added4 (footnote 12, second paragraph)

4. That list was drastically reduced to only 21 (including 7 shareholders) in the Commission’s Merits Report5 and, in relation to violation of Article 13(1) and 13(3), and reduced even further, to 11 (including 3 shareholders), in the judgment.6 In reality, according

1 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 65. 2 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 20. 3 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 20. 4 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 20, footnote 12. 5 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 21. 6 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, operative paras. 3 and 4. 2

to the Court, the criteria for inclusion on the list of victims of the indirect restriction of the right to freedom of expression was the “real impact on the communications mission of the company.”7 Based on the total number of violations declared by the Court, the list of victims is variable: the 7 indirect shareholders in relation to the right to due process in the proceedings on the transformation of the titles and renewal of the concession8 and the right to a hearing and a reasonable time in the processing of the action on joint and separate interests;9 11 in relation to the indirect restriction of the exercise of the right to freedom of expression10 and the obligation of non-discrimination,11 and 19 with regard to the right to a reasonable time in the administrative proceedings for annulment12 and the right to a reasonable time in the processing of the unspecified interim measure in the context of the administrative proceedings for annulment.13

5. Also, the fifteenth and sixteenth operative paragraphs bear no relationship to any of the paragraphs declaring violations, and consider that the legal person, RCTV, is a victim, and substantially, its seven indirect shareholders.

6. Thus, from a subjective perspective, 168 journalists, employees and executives who were included in the original petition have been omitted from the protection of the judgment, and 176 of these from the protection of freedom of expression. The beneficiaries of the findings and reparations in relation to the most important aspects are the seven shareholders. The other individuals who have been considered victims on some points, citing their supposed capacity as employees, in reality were part of another category because they were senior executive personnel.

Objective aspect

7. The reduction of the number of people involved in the proceedings before to Court to seven individuals – the shareholders – also explains why, from an objective point of view, the claims that were asserted and the results finally obtained were related not to the individual and social values associated with freedom of expression, but rather to the RCTV company and its owners. Several points illustrate this assertion.

8. First, the shareholders did not assign priority to the possible concession of another channel that would have allowed them to continue operating. Indeed, paragraph 209 notes that the representatives indicated that “there were other free and available frequencies on the radioelectric spectrum.” Their arguments reveal that they were more interested in underlining that there were also “the frequencies of another station in the same legal, technical and commercial conditions as RCTV, so that there was no reason that justified why it had to be precisely the RCTV frequencies that had to be used to permit the alleged democratization of the media.” But, if there were other “free and available” frequencies, and if they wanted to defend freedom of expression, the most logical and natural reasoning would be that RCTV should have requested one of these frequencies.

9. The judgment also refers to the State’s assertion (which was not contradicted by the

7 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, paras. 153 and 158 to 160. 8 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, operative para. 5. 9 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, operative para. 8. 10 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, operative para. 3. 11 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, operative para. 4. 12 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, operative para. 6. 13 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, operative para. 7. 3

representatives) that “[r]egarding the reasons to assign ‘the RCTV signal rather than that of another television station,” it stated that, “of the VHF signals that exist, that of Channel 2 is the one that has the greatest reach owing to its location on the electromagnetic spectrum band; technically speaking, this signal is the one that is the most advantageous; it is the first signal on the dial on the electromagnetic spectrum band; it has the greatest reach, even more than a State signal, such as Venezolana de Televisión, and therefore requires less investment to distribute it.” It added that “[t]here are considerable savings in technical and infrastructure costs and the signal has significant reach nationwide; in addition, the antennas, the towers, their location – the attributes of the concession, as this is defined in article 110 of the Telecommunications Organic Law – are specific for each signal; in other words, the RCTV infrastructure, specifically its transmitters, is only suitable for use with that particular signal.’”14 The State also indicated “that the selection of the RCTV chain was due “merely to technical reasons,” because “the frequencies have viewing channels,” so that “the frequencies 2 and 3, which [were] those that RCTV [had, are those that are] closest to the earth; therefore, they have a greater reach, they extend further and require less expensive equipment.” It added that “it was the only channel […] that had nationwide coverage” and emphasized that, it was “a technical necessity.”15

10. This assertion appears to corroborate the following information that can be found by a simple search on the Internet.16 In 1953, “two private commercial television stations were inaugurated, Televisa (unrelated to the actual Mexican chain) and Channel 4 on the VHF band, on June 1, and Radio Caracas Televisión (RCTV) on 174-180 MHz on November 15. Subsequently, the latter company asked to change Channel 7 for Channel 2 on the VHF band to improve its coverage in Caracas” (italics added). The representatives’ failure to refute this point means that the argument in the judgment that cites extensively “the inversion of the burden of proof as a result of from the application of a prohibited type of discrimination contained in Article 1(1) of the Convention”17 is unconvincing.

11. The predominance given by the representatives to the material and financial interests is expressed also in the exorbitant request for compensation. Indeed, they ask for 384,458,356 dollars for “the financial prejudice that the devaluation of [RCTV] caused the shareholders” [and] “33,166,954 dollars for transmission equipment made abroad, the general transmission network, sites for placement of transmitters and other equipment, as well as reports on strategic signal coverage in the territory of Venezuela,”18 for a total of 417,625,310 dollars.

II. Inadmissibility of the restoration of the concession

12. The fifteenth and sixteenth operative paragraphs are absolutely contradictory to the general reasoning of the judgment, in which it is clearly stated that RCTV did not have a right to the renewal and that there was no automatic renewal either.

Inexistence of the right to renewal of the concession of a television channel or to automatic renewal

13. The restoration of the concession would only have been justified if the judgment had

14 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 212. 15 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 213. 16 “Televisión en Venezuela”. 17 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 230. 18 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 398. 4

admitted the argument of the company that, in the words of the Court, using “contradictory concepts, using them indistinctly, […] had argued that RCTV had a preferential right, a right to extension of the concession, and a reasonable expectation of renewal or of an automatic renewal”19.

14. Far from this being the case, the Court rejected – and quite rightly – each and every one of these argument.

a. “[T]he Court notes that the electromagnetic spectrum is a public commodity within the State’s domain and, therefore, its ownership cannot be claimed by private individuals. Consequently, it is not possible to affirm that RCT.V and, in particular, its shareholders had acquired a right to, or ownership of, the spectrum.”20

b. “[T]he 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.”21

c. The law in force in Venezuela “makes no mention whatsoever that the State was obliged to grant the renewal, nor does it establish an automatic extension to those who requested the transformation of titles. Furthermore, it should be underlined that expert witness Morles Hernández stated that:

Under Venezuelan law there is no explicit legal formula that indicates that the holder of a concession has a right to the renewal of the administrative contract.”22

d. “In addition, regarding whether, under international law, there was an obligation to renew broadcasting concessions, the Court concludes that this obligation is not established in international law. Also, regarding whether a right to the renewal of broadcasting frequency concessions may be deduced from comparative law, the Court has no evidence and no arguments were presented that could support this assertion.”23

e. Based on the above, it may be concluded that the alleged restriction in this case is not derived from the fact that the concession held by RCTV was not renewed automatically, because it cannot be deduced from the preceding analysis that the State was obliged to do this.

Lack of congruence between the legal grounds accepted by the Court and the final decision to require the re-establishment of the concession

15. Consequently, the final decision to require the re-establishment of the concession of the television channel to RCTV is contrary to the legal reasoning presented by the Court. In

19 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 172. 20 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 342. 21 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 343. 22 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 178. 23 Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 179. 5

other words, it is totally unfounded.

Alberto Pérez Pérez Judge

Pablo Saavedra Alessandri Secretary