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Supreme Court Allows RCTV Case to Proceed, but Station Must Go off Air

Caracas, May 24, 2007 (venezuelanalysis.com)— In a ruling that RCTV called “contradictory,” Venezuela’s Supreme Court ruled yesterday that the case challenging the TV station’s license non-renewal may proceed, but refused to issue a court order to allow RCTV to continue broadcasting past its license’s May 27th expiration date.

Last December, Venezuela’s President Hugo Chavez had announced that the country’s largest television network, RCTV, would not have its broadcast license renewed because of its past support for efforts to overthrow the government and its continuous violations of the country’s broadcast regulations.

In response, two months ago, RCTV petitioned Venezuela’s Supreme Court to issue an order that would allow the station to continue broadcasting and to rule that the non-renewal is illegal and violates the right to freedom of speech in Venezuela.

Yesterday, a mere six days before RCTV is scheduled to go off the air, the Court’s Administrative-Political Chamber ruled that the case challenging the non-renewal’s legality may proceed, but that even while the case is tried in court, RCTV would have to stop broadcasting when its license expires on May 27th.

Last week, the Constitutional Chamber of the Supreme Court had already dismissed a constitutional challenge from RCTV about the license’s non-renewal, mainly because the issue was already before the administrative chamber of the court.

According to the ruling issued yesterday, RCTV’s charge that its freedom of speech is being violated is not valid because RCTV’s freedom of speech on its assigned frequency is only applicable as long as its broadcast license is in effect. “Only as long as the concession lasts could the plaintiffs exercise freedom of thought and expression using the radiofrequency employed by RCTV…” said the court in a press release about the ruling. “This does not imply a violation of the referred to right in any way, as long as the plaintiffs could, within the existing broadcast media, expound their ideas, opinions, information, and contents,” it continued.

In addition, RCTV managers and employees are free to pursue their freedom of expression via other broadcast means, such as cable and satellite, stated the court’s decision.

With regard to the charge that the government violated RCTV’s right to due process, the court conceded that this is possible, stating, “In the present case it is necessary to conduct a detailed investigation of the administrative acts that are being challenged, as well as the acts of administrative authorities and to confront these with the arguments expressed on the part of the plaintiffs and the norms they refer to…”

In other words, while a full trial is warranted, the court cannot issue an order that would allow RCTV continue broadcasting because such an order could only be issued if a constitutional norm is breached, which is not the case here.

Other RCTV Charges and Court Responses

Another charge RCTV made was that the government violated the principle of the presumption of innocence, because it claimed that RCTV violated broadcast regulations, even though so far no final ruling has been issued against RCTV.

In response, the court stated that this was not true because the real reason RCTV’s license is not being renewed is to make room on the broadcast spectrum for a new public service television channel, which is constitutionally mandated. The license non-renewal thus has nothing to do with presumed violations of Venezuela’s Telecommunications Law, the Law on Responsibility in Television and in Radio, or of the Penal Code.

RCTV also charged that its right to equal treatment under the law had been violated because other broadcasters, such as the TV stations Televen, Venevisión, and VTV are in the same situation with regard to the expiration of their broadcast licenses, but these are being renewed.

Here the court responded by stating that RCTV failed to prove that it is in a similar situation as the other broadcasters. “RCTV does not demonstrate the equality of circumstances it says it has with respect to the other broadcasters; which is why the charge of the presumed violation of the right to equality and nondiscrimination is dismissed,” said the ruling.

Next, RCTV alleged that its right to the non-retroactivity of laws was violated because in 2002 a new Telecommunications Law was passed, which should have automatically extended RCTV’s license by 20 years, to 2022, since its license was in effect at that time. Here too, just as with the charge of the violation of RCTV’s right to due process, the court stated that the issue still has to be examined in detail in a full trial, saying “this situation does not correspond to being examined at this stage of the process.”

With regard to RCTV’s charge that its right to property and to non-confiscation is being violated because it can no longer engage in gainful economic activity, the court dismissed the accusation, saying that the mere license expiration has nothing to do with the confiscation of private property. RCTV demanded compensation for its economic loss that the license non-renewal implies. However, according to the court, “the expiration of the concession [license] as a natural mechanism thereof, with a term known to the concessionary [RCTV], can in no way be understood as a violation of the right to property…”

The court’s final conclusion is that RCTV has the right to try several of the charges it raises in a full trial. However, RCTV’s request to for a court order to allow it to continue broadcasting while the case is tried is denied.

RCTV Response to Ruling

In response to the Supreme Court’s ruling, RCTV issued a statement, in which it classified the ruling as “contradictory.” According to RCTV, while the court admitted the case, “in an inexplicable manner the chamber declared improper the preventive protection that was also requested by RCTV. This means that the trial against the closure will officially begin, but, for the time being, the closure announced by the government is maintained.”

The statement goes on to say that the decision supports the idea that RCTV is guilty until proven innocent. Nonetheless, RCTV says it feels vindicated in that the court recognizes that “there is compelling proof that the closure is illegal and arbitrary.”

Full ruling of the Supreme tribunal of Justice (in Spanish)

Published on May 24th 2007 at 12.10pm