The Fifth Section of the Contentious Chamber has confirmed the judgment of the National Court that declared the patrimonial responsibility of the State for the damages caused to the widow and the two children of José Couso due to the omission of diplomatic protection after the death of said chamber of television during the taking of Baghdad (Iraq) on April 8, 2003.
The Chamber dismisses the appeal filed by the State Attorney against the contested judgment that recognized the right to compensation of 182,290 euros to the chamber’s family (99,430 euros for the widow and 41,430 for each of the children).
The judgment examines the Provision that Spanish citizens can invoke the diplomatic protection of the Spanish State when they have been caused damage by an internationally wrongful act by another State, determining the content of the protection and the effects in the case that it is not provided in a timely manner, and may generate the patrimonial responsibility of the Public Administration, not in terms of compensation for the damage caused, which is never guaranteed with diplomatic protection, but by deficient diplomatic protection or the denial of It.
The sentence, a presentation by magistrate Wenceslao Olea Godoy, declares, for the purposes of establishing jurisprudence, that “Spanish citizens have the right to diplomatic protection by the national Administration, for compensation for the damages caused by an illegal act, in accordance with to International Law, caused directly by another State; as long as the injured party himself has not been able to obtain reparation through the internal law mechanisms of the State producing the damage, provided that they are established and it is reasonable to obtain an express ruling in a reasonable time ”.
It adds that “the aforementioned right includes the use of diplomatic channels that are considered appropriate, in accordance with the rules of the external action of the Administration, or by other means admitted by International Law, aimed at repairing the damage caused, provided that these means make it reasonably admissible ”.
Consequently, -indicates the Chamber- “the claim will proceed, in concept of patrimonial responsibility of the Administration, when it is proven that the Spanish State has not provided diplomatic protection, in accordance with the requirements that are demanded of it and taking into account the loss opportunity that said omission would entail, provided that the remaining conditions of said responsibility concur ”.
In the specific case, the Chamber concludes that the Spanish State omitted the protection that was required of it and that it was obliged to grant the family of José Couso. Thus, it states that “the Spanish State was obliged, as stated in the judgment under appeal, to take steps towards an objective international investigation of the facts and, where appropriate, use the means it deems appropriate that could result in reparation of the damage caused, not to shut up as an answer or limit to accept as good the arguments given against the illegality of the act by the State that caused it, insofar as it is true that the Spanish State cannot impose said declaration at the international level, the Spanish State was not obliged to accept these explanations as good, as was said before ”.
It adds that “what is not admissible is to omit any action that is not to accept as good the brief explanations given by the authorities of the State that caused the damage, but rather to seek an objective assessment of the facts, with the consequences that may result. coming ”.
The Chamber points out that discretion in our Law does not imply absolute freedom for the Administration to adopt a decision that could incur arbitrariness, by departing from the purposes for which that power is conferred. “Hence the need for the motivation that, having been omitted from all points in the present case, generates the functioning, and also abnormal no matter how irrelevant, of the public services, generating the damage that is not, in principle , the one caused by the death of the father and husband of the initial appellants, but the loss of opportunity for them to have obtained reparation for the damage caused. And it is this loss of opportunity that is accepted by the sentencing Chamber of instance with the assessment of the damages that are declared in its sentence,
In its judgment, the court rejects the allegation of the State’s lawyer that the appellants did not exhaust the domestic remedies of claim before the courts of the United States. In this sense, it states that a claim of this nature requires significant financial availability that the appellants could not assume. In short, “if the Administration considered that the alleged need to have made said claim was so necessary, the Spanish Administration could not assume that claim, which is not included in the protection, but provide the means for said claim” .
For the Chamber, the decisive factor in rejecting the argument of the filing brief is to consider that the National High Court “does not recognize the right to compensation for the death of the father and husband of the appellants, even less, because the Spanish State must assume the risk of a national professional who dies in the exercise of his activity, but the title of imputation, necessary to assess the patrimonial responsibility, is the fact that the Spanish State omitted the protection that was required and that it was obliged, as we have seen ”.