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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DIAZ RUANO v. SPAIN - 16988/90 [1994] ECHR 16 (26 April 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/16.html Cite as: 19 EHRR 555, [1994] ECHR 16, (1995) 19 EHRR 555

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In the case of Díaz Ruano v. Spain*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr S.K. Martens,

Mr R. Pekkanen,

Mr A.N. Loizou,

Mr J.M. Morenilla,

Mr B. Repik,

Mr P. Jambrek,

and also of Mr H. Petzold, Deputy Registrar,

Having deliberated in private on 22 April 1994,

Delivers the following judgment, which was adopted on that

date:

_______________

* Note by the Registrar. The case is numbered 42/1993/437/516. The

first number is the case's position on the list of cases referred to

the Court in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the Court

since its creation and on the list of the corresponding originating

applications to the Commission.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 8 December 1993, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 16988/90) against the Kingdom of Spain lodged with the

Commission under Article 25 (art. 25) by a Spanish national,

Mr Antonio Díaz Ruano, on 12 July 1990.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Spain recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Articles 2 and 3 (art. 2, art. 3).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30). The President gave his lawyer leave to

use the Spanish language (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr J.M. Morenilla, the elected judge of Spanish nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 24 January 1994, in the presence of

the Registrar, the President drew by lot the names of the other seven

members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr S.K. Martens,

Mr A.N. Loizou, Mr L. Wildhaber, Mr B. Repik and Mr P. Jambrek

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Subsequently, Mr R. Pekkanen, substitute judge, replaced Mr Wildhaber,

who was unable to take part in the further consideration of the case

(Rule 22 paras. 1 and 2).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Spanish

Government ("the Government"), the applicant's representative and the

Delegate of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38).

5. On 16 March 1994 the Agent informed the Registrar that the

Government and the applicant had reached a friendly settlement and

invited him to attend the signature of the agreement. As his prior

commitments made it impossible for him to accept this invitation, the

Registrar instructed Mr P. Mahoney, Head of Division in the registry,

to represent him on that occasion. On 28 March in Barcelona the Agent

of the Government and the applicant's lawyer signed the agreement in

the presence of Mr Mahoney, who was given a copy of the text.

In a letter received on 7 April 1994, the Secretary to the

Commission informed the Registrar that the Delegate had no comments to

make.

6. On 22 April 1994 the Court decided to dispense with a hearing

in the case, having satisfied itself that the conditions for this

derogation from the usual procedure had been met (Rules 26 and 38).

AS TO THE FACTS

7. Mr Antonio Díaz Ruano lives in Ingenio (Grand Canary) and is

a farmer.

In the course of a police inquiry into several thefts

Mr Manuel Jesús Díaz Santana, the applicant's son, aged twenty-one, was

arrested at his home at 10 a.m. on 13 October 1982. Another

person - Mr F.G.C. - was also arrested in connection with the same

inquiry.

8. After the death of Mr Díaz Santana while in police custody (see

paragraph 10 below), a police officer was charged with homicide and

tried by the Las Palmas Audiencia Provincial. In its judgment of

6 December 1986 that court found the following facts relating to the

events which took place after the arrest of the applicant's son to be

established.

9. The two prisoners arrived, in handcuffs, at the police station

in Telde (Grand Canary) at 11 a.m. Whereas Mr F.G.C. was taken to a

cell, the applicant's son, who was calm and polite and whose handcuffs

had been removed, waited on a bench in the entrance to the police

station.

In accordance with the legislation in force, a lawyer was

officially assigned to assist the prisoners. Mr Díaz Santana was

questioned by two detectives between 6.00 p.m. and 7.15 p.m. in the

presence of his lawyer. He denied taking any part in the alleged

offences and remained calm, although he showed some signs of tiredness.

He then returned to his seat in the entrance hall. The detectives next

questioned his fellow prisoner, who confessed and was taken to prison.

Once the interviews were over, the lawyer left the police station and

the applicant's son was informed that he would be spending the night

there.

10. The two detectives then went to a nearby bar where they drank

a glass of whisky. On their return, maintaining that the applicant's

son had asked to see them in private, they began to question him again,

but this time without the lawyer. They gave Mr Díaz Santana to

understand that his situation would be improved if he provided them

with information to assist them with their inquiries, but he continued

to proclaim his innocence. As the discussion progressed, he began to

lose his composure and showed signs of anxiety. At 9.50 p.m., while

in a state of great agitation and feeling himself to be the object of

harassment, he seized a gun from the shoulder holster that one of the

detectives was wearing. The gun's safety catch was off and he fired

it at the other detective, who, using his police weapon, shot him and

injured him in the head. Mr Díaz Santana was quickly taken to hospital

but died during the journey.

11. The autopsy report dated 14 October 1982 noted that, in

addition to the cause of death (a cerebral haemorrhage caused by the

impact of the bullet), there were numerous superficial marks on

different parts of the body. The pathologists stated on 24 October

that they could not specify whether these marks had been caused before

or after the gunshot, but affirmed that they must have been inflicted

before death. They were, however, prepared to accept the possibility

that they had not been caused by ill-treatment.

12. On 6 December 1986 the Las Palmas Audiencia Provincial found

the detective who had shot the applicant's son guilty of homicide with

the extenuating circumstance of self-defence ("eximente incompleta de

legítima defensa") and sentenced him to two years and four months'

imprisonment. He was also ordered to pay compensation to the victim's

family, the State being declared liable for such compensation in the

event of his failure to pay. The court took the view that the police

officer could not be completely exonerated as he had provoked the

victim by harassing him. It found further that there was insufficient

evidence to determine the cause of the marks on the victim's body.

13. Mr Díaz Ruano, who had joined the proceedings as a civil party,

the convicted detective and counsel for the State appealed on points

of law.

On 6 June 1989 the Criminal Division of the Supreme Court

upheld the appeals filed by the detective and counsel for the State.

Finding that the police officer had acted in self-defence, it quashed

his conviction. In a dissenting opinion appended to the judgment, two

judges expressed the view that the defendant could not be completely

exonerated, because the prisoner's attack had been in response to

provocation on the part of the police officers.

14. On 29 January 1990 the Constitutional Court declared

inadmissible an appeal (recurso de amparo) by the applicant alleging

breaches of Articles 15 (right to life and prohibition of torture and

inhuman or degrading punishment or treatment) and 24 (right to

effective judicial protection) of the Constitution.

PROCEEDINGS BEFORE THE COMMISSION

15. Mr Díaz Ruano applied to the Commission on 12 July 1990. He

alleged that his son had been subjected to torture and inhuman and

degrading treatment while in police custody, in breach of Article 3

(art. 3) of the Convention, and complained that he had been questioned

without a lawyer being present, in violation of Article 6 paras. 1 and

3 (c) (art. 6-1, art. 6-3-c).

16. On 9 December 1992 the Commission declared the complaint

relating to the absence of a lawyer during the interview inadmissible

but found the remainder of the application (no. 16988/90) admissible.

It considered in addition that the case also raised issues under

Article 2 (art. 2) (right to life).

In its report of 31 August 1993 (Article 31) (art. 31), it

expressed the opinion that there had been no violation of Articles 2

and 3 (art. 2, art. 3) of the Convention, by seven votes to five and

eight votes to four respectively. The full text of its opinion and of

the dissenting opinion contained in the report is reproduced as an

annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 285-B of Series

A of the Publications of the Court), but a copy of the Commission's

report is available from the registry.

_______________

AS TO THE LAW

17. On 28 March 1994 the Agent of the Government and the

applicant's lawyer signed the following agreement in Barcelona:

"1. In case no. 16988/90, examined by the European

Commission of Human Rights, which adopted its report relating

thereto on 31 August 1993, the Kingdom of Spain undertakes to

pay the applicant the sum of 6,000,000 pesetas (six million

pesetas) on account of the events which gave rise to the

application.

2. The payment of the above sum, which covers all the costs

and expenses incurred by the applicant, shall be made as an ex

gratia settlement and shall not in any way constitute an

acknowledgement by the Spanish authorities that the provisions

of the Convention have been violated in the aforesaid case.

3. Regard being had to the undertaking given in paragraph 1,

the applicant and the Spanish Government request the European

Court of Human Rights to strike case no. 42/1993/437/516 out

of the list under Rule 49 para. 2 of the Rules of Court, since

the agreement reached is of a kind to provide a solution of

the matter.

4. In addition, the applicant declares that he considers the

case settled and that he will not institute any further

proceedings before the national or international authorities

in respect of the events which gave rise to the above

application."

18. The Delegate of the Commission was consulted (Rule 49 para. 2

of the Rules of Court) and indicated that he had no comments to make.

19. The Court takes formal note of the friendly settlement reached

by the Government and the applicant. It discerns no reason of public

policy (ordre public) why the case should not be struck out of the list

(Rule 49 paras. 2 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of the Rules of Court on

26 April 1994.

Signed: Rolv RYSSDAL

President

Signed: For the Registrar

Herbert PETZOLD

Deputy Registrar