#Debriefed: Behind the Italian marine’s release (Part I)

On May 26, the Supreme Court of India allowed Italian marine, Sergeant Major Salvatore Girone, to return to Italy. The move brought to an end the legal saga that had begun with the arrest of two marines for killing two Indian fishermen on February 15, 2012..In this edition of #Debriefed, Bar & Bench pieces together the various aspects of this case. In Part I, we look at how Italy took the matter to the international forum, to effectively block the trial of the case in the Supreme Court-created Special Court in India..We begin from the beginning..What happened on February 15, 2012?.Two Indian fishermen, Valentine Jalastine (aged 45) and Ajesh Binki (aged 25), part of a 11-member crew on a small boat, St. Antony, had embarked on a 10-day fishing expedition on February 7, 2012. On February 15, 2012, about 14 nautical miles off the Alappuzha coast, they decided to try their luck farther into the sea..Of the 11 crew, only Jalastine, at the steering wheel, and Binki on watch at the bow, were awake when they were shot dead by marine guards on MV Enrica Lexie, an Italian oil tanker, which was sailing from Singapore to Egypt. The marines wrongly assumed that the fishermen were pirates..Italy claimed that India asked Enrica Lexie to proceed to Kochi to assist in the investigation of “an incident, characterised as involving a firing on skiffs suspected of piracy”. The Italian vessel subsequently learnt that India was simply saying as such, and the true reason was not communicated, which was to arrest the ship and the individuals on board suspected of killing the two Indian fishermen..Enrica Lexie had no choice but to comply with India’s direction and to enter India’s territorial sea and proceed to anchor at Kochi. Italy would later claim that the vessel was interdicted in international waters, directed to alter course, and was continuously contacted and shadowed until it arrived in Kochi..India, however, denied that there was any preconceived intention to arrest the ship or anyone on board. In order to clarify what happened, the vessel was requested to head to Kochi, India claimed..What was the initial defence of the Italian Marines?.The Italian marines initially claimed that they fired warning shots, giving optical signals, to ward off St. Antony, which they suspected to be carrying armed men..What happened after the shooting?.The Kerala Police seized Enrica Lexie, and on February 19 arrested the two Italian marines, Latore Massimiliano and Salvatore Girone, who were on board. They were accused of the offence of murder, under Section 302 IPC, and a criminal case was registered against them..Did the victims’ families get any compensation?.The Italian government paid a compensation of one crore each to the legal heirs of the two fishermen killed by the marines, following which the heirs withdrew the legal proceedings against the marines unconditionally. But the criminal case against them continued..What is Italy’s legal defence?.Italy cites Article 97 of the United Nations Convention on the Law of the Sea (UNCLOS), which says: “In the event of a collision or any other incident of navigation concerning a ship on the high seas”, only the flag state of that ship can launch penal proceedings..Therefore, Italy has questioned India’s jurisdiction..How did the case land in the Supreme Court?.The Kerala High Court initially claimed jurisdiction, and dismissed the marines’ quashing petition. The marines went in appeal, and on January 18, 2013, the Supreme Court held that the Centre and not Kerala, had jurisdiction beyond territorial waters. Hence the Kerala police, and the trial court did not have jurisdiction in the case..The Supreme Court also held that the incident had taken place at a distance of about 20.5 nautical miles from the coastline of Kerala and, therefore, had not occurred within the territorial waters of the coastline of Kerala, but within the Contiguous Zone over which the Kerala police has no jurisdiction..It directed the setting up of a special court in Delhi to try the case, and allowed the marines to challenge India’s jurisdiction over the matter in that court..It was for the first time that a federal criminal court was directed to be set up, to try a federal crime..The National Investigation Agency took five months to complete a preliminary investigation into the incident. On April 4, 2013, the NIA filed a FIR against the marines pressing charges under sections 302 (murder), 307 (attempt to murder), 427 (mischief causing damage to the tune of Rs.50 and above) and 34 (Acts done by several persons in furtherance of common intention) of IPC..The special court was set up, and hearings were to begin on July 31, 2013, when the Government dropped the charge under The Suppression Of Unlawful Acts Against Safety Of Maritime Navigation and Fixed Platforms On Continental Shelf Act, 2002..The Act provides for mandatory death penalty for the convicts, which is a possible ground to oppose India’s jurisdiction to try the offence by Italy, and is also inconsistent with India’s promise to Italy that the marines would not be given death sentence..Why were the marines allowed to visit Italy earlier, after their arrest and during the pendency of the case?.In December 2012, the Supreme Court allowed the two marines to spend Christmas in Italy. In February 2013, they again secured permission from the Supreme Court to travel to Italy to vote in the general elections..In March 2013, Italy refused to send the two marines back to India. It is only when the Supreme Court restrained the Italian Ambassador Daniele Mancini from leaving India without its consent, refusing to grant him immunity as he stood guarantee for the marines, that Italy agreed to send the marines back..Meanwhile, in September 2013, the Supreme Court allowed Latorre to go to Italy for treatment after he suffered following a brain stroke. The leave for four months, was repeatedly extended by the Supreme Court on humanitarian considerations..Girone continued to be under “arrest”, and was allowed to stay within the residence of the Italian Ambassador in New Delhi, subject to the obligation to report weekly to a nearby police station. His family was entitled to visit him and had done so on several occasions. His son and his wife had visited him nine times, his sister six times, and his parents five times..When and why did Italy take the matter to international arbitral tribunal?.On June 26, 2015, Italy instituted proceedings against India before an Arbitral Tribunal to be constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea [UNCLOS], to challenge India’s jurisdiction to try the offence, and on the ground that proceedings in India had taken an inordinately long time, and there was no prospect of early completion..On July 21, 2015, pending the constitution of the Arbitral Tribunal, Italy filed before the International Tribunal for the Law of the Sea [ITLOS] a request for the prescription of provisional measures under Article 290, paragraph 5 of the Convention..Did the proceedings in ITLOS go uncontested by India?.India submitted its written observations on Italy’s request for provisional measures on August 6, 2015 and in its final submissions, requested ITLOS to refuse prescription of any provisional measures. On August 10 and 11, 2015, a hearing on provisional measures was held at the premises of ITLOS in Hamburg, Germany..On August 24, 2015, ITLOS prescribed the provisional measure, asking both Italy and India to suspend all court proceedings, and to refrain from initiating new ones. India’s reservations over provisional measures went unheeded by ITLOS..How have these provisional measures impacted the legal proceedings in India?.India informed ITLOS that the Supreme Court of India had ordered that four proceedings that were pending in the Indian courts be “stayed/deferred till further orders”..In November 2015, a five-member Arbitral Tribunal was constituted for the arbitration between the two countries. The verdict of this tribunal will be binding on the two sides. Both Italy and India have appointed one arbitrator each to this tribunal. India’s nominee is Patibandla Chandrasekhara Rao..(More in Part II)