SC agrees to take up on April 9 Centre’s urgent plea to dispose Italian marines case

The Supreme Court has agreed to hear on April 9 an interim application filed by the Centre in the matter of two Italian marines accused of killing two Indian fishermen off the Kerala coast in February 2012, also known as the Enrica-Lexie case.

A three-judge Bench of CJI Bobde, Justice Bopanna and Justice Ramasubramanian made the observation after a request for urgent hearing was made by Solicitor General Tushar Mehta during the mentioning on Wednesday.

When CJI Bobde asked Mehta that the SC had asked the Centre to obtain some orders from trial court, the latter submitted that the matter is now settled.

On the last hearing of the case, the court had asked the government to contact the victims.

The court was told that the victims had been contacted and had been compensated. Mehta said that the matter was only to be disposed and nothing remained to be adjudicated, as per a report carried by Live Law.

In response to the court's observation that the matter will be heard next week, SG Mehta requested the court to take it up on Friday. He stated that there is some urgency involved as the matter is between the Italian and Indian government.

It may be noted that the apex court had in August 2020 refused to close the pending cases against the two Italian Marines without hearing the families of the victims. It had asked the Centre to implead the victims in the case and said that they should be paid adequate compensation.

"We want you to pay not reasonable but ‘adequate’ compensation. You will bring the cheque here and submit it before this Court. Mr. Mehta, join the victims' families as parties here", CJI SA Bobde had told Solicitor General Tushar Mehta.

The Union of India had filed an application, seeking the closure of all the pending cases against two Italian Marines who had been accused of killing two fishermen from Kerala by mistaking their fishing boat for a pirate boat and opening fire at it.

The application was filed in the light of the award passed by the Permanent Court of Arbitration in the dispute between India and Italy over the firing incident which took place near the shores of Kerala in February 2012.

On July 2 last year, the Permanent Court of Arbitration rendered its judgement, unanimously holding that India is entitled to claim compensation from Italy. It also held that the Marines are entitled to immunity in relation to the acts that they committed during the incident and that India is precluded from exercising its jurisdiction over the Marines.

The government of India had filed a special leave petition before the Supreme Court on July 3 seeking disposal of all criminal proceedings against the two Italian marines in the eight-year-old Enrica Lexie case.

The government said that it had “decided to accept and abide” by the order passed by the Arbitral Tribunal constituted under the United Nations Convention on the Law of the Sea, which held on July 2 that “India is precluded from exercising its jurisdiction over the marines and entitled to claim compensation from Italy”.

In September 2015, the Supreme Court had ordered a stay on all proceedings in Indian courts during the pendency of the case filed by Italy before the international tribunal.

Reacting to media reports that India had failed to present strong arguments before the international tribunal, Kerala Chief Minister Pinarayi Vijayan had on July 4 last year described the outcome of the case in the international court and the Union government’s decision as “unfortunate”. He said the Kerala government also had reservations about the Central government’s decision to seek disposal of all related cases before the Supreme Court.

He had urged the Centre to take adequate follow-up measures on the issue of compensation, as the tribunal had said that India should now consult and reach an agreement with Italy for compensation for “loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of St. Antony (the fishing vessel)”.

On February 15, 2012, Italian marines on board the commercial oil tanker MV Enrica Lexie shot and killed two of the 11 crew members of the Indian fishing vessel. The vessel was seized by the Coast Guard after it was redirected to the Kochi port. The two Italian marines Massimiliano Latorre and Salvatore Girone, who were on guard duty at the time of the incident, were arrested on February 19 on the charge of murder under Section 302 of the Indian Penal Code.

Valentine Jalastine (45) from Kollam and Ajesh Binki (25) from Kanyakumari, the fishermen who died, became the first known victims of irresponsible action by security units deployed in merchant vessels to tackle piracy in the high seas.

From the early stage of the case in the Kerala High Court, Italy had claimed that it had already initiated criminal proceedings against the marines under its law and that, upon conviction, they could get a prison term of not less than 21 years.

On April 23, 2012, the Italian government reached an agreement with the legal heirs of the two fishermen, who had impleaded themselves in the case before the High Court. Based on the agreement, the heirs announced that they were withdrawing unconditionally all legal proceedings against the marines.

Under the terms of the agreement reached with the knowledge of the High Court and the Lok Adalat, the Italian government was to pay a compensation of Rs.1 crore each to the two families, an act that came in for criticism by the Supreme Court subsequently.

The criminal case filed by the state police, however, went ahead and was first taken to the Supreme Court and then to the international tribunal.

The incident and subsequent developments soured relations between India and Italy, with both countries raising equally strong claims on who had the jurisdiction to try the case.

Further, the facts of the case complicated the legal battle. For one, the shots were fired by Italian marines privately hired for guard duty in a private Italian vessel, but the victims were unarmed Indian fishermen on an Indian vessel near the Indian coast and on a routine fishing expedition within India’s exclusive economic zone.

The incident occurred either near or beyond India's territorial sea (up to 12 nautical miles from the shore) where it enjoys sovereignty, or within the contiguous zone (area adjacent to the territorial sea between 12 nautical miles and 24 nautical miles) where the country, arguably, has control only over specified offences.

Italy’s argument was that the United Nations Convention on the Law of the Sea provides for the exclusive jurisdiction of the flag state over the ships that operate on the high seas; that the event occurred on the high seas, beyond India's territorial waters and jurisdiction; and that the two marines were only performing their duty “to prevent piracy” and were, therefore, eligible for sovereign immunity.

India argued that the case was well within its jurisdiction because two unarmed Indian citizens were killed on an Indian fishing vessel and that claims of the act being committed just beyond the country's territorial waters would not invalidate the legally valid claims (under the provisions of the Indian Penal Code) favouring justice for the Indian victims through Indian laws and courts.

Both sides also argued that because it involved crimes by or against their citizens, under their own laws, they should be allowed to conduct the investigation and prosecution.

After an eight-year-old legal battle, the international maritime tribunal rejected India's claim for exclusive jurisdiction to try the two Italian marines.

In a clear setback to India, which had been insisting that the marines must face trial as per the Indian law, the tribunal said the marines were “entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines”.

The tribunal, however, ruled that Italy should pay compensation to India for “the loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew” of the Indian fishing vessel.

The tribunal also rejected Italy’s claim to compensation for the detention of the marines.