Supreme Court quashed Criminal Cases against Italian Marines in India

 

INTRODUCTION

 

On today’s show, we will discuss a latest judicial pronouncement by the Hon’ble Supreme Court of India, namely, Massimilano Latorre and Others versus Union of India and Others, 2021 SCC OnLine SC 428, wherein an unfortunate incident that took place in the year 2012, leading to death of two Indian fishermen due to firing from an Italian vessel M.V. Enrica Lexie, will be discussed.

 

BACKGROUND

 

The brief facts of the case are that on the fateful day of 15.02.2012, M.V. Enrica Lexie was sailing from Singapore to Egypt and while it was around 20.50 Nautical Miles off the Indian coast, within the Contiguous Zone of India’s Exclusive Economic Zone (EEZ), some shots were fired from the said Italian Vessel, leading to death of two Indian Fisherman, aboard the Indian boat, St. Antony.

 

In this regard, two Italian Special Corps/Marines, Massimiliano Latorre and Salvatore Girone, aboard M.V. Enrica Lexie were arrested by the Indian authorities on the charges of Murder under Section 302 of the Indian Penal Code.

 

However, in both the Indian Courts and the International forums, the Italian Government claimed that India has no jurisdiction to try the matter or conduct investigation in the case, since the incident had occurred on the international waters that is beyond the territory of India.

 

Subsequently, the matter came up before the Permanent Court of Arbitration, located in the Hague, Netherlands under the Convention accepting the Jurisdiction of the International Tribunal for the Law and the UN Convention on the Law of the Sea. The Permanent Court of Arbitration held in the year 2020 that the Italian Marines are entitled to immunity in relation to the acts committed by them during the incident, and India is precluded from exercising its jurisdiction over the marines. Further, it was also held that the India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered. The said Arbitral Tribunal pronounced its Award on 21.05.2020 wherein Italy’s commitment of resuming criminal investigation against the marines in their country was recorded and a total compensation of ₹10 Crores would be given to the family members of the deceased fishermen and the owner of the boat, St. Antony.

 

PROCEEDINGS BEFORE THE SUPREME COURT

 

The Indian Courts continued to exercise jurisdiction and ultimately, the matter came up before the Supreme Court in relation to maintainability of proceedings. The Italian Marines argued that India and Italy are signatories to UNCLOS (UN Convention on the Law of the Sea) and had agreed to resolve the dispute in terms of binding dispute resolution mechanism provided in Annexure VII to the UNCLOS, before an Arbitral Tribunal that is the Permanent Court of Arbitration. This Tribunal has duly pronounced its Award.

 

The legal heirs and the owner of the boat also gave their consent to accept the amount of compensation offered and it was prayed that the criminal proceedings against the Italian Marines be quashed in exercise of the powers under Article 142 of the Constitution of India.

 

It is pertinent to note that the amount of ₹10 Crores as compensation is over and above to what has been paid as ex gratia sum to the kith and kin of the deceased fishermen. The Court observed that the Union of India, relatives of the deceased, owner of the boat, government of Italy, all seem to have accepted the Award dated 21.05.2020 and the amount of compensation seems to be satisfactory. Hence, the Hon’ble Supreme Court was of the view that the present case is a fit case to close all the proceedings in India including criminal proceedings and quashed the same.

 

CONCLUDING REMARKS

 

Many people are saying that in this case, the Supreme Court has introduced the concept of blood money in India and any foreigner can kill any Indian and later on, get exonerated by paying handsome compensation. I beg to differ with such a reasoning because, the Permanent Court of Arbitration categorically observed that piracy at sea constitutes an international crime and it specifically stated that “the Marines did not target the “St. Antony” as a fishing vessel, but on the suspicion that it was a pirate vessel intending to board the “Enrica Lexie”.” In order to substantiate this finding, the Permanent Court of Arbitration determined that the action of the Marines to protect Enrica Lexie did not result in a breach of Italy’s obligation of ‘due regard’ for the sovereign rights of India; however, the same did result into “St. Antony” being prevented from navigating its intended course.

 

My point in explaining all this is that the dispute at hand involved elements of International Law as well and to say that it is pure and simple ‘blood money’ approach, is something entirely wrong and misconceived in my humble opinion.

 

We must not forget Article 73 (1) (b) of the Constitution of India that provides that the Central Government has the power to exercise rights and authority that are provided under a treaty to which we are a signatory. We are a signatory to the UNCLOS. Similarly, Article 253 of the Constitution of India provides power to the Parliament to make laws for giving effect to international covenants. Under such laws and others, India is bound by many principles of customary international law. Therefore, to contend that India should not have left the Italian Marines is a misplaced argument. India, like other countries, is bound by the International Treaties.

 

And lastly, it is not the case that the Italian Marines have been left scot-free. They will face trial in their respective country based on the laws that apply to them. Further, though compensation is never sufficient to replace a deceased person, yet it serves as a mark of gratitude and compassion to the legal heirs of the deceased. Thus, I feel that the Supreme Court rightly interpreted the obligations of India in relation to the UNCLOS and other international treaties. The incident that took place in the year 2012 was an unfortunate one but there is no point in dragging the same in contravention of the established tenets of International Law. Those were my views on this case.

 

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