Thursday, February 22, 2024

Batting For the Victims

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Even as the centre requested the apex court to let it withdraw the case against the Italian marines following a UN tribunal decision, the bench rejected it saying it won’t pass any order without hearing the victims’ kin

By Shaheen Parween

The Supreme Court refused to pass any order on the centre’s plea seeking closure of the case against two Italian marines who were accused of killing two Indian fishermen in 2012 off the coast of Kerala. The Court said that the case will be closed only after hearing the victims’ families and adequate compensation is paid to them.

On May 21, the Permanent Court of Arbitration (PCA) at The Hague in the Netherlands had ruled that India was entitled to compensation from Italy “in connection with loss of life, physical harm, material damage to property (including the ‘St. Antony’) and moral harm suffered by the captain and other crew members of the ‘St. Antony’, which by its nature cannot be made good through restitution”. The Tribunal, however, said that they cannot be tried in an Indian court. Following this, the Indian government on July 3 approached the Supreme Court seeking disposal of pending proceedings in Chief Master Sargeant Massimiliano Latorre and Others vs Union of India and others.

Solicitor General Tushar Mehta, appearing for the Union government, submitted before the bench comprising Chief Justice of India SA Bobde and Justices AS Bopanna and V Ramasubramanian that Italy had assured the Indian government that it would criminally prosecute the marines and provide compensation to the victims’ families. Mehta further argued that as the marines were now under the public prosecution of Rome, all cases pending before the Supreme Court be closed.

The bench said that while it appreciated the steps taken by Italy to prosecute the marines, adequate compensation should be paid to the victims’ families since this was the issue pending before the Court. Mehta thereafter assured the bench that the centre would ensure that maximum compensation is paid to them.

The bench also questioned Mehta on the case pending before the Special Court against the Italian marines. The bench said that without applying for withdrawal of prosecution before the Special Court, the centre cannot approach the Supreme Court seeking closure of the case.

“The fact is there is a criminal charge being tried here in India where the victims’ families are also appearing. Without applying for withdrawal of prosecution there (trial Court) how can you (UOI) come here (to the Supreme Court)? Why don’t you apply for withdrawal there? There at least the families can oppose your application. Here they are not even a party,” the bench added.

It said it would not pass any order without the victims’ families being heard and directed Mehta to implead family members of the victims as party in its closure application.

Advocate Aditya Verma appearing for the state of Kerala submitted that the International Award Enforcement law was still not in effect and hence the award could not be enforced. He submitted: “There are disputes on jurisdiction, territory and impunity. The necessary changes in municipal law need to be laid down to implement (the award).”

Countering Verma, Senior Advocate Suhail Dutt said: “When countries have signed an agreement to agree with an Award, there is no need for municipal law amendments or for them to be effectuated.” The bench refused to hear the matter without the presence of the victims’ families and directed Mehta to implead them within a week.

The case pending before the Supreme Court is an appeal filed by the two ma­rines, Massimiliano Latorre and Salvatore Girone, against a May 2012 judgment of the Kerala High Court which held that the state had the jurisdiction to try them. The High Court ruled that the marines enjoyed no state immunity as their act of shooting at the fishermen was in defence of neither the vessel nor the state.

The application filed by the centre before the Supreme Court said: “The Republic of India has taken a decision to accept and abide by the award passed by the (arbitral) tribunal which would have the bearing on the continuance of present proceedings before the Supreme Court. The applicant (central government) is, therefore, placing the award on record with a prayer that the proceedings with regard to the incident dated February 15, 2012, be disposed of in conformity with the Award passed by the tribunal.”

After the shooting incident, an FIR was lodged by the local police against the marines under Section 302 read with Section 34 of the Indian Penal Code. Following this, Italy filed a writ petition before the Supreme Court of India challenging the criminal proceedings against their marines. Though the Court held that India has jurisdiction over contiguous zones under the Maritime Zones Act, the investigation was transferred from the Kerala Police to the National Investigation Agency.

Three years later, Italy approached the International Tribunal for the Law of the Sea (ITLOS) seeking to keep back the two marines in their country during the trial process and a stay on criminal prosecution initiated by India. On August 23, 2015, ITLOS directed Italy and India to suspend prosecutions initiated in their respective countries and prevent taking steps that might jeopardise or prejudice the decision to be rendered by the Tribunal.

Thereafter, on November 6, 2015, a specially designated five-member tribunal was constituted as per the provisions of UNCLOS. On April 29, 2016, the Tribunal decided that Girone could be returned to Italy till the period of arbitration, whereas Latorre was already in Italy. ITLOS later referred the matter to PCA.

In 2017, the Supreme Court had directed the centre to place before the Court whatever award is passed by the PCA. The Indian government has now, in compliance with the Court’s direction, brought the PCA’s award on record and has sought disposal of the three pending pleas in the matter.

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