Remembering Enrica Lexie - Italian Marines Case On 8th Year Of Sea Firing

On February 15, 2012, when the fishing boat 'St. Antony' set sail from Neendakara harbor in Kollam district in Kerala, little did the fishermen aboard it anticipate the danger which was awaiting them in the seas.

It must have felt like a regular day in their lives with the the usual toil in seas for livelihood!

At about 4.30 PM,  at a distance of about 20.5 nautical miles from the coastline, their fishing boat happened to pass "Erica Lexie", a tanker flying the Italian Flag. Two marines aboard the ship - Massimilano Latorre and Salvatore Girone - mistook 'St Antony' for a pirate boat, and opened fire at it. This resulted in the death of two fishermen - Valentine Jalastine and Ajesh Binki.

The ship continued its sail, as if nothing happened. When the vessel had proceeded about 38 nautical miles on the High Seas towards Djibouti, it received a message from the Maritime Rescue Co - ordination Centre, Mumbai, asking it to return to Cochin Port to assist with the enquiry into the incident. Responding to the message, the ship altered its course and came to Cochin Port on 16th February, 2012. Upon docking in Cochin, the Master of the vessel was informed that an First Information Report (FIR) had been lodged with the Circle Inspector, Neendakara, Kollam, Kerala, under S.302 read with S.34 of the Indian Penal Code (IPC) in respect of the firing incident leading to the death of the two Indian fishermen. On 19th February, 2012, two marines were arrested by the Circle Inspector of Police, Coastal Police Station, Neendakara, Kollam, from the vessel.

This was the beginning of Enrica Lexie - Italian Marines case, which sparked diplomatic tensions between India and Italy.

Jurisdictional issues

Italy maintained that India had no jurisdiction over the marines. Later in 2012, Republic of Italy filed a writ petition in the Supreme Court under Article 32 of the Constitution, challenging the criminal proceedings against marines in Kerala.

Italy contended that only it had sole and exclusive jurisdiction over the marines in respect to the crime by raising the following arguments :

1. The marines, belonging to Italian navy, were deployed on Enrica Lexie to protect it from threat of privacy. Their deployment was based on a law passed by Italian Parliament. Hence, the marines were performing a sovereign function, which is immune from Indian action
2. India cannot exercise jurisdiction over the incident which happened at a distance of 20.5 nautical miles from the coast, beyond India's territorial waters.
3. India has only limited sovereignty over 'Contiguous Zone' as the Maritime Zones Act. Complete sovereignty is only up to territorial waters at a distance of 12 nautical miles from the coast.
4. As per Article 97 of United Nation Convention on Law of Seas (UNCLOS), only the flag state of the ship has jurisdiction for penal action over an "incident of navigation".
5. Italy has already initiated criminal action against the marines under its penal laws.

India responded with the following arguments :

1. As per notification issued under Section 7(7) of the Maritime Zone Act, Indian Penal Code and Code of Criminal Procedure have been made applicable to  Exclusive Economic Zone, which includes the Contiguous Zone.
   
2. Courts in Kerala derive jurisdiction over the crime from Section 183 CrPC read with 188A of IPC.
3. As per Section 4 of Indian Penal Code, 'offence' includes offence committed in any part of the world, when the victim is an Indian citizen. Section 2 of IPC makes 'every person' liable for punishment under IPC for offences committed 'within India'.
4. Killing of an Indian national aboard an Indian vessel is not an "incident of navigation" as contemplated by Article 97 of UNCLOS.
5. International law does not recognize any absolute immunity for sovereign functions.

The case was decided by a bench comprising Justices Altamis Kabir and Chelameswar.

The bench held that the expression "incident of navigation" in Art.97 of UNCLOS cannot be extended to a criminal act, involving the killing of two Indian fishermen on board an Indian fishing vessel. The Court also held that Article 97 will apply only to 'High Seas', which do not form part of Exclusive Economic Zone, Territorial Waters or Internal Waters of any country.

It was further held that India has jurisdiction over Contiguous Zones under the Maritime Zones Act. Justice Kabir said in the judgment that "The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country".

Justice Chelameswar observed on this issue : "I am of the opinion that sovereignty is not "given", but it is only asserted. No doubt, under the Maritime Zones Act, the Parliament expressly asserted sovereignty of this country over the territorial waters but, simultaneously, asserted its authority to determine / alter the limit of the territorial waters".

 At the same time, the Court held that State of Kerala has no jurisdiction to investigate into the incident. This was on the reasoning that only Union Government had jurisdiction over Contigous Zone under the Maritime Zones Act.

 The Union of India was, therefore, directed, in consultation with the Chief Justice of India, to set up a Special Court to try the case. The pending proceedings before the Chief Judicial Magistrate, Kollam, were ordered to be transferred to the Special Court to be constituted in terms of the judgment.

The judgment also reserved the right of Italy to raise the issue of exclusive jurisdiction over marines before the Special Court in terms of Article 100 of the UNCLOS, which speaks of rights of States to take special measures to combat privacy.

Following the judgment, the investigation of the case was taken over by National Investigation Agency from Kerala police.

Meanwhile, the family members of the deceased -- Valentine Jalastine and Ajesh Binki - reached a compromise with Italian authorities and each accepted Rs one crore compensation. The owner of the boat, Freddie, also settled his compensation suit filed in Kerala HC by accepting Rupees 17 lakhs from the ship authorities.

Diplomatic tensions

In February 2013, the SC had allowed the marines to go to Italy for a brief period to vote in the general elections. Italy later went back on its undertaking that it will ensure the return of marines after the period of stay allowed by the SC.

This triggered a diplomatic stand-off, with India restraining the then Italian ambassador, Daniele Mincini, from leaving the country. Following diplomatic pressures, Italy returned the marines to India in March 2013.

In September 2014, Latorre, one of the marines filed an application in the Supreme Court seeking permission to return to Italy for medical treatment; he had suffered a stroke the previous month. The SC, on humanitarian grounds,  allowed him to go to Italy for a period of four months. This period was subsequently extended by the SC from time to time.

Italy goes to International Tribunal

In July 2015, Italy took the case to International Tribunal for the Law of the Sea, an independent judicial body under the UNCLOS.

On August 24, 2015, the ITLOS asked both India and Italy to suspend all court proceedings and to refrain from initiating new ones which might "aggravate or extend the dispute or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render in future".  This was ordered as a provisional measure, pending the final adjudication of the issues of the case, including the one on jurisdiction.

The tribunal also said it was aware of the grief and suffering of the families of the two Indian fishermen who were killed and also of the "consequences that the lengthy restrictions on liberty entail for the two Marines and their families". 

Following this, the SC suspended the trial of the case in India.

The ITLOS later referred the matter to the Permanent Court of Arbitration, an intergovernmental organisation based in The Hague in Netherlands.

Before the PCA, Italy sought the relaxation of bail conditions for Girone, the second marine, so that he could leave India until the jurisdiction in the case is decided.

Though the Court did not expressly grant this prayer, it observed that, "Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone … so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present arbitration."  

In May 2016, the SC allowed the second marine, Girone to leave to Italy. Before leaving, he was asked to give an affidavit "accepting and recognising that he remains and shall, even upon his departure from India, continue to remain under the authority of the Supreme Court of India." 

In September that year, the Centre told the Supreme Court it has no objection if the two Italian marines are allowed to remain in Italy until India's jurisdiction to try them is decided.

Based on this, on September 28, 2016, a bench comprising Justices Anil Dave, Kurian Joseph and Amitava Roy allowed the marines to remain in Italy during the pendency of the case in Permanent Court of Arbitration.

From 8 July to 20 July 2019, the hearing was held at the seat of the PCA at the Peace Palace, The Hague, the Netherlands. The hearing addressed the jurisdiction of the Arbitral Tribunal as well as the merits of Italy's claims and India's counter-claims.

Final award in the case is awaited, while the marines remain in Italy.