[Enrica Lexie] Will Not Close Case Against Italian Marines Without Hearing Victims' Families: SC

The Supreme Court on Friday refused to close the pending cases against two Italian Marines, without hearing the families of the victims.

The Court 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 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 last month 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, the Permanent Court of Arbitration rendered its judgement, unanimously holding that India is entitled to claim compensation from Italy. It also held by a 3:2 majority 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.

In light of the above, the Union of India filed the Application for the closure of the case.

Solicitor-General Tushar Mehta appeared before the Court and apprised the Bench of the central issue in the matter, as the Supreme Court had earlier stayed the proceedings in wake of the Tribunal presiding over the matter.

"Essentially the question now is whether the Indian Government can move forward with the prosecution of Italian Marines and the compensation issue", the SG said.

The CJI replied : "You are saying that the case be taken over by their country. This does not take care of the fixed compensation. There are some legal difficulties involved here. Neither does this take care of the trial."

The CJI further asked the SG how he could approach the Supreme Court without applying for withdrawal of prosecution of the criminal charge before the Special Court where the victims' families were also appearing.

"You have not even sought withdrawal here. If you had done so, victims' families could have opposed that here."

At this juncture, CJI asked about the presence of the victims' families. To this, SG responded that the victims' families were being represented by the State of Kerala.

CJI responded, "No, no. You are missing the point here. Are the victims' families here? We will not pass an Order without the victims' families being heard."

SG accordingly suggested that the families could be impleaded in the matter. He further submitted that Italy had written to Government of India, stating that the Marines would be prosecuted by their government and that the compensation would be dealt with. The CJI sought for the same to be brought on record.

Senior Advocate Suhail Dutt then began his submissions that the marines were now under the public prosecution of Rome. Advocate Aditya Verma, for State of Kerala, submitted that the law for International Award Enforcement had not been effectuated and that the award could thus, not be enforced.

"There are disputes on jurisdiction, territory and impunity. The necessary changes in municipal law need to be laid down to implement (the award)".

This was countered by Dutt who stated that "When countries have signed an agreement to agree with and Award, there is no need for municipal law amendments or for them to be effectuated."

The CJI, however, put a stop to the arguments and refused to proceed without the presence of the victims' families.

Accordingly, the SG has been directed to implead the families within a week.