The two italian marines have been held in India since
February 2012 when they allegedly shot dead two Indian fishermen off Kerala,
mistaking them for pirates. The marines were serving as security personnel on
Italian oil tanker MT Enrica Lexie that was crossing the Indian Ocean.
Writ Petition (Civil)No.135 / 2012 was filed by the Republic of Italy through
its Ambassador in India in the Supreme Court of India objecting to prosecution
of two Italian marines who had been arrested by the Kerala Police in connection
with the killing of two Indian fishermen on board an Indian fishing vessel at a
distance of 20.5 nautical miles from the Indian sea-coast off the coastline of
the State of Kerala.
The said two Italian marines Mr.Massimilano Latorre and Mr.Salvatore Girone
filed a separate SLP No. 20370/2012 in the SC challenging the dismissal of
their Writ Petition No.4542 of 2012 by the Kerala High Court rejecting their
prayer for quashing of FIR No.2 of 2012 on the file of the Circle Inspector of
Police, Neendakara, Kollam District, Kerala, as being without jurisdiction.
Both the matters were taken up together for hearing and were disposed of
together by Supreme Court vide Judgment dated 18th January, 2013. Vide said
judgment, the SC granted bail to the two marines on certain terms and
conditions. In the said judgment, SC held that the State of Kerala had no
jurisdiction to investigate into the incident and that till such time it is
proved that the provisions of Article 100 of UNCLOS,1982, applied to the facts
of this case, it is the Union of India which alone has the jurisdiction to
proceed with the investigation and trial of the said two marines. The SC,
accordingly, directed the Union of India, in consultation with the Chief Justice
of India, to set-up a special Court to try this case and to dispose of the same
in accordance with the provisions of the Maritime Zones Act, 1976, the Indian
Penal Code, the Code of Criminal Procedure and the provisions of UNCLOS 1982.
It was further directed that the proceedings before the Chief Judicial
Magistrate, Kollam, would stand transferred to the Special Court to be
constituted in terms of the judgment, upon the expectation that the trial would
be conducted expeditiously. Liberty was given to the Petitioners to re-agitate
the question of jurisdiction once the evidence was adduced on behalf of the
parties.
On 14th March, 2013, the matter was mentioned by the Attorney General before
the SC on basis of Note Verbale No.89/635 dated 11th March, 2013, received by
the Ministry of External Affairs, Government of India, from the Embassy of
Italy in New Delhi, whereby it was indicated that the Government of Italy had
decided not to return the accused marines to India to stand trial for the
offences alleged to have been committed by them.
Pursuant to the directions given on that date, the matter was again listed on
2nd April, 2013, and the Attorney General of India was requested by the Court
to indicate what steps had been taken for constitution of a separate Court to
try the two Italian marines separately on a fast track basis, in order to
dispose of the matter as quickly as possible.
The matter was then listed again on 22nd April, 2013, when the Attorney General
informed the SC that pursuant to the directions of SC in its judgment dated
18th January, 2013, the Government of India, in the Ministry of Home Affairs,
had appointed the National Investigation Agency created under the National
Investigation Agency Act, 2008, to take over the investigation on the basis of
FIR No.2 of 2012 dated 29th August, 2012, Coastal PS Neendakara, Kollam. The
case was re-registered at PS NIA, New Delhi as Case No.RC-04/2013/NIA/DLI
under Sections 302, 307, 427 read with Section 34 of the Indian Penal Code and
Section 3 of The Suppression of Unlawful Acts Against Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf Act, 2002. The Attorney
General submitted that
the case was under investigation by the National Investigation Agency, and
such investigation would be completed shortly.
The counsel for the marines strongly objected to the investigation by National
Investigation Agency. He submitted that by entrusting the investigation to the
National Investigation Agency, the investigating authorities were being
permitted to invoke the provisions of the Suppression of Unlawful Acts Against
Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act,
2002, which provides for death penalty in regard to cognizance being taken on
any of the scheduled offences.
The SC in its decision on 26th April 2013 ruled that they did not see why SC
should be called upon to decide as to the agency that is to conduct the
investigation; the direction which SC had given in judgment dated 18th January,
2013, was in the context of whether the Kerala Courts or the Indian Courts or
even the Italian Courts would have the jurisdiction to try the two Italian
marines; it was not SC's desire that any particular Agency was to be entrusted
with the investigation and to take further steps in connection therewith. The
SC held that if there is any jurisdictional error on the part of the Central
Government in this regard, it will always be open to the accused to question the
same before the appropriate forum.
Thereafter, the case was tried by Special court at Patial House courts, New
Delhi.
The SC, in its earlier order on 18.1.2013, had directed the accused Chief
Master Sargeant Massimilano Latorre to report to the Station House Officer,
Chanakyapuri Police Station, New Delhi once a week subject to further
relaxation as may be granted.
In September 2014, the said marine filed an application (IA no.6/2014) in said
case in SC stating that he has suffered brain stroke on 31.8.2014 and because
of said illness, he could not report to the SHO, Chanakyapuri on 3.9.2014 in
compliance of Court's order dated 18.1.2013. It was further informed that
because of illness, he would not be able to report to the SHO, Chanakyapuri on
September 10, 2014 as well. The SC on 8th September 2014 waived reporting of
said marine to the SHO, Chanakyapuri for two weeks commencing from 31.8.2014.
The application was again taken up on 12th September 2014 by a bench of Chief
Justice RM Lodha,Justice Kurian Joseph and Justice RF Nariman. In the
application, the accused marine mainly prayed for relaxing condition Nos. 1 to
4 of the SC's earlier order dated 18.1.2013 and to permit him to travel to
Italy for treatment, recovery and rehabilitation for a period of four months.
It was stated in the application that he has suffered brain stroke and requires
continued management, treatment, rehabilitation and therapy. On humanitarian
ground, therefore, it was submitted that the applicant may be permitted to go to
his home country Italy for about four months or so. In support of the
application, medical documents were placed on record. In order to assure the
Court that the applicant will return to India on permission being granted to
the applicant to go to his home country for medical treatment for some, an
affidavit of undertaking was filed by Mr. Daniele Mancini, Ambassador of Italy.
The undertaking was given on behalf of Republic of Italy. After considering all
relevant aspects, the SC by order dated 12th September 2014 permitted Mr.
Massimilano Latorre to travel to Italy for his treatment, rehabilitation and
continued management for a period of four months from the date of his travel
from New Delhi to Italy and stated that for the above period, the condition Nos.
1 to 4 imposed in the order dated 18.1.2013 shall remain waived. The SC also
stated that since Government of India has no objection in principle for the
reliefs sought for by the applicant, it is expected of the Government of India
to facilitate the international passage of the applicant from New Delhi to
Italy and his travel back to New Delhi in all respects.
Click below for Full Text of Order dated 12th September 2014.
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