The Supreme Court of India has ordered the closure of all criminal proceedings against Massimiliano Latorre and Salvatore Girone, the two Italian marines involved in the nine-year-old “Enrica Lexie” case in which the marines on duty aboard an oil tanker flying the Italian flag had fired at a fishing boat off the shores of Kerala in February 2012, resulting in the death of two Indian fishermen.
The court order follows a special leave petition filed before it by the Union government nearly a year earlier that had sought the disposal of the criminal cases in India against the two marine guards.
The government had then said that it had “decided to accept and abide” by the order passed by the Arbitral Tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS), which had held that “India is precluded from exercising its jurisdiction over the marines and entitled to claim compensation from Italy.”
In September 2015, the apex court had ordered a stay on all proceedings in Indian courts during the pendency of the case filed by Italy before the international tribunal.
In the order issued earlier today, the vacation bench of Justices Indira Banerjee and M.R. Shah agreed to the government’s plea and directed that the amount of Rs.10 crore, transferred by Italy to India as compensation for the bereaved families of the fishermen, be shifted to the High Court of Kerala.
The order directed the Chief Justice of the Kerala High Court to nominate a judge to hear the families of the fishermen who were killed—Valentine Jalastine (45) from Kollam and Ajesh Binki (25) from Kanyakumari—and disburse Rs.4 crore each to their rightful legal heirs. The bench also said that care should be taken that the money reached the heirs and was not “diverted” into wrong hands.
The remaining Rs.2 crore is to be paid to the owner of the fishing boat “St. Antony” which had come under attack from the marines on guard duty aboard Enrica Lexie.
“We are satisfied that the amount of 10 crores over and above ex gratia already submitted can be said to be a reasonable amount of compensation and in interest of heirs. We are of the view that this is a fit case to close all proceedings in India including criminal proceedings, in exercise of powers under Article 142 of the Constitution,” the bench said in the order.
It also said that the heirs of the fishermen, the owner of the boat and the governments of India and Kerala have agreed to accept the award and observed that “Italy should resume its criminal proceedings against the marines in Italy in terms of the international award” and that the Government of Italy, the Union of India and the Kerala government “should coordinate with each other in respect to disbursement of compensation”.
On February 15, 2012, the Italian marines on board the commercial oil tanker MV Enrica Lexie shot and killed two of the 11 crew members of the ill-fated Indian fishing vessel “St. Antony”. The tanker was seized by the Coast Guard after it was redirected to the Kochi port. Massimiliano Latorre and Salvatore Girone, who were on guard duty at the time of the incident, were arrested on February 19, 2012 on the charge of murder under Section 302 of the Indian Penal Code.
According to the initial accounts of the crew members of “St. Antony”, they were merely seeking fresh fishing grounds on that fateful day when they were shot at by the marine guards in the oil tanker—allegedly under the mistaken impression that they were “pirates”.
J. Freddy, the owner and captain of “St. Antony”, told presspersons soon after the boat returned to the coast on that fateful day that its 11-member crew had embarked on a 10-day fishing expedition on February 7, 2012. Since the catch had been meagre despite fishing until midday on February 15, about 14 nautical miles off the Alappuzha coast, they had decided to move farther into the sea. Since the journey to good fishing grounds would take time, most of them, including Freddy, had decided to take rest and were sleeping when the shooting began. The only people awake on the boat then were killed: Valentine Jalastine at the steering wheel inside the cabin and Ajesh Binki, who was then on watch at the bow.
Freddy said that he woke up on hearing a noise and was shocked to see Valentine falling down from his seat “with his nose and ears bleeding”. The rest of the crew were sleeping on the boat’s deck. He said he saw “a red and black ship and someone from it showering bullets on their boat”. Alarmed, he asked the others (who had woken up on hearing the commotion) to lie down. But by then “another bullet had hit Binki in the chest”. Freddy said he had taken the wheel and steered the boat as far away from the ship as possible.
India’s exercise of criminal jurisdiction over the Italian marines was challenged by Italy on the grounds that India acted inconsistently with UNCLOS as the marines had immunity by virtue of being “Italian State officials exercising official functions”. (Earlier, Italy had informed courts in India that a case had been registered against “Latorre Massimiliano and Salvatore Girone of the San Marco Regiment attached to the Military Protection Department in accordance with Article 575 of the Italian Penal Code in Rome.”)
The Permanent Court of Arbitration (PCA) under UNCLOS determined that “India was precluded from exercising jurisdiction over the Italian marines as they were entitled to immunity under customary international law”. However, it ruled that India was entitled to claim compensation from Italy for “loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of ‘St. Antony’”.
Soon after the international tribunal passed its order, Kerala Chief Minister Pinarayi Vijayan had described the outcome of the case and the Union government’s decision as “unfortunate” and said that the State government had reservations about the Central government’s decision to seek disposal of all related cases before the Supreme Court. He had also urged the Central government to take adequate follow-up measures on the issue of compensation.
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