ITALIAN MARINER ISSUE ---

Court asks govt. to spell out stand on marines case

New Delhi: The Supreme Court on Tuesday granted the Centre one more opportunity to spell out its stand on the issue raised by Italian  marines whether they should be tried under the anti-piracy laws or not.

A Bench of Justice B. S. Chauhan and M.Y. Eqbal asked the Attorney General G.E. Vahanvati to give it in writing the Centre’s stand by February 24 when it will hear the case again. Earlier, Mr. Vahanvati informed the court that the government was awaiting the Law Ministry’s opinion (on whether the anti-piracy law could be deleted altogether) which might come on Friday.

In the last hearing on February 10 Mr. Vahanvati informed the court that the clause relating to death penalty in the anti piracy law had been deleted and only a punishment of maximum of 10 year imprisonment would be attracted for the offence.

Justice Chauhan asked the AG: “Under the IPC Section 302 (murder) a trial court can award death sentence, what if death penalty is awarded to the accused under the IPC.” The AG replied “death sentence is awarded only in rarest of rare cases and this is not one of the rarest of rare cases warranting death penalty.”  

Senior counsel Mukul Rohatgi argued that the Italian government and the marines were challenging invoking of the anti-terrorism law SUA (Suppression of Unlawful Acts against safety of Maritime Navigation And Fixed Platforms on Continental Shelf) Act, saying it was against the order of the apex court which allowed proceedings only under the Maritime Zone Act, IPC, Cr.P.C and UNCLOS. It was in this context the AG said the opinion of the Law Ministry was sought whether the anti-piracy law in its entirety could be deleted.

On Tuesday Mr. Rohatgi, submitted that the Centre had not been able to move in the case despite the apex court's order and urged that his clients be allowed to go back to their country till Centre took a decision. The Bench posted the case for further hearing on February 24.

Law Ministry wants them tried under ordinary laws

The Law Ministry and the External Affairs Ministry disagree with the National Investigation Agency stand that the Italian marines should be tried under the Suppression of Unlawful Act. They want the marines prosecuted under ordinary criminal laws.

Last year, the tensions between the two countries reached a flashpoint, after Rome declined to return the marines for trial, having guaranteed their bail. The Supreme Court responded by barring Italian Ambassador Danielle Mancini from leaving India, a decision European diplomats said was a violation of his diplomatic immunity. The men eventually returned to Delhi in March, 2013.

In New Delhi, some experts argue that the case has been muddied by politics. “I think the nationalist passions this case has ignited in India are misplaced,” said former Naval officer C. Uday Bhaskar, a leading maritime security expert. “It is no-one’s case that the marines killed the fishermen in cold blood, or because of some personal feud.”

“This case was a tragedy, which should have been handled with the sensitivity we would expect if two of our own soldiers were involved.”

Italy recalls its envoy

Italy has recalled its Ambassador to India, in an escalation of the diplomatic row over the prosecution of two marines charged with shooting dead fishermen off the Kerala coast in 2012. Daniele Mancini was ordered to return home immediately for consultations after Supreme Court on Tuesday adjourned hearings on the case by a week — a delay Rome said displays “India’s obvious incapacity to manage the situation.

Indian envoy summoned

Italy on Tuesday summoned Indian Ambassador Basant Kumar Gupta to voice its “dismay” at the “unacceptable delay” in trying two Italian marines accused of killing two Indian fishermen two years ago.

Mr. Gupta, who was summoned by the Foreign Ministry Secretary-General Michele Valensise, was told the case “shows an Indian desire to draw out the affair beyond all limits”, Italian news agency ANSA reported.

Italian Foreign Minister Emma Bonino said “we cannot go and get them [marines] by military force” but “several initiatives” were open to the new Italian government to be sworn-in soon.

Time to speed up this trial

India’s pragmatic decision not to invoke its anti-piracy law against two Italian marines accused of killing two Indian fishermen off the Kerala coast in February 2012 sets the stage for some tangible judicial progress in the case. Italy’s diplomatic pressure, especially a dramatic move to recall its Ambassador in New Delhi for consultations, may have spurred the government to make up its mind after considerable dithering. Ultimately, the decision is reasonable as it is difficult to characterise the shooting, which happened on the basis of the impression that the fishermen were pirates, as an unlawful act that threatened navigation security. For far too long, the legal process has been delayed, initially on the question of jurisdiction and later on whether the Centre should allow the National Investigation Agency to proceed against the marines under the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 — which prescribes the death penalty for those causing death during an act of violence against any ship or vessel. The NIA, which has a charge sheet ready and was waiting only for the outcome of the petition before the Supreme Court, may have to rework the final report, as SUA has been dropped and fresh penal provisions may have to be incorporated. Having given an assurance against awarding capital punishment earlier, it would have been unacceptable for India to apply a law that provides for mandatory death sentence.

The delay itself was due to a legal dilemma that the NIA faced. The Act that gives statutory status to the NIA has a schedule of offences it can investigate, and SUA is one of them. Further, the shooting incident took place in the Contiguous Zone, bringing the matter into the realm of maritime security and conferring the requisite jurisdiction to the agency. Without SUA, the NIA would undoubtedly be handicapped in its prosecution. Invoking the law, on the other hand, was unpalatable for Italy, as it felt that it will amount to classifying the country as a “terrorist state”. The next legal battle is already on, as the marines have now challenged the jurisdiction of the NIA to prosecute this case, and the court will hear the matter shortly. The process would be more purposive if this aspect is not actively pursued, as the NIA took up the probe only after the Supreme Court ruled that only the Union government had the jurisdiction to investigate it, and not the Kerala police. What is required now is an expeditious trial and a tangible outcome and not further rounds of legalistic hair-splitting. The right balance should be struck between bringing about a sense of closure to the victims, and maintaining cordial diplomatic relations.

Italy may take marines case to U.N.

Italy will send its Ambassador back to India to help steer the case of its two marines — accused of killing two Indian fishermen in February 2012 — towards international arbitration as bilateral efforts have failed, Defence Minister Federica Mogherini said on Thursday.

Italy has sent a note to India as it opens an “international procedure” that unless the Indians cooperate, things would inevitably lead to arbitration by an international body such as the U.N., Ms. Mogherini told the Senate.

Rome decided to send its Ambassador Daniele Mancini back to New Delhi to mark the “fresh stage” in its efforts at having marines Massimiliano Latoree and Salvatore Girone returned, she said.

Mr. Mancini, who was recalled in February, will replace Special Envoy Staffan de Mistura. He will oversee the “new phase” of internationalising the case, she was quoted as saying by ANSA news agency. — PTI