The Supreme Court on Thursday issued notice to the Centre and the Kerala government on Italian government’s plea to quash the ongoing trial of two of its marines for allegedly gunning down two Indian fishermen off the southern state’s coast in February this year.
A bench of justices Altamas Kabir and J Chelameswar also issued notices to the Centre and the state government on the plea, which also sought a stay on all criminal proceedings against the two Italian Naval officers, Chief Sargeant Massimilano Lattore and Sargeant Salvatore Girone.
As senior counsel Harish Salve, appearing for the Italian government, pleaded for an interim stay, the apex court said it would have to hear the Union and the state governments before passing any orders and issued notice on plea for the stay. It posted the matter for August 6 for deciding on stay.
The bench also asked the Centre and the state to file their replies within three weeks on the Italian government’s plea for quashing the criminal cases.
Additional Solicitor General Indira Jaising, who appeared on behalf of the Centre, wanted that notices should be issued also to the widows of the fishermen but the court said it was not inclined to do so at this stage.
The bench said it may issue notices if and when their presence was required.
Jaising argued that since there were allegations that the consent of the fishermen’s widows were obtained by “illegal means,” it would not be proper if the court did not issue them notices.
“It is their husbands who have died,” she submitted.
The bench, however, was not convinced by her argument and refused to issue notices at present.
The court was hearing a petition filed by the Italian government and its two marines, challenging the May 29 order of the Kerala High Court, which had held that the duo were liable to be tried by an Indian court.
The petitioners have also sought a stay on all further criminal proceedings in the case pending before a Kollam court contending that the Kerala Police had no authority to conduct the probe and courts in India have no jurisdiction as the incident occurred outside the Indian territorial waters.
The case pertains to the killings of two Indian fishermen by two Italian naval officers on board ‘Enrica Lexie’. Fearing a pirate attack, the two officers had allegedly fired at the fishermen’s vessel off Kerala coast, killing two of them.
The marines, who were arrested by the Kerala police, are currently out on bail.
The Italian government has contended that only the Military Court in Rome has the jurisdiction to prosecute the accused officers as only the Republic of Italy and its institutions (military and judicial) have the authority to deal with any inquiry and consequential legal proceedings against them.
Besides raising the issue of jurisdiction, the Italian government had also argued that marines, who were on the ship to protect it, also enjoy functional autonomy as they were military officers.
According to the petition, the military officials, while protecting the Italian vessel from a pirate attack, allegedly fired upon a fishing boat at 20.5 nautical miles in international waters due to which the two occupants of the boat lost their lives. The Indian territorial waters extend up to 12 nautical miles.
The Italian government’s petition further said that the two military officials, who were awarded for meritorious service during United Nations and NATO assignments, were on active military duty under a specific law enacted by Italian parliament and had taken protective action only to avert a suspected pirate attack in international waters.
According to the petition, the Indian Penal Code and the Indian Territorial Waters Act were not applicable to the case, which falls under the ambit of the United Nations Convention on the Law of the Seas (UNCLOS) to which both India and Italy are the signatories.
The Kerala high court had termed the killings of the two fishermen by the marines as “brutal” and “cruel” and had held that “shooting cannot be said to be an act of sovereign function and the marines are not entitled to sovereign immunity.”
It had said Kerala police has jurisdiction to investigate the case and courts have the jurisdiction to try the case and it was not an invasion.