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The Supreme Court Monday issued notice to the central and Kerala governments on a petition by the Italian government seeking the custody of its two marines currently in judicial custody for killing two Indian fishermen after mistaking them for pirates.

A bench of Justice Altamas Kabir and Justice S.S. Nijjar issued notices, returnable within two weeks, on the petition by the Italian government seeking directions to Indian government to hand over custody of the two marines, Chief Master Sergeant Massimilano Latorre and Sergeant Salvatore Girone.

The petition, heard Monday afternoon, said that the continued detention of the two Italian marines by Kerala Police was illegal and ultra vires as it was violative of the principle of sovereign immunity and also violative of Articles 14 and 21 of the Indian Constitution.

‘Their detention is patently illegal and a gross violation of their rights and the rights of Italy and the corresponding duty of the Union government,’ the petition said.

The petition sought the apex court to declare that any action by the Indian authorities under the Criminal Procedure Code would be violative of the Article 14 and Article 21 of the constitution.

‘At the time of the incident, the petitioners were acting in exercise of their authority under Italian law and their conduct has been adopted by the Republic of Italy as an act of state represented by its legally powered military personnel,’ the petition said.

The Italian government has contended that the shooting incident had taken place at high seas which was the outside the territorial waters of India and also outside the jurisdiction over which India can exercise its sovereign rights.

The Italian government has also contended even if the incident took place in the contiguous zone of India, the issue was between the Italy and India and not between Italy and Kerala – a state of republic of India.

‘The state of Kerala, not being a subject of international law, has neither any rights nor obligations under the system of public international law and cannot initiate, maintain, or participate in any proceedings involving international legal responsibility of nation states’, the petition said.

It said that under the international covenants, Italian citizens enjoyed certain immunities which could not be taken away on the strength of local laws.

Latorre and Girone were posted on cargo ship MV Enrica Lexie when they killed the two fishermen – Gelastine, 45, and Ajesh Binki, 25, Feb 15.

The two Italian marines have been in judicial custody since Feb 20 and are currently lodged at the Thiruvananthapuram Central Prison.



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