Massimilano Latorre And Others v. Union Of India
Anshika Agarwal
Vivekananda Institute of Professional Studies, Delhi.
This Case Commentary is written by Anshika Agarwal, a Law student of Vivekananda Institute of Professional Studies, Delhi.
Case Details:-
Court- Supreme Court of India
Equivalent citation- AIR 2021 SC
Bench – Indira Banerjee, M.R. Shah
Decided on – 15 June,, 2021
Case type – Special Leave Petition
Parties:-
Petitioner: Massimilano Latorre
Respondents: Union of India
INTRODUCTION
India’s and Italy’s relations have been troublesome throughout the past years. The reason that contributed the most to the estranged relationship between the two countries is the Enrica Lexie case. Even though the incident took place way back in 2012, justice was delivered 9 years later in 2021. The fact that the case involved two different countries and problems related to jurisdiction is the reason behind the delay in justice. The case revolves around the firing of two Indian fishermen by two Italian men as an act of protecting their ship from pirates.
Charges were initiated against both the marines and they put a petition in the Kerala High Court. Later it was declared that Kerala High Court had no jurisdiction so the case went on to The Supreme Court and they passed an order to pay compensation to the families of the deceased. Italy, unhappy with the judgement approached the International Tribunal for the Law of the Sea. The matter was finally heard by the Permanent Court of Arbitration which ordered India to stop any court proceedings against the marines and Italy was ordered to pay compensation to the families of the deceased.
FACTS OF THE CASE
On 15th February 2012, two Indian fishermen, Ajeesh Pink, a 44-year-old, and Valentine Jelastine aboard the fishing vessel St. Antony were fired upon by two Italian Marines on board the Italian Oil Tanker Ship Enrica Lexie as a part of protecting their ship from pirates. A Vessel Protection Department was present at the Italian ship which first started with a warning sign to the Indian ship and then started firing which led to the on-the-spot death of the fishermen. After some time the Local Guard was informed and they took the Italian Ship to the Indian Coast for questioning and investigation. An inspection was done and it was found that Sergeant Massimiliano Latorre and another member of the VPD, Sergeant Salvatore Girone were a part of the firing and thus were asked to leave the ship and proceed to the Indian coast for questioning. Charges were framed against them and they were booked under the Indian penal Code for murder, and attempt to murder and were arrested. After the Italian Government got to know about this case they sent an Italian official to address the happening and have an eye over the inspection. The charges against the marines were first initiated in the Kerala High Court after which the case was transferred to Supreme Court and at last, Italy took the matter to the Permanent Court of Arbitration.
ISSUES RAISED
1. Does India have jurisdiction to try the case against Italian marines under the Indian Penal Code?
2. Will the Italian marines qualify for sovereign immunity?
CONTENTIONS OF THE PETITIONER
1. It was contented by the petitioners that they were on the official duty of the state and thus be given immunity from any acts done as part of their duty.
2. They argued that it was not a murder case but just an attempt to protect their ship from a piracy attack. The master even flashed some warning signals to the Indian ship to change its direction but it was of no help after which they started firing.
3. The point of jurisdiction was also put forth as India only can try those matters that happen inside Indian territory and extends only to Indian citizens. However, as the incident occurred in the contiguous/ Exclusive Economic Zone it was outside India’s jurisdiction. The Italian marines were also not liable to be tried by India.
4. As per Article 87(1) (a) of the UNCLOS nations are given freedom of navigation and freedom to travel the high seas without any interference from other nations.
5. According to Article 97 and Article 58 of the UNCLOS, a coastal state ( India in this case) does not have the right to impose any liability on foreign ships and foreign marines. Thus, denying India’s jurisdiction.
6. They prayed before the court to declare the charges against them as null and void.
CONTENTIONS OF THE RESPONDENT
1. The respondents argued that the Italian Ship failed to inform the Coastal Guard and traveled a distance of 39 nautical miles without giving information to anyone. It is a mandated procedure to inform the International Maritime Bureau of any mishap that might occur.
2. They pointed out the fact that the Italian Ship first flashed a searchlight as a warning to the Indian ship is useless as it couldn’t be seen in broad sunlight and wouldn’t have been visible to be taken as a warning.
3. They argued that the petitioner should not be given any sovereign immunity as they were working for a private company and not rendering a duty to their state.
4. They also brought forth the point that firing was an unnecessary measure that was resorted to by them as they should have had a proper response plan to keep off pirates and shouldn’t have done instant firing. Both the oil tanker and fishing vessel were 100 km away from each other and there was no instant harm done to the Italian Tanker.
5. The respondents prayed that Indian jurisdiction must apply and they must not be granted any sovereign immunity.
RELATED PROVISIONS
Article 92 of UNCLOS was violated as the right to jurisdiction of any events related to the Enrica Lexie should lie with Italy, being the flag state.
India did not cooperate with the Italian marine’s action to tackle piracy and also abused its rights and jurisdiction by asking the Enrica Lexie to change its path, thereby violating Article 100 of UNCLOS.
There has also been a violation of Article 97 by conducting proceedings regarding the offenses of the Italian marines by investigating the events and also by the detention of the ship.
· Article 33- Exceeded its right over the Contiguous zone as the Coastal State by imposing penalties and detention of the Italian marines.
· Article 56- India disregarded the rights of Italy concerning the Exclusive Economic Zone and exceeded its jurisdiction to the area beyond that by conducting the proceedings for the Italian marines.
· Article 58- All states have the right to international lawful use of the Exclusive Economic Zone concerning shipping and such a right has been infringed by the actions of India.
· Article 87- All states must be allowed the free movement of their ships in the high seas and the provisions of the UNCLOS conventions must be followed concerning such movement.
· Article 89- India by its proceedings and investigation invoked its sovereignty and that is a breach of the UNCLOS provisions.
JUDGEMENT OF THE CASE
The Kerala High Court ruled that India had the appropriate jurisdiction to try the case as the murder had taken place in the Exclusive Economic Zone, India had the right to maintain law and order in that region. India also had the power to interfere in any matter which involved Indian citizens. They responded to the petitioner's argument by stating that freedom of navigation is not absolute and they interfered in the rights of others by shooting the fishermen. Secondly, the High Court ruled that they should not be given protection under sovereign immunity as then they were not employed and executing their duty towards the state. The Italian tanker belonged to a private person and some commercial activities were going on that ship. The essentials required under Indian Law to claim sovereign immunity were not present in this case, thus the court ordered them to pay a compensation of 1,00,000 to the Government of India and Kerala.
When the matter moved up to The Supreme Court it set aside the Kerala Court’s judgment and ruled that as the offense didn’t happen in the territorial waters of Kerala, Kerala has no jurisdiction to try the case. As per Article 97 and Article 100 of the United Nations Convention on the Law of The Sea (UNCLOS), no interference can be done by the state when the matter involves foreign navigation incidents. Only the country whose flag was displayed on the ship, the flag country, has the jurisdiction to investigate and conduct proceedings.
Italy was unhappy with the judgment of the Supreme Court so it appealed to the International Tribunal for Law of the Sea(ITLOS) which ordered both India and Italy to stop proceedings against the marines as the matter would now be tried by the Permanent Court of Arbitration.
The Permanent Court of Arbitration ordered that the matter would now be heard by them since both Italy and India are signatories to the UNCLOS. It ordered that India has no jurisdiction and should therefore cease its proceedings against the marines. The marines should be given sovereign immunity for the acts they have done and all matters regarding punishment of marines would now be taken up by Italy itself.
ANALYSIS
The ratio decidendi of the present case boils down to the provisions of UNCLOS as both the countries were signatories to it, making its provisions superior to the independent laws of the countries. Problems concerning the jurisdiction were solved by taking the matter to ITLOS which ruled that the Permanent Court of Arbitration has jurisdiction over the matter and the right to conduct the investigation and the proceedings.
The court analyzed if and why sovereign immunity should be given to the Italian Marines. It was at first denied by the Indian Supreme Court but the Permanent Court of Arbitration ruled against it. It was also examined whether the Italian marines had committed a breach of provisions of UNCLOS and curtailed the freedom of movement of St. Anthony.
CONCLUSION
Even if India lost the right to conduct proceedings and investigate over the case, it didn’t lose the case completely as Italy is still liable to pay compensation to the families of the deceased and the family of the boat owner. After suspending proceedings in India, the case was heard by the Permanent Court of Arbitration which granted compensation and ruled that India lacked judicial authority over the matter.
However, for deciding the punishment of the Italian marines, the case would go on in Italy against them as they committed a breach by not informing any coastal authority about the firing. Their local jurisdiction would decide their penalty and the Italian government would pay the compensation to Indian authorities.
REFERENCES
· https://indiankanoon.org/doc/124696983/
· https://thewire.in/law/enrica-lexie-italian-marines-case-kerala-fishermen-supreme-court