The facts of the case are simple: On the February 15, 2012, two Indian fishermen were killed by Italian marines by use of live fire from automatic weapons from the oil tanker MV Enrica Lexia. The marines were later identified as Miassimiliano Latorre and Salvatore Girone. They were arrested by Kerala Police and a murder inquiry started.
On December 20, the Kerala High Court agreed to temporarily relax bail conditions for both Italian Marines by allowing them to travel to Italy for two weeks during the Christmas vacation period. Italy was required to pay a further bond of Rs 6 crore and keep the Marines under surveillance at all times. On January 4, 2013, the marines flew back to Kochi airport, “keeping the words of Italians and trusting in justice”.
The Supreme Court on February 22, permitted the marines to visit their country again to vote in the February 24 and 25 elections. The three judge Bench consisting of Chief Justice Altamas Kabir and Justices Anil R Dave and Vikramajit Sen in a brief order, noted that under Italian law, Marines were not allowed to cast their votes through postal ballot.
The Bench made it clear that the marines were only being allowed to travel to Italy and they would have to return to India. The Bench permitted them to travel on temporary documents when it was informed that their passports were sent on February 16 from Kerala and the Ministry of Home Affairs had not yet received them.
However, on March 11, 2013 the Italian Foreign Ministry announced that the two Marines will not be returned for trial. As the Government of India considers the issue, Prime Minister Manmohan Singh has termed the Italian decision ‘unacceptable’.
Now the issues: Why were the marines shown special consideration? There are many foreign prisoners in India, both under trial and convicted. Is this privilege (of visiting families for Christmas) to be extended to them as well? What about domestic prisoners at, say, Tihar Jail wanting to go to their families for Onam or Pongal or Bihu? I think we have opened a Pandora’s Box even by allowing them to go to Italy.
Now let’s move to the issue of allowing them to vote in the elections in Italy. What about other foreigners who might ask for such facilities? More pertinent is the observation of the SC that they were not entitled to cast their vote through postal ballot. We are not sure. This link from by Ministero Dell Interno – Press room, dated February 20, 2013 gives details about general elections in Italy and voting by Italians abroad.
“A guide to vote for overseas electoral districts constituencies of the Chamber of Deputies and the Senate of the Republic. Voting procedure for the Italians temporarily abroad. How to submit lists and candidatures of the Overseas Constituency.
The Italians living abroad who in the next general election are entitled to vote for overseas electoral districts constituencies of the Chamber of Deputies and the Senate of the Republic are almost 3.5 millions. Recent provisional data show that there are 3,438,670 voters living abroad for the Chamber of Deputies and 3,103,887 for the Senate of the Republic, out of a total of 4,345,721 Italians living abroad.
Thanks to the Decree Law No. 223 of December 18th, 2012, converted – with amendments – by Law No. 232 of December 31st, 2012, also certain specific categories of Italian nationals temporarily living abroad for reasons of service or international missions can vote from the place where they stay. The Interior Ministry estimates that the number of Italian citizens temporarily abroad falling within the categories envisaged in the above-mentioned Decree Law No. 223/2012 amounts to about 12,700.”
So other than Italian citizens living abroad on a regular basis, “certain specific categories of Italian nationals temporarily living abroad for reasons of service or international missions can vote from the place where they stay.” The Marines fall under this category. Hence we feel the Honourable Court has been misled by either the Italian Embassy or our own Government lawyers.
Of course, Italy has been arguing about the applicability of United Nations Conventions on the Law of Seas (UNCLOS) and questioning the detention of the Marines under article 92, which states that a ship flying the flag of one State shall be under the exclusive jurisdiction of that State in the High Seas. But Article 94 (7) also states that the flag State must hold an inquiry by suitably qualified persons into every marine casualty or incident of navigation in the high seas involving a ship flying its flag and causing loss of life or injury to nationals of another State. The obligation under Article 94 is without any discretion. Thus, Italy is bound to conduct an inquiry even without any request from India. This was not done by Italy. Therefore, it may be assumed that Italy failed to exercise its effective jurisdiction in this case.
Arun Jaitley on Italian marine issue in Rajya Sabha,
Plus it can be argued that by returning the marines to India for trial after Christmas, Italy, in a sense, agreed to the exercise of jurisdiction by India and waived its exclusive jurisdiction under Article 92 of the UNCLOS.
There are other suspicions in the whole episode since it involves Italy and the Chairperson of the National Advisory Committee, holding a Cabinet rank is also from Italy. We have had experiences in Bofors with Italy and more recently the AgustaWestland chopper deal. The perception is that these issues are inter-related. In other words, social media has already started suggesting that Italy has extracted a price for keeping quiet on the chopper deals.
Anyway, even if there is no grain of truth in these allegations, our Government, due to loss of credibility, is looked at with suspicion. Our courts unnecessarily get entangled in cases involving individual crimes involving foreign nationals. These murder-accused Italians have managed to convert this case into an international dispute.
The choice before the Government is simple. It has to assert the fact that we are not a banana republic. Remember the way Portugal is still bullying India about treating Abu Salem ‘well’.
The Government should snap diplomatic ties with Italy and threaten to nationalise all assets of Italian companies here. India is a $2 trillion gorilla and if it does not throw its weight around, it will be treated as doormat by even declining empires.