Territorial Waters Act 1976 – Sections 3, 5 and 7 – Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 – Section 3 – Criminal Procedure Code, 1973 – Section 179 – Indian Penal Code, 1860 – Section 3 – International Law – Sovereign Immunity – Applicability of Municipal law – Passive Nationality Principle and Objective Territorial Principle – Contiguous Zone of India – Exclusive Economic Zone – State Practice – Navigational Freedom – Whether the Italian Marines on board the vessel who shot down two Indian fishermen, onboard a boat registered in India, in the territorial sea / contiguous zone / Exclusive Economic Zone of India are liable to be prosecuted for murder in accordance with the IPC and other domestic laws of India? Whether the Italian Marines are entitled to sovereign immunity against the prosecution in India?
IN THE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C).No.4542 of 2012 (P)
Dated this the 29th day of May, 2012
BY SRI. SUHAIL DUTT SENIOR ADVOCATE ADVS.SRI.B.RAMAN PILLAI SRI.ABHIXIT SINGH SRI. V.B. SUJITH MENON.
R1 BY SRI.P.PARAMESWARAN NAIR,A.S.G OF INDIA, R2 & R3 BY ADVOCATE GENERALSRI. K.P. DANDAPANI, GOVT. PLEADER SRI. ROSHEN D. ALEXANDER ADDL.R4 BY ADVS. SRI.C.UNNIKRISHNAN (KOLLAM) SRI.L.LINTON, SRI.S.HARIKRISHNAN SRI.V.VENUGOPALAN NAIR SMT. NIDHI BALACHANDRAN ADDL. R5 & R6 BY ADVS. SRI.V.M.SYAM KUMAR SRI.YASH THOMAS MANNULLY SRI.V.N.HARIDAS.
J U D G M E N T
At about 4.30 P.M. on 15.2.2012, a fishing boat “St. Antony”, registered in India, while fishing off the coast of Kerala, was fired at, from a passing ship. As a result of this, of the 11 fishermen who were onboard the boat, two of them, namely Valantine @ Jelestine aged 44 years and Ajeesh Pink, aged 20 years were killed instantaneously. Immediately, the boat returned to Neendakara and the owner of the boat gave First Information Statement before the third respondent, the Circle Inspector of Police, Neendakara, who recorded the same and registered a case as Crime No. 2 of 2012, copy of which is marked as Ext.P2 for murder punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the IPC). In Ext.P2 , it was alleged that while fishing at 33 Nautical Miles (NM) away from the police station, without any warning or alarm, there suddenly occurred repeated firing for about two minutes from a ship painted black and red. Since the assailants were not identified, the case was registered against some officers in the above ship. Alerted by the third respondent, the Coast Guard and the Indian Navy made a thorough search and detected that the firing was from a ship by name MT ENRICA LEXIE (hereinafter also referred to as the vessel). The Captain was asked to take the vessel to the Cochin Port, which was complied with. Maritime Rescue Co- ordination Centre (MRCC) conveyed the message to the third respondent who rushed to the vessel. The vessel was registered in Italy (Maritime MMSI No.247232700 and IMO No.9489297) and was reportedly sailing from Singapore to Egypt. After an initial reluctance to cooperate with the investigation of the case, the Captain and others in the vessel cooperated with it. During the investigation it was revealed that, in addition to the crew, there were six marines in the vessel, engaged for security duty. Of them, two Italian marines – Massimilano Latorre and Salvatore Girone – petitioners 1 and 2, were identified as the ones who fired at the fishing boat. They were apprehended by the third respondent and produced before the Chief Judicial Magistrate, Kollam, along with Ext.P3 remand report. They were first remanded to police custody and later to judicial custody. The third petitioner is the Republic of Italy, represented by its Consul General. The third petitioner has come forward in support of petitioners 1 and 2.
Pleadings of the petitioners
2. Petitioners denied the involvement of petitioners 1 and 2 in the alleged incident and contended that the said petitioners are the Chief Master Sergeant and Sergeant in the Italian Military Navy in active duty and that they were deployed in the ship as trained Navy personnel to protect and safeguard Italian maritime interests against piracy. It was contended that on 15.2.2012, while the vessel was proceeding from Singapore to Djibouti, there was an attempted piracy attack on the vessel. In accordance with the international procedures, the Master of the vessel set into motion the alarm, flashlights and horns. The Master also activated the Ship Alert Security System (SASS) which sent out signals to the Italian Maritime Rescue and Coordination Centre (MRCC); and also reported it to the Mercury Chart which links together and transfers information to the community including several Navies across the world fighting piracy, including to the Indian Navy Head Quarters. It was further stated that the vessel, which was on an average speed of 13 Knots per hour, increased the speed to avert the piracy attack and after it covered 38 NM, information over phone was received from the MRCC, Mumbai directing the vessel to come to the Cochin Port to assist and identify the suspected pirates who had been apprehended. Accordingly, the Vessel turned its course and anchored at Cochin Port at midnight on 16.2.2012.
3. Petitioners further contended that though in Ext.P2 it was stated that the incident took place 33 NM from the Coast of Kerala, in Ext.P3, it was alleged that it occurred 22.5 NM from the Kerala coast off Thrikunnam. According to the petitioners, the incident happened beyond the territorial waters of India, in the Contiguous Zone/Exclusive Economic Zone. In the light of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, (hereinafter referred to as ‘Territorial Waters Act’), the sovereignty of India extends only up to 12 NM from the nearest point of the baseline and since the incident occurred beyond that, the courts in India have no jurisdiction over the incident. It was pleaded that the Apex court in various decisions on Section 4 IPC has held that the jurisdiction of the courts in India in relation to criminal offences is limited to the territory of India, and any extra-territorial jurisdiction relates only to Indian citizens. Since the petitioners 1 and 2 are Italian citizens and the incident occurred beyond the territorial waters, the 3rd respondent has no authority to register a case against petitioners 1 and 2 or to conduct any investigation or to arrest them. Hence all procedures in pursuance to Ext.P2, including the arrest, are without jurisdiction, contrary to law, and hence null and void. Even by Article 97 read with Article 58 of the United Nations Convention on the Law of the Sea, (hereinafter referred to as the UNCLOS), the third respondent has no authority to register a case or to arrest the Italian marines. Since the alleged incident occurred at High Seas, as per the UNCLOS to which India is already a signatory, the case is to be registered in Italy. It was further stated that, on getting information, a case has already been registered and investigation launched in Rome, Italy by the Ordinary and Military Prosecution Office. Therefore, on principles of international law and comity of Nations, petitioners 1 and 2 are liable to be tried and prosecuted only before the Italian Courts.
4. It was also contended that since the petitioners 1 and 2, having been deployed by the Italian Defence Ministry for the purpose of protection of the vessel from piracy, were acting in their official capacity and under the principles of international law, they are subject to the jurisdiction of only the flag state of the vessel or their own state. It was contended that they are therefore entitled to functional immunity from prosecution except before the courts or military tribunals of Italy.
5. With these pleadings, the petitioners have sought the issuance of an appropriate writ, order or direction for declaration of the registration of Ext.P2, the arrest and detention of petitioners 1 and 2, and all further proceedings in pursuance to Ext.P2, as null and void; and for quashing Ext.P2.