External Affairs

Italy, India to Approach SC on Italian Marine Girone’s Return to His Country During Arbitration

The Ministry of External Affairs says the international  tribunal’s order asking both India and Italy to go to the Supreme Court to relax the terms of bail, also reiterates the Indian court’s jurisdiction over the marine.

File photo of the two Italian marines, Massimiliano Latorre and Salvatore Girone, charged in India with the killing of two fishermen while off the Kerala coast in 2012. Credit: PTI

File photo of the two Italian marines, Massimiliano Latorre and Salvatore Girone, charged in India with the killing of two fishermen while off the Kerala coast in 2012. Credit: PTI

New Delhi: The news was first broken by the Italian news agency ANSA – with a spin that the Indian side immediately sought to contest – that the international tribunal hearing the dispute over the trial of two Italian marines for the 2012 killing of two Indian fishermen had decided the marine still confined in India should be allowed to go home pending final disposition of the arbitral proceedings. “The tribunal has called on both sides to agree on the procedure for the marine’s return,” ANSA reported, citing Italian diplomatic sources ahead of the formal release of the tribunal’s order in The Hague on Tuesday.

ANSA added that Italian Premier Matteo Renzi said on Monday that he was sending a message of “friendship and cooperation to the great people of India and to the Indian prime minister (Narendra Modi)” after it became clear Salvatore Girone is soon to return to Italy. “We are always ready to cooperate,” Renzi added.

However, sources in the Indian foreign ministry were quick to tell reporters that Italy was misrepresenting the tribunal’s order.

On Monday evening, an official statement from the spokesperson of the Ministry of External Affairs said that while the arbitral tribunal has asked Italy and India to approach the Supreme Court of India for relaxation of Girone’s bail conditions, and that though he may return to Italy for the duration of the arbitration, they have also reiterated that he remains under the jurisdiction of the Supreme Court. “The tribunal confirmed Italy’s obligation to return him to India in case it was found that India had jurisdiction over him in respect of the incident,” the statement went on to say.

The tribunal has left it to the Supreme Court of India to fix the precise conditions of  Girone’s bail. This could include him reporting to an authority in Italy designated by the court or surrendering his passport to Italian authorities. Italy has also been asked to update the Supreme Court of his situation every three months, the statement added.

The tribunal also placed on record undertakings given by Italy regarding Girone’s return to India, the statement went on to say. It noted that these undertakings constitute an obligation binding upon Italy under international law. It has also confirmed that Italy is under an obligation to return Girone to India if the tribunal finds that India has jurisdiction over him.

The government “remain(s) confident that the issue of jurisdiction will be determined in our favour,” the statement concludes.

Background

This case has been the cause of a long diplomatic dispute between India ands Italy. Indian police contends that two Italian marines, Girone and Massimiliano Latorre, had shot at two Indian fishermen, mistaking them for pirates operating near the Kerala coast on February 15, 2012, while posted on the merchant ship Enrica Lexie.

The National Investigation Agency had subsequently slapped charges against the two Italians under sections 302 (murder), 307 (attempt to murder), 427 (mischief) and section 34 (common intent) of the IPC.

Last year, Italy had moved the International Tribunal for Law of the Sea (ITLOS) seeking provisional measures to stop India from prosecuting the two marines, as well as asking for them to stay in their own country pending the trial process. While ITLOS had agreed that India could not prosecute the marines domestically, it did not agree to sending the marines back to Italy.

After ITLOS ruled on the matter last year, India and Italy agreed that the dispute would be settled under an Annex VII tribunal (for ad hoc arbitration), which was finally constituted with five arbitrators on November 6, 2015.

Latorre has been in Italy for the past two years on Supreme Court-approved medical leave, to recuperate from a stroke. Girone on the other hand, has remained in India since 2014, confined to the Italian embassy compound.

Italy had argued that this was unacceptable, as arbitration could take years. “An individual cannot, however, be deprived of his liberty and other fundamental rights on the basis that he is a guarantee for the future compliance by a state with the award of an international tribunal,” said the Italian submission to the Annex VII tribunal. The Italian representative at the arbitration had said before that he was hopeful Girone would be allowed to return, since the case was “based on its solid humanitarian and legal reasoning, otherwise it would not have come here”.

India had not supported the claims that this meant Girone should return to Italy. “The humanitarian aspect of prolonged confinement of Sergeant Girone is pertinent and factual,” India had noted during the proceeding, adding, “The Supreme Court of India, as stated above, has been quite sympathetic to these concerns allowing him to travel to Italy twice and Government of India also in fact [has] not opposed the requests for relaxation of bail conditions if circumstances so demanded”.

This article has been revised to include the external affairs ministry spokesperson’s official statement.