Tribunal orders marine can return to Italy; SC to take final call

     
May 3, 2016

NEW DELHI: The Government of India on Tuesday said the Supreme Court will take the final decision on allowing Italian marine Sergeant Salvatore Girone now on bail in India return home. The interim order of the UN Arbitral Tribunal on April 29 wanted the marine, who along with another is accused of shooting two Indian fishermen on India's western coastal waters, to return to his country, even as remaining under the supervision of the Indian Supreme Court, till the case is settled at the Hague.

Meanwhile, the order has led to widespread criticism in India over the handling of the case by the Government at the Hague. The Government has come under fire for alleged inadequate preparedness, laxity and lack of expertise in international law.

The UN Arbitral Tribunal at The Hague, where Italy's petition on the Enrica Lexie incident for interim hearing filed at the International Tribunal for the Law of the Sea (ITLOS) at Hamburg was transferred to late last year pending constitution of the Hague tribunal, on Friday ordered that marine Sergeant Salvatore Girone may be allowed to return to Italy till a decision is taken in the arbitration on whether India has jurisdiction in prosecuting the marines after the Hague proceedings conclude in 2018. During his stay in Italy he will continue to be under the authority of the Supreme Court of India, the Tribunal, however, confirmed. It also underscored 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 Arbitral Tribunal unanimously prescribed the following provisional measures under Article 132 of Section X of its order dated April 29, 2016:

a) Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.

b) The Arbitral Tribunal confirms Italy’s obligation to return Sergeant Girone to India in case the Arbitral Tribunal finds that India has jurisdiction over him in respect of the “Enrica Lexie” incident.

c) The Arbitral Tribunal decides that Italy and India each shall report to the Arbitral Tribunal on compliance with these provisional measures, and authorizes the President to seek information from the Parties if no such report is submitted within three months from the date of this Order and thereafter as he may consider appropriate.

(Go To Arbitral Tribunal Order)

The case, which began in 2012, had been contested in various courts in India. The two Italian marines on duty aboard MV Enrica Lexie, an Italy-flagged oil tanker, who had shot two Indian fishermen - Ajesh Binki and Valentine aboard St Antony - off the coast of Kerala on the western coast of India in 2012 were given bail since then by the Supreme Court of India. Sergeant Massimiliano Latorre was allowed to return to Italy on bail on health grounds while Sergeant Girone has been on bail in New Delhi confined to the Italian embassy. On April 26 last the Supreme Court had extended the stay of Latorre in Italy. The apex court had also said earlier that proceedings would remain stalled till the jurisdictional issue about which country has the right to conduct trial was decided through international arbitration.

In 2015, Italy sought international arbitration under the UN Convention on the Law of the Sea and the case was filed initially at the International Tribunal for the Law of the Sea (ITLOS) at Hamburg pending constitution of the Arbitral Tribunal at the Hague. The Arbitral Tribunal that was established subsequently was requested by Italy to prescribe provisional measures for the duration of the arbitration which is expected to conclude in 2018.

In its order on Friday, the Tribunal unanimously prescribed that India and Italy would approach the Supreme Court of India for relaxation of bail conditions of Sergeant Girone. While remaining under the authority of the Supreme Court of India, he may return to Italy for the duration of the present arbitration. 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 Tribunal left it to the Supreme Court of India to fix the precise conditions of Sergeant Girone’s bail. This could include him reporting to an authority in Italy designated by the Indian Supreme Court, surrendering his passport to Italian authorities and not leaving Italy without the permission of the Indian Supreme Court. Italy shall apprise the Indian Supreme Court of his situation every three months.

The Tribunal placed on record undertakings given by Italy in regard to Sergeant Girone’s return to India. It noted that these undertakings constitute an obligation binding upon Italy under international law. Italy is under an obligation to return Sergeant Girone to India if the Tribunal finds that India has jurisdiction over him.

The Tribunal considers that provisional measures should not alter the situation where the Supreme Court of India exercises jurisdiction over Sergeant Girone. He would remain under the authority of the Supreme Court of India.

After studying the order, the Government of India would approach the Supreme Court for its directions, a statement by the official spokesperson of the Indian External Affairs Ministry said on Monday.

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