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.