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Updated: March 19, 2013 13:21 IST

I don’t think you have immunity, Chief Justice tells Italian envoy

J. Venkatesan
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A view of the Supreme Court of India in New Delhi. File photo
The Hindu A view of the Supreme Court of India in New Delhi. File photo

Even as Italian Ambassador Daniele Mancini claimed complete immunity under the Vienna Convention, the Supreme Court on Monday extended until further orders its direction restraining him from leaving the country.

A Bench of Chief Justice Altamas Kabir and Justices Anil R. Dave and Ms. Ranjana Desai made it clear to the envoy that a person who came to the court as a petitioner could not claim any immunity.

When the Chief Justice asked senior counsel Mukul Rohatgi appearing for the Ambassador whether the two marines would return before the scheduled expiry date of March 22, counsel said: “the Ambassador has no further instructions other than the one given by his government. There is complete immunity under the Vienna Convention and we can place on record all the documents.”

Even as the Chief Justice was dictating the restraint order, Attorney-General G.E. Vahanvati sought a specific direction that all the authorities “shall ensure compliance of the order.” Mr. Rohatgi submitted it was not necessary, as the Ambassador would not leave the country.

The Chief Justice observed: “A person who has come to court as a petitioner, I don’t think he has any immunity. Some people are writing that we are naïve. What do they think about our judicial system? We don’t expect the Republic of Italy to behave like this. He [Ambassador] has lost the trust.”

In its brief order, the Bench said: “having heard senior counsel advocate Mukul Rohatgi appearing for Italian Ambassador Daniele Mancini and Republic of Italy, we direct the matter to be listed on April 2 for further orders. The interim order passed on March 14 directing Mr. Mancini not to leave India without the permission of this court is extended until further orders. All the authorities shall ensure compliance of this order.”

Earlier, Mr. Vahanvati told the Bench that the Government of India received another note verbale on March 15 after the court passed the order on March 14.

The Chief Justice told Mr. Vahanvati: “strictly speaking there is still time till March 22 for the compliance of the order. They have not still violated our order. We are not concerned with one government communicating with another government. We are concerned with compliance of our order.”

The Attorney-General read out the note verbale, which said “the Embassy of Italy presents its compliments to the Ministry of External Affairs of the Union of India and in connection to its note verbale dated March 14 has to honour to remind the MEA of the obligations relating to the protection of diplomatic agents enshrined in the Vienna Convention on Diplomatic Relations of April 18 1961, to which both Italy and India are parties including in particular Articles 29 and 31 para 1.1. Any restriction to the freedom of movement of the Ambassador of Italy to India, including any limitation to right of leaving the Indian territory, will be contrary to the international obligations of the receiving State to respect his person, freedom dignity and function.”

It said:

“The Embassy of Italy expects therefore that the MEA will ensure full compliance with the privileges and immunities contemplated in the Convention and provide reassurance that no Indian Authority shall impose or implement restrictive measures on the personal freedom of His Excellency the Ambassador.”

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I wonder what would happen if the Italian ambassador resigns at this point? Would he be allowed to move out of India?

from:  abhinav
Posted on: Mar 19, 2013 at 21:37 IST

Yes. It is stupid that why in the first instance they were allowed to
leave the country. Voting is done in their Embassies.
We must inquire in the first instance as to how they were allowed to
leave the country.

from:  Prof Rajaram Pagadala
Posted on: Mar 19, 2013 at 16:36 IST

It looks the highest court has acted like this due to constant battering by the media and public that Supreme Court has done a mistake in allowing the marines to go to Italy for voting which everyone feels it could have been done here. Due to this constant bombardment SC wanted to show that it can undo whatever mistake it has committed or at least show who is calling the shots here. But this is a tricky diplomatic matter and some niceties are required as the whole world could be watching. To the outside world this alleged shooting has happened beyond the territorial waters of India and India is going out of its place to pursue this case insisting that it has right to try the case. I do not think any country will approve of the belligerent way India is going ahead with this case.

from:  Guptan Veemboor
Posted on: Mar 19, 2013 at 16:09 IST

It was a grave mistake to move the case from Kerala HC to SC. The actions taken by Kerala HC were well informed and beneficial to the families of the dead. The bail amount was 6 Cr and if the marines did not return, it was a good compensation for the damages done to the families of those who are killed by the Italians. Now, the situation has ended up in an ugly state in which the relation between the countries are getting spoiled. The marines may not return and who will compensate for the families of the poor fisherman. The Italian ambassador cannot claim immunity, because he has given surety in the form of an affidavit. If an ambassador gives surety in financial dealings and if there is a beach of agreement, can he claim immunity?. If this is allowed, then ambassadors become super citizens on other countries. It was a great mistake for the SC to accept surety from the Ambassador. Instead of that the affidavit would have been taken from some Indian citizen.

from:  Janardh
Posted on: Mar 19, 2013 at 14:08 IST

Italy Govt. attempts to attract the attention of world community, sidetracking the issue on Italian envoy case. The point is not of any sovereignty of the country or embassy’s immunity. The question is entirely different as to whether a citizen, Indian or foreign or country, has a right to play foul and cheat a country’s court – that too an apex one – wantonly producing false information aiming a favourable judgment. The answer is an emphatic ‘No’, in any country. If such actions are legalized on any ground, it would be a mockery of all court proceedings. Similar action is impossible for Italy on pain of punishment in its own country-courts. As such its envoy cannot claim immunity in other country for cheating the apex court filing wrong information with ulterior motives. The Supreme Court is right in distinctly differentiating immunity and the present offense of perjury. The envoy has to face the trial and punishment in India if the mariners do not return within the stipulated period

from:  G. Kannapiran
Posted on: Mar 19, 2013 at 13:50 IST

@Pats Mr. Pats... given the 'fantastic' reputation of the italian judiciary system, it would be ridiculous on ur part to say that the Indian system doesn't know what its up to!

from:  S.Ezhil
Posted on: Mar 19, 2013 at 12:16 IST

Article 31 subparagraph c of the Vienna convention states
that the diplomatic agent loses immunity for his commercial
or professional activity outside his official functions
in the recieving state.I believe that his action in the marines
case is outside his duty.thank you for reading this.

from:  Ramesh
Posted on: Mar 19, 2013 at 10:34 IST

If only our advocates and Courts can finish such "open and shut" cases quickly, these problems would not have cropped up ! The adjournments cause extraorindary delay, leading to the final judgement becoming infructuous in many cases. Weeks turn to months and months turn into years. All the concerned parties, viz., Judiciary, advocates and the Govt are not willing to find solutions, but only "talk" about delays and do nothing at all about it ! When the cases can be finished in a few months, in the US and Singapore, why can we not do the same ? There is LACK OF WILL on the part of Judiciary, Advocates and the Government. That is all.

from:  V. VEDAGIRI
Posted on: Mar 19, 2013 at 10:33 IST

The key question is - can the diplomat be held responsible for the
actions of the Italian government?
A retired Indian diplomat opined on RSTV that since a diplomat is
vested with powers plenipotentiary Mr Mancini can be held accountable
for the Italian government's actions. If that is true then the
diplomat's immunity doesn't apply to this case and he can be tried and
punished for the same.
However if it's true that the diplomat's powers do not extend to being
responsible for the actions of his govt then it is our highest court
which is at fault for releasing the Marines based on his guarantee
then we are in trouble.
In a recent case an Indian diplomat in London escaped trial and
possible jail time for assault because our govt didn't waive immunity.
It would be much more sensible to hit them financially - by cancelling
work contracts with their companies, imposing sanctions on their
companies like the US sanctions on Iranian companies and similar
actions.

from:  Aritra Gupta
Posted on: Mar 19, 2013 at 10:17 IST


Italy should know norms of Land

Boost their Arrogance and Intolerance

from:  Lakhani
Posted on: Mar 19, 2013 at 09:15 IST

Mr.Pats message dated 18th instant, carries a point. We will not be
doing any justice by putting the blame entirely on Italy alone for
this imbroglio. We have a hand in it. What caused the Government of
India to keep the constitution of a Special Court to try the Italian
marines pending, a delay that even drew a censure from the Supreme
Court? Were they consulting an Astrologer for an auspicious date? The
inordinate delay on our part to keep the judicial process moving to
the satisfaction of every one involved in this case is deplorable and
it should have certainly raised some fears in the minds of the
prisoners and their families in Italy. The Italian Ambassador might
have given assurance for the return of the prisoners in good faith.
His government's decision to hold back the marines may be a subsequent
development without the knowledge of the Ambassador. To call his
assurance as malafide and to challenge his diplomatic immunity is
fraught with consequences which we may regret later.

from:  T.Sathyamurthi
Posted on: Mar 19, 2013 at 05:59 IST

It's funny how thousands of murders in India go unpunished...but this
one seems to be of great importance.

If anyone reads this article ... they would think law and order is of
prime importance in India.

Meanwhile the truth is that many (if not most) politicians has a
criminal record...and nobody make a big deal about it...

India is a joke for a democracy...

from:  Chris P
Posted on: Mar 19, 2013 at 05:50 IST

Chief Justice of India, the highest authority in India, has observed that the Italian
ambassador can't leave India. This should encourage Italians to respect the bail
conditions.
India the largest democracy in the world, allowed the marines to exercise their voting
right in Italy.
India was not wrong in allowing them to get back to Italy. Italians should respect the
law of our land.

from:  RK
Posted on: Mar 19, 2013 at 01:18 IST

I think it is a mistake to detain the Ambassador, since he personally has not done any criminal offence. The Italian government has decided not to send the marines back, can one prove that the Ambassador was party to this, and schemed accordingly. He may have, but primarily we cannot hold an envoy for the fault of the government. We can expel him, sure, but not hold him. Tomorrow, some of our own envoys may be held in other countries, because the Indian government did something contrary to the laws of the foreign country. Even in a state of war, envoys are always protected, and have the freedome to leave the country, unless the envoy is personally involved in a crime, period!

from:  Kumar
Posted on: Mar 19, 2013 at 00:06 IST

India should stop this political stunt and ask Italy government to take care of those fisherman's families. End of Story. this is typical corrupt Indian government trying to get some sort of bribe from Italian government and in the end Indian government wont even help those families.

from:  paul singh
Posted on: Mar 18, 2013 at 22:49 IST

@ Pats:

1. Are you introducing a new legal principle whereby any accused can
bypass the judiciary process whenever there is undue delay in
progressing the legal case (in the opinion of the accused)? Name one
country that has such a rule. By your new rule, how many violations
will there be in the US, UK, rest of Europe etc?

2. Are you saying murder accused should not be held in custody pending
resolution of the case?

3. Are you suggesting any of the above permits an Ambassador to renege
on solemn written commitments voluntarily given to the highest court,
and then to hide behind diplomatic immunity? Where does the Vienna
Convention explicitly or implicitly permit or recommend blatant
illegal behaviour and acts of contempt of Court?

4. How morally right is it for murder accused to be protected from
prosecution, and their Govts to run away from justice? Or do you think
different standards should apply to Europeans?

from:  D Mahapatra
Posted on: Mar 18, 2013 at 21:34 IST

Assume this incident doesn't happen. The Italian Marines who were guarding the ship; would they go back to their Home country to cast their vote leaving the safety of the ship and its crew. Can't they cast their vote through mail.

These days everything seems suspicious.. Blame it it on Judiciary, Legislation, or even normal thinking..

from:  Sriram
Posted on: Mar 18, 2013 at 21:15 IST

The simple fact of the transaction is that the Mr. Mancini petitioned the Supreme Court of India in his capacity as the Ambassador of his nation. Effectively, for the Supreme Court and for the people of India, his representation, request and guarantee are that of a sovereign nation and therefore it is for Italy to honour its commitment. It is their word given to a court of law; everything else they say now is hogwash disguising itself as 'diplomacy'.

from:  Sridhar S
Posted on: Mar 18, 2013 at 21:09 IST

Although it was a cunning move by Italy but what would you do if your citizens are imprisoned in an alien country and it takes over year to determine the jurdistiction of the trial court! I think Italy missed a trick here by NOT asking their entire diplomatic staff in India to leave for Italy during the weekend and after they are safely home, make the annoucement of the non-returning sailors!!!

from:  s m kumar
Posted on: Mar 18, 2013 at 20:53 IST

Watch out India...you're driving into deadend ! Diplomatic immunity is treated almost as holy cow by all countries. India will be very isolated and will be riding a no-go path this way. It is ok to make all this show but behind the curtain India must devise some tricks to punish Italy because they really deserve it (and as well to ensure no other country is tempted to treat India like this)...all the best.

from:  Gandharv
Posted on: Mar 18, 2013 at 20:49 IST

It is funny to note all this hullabaloo about the non-return of
Italian marines. First of all, the entire embassy staff of different
countries vote from the respective embassies only. No one has ever
heard of embassies being vacated for three months to cast their vote.
The judgement of the Supreme court to let the soldiers go back to
Italy for 3 months looks highly suspicious. Secondly,the government
never challenged the judgement by going on appeal. The entire episode
looks like a very well orchestrated drama and nothing else. Thirdly,
there was a talk of Indian government expelling the Italian envoy.Now
with the SC disallowing his travel outside, expulsion is also
conveniently put on hold. All in all we the common public are made
complete fools.

from:  Deepak
Posted on: Mar 18, 2013 at 20:40 IST

It was naive to let those marines go in the first place..it's even more naive to think detaining the ambassador is the right way to correct the situation..the Vienna convention explicitly states that diplomats have immunity unless its expressly revoked by the parent country..the host country does not have the choice to do it nor does its judiciary.

We can expel Mancini but we cannot detain him. This sets a dangerous precedent which puts our overseas diplomats' position in jeopardy.

from:  Vishnu
Posted on: Mar 18, 2013 at 20:33 IST

Mr. Mancini conned the SC. Now, the SC is asking Mr. Mancini to produce
the two sailors for trial, that the SC knows very well that Mr. Mancini
does not have the legal authority even if he wish to do so.

from:  James
Posted on: Mar 18, 2013 at 19:12 IST

The SC did show some guts on this issue. Really happy for the decision.

from:  Dheeraj
Posted on: Mar 18, 2013 at 18:45 IST

At the first hand they should not have been allowed to go but courtesy towards them did not help in any away. We have shown our Indian courtesy but that has gone in the wind. Now ambassador is our trump card and he should not be allowed to go at any cost. If the things are not settleing the way it should be done the ambassador should be counting the bars(in jail). Other courtries should not think that anything one can do to the Indians and they will get away scot free but it should be the other way round.

from:  Dr K Natarajan
Posted on: Mar 18, 2013 at 18:17 IST

How can an official (in this case the Italian Ambassador to India) who knows to have been enjoying diplomatic immunity on account of behavior and integrity expected of him due to the position he holds, be so dishonest so as to go back from the solemn assurance given to the highest court of the land? Diplomatic immunity is not for committing fraud under its cover. This episode reflects on the likelihood of any dubious scheming by the Ambassador and the Italian government, in the matter of marines case, and their attitude towards the Indian government and Judiciary. SC is right in restricting his movement; diplomatic immunity ceases to apply the moment one falters in behavior expected of him/her as a diplomat.

from:  Murtuza
Posted on: Mar 18, 2013 at 17:24 IST

There is a clear mistake on the part of Italy - Accepted.
Now, tell me how come it took almost 12 months and Supreme Court to
decide and declare that Kerala High Court do not have jurisdiction to
decide on the Enrica Lexie Case? Will Kerala High Court do not know
this? How they kept the two marines in custody for almost 1 year
making mockery of the Indian Judicial System? May be Italy should tell
SC (like SC told they don't trust the Italy Ambassador) that they
don't trust Indian Judiciary! They don't even know what is their
jurisdiction is and conducting proceedings... Given the situation,
ITALY MUST HAVE LOST HOPE, the Marines LOST PATIENCE.

from:  Pats
Posted on: Mar 18, 2013 at 16:54 IST

It is good that our judiciary system step forward to take a stringent action against the Trust-brokers. We have proved that anyone if takes undue advantage of our leniency(allowing Italian culprits to move for casting votes), we can stand and take actions on the grounds of law and Justice

from:  vipul mishra
Posted on: Mar 18, 2013 at 16:52 IST

What ever happened to absentee ballots for the Italian elections? This
way the marines could have voted in the Italian elections from within
India itself.

Also, I think it shows pretty poor judgment on our part (our SC) to
let them go abroad. I mean isn't it pretty obvious that Italy (or any
nation for that matter) will do everything in its power to protect its
citizens from prosecution in another country, especially when they may
face the death penalty or life in prison!?

from:  Sriram
Posted on: Mar 18, 2013 at 16:16 IST

A person who does not approach the court with clean hands, That person does not deserve any relief from the court. Today's interim order is quite reasonable, if this chap does not compy with March 22 order, I dont think there should be any legal hitch to send this guy behind bars.

from:  Tarsem
Posted on: Mar 18, 2013 at 15:58 IST

No self respecting independent country can allow its judiciary, or
government, to be taken for a ride in the blatant manner apparently
attempted by Italy.

Italy must reconsider the impact such behaviour will have on all its
future dealings with any country in the world. There is still plenty
of time and opportunity for Italy to diplomatically diffuse the
matter, without any loss of face.

No country in the world will accept that it was wrong of India
(however un-suspecting, therefore naïve, she may have been) to have
trusted the solemn undertakings freely given by a sovereign democratic
state and its highest diplomatic agent in the country, the Ambassador.
And no country in the world will accept that Italy can humiliate India
for having been compassionate, civilised, courteous, and mindful of
good relations with a “friendly country”. It is in Italy's interest to
introspect and salvage its reputation internationally.

from:  D Mahapatra
Posted on: Mar 18, 2013 at 14:25 IST

The Italian Ambassador has to respect the Indian law, it is must for him and it is absolutely under the international diplomatic rules and principles.

from:  Sultan
Posted on: Mar 18, 2013 at 12:55 IST

Article 32 of the Convention makes it clear that a diplomat ceases to be eligible for diplomatic immunity from criminal and civil jurisdiction of the host country after he initiates a proceeding in the court of law.....so its time to send the Italian Ambassadors to send behind bars IN INDIA...SC should strike down the prisoner's exchange treaty

from:  Hemant
Posted on: Mar 18, 2013 at 12:41 IST

This must be cased as the contempt of the highest court of India and the
immunity of the ambassador must be disqualified. At the same time, it
questions the prudence of our judiciary about the reason on which they
allowed the two marines to leave the country.

from:  Manik Sheeri
Posted on: Mar 18, 2013 at 12:38 IST
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