The Supreme Court appreciated the efforts put in by Republic of Italy to prosecute its Marines accused of killing two fishermen off the coast of Kerala in 2012, but insisted that it will close their criminal trial in India only after the victims’ families are heard and paid a “hefty” and “adequate” compensation.
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“We appreciate the steps taken by Italy to prosecute the two Marines. But if you want the case closed here, you have to pay an adequate compensation to the families”, Chief Justice of India Sharad A. Bobde, heading a three-judge Bench, addressed advocate Suhail Dutt for Italy on Friday.
A sum of ₹1.5 crore has already been paid to the fishermen’s families. “We are willing to pay a reasonable compensation”, Mr. Dutt said.
“No, you will pay adequate compensation, not a reasonable one. You will bring the cheque here and we will hand it over to the families”, Chief Justice Bobde said.
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The court asked the Centre to negotiate a “hefty” compensation with Italy.
“We will get the best compensation from them”, Solicitor General Tushar Mehta assured the court.
The court ordered the Centre to implead the victims’ families in the case within a week.
“We want to hear them. You [Centre] find where they are and you bring the families here”, Chief Justice Bobde, speaking for the Bench, directed the Centre.
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Marines Salvatore Girone and Massimiliano Latorre were detailed on Italian ship ‘Enrica Lexie’ when they allegedly shot the fishermen, thinking they were “pirates”. The Marines, who are in Italy now, will face criminal investigation there. India is entitled to compensation for the loss of life. Its freedom and right of navigation was violated by the Marines, the tribunal held.
Centre’s application
The hearing was based on an application filed by the Centre informing the Supreme Court that it has decided to “accept and abide” by an international tribunal’s award that the Marines enjoy immunity from prosecution in India. The government said India was bound by the award of the arbitral tribunal formed under the United Nations Convention on the Law of the Sea (UNCLOS). It said the tribunal award was “final and without appeal”.
Senior advocate K.N. Balagopal argued for Kerala, saying: “The award passed by the Permanent Court of Arbitration is in conflict with the Supreme Court judgment in 2013. This verdict upheld the authority of the Union of India to prosecute the Marines. So, an international award which is in conflict with a domestic law, notwithstanding India's ratification of the United Nations Convention on the Law of the Seas, can be implemented only if it is made into law under Article 253 of the Constitution”.
At the start of the virtual court hearing, Chief Justice Bobde, after a short discussion with his companion judges on the Bench, said the “application presented strong legal difficulties”.
“You want to withdraw the criminal cases against them, but you have not been able to fix the compensation [for the families of the victims]. Secondly, the fact is that there is a pending trial in a criminal court and the victims’ families are parties there. How can we order withdrawal of the cases here without first hearing them?”, Chief Justice Bobde asked Mr. Mehta.
The international tribunal’s finding that the Marines have immunity comes seven years after the Supreme Court ordered the Centre to “proceed with the investigation and trial of the Marines” in a decision on January 18, 2013. The court had ordered the Centre to set up a special court to try the case. Prior to the Supreme Court verdict, the Kerala High Court too found that the Marines enjoyed no immunity.
However, in 2014, the Marines successfully gained a stay order on the investigation by the National Investigation Agency. A year later, the Supreme Court froze its own proceedings when the case reached the International Tribunal on Law of Seas. The apex court later, in September 2015, deferred the case till further orders.
