'Italy cannot claim sovereign immunity'

Massimiliano Latorre, center and Salvatore Girone, right,
coming out of Central Prison, Thiruvananthapuram, Kerala, India.
Photo: Associated Press

The Killing of two Indian Fishermen off Kerala Coast has even led to a legal-diplomatic war between Republic of India and Republic of Italy. Both the countries contents jurisdiction to try this case. This case climbed the stairs of Supreme Court at least four times. The ‘Note Verbale’ by Italian Government and subsequent Supreme Court order restraining Italian Ambassador from leaving out of India and possibility of contempt proceedings again led to Diplomatic war between both countries.

Special Public Prosecutor for Enrica Lexi Case at Kollam Sessions Court, Shri. G Mohan Raj exclusively spoke to Nebil Nizar. Given below is the excerpt from the conversation.

Adv. G Mohan Raj

1- The Supreme Court has ruled that India has jurisdiction in this case, but not Kerala. How do you react?

 Mohan Raj: I think even Kerala Courts has jurisdiction. As long as Indian Constitution, Indian Penal Code, Criminal Procedure Code extends to the state of Kerala, and jurisdiction of India is extended using Maritime Zones act, Kerala is having jurisdiction.
The Hon’ble Supreme Court has ruled that Kerala is having jurisdiction up to 12 nautical miles and India is having Jurisdiction up to 200 nautical miles. As for the time being, that is the Law of the land.

2- The Complainant in this case was Kerala Police. Now you have been stripped of your rights. What can you do?

Mohan Raj: Criminal offence is an offence against the state. In Larger perspective we can say that state can be nation itself. When Jurisdiction of Kerala state is taken away, Jurisdiction will go back to Central Government. For the reason that Kerala Police initially registered the case and thereafter it was found that Kerala is having no jurisdiction, the initiation of criminal proceedings will not abate.

3- Supreme Court said that Registration of FIR is correct, Investigation is correct, but, you do not have Jurisdiction. Don’t you feel this is strange?

Mohan Raj: That is the anomaly. When it is said by the Apex Court, we have no option other than to follow it.

4- How did you begin this case?

Mohan Raj: First, we searched for Notification under The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (the Maritime Zones Act, for short). Fortunately we could find a 1981 Notification by Central Government. In the notification it was said that Indian Penal Code was extended up to 200 nautical miles. Then we were sure that we had Jurisdiction to investigate this case.

As far as criminal law is concerned, if nothing prohibits the initiation of proceedings, then it can be. As on the date of registration of FIR, there was nothing prohibiting Kerala Police from conducting an Investigation. So, Federal state initiated action. FIR was registered, seizure was made.

5- The Accused(s) in this case are members of armed forces of a sovereign country in friendly relations with India. Are they entitled to Sovereign Immunity?

Mohan Raj: For getting the benefit of sovereign immunity, you should be exercising a sovereign function. Here, in this case, Investigating Officer could rightly find out that they were engaged for giving private security to a private ship. Italian Military was getting paid for that.  It was a paid service. Sovereign Immunity can be claimed only when the Marines acted for Italian Government. The Marines did not fire for the safety of Italy.

6- There is a Prisoner Exchange Agreement between India and Italy. Are you afraid that the Marines would shrug off the clutches of Indian Law?

Mohan Raj: That is by virtue of The Repatriation of Prisoners Act, 2003. Recently India and Italy has signed an agreement. They might be foreseeing a conviction. If they are convicted, they might ask Union Government to repatriate them to Italy.

7- Media reports quote Italian authorities saying that India has agreed in writing that the accused (s) will not be given Capital punishment. How do you react to this?

Mohan Raj: It is premature to comment about that. We cannot say the outcome of the trial. First of all they must be found guilty. Then mitigation circumstances have to be considered. Then we have to consider whether it is a rarest of the rare case. Then only that issue arises.


*
Special thanks to Shri. Reju Prasad and Smt. Garima Tiwari