The Supreme Court made clear to the Centre on Friday that it would not pass any order on the plea seeking closure of cases against two Italian marines, accused of killing two Indian fishermen, without hearing the victims' families who should be given adequate compensation.
A bench headed by Chief Justice S A Bobde allowed the Centre to file fresh plea making the victims' family members parties to its application for seeking closure of Italian Marines case.
Solicitor General Tushar Mehta informed the bench, also comprising Justices A S Bopanna and V Ramasubramanian, that Italy has assured the Indian government that it would prosecute the Marines.
When the bench insisted that adequate compensation should be paid to the family members of the victims, Mehta said the Centre will ensure that maximum compensation is given to them.
At the outset, the bench said it appreciates the steps taken by Italy to prosecute these marines but the court is on the issue of adequate compensation which should be paid to the victims’ family.
It said, “We want that adequate compensation be paid to the victims’ family”.
The top court referred to the case against the Italian Marines pending before the special court and said that without applying for withdrawal of prosecution there how the Centre can come here seeking the closure.
Mehta replied the top court had earlier said that proceedings on the special court be kept in abeyance.
The bench said, “You can apply for withdrawal of prosecution there. The victims’ families will have the right to oppose it. The victims’ families are not even a party here."
It said, “We will not pass any order without the victims’ family being heard”, and allowed the Solicitor General to implead family members of the victims as party in its closure application.
The top court said the Centre should file a fresh application for impleading of the victims’ kin within a week.
On July 3, the Centre moved the top court seeking closure of judicial proceedings here against the two Italian marines accused of killing Indian fishermen, off the Kerala coast.
The Centre said it has accepted the recent ruling of the Permanent Court of Arbitration (PCA) at the Hague which held that India is entitled to get compensation in the case but can't prosecute the marines due to official immunity enjoyed by them.
In February 2012, India had accused two Italian marines, Salvatore Girone and Massimiliano Latorre, on board the MV Enrica Lexie -- an Italian flagged oil tanker -- of killing two Indian fishermen who were on a fishing vessel in India's Exclusive Economic Zone (EEZ).
The Centre said the arbitration under United Nation Convention on the Law of Sea (UNCLOS), which was instituted on a request from Italy, has delivered its Award on May 21, 2020.
It said the Tribunal upheld the conduct of Indian authorities with respect to the incident and highlighted the material and moral harm suffered by the Indian fishermen on board the St. Antony on February 15, 2012.
“It held that the actions of the Italian Marines breached India's freedom and right of navigation under UNCLOS Article 87(1)(a) and 90,” the application said, adding, as argued by India, the Tribunal observed that, in principle, India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the Marines.
It said that the Tribunal took note of the commitment expressed by Italy to resume its criminal investigation into the events of February 15, 2012 and decided that India must take necessary steps to cease to exercise its criminal jurisdiction over the marines.
“The Tribunal decided that India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of “St. Antony".
Latorre, who had suffered a brain stroke on August 31, 2014, was first granted bail and allowed by the apex court on September 12, 2014 to go to Italy for four months and after that, extensions for his stay have been granted to him.
In Italy, Latorre had to undergo a heart surgery after which the top court had granted him extension of his stay in his native country.
On September 28, 2016, the apex court had allowed Latorre to remain in his country till the international arbitral tribunal decided the jurisdictional issue.
On May 26, 2016, Girone was also granted bail with conditions and allowed by the top court to go to his country till the jurisdictional issue was decided.
The complaint against the marines was lodged by Freddy, the owner of fishing boat 'St Antony' in which the two Kerala fishermen were killed when the marines opened fire on them allegedly under the misconception that they were pirates.
The top court was earlier informed by the Centre that the international arbitral proceedings would be completed by December 2018 before the International Tribunal for Law of the Sea (ITLOS) in Germany.
The apex court had earlier stayed all criminal proceedings, including the trial of the two marines. While allowing the joint request of India and Italy, the apex court had said the proceedings would remain stalled till the jurisdictional issue about which country has the right to conduct trial was decided through international arbitration. PTI ABA MNL SJK SA
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