MASSIMILANO LATORRE Vs. UNION OF INDIA

JUDGEMENT

(1.) AT about 4.30 P.M. on 15.2.2012, a fishing boat "St. Antony", registered in India, while fishing off the coast of Kerala, was fired at, from a passing ship. As a result of this, of the 11 fishermen who were onboard the boat, two of them, namely Valantine @ Jelestine aged 44 years and Ajeesh Pink, aged 20 years were killed instantaneously. Immediately, the boat returned to Neendakara and the owner of the boat gave First Information Statement before the third respondent, the Circle Inspector of Police, Neendakara, who recorded the same and registered a case as Crime No. 2 of 2012, copy of which is marked as Ext.P2 for murder punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the IPC). In Ext.P2 , it was alleged that while fishing at 33 Nautical Miles (NM) away from the police station, without any warning or alarm, there suddenly occurred repeated firing for about two minutes from a ship painted black and red. Since the assailants were not identified, the case was registered against some officers in the above ship. Alerted by the third respondent, the Coast Guard and the Indian Navy made a thorough search and detected that the firing was from a ship by name MT ENRICA LEXIE (hereinafter also referred to as the vessel). The Captain was asked to take the vessel to the Cochin Port, which was complied with. Maritime Rescue Co- ordination Centre (MRCC) conveyed the message to the third respondent who rushed to the vessel. The vessel was registered in Italy (Maritime MMSI No.247232700 and IMO No.9489297) and was reportedly sailing from Singapore to Egypt. After an initial reluctance to cooperate with the investigation of the case, the Captain and others in the vessel cooperated with it. During the investigation it was revealed that, in addition to the crew, there were six marines in the vessel, engaged for security duty. Of them, two Italian marines - Massimilano Latorre and Salvatore Girone - petitioners 1 and 2, were identified as the ones who fired at the fishing boat. They were apprehended by the third respondent and produced before the Chief Judicial Magistrate, Kollam, along with Ext.P3 remand report. They were first remanded to police custody and later to judicial custody. The third petitioner is the Republic of Italy, represented by its Consul General. The third petitioner has come forward in support of petitioners 1 and 2. Pleadings of the petitioners:

(2.) PETITIONERS denied the involvement of petitioners 1 and 2 in the alleged incident and contended that the said petitioners are the Chief Master Sergeant and Sergeant in the Italian Military Navy in active duty and that they were deployed in the ship as trained Navy personnel to protect and safeguard Italian maritime interests against piracy. It was contended that on 15.2.2012, while the vessel was proceeding from Singapore to Djibouti, there was an attempted piracy attack on the vessel. In accordance with the international procedures, the Master of the vessel set into motion the alarm, flashlights and horns. The Master also activated the Ship Alert Security System (SASS) which sent out signals to the Italian Maritime Rescue and Coordination Centre (MRCC); and also reported it to the Mercury Chart which links together and transfers information to the community including several Navies across the world fighting piracy, including to the Indian Navy Head Quarters. It was further stated that the vessel, which was on an average speed of 13 Knots per hour, increased the speed to avert the piracy attack and after it covered 38 NM, information over phone was received from the MRCC, Mumbai directing the vessel to come to the Cochin Port to assist and identify the suspected pirates who had been apprehended. Accordingly, the Vessel turned its course and anchored at Cochin Port at midnight on 16.2.2012.

(3.) IT was also contended that since the petitioners 1 and 2, having been deployed by the Italian Defence Ministry for the purpose of protection of the vessel from piracy, were acting in their official capacity and under the principles of international law, they are subject to the jurisdiction of only the flag state of the vessel or their own state. It was contended that they are therefore entitled to functional immunity from prosecution except before the courts or military tribunals of Italy.