India-Italy relations deteriorate
By Ashok B Sharma
India is placed on the horns of a dilemma over Italy refusing to send back two of its marines facing trial in an India court on the charges filling two fishermen off the coast of Kerala.
The Supreme Court added to the problems for the Government by issuing notice on Thursday to the Italian Ambassador in India Daniele Mancini from leaving the country without its permission. The Bench headed by Chief Justice Altamas Kabir and consisting of Justices AR Dave and Vikramjit Sen also issued two separate notices to two accused marines, Massimiliano Lattore and Salvatore Girone through the Italian Ambassador asking them to file their response by March 18 and posted the matter for further hearing next Monday.
This developments sent the diplomatic circles in New Delhi into a tailspin. A spokesman of the Indian Ministry of External Affairs said the “entire expanse of our interaction” with Italy was being reviewed and all aspects carefully examined following Italy’s refusal to send back two accused Italian marines to face trial in the country for homicide.
India is also in touch with European Union office here to wriggle out the issue.
According to sources India’s Ambassador-designate to Italy Basant Kumar Gupta, who was scheduled to leave for Rome on Friday, is not proceeding there now.
Diplomatic circles in India are also in dilemma over the possible situation that may arise if the Italian Ambassador fails to comply with the apex court order
The spokesman of the Indian External Affairs Ministry said: “we will work within the parameters of the Vienna Convention on Diplomatic Relation, 1961.”
On waiver of immunity given to serving envoys and diplomats in India, the Article 32 (4) of the Convention says “Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.”
It is to be seen whether India would opt for such a waiver if the situation so arises.
That the Italian Ambassador will not be expelled is clear. The apex court wants him to respond by March 18. Till the Italian Ambassador complies with the apex court order, he will not be liable to arrest or detention.
The Article 29 of the Convention says: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”
The Article 32 (3) of the Convention, however, says : “The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.”
India maintains that the Supreme Court order is does not violates the Vienna Convention on Diplomatic Relation, 1961 to which the country is a party
The two marines, Massimiliano Lattore and Salvatore Girone, who were allowed by the apex court to go to Italy to cast their vote in the elections there after Italian Ambassador Daniele Mancini had given an assurance to send them back.
After hearing the Attorney General GE Vahanvati who brought the issue before the apex court saying that “its a breach of undertaking given to the highest court of the land and the government is extremely concerned about it”, the Supreme Court issued notices to the Ambassador and the two marines and asked them to file their response by March 18.
The apex court bench posted the matter for further hearing on coming Monday after the AG pleaded for an urgent hearing on this issue.
The two marines were on board Italian vessel ‘Enrica Lexie’, when they shot dead two fishermen off the Kerala coast on February 15, last year.
The Italian government, which had given an undertaking before the apex court that the marines will be sent back, had on March 11 sent a ‘Note Verbale’ to the Indian government informing it that the two will not be sent back.
Earlier, on January 18, the apex court had turned down the Italian government’s plea that the Indian courts had no jurisdiction in the case and had held that the two marines should be tried by the Centre by constituting a special court to conduct their trial.
It had directed that the two be shifted to Delhi and would remain under it’s ‘custody’ till the special court is set up.
The court had said that the Kerala government did not have the jurisdiction to prosecute the two foreign marines and it is to be done by the Centre in the special court to be set up after consulting the CJI.
The court had also said that all the conditions imposed on them by the Kerala court, while granting them bail will remain till the special court is set up and the marines will mark their presence at least once a week before Chanakyapuri Police Station.
The Italian foreign ministry said two Italian marines accused of killing two Indian fishermen they mistook for pirates would not return to India when their court-allowed leave runs out at the end of this month.
This decision was taken by Italy’s defence and justice ministries in consultation with the country’s prime minister’s office.
“Italy has informed the Indian government that, given the formal international controversy between the two states, the two marines… will not return to India when their leave runs out,” the Italian foreign Ministry in a statement said.
Italy “is ready to reach an agreement to resolve the controversy including through international arbitration or a judicial resolution,” statement said.
“This was a decision taken by the whole government,” Italian Defence Minister Giampaolo di Paola told an Italian news channel.
“Our marines will return to service,” he said.
The accused Italian marines, Massimiliano Latorre and Salvatore Girone returned to Italy on February 23 after India’s Supreme Court said they could visit their homeland for a month to vote in elections on February 24-25 since Italy does not allow postal ballots for non-expatriates.
The Supreme Court had earlier allowed them to go home for Christmas. (IPA Service)