The Supreme Court on Friday told the Centre that it could allow the withdrawal of prosecution of the Italian marines — who killed two fishermen off the Kerala coast in 2012 — only after Italy compensates the families of the victims.

“Let Italy pay them compensation. Only then will we allow the withdrawal of prosecution,” Chief Justice SA Bobde said.

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The top court insisted that it will have to hear the kin of the two victims on adequacy of compensation and till then it would not close the case.

A bench comprising Chief Justice SA Bobde, Justice AS Bopanna and Justice V Ramasubramanian told Solicitor General Tushar Mehta, representing the Centre, “bring the cheques and the kin of victims here.”

The bench noted that the top court cannot think of any relief for the Italian marines till their prosecution is withdrawn in the Kerala court. Mehta replied the Centre is willing to file a petition for withdrawing prosecution of the two marines.

The Chief Justice replied “but the family of victims will have a problem. They will have to be heard.” Mehta contended before the top court that the Centre is in favour of withdrawing the prosecution of the Italian marines in India, as Italy is ready to prosecute them. The bench noted that without hearing the kin of the deceased it cannot close the case.

The top court asked Mehta to file an application seeking impleadment of the families of the victims within a week. The top court adjourned the hearing on the pending petition filed by the two Italian marines – Massimiliano Latorre and Salvatore Girone.

In February 2012, India had accused the two Italian marines, on board the MV Enrica Lexie — an Italian flagged oil tanker — of killing two Indian fishermen who were on a fishing vessel off Kerala coast in India’s Exclusive Economic Zone (EEZ).

On July 3, the Centre had moved the Supreme Court seeking closure of judicial proceedings against the two Italian marines saying that 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 its application, the Centre told the top court, “The applicant states and submits that the Republic of India has taken a decision to accept and abide by the Award passed by the said Tribunal which would have the bearing on the continuance of present proceedings before this Court.”

The Centre said that the arbitration under United Nation Convention on the Law of Sea (UNCLOS), which was instituted on a request from the Republic of Italy has delivered its Award on May 21, 2020.

It said that 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.

The Hague-headquartered Permanent Court of Arbitration Tribunal had on July 2 upheld the conduct of the Indian authorities in the Enrica Lexie case and said New Delhi was entitled to get compensation in the case.

But the tribunal also ruled the marines cannot be prosecuted due to the official immunity enjoyed by them.

The international tribunal also held that the two marines violated the international law, and as a result Italy breached India’s freedom of navigation under the United Nations Convention on the Law of the Sea (UNCLOS).

MEA Spokesperson Anurag Srivastava, during an online media, said the tribunal observed that India and Italy had “concurrent jurisdiction” over the incident and a valid legal basis to institute criminal proceedings against the Marines.

Srivastava said the tribunal rejected Italy’s claim to compensation for the detention of the Marines.

“However, it found that the immunities enjoyed by the marines as state officials operate as an exception to the jurisdiction of the Indian courts and, hence, preclude them to judge the Marines,” he added.

The tribunal said it “decides by three votes to two, in respect of Italy’s Submission…that the marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the marines.”

While Judge Vladimir Golitsyn (President), Judge Jin-Hyun Paik and Professor Francesco Francioni voted in favour of Italy, Judge Patrick Robinson and Dr Pemmaraju Sreenivasa Rao voted for India in the five-member tribunal.

Meanwhile, the wife of one of the two fishermen killed in firing by Italian marines onboard Enrica Lexie had expressed happiness over the verdict of the international tribunal in the case and said steps should be taken to ensure such incidents do not recur.

Dora, wife of Valentine Jalastine, also thanked the Central government for pursuing the case all these years.

Jalastine of Kollam and Ajesh Binki, a fisherman from Colachel in Kanyakumari, were killed when two Italian marines on board Enrica Lexie oil tanker fired at them on February 15, 2012.

The issue of jurisdiction over the case became a big argument between the two countries. While India maintained that the incident happened in Indian waters and also the fishermen killed were Indian, and hence the case must be tried as per its laws, Italy claimed that the shooting took place outside Indian territorial waters and its marines were on-board the ship with the Italian flag.

India had detained the two marines after the shooting incident but later allowed them to return to Italy on specific conditions following separate orders by the Supreme Court.

Italy had maintained that the two marines aboard the tanker mistook the fishermen on board ‘St Antony’ to be pirates.

(With agency inputs)