No bail for Italian marines

A court here Saturday rejected the bail application of two Italian marines accused of shooting dead two Indian fishermen, expressing doubts whether their presence could be ensured if they were granted bail.

Denying the bail, Kollam District Sessions Court judge P D Rajan expressed doubts over the assurance given by the Italian government that it would ensure the presence of the marines - who were on board the cargo vessel MV Enrica Lexie at the time of the incident - if and when they are summoned by an Indian court.

The court order comes a day after a special investigation team of the Kerala Police filed a 196-page chargesheet against the two Italians.

Italian marines Latorre Massimillano and Salvatore Girone, posted aboard cargo vessel MV Enrica Lexie, were arrested on 20 February for shooting dead Indian fishermen, Ajesh Binki, 25, and Gelastine, 45, after allegedly mistaking them for pirates. The incident occurred 15 February, about 14 nautical miles off Alappuzha in Kerala.

The Supreme Court had on 2 May allowed release of the vessel from a Kerala port following the Italian government's assurance. 'We accept the assurance given by the Republic of Italy that the presence of four marines if required by any court or investigating officer or any lawful authority would be ensured,' said the apex court bench of Justice R M Lodha and Justice H L Gokhale.

During Saturday's proceedings, counsel for the marines told the court here that since the chargesheet had already been filed, they should be given bail. They are prepared to abide by whatever conditions are put up for granting of bail, they said.

But the court asked for the speedy trial of the case, as the chargesheet has been filed.

Special public prosecutor Mohan Raj told reporters that the court agreed to their arguments and dismissed the bail plea.

Currently the two marines are lodged in the Thiruvananthapuram Central Prison and their judicial custody ends on 25 May.

Early this month, Italian authorities reached an out-of-court settlement by paying Rs. 10 million each to the families of the deceased fishermen and Rs. 1.7 million to the boat owner J Freddy for damaging his vessel. On 5 May, the Italian vessel was allowed to sail out from Kochi.


After the incident on 15 February, the Italian ambassador in Delhi, Giacomo Sanfelice di Montefor was summoned by the External Affairs Ministry the next day and lodged an official protest at the incident.

On 17 February, External Affairs Minister SM Krishna informed the Italian Foreign Minister in a telephone conservation that the fishermen were unarmed and posed no threat to any ship. The Italian foreign ministry said in a statement that Italy’s ambassador to India and a delegation of experts from Italy’s foreign, defense and justice ministries arrived in Delhi on 19 February 2012 and discussed the case with Indian officials. However, the meeting between the Indian and Italian officials failed to yield agreement.

Lee Adamson, head of the public information services for the International Maritime Organisation stated that the IMO could not intervene in the diplomatic row between India and Italy. 'Any loss of life at sea is regrettable. However, we are unable to offer you any comment on the circumstances surrounding this incident. It seems, from the facts that have emerged thus far, that this is not something covered by any IMO measure'. IMO guidance to shipowners, operators and masters refer to the use of privately contracted armed security personnel (PCASP) in high-risk areas. The guidance states that a ship’s master or captain will be in command and will retain the overriding authority on-board. PCASP should be fully aware that their primary function is the prevention of boarding (by pirates) using the minimal force necessary to do so.

Adamson clarified that 'the PCASP guidance (to shipowners/operators) adopted by IMO deals with privately contracted armed security personnel (PCASP), not with the presence of government military personnel on board merchant ships.' Adamson added, 'IMO does not address the concept of ‘rules of engagement’ as this is a military concept, outside the organization's remit.'

The Italian government has claimed that the marines are elements of the State and that they enjoy absolute sovereign immunity. Italian Foreign Minister Giulio Terzi tweeted: 'In no case should the ship have entered Indian waters... The polemics on responsibility I leave to others.'

India has pointed to the absence of any international treaty regarding immunity from prosecution for Vessel Protection Detachments (VPD) on board privately owned commercial ships. The Oil Companies International Marine Forum held at IMO Headquarters in London from 11 to 20 May 2011 took note that the deployment of VPDs on commercial ships raised important issues pertaining to jurisdictions of littoral States in the event of an incident.

India and Italy do not have any Status of Forces Agreement (SOFA) agreement that would allow Italian defense personnel to claim absolute or qualified immunity from the Indian legal system.

The filing of a chargesheet for murder against the two accused Italian Marines before the Kollam Chief Judicial Magistrate Court on 18 May 2012 by the Special Investigation Team (SIT) prompted the Italian Government to recall its ambassador to India for consultations.
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