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The Kerala High Court on Thursday admitted a writ petition filed by the Italian Consul General, Mr Giampaolo Cutillio and the arrested two Italian naval marines challenging the first information report (FIR), registered against the naval marines in connection with the killing of the two fishermen off the Kerala coast.
Mr Justice P.S.Gopinathan while admitting the petition filed by the Consul General and the two Italian naval personnel, Mr Massimilano Latorre and Mr Salvatore Girone, also issued notices to the Kerala Government, the Central Government and the police.
The court also directed the State and the Centre to file affidavits, if any, in response to the writ petition.
The court adjourned the hearing on the petition to February 28.
When the petition came up for hearing, counsel for the petitioners contended that India had no jurisdiction to register a case against the Italian naval marines. The alleged offence took place beyond the territorial waters of the country.
The registration of the FIR, launching of an investigation into the alleged incident, and the arrest were, therefore, “wholly without jurisdiction, null and void”.
He contended that the provisions of the Indian Penal Code, read with the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976, did not allow the State or the Central Government or the Indian police to register a complaint against the Italian naval officers.
When the counsel contested the statement of the police that the incident took place in the Indian territorial waters, the Judge orally observed that the jurisdictional issue could be decided only at the trial stage after taking into account the evidences.
The court asked the counsel why they did not cooperate with the investigation and help the police speed up the investigation.
The State and the Centre, while opposing the petition, sought time to take instructions from their respective governments and reply to the contentions of the petitioner.
The Director General of Prosecution said that the weapon used by them was yet to be recovered. Therefore, their police custody was essential.
The counsel for the petitioners contended that the principles of international law and conventions including the United Nation Convention on the Law of the Sea (UNCLOS) to which the Indian Navy was already a signatory, the Indian courts had no jurisdiction to register a crime in connection with the alleged incident and only courts in Italy had the sole jurisdiction to investigate or prosecute the alleged incident.
In fact, an investigation had already been launched in Rome.
The petitioners submitted that 12 nautical miles off the coast was deemed territorial waters of India. Beyond the territorial waters was the contiguous zone extending unto 24 nautical miles from the coastline and beyond that, unto 200 nautical miles was the Exclusive Economic Zone of India.
It was the case of the prosecution itself that the alleged incident took place outside the territorial waters of India in the contiguous zone/exclusive economic zone of India, that is, 22.5 nautical miles off the Kerala coast. Therefore, the police had no jurisdiction to register a case against the naval officers.
Our Kochi Bureau adds: The Italian Deputy Foreign Minister, Mr Stefan de Mistura, on Thursday met the two arrested naval marines, charged with the murder, at the CISF Guest House in Wilingdon Island, where they were kept under arrest.He was accompanied by the Italian Ambassador, Mr Giacomo Sanfelice, Mr Giampaolo Cuttillo and the ship's captain.Speaking to reporters, Mr Mistura said that his country will cooperate with the Kerala police for the ballistic examination of the weapons of the two arrested marines, suspected to have shot and killed the fishermen. However, he added that the examination should be carried in their presence.Mr Mistura said that the firing incident took place in international waters. “We stick to our stand that the vessel was in international waters where the incident took place. It was 22.5 nautical miles off the Kollam coast, he added.He also expressed satisfaction over the facilities given to the Italian marines at the CISF Guest House.
>kcgopan@thehindu.co.in>sajeevkumar@thehindu.co.in
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