In light of the recent award passed in the Enrica Lexie case by the Permanent Court of Arbitration, an application has been filed on behalf of Union of India, seeking disposal of the matters pending in the Supreme Court regarding the criminal proceedings against Italian marines in respect of the incident of firing of fishing boat near Kerala shores on February 15, 2012.
The three matters are Republic of Italy & Ors Vs. Union of India & Ors., Chief Master Sargeant Massim Lat. vs. Union Of India and Kilsariyan vs. Union Of India.
The Union has stated that it has "decided to accept and abide" by the order passed by the Tribunal which held that India is entitled to claim compensation from Italy and that India is precluded from exercising its jurisdiction over the marines.
The plea narrates the sequence of events which had led to a stay on all proceedings in India due to the order passed by International Tribunal on Law of The Sea (ITLOS), which had stated that both Italy and India shall suspend all court proceedings.
"...on 24 August 2015, International Tribunal on Law of the Sea (ITLOS), on the request of Italy, rendered an Order prescribing provisional measure stating that Italy and India shall both suspend all court proceedings. Vide order dated 26.8.2015, this Hon'ble Court, in view of the pendency of the issue before International Tribunal on Law of the Sea (ITLOS), was pleased to stay the proceedings pending before it and before other Court.states that the Supreme Court was pleased to stay the proceedings pending in the case before the Special Court"
Further to this, by a modified order on September 2, 2015 was passed by the Supreme Court which further deferred all proceedings pending in India.
"....this Order was later modified on 02-09-2015 by this Hon'ble Court to the effect that ITLOS shall be read as "Annex VII Arbitral Tribunal" thereby the proceedings pending in the Courts shall remain stayed/deferred till further orders."
The Tribunal unanimously held that India is entitled to claim compensation from Italy. It also held (by 3:2 majority) 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.
The Tribunal pronounced an Award in Enrica Lexie Case holding that Italy has acted in breach of the Article 87, paragraph 1, subparagraph (a), and Article 90 of the United Nations Convention for the Law of the Sea and that India is entitled to payment of compensation in connection with "loss of life, physical harm, material damage to property (including to the "St. Antony") and moral harm suffered by the captain and other crew members of the "St. Antony"", which by its nature cannot be made good through restitution.
The Tribunal also unanimously held that India has not breached Article 87 of the UNCLOS by asking Enrica Lexie to change its course and by detaining it at Kochi port after the incident of firing on Feb 15, 2012.
Further to this, both countries have been invited to consult with each other with a view to reaching agreement on the amount of compensation due to India. It clarified that the Arbitral Tribunal shall retain jurisdiction should either Party or both Parties wish to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India.
The Tribunal has also ordered that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marine.
In this backdrop, the Union has stated that the Republic of India shall accept and abide by the Award passed by the said tribunal and while placing the Award before the Top Court in the Writ Petitions pertaining to the said issue, stated that the pending proceedings be disposed off in conformity with the Award.
"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 Hon'ble Court....The Applicant states and submit that the Applicant is, therefore, placing this Award on record with a prayer that the proceedings with regard to the incident dated 15.2.2012 be disposed of in conformity with the Award passed by the aforesaid Tribunal on 21.5.2020."
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