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[Breaking] Enrica Lexie Case: Permanent Court Of Arbitration Holds Italy Liable To Compensate India; Asks India To Drop Prosecution Against Marines

Ashok Kini
2 July 2020 2:05 PM GMT
[Breaking] Enrica Lexie Case: Permanent Court Of Arbitration Holds Italy Liable To Compensate India; Asks India To Drop Prosecution Against Marines
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The Permanent Court of Arbitration, in Enrica Lexie case, has 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.

The Court has invited both the countries 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 also ordered that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marine.

Enrica Lexie Incident

On February 15, 2012, at about 4.30 PM, at a distance of about 20.5 nautical miles from the coastline, a fishing boat 'St Antony' happened to pass "Erica Lexie", a tanker flying the Italian Flag. Two marines aboard the ship - Massimilano Latorre and Salvatore Girone - mistook 'St Antony' for a pirate boat, and opened fire at it. This resulted in the death of two fishermen - Valentine Jalastine and Ajesh Binki. First Information Report (FIR) was lodged by the local police against the marines under S.302 read with S.34 of the Indian Penal Code (IPC) in respect of the firing incident leading to the death of the two Indian fishermen.

Following this, the Republic of Italy filed a writ petition in the Supreme Court under Article 32 of the Constitution, challenging the criminal proceedings against marines in Kerala. The Court held that the expression "incident of navigation" in Art.97 of UNCLOS cannot be extended to a criminal act, involving the killing of two Indian fishermen on board an Indian fishing vessel. The Court also held that Article 97 will apply only to 'High Seas', which do not form part of Exclusive Economic Zone, Territorial Waters or Internal Waters of any country.

It was further held that India has jurisdiction over Contiguous Zones under the Maritime Zones Act. Justice Kabir said in the judgment that "The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country".

The Court also held that State of Kerala has no jurisdiction to investigate into the incident. This was on the reasoning that only Union Government had jurisdiction over Contigous Zone under the Maritime Zones Act. Following the judgment, the investigation of the case was taken over by National Investigation Agency from Kerala police.

In July 2015, Italy took the case to International Tribunal for the Law of the Sea, an independent judicial body under the UNCLOS. The ITLOS later referred the matter to the Permanent Court of Arbitration, an intergovernmental organisation based in The Hague in Netherlands. From 8 July to 20 July 2019, the hearing was held at the seat of the PCA at the Peace Palace, The Hague, the Netherlands. The hearing addressed the jurisdiction of the Arbitral Tribunal as well as the merits of Italy's claims and India's counter-claims.

Read detailed report on Enrica Lexie case here.

Summary of Findings of PCA

The Arbitral Tribunal consisted of five Judges: Vladimir Golitsyn (President), Jin-Hyun Paik, Patrick Robinson, Francesco Francioni and Dr. Pemmaraju Sreenivasa Rao.

Tribunal has jurisdiction

The Tribunal by (4:1) held that there is a dispute between the Parties as to which State is entitled to exercise jurisdiction over the incident of 15 February 2012 involving the "Enrica Lexie" and the "St. Antony", and that the dispute concerns the interpretation or application of the Convention. Thus it was held that that the Arbitral Tribunal has jurisdiction over the dispute.

India Should Take Necessary Steps To Stop Criminal Proceedings Against Marines

The Tribunal by three votes to two, in respect of Italy's Submission (2)(f), held 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. Therefore it held that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required.

Other findings

The Tribunal found that Italy has not violated India's sovereign rights under Article 56  58, paragraph 3, or under Article 88 of the Convention. It also found that that India has not acted in breach of Article 87, paragraph 1, subparagraph (a), Article 92, paragraph or  Article 100 of the Convention and that therefore Article 300 cannot be invoked in the present case

Click here to Read/Download Extract of the Award



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