The Italian Consul General, Mr Giampaolo Cutillio, has approached the Kerala High Court seeking to quash the criminal case registered against the two Italian naval personnel, who were arrested in connection with the gunning down of the two fishermen off the coast of Kerala.
In the writ petition filed on Wednesday, the Consul General and the arrested naval personnel, Mr Massimilano Latore and Mr Salvatore Girone, submitted that the State or the Central Government or the police had no jurisdiction to register a complaint and investigate the alleged killing of the two fishermen according to the provisions of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.
They contended that the alleged offence was not committed in the Indian territorial waters or on board an Indian vessel. Besides, the petitioners were foreign citizens.
Therefore, the registration of the FIR, launching of investigation into the alleged incident and the arrest were ‘wholly without jurisdiction, null and void” and liable to be quashed.
international law
They also pointed out that the principles of international law and conventions, including the United Nations Convention on the Law of the Sea (UNCLOS) to which India was already a signatory, the Indian court had no jurisdiction to register a crime in connection with the alleged incident and only courts in Italy had the sole jurisdiction to investigate.
In fact, an investigation had already been launched in Rome, by the Ordinary and Military Prosecution Officer. The naval personnel could only be tried and prosecuted in Italian courts, the petitioner contended.
Italian jurisdiction
According to the petition, the naval officers had functional immunity as they were on duty for the protection of Italian vessel against piracy. They were discharging official functions as expression of sovereign power of Italy for the protection of the vessel. Therefore, they had to be considered as state officials. They were subject to the jurisdiction of the flag state of the vessel or the jurisdiction of the State of which the relevant person was subject of Italian jurisdiction.
Meanwhile, on the petition filed by one of the families of the killed fishermen seeking a compensation of Rs 1 crore from the ship owner, captain and the two security guards of the vessel, the High Court directed the shipping agency to furnish a bank guarantee of Rs 25 lakh against the claims before the Registrar General of the High Court.
The Court also ordered that the ship be detained till the company furnished the bank guarantee in the claim petition.