SC directs Italian envoy to remain in India

The Supreme Court on Monday lashed out at Italian Ambassador Daniele Mancini and said it doesn't trust him anymore. The case will come up for hearing again at the apex court on April 2.

NEW DELHI: The Supreme Court on Monday said that Italian ambassador Daniele Mancini will not leave India till further orders, and directed authorities to ensure compliance with its order of March 14.

The court will hear the case next on April 2. India and Italy are locked in a huge diplomatic row over the issue.

The action follows Rome's refusal to send back the two Italian marines Massimiliano Latorre and Salvatore Girone to face trial for killing two Indian fishermen, Ajesh Binki and Valentine, off the Kerala coast on February 15, 2012, mistaking them for pirates.

The court while extending its earlier order restraining Mancini from leaving the country said the Italian envoy has lost its trust and does not have diplomatic immunity.

The apex court bench said: "Some people are writing that we are naive. We don't expect the republic of Italy to behave like this. What do they think about our courts and judicial system? We don't accept any assurance from you that you don't intend to leave (India). You have lost our trust."

The court said this as Attorney General G.E. Vahanvati took it through the sequence of events leading to the court permitting the two Italian marines to return to their country for four weeks so that they could exercise their franchise in Italy's national elections and be with their families.

As Vahanvati mentioned the assurance given by the Italian ambassador assuring the court of the return of the two marines, the court said that its orders permitting the two marines to go back to their country for four weeks are yet to be violated, as the deadline for them to return was fixed for March 23.

The court brushed aside senior counsel Mukul Rohatgi's contention that Mancini enjoyed diplomatic immunity and said that he had given an assurance, and that has to be honoured.

India will bring back Italian marines: Chandy

Kerala Chief Minister Oommen Chandy informed the state assembly on Monday that India would go to any length to see that the two Italian marines were brought back to stand trial for killing two Indian fishermen.

Chandy spoke in response to an adjournment motion that was moved by the Left opposition in the state assembly.

"Prime Minister Manmohan Singh last week informed both houses of parliament that the government would go to any extent to see that the two marines are brought back to face trial. Please see the tough stand that both the centre and our government has taken towards this, whenever this issue came up in the courts in the country," Chandy said.

Italy backtracks

Mancini had given a written assurance to the Supreme Court that the two marines would return to stand trial if they were allowed to travel home for four weeks for Easter and to vote in the national election. The Supreme Court on February 22 allowed Latorre and Girone to fly to Italy to vote in the February 24-25 national election. The two marines were to return by March 23.

On March 11, Italy had informed India that the marines would not be sent back.

After Italy announced that decision, senior Supreme Court lawyer and former Solicitor General Harish Salve, who was the counsel for the two marines, decided he would no longer represent the Italian government or the marines.

Salve had pleaded the case for granting them permission to go home in February to enable them to vote in the national elections. Sources close to Salve said he felt "betrayed and embarrassed" by his clients' decision to not honour their promise to the Apex Court.

The marines, who had also been allowed four weeks at home over Christmas, are charged with shooting dead two Indian fishermen in the Arabian Sea in February 2012. They were on anti-piracy patrol and have pleaded they suspected the approaching fishermen to be pirates.

The Supreme Court ruling keeping Mancini in India appears to run contrary to diplomatic norms which guarantee the freedom of movement of foreign envoys. Article 29 of the Vienna Convention on Diplomatic Relations, 1961, states that diplomats shall "not be liable to any form of arrest or detention". But, Article 32 (3) of the convention makes it amply clear that if a person with diplomatic immunity initiates a legal proceeding in a host country, he or she can't claim immunity from the fallout of that legal proceeding.

In this case, the envoy, who is also a petitioner in the court proceeding can't escape the fallout of a contempt of court consequence.

But it doesn't just end there. Waiving of diplomatic immunity is required for the execution of a judicial order, like a contempt of court.

However, Mancini's diplomatic immunity can be waived only by Italy, the sending state.

India warns of 'consequences'

New Delhi last Wednesday warned Rome of "consequences" in bilateral ties over its refusal to send back two marines facing trial for killing two Indian fishermen, an action which Prime Minister Manmohan Singh described as "unacceptable".

The Italian government said it was prepared to resolve the legal dispute according to international law as the marines were facing trial in a court in Rome.

The prime minister, taking a tough stand in parliament over the diplomatic fracas with a leading European power, said if Italy does not keep its word "there will be consequences". He said Italy's actions are "unacceptable" and "violate every rule of diplomatic discourse and call into question solemn commitments given by accredited representatives of a sovereign government to our Supreme Court".

This was after Arun Jaitely, the Leader of Opposition in the Rajya Sabha, the upper house, described the Italian response as "enemy action" and urged the government to "forget diplomacy" and respond strongly.

Italy invokes UN Convention

The Italian government has invoked the provisions of the United Nations Convention on the Laws of the Seas of 1982 to argue that the incident is a "matter of controversy" between Italy and India and sought a meeting at the diplomatic level to sort out differences.

In essence, Italy holds that the jurisdiction of Indian courts does not extend over its marines or the incident over high seas in which two Kerala fishermen were killed.

"The judgement by the Supreme Court of India on Jan 18 has denied Italian jurisdiction on the case and invited both countries to engage in a common effort based upon Article 100 of the UN Convention on the Law of the Sea," a statement from the Italian embassy said on Wednesday.

The Italian statement also said that Rome had done "everything we could to find an acceptable solution to such case, within the framework of our strong and friendly relations with India, and Italy will continue to do so".

"Legal proceedings against the two marines are still under way before the Court of Rome," it said. (With agency inputs)