Kin-Italy pact, ASG stand ‘may weaken’ India’s case

published on April 25, 2012

The Kerala Government and the Centre have said that the compensation agreement between Italy and the relatives of the two Indian fishermen killed in gunfire from Italian ship Enrica Lexie will not affect the criminal case but legal experts apprehend that the Italy-kin pact and the earlier Central flip-flop in the Supreme Court may weaken India’s case.

Legal heirs of the two murdered fishermen, Valentine alias Jelestine (48) and Ajesh Binku (25), had the other day entered into an agreement with the Italian Government to withdraw from all the cases that they had been pursuing and to forgive the two accused Italian Marines “in the name Jesus Christ” for a compensation of Rs 1 crore each.

Legal experts now fear that this agreement and the submission by Additional Solicitor General Harin P Raval in the apex court last Friday that State had no authority to handle the case as the crime was committed in the international waters could weaken the entire case built by Indian authorities on the killing of the two fishermen on February 15.

On Wednesday, the Kerala Cabinet asked Advocate General KP Dandapani to make available the services of a senior lawyer to present the State’s case in the Supreme Court in the Enrica Lexie affair in the context of the “mysterious silence” adopted by the State’s standing counsel, MT George, when Raval made the negative submission.

However, lawyers say that the agreement between relatives of the murdered fishermen and the Italian Government may help the Italians get Enrica Lexie, the oil tanker from which the fishermen were shot to death, released from the Kochi port where it has been detained since February 17. The Supreme Court is to take up the petition in this regard on April 30.

Dolphin Tanker Srl, Naples-based owners of Enrica Lexie, had approached the apex court with the plea for the ship’s release because of a stay imposed by a division bench of the Kerala High Court, which was acting on an appeal filed by the relatives of the victims against an earlier order by a single-judge bench that the ship could be released after fulfilling certain conditions.

With the withdrawal of the victims’ relatives from all cases, one of the main hurdles in the way of the ship’s release has been removed. The Centre had earlier said that it had no objections to the release of the ship while the Kerala Police, holding that the probe was in preliminary stage, had said that the ship could not be released till they examined the weapons seized from it.

The withdrawal of the appeal against the single-judge bench’s order by the victims’ kin and the completion of the ballistic and forensic examinations of the Beretta rifles confiscated from the vessel have thus removed two prominent legal points posed against Enrica Lexie’s release, lawyers pointed out.

“In this situation, the only technical hurdle for the ship’s release is the report of the ship’s seizure filed by the Kerala Police in the Chief Judicial Magistrate Court in Kollam, where the murder case has been registered,” said a senior lawyer of the High Court. “Some may argue that the ship’s release need not be that crucial to the criminal case but I prefer to differ,” he said.

It would be difficult – “practically impossible” – for Indian authorities to bring the ship’s captain or anyone else on board it to the country if their presence in the court became necessary during the later stages of the criminal case once the ship was allowed to leave the Indian shores, said a lawyer. “There are precedents for such situations,” he said.

Senior lawyers also said that one should not be surprised if the Italy-victims’ kin agreement coupled with the (“now-unsubstantiated”) theory that the incident had taken place in international waters eventually led to the shifting of the case out of India. “We don’t presently have a formal and conclusive report that contradicts the ASG’s theory,” said a lawyer.

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