Asked August 24, 2013

legal aspects of Enrica Lexie case

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I would like to know the present status of the Enrica lexie case ,not the news that comes in newspapers but the legal aspects revolving around in the case

Answers 2

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Just to set out the relevant facts, the Italian vessel Enrica Lexie came across an Indian fishing vessel off the coast of Kerala, and the Italian marines on board - who had been assigned for protection of the vessel and its crew from pirate attacks, by an Italian legislation - fired at the boat, killing two Indian fishermen in the process. This incident occurred 20.5 nautical miles off the coast of Kerala, and the entire case can be considered to hinge on this factum. After this shooting, the person to whom the boat belonged lodged an FIR at the coastal police station of Kollam, Kerala, under sections 302 and 34 of the Indian Penal Code, and the marines were arrested and detained in judicial custody by the State of Kerala.

Enrica Lexie has come up before the Supreme Court in two instances - one the case of Enrica Lexie v. Doramma, and the other, Republic of Italy v. Union of India, which is the case dealing with the all-important issue of jurisdiction for the trial of the marines. Enrica Lexie v. Doramma essentially said that the vessel Enrica Lexie could be allowed to continue on its voyage from the country, because the Master of the ship Enrica Lexie provided assurance that the crew members of the ship would present themselves if required to do so by any investigating/judicial authority in India, and the Republic of Italy provided the same assurance with respect to the Marines on board. However, Italy contended, even then, that their provision of this assurance did not in any way amount to conceding India's jurisdiction over the trial - they maintained that it was only Italy that had jurisdiction. This is, in a nutshell, what was considered in the other, major case.

So in Republic of Italy v. Union of India, Italy contended that neither the State of Kerala, nor the Union of India, had criminal jurisdiction over the matter. With respect to Kerala, Italy's contention was that the incident occurred beyond India's territorial waters (territorial waters extend up to 12 nautical miles from a baseline) and therefore, this occurred in international waters and the dispute should be resolved between Italy and India as sovereign nations, and not the State of Kerala, which is only a constituent unit of the Union of India. They said that if any criminal proceedings could be undertaken in the case, they could be done only by the Union of India. The Supreme Court agreed with this contention, holding that Kerala had no jurisdiction over the matter. With respect to jurisdiction of the Union of India, Italy contended that it was precluded India did not have full sovereignty over the areas beyond its territorial waters, because Italy had flag ship jurisdiction (jurisdiction vests with the State under whose flag the vessel is sailing), etc. However, the Court said that jurisdiction vested with the Union of India as the UN Convention on the Law of the Sea (UN CLOS) wouldn't bar it - the Convention invoked flag ship jurisdiction for instances where there was a collision between vessels of different States, but there was no such collision in this instance. Flag ship jurisdiction would apply only if the Marines acted in apprehension of an attack, and as no evidence had been led as to that yet, the SC said that till the determination of that issue, the Union of India would have jurisdiction.

Enrica Lexie v. Doramma: AIR 2012 SC 2134.

Republic of Italy v. Union of India: 2013(4) SCALE 578.

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As things stand, the incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code. The matter was taken up by the Kerala High Court. Meanwhile, Italy also has filed petitions seeking quashing of the cases registered against the marines. The case was later brought before the Supreme Court of India as Special Leave Petition (Civil) No. 20370/2012. The Supreme Court of India ordered the creation of a special court to reconsider the case. This case involves many important developments in legal arena both domestic and international, in the context of jurisdictional issues in high seas and immunities of state officials.

Can India adjudicate the case?

India bases its jurisdictional claims on domestic legislation which confers the Indian courts with the jurisdiction to try a person (including a foreigner) in respect of an offence committed on board a ship registered in India.[1] Article 33 of the United Nation Convention of the Law Of the Sea (UNCLOS) and Section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, also supports Indian jurisdiction. On the other side, Italy relies on various provisions of the UNCLOS, 1982. Article 97 provides that no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag state or of the State of which such person is a national. Article 92: ships shall be subject to the exclusive jurisdiction of flag state while on the high seas.

This case poses a problem in international law as it does not come within the scope of any one international instrument. However, the general principle of criminal procedure that a trial shall ordinarily be conducted at the place where the offence has been committed, justifies the Indian position. The Kerala High Court also had held that the Italian marines could be tried under Section 3 of the IPC for offences committed under Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (“SUA Act”) in the contiguous zone and the exclusive economic zone. The Supreme Court of India in its decision reaffirmed the Indian jurisdiction; however declared that the trial should be conducted by a special court in Delhi, not in the ordinary criminal courts in the state of Kerala.

Immunity of state officials:

The Italian argument for the immunity from legal proceedings is twofold. First, Can the Italian marines claim that they are covered by Sovereign functional immunity, as they are naval guards employed and functioning under the instructions of the sovereign Republic of Italy? The Supreme Court, without any deliberation on this issue, rejected this plea in the absence of a status of force agreement between India and Italy. Another question which rises whether the ambassador could claim diplomatic protection under the Vienna Convention? Article 32 of the convention provides for waiver from the diplomatic immunity which should be expressly stated by the sending state. But at the same time alleged action of the Italian Ambassador who gave the undertaking to abide by a judgment by inviting the judgment and who gave assurance for production of the accused, would have amounted to breach of obligations arising under the Vienna convention. Article 41 of the Vienna convention imposes a duty on the member country to abide by the laws of the party nations. Since Italy has invoked the writ jurisdiction of the Supreme Court under the Constitution of India, it may be considered as a waiver, though not express. However, keeping in perspective the power of the Supreme Court under Article 129 of the Constitution to punish for contempt of itself, the apex court seems to have had the legal weapons in its armour.


Enrica Lexie v. Doramma: AIR 2012 SC 2134.

Republic of Italy v. Union of India: 2013(4) SCALE 578


[1] Sections 3 and 4 of the Indian Penal Code and Sec.188 of the Code of Criminal Procedure

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