Italian marines case: Envoy can be sent to jail, says Harish Salve

[janon]

@nuclearpak:

There, this person has again done name calling (post number 78) after your promise that it has been taken care off and he wont do it again.

Your word was as good as the Italian ambassador's, it seems.

 

[Jango]

The troll fatwas came because we have been repeatedly complaining against his troll posts. Do you really want us to argue his "points" of USA nuking us on this issue, or NATO destroying India if we arrest the ambassador and so on? Please don't try to legitimize or dignify his flame comments by pretending that he is presenting us with "point" and "facts" that need to be discussed and argued. The last post of his on this page was in fact the highest quality post he has made so far.

If you check out his posting history, you will find him name calling Indians (and no other worth in the post itself) in every single post, without exception. If you had deleted some of those posts and put an end to that behavior with the same diligence that you have deleted the "fatwas" and cautioned Indians against fatwas, then these fatwas would not have come in the first place.

Yes yes I know it is your forum and your rules. I am pointing this out because I prefer to see a proper discussion on the topic here without "arguing" with such brilliant "points" as his.

You based this entire post on a event taking place away from this thread...while I am telling you to control your troll fatwas on this thread.

If you show me his posts on this thread have been abusive and all else, the it's fair game.

BTW, it's his opinion that India should be nuked. Just as alot of your folk have an opinion that Pakistan should be nuked, we support terrorists, Islam is terrorism etc etc etc. So should I start deleting every other post which says that says our state supports terrorists?

It's his opinion which symbolizes something, he wants to say that India should be made to pay if it arrests the envoy.

 

[Capt.Popeye]

+ SC says can't trust Italian envoy, he has no diplomatic immunity - Hindustan Times

@Bang Galore; this indicates the SC stand on the "purported Diplomatic Immunity" of the Italian Ambassador. One principle of Law is very clear. The Italian Ambassador on behalf of the Italian Govt. filed a petition in the Supreme Court.
Ipso Facto, he then submitted to the Jurisdiction of the Court. When in fact; he and his Govt. could have not even have approached the SC and instead chosen either to have made Diplomatic Reprentations to Diplomatically resolve the issue or chosen to approach an International Forum such as the ICJ to seek a legal resolution. The Ambassador and his Govt. instead petitioned the SC. Which (in Law) means "I am here at your doorstep, I submit to you, hear my petition, and act upon it".

The second point, which I have mentioned in an earlier post; is that Diplomatic Immunity only attaches to a Diplomatic Officer in pursuance of his official duties in and relating to the Govt. of the Country that he is accredited to.
Take for example the case of Raymond Davis; it illustrates both points.
Now what the Italian Ambassador is a party to; is "breach of Sovereign Guarantee" the undertaking that he gave to the SC as "his country's representative before the court". He was not even there in his personal capacity. He has now breached that undertaking. No Immunity can attach to such acts which are illegitimate in nature.

Unless of course the Italian Govt and its Ambassador in India believe in the old adage:
"An Ambassador is a Man who lies abroad on behalf of his country!"

 

[janon]

You based this entire post on a event taking place away from this thread...while I am telling you to control your troll fatwas on this thread.

If you show me his posts on this thread have been abusive and all else, the it's fair game.

BTW, it's his opinion that India should be nuked. Just as alot of your folk have an opinion that Pakistan should be nuked, we support terrorists, Islam is terrorism etc etc etc. So should I start deleting every other post which says that says our state supports terrorists?

It's his opinion which symbolizes something, he wants to say that India should be made to pay if it arrests the envoy.

I am sure you will give us Indians the same leeway too, for posts like that. He said, just above your defence of him, that Indians are "incompetent twits" for letting them go and that India deserves "every misery" they give us. I suppose next time a drone strike kills Pakistanis, I can come to the relevant thread and say that the Pakistani armed forces are "incompetent twits" for not preventing it, and that Pakistanis deserve every misery that the USA doles out to them.

I am sure my "opinion" would be treated with the same honor and respect, and you would be asking other Pakistanis to respond to my "points" with reason and civility.

Edit: I see that that particular member has been banned, so the sarcastic comments I made above are not necessary anymore. Until his unbanning we can continue with the topic. I have a small request though, that when a poster's ONLY posting history in EVERY post he has made has been to taunt a particular country....

 

[Solomon2]

Not necessarily. It depends on how it is interpreted.

Article 32​

1.The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under
article 37 may be waived by the sending State.

2.Waiver must always be express.

3.The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from
jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

4.Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not
be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

 

[janon]

Article 32​

1.The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under
article 37 may be waived by the sending State.

2.Waiver must always be express.

3.The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from
jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

4.Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not
be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

You are only looking at one aspect of immunity, that part that gives him immunity from the Indian government. The Indian law courts are NOT bound by any international laws or Vienna conventions. Anybody who is under the jurisdiction of a court will be tried by the court under Indian law. Diplomats are generally NOT under the jurisdiction of the courts. But this fellow submitted to the jurisdiction of the court when he took an oath to the judge and filed an affidavit in the court. He was implicitly submitting to its jurisdiction. So this is between the supreme court an the ambassador, and the supreme court does not recognize any Vienna conventions or international treaties - only Indian law.

Yes, he has diplomatic immunity from having criminal proceedings being initiated against him by the government of India. But he does not have immunity from the jurisdiction of the supreme court any more, since the day he approached it voluntarily and gave a sworn statement to it.

 

[Capt.Popeye]

Article 32​

1.The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under
article 37 may be waived by the sending State.

2.Waiver must always be express.

3.The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from
jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

4.Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not
be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

There is more to the Vienna Convention than just Article 32.

And there is more to International Laws as applicable between States than just the Vienna Convention........

 

[janon]

There is more to the Vienna Convention than just Article 32.

And there is more to International Laws as applicable between States than just the Vienna Convention........

Not to mention the fact that Vienna convention and other such international conventions are between the governments of sovereign states, not between the courts of either country.

The Indian govt flouting international conventions would not be too bad either, because how many international obligations did Italy flout when they violated a solemn oath the sovereign state of Italy gave to the republic of India?

However, India is not doing anything like that (if so, we would be initiating criminal proceedings against their diplomats). The government of India is still behaving in accordance with internationally accepted norms.

The supreme court is fully within its rights now to hold the ambassador guilty of contempt, since he submitted to its jurisdiction voluntarily. The supreme court has nothing to do with the Vienna convention or article 32, which only applies to people OUTSIDE its jurisdiction, which this fellow is not.

 

[Fireurimagination]

I believe now it's all down to 'who will blink first?'

 

[Solomon2]

You are only looking at one aspect of immunity, that part that gives him immunity from the Indian government. The Indian law courts are NOT bound by any international laws or Vienna conventions. Anybody who is under the jurisdiction of a court will be tried by the court under Indian law. Diplomats are generally NOT under the jurisdiction of the courts. But this fellow submitted to the jurisdiction of the court when he took an oath to the judge and filed an affidavit in the court. He was implicitly submitting to its jurisdiction. So this is between the supreme court an the ambassador, and the supreme court does not recognize any Vienna conventions or international treaties - only Indian law.

Note that Article 32-2 rules out "implicit" submission to jurisdiction. The ambassador appeared in court as a function of his duties representing his country and its nationals. In doing so he did NOT waive immunity in any way. This is an everyday sort of thing diplomats do.

Article 31​

1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

2.A diplomatic agent is not obliged to give evidence as a witness.

3.No measures of execution may be taken in respect of a diplomatic agent except in the cases
coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the
measures concerned can be taken without infringing the inviolability of his person or of his residence.

4.The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt
him from the jurisdiction of the sending State.

 

[Bang Galore]

3.The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from
jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

That looks just fine to me. Isn't this the argument? Unless you are reading it with 4?? Contempt of court holds even in matters where no jurisdiction holds for the original case. That is settled law. We will see about the execution of sentence when we get to it.

 

[Solomon2]

The supreme court is fully within its rights now to hold the ambassador guilty of contempt, since he submitted to its jurisdiction voluntarily.

By testifying in court or submitting an affadavit the ambassador did NOT "submit" to the jurisdiction of the court.

how many international obligations did Italy flout when they violated a solemn oath the sovereign state of Italy gave to the republic of India?

None - but they did dishonor themselves. There are various ways to deal with that, mostly by not inviting Italy's diplomats to dinner. (What was it Muhammed said to do about certain bad people? "Don't sit with them", yes?)

That looks just fine to me. Isn't this the argument?

He didn't initiate a proceeding but responded to one, so he's not in the court's jurisdiction.

Contempt of court holds even in matters where no jurisdiction holds for the original case. That is settled law.

Really?

 

[Bang Galore]

By testifying in court or submitting an affadavit the ambassador did NOT "submit" to the jurisdiction of the court.

Not the opinion of most senior Indian lawyers & as we have seen, not the opinion of the SC judges who seem to think differently.

 

[Fireurimagination]

The fact remains that if India want to trap the Italian envoy in some legal tangle they can come up with some or other argument and I believe that is the strategy that India is playing. Building and keeping the pressure on the Italians and see if and when they crack

 

[Developereo]

Now what the Italian Ambassador is a party to; is "breach of Sovereign Guarantee" the undertaking that he gave to the SC as "his country's representative before the court". He was not even there in his personal capacity.

Actually, that would argue for retaining diplomatic immunity.

The other case you guys cite as precedent for waiving diplomatic immunity involved a crime of a personal nature, IIRC.

Here, the ambassador didn't say, "I, Daniele Mancini, private citizen of Italy, give my assurance".
He said, "I, representing the Government of Italy, give our Government's assurance".

So, at all times, he remained "the Government of Italy", not "Daniele Mancini, private citizen".

The Indian SC would never accept the assurance of a private citizen of Italy.