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

[Bang Galore]

Why was the chargesheet quashed? They shot two Indians in Indian waters and there were plenty of proofs to support the facts!!

Quashing of charge sheet seems to be part of the whole act!!

No jurisdiction in Kerala. The incident didn't happen in Indian territorial waters but in the contiguous zone. There is simply no court in India that has the right to try them. The SC did ask for a federal special court to be set up but that hasn't been done until date. All there is is a FIR filed by the Kerala police who lacked jurisdiction to file that FIR in the first place. It is not as simple, these men were not rogue elements but members of their country's armed forces bound by their protocol & SOP. It would have been very difficult to treat them as ordinary criminals when all that was happening was detaining them without charge for almost a year.


Btw, even if a special court had been set up, the very first question it would have faced would be of jurisdiction. The Italians raised this point in the SC & were told to raise it in the special court which if accepted, would end the matter there.

Sounds right. Why would the courts allow Italians to go back knowing full well that Italian laws permit their nationals vote via post from a foreign country. Indian govt too failed to appraise the court with the above fact & block Italians exit.

Not quite correct. Italian law allows some Italians, under some circumstances to vote via postal ballot. The Italian marines were not posted in India & therefore simply didn't enjoy the same right (as certified by Italian legal experts to Harish Salve). This is part of the submission of the Italians in the SC. It is not as if this point was not brought out.

As for the comments on the judges, it is unwarranted. It would have been so easy for the SC to simply dismiss this case purely on jurisdiction grounds. The fact that they didn't do that disproves your contention.

 

[JanjaWeed]

Not quite correct. Italian law allows some Italians, under some circumstances to vote via postal ballot. The Italian marines were not posted in India & therefore simply didn't enjoy the same right (as certified by Italian legal experts to Harish Salve). This is part of the submission of the Italians in the SC. It is not as if this point was not brought out.

Arun Jaitly raised this issue on the floor of Rajya Sabha about Italians having the option of voting via post. Someone like him would not raise this infront of the Nation unless he is fully aware of what he is talking about. Ofcourse Harish Salve will have an explanation for that. Afterall he was the defence lawyer & he is bound have an explanation, regardless how credible it is... & he made it clear that its Italian legal expert's view, which obviously means he is trying absolve himself of any comebacks.& I don't think Italian law permits it's ambassador to submit false undertaking to the highest court of a sovereign country.

Italian marines are active service men, & in most of the countries these postal voting systems are primarily made for these kind of people. C'mon... If Italian govt can go to such an extent where they literally mortgaged their Ambassador to Indian court,... they could have also arranged for a postal vote of these marines via their embassy. Shouldn't be hard task at all considering they are holed up in a foreign country, not due to their own wish.

As for the comments on the judges, it is unwarranted. It would have been so easy for the SC to simply dismiss this case purely on jurisdiction grounds. The fact that they didn't do that disproves your contention.

Supreme court can't just dismiss the case on jurisdiction grounds unless that matter concerning the legality of the water is settled. They can only go ahead & dismiss the case if its proved that the fishermen are shot at international water. Now.. that's not settled yet.. or has it?
About judges being poodles to their political masters, I should have been bit selective with my choice of words. I'm not trying to paint all the judges & bureaucrats with same brush... but you can not deny the fact that there are definitely some black sheeps among them. Otherwise you won't have these retired CBI directors becoming Governors or 18 out of 21 retired judges having a ready job waiting for them soon after their retirement. Coincidence...? I don't think so..

 

[fast]

If someone has a immunity from prosecution, then how the courts can accept his undertaking knowing full well that he can not be prosecuted even if he defaults on his promise? A real pickle. Either he loses his immunity the moment he submits to Indian courts or the hearing Judge is ignorant to existing laws that deals with international diplomats.

Knowing full well of his diplomatic immunity and his exempt of the Indian jurisdiction, the Indian supreme court still accepted his affidavit. And now when things didn't go their way, they issued arrest order for the diplomat, effectively taking hostile of him. The Indian supreme court judges are beyond incompetent in the understanding of laws, typical of a banana republic court. I'm pretty sure they got to their position via corrupted routes rather than doing real legal work. It's funny to watch the judges got pwned in a real world test case and failed miserably.

 

[Skyman]

Just watch what happens if you put the Italian ambassador in jail.

 

[Solomon2]

Just watch what happens if you put the Italian ambassador in jail.

May you live in interesting times!

 

[Bang Galore]

Arun Jaitly raised this issue on the floor of Rajya Sabha about Italians having the option of voting via post. Someone like him would not raise this infront of the Nation unless he is fully aware of what he is talking about. Ofcourse Harish Salve will have an explanation for that. Afterall he was the defence lawyer & he is bound have an explanation, regardless how credible it is... & he made it clear that its Italian legal expert's view, which obviously means he is trying absolve himself of any comebacks.& I don't think Italian law permits it's ambassador to submit false undertaking to the highest court of a sovereign country.
Italian marines are active service men, & in most of the countries these postal voting systems are primarily made for these kind of people. C'mon... If Italian govt can go to such an extent where they literally mortgaged their Ambassador to Indian court,... they could have also arranged for a postal vote of these marines via their embassy. Shouldn't be hard task at all considering they are holed up in a foreign country, not due to their own wish.

I believe Harish Salve was asked about Arun Jaitley's statement & he quite clearly said that Jaitley was mistaken. The rest of your point of whether it was absolutely necessary for the men to go back to vote is a valid argument. You do have to remember that the SC was inclined to show leniency because of the circumstances of the case & the fact that the men could still not be tried/present evidence/question jurisdiction until the GoI set up the court to hear the case. The men were effectively in a limbo.

Supreme court can't just dismiss the case on jurisdiction grounds unless that matter concerning the legality of the water is settled. They can only go ahead & dismiss the case if its proved that the fishermen are shot at international water. Now.. that's not settled yet.. or has it?

They could have quashed the case simply on the reason that Kerala police which arrested them had no jurisdiction. That would have ended the matter. The incident happened in the contiguous zone (that is settled) & the fishermen were way outside of where they should be (The boat was registered in TN & permitted range was limited to 12 miles of the TN coast). In the contiguous zone, the issue is far more nuanced. The Italians have a valid argument & for India to enforce jurisdiction, only the central government could have filed the case. we don't even have a federal police force nor a federal court that is set up to deal with it.

This case is not as cut & dry as many think.

 

[faithfulguy]

That would depend on interpretation. Even other western embassies are not sure about the Italian ambassador's position after he gave an undertaking in the Supreme Court.



How this is interpreted is moot.

The Indian government certainly has position to interpret this to its favor. But the Italian government might request that India disgracefully expel this ambassador. In the future, he can then return to India as a commoner to stand trial for his action. This would be a likely compromise that Indian government accepts. I can imaging Sonia Gandhi propose this "win-win" solution.

 

[Guynextdoor2]

Just watch what happens if you put the Italian ambassador in jail.

We won't put him in jail. Sets a bad precedence. Italy is not the only country with embassies here and we don't want other embassies feeling unsafe because of this toilet bug country.

 

[fallstuff]

Possession is half the case. Indians don't have possession, in other words they have nothing going !!!!

 

[HongWu]

If they break the Vienna Convention not only NATO but the whole UN P5 will launch strikes on India.

 

[Bang Galore]

If they break the Vienna Convention not only NATO but the whole UN P5 will launch strikes on India.

...you forgot the Klingons....the Vulcans...the Romulans.......

 

[shuttler]

The ex-counsel is breaching his professional code of ethics isnt he?
Is there any documentary evidence showing the Italian envoy has made the promise in SC? like an affidavit?
One crucial point of contention is contiguous waters vs international waters ( as I raised it in other thread of the same issue).

 

[Imran Khan]

diplomatic immunity finished ?

 

[shuttler]

diplomatic immunity finished ?

I think the envoy is protected by diplomatic immunity under the Vienna convention (presumably india is a signing party) even though he is guilty of perjury or contempt of court in india

the only thing the indians can do is to expel him on grounds of "persona non grata ". that will bring the rift of the 2 countries to a new height

 

[IndoUS]

I think the envoy is protected by diplomatic immunity under the Geneva convention (presumably india is a signing party) even though he is guilty of perjury or contempt of court in india

the only thing the indians can do is to expel him on grounds of "persona non grata ". that will bring the rift of the 2 countries to a new height

Well the trust between the two nations is already lost. At this point both sides are trying to save face. The Indian government can't back down because otherwise the opposition will butcher them for this in the coming election, and it is also a matter of big humiliation for the government.