The petition filed by the Italian government and its two marines has challenged the May 29 order of the Kerala High Court, which had held that the duo were liable to be tried under the jurisdiction of the Indian courts.
The petitioners have also sought a stay on all further criminal proceedings in the case pending before a Kollam court contending that Kerala Police had no authority to conduct the probe and courts in India have no jurisdiction as the incident occurred outside the Indian territorial waters.
The Italian government is being represented by Titus & Co, Advocates and senior advocate Harish Salve, who has settled the petition, will argue the matter in the apex court.
The case pertains to the killings of two Indian fishermen by Italian naval officers, Chief Sargeant Massimilano Lattore and Sargeant Salvatore Girone, off Kerala coast in February.
Fearing pirate attack, the two officers on board 'Enrica Lexie,' had allegedly fired at the vessel off Kerala coast, killing the two fishermen.
The marines, who were arrested by the Kerala police, are currently out on bail.
The Italian government has contended that Military Court in Rome has the jurisdiction to prosecute the accused officers as it is the Republic of Italy and its institutions (military and judicial) have the authority to deal with any inquiry and consequential legal proceedings against them.
Besides raising the issue of jurisdiction, the Italian government has also argued that marines, who were on the ship to protect it, also enjoy functional autonomy as they were military officers.
According to the petition, the military officials during the course of protecting an Italian vessel from a pirate attack allegedly fired upon a fishing boat at 20.5 nautical miles in international waters due to which two occupants of the boat lost their lives. The Indian territorial waters extend up to 12 nautical miles.
It further said the two military officials - who were awarded for meritorious service during United Nations and NATO assignments - were on active military duty under a specific law legislated by Italian parliament and had taken protective action only to avert a suspected pirate attack in international waters.
According to the petition, the Indian Penal Code and the Indian Territorial Waters Act were not applicable to the case, which is under the United Nations Convention on the Law of the Seas (UNCLOS) to which both India and Italy were signatories.
"In such cases, only Italy had the legal right to initiate legal proceedings against its military officials," the petition said.
The high court had termed the killings of fishermen by the marines as "brutal" and "cruel" and had held that "shooting cannot be said to be an act of sovereign function and the marines are not entitled to sovereign immunity."
It had said Kerala police has jurisdiction to investigate the case and courts have the jurisdiction to try the case and it was not an invasion.
New Delhi: The Italian government has moved the Supreme Court seeking quashing of the criminal proceedings against its two marines charged with the murder of two Indian fishermen off Kerala coast this February.
First Published: Monday, July 16, 2012, 16:24