New Delhi, March 18: Coming down heavily on Italian Ambassador Daniel Mancini while hearing the case of Italian marines, the Chief Justice of India Altamas Kabir not only restrained him from leaving the country till further orders, he also added that a person who comes to the court and gives an undertaking has no immunity.
The Supreme Court also said that that it had lost all trust in the Italian ambassador while adjourning the matter till April 2. No further affidavits will be accepted from the Italian ambassador on whether he wants to leave the country, the court ruled.
The court also ruled that it was not concerned about what happens between two government, and its interest was only related to what happens before the court.
Having heard senior advocate Mukul Rohatgi appearing for Italian Ambassador Daniele Mancini and Republic of Italy, we direct to list the matter on April 2, 2013 for further orders. The interim order passed on March 14 directing Mancini not to leave India without the permission of this court is extended till further orders," the three-member bench headed by Chief Justice Altamas Kabir said.
The bench, also comprising justices AR Dave and Ranjana Prakash Desai, directed that "all authorities in the country shall take appropriate steps" relating to the order restraining Mancini from leaving India.
Before passing the order, the bench said the period of four weeks for which the marines were allowed to go to Italy to cast their vote was yet to be over and still they have time to return. "We respected the undertaking (given by the Ambassador) and we allowed them (marines) to go for four weeks which will end on March 22. There is still time for them to come. Strictly speaking they have not still violated our order. It is a case where one government is communicating to another government and we have nothing to do," the bench observed.
Sources said that the government has noted that the Supreme Court has lost the trust in the Italian ambassador and has virtually made Mancini a lame duck. Now Mancini’s continuance is in serious doubt but the government also feels that by posting the matter till April 2, the court has effectively ruled out any action by the government even after March 22 and so the order has given the government a breather.
However, technically Mancini is not under detention and he is free to go any where in India, but if he wants to leave the country he will have to take the Supreme Court’s permission.
Mancini, who enjoys diplomatic immunity under the Vienna Convention, is likely to claim before the Supreme Court that he cannot be held accountable for the two marines not coming back. Under the Vienna Convention on Diplomatic Relations, 1961, Mancini cannot be pulled up by an Indian court, neither can he be detained or not allowed to leave the country.
Article 29 of Vienna Convention states: "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."
Under the Vienna Convention on Diplomatic Relations, Daniel Mancini cannot arrested.
India’s options limited, Italian ambassador may claim full immunity
Under 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.
Under 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.
So it is very clear that India has limitied options when it comes to dealing with the crisis that has led to a political storm.
The options before India include: The Ministry of External Affairs can review ties with Italy.
The Supreme Court can order the envoy to not leave India. Airports, seaports and other exit points have already been alerted to prevent the Italian envoy from leaving the country. The government though may not be able to arrest the envoy.
India has already delayed sending the envoy-designate to Rome.
The Italian envoy’s expulsion is also not ruled out while trade and defence ties may be affected. The other options may include moving Interpol and conducting trial in absentia.
During Monday’s hearing Italy’s defence is likely to centre on the delay in setting up a special court to try the marines. The Supreme Court has left the window open for special court to decide on jurisdiction. Italy can also point out that its marines face no charges in India as Italy has been consistent in contesting the jurisdiction.
Italy will not return the marines to stand trial in India. The marines and the ambassador will be represented by their counsel and the Italian government will take the plea of diplomatic immunity for Mancini.
Meanwhile, the UPA Government is under fire for not getting its strategy right and its failure to bring back marines will give the opposition an opportunity to corner the ruling coalition. The opposition parties will accuse the UPA of being soft on Italy.
In the wake of Italy’s non-cooperation, the opposition will also raise questions on a full-fledged probe into the AgustaWestland helicopter deal and questions are also being raised on the decision to allow Italian marines to return home.