The ITLOS Annexes Analysis: Introduction

During the process that took place at the International Tribunal for the Law Of the Sea in Hamburg (hereinafter ITLOS), concerning the request of the Italian side to the use of arbitration as required by international treaties in force, the two parties (Italy and India) have expressed their own reasons on the dispute by the mouth of their official representatives. All reports of interventions are listed in a special web page of the ITLOS to the following address, and can be downloaded in .PDF format:

   ITLOS web site

As the ITLOS had been called to pass judgment only on the competence of jurisdiction (so if it was up to India or to Italy the right to strike up a criminal case on the facts of 15.02.2012) there was no reason for either of the parties to act with statements of guilt or innocence against the two accused from India, M. Latorre and S. Girone.

But while the Italian side has been followed in this concept, from the Indian side the contrary has happened and representatives of India have repeatedly proclaimed the guilt of the two accused as if this has already been proven in a criminal trial that not even India has ever started.

Even before the ITLOS began hearings reports of the various representatives of the parties involved, India has filed a written document which describes the events and claims to take for sure the guilt of the two Italian soldiers for the death of two fishermen.

Passage taken from: ITLOS Case No.24 - Written Observation of Republic of India, 6 August 2015.
Passage taken from: ITLOS Case No.24 - Written Observation of Republic of India, 6 August 2015 - VOL. 1 page 2
   Written Observation of Republic of India

This document is accompanied by a long list of "Attachments" (Annexes) from no. 1 at number 56, and from experience I believe that in court the claims are worth very little if they are not supported by testable items of evidence, and that these items of evidence are usually just in the annexes explicitly called to support the proclamation of guilt or innocence.

I also believe that this "proclamation of guilt" continuously repeated in writing and voice could have influenced the judges in their final decision. Nobody expected that in the face of the judgment that admits the dispute to international arbitration, which enjoin Italy and India to suspend the judicial orders and see the ultimate solution of the dispute to the Hague Tribunal, it would later let the two accused deprived of their liberty in India, and thus still under the Indian Penal jurisdiction. It seems nonsense.

I also read that the ITLOS enjoined both parties Italy and India to submit within 24 September a summary document on the case which will become an "official act" both at the ITLOS and at the Hague Tribunal.

It’s obvious that while the Indian side will continue to proclaim the guilt of Latorre and Girone by written documents supported by 56 Annexes, and from the Italian side it is not contested that it is by then a fact designed by India and not rejected by the ITLOS, this will negatively affect the perception that judges will have of the story, appearing a tacit admission of guilt, and will affect at the expense of Italy both ITLOS judges and the next in the Hague, that will not have another point of reference different from the Indian version and will be led to believe that there are no arguments of dispute.

As for more than three years I have been following both each other on all open sources available and I have gained a thorough understanding of some by no means marginal technical and reconstructive aspects, and because I was never able to have access to documents of Indian investigation, I decided to request them from ITLOS according to the principle that every document that comes into a court of law has to be public, unless there are legal reasons to deny it.

I did not request "all" the 56 attachments, but only those that relate to the technical and reconstruction of the events, which falls within my several decades of competencies as "Court Expert".

The ITLOS after a few hours from the request made by e-mail replied positively by sending all the requirements except two documents deemed "confidential".

The email containing the attachments received from ITLOS.
The email with which the ITLOS in August 2015 sends me the requested attachments.

The attachments considered confidential concerned: Statement of Commandant, Coast Guard (Annex 31) and Statement of Assistant Director (Ballistic), Forensic Science Laboratory, Trivandrum (Annex 32) both of July 2013.

I thus came into possession, by permission of ITLOS and with no restrictions on the use, of the Indian official documents by which it is intended to support at the same ITLOS the claims of Italian guilt declared in writing and verbally.

The 'Indian' ITLOS Annexes

Annex Annex Title
01 Indian Coast Guard, diary of events, 2012
02 First Information Statement of Mr Freddy, 15 February 2012
03 Kerala police charge sheet, 15 February 2012
04 Post-mortem report of Mr Ajeesh and Mr Valentine, 16 February 2012
05 Search list for weapons, 26 February 2012
06 High Court of Kerala order releasing the MV Enrica Lexie and its crew, 29 March 2012
07 Ballistic Expert Report No B1-1001/FSL/2012, 4 April 2012
08 Scene examination report No. B1-873/FSL/2012, 19 April 2012
27 Statement of Mr Vitelli Umberto, Captain of the MV Enrica Lexie, 15 June 2013
29 Statement of Mr Sahil Gupta, Crew member of the MV Enrica Lexie, 26 June 2013
33 Statement of Mr Victor James Mandley Samson, Crew member of the MV Enrica Lexie, 24 July 2013
46 Affidavits of Mr Kinserian, Mr Freddy and Mr Michael Adimal, 30 July 2015 and 30 August 2015
47 Photographs
48 Position of the St.Antony and the MV Enrica Lexie at the moment of the shooting

In the same way, I subsequently requested and obtained some of the annexes presented to the Court by Italy.

The 'Italian' ITLOS Annexes

Annex Annex Title
A03 Ship Security Alarm System Message Sent Out By The Enrica Lexie On 15 February 2012
A04 International Maritime Bureau Report Of 15 February 2012
A05 Letter From The Indian "Dy Director General Of Shipping" To The Owners Of The Enrica Lexie, 16 February 2012
A07 Statement By Commandant Alok Negi, Coast Guard Air Enclave Kochi, 19 February 2012
A08 Email From MRCC Mumbai To Master Of The Enrica Lexie, 15 February 2012
A09 Boarding Officer's Report MV Enrica Lexie, 16-17 February 2012
A14 Log Book Of The Master Of The Enrica Lexie

To distinguish the origin of the documents and avoid misunderstandings about the numbering, the Italian attachments are preceded by the prefix 'A'.

This work therefore analyze the documents received "as if I were a" Technical Advisor of the Defense. And thus with the aim of verifying the uprightness of the submissions by the prosecution which, we must remember, it is up to "prove" the guilt and not only to "proclaim it".

The defense exercises a right and fulfills a duty highlighting gaps, omissions, contradictions and anything else of the accusatory plant, recalling that in the Court the prosecution must provide "certainties", not least of all hypotheses and conjectures.

IMPORTANT

From reading the ITLOS attachments emerges a circumstance until now unpublished, but for which we must necessarily take into account during the analysis:

  1. in Annex 29 - Statement of Mr Sahil Gupta, Crew member of the MV Enrica Lexie, 26 June 2013: "Ship time is 30 minutes behind IST" (Pag. 4 last line)
  2. in ANNEX 33 - Statement of Mr Victor James Mandley Samson, Crew member of the MV Enrica Lexie, 24 July 2013: "The ship time is 30 minutes behind Indian Standard Time" (Pag. 4 line 9)

On the Enrica Lexie watches do not mark the local time IST (India Standard Time +5:30) that it has adopted a time zone which, but that universally considered standard to the longitude (TIME ZONE E (echo) + 5:00). Therefore, in preparing the timing of certain events schedules must be reviewed, moving them back 30 minutes. This occasion will be marked with the icon follows ELT (Enrica Lexie Time - Ship Time).