This document will analyse "ANNEX 5" attached to Indian documents filed at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg on 6 August, 2015
The document is a list of the material recovered and in part seized on Enrica Lexie during the inspection of 25/2/2012, in the presence of Italian delegates.
It treats of arms (rifles, machine guns, pistols), ammunitions, bulletproof vest.
The material was recovered in two ship’s cabins (n. 405 and n. 329).
In cabin n. 329 are kept 15 ammunition boxes in a cupboard:
- In a box 820 pistol cartridges of 9mm;
- in the box n. 22 250 rounds of 7.62mm
(e.n.: 1070 total rounds)
- In a 13 boxes list (from n. 9 to n. 21) are kept in sum 7.520 rounds of 5.56mm;
- From box n. 16 are taken 26 ordinary bullets (e.n.: 5.56mm) and from box n. 19 are taken 24 tracer bullets (e.n.: 5.56mm).
In this cabin, since 16 February 2012, were guarded arms, a part of munitions, bulletproof vests and various materials. On the date 16/2 the cabin 405 was sealed from ship’s captain, then on 22/2 by customs officials.
It was opened again on 25/2 at the presence of Indian officials and Italian representatives. All the material was photographed and filmed, then were written the lists both of the seized materials and of the non seized.
Page 4, III paragraph:
“the articles which are non seized in the cabin were listed in separate inventory”
In this cabin 2 boxes of ammunition having 200 rounds each of 5.56mm. Another box contain 250 rounds of 7.62mm.
List of articles seized during search conducted in Enrica Lexie
(pages 6 and 7)
List of articles inside cabin n. 405 (e.n.: not seized)
"The search of the two cabins was completed. Another search list is preparated. The entire area of the ship will be verified with help of customs official and it will noted on the mahassar. The search ends at 12 night"
As it is possible to verify from the whole document at each discovered weapon (seized or not seized) on the included spare barrels is indicated the registration number.
At page 9 we can easily suppose that six weapons in list are semiautomatic pistols Beretta 92FS that have a loader able to 15 cartridges. So each pistol has been discovered with inserted a loader complete of cartridges and a reserve loader complete of cartridges.
Pistols of 9mm in equipment of single military and the relative cartridges (both those founded in cabin 329, both those in the loader) have not been judged of interest for the investigation and so not seized.
Because cartridges 7.62mm were found in both cabins and in the same list are indicated “Machine Gun 7.62 1 NO”, “Spare barrel for MG 1 NO” and “MG ammunition box 1 having 250 rounds” it will be interesting to study moore deeply the issue that lends to an intellectual disagreement.
Reliability of "Search list for weapons, 26 February 2012" document
The document in question while having in the title the date of 26 February, in reality it refers to an inspection carried out on 25 February, started at 1:15 PM and completed at 12:00 PM (local time, between 13:15 and 24:00).
In the “Ballistic Report” (Annex 7) is indicated the time of the seizure of various materials, starting from 04:00 PM to 10:00 PM (local time, between 16:00 and 22:00) of the same day 25/2/2012;
We also must note that:
- All the seized materials has been seized on 25/2/2012. The lists of the seized materials report at the page end names and signatures of witnesses, Indians and Italians [ 6 ] [ 7 ] [ 8 ];
- For the apposition of the signatures we realized a graphic scheme with the names’ list written at left and the signatures in the right ([ 6 ] [ 7 ] [ 8 ] in lightblue );
- The declaration written by the Italian Consul Cutillo ([ 11 ] and [ 12 ]) related to observation and reserves in date 25/2/2012;
As it can seen by the following image the scheme is “judiciary”: page 8 (in the document the page number is indicated by hand in the upper right) contains only the last three item of weapons and ammunitions seizure list [ ], but in the same page must be affixed all the participants’ signatures [ ].
As well as all must be affixed, obviously, in every page of the seizure report, from first to last one.
It’s usual practice, doesn’t exist a judiciary document that records an act in contradictory that isn’t signed on all the pages by entitleds people does not exist.
It is to avoid following hypothetical manipulations. For this purpose in judiciary documents there can’t be even corrections, erasures or abrasions.
But this doesn’t happen for the other document’ pages (see page 5) that besides to not carrying any signature, it apparently lets the document start from page 5.
This absence of signatures by the people entitled, moreover presents signatures on the page where is listed the seized material, make the “Search list for weapons, 26 February 2012” document juridically void, unusable in trial proceedings.
It’s evident, on the first page are absent signatures not only of the Italian witnesses, but also those of Indian witnesses are missing.
There isn’t the presents identification (...who is you? Napoleon, and you? Julius Caesar…the madame instead is Lucrezia Borgia’s sister...). Missing even pages’ number when in judiciary documents is written “page x of xx”.
In conclusion, the undersigned doesn’t want to practice the art of legal technicality, but it’s obvious that this document should be rejected in any Court, and whatever lawyer can confirm it.
We do not want to sustain that all is “false”, we want to sustain that it “could” be formed in order to represent a reality different from the truth. And because in this event the “could” takes too often the place of “is” and then the “could” inexplicably passes for “true” is correct study in deep as possible.
The machine gun Beretta MG42-59 cal. 7.62mm
At page 5 (or 1, it’s misunderstandable which number has to prevail between the one printed in upper centre or the one written at end in upper right) of the document it is read that:
In cabin 405 with all the other weapons and cartridges (all 5.56mm) was found a box with 250 rounds of 7.62mm.
Following at page 6 (or 2):
In cabin 329 with the other cartridges (all 5.56mm) was found a second box (n. 22) with 250 rounds of 7.62mm. But in the following list of 13 boxes the box n. 22 is missing.
At least at page 9 (written in hand in upper right) we found:
List of articles inside cabin n. 405 (e.n.: not seized)
At item from 1 to 6 we have regulation pistols (Beretta 92FS have 15 rounds loader), then other material and, of particular interest:
- Machine Gun 7.62 – 1 NO
- Spare barrel for MG – 1 NO
- MG ammunition box – 1 having 250 rounds
There is all for the perfect machine gunners!
1 - There aren't registration numbers
If indeed it were weapons and spare barrels the registration number would be indicated as for all the other weapons found, loader or spare barrels, as they were seized (rifles, loader, etc…) as not seized (guns).
2 - There isn't seizure
It’s clear that all the things of interest for investigation were seized. Pistols and cartridges weren’t seized because they weren’t interesting for investigation.
It’s obvious that finding a Machine Gun, its spare barrel and its ammunitions all 7.62mm this material would be interesting for investigation and so seized.
3 - This has not been sent to Forensic Science Laboratory
All the seized material (weapons, loaders, spare barrels, ammunitions, bulletproof vest) was sent to Forensic Science Laboratory for ballistic analysis and regularly listed (see Annex 7).
There is no trace either of Machine Gun, or of spare barrel or of cartridge of 7.62mm.
Essentially, even the Beretta rifles and Herstal machine gun all of 5.56mm the Indian investigators found another possible murder weapon of 7.62mm and they ignored it.
The "strange signature"
Then we observe page 9 of the document (e.n.: the one in which appears the “Machine Gun 7.62mm”).
As it appears, drafted without date, numbered in sequence with the others or preceed and subceed by pages dated 25/2 (page 10 is the seal put by Indian functionaries at Cabin 405 on 22/2 and removed on 25/2) seems to also be part of the lists drafted during inspection happened in the presence of Italian witness. Inspection that as read at page 6 (or 2) ends at 24:00.
Immediately after, in the heart of the night and enlightened by lights, had take place the transfer to land of boxes with seized material. Boxes sealed and countersigned by presents
If it was not that three diligent Indian officials signed it and added with their own hand the date [ A ] highlightened so that the formation of list at page 9 did not happened in the occasion of the inspection but the following day 26/2.
Drafting by Indian examining in wonderful solitude.
It jumps besides to the eyes the lack of the appropriate box for the signatures used the day before and opportunely present in the previous pages. [ B ] Infact the signatures are appended below the list with a random order. Lacking all Italian signatures except one, that probably appended at last. [ C ]
Then, maybe to permit the identification, “someone” (surely not appended the signature) add “somewhat” at hand, like “stamp” but made a terrible mistake.
The “signature” [ C ] in fact would be that of Frigate Captain Francesco Marino (M.A.V.M.) – (Training responsible of the amphibious component of Italian Navy, future Ordered Deputy of San Marco Regiment and today (2018) with the rank of Captain of vessel, the most decorated military in service in the Italian armed forces) that we have already seen as last Italian signatory in the box used to certify some pages on 25/2; [ D ]
But the “someone” who added “somewhat” makes a mistake and instead of the right name puts that of “Jean Paul PIERINI” which was already indicated as “Commander” at page 5 (or 1, the one without signatures).
In reality Pierini, who doesn’t sign the seizure’s record, is the legal consultant of Italian Navy, as it is possible to easily verify from his curriculum which is on net (source: Linkedin).
Jean Paul Pierini:
Legal Adviser CINCNAV – Rome (e.n.: Command in Head of the Naval Squad)
Italian MOD – Navy (e.n.: Department of Defense – Navy)
November 2008 - September 2012 (3 years 11 months).
If that is his signature it’s enough to ask him for it.
Consideration about the research of the weapons
It’s well to remember some news that appeared on Indian press about the weapons used in the Enrica Lexie’s event, news critically retaken by Italian press seeing that Indian authorities somewhere along the line came back on Lexie to search other weapons:
25 February 2012
Weapons’ seizure – is the present document (ANNEX 5)
At the end of a search on board of Enrica Lexie the police unload four material’s boxes. Guns and assault rifles Beretta, machine guns Minimì, thousands of ammunitions, and other equipments. The whole arsenal of Italian military team ends up in hand of Kerala’s police. (It will be transferred to Delhi only after the pronunciation of the Supreme Court (18 January 2013) which rules the lack of jurisdiction of the State of Kerala on the case).
4 March 2012
The caliber of the bullets reported out during autopsy does not correspond (ANNEX4)
The press, reported Prof. K. Sasikala’s declaration, who had made the autopsy on two victims describes the bullets pull out of the bodies. Sizes incompatibles with bullets used by Italian soldiers, possibly a Russian bullet of 7.62x54R.
4 April 2012
Ballistic Expert Record No B1-1001/FSL/2012, 4 April 2012 (ANNEX 7)
All the seized weapons are of 5.56mm. The “Ballistic Report” concludes that the shots which have killed the two victims have been fired from two of the six seized rifles, both Beretta SC 70/90 of 5.56mm.
4 April 2012
The examiners return on board of Enrica Lexie to search the missing weapons
The same day 4 April the Indian examiners return on Lexie to search a weapon that it would not be found, retracting the conclusions of the ballistic report which identify two of the weapons already seized on 25 February.
In the Times of India opinion, the investigators “suspects that one of the weapon at disposal to the soldiers must be still seized” – “the weapon used by one of the Italian Marines is not between those seized on board of the ship”. It also appears that some days earlier, 30 March 2012, the police returned on board of the ship, to interrogate the other four Italian Marines who remained on board. In particular to the other four Italian Marines were asked details about the registration number and description of the weapons available.
10 April 2012
Compatibility of the riflings
The responsible of ballistic investigation declares the “compatibility of the riflings” between the bullets reported out in the bodies and those fired from seized rifles. It denies the denial.
11 April 2012
Italian Marines to arrests, Indian experts get the wrong rifle. “Were not Arx-160 on board of Enrica Lexie”
Indian authorities declares that the rifles shoot at fishermen are Beretta ARX 160. It deals of a sperimental rifle not yet in service, it denies again the Ballistic Report which had identified the seized rifle Beretta SC 70/90.
14 April 2012
The Ballistic Report on Italian media
On Italian TV was seen the Ballistic Report showing practically in unified networks that the document represents the “proof” of guilty of the two accused. The document as possibly seen appears heavily manipulated.
11 May 2012
Found the weapons that had fired, but they are the wrong ones
Admiral Alessandro Piroli at the end of a summary investigation redacts a report in which are reported the conclusions reached by Indian Autorities. Is highly probably that to kill were Italian rifle, but not those of Latorre and Girone but those of other two riflemen.
...so there was just a lot of confusion.
This document “Search list for weapons, 26 February 2012” obviously has no legal significance. If it was presented at Court it would be rejected because of the lack of signatures on all pages, identification of the defendants etc.
Furthermore the drafters should be called to explain the question of the appended signatures on the part of the document developed on 26/2.
As for “Machine Gun 7.62mm” some imaginative journalist can mount a piece of color in accusatory viewpoint (Maybe, at the bottom of Indian Ocean, there is the proof that n nails down their responsibilities…).
We say that the formation of this document lends itself, as usual, to free the imagination of inexperienced readers who could form a kind of fictional reality.
Remains the fact that on this document there are false signatures, less that believe that that is the signature of the Legal Consultant of Italian Navy.
In the merit of specific matter have demonstrated on its whole evidence the alteration of the document occurs at a time following the one of the signature is not a mere matter of form, but of method. It will be the duty of the Court to carefully evaluate to understand if and how much this method was used by Indian Autorities in drowning up also all the other documents.
...and the presence of the Machine Gun is not proven with false signatures.