Annex 8: Scene examination report
Scene examination report No. B1-873/FSL/2012, 19 April 2012
In this document, Indian investigators examine the scene of crime:
- oil tanker Enrica Lexie
- fishing vessel St. Antony
Reached conclusions are interesting:
ANNEX 8: Conclusioni finali
- Bullets were shot by 5.56 mm caliber guns;
- Trajectory direction is downward.
conclusions are precise but it is necessary to find
evidence of them in the document.
The document Annex 8.
It is a five pages document (only five!) where they examine:
- bodies of two firearms-killed people
- one 50,000 tons oil tanker
- one fishing vessel
Two pages (two!) are focused on the fishing vessel, aimed at detecting the impact of the three bullets that hit the completely wood-made boat.
The inspection was made on 17 February 2012, therefore two days after the event.
Holes measurements are the following:
Bullet n. 1
- dimension 80.1x 13.5 mm
- dimension 22.1x 9.7 mm
- dimension 51.2 x 16.7 mm
- dimension 7x 5.6 mm
Bullet n. 2
- dimension 5.5 x 2.2 mm
- dimension 4.2x 3.6 mm
- dimension 3 x 2.2 mm
Bullet n. 3
- dimension 5.1 x 5.5 mm
- dimension 5.3 x 5.7 mm
- dimension 7.7 x 26.9 mm
- 6.1 x 6.5 mm (regulator)
- 6.4 x 4.8 mm (regulator)
- 5.5 x 7.1 mm (regulator)
- 4.8 x 4.7 mm (regulator)
It may be stated that, according to detected data, conclusions reached in the document (cal. 5.56 mm bullets) are very peculiar.
ANNEX 8: Fucili AK Impiegati nei servizi di Marine Security
In order to be clearer, it may be mentioned the proved existence in that area of “AK series” submachine guns, made in the former Soviet Union and other Countries, which can be 7.62x39 mm caliber (AK47) and 5.45x39mm caliber (AK74) https://it.wikipedia.org/wiki/AK-74
ANNEX 8: Anti-Piracy exercise. All the Guards
user AK74 rifle
The 5.45 mm caliber is just 11 hundredths (11/100) of a millimeter smaller than 5.56 mm and, in this case, they are affirming that the Indian official could have distinguished a 11/100 mm difference with the naked eye, thus concluding he was in presence of 5.56mm caliber bullets – caused holes.
ANNEX 8: Comparazione calibri: 5.56 vs 5.45
Il tutto su fori fatti sul legno, senza considerare che in mare il legno si inumidisce, si gonfia etc... (è notorio che le parti in legno delle imbarcazioni se danneggiate o scheggiate vanno immediatamente protette con apposite vernici, altrimenti si infradicia tutto)
Anche in un video del 7 marzo 2012 relativo
a un sopralluogo sul St. Antony che non risulta in atti
giudiziari appare che queste analisi tecniche furono
eseguite senza particolari dotazioni tecniche.
In addition, the exam was made on holes on wood, without considering that, in contact with the sea water, wood becomes wet, swells, and so on (it is notorious that wooden parts of ships, if damaged or splintered, have to be immediately protected through specific varnishes, otherwise everything rots)
A video filmed by a private Indian TV, from Kerala, Venad News, confirms that this inspection was made in an approximate manner and without particular technical equipment. https://www.youtube.com/watch?v=ZhjtWHpMkWg
Video VENAD News of 7 march 2012
Bloody traces have not been searched to establish where victims fell.
No sample has been taken to establish the presence and the nature of gunpowder residuals (detectable at molecular level through the mass spectrometer). And so on.
document at the link (published on June 2013): http://www.seeninside.net/piracy/expose2.pdf
The analyzed trajectory is almost horizontal, not compatible at all with shots from the top of the Enrica right dashboard wing (24 meters on the sea level).
the undersigned considers “downwards” trajectory as the
5.56mm caliber: unsubstantiated.
Aspects of criminal procedure
This did not happen, and in April 2012 St.Antony has been returned to its owner who sank it, thus compromising any additional analysis.
Then the fishing vessel has been pull aground and left without any protection from bad weather, accessible to anyone (there are some videos of TV crews on board of the vessel to film). Therefore, the wreckage is now useless for judicial purposes.
ConclusionsThis "inspection" on the scene is unsubstantial in relation to the used methodology and misleading with regard to conclusions. It has been useful only in order to create another document where “Italian guilty” is proclaimed without any probative, not even circumstantial, evidence.
not to say that the police official (NISHA NG, who is
the same that signed the ballistics report) is an
unexperienced man who measures holes with the measure
tape and draws conclusions based on hundredths of a
millimeter. At the contrary, being a person with
adequate professional competence, he knew what he was
doing very well.
by Irene Piccolo)
Annex 7: Ballistic expert report
Ballistic Expert Report No B1-1001/FSL/2012, 4 April 2012
A due premise
bullets were then to be compared
the bullet exhibits
(click to see explanatory video) found on the victims or
in the crime scene (the
But in this last phase, which led then to the actual ballistic examination, the Italian DTC (Carabinieri Military Police) have been excluded.
So the legal value of this document amounts to "nil".
The procedure behind the creation of the "report"
Alas, the term “report” here is only a heading.
SWGGun Guidelines (stralcio)
But this Ballistic Report must be examined anyway since on 04.08.2015 it was filed at the ITLOS in Hamburg as an attachment to a written Indian document. Such document insists peremptorily, with the support of 56 attachments including this one, on the guilt of the two Italian military and on their responsibility for the death of two fishermen aboard the St Antony fishing boat.
As a matter of fact this document wades openly into the Indian prosecution against the two Italian military.
Analysis of Ballistic Expert ReportThis 36-page document includes:
descriptions of exhibits from the corpses such as
bullets, t-shirts, gauzes, skin and nail clippings;
• weapons, ammunition, body armours and spare barrels, seized on the Enrica Lexie;
• bullet shrapnel found on the St Antony fishing boat.
During the incident Riflemen Latorre and Girone were on guard duty, they admitted they fired and that was confirmed by the unequivocal witnesses present.
Bullets correspondence checks
ANNEX 7: Bullet #1
The measurements describe a bullet which is much larger than the ones available to the Italian military. They correspond, despite minor differences, to the bullet from cartridge 7.62x54R;
Moreover, the bullet is referred to here as "disfigured", whereas in V. Jelestine’s post-mortem nowhere is the retrieved bullet defined as "disfigured".
Since it is grossly evident and it cannot be
argued that a 7.62mm calibre bullet may pass through the
barrel of a calibre 5.56mm rifle, the only possible
hypothesis is that the bullet under examination was not
the exhibit retrieved during the post-mortem.
The evidence is macroscopic.
metallic bullet of length 2,4cm and maximum circunference
1,9cm with a point tapering was found in the spleen covered by
blood clot. - The bullet was found compressed at the base and
the base measured 0,7x0,4cm"
ANNEX 7: Bullet #2
We are therefore faced with a bullet compressed and deformed by the impact, against bones that are obviously very strong, as confirmed by the following passage:
"The coastal cartilage was found
fractured an fragmented and the following organs transfixed in
Also, the size of the tear due to the bullet entry is incompatible with the entry hole left by a 5.56mm calibre bullet.
"Lacerated penetrating wound of
entrance 2,7x1,6 cm"
The bullet from a 5.56x45mm cartridge, as supplied to the Italian military, is 23mm long and, should it be “compressed” by an impact, its length would be shorter than nominal, not greater.
The bullet retrieved during the autopsy is not the one identified as such in the Ballistic Report.
ANNEX 7: page 33 of 36
the autopsy bullets were contained in items no. 1.4
(Pinku) and item no. 2.3 (Jelestine) respectively;
two rounds of ordinary and tracer ammunitions of items 22.1
and 22.2 were dismantled in the laboratory and both were
3) their physical
parameters, the measurements, were found approximately
similar to the bullets of the autopsies
Of course, they were bullets anyway! Then, when comparing a Ferrari to a city car, this Forensic Science Laboratory could just say they both are cars anyway!
It is clear that "approximately similar" is no sufficient claim to arrest or condemn anyone, and a defence technical expert would find it very hard to avoid uttering disrespectful comments.
In its conclusions this Ballistic Report declares categorically that the bullets, found inside the bodies of the two victims, are “fired from the firearm” of the two Italian military.
Actually, since they are only "approximately similar" that practically means "they are not". One should recall how Courts rely on positive certainties and "approximate similarities" are neither probative nor circumstantial evidence for the case.
During the inspection, carried out on the St Antony boat by Ms NISHA (same signatory of the Ballistic Report) on 17.02.2012, the holes on the wooden parts were examined, some bullet fragments were recovered, it was concluded that those bullets were of 5.56mm calibre, and that lead to the arrest two days later of the two Italian military.
After examining the report "Scene examination
report No. B1-873 / FSL / 2012, 19 April 2012" (see Analysis ANNEX 8), provided by ITLOS on
27.08.2015, it became clear that the Scientific
Assistant , with her naked eye, could not measure
hundredths of a millimetre nor could she do that with a
tape measure. Hence her conclusions on the bullet
calibre were "far-fetched" to say the least. But these
conclusions made it possible to arrest the two Italian
us now examine and verify the results of the Ballistic Expert
Report (ANNEX 7) i.e. whether the
bullet fragments, found there and then, were factors
which could justify the conclusion that the bullets
which landed on the St Antony were of a 5.56mm calibre.
Item 31.1 – Bullet Fragment Retrieved From The Roof (Rear of The Boat)
ANNEX 7: page 35 of 36
We are referring to a bullet outer jacket,
a few tenths of a millimetre thick, or rather to "fragments of an
ANNEX 7: Frammenti di proiettile
And now let us see what fragments we are dealing with.
ANNEX 7: page 34 of 36
ANNEX 7: Proiettili blindati (FMJ) di calibri diversi
Back in April 2012 a piece of news from an
Indian source caused a sensation in Italy. It mentioned
a "rifle groove compatibility" between the bullets found
on the scene and those of the weapons seized and that
was interpreted by many as a "proof of guilt" against the two
Since the only reference to rifling grooves in the Ballistic Report is this fragment 31.1, it helps if we verify whether this "groove compatibility" was realistic or it may instead be a mistake or whatever.
Let us examine the fragment description again:
Since rifle Beretta SC 70/90 of calibre 5.56mm does have a barrel with 6 right-handed grooves and a 178mm twist rate, when superficially assessed the news appears well-founded: jacket item 31.1 has 6 groove impressions and the Italian rifle barrel has 6 grooves!
ANNEX 7: The land impressions formed on the bullet upon firing
The bullet fragment 31.1 with 6 grooves is 13.7mm in length and therefore smaller (see the size differences in the image below)
ANNEX 7: Bullet Jacket development to a plane with calibre 5.56 (Blue-Green) compared to exhibit 31.1 (Red-Violet)
But even after a cursory examination, of
the fragment as described and as mentioned in item 31.1, it is obvious that:
- its lands and grooves cannot be compatible with those of rifle Beretta SC 70/90;
- that fragment cannot belong to a calibre 5.56mm bullet.
ANNEX 7: Jacket Cross Sections compared for 5.56 Bullet (Blue) and Item 31.1 (Red)
Left: a cal.5.56mm bullet fired through a rifle barrel
- Right: the bullet that should have originated the jacket of item 31.1 (red)
The diameter measurements refer to the nominal rifle calibre for greater clarity (deviations of a few hundredths of a millimetre may occur).
- BLUE: it shows the outer diameter of the projectile, the angle of lands and grooves each at 30° (from 180°/12)
- RED: it shows a 13.7mm arc corresponding in size to the longest side of fragment 31.1 spanning over a 282.35° angle (360° - 77.65°)
It can be well understood that the 13.7mm arc, with its “six numbers of lands and grooves” as described in the Ballistic Report, shows an angle mean measurement of 23.53°, completely different from the 30° for the grooves of rifle Beretta SC 70/90.
ANNEX 7: 3D Jacket Comparison for a 5.56 Bullet (Blue) and Exhibit 31.1 (Red)Seeing things in 3D helps to understand what has been previously described.
ANNEX 7: page 34 of 36The metallic piece of item 31.2 is the "steel core" of an ordinary bullet
The "steel core" is placed inside a bullet
to enhance its capacity to penetrate "hard targets"
(steel helmets, body armour, etc).
Virtually every military bullet has various versions (ordinary, tracer, blanks, FM jacket, ... etc). The image below shows various versions of a 5.56x45mm round.
ANNEX 7: Different types of 5,56x45 rounds and some types of steel cores
In fact the same Ballistic Report indicates that “it is not possible to opine” on a match between the retrieved steel core and the one from a dismantled ordinary bullet, out of the seized ones.
ANNEX 7: page 35 of 36
Most firearm bullets are enclosed by jackets in metal alloys that contain copper. This finding about "copper" is irrelevant for the investigation.
ANNEX 7: Conclusions
Report, which caused quite a sensation in Italy
back in April 2012 when some excerpts were released by
the media, is a contradictory document since it contains
"conclusions" as well as their exact contrary.
The technical examination is non-existent: after the tinsel is discarded nothing remains but the peremptory statement that the two bullets, retrieved from the two victims, were fired by two rifles seized from the Italian soldiers, but that is refuted by the statement “approximately similar” (on page 33). But, of course, all bullets are similar!
As to the broken jacket of item 31.1,
retrieved from the fishing boat, the attempt to fit 6
grooves in a 13.7mm space, whereas those same 6
grooves require 17.5mm on a Beretta barrel, could even elicit
laughter. But, of course, still bullets they are!
Therefore the Ballistic Report is irrelevant from a judicial viewpoint owing to:
• its legal nullity as created in spite of defendants’ rights;
• clear contradictions between its conclusions and what is argued in the document itself.
Now, in the opinion of the undersigned, the NIA may well bring even half a million witnesses ready to swear they identified, from the Kerala coastline, Latorre and Girone aboard tanker E. Lexie when they fired at the St Antony fishing boat.
But that will never change the size of the bullet exhibits as recorded during the autopsy.
Italian and Indian media may well write
that a "new report" (i.e. the Ballistic Report) refutes the "old report" (i.e. the post-mortem
report!) thereby demonstrating an "Italian guilt”, but this does not
change that "approximately similar" which indirectly
confirms what is stated in the autopsy.
The fact remains that the Ballistic Report (ANNEX 7), as well as the inspection on the St Antony boat (ANNEX 8), meant to lend a scientific aura to a prejudice of guilt thereby permitting the charging and the arrest of the two Italian military, who should instead have been acquitted just after having read the relevant reports and checked the calibre of their weapons, or even on the same day of the autopsies.
Translator: Mario Ricci
Annex 3: Charge Sheet, Result of
This document will analyse
"ANNEX 3" attached to Indian documents filed
at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg on 6 August, 2015
Kerala police charge sheet, 15 February 2012
This document is the final
police report about the events of 15 February 2012 and
contains everything that occurred as concerns the
investigation until 18 May 2012, as transmitted to the
Pages 4 and 5 mention the names of the two defendants, M. Latorre and S. Girone, and proceed to describe the facts and refer explicitly (on page 7) to Indian laws applicable to the accused: "That by above illegal acts, the accused have committed offences under section 302, 307 and 427 R/W 34 IPC and section 3 of SUA Act 2002".
Every investigation (and hence
its subsequent criminal procedure) is based on fixed
elements that must help reconstruct facts. And such facts
are the "Truth".
Now apparently the Charge Sheet clarifies everything, but in fact nothing really matches:
1) Events –
Their description under ANNEX 1 show obvious (and verifiable) gaps. For example let us start with the
news reported to the Neendakara Police at 17:40 IST when
start with the SSAS alarm raised by Lexie at 16:53 IST. Read more about this under "Analysis ANNEX 1"
2) Witnesses - testimonies appear contradictory and inaccurate to the limit of reticence,
for example, the main prosecution witness contradicts himself on the time of the shooting, on the relevant geographic positions (he alters his version four times with incongruous positions that were never close to Lexie – check "Analysis ANNEX 2" on this) and more will be brought to light in this chapter.
3) The Exhibits – While all those that could be found on the Enrica Lexie are there, the missing ones are all those that could have been found from other potential perpetrators which no one wanted to investigate.
4) The Scientific Evidence – It is illogical, it bears no factual match and it is misleading with its conclusions. It claims a human eye can appreciate hundredths of a millimetre (see "Analysis ANNEX 8").
Moreover, Annex 7 declares in page 33 that the bullets seized, calibre 5.56x45mm, "are approximately similar" to those found in the corpses but the conclusions in page 35 subtly omit any approximation and the wording changes to “are similar”.
the "firing marks compatibility” this will be a joyful
topic for future generations of students in Forensic
Ballistics (see "Analysis ANNEX 7").
Since this Court Expert
is convinced that the Charge
Sheet submitted by the Prosecution will be rejected by
any court, be it Italian,
Indian, Dutch or German (provided
that the defence counsel submits this document), thus coming to a clear acquittal for the
two defendants, it will help if we offer investigative
suggestions, should a fresh investigation be carried out.
Last but not least one should consider that cal. 7.62mm
bullets just cannot pass through the barrel of a 5.56mm
Our wish is that in the meantime the Indian side may create a serious commission of enquiry on those responsible for this investigation and on how they performed, based on what you will read henceforth.
Of course we will always
face a "partisan side for
guilt" which will be in
denial against all logic, evidence and verifiability,
owing to various motivations (economic,
ideological, lobbies, etc.)
and will keep writing about "the
two Marines who killed two unarmed fishermen".
Others will keep an equivocal position, full of doubts, careful not to upset left or right. This is playing for the gallery.
Circumstantial evidence on possible culprits for the St Antony shooting.
To start with a "circumstantial trial" is possible. The Italian legal system allows it and a final verdict may be reached should facts be ascertained "beyond any reasonable doubt". In this kind of trial the judges’ “written motivations” bear particular relevance, but they will nevertheless be checked again, in the Italian system, by subsequent appeals.
The events on that afternoon of 15 February, according to the Charge Sheet
For the policeman on duty at the Neendakara Maritime Police Station it was not difficult to understand that something was wrong, suspicion being part and parcel of any police officer’s job.
Some Alphonse Philip shows up at 17:40 IST. He says some Aloysius phoned him, who got the call from a certain Prabhu, that a fishing boat hit by a merchant ship is heading back with two victims on board. So much so that he comments in his register that the information was submitted in a "cryptical" manner.
He nevertheless sends the alarm to the Coast Guard and the MRCC Mumbai (about 800 km due North) which start their search (see " Analysis of Annex 1"). He then waits patiently for the arrival of the fishing boat St Antony which docks at about 23:00 IST. No attempt to call the boat by radio, no patrol boat sent to the rescue, absolutely no action. And evidence tells us the same happens on the boat, in spite of a functioning VHF radio no one else gets any call (the St Antony skipper says in his first statement that his call was to Prabhu only, who will then call Aloysious, who will then call Alphonse Philip, who will then alert the Police so "cryptically").
It does not make sense,
whoever gets attacked with gunfire and has two victims
on board calls the authorities, gives his position, all
information and asks for rescue.
Meanwhile, the Mumbai Coast Guard begins its search, orders two coastguard vessels (Samar and Lakshmibai) to sail to the incident area and a Maritime Research Dornier aircraft takes off at 19:35 IST. This Dornier plane identifies the Enrica Lexie at 19:50 IST and "advises" it to head for the port of Kochi, at a sailing distance of two hours.
Matching these times is an impossible task.
First of all the Mumbai
Coast Guard already have at 16:53 IST an SSA Alert from
Enrica Lexie, complete with name, course and position, and therefore have no need to
launch an air-and-sea search, all they need do is call them by radio.
In fact, as mentioned in the Lexie Log Book (submitted by Italy to ITLOS who then made it public - see ITLOS Annex A 14) and also by the statements by Captain Vitelli, by Second Captain Noviello and by two Indian sailors Mr Gupta and Mr Samson, the Mumbai Coast Guard
called by radio at 18:30 IST, long before the Dornier plane “located” Lexie at 19:50 IST.
Why this air-and-sea charade? Which event must be created with so much noise? Which fact needs instead to be shadowed in order to have that same fact ignored?
ANNEX 3: Tankers Enrica Lexie and Olympic Flair
The Olympic Flair is a Greek tanker, very similar to the Italian ship, which on that same day 15.02.2012, quite a few hours after the Lexie incident, reports a boarding attempt near the port of Kochi. This confirms the fact that on that day that stretch of coast was not crossed exclusively by merchant ships and harmless fishermen.
ANNEX 3: The Olympic Flair incident report on IMO-ICC website (report no. 054/12)
15.02.2012: 1650 UTC: Position: 09°57’N – 076°02’E, around 2.5nm South of SPM Cochin Anchorage, India – About 20 robbers in two boats approached an anchored tanker (Olympic Flair) and attempted to board her. The lookout crew noticed the robbers, raised the alarm and crew mustered. The robbers aborted the attack seeing the crew awareness and moved away.
As stated by the report the
Greeks sent the IMO (International Maritime Organisation)
and other enforcement organisations, Indian Coast Guard included, the tanker Olympic Flair states it was
attacked at night, at 22:20 IST (16:50 UTC) while at anchor, 2.5nm south of Kochi Oil Terminal (SPM),
some 11nm from the coastline (just
inside Indian territorial waters).
Two boats with about twenty
bandits, plunderers you name them) attempt to board her but,
according to the report, since
the crew was alerted they give up and flee. That is all. No use of weapons, no one hurt,
no fire hydrants, no grenades, nothing at all.
ANNEX 3: Position of the Olympic Flair incident according to the IMO report. Kochi SPM is the oil terminal position, somewhat South is where the Olympic Flair dropped anchor.
At this point it is worth recalling that:
Enrica Lexie is approached by a single boat on a day with optimal visibility while sailing the high seas at cruising speed with no cargo
The Olympic Flair is approached at night by twice the number of men and boats while at anchor and presumably fully loaded
For the Italian ship signalling, showing their weapons, trying intimidation by firing a few shots were hardly enough before the unknown boat aborts its approach attempt
The crew of the Greek ship, which was a far “easier” target, foils the attack by apparently putting on a good show, maybe a "Sirtaki" dance on deck.
This is not the only aberration linked to the Olympic Flair incident. As we shall see, thanks to the documents submitted by Italy and India to ITLOS in Hamburg, which this Court correctly made public, we can say that the IMO report is false, not as an opinion by this Court Expert, but because it is does not state the whole truth.
But first things first.
In the days following the events the
Italian press raised the Olympic Flair question and that
degenerated into Indian frenzied press reactions stating
that was an Italian
attempt to pass responsibilities on to the innocent
The Diaplous Maritime Services
From the Greek side they at
first denied a pirate attack, then they admitted it,
again they denied at first that contractors (armed private guards) were on board the Olympic Flair to
defend the ship, but finally the truth leaked, thanks to
Italian journalists Gian
Giornale) and Ennio
were actually present aboard the Olympic Flair, hired from
the specialised security company Diaplous Maritime Services, but without weapons!
ANNEX 3: Diaplous promotional materials
This negligent omission distorts the entire prosecution, thus leading us to think of something far more serious, the reasons of which we cannot yet fathom but are referred to in the Enrica Lexie Log Book.
"had seized two craft"
In their phone call at 18:30 the
Coast Guard say they had been informed about the suspect
pirate attack and, as a result, "had seized two crafts".
They then ask the Lexie to head toward Cochin (Kochi) and
Captain Vitelli asks for a written request. Which two
crafts? Why "two" pirate crafts if the attack to the Olympic
Flair by "two boats" will only be reported at 22:20 IST,
after about 4 hours?Is the Crystal Ball
of Merlin in standard supply at the Mumbai MRCC? Do they seize
pirate boats even before they attack ships?
An efficiency unheard of! It is clear that this pirate attack on the Olympic Flair did not occur at 22:20 IST as reported to the IMO if four hours earlier the two pirate boats had already been seized.
Neendakara, at 23:00 IST, the
docking of St Antony
Upon St Antony’s arrival Venad News, a private Kerala TV station, does a video recording of the entire scene. We see St Antony dock, the corpses, their landing and removal and finally the skipper of the fishing boat Mr Freddy Bosco releases his first statement in front of witnesses, cameras, microphones, next to a police officer.
He begins with "When it was
around 9:30pm I heard a huge noise" (see "Analysis of
Annex 2" where his testimony is dealt with in detail). In
Malayalam different words describe 9:30am or pm. Bosco
states 9:30pm, i.e. 21:30 IST.
What can this "huge noise" be
that Bosco heard before the bullets were even fired?
Surely not a calibre 5.56mm rifle shot which, out in the open seas, could even go unheard when distant 100 to 200m.
Let us say that there is more than enough to create suspicion in a policeman, that same Sub-Inspector who at 17:40 got the information from Alphonse Philip. How come that Sub-Inspector raised the alarm at 17:40, started an air-and-sea search and Bosco now says they were shot at only at 21:30?!
Sherlock Holmes would have
wanted a clear explanation!
But let us focus on the "huge noise": where can it come from?
The answer is the Stun Grenades
used by the Diaplous contractors, whose presence on board
tanker Olympic Flair was ascertained only after over a
year of patient effort. Such grenades are specifically
used to produce that "huge noise" which, according to
Diaplous, deters pirates.
The two images, above and below, were downloaded from the Diaplous website years ago but are no longer visible in their renewed site. But we still have the downloaded files relevant to the firing of stun grenades.
The Diaplous stun grenades do
deter pirates but it can well be said that they also
In this article on The Hindu, dated 8 March 2012 (22 days after the incident of Lexie), there is a report about an episode that seems copied from what Mr Freddy Bosco stated after docking upon his arrival in Neendakara.
Here are two fishing boats, one
also named St Antony, the other named Joshua, that are
fishing in front of Kollam.
An oil tanker in transit fires a "ball of fire" over their heads as well as gun shots.
Luckily this time there are no victims.
Where was the Olympic Flair
on that 15 February, 2012?
Now we can entertain a well-founded suspicion that the Olympic Flair is involved in the shootout against St Antony. In court they say that three clues do amount to evidence and so far we have two (the phone call at 18:30 IST by the Coast Guard saying two boats were seized and the huge noise witnessed by Mr Bosco).
All would be in vain if we could verify (as evidence) that the Olympic Flair at 22:20 IST (when it reports a pirate attack and sends it to the IMO) was actually where it said it was, according to its declared geographic co-ordinates, i.e. 2.5 miles south of Kochi oil terminal.
That we cannot verify but we
have instead proof of the opposite, and this another piece
of evidence rather than a simple clue.
This image was created in 2013 and is based on AIS data made public by many specialised sites, some of which provide AIS data, free or paid for, about individual ships.
Based on such data you can
usually find out everything about their geographical
location, movements etc.
This excludes vessels navigating in "piracy high risk" areas which shut down their AIS system to avoid monitoring by pirate organisations and their attacks.
All times given here are UTC=GMT and dotted lines mean a lack of signal. The green dotted line is the Olympic Flair southward course. The top right caption with 2012/02/13 00:29, E.T.A. 02-15 08:00 and a green arrow tell us where the AIS system was switched off i.e. in front of Mumbai when heading south for Kochi. That means she lost contact at 00:29 on the 13th and was meant to reach Kochi SPM at 08:00 (13:30 IST) on 15 February 2012, the day of our events.
The red dotted line) gives us the northward journey of the Olympic Flair until it starts its AIS system, again in front of Mumbai, on the 20 February 2012. Its “hiding” lasted a whole week, between 13 and 20 February, and the bottom left caption also shows a “fantasy destination” i.e. Arzew (Algeria) with E.T.A. 12-01 12:01, that is over 9 months later!
Should we consider that, after she was attacked by two pirate boats at 22:20 IST in front of Kochi, the Olympic Flair weighed anchor and sped away, then we must point out that she did it at a snail’s pace, at roughly half its speed. What is likely, since there appears to be a void of about 50 hours, is that she must have stopped somewhere., Here are some possibilities we cannot rule out but ought to be verified:
However, in the meantime, we should understand and verify that fantasy destination (Arzew with ETA in December) after switching the AIS system on again on 20 February.
In the above picture we can follow the Olympic Flair voyage through its AIS system and find these readings:
- 2012/02/22 19:33 Destination: ARZEW (again inserted while rounding the Strait of Hormuz)
- 2012/02/22 23:43 Destination: KHAHGISLAND (misspelling for Khark Island in Iran)
- 2012/02/26 12:59 Destination: ARZEW (Algeria again)
- 2012/02/26 15:38 Destination: FUJAIRAH (United Arab Emirates)
- 2012/02/26 20:02 Destination: FUJAIRAH (United Arab Emirates)
- 2012/02/27 21:35 Destination: VISAKHAPATNAM (Bay of Bengal, India)
Nothing strange, the Olympic Flair does not want to be monitored by pirate organizations and provides fantasy data, but it is clear that its AIS system cannot certify what her actual position was on 15 February since it has no AIS data. Nor can her spokesmen’s statements be taken at face value since, after lying about the presence of security contractors on board, they can only be seen as totally unreliable.
Lies are always motivated by some reason.
Let us return to Neendakara
We left Mr Freddy Bosco where he declared that the shooting occurred at 21:30.
Only a few minutes later he is
at the police station and makes a totally different
They were fired on at 16:30 IST, the same time of the Lexie incident.
In a dramatic recall he describes "the bullets came in like torrential rain" but the huge noise is gone.
He declares “I called Prabhu” to
warn him. The boat position at the time of his incident
just does not match with the Lexie’s at the time of her incident. Later on he will retain that time at 16:30 but will give another three different positions, all tens of kilometres away from the Lexie at the time of the incident.
And what did the other fishermen
say? Here is a line in the Charge Sheet on page
“On 16.02.2012 CW-58 questioned the witnesses CW-2 to CW-9 and recorded their statements” (Chargesheet Witness CW-58 is a Neendakara policeman and CW 2 to 9 are the other 8 St Antony fishermen, Bosco excluded).
Since no other witnesses were
recorded in any document one can only assume that the
St Antony crew members confirmed Bosco’s statements to the police. But here is a surprise.
On the next day 17.02.2012 all
these fishermen, including Mr Bosco, are interviewed by
a reporter from The Hindu, a newspaper, and give him a completely different version of events.
In this interview the journalist,
though blaming the Enrica Lexie for the death of the two
fishermen (this version of events was aired by the Coast
Guard since the morning of the previous day), states that
the incident occurred at night (“evening”) and he probably
had heard of Bosco’s declarations upon docking at
The St Antony fishermen declare
they were fishing at 14nm off the Alappuzha coast and
decided to head SOUTH.
They reiterate they were inside territorial waters, point to their mobile phone being within its working range as evidence of that. Mr Freddy also declares that the "aggressor" ship was “not sailing within the prescribed shipping channel” for commercial ships but was closer to shore “east of the channel”.
These statements make it evident that St Antony cannot come across the Enrica Lexie at 4:30pm and 20.5nm offshore, since St Antony was 14nm offshore, then headed South to return within the 12nm limit, while Lexie was sailing 20.5nm offshore and heading North-West.
We cannot figure out how, after a shooting with two casualties on board and a working mobile phone, no one called either the Coast Guard or their families. Instead of using it to call the authorities Mr Bosco will use his VHF radio to call Prabhu, the owner of the vessel.
Why do they keep quiet, though communication was no problem, and wait until at least 23:00 when they reach Neendakara harbour? Though able to communicate why does Bosco, the boat skipper, describe the facts to the Coastal Police only at 23:00 on the Neendakara pier?
And why did not the Coast Guard call Bosco, at least at 17:40, demanding full details of the shooting, the position, the status of victims etc?
And why does Prabhu, rather than calling the Coastal Police after the news, call Aloysious, who then calls Alphonse Philip, who finally will alert the Coastal Police at 17:40? (See Analysis Annex 2)
But above all: which is the ship
closer to shore that fires at St Antony, and why Bosco’s
Neendakara declaration, that places events under a totally
different light, is found nowhere in the Charge Sheet?
The omissions are really too many to give credibility to the prosecution against the Italian military.
Let us go back to Kochi and
look for the third clue.
Let us consider the time and point of anchorage of Enrica Lexie off the Port of Kochi. We refer to a previously mentioned passage, in the Enrica Lexie Log Book, about the 18:30 IST phone call and the seizure of two pirate boats.
One must recall that a ship’s "Log Book" is a document drawn up by the Captain (who on board legally sums up the functions of a Police Officer, Civil Registrar Officer and
Notary Public) and such document should be considered "true until proven false".
So no assumptions, fantasies, guesswork are of any use. To counter a Log Book valid judiciary evidence must emerge to prove that what is written is false, in which case those who write it commit a criminal offence (Italian Criminal Code art. 476).
The phone call
The Log Book says that at 18:30 the Coast Guard call the Enrica Lexie by radio, they declare they were advised about a suspect pirate attack and had seized two boats. They therefore request Lexie to make a diversion to reach Kochi and cooperate.
This phone call has so far been
presented as a "clever trick" by the Coast Guard to lure
Lexie into port by disguising their assumption that the
Italian ship was responsible for the death of the two
But according to the Lexie’s Log Book this phone call has quite a different value. In fact, the Coast Guard declare they "had seized two crafts" whereas the Italian description of the incident always refers to a single boat.
And if we take a look at the Olympic Flair report to the IMO at 22:20 IST (16:50 UTC) we can read that this ship declares it was attacked by two pirate boats, instead of one!
The Log Book could lead us to conclude that the Olympic Flair attack at 18:30 had already occurred since it is just this ship that tated it was attacked by two pirate boats.
The contention that this may be a coincidence is just inadmissible since highly unlikely. Not only do the Coast Guard mention an event that will occur only four hours later, but they also maintain that they "as a result, had seized two crafts". Two boats as in the Olympic Flair event that will officially occur 4 hours later. No way, you cannot make a mistake here.
Enrica Lexie anchorage position and time off Kochi
Incredibly (the devil is in the
details...) the Enrica Lexie, now off Kochi at 21:18, is
ordered to drop anchor and does it at 21:48, close to the
SPM oil terminal, practically where Olympic Flair later at
22:20 reports an attack by two pirate boats while at
The alleged scene would have it that at 21:48 the Enrica Lexie, under escort by ICGS Lakshmimbai and Samar (which will then remain through the night), drops anchor close to the Olympic Flair (2nm says the Log Book, 5nm say the Coast Guard).
And that while a Dornier plane is watching from above.
Then at 21:48 we have the Enrica Lexie, a plane, two military ships and the Olympic Flair, all lying within a very small area.
And at 22:20 two pirate boats, regardless of such deployment of forces, attempt an attack on the Olympic Flair!
The Olympic Flair does not ask for any help from the military vessels in sight, from the military ships no one takes any notice, the crew of the Olympic Flair "muster” (of course with no noise) and only the pirates notice them and then flee. Not even the navy ship radars notice anything when in a 2 mile range they should even see rowing boats.
Conclusive hypothesis on
The items available are more than circumstantial evidence and are presented by the Lexie Log Book, by the document Annex 1 "Events" by the Coast Guard, by the Olympic Flair IMO report, by the contradictory testimonies of Mr Freddy Bosco, by the statements the St Antony crew gave the press on 17.02.2012, at odds with the affidavits by three of them
(Kinserian, Freddy, Michael) in July 2015.
Moreover, it can be concluded that the entire affair is very different from what has so far been
presented, that the roles of the Olympic Flair and the Coast Guard need to be fully ascertained.
This Court Expert is too "expert" to declare this is the "Truth", it is for the Court and
the judges to reach a reasoned judgment.
But it is my hope that no one ends up trying his fellow citizens on the basis of that Charge Sheet and ignore what is stated above. Should that be the case then the defence counsel would be compelled to request that the facts be established with verifiable evidence, evidence that cannot come from either the Olympic Flair or the Coast Guard because of the existing legitimate doubt that they are a party to this story.
Back in March 2012, at the start of this affair, information was released in Italy about the size of the bullet, a post-mortem exhibit, which was later confirmed in August 2015 by the documents India filed in Hamburg.
A "Sri Lanka Trail” was given credit owing to three clues:
1) The size of the bullet led to a 7.62x54R cartridge, and there is ample documentation on Sri Lankan Coast Guard Arrow boats fitted with weapons firing these rounds.
2) A large number of reports exists about incidents with Indian fishermen trespassing into Sri Lankan territorial waters for tuna fishing in the Palk Strait, where Sri Lankan fishermen and Coast Guard try to prevent it (one of many "fish wars" that occur around the world).
3) The St. Antony fishermen say they had been out at sea a few days before the incident to look for tuna fish that are mainly found in the south, in the Palk Strait, not in front of Kollam.
Therefore a second investigation hypothesis (besides the Olympic Flair) to look for possible clues was that the St. Antony could have been fired on at 21:30 on the previous day i.e. on 14 February.
That would entail considering that:
- the St Antony crew was reluctant to be punished for trespassing
- the Kerala authorities needed to avoid jeopardising the outcome of an imminent election with a new clash on fishing areas
- the central Indian government had no desire to jeopardise the normalisation of relations with Sri Lanka.
Hence the decision to blame one
of the many oil tankers that sail in front of the Kerala
An investigation in this direction is therefore entirely legitimate, in order to find clues and news about any incidents on 14 February which involved Indian fishing boats. After over three years nothing has emerged after examining Sri Lankan media verifiable via the Internet, though one may well think that every party involved had a vested interest in sticking to a strict silence.
Differences between the Sri
Lankan and the Olympic Flair trails
While working on the Olympic Flair trail, whenever we came across new information this gained credit owing to new clues in favour of the defence. This also happened with the documents recently made public by ITLOS.
Instead the Sri Lankan trail has
produced nothing new and we are stuck with the above three
In the end only the Olympic Flair analysis showed a clear evolution potential, whereas the Sri Lankan trail after some time brought no development.
However, this Sri Lanka trail is mentioned here because its initial considerations are still valid, since it appears from the documents that the Indian authorities never investigated in this direction, in spite of their duty to do so in view of the contradictions and unreliability of the witnesses. This points to “blatant omissions by the prosecution” already detected elsewhere in this affair. Finally, we wish to demonstrate how this affair was analyzed from all possible and reasonably sustainable points of view, without any bias towards one or the other trail.
When did the St Antony
shooting occur? At what time and on what day?
There is circumstantial evidence pointing to the day before 14.02.2012 at 9:30pm in the Palk Strait, the tuna fishing area where dozens of clashes occurred between trespassing Indian fishermen and the Sri Lankan Coast Guard and/or the local fishermen in defence of their own fishing grounds.
Let us assume Mr Freddy Bosco refers to 9.30pm, but on the previous day 14 February 2012.
We know St Antony had sailed on 7 February for a 10-day tuna fishing trip.
FAO studies of regional fishing,
for that October to April period, locate the usual Indian Ocean tuna fishing areas in the Bay of
Bengal (especially off the
south-eastern coast of India) which is opposite to the
point of the alleged attempted attack but close to the Sri
Lankan Palk Strait, where Indian fishermen often trespass
into Sri Lankan waters.
Clashes, arrests, sunken boats, disappearances, wounded and casualties are commonplace in that area. The Sri Lankan Coast Guard and fishermen are indeed determined to protect their fishery resources from the invasion of other fishermen coming from the nearby Indian state of Tamil Nadu (incidentally the same state where St Antony is registered).
Just google “save the Tamil Nadu fishermen” and you will be flooded by the news.
“Nearly 500 Indian fisherman
have been killed in the Indian Ocean by Sri Lankan
Navy/Coast Guard and the Indian Central Govt has so far
not taken any stern actions to stop the killings. TN
fisherman are wondering whether they are still part of
India. We are seeking support from the fellow Indian
brothers and sisters to appeal to the Indian Govt to
stop this bloodshed.”
The tacit assent of the Indian central government and the Kerala state government to the violence and killings of Indian fishermen by the Sri Lankan Coast Guard, as well as by armed local fishermen, is often reported by Indian fishermen organisations.
Recently comparisons appeared in the news saying that the harshness shown to the two Italian military finds no match when facing the crimes committed by Sri Lanka.
Had the incident really occurred at 21:30 on 14 February, i.e.26 hours before returning to Neendakara harbour with its sad load of victims, which would clearly establish that the Italian military were never involved in the St Antony incident, would it be possible to set the murder of the two fishermen in the context of the Indo-Sri Lankan fish war?
The above image shows a course leading from Neendakara to the centre of Palk Strait, on the sea boundary between the Indian and Sri Lankan territorial seas, where armed clashes take place more often.
Navigation back to Neendakara covers about 180 miles which at 8 knots, the maximum speed of St Antony, takes some 22.5 hours, compatible with the above 26 hours.
Cross checking of this hypothesis
According to the autopsy report (see Annex 4 Post-Mortem), signed by Ms K. Sasikala, Professor of Forensic Medicine and Police Surgeon, of the Trivandrum Govt Medical College, the 'metallic bullet with a pointed tip" found inside the skull of one fisherman “measured 3.1cm in length and 2cm in circumference at a point 2.4cm above the base."
As we can see above the bullet size mentioned by the post-mortem excludes the bullets supplied to the Italian military and coincides almost perfectly with that of the 7.62x54R cartridge fired by former Soviet rifle Dragunov and PKM machine gun.
Come si vede le misure indicate nell'autopsia escludono il proiettile in dotazione ai militari italiani e coincidono quasi perfettamente con quelle della cartuccia 7.62x54R sparata dal fucile ex sovietico Dragunov e dalla mitragliatrice ex sovietica PKM.
This image above shows us the Sri Lankan Coast Guard Arrow boats, each armed
with two PKM machine guns which fire precisely those 7.62x54R rounds.
Of course we are aware that such evidence could be based on coincidences that may occur by accident, that weapons using 7.62x54R cartridges are widespread in that area and that they are in the hands of regular forces, pirates etc.
It is for the reasons given before and for the sake of a thorough presentation that we chose not to ignore this circumstance.
Analysis Annex 3
Charge Sheet - Conclusions
Annex 3 represents the synthesis
of the prosecution by the Indian authorities against the
It all hints to an alleged "guilt" as claimed by the Republic of India representative at ITLOS.
The prosecution scheme appears based on:
- The events (Annex 1)
- The testimonies (Annex 2)
- Scientific evidence (Annexes 7, 8 and 48)
- A complex set of accusations (Annex 3)
The analysis of the various Annexes demonstrates the inconsistency of prosecution papers which we will not summarize here, but will refer to their individual analyses.
Annex 3 in fact summarises such
inconsistencies, it shows obvious omissions by
investigators on items which cannot simply be ruled out as
It is clear that if the two accused were prosecuted in India, based on Annex 3 - Charge Sheet, which certifies inconsistencies as true and fails to investigate in other directions, even in the face of very consistent evidence, the two accused could never expect a fair trial thus contravening to all Italian, European and international legal principles.
Luigi Di Stefano – Court Expert
(Translator and contributor M. Ricci – email@example.com)
In this document, Annex 3 will be examined with regard to the application of 2002 Indian law, the so called SUA Act, in the case in object.
Kerala police charge sheet, 15 February 2012
Il SUA Act.
THE SUPPRESSION OF UNLAWFUL ACTS AGAINST SAFETY OF MARITIME NAVIGATION AND FIXED PLATFORMS ON CONTINENTAL SHELF ACT, 2002 ACT NO. 69 OF 2002
SUA Act is a law against piracy, terrorism and any other crime committed in the sea, on a vessel or on fixed platform, which are within the Indian continental shelf.
(NB. Continental platform is a geographical place, not a legal one. In this way, Indian sovereignty would arrive beyond limitations established by international treaties).
In this analysis, it will be outlined that the SUA Act is contrary to the European law. The different interpretation of defense right and accusation duties de facto inverts the burden of the proof: the innocence should be demonstrate, in this way, by the accused, whilst both the European and the Italian law establish that the guilty should be demonstrate by public accusation.
Indian authorities affirmed the SUA Act applicability to Enrica Lexie case since 12 May 2012, as per the Charge Sheet (final report to judges).
From Annex3 - Charge Sheet
Italy appealed, before the Indian Supreme
Court, against the applicability of SUA Act on the case
Enrica Lexie. However, before the Court decided, ITLOS
ruling obliged Italy and India to suspend any
jurisdictional activity concerning Enrica Lexie case until
The Hague Arbitration Court decides on jurisdiction.
Therefore, nothing prevents Indian authorities from applying SUA Act during the national trial if the Arbitration Court give jurisdiction to India.
SUA Act principles and articles contrary to European and Italian law.
Art. 3 (applicable as per the Charge Sheet)
3. Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-
(1) Whoever unlawfully and intentionally:
(a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years.
Letters b, c, d e, f, g, h follow (see link SUA Act)
causes death to any person shall be punished with death.
This point is contrary to the principle of graduality of punishment. Death can be caused by negligence or to be a manslaughter, etc.
However, in case of proved guilty, punishment must fit the committed crime.
In the SUA Act principle of proportionality is missing as it declares peremptorily that “death” must be punished through “death”.
This is the law of retaliation, deleted by European legal framework many centuries ago, and not to be applied in modern ages, even more in a case where two defendants claim to be innocent.
Art.13. Presumptions as to offences under section 3.-.
13. Presumptions as to offences under section 3.
-In a prosecution for an offence under sub-section (1) of section 3, if it is proved:
(a) that the arms, ammunition or explosives were recovered from the possession of the accused and there is reason to believe that such arms, ammunition or explosives of similar nature were used in the commission of such offence;
(b) that there is evidence of use of force, threat of force or any other form of intimidation caused to the crew or passengers in connection with the commission of such offence; or
(c) that there is evidence of an intended threat of using bomb, fire, arms, ammunition, or explosives or committing any form of violence against the crew, passengers or cargo of a ship or fixed platform located on the Continental Shelf of India,
the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence.
Art. 14 Protection of action taken in good faith.
14. Protection of action taken in good faith.-
(1) No suit, prosecution or other legal proceeding shall lie against any person for anything that is in good faith done or intended to be done in pursuance of the provisions of this Act.
(2) No suit or other legal proceeding shall lie against the Central Government for any damage caused or likely to be caused for anything that is in good faith done or intended to be done in pursuance of the provisions of this Act.
Remarks on Art. 14
Some Italian media used this article on “good faith” in order to affirm that it could be applied towards Italian riflemen who “shot in good faith” because they were convinced the ship was attacked by pirates. It is instead quite evident that SUA Act article 14 is about other things: it protects anyone, person or institutions, from eventual legal revenges by who was victim of errors or abuses in the application of SUA Act.
It is also evident that this “legal shield” was necessary because of the awareness that what was established in articles 3 and 13 opens that way to errors or abuses in the application of SUA Act. Therefore if they are committed in good faith, the author cannot be prosecuted.
Basically, the SUA Act comes back to the law of retaliation but it makes clear that if errors or abuses arise during its application, who commit them in good faith cannot be prosecuted (not even for negligence!). The central Government is not responsible even in case of death penalty decision against innocent people, issued “In name of people…”
Remarks on Art. 3 and 13
SUA Act provides a sort of “judicial automatism” where judge is deprived of the possibility to rule based on his own conviction beyond any reasonable doubt.
If the abovementioned conditions come to existence, the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence.
In this way, basis of Law according to which public accusation must prove the guilty, and not the accused must prove his innocence, are upset. Presumption of innocence, and the right to due process in general, is now part of the so called “general principles recognized by civilized Nations” (as per art. 38 para. 1 lett. C) of the Statute of International Court of Justice) and therefore it is source of International Law, to which all States are obliged. India included. By imposing normative rules as SUA Act to foreign citizens, context where relations are ruled only by International Law, India is violating explicitly an International Law principle, the violation of which allows Italy to bring India before the International Court of Justice.
This makes one reflect more because Italian legal framework, and the European – continental one (the so-called civil law), “borrowed” the right to due process just from the British law (the so-called common law). In fact, many European codes have adapted to the cross-examination system, to the principle of parity between accusation and defense and so on, only during last decades. Before, only the Anglo-Saxon Countries and their centenarian legal tradition talked about and applied the due process. India, as former British colony, assimilated British law since two centuries at least and now Indian authorities are applying it, when it suits them, against two Italian riflemen. In fact, India knows very well that to have arrested them is against the International law but, in its defense, it appealed to a merely common law principle: male captus, bene detentus. I.e., even if I caught you unlawfully (male captus), I can “lawfully” prosecute you (bene detentus).
Instead, as regards the due process principle toward nationals generally of other States, India makes an exception to its own legal tradition and to the principle of its own legal framework. In order to justify and to affirm its criminal jurisdiction over non territorial waters, India betrays itself.
Moreover, the SUA Act as such is much disputed, since the IMO (International Maritime Organisation) that mainly deals with the international anti-piracy legislation filed grievances about the Indian regulations. In facts, Indian SUA Act is just the implementation at national level of the broader SUA Convention, and relative Protocols, adopted by IMO in 1988 and entered into force in 2010. In this Convention, the killing of a person is punishable (art.3 para.1 letter g) only if committed in connection with crimes previously enlisted (art. 3 para. 1 letters from a) to f), therefore with crimes requiring conditions additional to the “only” causing death required from art. 3 letter (i) of Indian SUA Act above mentioned.
It is noteworthy that Indian Constitution declares International Law as “Law of the Land”, therefore it has for India the same value as its own Constitution. But apparently the application is made in convenience. The SUA Convention application is biased, the application of Convention on the Law of the Sea is instead on alternating current: India violates it about jurisdiction rules; however, it uses the ITLOS norms as last resort in order to establish the nationality of the fishing vessel. In fact, according to Indian legislation, a vessel is considered as having Indian nationality (and therefore, in order to be able to apply Indian law to the fact happened on board) only if registered. Instead, according to International law, it is sufficient there is a link between the State and vessel: this link can be for example the nationality of the master or the nationality of the most of the crew.
India boasts its jurisdiction on the case thanks to this International rule, otherwise it could not affirm the St. Antony fishing vessel was under its jurisdiction because St. Antony was not registered but it had a mere fishing license (for India fishing license does not makes it as a vessel having Indian flag).
Therefore, we cannot claim that India respects Italian or European law principles. However, we can legitimately expect that India is consistent with international law always, not only to its convenience, and with its own legal tradition, rather than betray it for a mere show of force.
Coming back to SUA Act, it enlist conditions for which accused is “declared guilty”:
that the arms, ammunition or explosives were recovered from the possession of the accused and there is reason to believe that such arms, ammunition or explosives of similar nature were used in the commission of such offence.
It is obvious that the possession of arms does not imply guilty, as well as the “reason to believe” is a simple hypothesis without any evidence value.
In this case, testimonies of two Italian accused and of the second in command, Cap. Noviello (present in the moment of incident and eyewitness) agree in affirming that:
- they shot into the water for deterrence purposes;
- the vessel sighted was different from the one that Indian authorities showed later.
These declarations, which should be disproved in order to have a guilty decision, are not present in the Charge Sheet. According to SUA Act, the possession of arms and the “reason to believe” they were used in the commission of crime are enough to oblige the judge to convict the accused.
Unless the defendants did not prove otherwise. How?
In this case, it would be possible only by demonstrating that bullets found in the autopsy are not compatible with the ones used by arms Italian riflemen were supplied (measures of bullets indicated in the autopsy make it clear).
However other documents produced by Indian investigators, to which they want to give the aura of scientificity, draw contrary conclusions.
“Scientificity of proofs" produced at the Hamburg Tribunal.
Only one element for each document will be outlined here.
- Inspection on the vessel St. Antony (Annex8)
according to which bullets used during the incident are cal. 5,56mm. However, this conclusion is drawn by examining holes in the wood at naked eye and claiming to appraise, in this way, hundredths of a millimeter that distinguish them from other bullets shot by other arms potentially involved in the case (e.g. AK 74 bullet cal. 5,45mm which is only 11 hundredths of a millimeter different).
- The ballistics report (Annex7) where they affirm that two bullets found in the autopsy were shot by guns seized on board of Enrica Lexie, only because of an "approximate similarity” between the ones found intra corpore and the ones seized in the Italian ship.
Two rounds of ordinary and tracer ammunitions, contained in item no. 22.1 and no. 22.2 (editor’s note: cartridge caliber 5,56x45) were dismantled in the laboratory. The physical parameters (editor’s note: measures) of the bullets of ordinary ammunition contained in item no. 22.1 and that of tracer ammunition contained in item no. 22.2 were found approximately similar to bullet contained in the item no. 1.4 (editor’s note: Pinku) and 2.3 (editor’s note: Jalestine).
There is no track of scientific proofs.
Two bullets were dismantled in laboratory and were considered “approximately similar" to the ones found in the bodies.
This is sufficient to conclude, in the Ballistic Report, that bullets in bodies were the ones shot by the two seized guns.
Disputable and insignificant in any court in the world, but the SUA Act nail the two accused by charging them with the “proof of innocence”.
- "Scene of the crime" (Annex48)
dove si riportano le posizioni
reciproche fra Enrica Lexie e St. Antony al momento degli
spari con posizioni palesemente sbagliate, rappresentando la
direzione della Lexie con una differenza di 20° rispetto a
quella che risulta da tutti i dati a disposizione (compresi
where Enrica Lexie and St. Antony positions at the moment of shooting are indicated in a totally wrong way, as it describes Lexie direction with a difference of 20° with respect to the one inferred through all data available (included the Indian ones).
Lexie direction (white) is represented 20° wrong. In this way, shots can hit the right side of St.Antony, where effectively they are. Positioning Lexie in the correct direction (yellow), shots can hit only the opposite side, the left one.
In "Events" (Annex1) and "Witnesses" (Annex2 and Annex46) a macroscopic series of elements of contradiction, imprecision et similia can be noticed:
- the alleged missing reception of SSA Alert by the Coast Guard;
- contradictions about hours and positions declared by the main witness Freddy Bosco until the evening of the day of the incident;
- the information chain on incident managed by three people apparently unrelated to the facts, so that we do not know at what time the shooting against St. Antony was.
- public testimonies of fishermen, members of the crew (Freddy Bosco included), who, two days after the incident, stated that it happened in a different place (within the territorial sea) as regards Enrica Lexie.
good faith is not considered for accused, not even as
simple “general mitigating circumstance”.
It is impossible to give evidence to be innocent with respect to a “reason to believe” based on scientific proofs patched together, wrong and contradictory as those above mentioned.
It is impossible as it was for the witch to prove to the inquisitor she did not go to the infernal sabbath flying on a broom and she did not couple with the devil seven times.
Defense is possible (and it is right enshrined in all Constitutions) by following scrupulously the modern criminal procedure and the constitutional basis of this right as it is applied in Italy, in the European Union and in other States in the world, and affirmed by International law.
Otherwise, the fair trial does not exist.
There is, therefore, one reason more, besides the interpretation of international treaties, not to give jurisdiction on the case to India, a reason that goes beyond these Treaties and concerns the sphere of human rights.
WRITTEN OBSERVATIONS OF THE REPUBLIC OF INDIA
Written document filed by India at the Hamburg Tribunal on 6 August 2015 confirms what said above. In this document (70 pages + 56 annexes), Indian representative Dr. Neerhu Chadha reiterates peremptorily the two accused are guilty. Even if a trial did not take place and a decision was not issued, and even tough Indian investigators did not even produced specific accusations before Indian tribunals almost four years after the facts, the Republic of India (not a lawyer, an investigator, a journalist, but just Republic of India) considers the two Italian riflemen guilty.
This is possible thanks to the “automatism” established by SUA Act, otherwise no one (not even a State) could declare guilty a man before accusations are known at least by the Tribunal.
declarations on this regard are peremptory and
irrevocable; there is no room for a minimum doubt. Among
56 Annexes in support to this declaration, there are
also the technical ones – briefly above indicated - that
should give the “scientific evidence” of the accused
The undersigned believes that, as it is not advisable to indulge in proclamations of guilty while representing a sovereign State in an institutional context without a previously issued and motivated decision, written observations are a way that Indian representative used in order to obtain an advantage in the Tribunal decision.
Unless we hypothesize that he did not know the real legal and scientific value of annexes, which he used to support his declarations, or he did not examine them properly.
In fact, affirming the guilty of the two accused India wanted to influence the judges’ thought about the “guilty” and, therefore, their decision thanks to:
the support of tens of annexes, which judges and lawyers probably did not verify at all for lack of time;
the lack of an equivalent Italian document, missing because in that occasion ITLOS should deal only with jurisdiction matter.
Now the two accused are deprived of their personal freedom and are in Indian “judicial custody”. What above said demonstrates that the Republic of India in this case is not looking for Justice but only for Victory, by using all possible means.
In this document we will do the analysis of the Annex 27, 29 and 33;
These are the statements made to the Indian authorities by three people that at the time of the accident were on deck with different roles and assignments
Statement of Mr Vitelli Umberto, Captain of the MV Enrica Lexie, 15 June 2013
Statement of Mr Sahil Gupta, Crew member of the MV Enrica Lexie, 26 June 2013
Statement of Mr Victor James Mandley Samson, Crew member of the MV Enrica Lexie, 24 July 2013
NOTE: These statements were made after about one year of the issue of Charge Sheet (the recap document of the investigations in which it asks the committal for trial of the two accused, which is of May 2012).
Purpose of this document
Find items, in the statements, on the reconstruction of the events, which are useful to the defense of the two accused.
Statement of Mr Vitelli Umberto, Captain of the MV Enrica Lexie
From the statement of Capt. Vitelli does not arise interesting items for the reconstruction of the events. On hearing the gunshots Capt. Vitelli pressed the general alarm button, warned the crew that it was not a training exercise and to take shelter in "Citadel" of the ship (it’s a protected/safe room) and pressed the SSA button (the automatic alarm system, which we have feedback).
I have not watched the starboard site
I have seen the boat around 80 to 100 mt on the ship
I have seen a fraction of the boat
when I saw the boat from the bridge I have not seen any armed person on the board of the boat.
I did not see any ladders or hook in the boat
I have not cross checked with Fulbaria about the presence of the armed man and other crew members
In my esperience I not face any pirate attack
Statement of Mr Sahil Gupta, Crew member of the MV Enrica Lexie
Mr. Sahil Gupta is Second Mate of the Enrica Lexie (third in the chain of command after the Master, Capt. Vitelli, and the Chief Mate, Capt. Noviello).
ship time is 30m behind IST time
About 15.45 my watch duty Naren Fulbaria reported that the notice of fishing boat
I asked him to monitor it
I checked the position on the radar and I was sure that the boat will clearly passing without collision
When I heard firing the boat was about 200 mt away from the ship
It was a normal fishing boat and I did not seen anything unusual with it
I have not see any person armed in the boat.
Statement of Mr James M. Samson, Second Mate of the MV Enrica Lexie
Mr. Samson enters the command deck exactly at 16:00 "ship time" at the beginning of his turn, coinciding with the announcement of the general alarm.
I took the binocular and went to the AFT window (behind window), and sighted a boat drawing away.
There were not hooks and ladders in the boat
The sighted boat looked like a fishing boat and there no was no armed people in that fisching boat
Bene, dopo aver lavorato per l'accusa ora lavorino per la difesa.
It seems the statements of three experts seamen agree on some important points:
- It was a fishing boat (Vitelli, Gupta, Samson)
- It has been "seen" (Vitelli 100m, 200m Gupta, Samson 100 mt.)
- It had not on board hooks or ladders for boarding (Vitelli, Gupta, Samson)
- There were not armed people (Vitelli, Gupta, Samson).
Well, after working for the prosecution let’s now working for the defense.
What above assumes that they were able to identify the St. Antony.
Having made the statements over a year after the events, they should have seen countless times the images of St. Antony, and might well recognize in what they saw protagonist of the incident with the Enrica Lexie.
It is obvious that indicate specific details such as lack of hooks and ladders for boarding and the absence of armed people must encompass both the description of the vessel and the name clearly visible on the bow.
It cannot be, and three Persons, with the eagle eye on the hooks and short-sighted on the name that may be estimated long over a pair of meters.
The other element contrary to the credibility of these statements is the absence of the questions by the investigators. If they were "reports" there would be the question and its answer.
But in these “statements” you can image the investigator that quivers with curiosity to know if the three witnesses recognize the St. Antony, but these, although describing everything in detail, omit the particular identification key.
And the investigator is disappointed by the absence of the evidence from witnesses, but he does not so request.
Does not hold, it’s clear
that in the "statement" we should find the key response: if
it was or was not the St. Antony.
By statements of Vitelli, Gupta, and Samson, the boat approached the Lexie, causing the reaction of the watchkeeping staff, is not identified.
The reports describe details (hooks, ladders, weapons) that assume an obvious identification and recognition of the boat by eyewitnesses.
However the statements leave this identification to the imagination of the reader, in a context much more similar to media techniques that judicial practice. This may be okay to manipulate a public unprepared for lack of specific professional preparation, but of any values in a courtroom where on the verbal it reports "to demand it answers."
Willing to trust these testimonies must once again conclude that the boat in question was not the St. Antony.
In this document we are going to analyze Annex 46 .
These are the Affidavits (spontaneous declarations) made to the Indian authorities by three people who at the time of the accident were on the St. Antony fishing vessel .
Affidavits by Mr. Kinserian, Mr. Freddy and Mr. Michael Adimal, 30 July 2015 and 30 August 2015
The purpose of this document
To find in the depositions items allowing to reconstruct facts helpful to the defence of the two accused Marines.
NOTE : these ' spontaneous statements ‘ were made between July 30 and August 4, 2015, and therefore we consider them functional to the ' written Observations ' lodged by the Republic of India at the Court of Hamburg on August 6, 2015;
Analysis of the Annex 46 document
Spontaneous declarations are made by :
- Mr. Kinserian, fisherman
- Mr. Freddy Bosco, fisherman and owner of the St. Antony
- Mr. Michael Adimai, fisherman
The owner of the St. Antony
Mr. Michalel Adimai and Mr. Kinserian state that Mr Freddy Bosco is the owner of the St. Antony (... the fishing boat St. Antony's owned by my friend Freddy, Michael) (... was owned by my friend Freddy , Kinserian)
Mr. Freddy Bosco himself confirmed that he is the owner of the fishing vessel St. Antony (... is in my ownership ...)
This contradicts the statements made to the authorities by Mr. Freddy Bosco on the same evening of the 15 February 2012 facts (see Annex2) (I called Prabhu, owner of St. Antony's boat ...)
It is of the utmost importance to clarify who was the real owner of the St. Antony because after the so-called ' investigations ' the boat is ‘returned’ by the Court ' and then scuttled.
Returned to whom?
The sinking of the St. Antony is functional to affect the rights of the defence which, excluded both from the survey on the boat and from the subsequent ballistic expertise, can no longer return to do surveys and analysis.
(In other words, to remove any powder residue, metal microfragments, and delete bloodstains etc.)
If the owner of the St. Antony is this elusive Prabhu to whom the shooting is reported, who then delegate others to report to the authorities, and who then, once the vessel has been returned, sinks it, it is clear that Prabhu becomes an actor in this affair and his role should be (and had to be) investigated. ;
It is also surprising that Freddy Bosco may with impunity support different versions before the authorities and then be considered and kept as a reliable witness, even ' a star witness ' , while seeing the flurry of different statements about schedules, locations, role etc. he wouldn't even be admitted to an Italian Court.
The surprising aspect of these « Affidavits» is that they are copies of each other, nothing to do with the ' spontaneous declarations’ that they claim to represent.
It might seem an extravagance to have them « spontaneously declare » the same words, but actually this step that keeps repeating itself is functional in order by the Indian authorities to use in the law-suit the SUA Act anti-piracy law .
1) the authors of the killings, Latorre e Girone, who were recognized by all three witnesses, have been identified.
2) they have fired
3) without warning or provocation,
5) causing death
6) causing damages to a boat
There is everything you need to reach a conviction based on Sect. 3 of SUA Act 2002, without having to show evidence of guilt (see Annex3-SUA Act)
And these three testimonies by people who were aboard the St. Antony complement and supplement those obtained from the three subjects who were aboard the Enrica Lexie: Vitelli, Gupta and Samson.
-those aboard the Enrica Lexie testify that A) was a fishing boat, B) it did not have onboard ladders or hooks, C) there were no armed people
-those aboard the St. Antony testify that A) Girone e Latorre have fired, B) without warnings, C) causing the death of two people
There is everything you need, as long as in the judicial proceedings '‘scientific evidences ' are not required , or rather nobody claims to check them .
It certainly takes a certain acquiescence by the defense to accept without question the measures taken with a measuring tape and the conclusions using hundredths of a millimeter, or the concealment of the autopsy which, showing the caliber of the bullets recovered, clears the two defendants. But even the ‘approximately similar ' that describes the difference between the bullets recovered from the intracorpore and those supplied to the defendants.
They needed however a certain acquiescence even to accept without question the shred of evidence of the rights of the defence, the destruction of the exhibits, the omissive investigations and so on.
Therefore it would appear that the Indian authorities are confident that this acquiescence will go on, given the silence which followed the filing of the « written Comments » of August 6 in Hamburg.
Conclusions Annex 46
The Affidavits are functional to be used to hold a trial using the SUA Act law, as well as the depositions by the three people aboard the Enrica Lexie.
Evidently, almost four years after the facts, Indian investigators had no evidence that the fishermen aboard the St. Anthony could recognize the gunshots coming from the Enrica Lexie, therefore they used a photocopier a couple of days before depositing the piece of evidence in Hamburg.
It is clear that this is extremely disputable : a human eye with a visual acuity of 10/10 can discriminate sottended details underlying an arc of 1/60°, therefore it will be possible to verify whether from aboard the St. Antony the faces of Latorre and Girone could be recognized, or whether from aboard the Enrica Lexie it would have been possible to see that there were no hooks or guns.
If then from the optical analysis it should turn out that these six witnesses can boast a Visual acuity of, let’s say, 100/10 (100 tenths, much better than eagles) we shall have another ' technical ' subject to quibble about in Court.
In the "Written Observations" of August 6, filed at Hamburg in support of the claimed proclaimed guilt of the two accused, the Republic of India has led, as supporting documents, only those created by the investigators of Kerala and collected in the list described in the Charge Sheet that is dated may 2012.
The Charge Sheet already invokes the recourse to the SUA Act law, given the clear inconsistency of the evidence and therefore the inability to:
- A) to be deposited in Court
- B) as a result make them unavailable to the defense
- C) transmit them to the Italian judiciary had requested.
But to be able to apply SUA Act to the court proceedings, the elements referred to in Sec. 3 (see Annex3 - SUA Act) are missing.
These items have been created with the "testimonies" made by Vitelli, Gupta and Samson in may 2013 and by Kinserian, Freddy and Michael in August 2015.
This totally exclude the "scientific evidence" (if anything remains, is as tinsel for the media and public opinion), and the judicial process returns to rely solely on "evidence" like the good old days of the witch hunt, when the hapless herself had to show that she didn't go to the Infernal Sabbath flying on a broom.
Essentially Indian investigators handle the matter in their own use from the day following the facts, when they brought a fake trawler St. Antony under the guard of the Enrica Lexie. Up to the "declarations-copy" of Annex 46 useful to the application of SUA Act.
And as international agreements on the Law of the Sea are clear and would give jurisdiction to Italy, you try to deal the story as episode of common crime, the Italian military, in essence, shoot for fun, and that way it no longer matters law of the Sea.
Hence the rush to produce the affidavits (Annex 46) and the guilt rant filed Aug. 6.
All this has nothing to do with the "State of Law", the Hamburg District Court and now the Hague Tribunal had to rule only on the jurisdiction but it was India itself to lead in this international forum the innocence - guilt topic with the written document filed on Aug. 6.
And so now "grudgingly" the Hague Tribunal cannot avoid evaluating the story as a whole because:
- A possible assignment to India's jurisdiction
- The consequent India's determination to treat the accused as common criminals
- The consequent application of the SUA Act Law in order to get a conviction that would be impossible in a state of law would disqualify for ever the International Tribunal
Il lavoro di analisi dimostra l'innocenza di
due cittadini italiani. Puo' essere confutato, discusso
vivisezionato e ritenuto poco credibile, anche se abbiamo
studiato a lungo la cosa e siamo in grado di ribattere. Ma il
silenzio si spiega anche con il fastidio di tanta parte
dell'informazione verso chi ha fatto il lavoro che sarebbe stato
compito di un giornalismo rigoroso e senza pregiudizi...
Ma e' una battaglia, la nostra, che continua. Vi chiedo di aiutarci a diffonderla. Comunque vada, non molliamo.
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