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 with regard to the application of 2002 Indian law, the so called SUA Act, in the case in object.
The 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: The continental shelf is a geographical place, not yet 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).
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
(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 and shall also be liable to fine;
(letters b, c, d e, f, follow - see link SUA Act)
(g) in the course of commission of or in attempt to commit, any of the offences specified in clauses (a) to (d) in connection with a fixed platform or clauses (a) to (f) in connection with a ship-
(i) causes death to any person shall be punished with death
(ii) ...omissis... ;
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.
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.
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, Capt. 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.
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..."
"Scientificity of proofs" produced at the Hamburg Tribunal
Only one element for each document will be outlined here.
Inspection on the vessel St.Antony (Annex 8)
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 (Annex 7)
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 5,56x45mm) 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 (Annex 48)
where Enrica Lexie and St.Antony positions at the moment of shooting are indicated in a totally wrong way, as it describes Enrica Lexie direction with a difference of 20° with respect to the one inferred through all data available (included the Indian ones).
Enrica Lexie direction (white) is represented 20° wrong. In this way, shots can hit the right side of St.Antony, where effectively they are. Positioning Enrica Lexie in the correct direction (yellow), shots can hit only the opposite side, the left one.
In "Diary of Events" (Annex 1), "Freddy FIR" (Annex 2) and "Affidavit" (Annex 46) a macroscopic series of elements of contradiction, imprecision et similia can be noticed:
- - the alleged missing reception of SSAS Alert by the Coast Guard;
- - contradictions about hours and positions declared by the main witness Mr.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 (Mr.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.
In the "Charge Sheet" (Annex 3) there are macroscopic omissions about investigations against other potential perpetrators. Comparing it to the logbook filed by Italy in the Hamburg Court (and that have to be legally considered "act true unless otherwise proved"), it is evident that the Coast Guard makes reference to another pirate attack happened some hours before the Enrica Lexie incident. The same can be said about other elements indicated in specific documents.
What has been said so far would demonstrate the inconsistency of the prosecution during a cross examination between defense and accusation, resulting in the rejection or the dismissal. However, this is frustrated by the application of SUA Act as the hearing would be composed of a single question to the accused: please, show the evidence you are innocent. Otherwise, you are guilty.
In addition, the screen of art. 14 protects investigators and judges: if there was a clamorous judicial mistake, no one of them who contributed in its commission would be liable, not even for “neglicence and unskillfulness” as they were for sure in “good faith”.
Whilst 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.
Indian 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 guilty.
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.