Italian envoy has no immunity, says court

Agencies/New Delhi

The Supreme Court yesterday said that Italy’s ambassador had forfeited his diplomatic immunity over his role in securing the release of two marines who skipped bail while on trial for murder in New Delhi.

Chief Justice Altamas Kabir said Daniele Mancini, who had negotiated the Italians’ release last month so they could vote in an election, had waived his immunity by giving an undertaking to a court that the pair would return.

“A person who comes to court and gives an undertaking has no immunity,” Kabir told a hearing, while ordering that the ambassador stay in India until the next hearing on April 2.

Massimiliano Latorre and Salvatore Girone, who are accused of murdering two Indian fishermen off the Kerala coast last year, had been given permission to fly to Italy to cast their votes in the election on the understanding that they would return.

But the Italian government announced last week that it would renege on its commitment to send the men back, prompting fury in New Delhi.

The Indian government has warned of “consequences” and is reviewing its ties with Italy, while the case is being watched carefully by India’s allies because it could set precedents over the treatment of foreign diplomats.

New Delhi has put its airports on alert to prevent Mancini from leaving the country and the Supreme Court issued instructions that “appropriate steps” should be taken to restrain him.

Without legal protection he could be prosecuted for contempt of court.

A lawyer for the Italian government argued that Mancini still enjoyed diplomatic immunity and freedom of movement under international rules contained in the 1961 Vienna Convention on Diplomatic Relations.

However Kabir, who was heading a three-judge bench, said: “We have lost all trust in the ambassador.”

He said: “Some people are writing that we are naive. We don’t expect the republic of Italy to behave like this. What do they think about our courts and judicial system? We don’t accept any assurance from you that you don’t intend to leave (India). You have lost our trust.”

Katherine Reece-Thomas, an international law expert at City University London, said that India risked being in breach of its Vienna Convention commitments.

“The only sanction available to the host state (India) is to declare the diplomat to be persona non grata and demand that he leave,” Reece-Thomas said.

“India cannot stop the ambassador leaving against his will and any suggestion that he somehow waived his rights under the Convention is unfounded.”

In Brussels, the EU’s foreign service yesterday reacted cautiously to Kabir’s decision.

India and Italy should “pursue all avenues for an amicable solution,” said the spokesman for European Union High Representative Catherine Ashton.

India’s foreign ministry has also argued that Mancini may have waived his immunity by willingly submitting himself to the jurisdiction of the Supreme Court by signing a personal affidavit guaranteeing the return of the marines.

“We as officers of the government of India will abide by the directions of the court of India,” foreign ministry spokesman Syed Akbaruddin told reporters yesterday.

The marines face murder charges in India after shooting dead two fishermen off the Kerala coast in February last year, when a fishing boat sailed close to the Italian oil tanker they were guarding.

They say they mistook the fishermen for pirates.

Italy insists the marines should be prosecuted in their home country because the shootings involved an Italian-flagged vessel in international waters, but India says the killings took place in waters under its jurisdiction.

Italy said on Friday it would seek a “friendly agreement” with India to resolve the dispute.

“The Italian government is working on a friendly agreement with India based on international law,” Italian President Giorgio Napolitano’s office said in a statement.

Relations between the two countries have also been soured by corruption allegations surrounding a $748mn deal for the purchase of 12 Italian helicopters which the Indian government is now threatening to scrap.

Vienna Convention regulates diplomatic rights

India’s diplomatic spat with Italy and the travel ban that the Supreme Court has imposed on Rome’s ambassador have put the Vienna Convention on Diplomatic Relations back into focus.

This international treaty was negotiated in the Austrian capital in 1961, but its central rules on rights and privileges of foreign envoys had been widely practiced for more than 200 years.

The convention says that persons working as diplomats are “inviolable” and can therefore not be arrested or detained.

Host nations must also protect diplomats from attacks on their freedom and dignity.

Although the text includes a guarantee of free travel inside the host country, no such freedom is spelled out for cross-border trips.

However, the convention includes another provision pointing to the importance of unhindered travel: Third countries are obliged to let diplomats pass through when they make trips to or from their station of duty.

In another key provision, the treaty says that foreign envoys cannot be prosecuted or punished by the host country for actions carried out in the line of duty.

It also makes clear that this immunity can only be waived by the diplomat’s home country, and only if this is done in an express manner.

In addition, the convention protects embassies from intrusion and guarantees that diplomats can communicate freely with their capitals.

It also gives host countries the right to expel envoys.